The Siren Song of Litigation Funding
Forthcoming, Michigan Business & Entrepreneurial Law Review
19 Pages Posted: 21 Aug 2019 Last revised: 24 Mar 2021
Date Written: August 27, 2019
For an investor, litigation funding is too tempting to resist. Litigation funding promises that most elusive of investment returns: ones uncorrelated with an investor’s other investment returns, like those from stocks and bonds and commodities. Litigation funding also invests in a world that seems fraught with possible pricing inefficiencies. It seems plausible — even likely — that a team of smart lawyer-underwriters can identify high-value litigation investments to generate superior returns for litigation-funding investors. But more than a decade of experience suggests that the promise of litigation funding is a siren song. The promise draws investors into the water, but the payoffs may be meagre and rare. While litigation funding has always been controversial with defendants and business trade associations, the real problem is that the investment class is a poor one. First, high-stakes civil litigation is far more complex and random than most investors understand. There are an overwhelming number of ways that litigants can lose and far fewer paths to significant victories. Second, only a subset of good cases — from an investment perspective — is likely to find its way to funders. Third, litigation funding is probably prone to optimism bias, causing litigation funders to overestimate the probability of victory in their cases. Finally, litigation funding is fungible with little value added by the funder, suggesting that competition will drive down any significant profits that have existed in the business previously. While litigation funding serves a valuable social purpose when it allows meritorious cases to proceed that otherwise would not be pursued, we can expect investor success in the field to be rare and likely limited to those funders with the most litigation savvy and the best luck. Nevertheless, investors are unlikely to give up on the space despite the large prospect of poor returns.
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