Intellectual Property, Litigation Finance

On The Agenda

The need for IP lawyers to become as expert as they can in the mechanics, marketplace, and marketing of litigation finance has become even more pronounced in our COVID-era practices.

By  
on

The turn of the season with the passing of Labor Day always brings a sense of excitement. For IP litigators, the period between Labor Day and Thanksgiving is usually chock full of things to accomplish, whether they be deposition rounds in a case or two or a slate of important upcoming hearings in court (or over Zoom, depending on locale in this too-long pandemic). Things tend to ramp down again over the end-of-year holiday season, but that does little to take away from the back-to-work energy that infuses satisfied lawyers as the last rays of summer light start to dissipate. While client work is of course of paramount importance, the fall also presents opportunities for IP lawyers to learn some new things, whether through firm programming or via outside opportunities like bar conferences or other types of CLE-granting events.

As I look at my September calendar, a much-anticipated professional event looms large, both in terms of importance to my practice as well as my interest. The 4th Annual LF Dealmakers Forum is scheduled for September 29 and 30 in New York City — and virtually as well for those for whom pandemic-travel is a challenge — and the agenda is a jam-packed one. (I have written recaps of the prior two installments (here and here) and am very much grateful to the organizers that I am once again invited to attend in my capacity as your trusty ATL IP columnist.) We are now two years removed from my exhortation to my IP colleagues “that any IP lawyer practicing today needs to get educated quickly on litigation finance.” If anything, the need for IP lawyers to become as expert as they can in the mechanics, marketplace, and marketing of litigation finance has become even more pronounced in our COVID-era practices. As litigation timeframes have expanded and the need for IP plaintiffs to show the wherewithal and willingness to take cases to trial has taken on ever-greater importance, it is the rare IP litigator who can make the claim that they are providing optimal service to their clients if they only have a passing familiarity with the current-state-of-play in the rapidly expanding litigation finance landscape.

In that vein, conferences like LF Dealmakers provide great opportunities for immersion in high-level presentations on the most important developments in the litigation finance area. But there are also opportunities for IP lawyers to start the process of educating themselves about litigation finance in other ways as well. The key is to get started — and having started, to continue building one’s knowledge base on this critical topic.

In fact, I expect many more firms of all sizes with an IP practice to take steps toward educating each and every one of their IP lawyers about litigation finance. Whether they accomplish that goal using internal or external resources will be a firm-specific decision, but I also have no qualms about saying that the topic of litigation finance should be an area of focus not only within law firms but also in corporate legal departments as well — particularly at those companies that have made significant investments in developing their IP portfolios, or who find themselves the targets of IP litigation of the caliber that could, or already has, attracted the interest of funders.

At the same time, there is also no doubt that a vanguard of leading industry players has already come together to push the sophistication of the litigation finance industry forward, both in terms of litigation finance as an investable asset class as well as to the possibilities engendered by strong law firm/funder relationships. For a simple, yet profound, form of proof, just scan the list of sponsors of this year’s LF Dealmakers Forum. The more you know about litigation funding, the more you will appreciate the breadth and depth of the organizations represented. And what a cross-section of stakeholders in the development and deployment of litigation finance they represent.

Even more telling, in my view, is the quality of the upcoming conference’s agenda. Because not everyone has an opportunity to attend the conference, I thought it would be helpful to preview some of the things I am personally most looking forward to encountering — in the hopes that it spurs this readership to learn more about how litigation finance promises to impact their practices.  To start, the chance to hear from a distinguished former jurist like Judge Shira Scheindlin as a keynote speaker is a rare treat for a practicing litigator. Having distinguished herself with her e-discovery thought leadership, I am very excited to get her take on the litigation finance industry. Likewise, I think that any IP lawyer that is a law firm partner, or has partnership aspirations, should be very interested in learning how law firm ownership rules are starting to change in various states. The implications of such movement, both for transforming litigation finance into a full-bore vehicle for venture capital-style investments into law firms and claimants, as well as for the potential for law firms to change their physical locations to locales that can unlock such funding structures, are immense — especially for IP litigators, who frequently carry nationwide litigation dockets anyway.

Continuing our ride through the LF Dealmakers agenda, I am also interested in the panel on changing law firm “self-investment” strategies, in the form of alternative fee arrangements, considering how important such structures are towards allowing IP lawyers to deliver effective, but still profitable, service. Even better, it should be both great fun and valuable to hear the “tough love” panel dispense advice to funders on how to better serve the legal industry. Frank dialogue about areas of improvement is always a good thing, especially in a still-developing side of the business.

Sponsored

Looking forward to the second day of the conference, the panel on corporate uptake of litigation finance will be of great interest to those practicing in-house or who find themselves representing corporate clients interested in pursuing litigation funding to help defray the costs of pursuing (or defending, potentially) their legal claims. With finances at the heart of things when it comes to the demand for litigation funding, it will also be of great help to hear from the financial folks on the following panel, if only to get a better understanding on how the structure of litigation funding firms, as well as their sources of capital, can impact on the products and pricing they can offer the legal industry.

Lastly, as an IP lawyer who made the investment in contributing to sustainability by becoming a LEED Green Associate, I very much believe that litigation finance can be an effective vehicle for helping to drive positive social and environmental change. On the IP side, that might take the form of investing in cases involving beneficial green technologies, or providing working capital to green IP owners collateralized by the value of their IP claims or portfolio. In truth, the potential for litigation funders to attract and deploy capital toward positive societal ends — in partnership with socially conscious litigators and their firms — is endless. A more fitting discussion to end what promises to be an enlightening and forward-looking conference I cannot imagine. Here’s hoping for a great conference, and I look forward to recapping some of the highlights for IP lawyers on these pages.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Sponsored

Topics

, , ,