Third-Party Litigation Funding and the Dodd-Frank Act

Abstract

This article questions whether the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) should apply to the growing phenomenon of third-party litigation funding, in which outside entities invest in litigation or arbitration for profit. Currently, the United States, Australia, and the United Kingdom lightly regulate third-party litigation funding, but the majority of the day-to-day oversight comes through voluntary funder self-regulation. Most third-party funders of commercial disputes are private hedge funds that are subject to the securities regulations of the jurisdictions in which they operate. The Dodd-Frank Act is a relatively new statute in the United States that regulates derivatives, among other financial products. This article begins to explore whether a third-party litigation funding contract is a derivative by examining an Australian High Court decision. If so, then third-party litigation funders may fall within the purview of the Dodd-Frank Act in the future, if their litigation portfolios or assets under management grow large enough.

Keywords: third-party funding, Dodd Frank, derivatives, securities, litigation funding