WASHINGTON DC (February 13, 2019) — US Sens Chuck Grassley, Thom Tillis, John Cornyn, and Ben Sasse, members of the Senate Judiciary Committee, today introduced legislation requiring disclosure of third-party litigation financing agreements in civil lawsuits. Through such agreements, hedge-funds and other commercial lenders finance the cost of civil litigation in return for a portion of any recovery. However, the existence and terms of such agreements are rarely disclosed to the court or opposing parties, creating the potential for conflicts of interest. The Litigation Funding Transparency Act of 2019 would require disclosure at the outset of any class-action lawsuit filed in federal courts, or in any claim that is aggregated into a federal multi-district litigation (MDL) proceeding, of any agreement between a party to the case and any third-party commercial enterprise that has a contingent interest in the outcome of the case.
“Transparency brings accountability. It’s true for Congress, the Executive and our courts. For too long, obscure third-party litigation funding arrangements have secretly funneled money into our civil justice system, without any meaningful oversight, all for the purpose of profiting off someone else’s case. We should know whether there are undue pressures at play that could needlessly prolong litigation or harm the interests of the claimants themselves. A healthy dose of transparency is needed to ensure that profiteers aren’t distorting our civil justice system for their own benefit. Our bill strikes the appropriate balance in getting certain information out in the open while allowing courts to craft necessary protections,” Grassley said.
“The Litigation Funding Transparency Act is commonsense legislation that will shed light on third-party litigation financing agreements to ensure that the court and opposing parties are made aware of who is financing the litigation and whether or not there are any conflicts of interest,” Tillis said.
“Americans deserve a transparent and fair justice system that ensures third parties can’t anonymously pump millions into litigation. This bill will shed light on where this money is coming from and keep the civil justice system honorable and fair,” Cornyn said.
“A court’s ruling should be about laws and the facts, not about the size of your bank account. By shedding light on funding arrangements, this legislation is a common-sense step toward making transparency the rule,” Sasse said.
Third-party litigation funding is estimated to be a multi-billion dollar industry but is largely unregulated and subject to little oversight, fueling concerns about conflicts of interest that may distort the civil justice system. In 2015, Grassley and Cornyn sought details on the types of cases that funders will finance, the structure and terms of the agreements they enter into, and whether the court or interested parties are ever made aware of any such agreement. Since then, third-party litigation funding has skyrocketed. For example, litigation-financier Burford Capital reported profits up 75% in 2016. And according to Burford’s own 2018 survey, “nearly one in three interviewees (32%) and an even larger percentage of survey respondents said their firms or companies had used litigation finance — a 237% increase since 2012.”
To improve transparency and oversight, the Litigation Funding Transparency Act of 2018 provides a simple, uniform rule that would apply to all class actions and MDL proceedings in federal courts. Specifically, it requires class counsel, in any class action filed in a US district court, to disclose in writing to the court and all other named parties to the case the identity of any commercial enterprise (other than a class member or class counsel) that has a right to receive payment that is contingent on the receipt of monetary relief in the case. Such disclosure may be limited by stipulation or order by the court to protect certain information. The bill imposes the same disclosure obligations for MDL proceedings.
Text of the Litigation Funding Transparency Act of 2019 is available HERE.
