Intellectual Property, Litigation Finance

Houston Again Promises To Launch Litigation Funding Discussion

One of the things that makes litigation funding so interesting, of course, is the continued innovation in the space.

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Intellectual PropertyThe year has just started, but we are already seeing some major developments in the IP world. From eve-of-trial settlements in a number of pending Texas cases, to announcements of major cross-licensing deals between major IP owners, long-stated predictions of a turnaround in patent holder fortunes are starting to look more correct than at any other time in recent memory. There is a long way to go before we get to a healthy patent licensing ecosystem, however, if only because we have yet to see any workable solutions even proposed to the question of how large technology companies should best respond to the prevalence of litigation funder-backed cases against them. Still, I am bullish that we will see at least some positive movement on that front in the coming year — if only because so much talent and experience has already migrated to the litigation funding space, particularly with respect to patent issues. From insurance-backed monetization campaigns, to funder alignment with top trial firms, the coming years promise some very exciting action in the patent litigation space.

In light of the fast-moving developments, it should come as no surprise that interest in top-quality litigation funding conferences remains robust, or as I suspect, continues to grow apace with the increased importance of litigation finance to IP lawyers and their clients. Thankfully, one of the newest entrants in the funding conference space, LITFINCON, is coming back for its second installment, starting on March 1. As with the inaugural LITFINCON — which I spoke at and previewed on these pages — this year’s conference will once again be held at one of Houston’s top hotels, the Post Oak. (Having stayed there for last year’s conference, I can testify that it is as fine a hotel as one can find in a major U.S. city. You can ask your favorite member of the NBA’s Utah Jazz, who were also staying there at the same time, if you don’t believe me.) In addition to the great venue, it once again looks like LITFINCON promises awesome entertainment during conference downtime, including a trip to the Houston Rodeo, as well as a repeat of last year’s very successful lunchtime comedy performance by a stand-up comic.

As much as the nice hotel and entertainment options are welcome, the key to any successful industry conference is workable insights delivered by knowledgeable industry players. Here again, LITFINCON promises to deliver, with a number of very interesting panels — headlined, for patent litigators at least, with the promised appearance of the Hon. Alan J. Albright of the Western District of Texas on the conference’s judicial panel. As the busiest patent trial judge in the country, with no small share of pending funded patent cases before him, Albright’s commentary will be of serious interest to patent litigators, funders, and their clients. Any judicial commentary on litigation funding issues is of high value to the entire funding community, making the insights of the two other federal judges and one state judge on the LITFINCON judicial panel also most welcome. Likewise, the discussion by the LITFINCON academic panel on ethical issues involved in litigation funding is a necessary component of any serious litigation funding conference, particularly in light of continued public calls for greater regulation of the space in light of its dynamic growth both domestically and overseas.

In addition to the judicial and academic panels, which I personally expect to be of great value to my practice, a host of other interesting content is planned for this year’s LITFINCON. As with last year, there will be a panel on corporate legal department uptake of litigation funding, as well as a discussion of important trends and developments over the past year of interest to the funding community. There will also be a panel dedicated to funding issues as they relate to patent litigation, plus the panel that I am scheduled to speak on, which will focus on the burgeoning secondary market for funded cases. In particular, I hope to discuss the unique challenges and considerations that arise when doing diligence for a secondary funder on a potential investment in a primary funder’s funded cases. Having worked with my partners on a number of such matters, I can say that while there is some overlap with performing diligence for a case looking for funding in the first place, diligence of secondary investments does present some twists that must be thought through with great care.

One of the things that makes litigation funding so interesting, of course, is the continued innovation in the space — with the rise of the secondary market, as well as the increased bevy of insurance options for funders, perhaps representing the most salient examples of just how far the industry has developed as a sophisticated asset class year-over-year. Expect LITFINCON’s other panels to provide a comprehensive look at those developments, delivered by active industry participants involved in pushing litigation funding forward in their day-to-day work. A full agenda is available on the conference website, as well as a list of committed sponsors, which includes leading law firms, funders, insurance consultants, among other top-notch service providers to the litigation funding ecosystem.

Ultimately, as with last year, LITFINCON will surely be a few well-spent days for attendees and presenters. As litigation funding and patent litigation become ever more intertwined, discussions around litigation funding are important ones for IP attorneys and their clients, irrespective of whether they find themselves seeking out funding or representing the targets of funded cases. Participation in LITFINCON should be a worthwhile investment of time and attention. Registration remains open, and if you do make it, please make sure to say hello.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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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 [email protected] or follow him on Twitter: @gkroub.

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