An LFJ Conversation with Jason Levine, Partner at Foley & Lardner LLP
Jason Levine is an antitrust and commercial litigation partner in the Washington, D.C. office of Foley & Lardner LLP. He previously served as the D.C. office head, and head of U.S. antitrust strategy, at Omni Bridgeway, a global commercial litigation finance company.
Jason’s legal background spans over 25 years in private practice as a first-chair trial lawyer and antitrust litigator in several multinational law firms. He has tried over a dozen cases and served as lead counsel for plaintiffs and defendants in numerous billion-dollar disputes, including defending against two of the nation’s largest antitrust MDLs. Jason graduated cum laude from Harvard Law School and clerked for Judge Randall Rader on the U.S. Court of Appeals for the Federal Circuit.
Below is our LFJ conversation with Jason Levine:Where does litigation finance add the most value in antitrust cases, particularly given their scale, duration, and cost profile?
As in any complex dispute, litigation finance adds significant value in antitrust cases by shifting the risk of fees and legal costs away from the plaintiff or the law firm and to a funder. Antitrust cases are particularly well-suited to litigation finance because they can be exceptionally costly, require specialized counsel and often multiple expert witnesses, tend to have a long duration, and can involve massive amounts of discovery.
The aspects of the case where a financing arrangement adds the most value will vary depending on the funding mechanism. If a law firm is handling a matter on a contingent fee basis, then the greatest value from financing typically comes from covering the legal costs the firm would otherwise advance on its own. Outside a contingent fee scenario, financing is most important in paying counsel’s legal fees, although the funder may also cover legal costs. The universal point is that, for companies pursuing antitrust litigation, financing can be very attractive because it is non-recourse, permits the company to reserve its legal budget for defensive and compliance matters that are not amenable to financing, and helps convert the legal function from a proverbial “cost center” into a revenue generator.
Funding also increases the client’s options for which counsel to retain, which is particularly important in antitrust cases given their nature. With outside financing covering legal fees and costs, the client can focus more on the expertise and “fit” of counsel than on their billing rates. Relatedly, litigation finance can enable a small company to hire a “Big Law” firm that doesn’t offer contingent fee arrangements, rather than potentially being limited to a firm that does. The same point applies to expert witnesses, making the top echelon available whereas they might otherwise have been prohibitively expensive.
In short, with a meritorious case and litigation financing behind it, a small corporate plaintiff can match a much larger defendant’s litigation resources. This benefit of leveling the playing field is very clear in antitrust cases, given their scope and cost to litigate, which helps explain why they are funded at a higher rate than most other categories of commercial litigation.
Are there specific types of antitrust claims or procedural postures where you think funding is especially well suited?
Funding is very well suited to antitrust claims where a company has opted out of a class action and is pursuing its claim independently. This is particularly true if the opt-out occurs after the putative class action has survived motions to dismiss, if not class certification. At either point, a funder will consider the opt-out case at least partly de-risked.
This benefits the funder because the case is less risky and will have a shorter remaining duration. It benefits the funding counterparty because the funder’s required return should be lower, given the de-risking, leaving more of the proceeds for the client and the law firm to share. Substantively, funding is well suited to various kinds of antitrust cases, so long as quantifiable money damages are at stake rather than solely injunctive relief.
What regulatory or legislative developments in litigation finance should antitrust litigators be paying closest attention to right now?
There is significant activity at both the federal and state level that warrants attention, although not specific to antitrust cases. At the federal level, bills have been proposed that would seek to compel detailed disclosures of the existence and details of litigation financing arrangements, including to the adverse parties. Another bill would seek to largely shut down the involvement of foreign entities in litigation finance, both by prohibiting the practice by certain state-affiliated actors and also by requiring extremely detailed disclosures by others.
Although it’s fair to say that none of these proposals are a very high legislative priority, they definitely warrant attention, given how far the proposed federal tax on litigation finance proceeds progressed in 2025. That tax has not been formally re-introduced yet, but that is another possibility that would merit watching.
As the midterm elections in 2026 draw closer, the prospects for movement on any of these proposals will likely decrease, with the exception of a possible “midnight rider” slipped into a year-end Appropriations bill. That’s something else to watch out for. In addition, the Advisory Committee on the U.S. Federal Rules of Civil Procedure is considering potential Rule amendments involving disclosure of litigation funding uniformly in federal cases, and this is worth monitoring as well. Given all these developments, defendants have an increased incentive to seek information about litigation funding arrangements through discovery requests.
At the state level, at least a dozen states are perennially considering different disclosure regimes and regulations that would complicate the use of litigation finance. Some of this is performative, having failed multiple years in a row in some states. I would keep a particularly close watch for state-specific versions of the litigation finance tax that failed to pass in the U.S. Senate last year, especially in California, New York, Texas, Florida, and Illinois.
How do you expect evolving disclosure or taxation proposals to affect big firm strategy in funded matters?
Certainly, large law firms that are considering funding arrangements, or that have them already, will be monitoring the regulatory landscape for important developments. I would anticipate that the imposition of new regulations in general will cause firms to focus closely on compliance, both on their part as either funded counterparties or as counsel to them, and also on the part of funders. This might lead to a tendency to favor larger, more established funders that have robust internal compliance capabilities.
Law firms and their funded corporate clients will also likely scrutinize funding agreements even more carefully. Similarly, if any new industry-specific taxes are enacted, law firms will likely focus on funders’ ability to adapt their return structures to minimize the passed-through impact. Pricing in line with the market is always important, but potential tax changes could highlight this even more. Greater regulation could also lead to further consolidation in the litigation finance industry, leaving fewer – but likely larger – companies in the space, making it all the more important for law firms to seek out whatever edge a particular funder can provide in a deal.
I would not expect any new disclosure or taxation regimes to change the way law firms actually litigate their cases, with the exception of disclosure requirements giving rise to more discovery efforts aimed at funding arrangements. It is possible that a new, aggressive disclosure regime could give certain companies pause about pursuing funding, but I also consider this unlikely to change law firm litigation strategy.
Based on your own transition, what advice would you give Big Law partners or senior associates considering a move into litigation finance or a finance adjacent role?
I would advise them to be patient and to focus on relationships. Litigation finance companies do not have a classic recruiting pattern like law firms do. Headcounts tend to remain steady, with opportunistic hiring for purposes of expansion or replacement of departing personnel. I know several people whose transitions from a law firm into litigation finance took over a year because there simply weren’t openings available. In that situation, it’s important make contacts at one or more companies and check in with them periodically, because expressing interest in a position and staying top of mind can make all the difference. A warm internal introduction is much more valuable than cold outreach.
I would also recommend gaining direct exposure to litigation finance before seeking out a position. Funders will favor partners and associates who have previously handled funded litigation or at least negotiated deal terms with a funder. This not only credentializes the job-seeker’s interest in a role, it also demonstrates some familiarity with the industry and how it operates. Relatedly, job-seekers should learn as much as they can about the funder as possible before approaching it. What kinds of cases does it fund? Does it have geographical limits, or funding amounts that it favors? This information is often on the company’s website, and knowing it shows diligence and also helps ensure fit. For the few publicly traded funders, I strongly recommend reviewing investor materials and annual reports before interviewing.
In addition, particularly for partners, I would emphasize the importance of objectively assessing one’s network and prospects for helping to generate deal flow. Similar to a law firm, at most funders, origination is a key aspect of a more senior role. What is your base of potential funding clients? Do you have strong contacts with litigation business generators at multiple law firms, or with well-placed in-house counsel at companies with suitable litigation? Are your contacts limited to particular kinds of litigation, and if so, are those ones that tend to receive funding?
These are important questions to answer as granularly as possible before approaching a funder for a job. For more junior lawyers, consider where you would fit in the funder’s structure, and how you can add value, particularly in the nuts and bolts of underwriting cases. Here, again, subject matter is important. Expertise in areas of law that don’t yield funded cases is unlikely to support the business care for a new hire.
