Behrens Talks About Litigation Funding Disclosure with The National Law Journal

The International Association of Defense Counsel (IADC) was among the organizations that signed a U.S. Chamber of Commerce letter earlier this year asking the Committee on Rules of Practice and Procedure to amend the Federal Rules of Civil Procedure to require disclosure of outside funding in all cases. Shook Partner Mark Behrens, co-chair of the firm’s Public Policy Group and chair of IADC’s civil justice response committee, was interviewed by The National Law Journal about litigation financing disclosures and how they might reduce discovery costs for defendants in “Litigation Funding Disclosure Can Reduce Costs, Aid Settlement: Defense Group,” The National Law Journal, August 25, 2017.

Mark said business groups are concerned about the growth of third-party funding because they fear it could fuel speculative litigation. Also, he said, “[d]efense lawyers need to know who the real party in interest is in a case to help facilitate settlements.” Disclosure may also affect discovery in cases where the court might otherwise believe that a corporate defendant is better able to absorb the costs of litigation than an individual plaintiff, he said.

Mark also discussed some of the recent cases applying the U.S. Supreme Court decisions in Daimler, BNSF Ry. Co. v. Tyrrell and Bristol-Myers v. Squibb that have restricted where corporations can be sued. “There have been a number of rulings where courts are faithfully applying not only the letter but also the spirit of the Supreme Court cases and saying general jurisdiction does not exist unless the defendant is essentially at home in the forum state and specific jurisdiction doesn’t exist unless the forum state is related to the underlying cause of action,” he said.