Lincoln Memorial University Duncan School of Law
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Abstract

The pursuit of justice, with infrequent exception, requires financial stability and sometimes even wealth. The cost of litigation has become so burdensome over the years that a system of third party litigation finance, also known as “litigation lending,” has developed in the background of the U.S. justice system. On its face, third party litigation financing shifts risk from risk-averse individual plaintiffs to well-insulated investors, promoting a more even-handed adversarial system. The practical success of litigation lending in the individual context1 has led to an outgrowth of rhetoric concerning, and even attempts at applying, litigation lending to aggregate claims.2 From court costs and litigation expenses to the cost of living for each individual plaintiff, the costs of aggregate claims are magnified for class plaintiffs and their advocates. In theory, applying third party litigation finance transitions nicely to aggregate claims. However, a deeper examination of the litigation lending system reveals that allowing third party lenders to finance aggregate claims exacerbates the privilege and confidentiality concerns inherent in aggregate litigation, opens the door for aggregate defendants and other improper parties to invest in opposing plaintiff’s claims, and advances non-party pecuniary interests to the detriment of the claim holder. This article will examine these inherent deficiencies and the unlawful distinguishing features of litigation lending in the aggregate context.

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