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Erick Robinson

Congress Is Trying to Destroy Litigation Funding By Adding Nonsensical Burdens (Part 1 of 2)

Updated: Jun 19

On Wednesday, June 12, California Congressman Darrell Issa (R), Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, convened a hearing entitled “The U.S. Intellectual Property System and the Impact of Litigation Financed by Third-Party Investors and Foreign Entities.” As most in the patent world know, Issa is not a friend to patent owners. This hearing showed that he is still out to destroy patents, inventors, and innovation in the U.S. — now in the name of killing litigation funding. Indeed, in his opening diatribe, Issa confirmed his bias against inventors and the little guy being able to stand up to big companies:

“Unlike traditional funding aimed at making victims whole, third-party litigation funding prioritizes investor profits over litigant need and often involves foreign interests from China and Russia. This practice, notably employed by ‘patent trolls’, undermines the integrity of our legal system and Congress should determine the necessary transparency and disclosure measures to curb these abuses.”

True to form, he and his fellow anti-patent zealots South Carolina Rep. Russell Fry (R) and Virginia Rep. Ben Cline (R) stacked the deck with three witnesses who have little to no litigation, patent, funding, or actual practice experience. Apparently., Rep. Issa was having a bad day because he did allow a witness who actually has experience in litigation funding (and who was middle of the road rather than extreme). Starting off for the BigCo team was former Rep. and now-lobbyist Bob Goodlatte (R). Why we want a lobbyist to help create law is beyond me, but I assume it’s because Goodlatte has a long history of opposing American inventors and US innovation in lieu of BigTech: https://townhall.com/columnists/jamesedwards/2023/10/13/former-lawmakers-block-and-tackle-for-big-techs-patent-infringement-strategy-n2629777


In addition to Bob the Lobbyist, two folks from George Mason University testified. First was Paul Taylor, a Visiting Fellow at the National Security Institute at George Mason University's Antonin Scalia Law School, who was an associate for five years some 25 years ago before going into government full-time. Then Donald Kochan is a Professor of Law and Executive Director of the Law and Economics Center also at the Antonin Scalia Law School at George Mason University. Kochan practiced law for less than three years as an associate. Neither Taylor nor Kochan seems to have practical experience with litigation funding or patent litigation. But they hate patents, so there’s that.


The final member of the panel was Professor Victoria Sahani, Associate Provost for Community and Inclusion and Professor of Law at Boston University. Unlike Taylor, Kochan, or Goodlatte (or Issa for that matter), she has 15 years of experience in international arbitration and more than 12 years of expertise in third-party funding and is a co-author of “Third-Party Funding in International Arbitration “(Wolters Kluwer, 2d ed. 2017) – the first book in the world on this topic. Unsurprisingly, her testimony was much more factual and believable than the other witnesses.


On the side of U.S. inventors, innovation, and generally the "little guy" having the ability to access justice were Georgia Rep. Hank Johnson (D), New York Rep. Jerry Nadler (D), and Kentucky Rep. Thomas Massie (R). This group of representatives clearly understood the issue: that Issa, Goodlatte, and their BigTech and Big Corporate America want to destroy litigation funding to prevent average Americans from having access to their rights. An unenforceable right is not right at all, and I was very impressed with Messrs. Johnson, Nadler, and Massie and their questions and understanding.


Stay tuned as I will provide a thorough play-by-play analysis of the hearing. If you have an hour-and-a-half to kill, the hearing video is available here: https://www.youtube.com/watch?v=SB5LdbmZh8A&t=1s. But by Thursday morning, you will get the Cliff's Notes (is that still a thing?) version. More soon!





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