dddd
PublishedApril 6, 2023

Litigation Financing Transparency Must be a Global Effort

Despite varying widely, the structure of legal systems among democratic, free countries are built on consistent underlying principles. Promoting equality, freedom, and justice is a common theme among them. Too often these ideals are not fully realized. Still, that should not discourage us from making incremental, but meaningful, improvements to our rules and laws.

A growing global financial practice threatens to leverage legal systems to extract profit instead of furthering justice. This business model, known as third party litigation funding (TPLF), involves investors, like hedge funds, paying legal fees and other litigation costs in exchange for a portion of any potential settlement or judgment. TPLF distorts the incentives at play in legal action and results in outcomes that are most lucrative for funders, regardless of the plaintiffs’ and defendants’ best interests.

An analysis conducted by the Swiss Re Institute classified TPLF as an “expensive and blunt tool to enable legal disputes, with potentially harmful economic and ethical consequences, particularly when used by vulnerable individuals.” The analysis found that TPLF results in more frequent, longer, and more costly legal action, with larger shares of the awards going to the funder instead of the plaintiff. Some groups, like the U.S. Chamber of Commerce Institute for Legal Reform have argued that the lack of TPLF safeguards also allows for strategic international conflict to play out through TPLF-backed legal challenges.

In many venues, including the European Union and the United States, there are no consistent TPLF transparency requirements. This means that defendants, judges, and juries often do not know if there is third party funding involved in a case or what strings may be attached to the funding.

In the European Parliament, I am leading efforts to shine light on the murky, largely unregulated TPLF industry. But, the financial entities profiting from TPLF are not constrained by borders. There must be minimum transparency standards instituted as widely as possible, including in the United States, to prevent further industry growth and profiteering.

After first taking root in Australia, TPLF has exploded onto the global stage. Westfleet Advisors, a litigation finance advisory firm, found in their 2021 Litigation Finance Market Report, that the U.S. litigation finance industry is maturing, referencing positive growth “both in terms of fresh inflows of capital from investors and new commitments toward litigation finance deals.” The report also highlights the $12.4 billion in assets under management in the U.S. TPLF industry, the nearly 50% year-over-year increase in capital committed to deals that involve the largest 200 U.S. law firms, and a particular inflow of capital into areas like patent litigation.

The transparency measures that we are advancing in the EU are not overly burdensome or radical. The commonsense proposals include mandating the disclosure of TPLF in all litigation as well as any conditions tied to the funding, preventing funders from taking control of legal proceedings or charging excessive fees, and ensuring that funders are subject to the same basic oversight that we would expect for any financial services firm. These types of reforms have broad public support. A recent survey by the Institute of Legal Reform found that 69% of U.S. voters support the disclosure of third party investors that stand to receive a portion of a settlement or award from a lawsuit, including overwhelming support from Republicans, Democrats, and Independents alike.

TPLF advocates maintain that financing provides access to justice for those who may not otherwise be able to afford to participate in the legal system. It is true that in some cases TPLF can be used to expand access to justice; but it is equally true that no basic safeguards would prevent this type of assistance from occurring. What it would do, however, is bring transparency for those using TPLF as a high-risk investment strategy and help prevent abuse at the expense of plaintiffs, defendants, and the integrity of legal systems at large. Progress that we are making in the EU can be replicated elsewhere, including in the United States. Individual U.S. federal courts, like ones in New Jersey and Delaware, have already instituted transparency requirements on their own. To effectively stunt the growth of predatory TPLF, however, there need to be universal minimum standards, not rules that vary by jurisdiction. U.S. lawmakers must enact commonsense safeguards that bring greatly needed transparency to the TPLF industry and prevent litigation financiers from exploiting the justice system for their own financial gain.

Photo of the face of MEP Axel Voss

Axel Voss

Member of the European Parliament, European Parliament

Axel Voss is a Member of the European Parliament.  First elected in 2009, his parliamentary work focuses on digital and legal topics.

More Posts

USPTO Guidance on AI is a Good Start

AI is catalyzing a sea change across our economy, particularly as it relates to innovation. It is critical that our laws and institutions keep pace with this rapid transformation. Fortunately, patent ...

Patent Eligibility Limits are Vital to Innovation, Prosperity, and Public Health

A few weeks ago, several public interest organizations including the Public Interest Patent Law Institute (PIPLI), the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Gene...

Not Just Delaware: Litigation Funding Transparency Progress Across Multiple States

In April 2022, Delaware federal court Chief Judge Colm F. Connolly introduced a standing order requiring that all parties appearing before him disclose any third-party funding they receive. Since then...

Subscribe to Patent Progress

No spam. Unsubscribe anytime.