LITIGATION TRENDS 2025 | 41 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C Complex Commercial Litigation L court to comment that such funding agreements “are a fact of contemporary complex litigation.” In re Broiler Chicken Antitrust Litig., No. 16 C 8637, 2024 WL 1214568, at *1 (N.D. Ill. Mar. 21, 2024). The availability of funding has allowed plaintiffs, including large corporations, to bring claims that they may not have otherwise brought due to the expense of litigation. As funding arrangement have become more common, courts and litigants have grappled with how to deal with them, including whether such arrangements are discoverable and whether the structure of certain agreements violates public policy. Disclosure. Courts increasingly require that the involvement of litigation funders be disclosed. More than 25% of federal district courts, including the Northern District of California and District of New Jersey, have local rules which expand upon Federal Rule of Civil Procedure 7.1 to require disclosure of litigation funders with interest in the litigation in addition to ordinary corporate disclosures. Others courts, like the District of Delaware, have adopted standing orders requiring disclosure of “Third-Party Funders”. Similarly, the local rules in the Third, Fourth, Fifth, Tenth, and Eleventh Circuits all require disclosure of any entity with a financial interest in the case, including litigation funding. Discovery. Beyond disclosure, courts have considered whether a party may obtain the actual funding agreement in discovery. Several courts have granted such requests, finding that funding agreements can be relevant to issues such as bias or to rebut assertions of disproportionate resources between the parties. See, e.g., Samesurf, Inc. v. Intuit, Inc., No. 22-CV-412-RSH-DDL, 2024 WL 4994338, at *1 (S.D. Cal. Dec. 4, 2024); Electrolysis Prevention Solutions LLC v. Daimler Truck N. Am. LLC, 2023 WL 4750822, at *5, 8 (W.D.N.C. July 24, 2023). Courts have also found funding agreements relevant where there are assertions of impropriety and where appliable law provides a rule against champerty. Gerrard v. Kochkin, 2024 WL 782189, at *5 (S.D. Fla. Jan. 8, 2024). Other courts, however, have split on the issue and concluded that funding agreements are not discoverable unless the party makes a particular showing that litigation funding is relevant to a particular issue in the case. See, e.g., MSP Recovery Claims v. Sanofi-Aventis U.S. LLC, No. 2:18-CV-2211(BRM)(LHG), 2024 WL 4913662, at *10 (D.N.J. Apr. 2, 2024). Similarly, New York state courts have held that “litigation funding is generally not discoverable.” Coronado v. Veolia N. Am. Inc. & While litigation funding has existed for more than 20 years in the United States, it has recently become an increasingly common way for potential plaintiffs to monetize their legal claims. THE CHANGING FACE OF THE MDL MASS TORT DOCKET Close to Resolution Nearing Trial Coming Into View Earplugs Paraquat Ultra-Processed Foods Talcum Powder Social Media Medication Hernia Mesh 40 | Weil, Gotshal & Manges LLP
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