U.S. Chamber of Commerce.
U.S. Chamber of Commerce. (Photo: Diego M. Radzinschi/NLJ)

Pointing to a rise in the use of outside financiers in lawsuits, the U.S. Chamber of Commerce is petitioning the federal judiciary to adopt a nationwide disclosure requirement for third-party litigation funding.

In a June 1 letter, Lisa Rickard, president of the Chamber’s Institute for Legal Reform, and more than two dozen other business organizations ask the Administrative Office of the U.S. Courts to add a provision to the Federal Rules of Civil Procedure that would require disclosure of all compensation agreements that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.”

“Absent disclosure requirements, TPLF [third-party litigation funding] will continue to operate in the shadows, concealing from the court and other parties in each case the identity of what is effectively a real party in interest that may be steering a plaintiff’s litigation strategy and settlement decisions,” wrote Rickard.

READ MORE — Taking Bets: The Rise of Commercial Litigation Funding

Such a “lack of transparency” could lead to conflicts of interest, particularly if the funders are publicly traded companies whose shareholders include judges, attorneys or jurors, she wrote.

Travis Lenkner, managing director of New York-based funder Burford Capital, called the petition a “carbon copy” of a 2014 Chamber proposal that failed to make headway before the same rulemaking committee. He predicted the same outcome this time around.

“The reason this is unlikely to succeed and is as much a public relations ploy as a legitimate public policy is because it is so broad as to be impossible to administer,” he said. “The points in favor of it are points addressed already by other rules. And the industry, which is growing, is still such a small, tiny part of the litigation system that federal rules exist to govern.”

Matthew Harrison, investment manager and legal counsel at Bentham IMF in San Francisco, echoed those arguments. He also noted that the committee, in rejecting the Chamber’s earlier proposal, had discussed whether such a rule was necessary.

“Judges have the power to require disclosure of funding when it’s relevant in the case,” he said.

Much has changed since 2014 when it comes to litigation funding, the Chamber noted in its letter. The Northern District of California adopted a rule in January requiring disclosure of outside funding in class actions, the first such rule in the nation. And in March, the U.S. House of Representatives passed the Fairness in Class Action Litigation Act of 2017, which mandates a similar funding disclosure requirement.

Burford and Bentham IMF initially opposed a proposal in the Northern District of California until it was limited to class actions.

In 2014, the rules committee said a rule was premature given that litigation funding was still new and evolving. That’s no longer the case, Rickard wrote, citing record income at several funders, including Burford and Bentham. More law firms also are using outside funders, which have expanded from financing individual lawsuits to portfolios of cases and now include crowdfunding online marketplaces such as LexShares and Trial Funder Inc.

“The industry has grown tremendously,” said Page Faulk, vice president of legal reform initiatives at the Chamber’s institute. “There have been a lot of developments since we originally submitted the petition, and we’re also hearing from other business groups about their concerns.”

More judges now share those concerns, she said. And she noted that the Chamber in 2014 had been joined by four other groups while, this time, more than two dozen organizations have teamed up in support of its proposal, including DRI-The Voice of the Defense Bar, Lawyers for Civil Justice, the Product Liability Advisory Council and the American Tort Reform Association.

“In three years, a lot has changed,” Faulk said. “We feel very positive.”

Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Pointing to a rise in the use of outside financiers in lawsuits, the U.S. Chamber of Commerce is petitioning the federal judiciary to adopt a nationwide disclosure requirement for third-party litigation funding.

In a June 1 letter, Lisa Rickard, president of the Chamber’s Institute for Legal Reform, and more than two dozen other business organizations ask the Administrative Office of the U.S. Courts to add a provision to the Federal Rules of Civil Procedure that would require disclosure of all compensation agreements that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.”

“Absent disclosure requirements, TPLF [third-party litigation funding] will continue to operate in the shadows, concealing from the court and other parties in each case the identity of what is effectively a real party in interest that may be steering a plaintiff’s litigation strategy and settlement decisions,” wrote Rickard.

READ MORE — Taking Bets: The Rise of Commercial Litigation Funding

Such a “lack of transparency” could lead to conflicts of interest, particularly if the funders are publicly traded companies whose shareholders include judges, attorneys or jurors, she wrote.

Travis Lenkner, managing director of New York-based funder Burford Capital, called the petition a “carbon copy” of a 2014 Chamber proposal that failed to make headway before the same rulemaking committee. He predicted the same outcome this time around.

“The reason this is unlikely to succeed and is as much a public relations ploy as a legitimate public policy is because it is so broad as to be impossible to administer,” he said. “The points in favor of it are points addressed already by other rules. And the industry, which is growing, is still such a small, tiny part of the litigation system that federal rules exist to govern.”

Matthew Harrison, investment manager and legal counsel at Bentham IMF in San Francisco, echoed those arguments. He also noted that the committee, in rejecting the Chamber’s earlier proposal, had discussed whether such a rule was necessary.

“Judges have the power to require disclosure of funding when it’s relevant in the case,” he said.

Much has changed since 2014 when it comes to litigation funding, the Chamber noted in its letter. The Northern District of California adopted a rule in January requiring disclosure of outside funding in class actions, the first such rule in the nation. And in March, the U.S. House of Representatives passed the Fairness in Class Action Litigation Act of 2017, which mandates a similar funding disclosure requirement.

Burford and Bentham IMF initially opposed a proposal in the Northern District of California until it was limited to class actions.

In 2014, the rules committee said a rule was premature given that litigation funding was still new and evolving. That’s no longer the case, Rickard wrote, citing record income at several funders, including Burford and Bentham. More law firms also are using outside funders, which have expanded from financing individual lawsuits to portfolios of cases and now include crowdfunding online marketplaces such as LexShares and Trial Funder Inc.

“The industry has grown tremendously,” said Page Faulk, vice president of legal reform initiatives at the Chamber’s institute. “There have been a lot of developments since we originally submitted the petition, and we’re also hearing from other business groups about their concerns.”

More judges now share those concerns, she said. And she noted that the Chamber in 2014 had been joined by four other groups while, this time, more than two dozen organizations have teamed up in support of its proposal, including DRI-The Voice of the Defense Bar, Lawyers for Civil Justice, the Product Liability Advisory Council and the American Tort Reform Association.

“In three years, a lot has changed,” Faulk said. “We feel very positive.”

Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.