The District of New Jersey has adopted a local rule requiring disclosure of funding in some circumstances. There was considerable controversy about the rule when it was under consideration, but it does not seem to have been as controversial in practice. There is information suggesting that many of the cases in which disclosure was required are employment discrimination cases, which are different from the cases covered in panel 1.

Two other topics will be included in this panel. First, the District of Delaware was avenue of choice for a type of patent case that attracted litigation funders for patentees who needed significant financial support, but raised questions as to who was the real party in interest. The judge who was handling many of these cases took some aggressive measures and issued an order dealing with the funding issue. Thereafter, patent filings in that jurisdiction dropped significantly.

The next topic will be international arbitrations which are generally cases between large businesses, often with litigation funding on both sides. From what we know, there is disclosure of the funding, although what that entails, is less clear. Because arbitrators are private citizens, not judges, disclosure may be needed to avoid conflicts of interest. Also because these proceedings are confidential, the impact of disclosure may be different than when cases are in public proceedings.

The final topic will examine funding in cases involving public interest litigation of one kind or another. The funder is often a non-profit organization, rather than a commercial funder, with the terms of the agreement and the reasons for the funding different as well. Does this kind of funding raise some different issues or should it be treated the same?

Panelists:
Hon. Frieda Wolfson, Lowenstein Sandler
Jonathan Stroud, Unified Patents
Erika Levin, Fox Rothschild
Jacob Lipton, Justice Catalyst Access Fund
Alan Morrison, GW Law (Moderator)