Should Courts Encourage Litigation Funding?
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.
In many Chapter 11 cases, the debtor’s estate holds valuable litigation claims, which can be a key source of recovery. However, pursuing these claims can be daunting when the defendant has substantially greater financial resources. Well-funded defendants may use aggressive litigation tactics to exploit the estate’s limited means.
Unsecured creditors, often receiving only token recoveries, may be hesitant to approve further legal spending. Debtor’s counsel, wary of nonpayment if litigation fails, may also be reluctant to pursue claims. Contingency fee arrangements can reduce estate risk, but they shift risk to counsel—particularly when facing a resource-rich defendant.
To gain creditor support, more than the committee counsel’s confidence may be needed. Litigation funding can bridge the gap. It provides capital to pursue claims without draining estate resources, helping to fulfill Chapter 11’s core goals: preserving going concern value and maximizing creditor recovery, as recognized by the Supreme Court.
Litigation funding is especially valuable when the estate lacks liquidity. It enables the debtor to pursue meritorious claims against stronger opponents, discouraging defense strategies aimed at exhausting the plaintiff through expensive discovery and motion practice.
The Funder’s Evaluation Process:
- Legal Merits – Assessing the strength of claims based on facts, evidence, and precedent.
- Recovery Potential – Estimating damages or settlement value to ensure adequate return.
- Litigation Costs – Forecasting expenses to trial or resolution.
- Risk Analysis – Evaluating the defendant’s ability to pay, jurisdictional issues, and delays.
- Independent Review –Funders conduct rigorous due diligence before committing capital.
A funder’s involvement serves as a “second opinion” validating the case. Their willingness to invest can bolster confidence in the claim’s merits and justify some estate contribution. It can serve as a soft endorsement of the litigation’s potential value. When a party seeks authorization for litigation funding it should be viewed by the Bankruptcy Court as weighing in favor of approval.
Whether or not funding is obtained, the terms of any arrangement should be redacted/sealed and remain confidential—shared only with the Court and key constituent counsel. The rationale for proceeding without funding should likewise remain undisclosed. Keeping defense counsel in the dark preserves strategic advantage.
Conclusion:
Litigation funding can be a powerful tool for Chapter 11 estates, enabling pursuit of valuable claims, minimizing financial strain, and supporting reorganization efforts. This strategy aligns with Chapter 11’s purpose and can significantly enhance the likelihood of a successful outcome. Key constituents and the court should recognize that.
