Week 10: The Public’s Right to Know

When non-party litigation funders remain anonymous, the public’s right to know who is using the court system is thwarted.

Federal court proceedings “are presumptively open to public scrutiny,” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014). “The public has an interest in knowing the names of the litigants, and disclosing the parties’ identities furthers openness of judicial proceedings.” Doe, 749 F.3d at 273(citations omitted). This is why courts impose a high bar for granting parties permission to litigate under a pseudonym and one reason why Rule 17(a)(1) requires that “[a]n action must be prosecuted in the name of the real party in interest.”

TPLF contracts give non-parties control over litigation decisions and the right to a portion of the proceeds from court judgments and settlements. Courts should require disclosure of TPLF contracts so courts, parties, and the public are aware of who is using our courts and how. Public transparency is particularly important when foreign investors, including sovereign wealth funds, fund litigation in US courts in search of profit and, presumably, to achieve their political and economic policy objectives.