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Litigation Funding: Seeing 20/20 on the Ethics and Law

Level: Advanced
Runtime: 61 minutes
Recorded Date: February 01, 2018
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1:00 pm - 2:00 pm
  • Litigation Funding - current state of the industry
  • Problems and Challenges faced by counsel
  • How litigation funding evolved
  • All litigation is financed: Debt vs. Equity
  • Debt/equity financing
  • Control and champerty
  • Ethics
  • Judicial viewpoint & update/FRCP
  • Disclosure & confidentiality
  • Best practices
Runtime: 1 hour
Recorded: February 1, 2018


Third-party litigation finance has evolved into a billion-dollar global industry over the past decade. Even as it becomes an accepted tool for commercial litigators and their clients, some lawyers may still have questions about ethics and regulatory issues.

Our panelists answer the number one question lawyers have about litigation finance: do funders have control over the matters they fund? We provide an overview of relevant caselaw concerning champerty, work product, confidentiality and attorney-client privilege. Lastly, we will review Federal Rules of Civil Procedure to provide some context and guidelines on regulatory concerns for this industry.

This program was recorded on February 1st, 2018.

Provided By

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Robert Martorana

Vice President
Burford Capital LLC

Rob Martorana is a Vice President of Burford, responsible for building relationships with leading law firms and client organizations, and for consulting with them to ensure that Burford’s capital is deployed in ways that address their needs.

Most recently Mr. Martorana was Executive Director of Business Development US Legal Support (Northeast Region). Prior to that role, Mr. Martorana was Director of Business Development for a litigation support provider and counseled both law firm and corporate clients on the best practices of collecting, culling, and reviewing electronic discovery documents. Mr. Martorana was also an Account Manager for LexisNexis. He has also presented CLE programs and lectured at Widener University Law School.

Earlier in his career, Mr. Martorana served as an Assistant District Attorney in Suffolk County, New York, and conducted many jury trials as well as grand jury presentations. He was also a personal injury attorney active in the New York City courts.

Mr. Martorana graduated from Siena College and received a JD from Albany Law School of Union University.

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Charles D. Schmerler

Norton Rose Fulbright US LLP

Partner Charles Schmerler practices in the New York office's litigation and international groups and is a member of the Global Litigation Steering Committee. He has extensive experience representing foreign and domestic clients, including financial institutions and financial services providers, private equity funds, corporations and governments, in both finance matters and dispute resolution. He has acted as lead counsel in arbitrations before the AAA and International Chamber of Commerce, and has appeared regularly before Federal and State trial and appellate courts located in New York and other jurisdictions throughout the United States.

Mr. Schmerler serves as lead counsel to major domestic and foreign financial institutions and funds for US litigation and arbitration, and has represented financial institutions, corporations and governments in litigation and arbitration in the US and abroad. He represents private equity funds in a wide range of matters, including disputes resulting from investments in a broad scope of industries, and has represented major international banks in cross-border financings and restructurings, including in their capacities as trustees and fiduciaries in bankruptcy. He has served as lead counsel on behalf of over twenty foreign and domestic financial institution creditors of a large multinational corporation in parallel bankruptcy proceedings in the United States and Brazil, and has advised trustees and creditors in restructurings in Argentina, Mexico and elsewhere. He serves as litigation counsel to a major foreign bank in connection with its multi-billion dollar portfolio of subprime mortgages and related instruments. His experience extends as well to representing government and corporate clients in international debt restructurings, Chapter 11 proceedings, financings and letter of credit matters.

Mr. Schmerler also has advised both financial institutions and media companies in connection with film finance matters and film-related litigation, and he has substantial experience in First Amendment litigation, including the argument of defamation cases before the United States Court of Appeals for the Second Circuit. He has broad experience in matters arising from the litigation of international disputes, including Act of State and Foreign Sovereign Immunities Act issues, enforcement of foreign judgments, tracing of stolen monies, service of process and taking of discovery pursuant to international treaties and conventions and attachment of assets. Mr. Schmerler is a frequent speaker on matters of international law and litigation and has published several articles and book chapters on litigating defaults on sovereign debt and international litigation. He is the editor of a recognized treatise on the law of international insolvency published by Oxford University Press.

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Professor Samuel Issacharoff

Reiss Professor of Constitutional Law
New York University School of Law

Professor Samuel Issacharoff is the Reiss Professor of Constitutional Law at New York University School of Law. His research addresses the law of the political process and constitutional law, as well as issues in civil procedure (especially complex litigation and class actions). He is a co-author of the seminal Law of Democracy casebook and recently served as the Reporter for the Project on Aggregate Litigation of the American Law Institute. Professor Issacharoff is a Fellow of the American Academy of Arts and Sciences.

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Philip H. Schaeffer

Former Generel Counsel
White & Case LLP

Philip Schaeffer is the former General Counsel at White & Case LLP. He had been the GC for over ten years and was formerly a senior partner in the Firm's litigation department. During his more than 50 years as a practicing lawyer in New York, he argued appeals before the highest appellate courts of New York, Connecticut and Delaware and was a lead counsel in numerous trials involving constitutional, real estate investment, intellectual property and commercial matters. Mr. Schaeffer is a former member of the American Bar Association's Standing Committee on Ethics and Professional Responsibility and its liaison to the ABA's Ethics 20/20 Commission. He was co-chair of the Commission's Working Group on Alternative Litigation Financing. He also serves as a member of the New York State Bar Association's Committee on Standards of Attorney Conduct (COSAC). He is a past member of the Committee on Professional and Judicial Ethics of the New York City Bar Association (Citibar), a past member of its Committee on Professional Responsibility and a current member of its Committee on Professional Discipline. He is also a past and present member of the Professional Ethics Committee of New York Lawyers' Association (NYCLA) and its Ethics Institute. He also serves on the New York State Bar Association's Committee on Professionalism.

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