A new comment letter to the Advisory Committee on Civil Rules contends that third-party litigation funding (TPLF) agreements do not automatically qualify for protection under the attorney-client privilege or the work-product doctrine — directly challenging one of the funding industry's central objections to a federal rule mandating disclosure.

According to AskAboutTPLF, an initiative of Lawyers for Civil Justice, the letter was authored by Bradley partner and privilege specialist Todd Presnell, who takes no position on whether a disclosure rule should be adopted. Presnell argues that TPLF agreements fail all four requirements needed to trigger attorney-client privilege: they are not communications, they are not between a client and lawyer, they lack confidentiality because funders are not parties to the litigation, and they do not contain legal advice or strategy. On that basis, he writes that he does "not perceive the attorney-client privilege or work-product doctrine as a barrier to adopting a mandatory-disclosure rule."

Two recent rulings are cited as support. In *Entangled Media, LLC v. Dropbox Inc.* (N.D. Cal., April 13, 2026), a court permitted a funded plaintiff to seal specific financial terms after in camera review while ordering production of the remainder of the agreement. In *A Co. Hungary KFT v. Bespalov* (Cal. App. 2d Dist., April 22, 2026), an appellate court affirmed $8,000 in sanctions against a judgment debtor who asserted work-product privilege as a blanket objection, holding that privilege claims over funding records must be made document by document.

The campaign argues these cases show courts already redact, seal, and log privileged materials routinely, and that TPLF agreements require no different treatment.

A coalition of 21 organizations led by the American Energy Alliance (AEA) has called on congressional leaders to close a tax provision that allows third-party litigation financiers to treat their profits as capital gains rather than ordinary income. The group argues the loophole enables foreign investors to extract effectively tax-free returns from U.S. court outcomes, with the American energy sector squarely in the crosshairs.

According to the American Energy Alliance, the letter was sent on June 22 to House Speaker Mike Johnson, Senate Majority Leader John Thune, and the tax-writing committees in both chambers. The coalition contends that foreign sovereign wealth funds and geopolitical rivals have deployed substantial capital into U.S. energy-related litigation, creating national security vulnerabilities through undisclosed financing arrangements.

"Foreign nationals and foreign corporations with no U.S. presence pay no U.S. withholding tax on these gains," said AEA President Tom Pyle. The letter frames third-party litigation funding as a high-yield alternative asset class and warns that foreign entities are weaponizing it in disputes over climate claims, intellectual property, mergers, and environmental regulation.

The campaign reflects the growing convergence of litigation finance, tax policy, and national security in Washington. While the letter does not cite a specific bill, its focus on capital gains treatment signals that funders' tax positions — long a secondary concern in the disclosure debate — are emerging as a distinct front in the broader fight over third-party funding.