ISO's 'Litigation Funding Mutual Disclosure' Is Unenforceable

The Condition

For at least the last decade, insurers and the U.S. Chamber of Commerce have unsuccessfully sought to enlarge the scope of Federal Rule of Civil Procedure 26(f) to require the blanket disclosure of litigation finance in every civil case. Only a handful of federal courts have adopted a varying degree of disclosure requirements over the past ten years.¹ Faced with the lack of progress in the courts, the insurance industry has recently introduced a new insurance form condition entitled "Litigation Funding Mutual Disclosure" (the "Condition") (ISO Form CG 99 11 01 26), which may be included in liability policies such as commercial general liability and electronic data liability policies, among others, starting this month.