The U.S. International Trade Commission is considering a proposed rule that would require parties in Section 337 investigations to disclose third‑party litigation funding arrangements, a move that could affect how ITC cases are litigated and managed.
The proposal would require parties to identify entities with a financial interest in an investigation, including litigation funders and others with authority over litigation or settlement decisions. The ITC has indicated that the rule is intended to promote transparency and reduce discovery disputes in its fast‑paced proceedings.
Finnegan partner Mareesa Frederick said litigation funding issues already surface regularly in Section 337 investigations. “By having this be an automatic disclosure, it makes the process more efficient,” she said, noting that disputes over funding frequently arise during discovery. Additionally, she noted that including the disclosure doesn’t stray much from the current practice, as that information often ends up being revealed in many cases already.
Further, Mareesa indicated that information about litigation funding could provide insight into who is using the ITC. She said, “If someone's coming to the ITC not because they're really protecting a U.S. domestic industry but just trying to extract a royalty fee from another company, it seems like the ITC should want to know that, or they should at least track the data around it. Because it's not seemingly consistent with ... the overall policy of what the ITC was established to do."
The ITC is currently accepting public comments on the proposal, and any final rule could influence how practitioners approach funding, discovery, and case strategy in Section 337 investigations going forward.
Read How Litigation Funding Disclosure Could Affect ITC Cases
