Winning a gold medal is hard. Repeating as gold medalists is even harder. At the 2012 Summer Olympics in London, the eight women rowing for the United States, as well as their coxswain, were heavy favorites to reprise their winning ways from Beijing four years earlier. And repeat they did, in a start-to-finish win by half a boat length over the silver medalist Canadiens. It was such a convincing win that the cox, Mary Whipple, later said that she was tempted during the last 250 meters to just stay quiet and “soak it in,” at least before she remembered that it was her job to let the rowers know how much more of the race remained. I confess that rowing is on my mind, as my rowing club plans to open the 2026 season this weekend. Also on my mind is a litigation finance event I attended at NYU Law recently, which featured a full-day’s worth of interesting conversation about where we are in terms of litigation finance and today’s legal ecosystem. Taken together, I think I may have stumbled on a useful way of thinking about one of the critical questions regarding third-party litigation funding of IP disputes, the question of “control.”
To start, some context on the role of the cox in an “eight” might be helpful. While the boat carries eight rowers, each sitting in a different “seat” with a defined role, it also has a coxswain, or cox. It is the job of the cox to help steer the boat — which is a monstrosity at over 60 feet long and over 200 lbs., even as it is just two feet wide or less — as well as to help the crew pace themselves over the 2,000 meters of a typical rowing race. The cox does the latter by making “calls,” such as to increase the stroke rate, or by sharing how much distance remains. In between, the cox will often exhort the crew, including by using colorful and emotional language, in the hopes of squeezing every bit of power and endurance from each seat in the pursuit of victory. You can think of the cox as a coach in the boat, if that helps. It is a critical role, but just one of many critical roles that must be played at the highest level in order to achieve Olympic glory. Put simply, one can put together a gold-medal performance as the cox, but if the crew is not to standard, or if the equipment such as the boat or oars are faulty, or even if the conditions of the race don’t favor the race plan used, the results can turn out a lot worse than anticipated. And what is true of the cox in an Olympic race is often true of a funder in a high-stakes IP dispute.
Let’s complete the proposed analogy between an Olympic eight race and a funded IP dispute before getting into how it may address the question of control. If we submit that the funder is like the cox, I would argue that the ultimate claim holder is like the institution in whose name the boat is rowing. Their name is behind the effort, and they stand to gain from a successful result, but a lot of what leads to that successful result is work done by others, or tied to the strength of their “equipment,” or legal assets such as their patents. The rowers themselves are the equivalent of the legal team, whose consistent and effective effort over the course of the race or dispute is essential to a positive result. Just as the eight will feature rowers with different roles, so too the legal teams in an IP dispute will have lawyers performing different roles, from lead trial counsel down to the most junior associate on the team. And what about the funder’s investors? They are similar to team sponsors, or college boosters, who help provide the backing that allows the team to do what it does but are often far removed from the actual deployment of the capital — by design. At bottom, as with any competitive endeavor, winning — on either the legal or rowing front — requires concerted teamwork and resolute focus on achieving victory from the first team practice or meeting until the crossing of the finish line in the Olympic final or its legal equivalent. As well as the money to get there, of course.
With our analogy complete, let’s turn back to the cox and the question of control. Does the cox “control” the boat — or in our analogy does the funder control the claim? I submit that the answer is a subjective one. If I were representing a collegiate cox prospect trying to negotiate an athletics scholarship in exchange for a commitment to a powerhouse rowing program, the answer would be definitely. I would argue that keeping the boat on course, motivating the crew in the maelstrom of a race, and executing on the race plan is essential to getting to the desired outcome. And on the flip side, if I were one of the rowers, or even the team owner asked to give the cox a raise, I might say that while the cox has an important job to do, it is a job that is more fungible — and that nothing the cox is doing amounts to control over the boat, especially in light of the work that the rowers or equipment are doing in the water. Good arguments exist on both sides of the question, with the true answer dependent on one’s perspective and motivations.
As it is with the cox, so too is it with the funder control debate. To those wanting to paint the funder as having control, the argument is simple. If a funder is putting up the money, and placing the claimant in the position of a (nonrecourse) debtor, of course they are exercising control, even when the underlying contract says they are not. And funders retort that they let the lawyers run the cases and the clients decide when to settle, so even though they are putting up the money, they are ceding control to those they are funding.
Ultimately, even if we accept that there will always be differing opinions on the question of a funder’s control, I think it is also clear that the context of when the question is asked is also very relevant to the analysis. For example, one must distinguish between a cox’s input when the rowers are putting in the meters on the erg during training camp, to when the cox is calling out the stroke rate for the final sprint in an Olympic race. In the former, the cox’s voice is just one of many that the rowers may hear, while in the latter scenario the cox’s voice is the most important one in the universe to the team. Likewise, a funder’s input into the client’s decision making may be mildly impactful in the early stages of a case, but that same funder voice when settlement negotiations are being undertaken with a jury out deliberating may have much more weight. Does that weight ever rise to the question of control? We can keep debating that, and will likely do so until a legislative definition of some kind arises. On the judicial side, we already know that there are varying opinions on whether the question is worth asking, as well as with respect to what the answer might be. Choppy waters indeed.
Please feel free to send comments or questions to me at gaston@k2k.law or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
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