Welcome back for another week of What's Next, where we report on the intersection of law and technology. Today, we get a glimpse into the trends shaping litigation funding in the arbitration world. Also, Amanda Allen, of The Lawyering Project, talks about abortion via video chat and the legal quagmire entrenching the telemedical procedure. Plus, Twitch goes on a troll hunt.

➤➤ Would you like to receive What's Next as an email? Sign up here.

Lit Funding Goes to Arbitration

Two powerhouse trends chiseling away at the business of law are arbitration and litigation funding. Today, we speak with some arbitration specialists as they dish on the developments they're seeing as the two worlds collide.

1. More Products Hit the Lit Funding Market

In the past, law firms would give litigation funders a budget for a particular amount of costs and fees, and then the funders would charge some multiple of that to the client upon a successful reward.

“Now because there are so many additional entrants, litigation funders are becoming more specialized in their product offering,”said Teddy Baldwin, a partner at Steptoe & Johnson in Washington, D.C., and an expert on international and investor-state arbitration.

Some funders may just take a certain percentage of an award instead, Baldwin said. He's also seen hybrid models, where law firms pay an amount to the funder up front, and then another percentage contingency amount for awards that go above that amount. There's also insurance law firms can purchase from funders for an adverse cost award.

2. Widespread Disclosures

It's not just judges who are getting more curious about lit funding. Arbitrators are also increasingly asking for information on funding. “A number of arbitral institutions are now changing or looking at changing their disclosure rules,”said Lisa Richman, a partner at McDermott Will & Emery in Washington, D.C., and an international dispute resolution specialist. Richman said cross-border arbitration is an area that's seen an explosion of litigation funding activity. In response, Hong Kong International Arbitration Center now has disclosure requirements. The Milan Chamber of Arbitration has also changed its disclosure rules, and one of the most prominent investment arbitration institutions, The International Centre for Settlement of Investment Disputes, an affiliate of the World Bank Group, is revising its rules and considering disclosures. For the most part, the fact that someone is funding litigation, and who that funder is, are the most common disclosures, Richman said. “In arbitration one of the big issues is having an arbitral tribunal that is independent and impartial,” she said. “The thinking behind it has been how would an arbitrator necessarily know that there is this third party that is in a way involved and funding one of the parties.” 

3. Deeper Law Firm Ties

As the litigation funding industry evolves, lawyers and funders are becoming more entangled. Funders are developing portfolios where they team up with law firms and agree to be the first place a firm goes for potential funding, Baldwin said. When law firms enter a portfolio agreement, they have a better chance of getting funded because of that relationship. Funders often also have a set time period to consider portfolio cases. In return, the funder is able to spread out the risk across many different cases. One of the biggest developments Baldwin sees is that law firms are becoming partners with litigation funders. “The law firms take some degree of the risk as well, instead of the funders taking 100% of the risk,” he said. “It puts all the parties in a similar place with respect to risk and aligns their interest.”

Funders are also bringing more lawyers in-house because they have a better position to evaluate potential cases to invest in, Richman said. “Ten years ago, when I was advising clients on this, we were having to do a lot more of the legwork in helping funders with their due diligence,” she said. “Having brought on those skilled practitioners, a number of funders now are able to run that due diligence in house, which I think has lead to greater efficiencies and a more thoughtful conversation.”

The Trench Warfare of Telemedicine

Amanda Allen is the senior counsel and director for The Lawyering Project, which is a legal advocacy group seeking open access to reproductive health care. She's also one of the legal advisors for a research firm called Gynuity Health Projects. Gynuity is running an eight-state study on telemedicine abortion. As part of the TelAbortion project, women can video chat with abortion providers and get the medicines involved with the procedure delivered right to their doors. Yet, the growth of telemedicine abortion hinges on the emerging law around the practice. As states continue to chip away at clinicians' ability to provide abortions, providers and advocates are taking them to court. Check out how the tech-forward medical service has both sides sharpening their legal tools and arguments.

Answers have been edited for length and clarity.

➤➤ What are some of the biggest legal hurdles to telemedicine abortion? It's incredibly hard to innovate abortion service delivery when states across the country have passed hundreds of restrictions on abortion just in the last year or so. As states have expanded access to telemedicine more broadly, they've made a carveout for abortion by passing laws that explicitly ban the use of telemedicine for prescribing medication abortion. Seventeen states currently have those bans in place, despite studies that show accessing medication abortion through telemedicine is safe, effective, and that there's a very high level of patient satisfaction. The telemedicine restrictions are a de facto ban on something like the TelAbortion study, because the laws say you can't use remote technology and a prescribing clinician has to be physically present with a patient.

➤➤ Are there any less direct challenges to telemedicine abortion? As I've been working more with Gynuity, it became clear there are medically unnecessary restrictions that would also make the study implicitly illegal, risky, or defeat its purpose. Some include a requirement that the prescribed clinician provide a physical exam prior to the abortion. Missouri's requirement of a pelvic exam before an abortion hit the headlines over the last couple weeks. Other laws that could be implicated are requirements that practitioners prescribe the drug from a specific type of health care facility, such as an ambulatory surgical center. There are other laws that require patients to make multiple trips to a clinic and receive a state-mandated lecture before they can get care. You see a lot of states say the same clinician has to provide a pre-abortion ultrasound 24 hours before the abortion, and then perform the abortion, even if it's just handing the pill over to the patient. These laws burden all patients who are trying to get care, but make innovative care models like this study impossible or very difficult. 

➤➤ Are you seeing challenges to laws restricting or banning telemedicine and abortion?  The Iowa State Board of Medicine passed a telemedicine ban that was litigated over the last couple years, and the Iowa Supreme Court found that law was unconstitutional under the state constitution. We're seeing movements toward, “OK you're going to ban this technology, but we have legal arguments to make against them.” The Lawyering Project has a couple of lawsuits against telemedicine restrictions in some of these deep red states. We have federal court cases in Texas and Indiana right now, challenging the telemedicine restrictions and arguing that they're an undue burden. There are probably about half a dozen other challenges to telemedicine restrictions across the country, in states such as Kansas, Louisiana and Virginia. Particularly after the U.S. Supreme Court's decision in Whole Woman's Health v. Hellerstedt in 2016, it's even more clear that they're unconstitutional under the undue burden standard, because that standard requires an abortion restriction benefit to outweigh the burdens.

Twitch Takes on Trolls

In March, Amazon's Twitch video game streaming site was overtaken by trolls uploading porn, copyrighted media and violent videos such as footage from a mosque shooting in Christchurch, New Zealand. Twitch's Perkins Coie attorneys filed a lawsuit Friday against the anonymous trolls for trademark infringement and breach of contract. The Recorder's Ross Todd interviewed Annemarie Bridy, a professor of law at the University of Idaho and an affiliated scholar with The Center for Internet and Society at Stanford Law School, who said the lawsuit sends “a strong message to would-be trolls that they're not operating in a liability-free zone.”

Bridy also said that the lawsuit will allow Twitch to subpoena internet service providers for identifying information on the users.

“Depending on how sophisticated the trolls are, the effort to identify them through the IP addresses from which the content was posted may hit a dead end,” she said. “And there's always the chance that the trolls are located outside the jurisdiction of U.S. courts.”

On the Radar

➤➤ AI Could Leave Employment Law in the Dust As hiring managers turn to artificial intelligence to find job candidates, it's not just algorithms and datasets that will need careful review. Some employment law experts argue that what constitutes as hiring discrimination may need to be redefined altogether. Read more from Charles Toutant here.

➤➤ Google Dodges Telecoms Status in Europe Google's Gmail is not a telecommunications service, according to the European Court of Justice. The ruling comes after Google challenged the classification by Germany's telecoms regulator. Unlike the telecommunication industry, the tech giant and its competitors will not have to share information about data transfers with law enforcement or ensure their services are compatible with other platforms. Read more from Simon Taylor here.

➤➤ Cotchett Pitre Principals Sanctioned in Apple Case A federal judge sanctioned plaintiffs attorneys at Cotchett, Pitre & McCarthy for revealing sealed information in court against Apple over its alleged throttling of older iPhones. Judge Edward Davila of the U.S. District Court for the Northern District of California in San Jose did not heed Apple's request to remove Cotchett Pitre principals Joseph Cotchett and Mark Molumphy from the case. But Davila did say, “Mr. Cotchett's actions, if not willful, display a fundamental lack of understanding of the protective order.” Read more from Amanda Bronstad here.

Thanks for reading. We will be back next week with more What's Next.