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Litigation Funding – Section 107 Needs Amending

By Ken Rosen |
April 7, 2025

Litigation Funding – Section 107 Needs Amending

The following was contributed by Ken Rosen Esq, Founder of Ken Rosen P.C. Ken is a frequent contributor to legal journals on current topics of interest to the bankruptcy and restructuring industry.

The necessity of disclosing litigation funding remains contentious. In October 2024, the federal judiciary’s rules committee decided to create a litigation finance subcommittee after 125 big companies argued that transparency of litigation funding is needed. 

Is there a problem in need of a fix?

Concerns include (a) Undisclosed funding may lead to unfair advantages in litigation. Allegedly if one party is backed by significant financial resources, it could affect the dynamics of the case. (b) Potential conflicts of interest may arise from litigation funding arrangements. Parties and the court may question whether funders could exert influence over the litigation process or settlement decisions, which could compromise the integrity of the judicial process. (c) The presence of litigation funding can alter the strategy of both parties in negotiations. Judges may be concerned that funders might push for excessive settlements or prolong litigation to maximize their returns. While litigation funding can enhance access to justice for under-resourced plaintiffs, judges may also be wary of the potential for exploitative practices where funders prioritize profit over the plaintiffs’ best interests.

A litigant’s financial wherewithal is irrelevant. A litigant’s balance sheet also addresses financial resources and the strength of one’s balance sheet may affect the dynamics of the litigation but there is no rationale for a new rule that a litigant’s balance sheet be disclosed. What matters is the law and the facts. Disclosure of litigation funding is a basis on which to argue that anything offered in settlement by the funded litigant is unreasonable and to blame it on litigation funding. 

Ethics rules

The concerns about litigation funding are adequately dealt with by The American Bar Association’s Model Rules of Professional Conduct, as well as various state ethical rules and state bar associations. An attorney’s obligation is to act in the best interests of their client. Among other things, attorneys must (a) adhere to the law and ethical standards, ensuring that their actions do not undermine the integrity of the legal system, (b)  avoid conflicts of interest and should not represent clients whose interests are directly adverse to those of another client without informed consent, (c) fully explain to clients potential risks and implications of various options and (d) explain matters to the extent necessary for clients to make informed decisions. 

These rules are designed to ensure that attorneys act in the best interests of their clients while maintaining the integrity of the legal profession and the justice system. Violations of these ethical obligations can result in disciplinary action, including disbarment, sanctions, or reprimand. Disclosure of litigation funding is unnecessary because the ethics rules adequately govern an attorney’s behavior and their obligations to the court. New rules to enforce existing rules are redundant and unnecessary. Plus, disclosure of litigation funding can be damaging to the value of a litigation claim.

Value maximization and preservation

Preserving and enhancing the value of the estate are critical considerations in a Chapter 11 case. Preservation and enhancement are fundamental to the successful reorganization, as they directly impact the recovery available to creditors and the feasibility of the debtor’s reorganization efforts. Often, a litigation claim is a valuable estate asset. A Chapter 11 debtor may seek DIP financing in the form of litigation funding when it faces financial distress that could impede its ability to pursue valuable litigation. However, disclosure of litigation funding- like disclosure of a balance sheet in a non-bankruptcy case- can devalue the litigation asset if it impacts an adversary’s case strategy and dynamics.

The ”364” process

In bankruptcy there is an additional problem. Section 364 of the Bankruptcy Code sets forth the conditions under which litigation funding – a form of “DIP” financing- may be approved by the court. 

When a Chapter 11 debtor seeks DIP financing, several disclosures are made. Some key elements of DIP financing that customarily are disclosed include (a) Why DIP financing is necessary. (b) The specific terms of the DIP financing, including the amount, interest rate, fees, and repayment terms. (c) What assets will secure DIP financing and the priority of the DIP lender’s claims. (d) How DIP financing will affect existing creditors. (e) How the proposed DIP financing complies with relevant provisions of the Bankruptcy Code. 

Litigation funding in a bankruptcy case requires full disclosure of all substantive terms and conditions of the funding- more than just whether litigation funding exists and whether the funder has control in the case. Parties being sued by the debtor seek to understand the terms of the debtor’s litigation funding to gauge the debtor’s capability to sustain litigation and to formulate their own case strategy.

Section 107 needs revision

Subsection (a) of section 107 provides that except as provided in subsections (b) and (c) and subject to section 112, a paper filed in a case and on the docket are public records. Subsection (b) (1) provides thaton request of a party in interest, the bankruptcy court shall protect an entity with respect to a trade secret or confidential research, development, or commercial information.Applications for relief that involve commercial information are candidates for sealing or redaction by the bankruptcy court. 

But the Bankruptcy Code does not explicitly define “commercial information.” 

The interpretation of “commercial information” has been developed through case law. For instance, in In re Orion Pictures Corp., 21 F.3d at 27, the Second Circuit defined “commercial information” as information that would cause an unfair advantage to competitors.” This definition has been applied in various cases to include information that could harm or give competitors an unfair advantage, and it has been held to include information that, if publicly disclosed, would adversely affect the conduct of the bankruptcy case. (In re Purdue Pharma LP, SDNY 2021). In such instances allowing public disclosure also would diminish the value of the bankruptcy estate. (In re A.G. Financial Service Center, Inc.395 F.3d 410, 416 (7th Cir. 2005)). 

Additionally, courts have held that “commercial information” need not rise to the level of a trade secret to qualify for protection under section 107(b), but it must be so critical to the operations of the entity seeking the protective order that its disclosure will unfairly benefit the entity’s competitors. (In re Barney’s, Inc., 201 B.R. 703, 708–09 (Bankr. S.D.N.Y. 1996) (citing In re Orion Pictures Corp., 21 F.3d at 28)). 

Knowledge of litigation funding and, especially, the terms and conditions of the funding can give an adversary a distinct advantage. In effect the adverse party is a “competitor” of the debtor. They pull at opposite ends of the same rope. Furthermore, disclosure would adversely affect the conduct of the case- which should be defined to include diminution of the value of the litigation claim. 

The Federal Rules of Bankruptcy Procedure should be amended to clarify that information in an application for litigation funding may, subject to approval by the bankruptcy court, be deemed “confidential information” subject to sealing or redaction if the court authorizes it.

Conclusion

A new rule requiring disclosure of litigation funding is unnecessary and can damage the value of a litigation claim. If the rules committee nevertheless recommend disclosure there should be a carve out for bankruptcy cases specifically enabling bankruptcy judges to authorize redaction or sealing pleadings related to litigation funding. 

About the author

Ken Rosen

Ken Rosen

Commercial

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Commercial

Litigation Financiers Organize on Capitol Hill

By John Freund |

The litigation finance industry is mobilizing its defenses after nearly facing extinction through federal legislation last year. In response to Senator Thom Tillis's surprise attempt to impose a 41% tax on litigation finance profits, two attorneys have launched the American Civil Accountability Alliance—a lobbying group dedicated to fighting back against efforts to restrict third-party funding of lawsuits.

As reported in Bloomberg Law, co-founder Erick Robinson, a Houston patent lawyer, described the industry's collective shock when the Tillis measure came within striking distance of passing as part of a major tax and spending package. The proposal ultimately failed, but the close call exposed the $16 billion industry's vulnerability to legislative ambush tactics. Robinson noted that the measure appeared with only five weeks before the final vote, giving stakeholders little time to respond before the Senate parliamentarian ultimately removed it on procedural grounds.

The new alliance represents a shift toward grassroots advocacy, focusing on bringing forward voices of individuals and small parties whose cases would have been impossible without funding. Robinson emphasized that state-level legislation now poses the greater threat, as these bills receive less media scrutiny than federal proposals while establishing precedents that can spread rapidly across jurisdictions.

The group is still forming its board and hiring lobbyists, but its founders are clear about their mission: ensuring that litigation finance isn't quietly regulated out of existence through misleading rhetoric about foreign influence or frivolous litigation—claims Robinson dismisses as disconnected from how funders actually evaluate cases for investment.

Commercial

ISO’s ‘Litigation Funding Mutual Disclosure’ May Be Unenforceable

By John Freund |

The insurance industry has introduced a new policy condition entitled "Litigation Funding Mutual Disclosure" (ISO Form CG 99 11 01 26) that may be included in liability policies starting this month. The condition allows either party to demand mutual disclosure of third-party litigation funding agreements when disputes arise over whether a claim or suit is covered by the policy. However, the condition faces significant enforceability challenges that make it largely unworkable in practice.

As reported in Omni Bridgeway, the condition is unenforceable for several key reasons. First, when an insurer denies coverage and the policyholder commences coverage litigation, the denial likely relieves the policyholder of compliance with policy conditions. Courts typically hold that insurers must demonstrate actual and substantial prejudice from a policyholder's failure to perform a condition, which would be difficult to establish when coverage has already been denied.

Additionally, the condition's requirement for policyholders to disclose funding agreements would force them to breach confidentiality provisions in those agreements, amounting to intentional interference with contractual relations. The condition is also overly broad, extending to funding agreements between attorneys and funders where the insurer has no privity. Most problematically, the "mutual" disclosure requirement lacks true mutuality since insurers rarely use litigation funding except for subrogation claims, creating a one-sided obligation that borders on bad faith.

The condition appears designed to give insurers a litigation advantage by accessing policyholders' private financial information, despite overwhelming judicial precedent that litigation finance is rarely relevant to case claims and defenses. Policyholders should reject this provision during policy renewals whenever possible.

Commercial Regulatory Issues

Valve Faces Certified UK Class Action Despite Funding Scrutiny

By John Freund |

The UK Competition Appeal Tribunal (CAT) has delivered a closely watched judgment certifying an opt-out collective proceedings order (CPO) against Valve Corporation, clearing the way for a landmark competition claim to proceed on behalf of millions of UK consumers. The decision marks another important moment in the evolution of collective actions—and their funding—in the UK.

In its judgment, the CAT approved the application brought by Vicki Shotbolt as class representative, alleging that Valve abused a dominant position in the PC video games market through its operation of the Steam platform. The claim contends that Valve imposed restrictive pricing and distribution practices that inflated prices paid by UK consumers. Valve opposed certification on multiple grounds, including challenges to the suitability of the class representative, the methodology for assessing aggregate damages, and the adequacy of the litigation funding arrangements supporting the claim.

The Tribunal rejected Valve’s objections, finding that the proposed methodology for estimating class-wide loss met the “realistic prospect” threshold required at the certification stage. While Valve criticised the expert evidence as overly theoretical and insufficiently grounded in data, the CAT reiterated that a CPO hearing is not a mini-trial, and that disputes over economic modelling are better resolved at a later merits stage.

Of particular interest to the legal funding market, the CAT also examined the funding structure underpinning the claim. Valve argued that the arrangements raised concerns around control, proportionality, and potential conflicts. The Tribunal disagreed, concluding that the funding terms were sufficiently transparent and that appropriate safeguards were in place to ensure the independence of the class representative and legal team. In doing so, the CAT reaffirmed its now-familiar approach of scrutinising funding without treating third-party finance as inherently problematic.

With certification granted, the case will now proceed as one of the largest opt-out competition claims yet to advance in the UK. For litigation funders, the ruling underscores the CAT’s continued willingness to accommodate complex funding structures in large consumer actions—while signalling that challenges to funding are unlikely to succeed absent clear evidence of abuse or impropriety.