Over the last decade, the landscape of litigation has evolved significantly as a result of litigation finance. Since the industry’s beginning, Kellogg Hansen has been at the forefront in representing litigation finance companies, as well as the clients they finance, in cutting-edge disputes.  

The firm’s precedent-setting cases have established key principles of the law of litigation finance.  Kellogg Hansen’s victories include the seminal cases establishing the principle that communications between a litigant and a litigation funder are protected by the attorney-client privilege and/or work-product doctrine.  See Devon IT, Inc. v. IBM Corp., No. CIV.A. 10-2899, 2012 WL 4748160 (E.D. Pa. Sept. 27, 2012); Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2015 WL 1540520 (Del. Super. Ct. Mar. 31, 2015); In re International Oil Trading Co., 548 B.R. 825 (Bankr. S.D. Fla. 2016).  

Kellogg Hansen has also successfully defended the industry against claims that litigation funding arrangements violate state-law champerty and maintenance doctrines.  See Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2016 WL 937400 (Del. Super. Ct. Mar. 9, 2016); [Petersen Energia]; [Sysco v. Glaz].

Because of its extensive experience representing the industry, Kellogg Hansen is frequently retained by litigation finance companies to assist in funded litigation, especially where the litigation funding agreement is challenged or becomes a target of discovery.  Kellogg Hansen attorneys also frequently assist litigation finance companies in underwriting potential investments.  

Representative Matters

  • Represent litigation finance company Burford Capital in international arbitration dispute with Sysco Corporation.  After a multi-day evidentiary hearing, the arbitral panel issued a preliminary injunction in favor of Burford, and the parties then settled.  Glaz LLC, et al. v. Sysco Corp., No. 225609 (London Ct. Int’l Arb.).
  • Established the principle that communications between a litigant and a litigation funder are protected by the attorney-client privilege and/or work-product doctrine.  See In re Dealer Mgmt. Sys. Antitrust Litig., MDL No. 2817, Dkt. 1113 (N.D. Ill. Aug. 17, 2020); Viamedia, Inc. v. Comcast Corp., No. 16-C-5486, 2017 WL 2834535 (N.D. Ill. 2017); In re International Oil Trading Co., 548 B.R. 825 (Bankr. S.D. Fla. 2016); Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2015 WL 1540520 (Del. Super. Ct. Mar. 31, 2015); Devon IT, Inc. v. IBM Corp., No. CIV.A. 10-2899, 2012 WL 4748160 (E.D. Pa. Sept. 27, 2012).
  • Defended against allegations that litigation funding violates state-law champerty and maintenance doctrines.  See Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2016 WL 937400 (Del. Super. Ct. Mar. 9, 2016).
  • Defeated defendants’ argument that a relator who obtained litigation funding lacked Article III and statutory standing.  See U.S. ex rel. Ruckh v. Salus Rehabilitation, No. 18-10500 (11th Cir. 2020).