A new opinion piece defends third-party litigation funding as a precondition for small businesses and independent inventors being able to enforce their intellectual property rights, and argues that pending federal disclosure legislation would undercut them.

As reported by the Washington Examiner, the commentary is written by Kristen Osenga, chief policy counselor of the Inventors Defense Alliance and a professor of law at the University of Richmond School of Law. She frames funding as an access-to-justice question for the innovation economy rather than a question of litigation volume.

The piece points to two measures now before Congress: Representative Darrell Issa's Litigation Transparency Act and Senator Thom Tillis's Tackling Predatory Litigation Funding Act. Osenga argues that mandatory disclosure of funding arrangements would hand well-resourced defendants insight into a plaintiff's financial position and litigation strategy, giving them a means to outlast smaller opponents rather than resolve the merits.

Her economic case rests on the role small firms play in US innovation. Small businesses account for roughly 45% of US GDP, and smaller companies produce approximately 50% more patents per employee than large companies. Without outside capital, she contends, those inventors face infringement by parties who can afford to litigate indefinitely.

The commentary likens litigation funding to the contingency fee arrangement, a long-accepted mechanism for shifting cost risk away from claimants who cannot bear it. "The right to sue is only valuable if you can afford to exercise it," Osenga writes, casting the disclosure debate as one over who retains practical access to the courts.

Pogust Goodhead has escalated its dispute over control of the multi-billion-pound Mariana dam group action against BHP, taking the matter to the High Court rather than accepting the claimant committee's decision to change firms.

As reported by Legal Futures, the firm has applied for declarations that the committee had no contractual authority to terminate its retainer, no authority to direct a change in legal representation, and no authority to prevent it from instructing Quinn Emanuel for the damages phase of the claim.

The committee, made up of 17 members whose identities are confidential, decided in early September to move the claim to Bailey Glasser International, a joint venture between a firm run by former Pogust Goodhead staff and the US firm Bailey & Glasser. Pogust Goodhead had announced in June that it would instruct Quinn Emanuel on damages.

In a statement, the firm said that clients "are being encouraged to walk away from an established litigation structure on the representation that they can simply move to another firm with no material consequences."

The timing raises the stakes considerably. A damages trial listed for 22 weeks is only months away, and the underlying claim has been built on an extensively financed litigation structure whose economics depend on the identity of the firm carrying it to trial. The application asks the court to determine, in effect, who holds the contractual right to control the running of one of the largest group actions in the English courts, and on what terms a claimant committee can override the arrangements that funded it.