About the Course
Introduction
This CLE webinar will discuss defending lawsuits and arbitration involving third-party litigation funding (TPLF). The panel will provide an overview of the TPLF market, discoverability of TPLF agreements, mitigating the effects of TPLF, and judicial and legislative responses to calls for greater disclosure.
Description
Litigators should now factor into their trial and discovery strategies, budgets, timelines, data protection practices, and client recommendations the effects that TPLF is having on the judicial system as a whole and in individual litigation. To do that, they need to understand the nature of TPLF, what the effects are, and then what are possible mitigation strategies.
Disclosure of the funding agreement is critical. In some circumstances, the agreement may be unenforceable, and counsel may be able to disallow damages provided by or assigned to the funder or present the agreement as evidence of reasonable expenses and damages. To avoid unnecessary delays and costs, defendants will want to insist that all parties necessary to settle the case, including TPLF, be present and participate in mediation, arbitration, or settlement discussions. The presence of TPLF may negate plaintiffs' “David vs. Goliath" theme or their appeals to righting wrongs for the greater good. TPLF can affect a court's proportionality assessment for discovery or other fee-shifting statutes.
Defendants are entitled to explore the relationship between plaintiffs' experts, its law firms, and the TPLF. Defendants are entitled to know everyone who might have access to their confidential information, and if plaintiffs have shared privileged information with funders, to test whether the attorney-client privilege has been waived. Users of TPLF will want to be very careful about what types of case analysis they provide. Disputes between the funder and the attorneys or the clients may delay the case. All of these issues and more affect how counsel defending the case plans for discovery and proposes settlement.
Listen as this panel of outstanding litigators discusses the potential implications of third-party litigation funding.
Presented By
Ms. Ashton is a member of Butler Snow’s Pharmaceutical, Medical Device and Healthcare group. Her practice is focused on the representation and defense of manufacturers in complex products liability litigation in state and federal courts, with an emphasis on prescription drugs, medical devices, and chemicals. Ms. Ashton was a member of the Motions Team in the largest MDL in history and has experience in various other aspects of discovery and trial work, including drafting company discovery responses, taking plaintiff and witness depositions, and providing pre-trial and on-site trial support to lead trial and appellate trial counsel. She recently served as a member of the trial support team that obtained a defense verdict in a medical device case in the United States District Court for the District of New Jersey (April 2023). Best Lawyers in America® selected Ms. Ashton as one of its “Ones to Watch” for Health Care Law and Product Liability Litigation.
Mr. Feman leads Parabellum's commercial litigation vertical. He has closed dozens of investments from inception with aggregate capital commitments in excess of $650 million. Mr. Feman is one of three individuals in the US ranked Band 1 by Chambers for litigation funding and one of The Legal 500’s eight global “Industry Leaders.” He has also been recognized by Leaders League as one of the leading litigation funding professionals in the US, by Lawdragon as a global leader in legal finance, and by Lexology as the inaugural winner of the Client Choice Award for third-party funding in the US. Mr. Feman frequently speaks and comments on developing issues in the industry. He has lectured at Yale Law School, the University of Pennsylvania Carey Law School, and Georgetown Law, and has authored industry commentary for Bloomberg Law, Law360, Carrier Management, ACC Docket, Corporate Counsel, Assured Research, and The Law Reviews.
Mr. Duree is an experienced trial attorney who guides clients through their most difficult litigation matters. Before joining Bailey Glasser's Commercial & Environmental Practice Group, he served for more than a decade as a federal prosecutor, during which time he managed some of the Department of Justice’s most sophisticated matters and tried approximately a dozen cases. Mr. Duree worked for several years in the Fraud Section of DOJ’s Criminal Division, which handles many of DOJ’s most complex white-collar criminal matters. While there, he managed two health care fraud strike forces in the New York City area, overseeing the work of teams of attorneys dedicated exclusively to the investigation of challenging nationwide and multinational health care fraud cases.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Wednesday, December 17, 2025
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Overview of TPLF market
A. Impact on judges and judicial system
B. Impact on attorney independence
II. Control features of TPLF agreements
A. Selection of lawsuits and claims to pursue
B. Selection of experts
C. Settlement authority, procedure, and terms
D. Obligation of litigant to monetize equitable relief
E. Right to discontinue funding in sole discretion of lender
F. Forced sharing of confidential documents over protective orders
III. Debate over requiring disclosure of terms
A. Full disclosure vs. in camera
B. Relevance
1. Necessary to evaluate enforceability of agreement and thus damages
2. Undermines David vs Goliath theme
3. Enables courts to assess proportionality in discovery
4. Prevents disclosure of trade secrets, confidential business data to competitor
5. Enables evaluation of credibility of experts recommended by TPLF
6. Prevents infiltration by state actors
7. Changes settlement dynamics, negotiation, mediation, and terms
8. May be necessary to comply with privacy and data transmission regulations in U.S. and abroad
IV. Judicial and legislative responses
V. Practical tips for defendants
The panel will discuss these and other important issues:
- How does litigation funding influence the behavior and affect the interest of plaintiffs, defendants, and attorneys?
- How does litigation funding affect the operation and integrity of the civil justice system?
- What effect will litigation funding have on insurers and their policyholders?
- Is there a correlation between TPLF, social inflation, and super-sized verdicts?
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