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Early-Stage Funding (ESF): Bridging the Gap in Litigation Finance

By Drew Hathaway |
March 25, 2025

Early-Stage Funding (ESF): Bridging the Gap in Litigation Finance

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.

About the author

Drew Hathaway

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Commercial

MWE Guide Outlines Compliance Priorities for Litigation Fund Managers

By John Freund |

Fund managers exploring or operating within the litigation finance space face a complex and often underappreciated regulatory landscape. A recent guide from McDermott Will & Emery provides a detailed roadmap for how litigation fund managers can navigate this evolving environment, with a particular focus on securities laws, fiduciary obligations, and conflicts of interest.

The memo serves as a primer on key legal considerations, especially for those managing funds in the United States or marketing to U.S. investors. It emphasizes that litigation finance funds may be subject to the same regulatory scrutiny as traditional investment vehicles. Managers must consider registration requirements under the Investment Advisers Act of 1940, as well as exemptions, such as those for foreign private advisers or venture capital fund advisers. The authors also explore the application of the Investment Company Act of 1940, cautioning that even non-traditional funds can be pulled into regulatory oversight if structured improperly.

Fiduciary duties take center stage in the memo’s discussion of fund governance. Managers are reminded that they owe duties of care and loyalty to their investors, which can become complicated in litigation finance where the fund’s interests may diverge from those of claimholders or legal counsel. Disclosure, consent mechanisms, and robust internal compliance protocols are strongly recommended to mitigate potential conflicts.

The guide also highlights the increasing focus by regulators and policymakers on transparency and ethical boundaries within the litigation finance industry. Fund managers are urged to prepare for heightened scrutiny and evolving disclosure expectations.

Commercial Regulatory Issues

Op-Ed in The Hill Targets Foreign Investment in Litigation Funding

By John Freund |

A growing chorus of voices is calling for greater scrutiny of third-party litigation funding, with a new op-ed warning that opaque capital is compromising the integrity of the U.S. civil justice system.

An opinion piece in The Hill by Lindsay Lewis and Phil Goldberg of the Progressive Policy Institute argues that American courtrooms are being quietly transformed into a financial marketplace, with hedge funds, foreign sovereign wealth funds, and other investors channeling billions into U.S. litigation. The authors highlight an alleged lack of disclosure, warning that litigation funders can influence or outright control high-value cases, often without the knowledge of courts, litigants, or the public.

The litigation funding industry has long cited a lack of evidence regarding such accusations, yet the pressure from industry critics persists. The article points to mass torts as a flashpoint for abuse, claiming funders are building lawsuits “too big to fail” by bankrolling advertising campaigns and scientific claims to pressure companies into mass settlements regardless of the merits.

The op-ed also echoes previously-made critiques around national security and economic concerns, citing recent reports of Chinese, Russian, Saudi, and Emirati-backed funds investing in U.S. litigation. These foreign entities, the authors argue, could use lawsuits to access sensitive corporate data or strategically target American companies, all while avoiding U.S. taxes on any litigation proceeds.

Lewis and Goldberg call for reforms mandating disclosure of litigation funders, establishing ethical walls between financiers and legal strategy, and regulating foreign involvement in U.S. lawsuits.

Commercial Regulatory Issues

Increased Access to Justice for Claimants to Take on Powerful Organisations in Court

Ordinary people will have greater access to justice thanks to Government’s plans for legislation to help claimants receive the funding they need to take on powerful organisations in court.    

Since the Supreme Court ruling in PACCAR in 2023, claimants have faced uncertainty about whether they can secure funding from third parties in order to bring a civil case against a well-resourced opponent.  

Third-party litigation funding allows people to bring complex legal cases against powerful organisations when they cannot afford the costs themselves. Under these arrangements, a funder pays for the legal case in exchange for a share of any compensation won.   

The PACCAR judgment, which classed these funding arrangements as “Damages Based Agreements”, made it harder to access to third-party funding and has resulted in a drop in collective action lawsuits. Today, the government is confirming that it will take action to remove this barrier to justice by clarifying that Litigation Funding Agreements are not Damages Based Agreements, protecting victims and claimants.   

Minister for Courts and Legal Services, Sarah Sackman KC MP, said:  “The Supreme Court ruling has left claimants in unacceptable limbo, denying them of a clear route to justice. Without litigation funding, the Sub-postmasters affected by the Horizon IT scandal would never have had their day in court. These are David vs Goliath cases, and this Government will ensure that ordinary people have the support they need to hold rich and powerful organisations to account. Justice should be available to everyone, not just those who can afford it."   

David Greene, co-president of the Collective Redress Lawyers Association (CORLA) said: “This announcement is good news for ordinary people seeking access to justice. However, whilst the government has recognised the urgent need to reverse PACCAR, the proposal to regulate litigation funding agreements as part of the proposed legislation is likely to add considerable delay. We therefore urge the government to introduce an urgent bill to reverse PACCAR, and that the thornier issue of what light touch regulation of litigation funding might look like be considered separately.”

The UK’s legal services industry is worth £42.6 billion a year to the economy, with a highly skilled workforce of 384,000.  

A new framework will ensure that agreements are fair and transparent, so that third-party litigation funding actually works for all those involved.  These changes follow a comprehensive and wide-ranging review by the Civil Justice Council (CJC), published earlier this year. The government will continue to consider the recommendations set out in the CJC review.