Secret reviews of TPLF contracts—whether through ex parte conversations or in camera inspection—simply don’t work. They rob courts and parties of the adversarial process needed to understand the provisions that can affect everyone in the litigation. They prevent the development of case law standards about what constitutes problematic non-party participation and control. And they contradict how courts handle every other aspect of civil litigation. The Code of Conduct for U.S. Judges (Canon 3(A)(4)) generally prohibits ex parte communications; the exceptions include “scheduling, administrative, or emergency purposes.” A court’s examination of a contract—and, in effect, reaching legal conclusions about its meaning—falls far outside such topics. The solution is straightforward: courts should order disclosure of TPLF funding agreements to all parties and allow briefing of matters that need adjudication. Better yet, to avoid inconsistent procedures and needless motion practice, the FRCP should have a simple, uniform rule requiring disclosure of TPLF contracts in all civil cases.
