Can defendants avoid or limit their liability through contractual provisions?

The U.S. litigation finance market continued to cool in 2024, according to the latest Westfleet Insider report. New capital commitments dropped 16% YoY, marking the second straight year of decline. According to the report, this reduction is being driven mostly by tight capital markets rather than any deep issues with litigation finance itself.

That said, the report doesn’t just show a market in retreat—it highlights how the space is adjusting and evolving. For one, deal sizes are getting bigger. Single-matter deals averaged $6.6 million (up from $4.8 million in 2023), while portfolio deals jumped to $16.5 million. Portfolio structures continued to dominate overall, making up about two-thirds of all new capital committed—roughly the same ratio we’ve seen since 2019.

One of the most interesting trends is the continued rise of claim monetization—essentially, turning a legal claim into upfront capital. This strategy made up 26% of new commitments in 2024, up from just 8% three years ago. Corporate claimants, in particular, seem to be driving this trend as they look for cash flow in a tougher funding environment.

Patent litigation is still the biggest slice of the pie, accounting for 32% of all new capital. Notably, most of that funding went into patent portfolios rather than one-off cases—suggesting funders are leaning into more diversified, lower-risk plays in the IP space.

Another first this year: Westfleet started tracking contingent risk insurance, and the data shows 19% of new capital commitments were insured in some way. That’s a big signal that funders are getting more creative about managing risk.

Big Law’s share of the pie grew a bit too, up to 37% of total capital commitments—though the actual dollars going to the top 200 firms fell to $850 million (down from $960 million the year before), simply because the total pool shrank.

Bottom line: while the market’s clearly under pressure, the players that are still active are getting smarter about how they deploy capital. With signs that capital flows could loosen up in 2025, funders focused on monetization, patent portfolios, and insured deals may be best positioned to ride the next wave of growth.

The following was contributed by Drew Hathaway, Founding Partner of Ignitis

Litigation funding has become a powerful tool for leveling the playing field in legal disputes, particularly in large-scale collective redress and mass litigation. However, traditional litigation funding models generally focus on established claims, leaving many meritorious cases stranded without the resources to move forward. ESF changes that dynamic, ensuring that strong claims don’t fail due to a lack of early investment.

What is Early-Stage Funding (ESF)?

ESF is a litigation seed funding model designed to provide capital before a case is mature enough for traditional funders. Unlike standard litigation finance, which typically invests after a case has been filed and is well-developed, ESF supports cases at their most critical early phase—covering investigation, legal groundwork, expert reports, and strategic planning.

For many high-stakes claims this early-stage investment is the difference between a case moving forward or being abandoned due to financial constraints.

How Can ESF Be Used?

ESF can be used in various ways. Some examples are:

• Case Investigation & Viability Assessments: Financing expert reports, forensic analysis, and economic modeling to strengthen claims.
• Initial Legal Work: Supporting law firms in preparing legal arguments, securing lead claimants, and initiating regulatory engagement.
• Claimant Outreach & Bookbuilding: Funding the early-stage efforts to build a robust claimant pool in opt-in and opt-out actions.
• Litigation Structuring & Strategy: Ensuring that the case is structured in a way that will later attract traditional (Round B) litigation funders.

Who Benefits from ESF?

ESF benefits injured parties, law firms, and traditional litigation funders in the following ways:

Claimants: Claimants generally do not have the means to finance their own litigation. For individuals or businesses harmed by corporate misconduct, access to ESF means:

• Non-recourse capital to get the claim off the ground (meaning the ESF only needs to be paid back if the case is fully funded). 
• The case moves forward faster, without waiting for full-scale funding.
• Access to top-tier legal representation capable of success against well-resourced defendants.
• The claims are properly developed and strategically executed, increasing their chances of success.

Law Firms: Law firms working on large-scale litigation often struggle with taking on the full risk and high costs of early-stage case development. This stage generally takes significant work, bookended with long timelines to securing Round B funding before capital begins to be deployed. For law firms, access to ESF means:

• They have immediate access to capital to help with law firm cash flows.
• They no longer must take on full risk for their time and upfront resources needed to secure funding.
• They can focus their attention on developing the best legal arguments possible rather than worrying about their up-front time commitment.
• They have a better developed case to present to Round B funders, making it more efficient to secure full funding.

Round B Funders (Traditional Litigation Funders): Frequently Round B Funders are presented with cases that they believe are simply too early for investment. Traditional litigation funders benefit from ESF because:

• They receive well-developed cases that have already passed viability assessments.
• They have immediate access to expert reports and legal opinions to better analyze the case and risks.
• The risk of investment is reduced, since much of the groundwork has been completed and expert opinions are available.
• Their duration risk is significantly reduced because ESF has been deployed to jump start the case and litigation is ready to commence. 

Conclusion

As litigation finance evolves, ESF is emerging as an essential tool for claimants, law firms and funders alike. By enabling early-stage legal work and de-risking high-potential claims, ESF ensures that justice is not delayed or denied due to financial constraints.

If you are exploring funding options for an early-stage case, ESF could be the solution to unlocking its full potential. 

About the Author

Drew Hathaway is a Founding Partner of Ignitis, where he leads case development, business strategy, and litigation funding initiatives. A U.S.-trained class action lawyer, Drew brings nearly two decades of experience navigating complex, high-stakes disputes and has built a reputation for advancing impactful litigation across borders.

After beginning his career defending medical malpractice cases, Drew transitioned to the plaintiff side in 2016, where he later became a key figure in the growth of international collective redress. He played a central role in launching and scaling European collective actions, helping to secure and deploy over €100 million in funding for cases aimed at holding multinational corporations accountable. Drew has helped millions of Europeans gain access to justice.

Drew’s expertise spans the full lifecycle of cross-border collective litigation—from claim foundation setup and funding structures to jurisdictional strategy, cost and tax modeling, and claims management. His comparative knowledge of U.S. and European systems allows him to operate effectively at the intersection of law and finance, where he regularly collaborates with leading law firms, economists, litigation funders, and academic experts.

He is a frequent speaker on international collective redress and litigation finance and is deeply committed to expanding access to justice for individuals and consumers harmed by systemic corporate misconduct.

He earned his B.A. from the University of North Carolina at Chapel Hill and his J.D. from Campbell University School of Law, where he was a National Moot Court Team member, Order of Old Kivett inductee, and editor of the Campbell Law Observer.

Drew is admitted to practice law in North Carolina, multiple U.S. federal and appellate courts, and in England and Wales.