Delaware Court of Chancery · US (DE) · 2024 · Decided; motion to compel granted
Citation/Docket: C.A. No. 2018-0691-NAC, 2024 WL 3888109 (Del. Ch. Aug. 21, 2024)
Posture: Class-action defendants vs. funded plaintiffs, over production of the funding agreement
Funder(s) involved: (funder identity confidential; the opinion notes the funders appear to be competitors financing litigation against a market peer)
Plaintiffs disclosed the existence of a litigation funding agreement only after depositions had begun, then declined to produce it or name the funders. Defendants argued the funders' identity and degree of control bore directly on whether class counsel could adequately represent the class.
The Court ordered production of the complete, unredacted funding agreement and fee agreements. The class context creates real conflict and control concerns, the agreement itself recited an expectation of disclosure before class certification, and Delaware law does not treat funding agreements as categorically protected work product. The Court noted funders can exercise control in less obvious forms than an express contractual right.
In a class or representative case, assume the funding agreement will be read by the judge and by the other side. Negotiate it as if it will be public, and do not rely on a 'no control' recital to end the inquiry.
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Compiled from public sources (court filings, published opinions, and secondary reporting) as part of the Institute's Phase 1 Dispute Library research. This is educational material, not legal advice; case citations should be independently verified before relied upon.