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An LFJ Conversation with Ken Epstein and Matt Leland, Co-Founders, Backlit Capital Solutions

By John Freund |

Ken Epstein is a co-founder and principal of Backlit Capital Solutions and brings 25 years of experience in bankruptcy law, commercial litigation, restructuring and finance. Ken leverages his deep industry expertise to provide tailored solutions for companies, law firms, investors, and individuals navigating complex litigation and financial restructuring challenges.

Prior to co-founding Backlit, Ken was a Senior Investment manager and Legal Counsel in the New York office of Omni Bridgeway, a legal finance and risk management company, where he led the company’s U.S. insolvency litigation finance platform. In this role, he originated, structured, and managed a diverse portfolio of legal assets, playing a key role in many of the firm’s most significant transactions. Prior to his tenure at Omni Bridgeway, he was a managing director at MBIA, a public financial services company, where he led large-scale initiatives and crisis management efforts. He was also on the board of directors of MBIA Services Corp. Ken started his career as a lawyer at Cadwalader, Wickersham & Taft, where he specialized in financial restructuring and corporate bankruptcy law.

Ken graduated from Brooklyn Law School (cum laude) and holds an accounting degree from the University of Maryland. Ken has also served as an adjunct professor of bankruptcy law at Cardozo Law School. He has been recognized in Who’s Who Legal: Thought Leaders – Third Party Funding Guide and the LawDragon Global Restructuring Advisors & Consultants Guide.

Matt Leland brings over 20 years of experience in commercial litigation and litigation finance to Backlit Capital Solutions.  Most recently, Matt was as an Investment Manager and Legal Counsel in the Washington, D.C. office of Omni Bridgeway.  There, Matt sourced and evaluated funding opportunities, negotiated deal terms, and monitored funded matters through to resolution.

Before Omni Bridgeway, Matt served as partner and as a commercial litigator for nearly two decades at AmLaw 100 firms King & Spalding LLP and McDermott Will & Emery LLP, experienced in all facets of civil litigation, including appeals, trials, arbitrations, and mediations. He successfully represented corporate clients engaged in diverse legal issues including government reimbursement claims, contractual disputes, unfair business practices, deceptive trade practices, civil RICO, and trademark infringement. Over his career, Matt helped clients recover hundreds of millions in damages and has extensive experience working closely with corporate executives and in-house counsel to develop budgets, fee structures, and strategies for all phases of litigation, including early case assessment, discovery, trial, and settlement. He has repeatedly been recognized in peer-reviewed guides including The Best Lawyers in America, Legal 500, and Super Lawyers.

Matt received his Juris Doctor from Georgetown University Law Center, where he was the Publications Director for The Tax Lawyer and The State and Local Tax Lawyer. He earned his B.A. in Political Science from the University of New Hampshire.

While earning his law degree, Matt was as a top aide for former U.S. Senator and Congressman John Sununu, after serving previously as the Deputy Campaign Manager on Mr. Sununu’s first campaign.

Below is our LFJ Conversation with Ken and Matt:

Could you elaborate on Backlit Capital’s approach to fundraising support for law firms, particularly start-ups, and what key factors contribute to successful fundraising in today’s market?

There’s been no better time to be a law firm seeking financing, as new investors enlarge the funding universe and options multiply. However, the landscape can be daunting and complex.  We invite those firms to take advantage of our experience.  We have spent years on the funding side of negotiations – evaluating claims and risks – and understand the nuanced distinctions between a fundable investment and one that gets passed over by litigation funders, lenders, and alternate investment sources.

Rather than simply connecting lawyers to potential sources of capital, we collaborate with firms, no matter their experience level, to implement comprehensive strategies that achieve specific financing goals.  We showcase the potential of their assets with smart strategic positioning and precise financial modeling to address the investment concerns of potential funding sources. And to drive successful fundraising, we help firms provide transparency with risk profiling, highlight their operational credibility, and seize upon tactics to mitigate unpredictability so that the firm can showcase high-grade opportunities.

Finally, to ease the burden of this process, we provide end-to-end transaction management.  We take on all of the complex and time-consuming tasks associated with legal funding so that clients can focus on providing first-rate legal services.

With the increasing complexity of legal finance, what innovative risk management strategies does Backlit Capital employ to mitigate potential losses for investors and lenders?

We appreciate that these are high-stakes transactions for both the investor and the claimant and our review is disciplined, transparent and robust. Each transaction is different and we provide additional services depending on the client’s need, but here’s how we approach every opportunity:

  • Early-Stage “Pressure Testing”:  We test key legal theories, jurisdictional issues, damages, and enforcement risk with input from independent experts before approaching funders. Backlit will only move forward with quality transactions that bring clear value to all parties. Our funders know that we’ve done the work and stand behind every law firm and claimant we represent.
  • Contingent Insurance Products:  Whether for judgment preservation or adverse cost coverage, we’ll provide detailed financial modeling and help source appropriate products that can reduce litigation risk and, in turn, improve pricing or expand access to capital.
  • Post-funding Oversight:  We offer ongoing monitoring of case progress, legal developments, and emerging risks.  Our proactive oversight, combined with strategic advisory services, allow for early adjustments to protect investments and provide better measures of valuation as the investment moves through the litigation process. Further services include exploration of secondary market options when an investor wants to acquire or monetize a litigation asset.

By combining deep legal and financial expertise with market tools, Backlit ensures that risk is not just identified, but actively managed.   

How does Backlit Capital stay ahead of emerging trends in legal finance, and what future developments do you anticipate will significantly impact the industry?

We’re always focused on potential shifts in the market.  At Backlit, our experience comprises not only litigation finance, but also decades of credit analysis, restructuring, commercial litigation, and government policymaking.  This expertise enables us to identify how trends in financial, legal, and public sectors might influence litigation funding, and this positions Backlit extremely well for what we see as the biggest catalyst in the market – the addition of significant new funding capacity driven by new investors in the sector, like hedge funds, family offices and middle-market institutions. This provides a great opportunity for claimants and law firms looking for funding, but also injects unprecedented complexity into the marketplace.

At Backlit, we developed our services to not only identify, but capitalize, on opportunities for clients on either side of these transactions. Our connections with and understanding of the private capital space allow Backlit to find and structure deals that address the financial, operational and reporting requirements of all parties. As this market continues to grow, we’re positioned to create exciting new investment opportunities for funders and drive strong deals for clients seeking capital.

Can you share insights into a recent successful deal Backlit Capital facilitated, highlighting the unique challenges and solutions implemented?

We expect that over time, most of our business is likely to be on the brokerage side and we are actively working with numerous clients to develop solutions to their diverse funding needs. In the short period since our launch there are two particular engagements that demonstrate the breath of the services we offer beyond traditional funding.

In the first, we have been engaged as an expert in a multibillion-dollar, high-profile bankruptcy litigation to assist a private equity client in the valuation of a complex litigation asset. Backlit has provided counsel, analytics and testimony in support of the client’s position. Our broad in-house capabilities and market expertise allow us to quickly analyze and deliver valuations that support our clients’ goals and survive deep scrutiny.

We have also been engaged on a project basis to help a large multi-billion dollar investment fund evaluate, structure and close a large loan transaction backed by a legal claim.  The borrower’s existing lending relationship ended when the share collateral was involuntarily converted into a legal claim due to litigation surrounding a merger of the entity that had issued the shares.  This was a time sensitive transaction with high stakes for all involved. Selecting legal counsel, working through conflicts, providing assistance on the unique features of legal finance – a discreet asset class – as part of the diligence and in-house deal team was a rewarding experience.

In the context of distress and insolvency, what specific pre- or post-Chapter 11 assistance strategies have proven most effective for Backlit Capital in maximizing creditor trust and claims management?

While we work across sectors, we have a proven specialty in maximizing litigation assets for entities in financial distress and insolvency. Claimants facing the challenges of bankruptcy often have few other meaningful assets, and are extremely capital-restricted in their ability to effectively pursue damages. Additionally, these parties have fiduciary duties that need to be satisfied fully and transparently. Running a robust marketing process and ensuring best pricing is in the best interest of the estates, will enable the trustees to defend their fiduciary decisions if challenged, and given the multiple interests in the case, ensure a fair process and optimization of assets.

With such complex interests to manage, these clients demand specialized approaches that differ significantly from traditional commercial litigation support.

  • Funding for the debtor or trustee: We can help a debtor, bankruptcy trustee or litigation trustee secure funding to pursue legal claims (e.g., fraudulent transfer, preference, breach of fiduciary duty) or help support ongoing administrative costs. Our process ensures all parties are comfortable with transparency, discipline and reporting.
  • Funding for creditors and committees: We can help creditors and committees push back on a debtor’s attempt to bury valuable claims because they don’t benefit management or insiders.  Consulting with us early in the process can help add negotiating leverage and drive up recoveries.
  • Sale or assignment: When parties want to divest all or part of an estate asset, we can help sell or assign litigation claims and judgments, accelerating recoveries and ensuring a minimum return to stakeholders.
  • Post-confirmation litigation trusts: When establishing a post-confirmation trust to investigate and prosecute claims, we can help drive a competitive process, ensuring that the trust is adequately funded and that key professionals are fairly compensated for their work.

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John Freund

John Freund

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LFJ Conversation

An LFJ Conversation with Juliana Giorgi, General Counsel for Latin America at Loopa Finance

By John Freund |
Juliana Giorgi Is a Colombian lawyer and holds a law degree from Spain, with postgraduate studies in international arbitration. She has over 15 years of experience in consulting, litigation, domestic and international arbitration, and alternative dispute resolution mechanisms. Below is our LFJ Conversation with Juliana Giorgi: Could you elaborate on Loopa Finance’s specific investment criteria when evaluating potential litigation and arbitration funding opportunities in Latin America and continental Europe? The first and foremost consideration in our investment decision-making process is to conduct a rigorous due diligence procedure aimed at maximizing the likelihood that the fund is making a sound investment.  To this end, we follow a two-tiered analysis process comprising both internal and external legal due diligence. The internal review is carried out by our in-house legal team, while the external review is conducted by top-tier law firms retained specifically for this purpose. During these due diligence phases, counsel will thoroughly review the case documentation and information provided by the claimant. To be eligible for funding, the case must meet the following minimum criteria:
  • Financial metrics: The amount of funding sought and the value of the claim must be reasonable and proportionate.
  • Duration: The maximum timeframe the fund is willing to wait for a return on its investment is five years.
  • Respondent’s solvency: There must be sufficient evidence to reasonably conclude that the opposing party has the financial capacity to satisfy a potential award.
  • Merits of the claim: The likelihood of success must be high, based on a legal and factual assessment.
How does Loopa Finance manage the risks associated with funding litigation and arbitration cases, particularly in regions with varying legal systems and enforcement mechanisms? Variability—and even instability—in legal systems is not necessarily a negative factor. On the contrary, it can be advantageous for the litigation funding industry, as it often leads to a higher volume of disputes, thereby generating a broader pool of investment opportunities. What is particularly noteworthy is that legal instability in a given country does not automatically translate into judicial instability or unpredictability in adjudication. In fact, while fluctuations in substantive law may lead to more disputes, the procedural rules and the competence of the adjudicating authorities often remain stable and reliable. This enables us to reasonably forecast litigation outcomes. That said, we recognize that external factors unrelated to the merits of a case may still influence its resolution. To mitigate such risks, our team includes highly trained and internationally experienced dispute resolution lawyers. This internal capability is further reinforced through the engagement of top-tier law firms to conduct independent due diligence, as previously outlined. Finally, we are fully aware that there are exceptional jurisdictions where the level of systemic instability makes outcome predictability unfeasible or where adverse rulings may result from extrinsic factors. In such cases, we simply refrain from investing in disputes arising in those jurisdictions. Since Loopa Finance operates with its own capital, how does this influence your investment strategy and decision-making process compared to firms that use external funding? Operating with our own capital allows us to act with greater agility and make swift investment decisions without relying on third parties, external processes, or outside funding sources. This autonomy is particularly valuable when participating in a “beauty contest” among funders. In such competitive processes—where multiple funds vie for the opportunity to finance a case—clients place a premium on the funder’s ability to respond quickly and decisively. The ability to independently negotiate commercial terms, assess client counteroffers, and move expeditiously through the decision-making process is critical. In this regard, Loopa holds a significant competitive advantage. What impact has Loopa Finance’s funding had on access to justice and the resolution of legal disputes in Latin America and continental Europe? Broadly speaking, our service has a significant social impact and contributes meaningfully to the administration of justice.  On the one hand, we provide the financial resources necessary for a party with a meritorious claim—who may otherwise lack the means to pursue it—to bring their case forward. In doing so, our involvement facilitates access to justice. On the other hand, our service promotes the principle of “equality of arms.” In many disputes, there may be a significant disparity in the financial capabilities of the parties. While the economically stronger party can afford to retain top-tier legal representation, the weaker party may not have such access. Litigation funding helps level the playing field, enabling both sides to secure high-caliber legal counsel and pursue the dispute on more equitable terms. Can you discuss any recent trends or developments in the litigation and arbitration funding landscape that are influencing Loopa Finance’s strategies and priorities? We are a technology-driven litigation fund with operations across Latin America and Europe. The fund has been active since 2019 and has experienced significant growth in recent years. As our operations expand, we have identified several key trends shaping the markets in which we operate: Market Growth Across Jurisdictions While there are substantial differences between the Latin American and European markets, we are seeing growth in both regions.
  • In Latin America, where the litigation funding industry is still in its early stages and claims tend to be smaller in value, we have observed increasing demand and a rising number of funding inquiries. We are funding more cases—particularly in the energy, mining, oil & gas, construction, and infrastructure sectors.
  • In Europe, our activity has increasingly shifted toward portfolio funding, which provides greater risk diversification and operational efficiency. We are also seeing the rise of hybrid funding structures, involving partnerships with insurers and specialized litigation finance products tailored to complex cases.
Moreover, there has been notable growth in environmental and consumer rights litigation, which amplifies the corporate accountability dimension of our portfolio and enhances the social impact of our investments. Integration of Technology and Artificial Intelligence As a technology-based fund, technology underpins every aspect of our operations. Our team includes not only lawyers but also software engineers who have developed a proprietary platform to support the fund’s end-to-end operations. This platform supports the commercial management of leads, case sourcing, and comprehensive case tracking, from legal analysis and economic structuring to contractual execution and post-investment monitoring. It features a wide range of functionalities and is under continuous development. We are consistently integrating advanced tools into the platform, including AI modules to support legal review, machine translation, and data analytics tools, all aimed at increasing the efficiency and accuracy of our case assessment and management processes.
LFJ Conversation

An LFJ Conversation with Bo Moss, President of Bridgehead Legal Capital

By John Freund |

Bo Moss is the Co-Founder and President of Bridgehead Legal Capital. A former litigator in Atlanta and Charlotte, Bo earned a reputation for being a tough but fair adversary. His deep understanding of the legal landscape led him to a Charlotte-based litigation funder, where he leveraged his litigation background to successfully underwrite and tailor loans for contingency fee law firms nationwide.

Since co-founding Bridgehead with Scott Richards and Megan Baer in 2021, Bo has spearheaded the company's mission to provide accessible capital to contingency fee lawyers. Under his leadership, Bridgehead has engaged in over 150 transactions, demonstrating his strategic vision and operational excellence. Bo is a graduate of The University of the South (Sewanee) and Samford University Cumberland School of Law.

Below is our LFJ Conversation with Bo Moss:

Bridgehead Legal Capital emphasizes "Freedom Through Funding" and aims to be a long-term partner. Can you elaborate on how this mission guides your approach to client relationships and what specific long-term benefits firms can expect beyond just capital?

"Freedom Through Funding" isn't just a catchy phrase for us; it's the core of how we do business. As former litigators ourselves, we see every client relationship as a real partnership, all about helping you achieve sustained growth. So, beyond just giving you capital, here's what else firms gain:

  • Smart Advice: We share insights on things like case selection, portfolio management, and growth strategies, drawing directly from our own legal experience. This makes sure our funding acts as a real boost for well-thought-out, lasting expansion.
  • More Control: Our predictable capital gives your firm greater financial freedom. That means less pressure to settle cases too soon, the ability to invest in top-notch experts or the latest tech, and the capacity to take on more truly meritorious cases.
  • Better Portfolio Management: We work hand-in-hand with you to understand your entire case pipeline, helping you spot opportunities to leverage your existing assets for future growth.
  • We're Nimble and Responsive: We anticipate your evolving needs and quickly adapt, offering agile solutions that truly support your journey. We build relationships based on trust and a shared vision for success.

Your services include both Portfolio Loans and Asset Purchase Loans. For a small to mid-sized plaintiff law firm, how do you help them determine which product is the most advantageous for their specific financial needs and case pipeline?

Great question. When it comes to choosing between Portfolio Loans and Asset Purchase Loans, it really comes down to your firm's specific needs and what your case pipeline looks like. We don't do cookie-cutter solutions; instead, we go through a thorough, collaborative process:

  • What are Your Goals? We kick things off by figuring out what you're really trying to achieve – whether it's managing daily expenses, investing in marketing, funding a big, complex case, or growing your team.
  • Looking at Your Pipeline:
    • Portfolio Loans are usually best for firms with a diverse, ongoing stream of contingency cases. They let you tap into the collective value of your active cases, giving you consistent cash flow for general operations or bringing in new clients.
    • Asset Purchase Loans are a better fit if you have specific, high-value, well-developed cases. This lets you monetize a portion of the expected future recovery from that particular asset, giving you a bigger lump sum for targeted investments like major trial expenses.
  • Comfort with Risk: We'll chat about your comfort level with recourse and how different repayment structures fit your risk appetite.
  • Future Cash Flow: We'll project your future cash flow to show how each product impacts your financials, making sure the chosen solution genuinely helps your firm's health.

Ultimately, our job is to guide you in making a smart, strategic decision that truly aligns with your unique business model.

Bridgehead Legal Capital highlights its ability to unlock greater funding for plaintiff law firms by recognizing the value of their case portfolios. Could you explain the unique aspects of your underwriting process that allow you to assess and leverage these portfolios more effectively than traditional lenders?

Our ability to unlock more funding really comes down to our unique underwriting process, which is a big departure from traditional lenders who often just don't have our legal finance expertise:

  • Litigator-Led Due Diligence: This is huge for us. Since many on our team, including founders, are former litigators, we inherently understand case merits, legal strategy, and the practicalities of litigation. We analyze legal strengths, attorney experience, jurisdiction, and potential settlement ranges, letting us accurately evaluate the true value of a portfolio where others might only see uncertainty.
  • Our Own Valuation Models: We've built sophisticated, proprietary models that dig deep into factors specific to contingency fee litigation. This includes case type, complexity, damages assessment, jurisdictional nuances, and historical performance, allowing us to accurately value future earning potential.
  • Portfolio Diversification Analysis: We're really good at understanding the collective strength of an entire portfolio of cases. By looking at diversification by type, litigation stage, and estimated value, we see a more stable asset, which in turn allows us to offer more substantial funding.
  • Looking Forward: Unlike banks that often just look at past performance, we focus on the future earning potential of your active cases, assessing success probability and expected recovery.
  • Relationship-Based Assessment: Our underwriting isn't just numbers; it's also about understanding your firm's operational efficiency, management capabilities, and overall business strategy. This holistic view gives us a more complete picture of your firm's creditworthiness.

This unique blend of legal expertise, sophisticated modeling, and a forward-looking, relationship-based approach is what allows us to leverage your case portfolio so much more effectively than traditional lenders.

The website mentions categories of loans such as "Start-up," "Case Investments," and "Growth Loan." How do you tailor the terms and support for a start-up firm compared to an established firm seeking a growth loan?

We know a brand-new firm has totally different needs than an established one looking to expand. That's why we tailor our loan terms and support accordingly:

For Start-up Firms:

  • Terms: These loans are all about providing that essential working capital to get a solid foundation (think office space, tech, initial marketing, overhead). Repayment structures are often more flexible, maybe with interest-only periods or deferred principal payments, so you can focus on building your case pipeline. Our underwriting here really emphasizes your business plan, the founders' individual legal track records, and how viable your practice area is.
  • Support: As former litigators, we offer invaluable mentorship on building a practice, from getting clients to managing cases efficiently. We can also connect you with other professionals in our network and provide scalable funding solutions as your firm matures.

For Established Firms (Growth Loan):

  • Terms: These loans are primarily based on the proven value and predictable cash flow of your existing case portfolio, meaning much larger funding amounts are possible. With a solid track record, you'll typically qualify for more favorable interest rates and longer repayment periods. The terms are specifically designed to support your growth initiatives, whether that's expanding into new practice areas or acquiring another firm.
  • Support: We provide advanced analysis of your portfolio, helping you spot opportunities for greater efficiency and profitability. We offer data-driven market insights and can help brainstorm strategies for expansion. For complex growth plans, we can even structure customized financial solutions.

Our whole philosophy is about making sure you get the right capital at the right time, with the right level of tailored support, so your firm, no matter its stage, can hit its full potential.

 Given the fast approval process and funds typically delivered within two weeks, what are the key factors that contribute to this efficiency, and what advice would you give to firms to ensure a smooth and rapid funding experience?

Our quick approval process and getting funds to you within two weeks really comes down to our specialized focus and streamlined operations:

  • Specialized Expertise: We only do law firm financing. Our team can quickly and accurately assess legal assets without needing a ton of outside help. We just get the nuances.
  • Streamlined Due Diligence: We've developed a super efficient process that focuses only on the critical information. We know what we need, and we don't ask for extra paperwork. Our internal systems are built for fast data intake and analysis.
  • Agile Structure: As a private lender, we're simply less bureaucratic than big banks. That means quicker internal approvals and faster movement from your application to you actually receiving the funds.

To make sure your funding experience is as smooth and fast as possible, here's my best advice:

  • Be Prepared and Organized: Have your firm's financial statements (past 2-3 years) and a detailed list of your active contingency cases (type, stage, estimated value, deadlines, and expenses) all ready to go. The more organized you are, the faster we can move!
  • Know Your Needs: Clearly tell us exactly how much capital you need and what you plan to do with it. Saying something to us like “Well I am not entirely sure, maybe something in the range of _____” does not give us confidence that the firm has really spent the requisite amount of time properly reflecting upon their current and future funding needs and how our money is going to be used to assist in growing the firm.
  • Designate One Point Person: Pick one person at your firm to be our main contact. This really helps streamline communication.
  • Be Responsive: Our efficiency relies on your quick responses to any information requests or clarifications. The faster you get us what we need, the faster we can get you funded!

By partnering with Bridgehead Legal Capital, you're not just getting capital; you're gaining a strategic ally genuinely committed to your long-term success.

LFJ Conversation

An LFJ Conversation with John Hanley, Member, McDonald Hopkins Business Department

By John Freund |

John J. Hanley is a Member in the Business Department at McDonald Hopkins and a key contributor to the firm’s Litigation Finance Practice Group. He advises clients across the litigation finance ecosystem on the structuring, negotiation, and execution of complex funding arrangements and financial transactions. With more than 20 years of experience at leading law firms, John brings deep transactional expertise in first- and second-lien credit facilities, private placements, and the purchase and sale of loans, claims, and other illiquid assets.

His clients include litigation funders, specialty finance companies, business development corporations, hedge funds, CLO managers, SPVs, and other institutional investors. John’s practice bridges traditional lending and litigation finance, allowing him to deliver sophisticated, market-informed solutions that align legal risk with commercial strategy.

Below is our LFJ Conversation with John Hanley:

Your team is Chambers-ranked litigation finance deal counsel. How does that recognition reflect the value you bring to clients in structuring funding arrangements?

We appreciate the recognition from Chambers in a field as specialized and fast-moving as litigation finance. For us, that ranking affirms the trust our clients place in us to structure and close their transactions and the respect we’ve earned throughout the litigation finance ecosystem.

At McDonald Hopkins, we get deals done. We prioritize what matters by focusing on value, clarity, and results. Our approach is practical and efficient, guiding clients from NDA to term sheet to definitive documents and, finally, to funding with strategic precision.

You’ve worked extensively in both lending and litigation finance. How does that dual experience shape your approach to structuring deals that align interests across the table?

My lending background grounds me in negotiating and documenting deals designed to achieve client objectives while aligning incentives across counterparties. In litigation finance, those fundamentals still apply, but the environment is more nuanced. Every deal involves its own set of dynamics and considerations.

In lending, you have established credit models, conventional security packages, and repayment terms that follow predictable patterns. In litigation finance, we're operating in a space where deal inputs aren’t standardized. Each transaction is built on a unique case or portfolio, layered with legal, factual, and procedural complexities that defy one-size-fits-all modeling. That nuance demands creativity and precision. There's no single template that works for every matter.

At McDonald Hopkins, we recognize that underwriting is typically the funder’s responsibility. When representing funders, our primary role is to translate that underwriting into a legal structure that aligns with the deal’s risk profile and commercial objectives. From time to time we are also engaged to assist with due diligence on the underlying litigation to help ensure that the legal and procedural posture of the litigation supports the funder’s investment thesis.

When representing funded parties, whether claimants or their counsel, our focus shifts to protecting their upside, independence, and long-term position. That involves more than simply reviewing documents. We must understand how the funder views the case, the risk and return profile, and anticipate how the litigation may unfold. With that knowledge, we are equipped to negotiate terms that are fair, enforceable, and sustainable.

What are some of the key legal or regulatory pitfalls funders and claimants should be looking out for when drafting a funding agreement?

A few stand out:

  • Control: Excessive funder control can raise enforceability and ethical concerns. Decision-making authority must remain with the litigant in conjunction with their counsel. Overreach may implicate champerty or maintenance restrictions in jurisdictions where those doctrines are still active and may interfere with counsel’s duty of loyalty. Funders can and should monitor progress, but they shouldn’t steer litigation or settlement decisions. Of course, they can be a valuable sounding board.
  • Attorney-Client Privilege: Often underappreciated, this area can present serious risk. If privileged information is shared during diligence or monitoring, the NDA must preserve the common interest doctrine to try to avoid waiver. You can’t take shortcuts here.
  • Disclosure Risk: Courts and regulators are asking more questions, particularly in class actions, bankruptcies, and patent disputes. About 25% of U.S. federal district courts have local rules or standing orders requiring disclosure of third-party funding arrangements. Several states have enacted similar laws. These requirements vary by jurisdiction, so agreements should be drafted with the expectation that some level of disclosure may occur. Clarity, compliance, and defensibility are essential.
  • Intercreditor Issues: In deals involving multiple funders or creditors, agreements should clearly define repayment priority, enforcement rights in default, and how proceeds are allocated. Settlement decisions must remain with the claimant and their counsel, but funders may seek consultation on resolutions that could materially affect anticipated returns. Well-drafted intercreditor provisions help align expectations and reduce the risk of disputes after funding.
  • Proposed Tax Legislation: The “Tackling Predatory Litigation Funding Act” (S.1821), introduced by Senator Thom Tillis, would impose a 40.8% tax on profits earned by third-party funders. A revised 31.8% version appeared in the Senate’s draft of the “One Big Beautiful Bill Act,” but was removed on June 30, 2025, after the Senate parliamentarian ruled it noncompliant with budget reconciliation rules.

While the tax is no longer part of active legislation, S.1821 remains under consideration by the Senate Finance Committee. If passed, it could apply retroactively to taxable years beginning after December 31, 2025, with significant implications for deal pricing, structure, and tax treatment.

We’re advising clients to build flexibility into agreements, revisit tax allocation language, and monitor developments to preserve deal economics.

Are you seeing shifts in who’s seeking funding and how their expectations are evolving?

Absolutely. Litigation funding is no longer niche. Fortune 500 companies and smaller businesses alike are seeking funding, often because litigation costs weigh heavily on their income statements. Unlocking capital tied up in long-running cases enables companies to redirect resources toward growth, such as hiring, R&D, and strategic initiatives, or to retain preferred counsel.

Law firms have evolved as well. Firms that historically operated on a billable-hour model (think Am Law 200) are increasingly open to contingency fee arrangements, often pairing them with third-party funding to manage risk and liquidity. We’re also seeing firms across the spectrum, from personal injury powerhouses and mass tort firms to elite litigation boutiques, monetize contingency receivables to accelerate growth, improve liquidity, or shift risk. What was once a strategy for cash-constrained firms has become a strategic capital tool for practices with high-value, contingent assets.

Consumers of litigation funding are recognizing that underwriting litigation is not their core competency and that money spent on litigation could be better deployed.

Expectations today revolve around speed, transparency, and deal customization. Funders with boilerplate offerings or long diligence cycles are struggling to keep up.

Given all that evolution, how is the role of deal counsel changing in this ecosystem?

The role of deal counsel has become highly strategic. We’re not just papering deals; we’re shaping term sheets, negotiating funding mechanics, and managing multi-party dynamics to get complex transactions across the finish line.

Funders and funded parties (whether law firms, plaintiffs, or otherwise) rely on us to identify friction points early, design around them, and close with minimal disruption. That’s the role of modern deal counsel in litigation finance.

But some fundamentals remain unchanged…

Exactly. Litigation counsel must remain independent, and the fairness of the legal process must be preserved. Our role as deal counsel is to support that framework, not interfere with it.

The strongest litigation finance deals are built on clearly defined roles, aligned incentives, and mutual respect for legal boundaries. When those fundamentals are in place, both the transaction and the underlying litigation stand on solid ground.