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Acting in light of what the proposal calls the “exponential growth” in litigation financing, and taking its first action in the area since 2012, the American Bar Association’s House of Delegates has approved a proposal for the third-party litigation funding “best practices.” The proposal, which stays away from some of the higher-profile litigation funding issues (such as whether or not litigation funding should be disclosed), is built around principles of transparency and client control.

On August 3, 2020, the American Bar Association House of Delegates, meeting virtually due to the pandemic, voted 366-10 to approve the proposed “Best Practices for Third-Party Litigation Funding,” a copy of which can be found here. The Best Practices proposal updates the House of Delegate’s 2012 informational white paper on litigation funding. The ABA’s August 3, 2020 press release describing the House of Delegate’s approval of the litigation funding best practices proposal, as well as a number of other actions taken the same day by the House of Delegates, can be found here. The House of Delegates consists of 597 representatives of state, local, and specialty bar associations.
Continue Reading ABA Adopts Third-Party Litigation Funding “Best Practices” Proposal

As a result of the PSLRA’s heightened pleading standard and pre-dismissal motion discovery bar, as well as the requirements of cases such as Tellabs, plaintiffs in liability suits under the federal securities laws frequently rely on confidential witnesses. This practice has led to  the “confidential witness problem” in securities litigation. In a September 25, 2017 post on The CLS Blue Sky Blog entitled “Confidential Distortion: Dealing with Confidential Witnesses in Securities Litigation” (here), Columbia Law School Professor John Coffee takes a look at the problems that have arisen in connection with confidential witness practices and the ways court have tried to deal with the problems. He then explores some possible “best practices” for courts and parties to use to try to avoid the problems, which I discuss below.
Continue Reading Addressing the Use of Confidential Witnesses in Securities Litigation

john dorenberg
John Dorenberg

Cybersecurity is one of the most important and challenging issues of our time, one with which many organizations are struggling. In the following guest post, John Doernberg takes a look at the ways we talk about cybersecurity and asks whether the language we use may be part of the problem. John is an Area Vice President at Arthur J. Gallagher & Co. in Boston and leads that office’s Cyber Liability Practice. A version of this article previously appeared as a LinkedIn post, here.  I would like to thank John for his willingness to publish his guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s post.
Continue Reading Guest Post: The “Wicked Problem” of Cybersecurity