Class-action defense guru John Beisner has published a new study on third-party litigation financing: “Selling Lawsuits, Buying Trouble: Third-Party Litigation Funding in the United States” (US Chamber Institute for Legal Reform, October 2009). Since it’s published by the US Chamber of Commerce, this is an advocacy piece, and one aimed more at policymakers than courts. (Beisner reaches one empirical conclusion: that allowing widespread third-party funding in Australia led to an increase in class-action filings there.)
While the policy arguments are certainly not dull, I’m more interested in the strategic implications of the piece for class-action lawyers.
And here’s the real question third-party financing raises: if plaintiff’s counsel (or the plaintiff) receives third-party litigation funding, have they compromised their adequacy as class representatives? Courts have held that a named plaintiff owes a fiduciary duty to the class; and so does the class counsel. If either the named plaintiff or counsel is beholden to a third party who is underwriting the action, they may have compromised their ability to represent the class in an unbiased fashion.
In addition, class plaintiffs have long portrayed themselves as the underdog, a David taking on a corporate Goliath who needs judicial (rather than divine) intervention to prevail. If the plaintiff is backed by a large hedge fund, the fight is no longer David-versus-Goliath, but a clash of the titans, where neither side naturally requires sympathy.
This suggests a discovery tactic: why not spend an interrogatory asking about the plaintiff’s source of funding in class actions? Granted, the Federal rules make interrogatories a limited resource. And diving into a possible battle over work-product or the attorney-client privilege (colorable, but likely unsuccessful arguments the plaintiffs might assert) may appeal only to more combative defendants. But exposing a potential conflict of interest and nullifying plaintiffs’ traditional David-versus-Goliath rhetoric may be well worth the effort.
[Disclosure: I used to work with Beisner and his co-author Jessica Miller at O’Melveny & Myers LLP, and, on occasion, helped them research previous articles.]