investing in. The Litigation Funding Agreement is a formal legal contract that sets the terms and conditions of the funding agreement.
Generally, these documents are not required to be disclosed.
Some courts and states are beginning to require disclosure either through a court rule or by legislation, for example The Federal District of New Jersey, Northern District of California( for class actions) and the Federal Districts of Delaware and Wisconsin.
The funding agreement is typically disclosed in one of two ways: only to the judge, or to the opposing party.
Disclosure allows the court and both parties to know the identity of the litigation funder, and that knowledge may help determine whether the funders are exercising undue influence that might violate ethical rules, or whether conflicts of interest exist.
Lastly, TPLF agreements typically say that if the lawsuit doesn’ t garner any money for the plaintiff, the plaintiff’ s lawyers don’ t have to repay the litigation funder.
Conclusion and Real-World Implications
Recent increases in the frequency and amount of nuclear verdicts associated with TPLF lay bare problems with today’ s civil justice system that are driving crane insurance rates in the wrong direction.
Those growing claim litigation factors adversely affect crane owner insurance programs and may make some crane owners uninsurable— which could put them out of business.
As an industry group, we can strengthen risk-management standards to discredit unreliable evidence that plaintiffs’ law firms use to generate nuclear verdicts.
We can band together to convince legislative powers to require that TPLF agreements be disclosed and to help stop misleading advertising by plaintiffs’ law firms.
Leading crane industry legal expert, attorney Robert C. Moore, has noted some risk management measures that have proven most effective against litigation.
“ When Reptile Theory litigation was starting, some members of the Federation of Defense and Corporate Counsel( FDCC) made a concerted effort to stop plaintiff lawyers from asking witnesses questions meant to arouse jurors’ emotions so plaintiffs could argue that the defendant did not care about the plaintiff or society,” said Moore.
He added,“ Step one is to manage claims with a robust and forceful defense carried out by skilled lawyers who can fight from the start.”
Step two, said Moore, is to lobby state and federal legislatures to pass laws that require plaintiffs to disclose thirdparty funding agreements and enable defense attorneys to cross examine plaintiffs about them.
The goal of this is to make sure juries know when witnesses might have a financial reason to embellish their testimony.
Step three, per Moore, is to offer unbundled insurance, which gives the insured company more control of whether to fight or settle each claim.
“ We have seen the result of litigation gone amok. It’ s verdicts in the hundreds of millions of dollars,” said Moore.
Our civil justice system is designed to resolve disputes fairly and uphold justice.
However, third-party litigation funders often operate with an agenda driven by profit, not principle.
Their willingness to influence and control litigation to maximize financial gain threatens to tip the scales of justice.
The recent cases involving our industry highlight a troubling pattern: funders operating in secrecy, with little accountability, and significant influence over legal outcomes.
This is not just a legal issue, it’ s a matter of fairness and integrity.
That’ s why it’ s imperative for the crane industry to unite in calling for greater transparency and regulatory oversight of TPLF.
We must shine a light on this shadowy corner of the legal system and ensure that justice remains impartial and accessible— not a tool for profit-driven manipulation.
Kevin Cunningham has 27 years of experience in crane risk management and is president of Acies Crane Underwriters. He can be reached at kevin. cunningham @ aciesmgu. com.
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