And speaking of this litigation campaign just supported by the Biden-Harris administration on the way out… we were intrigued to see this item from the law firm Morrison and Foerster, titled “FARA Unit Takes Aim at Foreign Litigation Funding and Commercial Exemption”.
This comes on the heels of even more revelations about foreign financing of the global warming industry—and this item recently posted on CLW (“despite all that’s in the public record about private financing of this litigation campaign by progressive foundations”), to which we now add “Since around the time of its founding, the firm has received nearly $14 million in donations wired through the so-called Collective Action Fund for Accountability, a shadowy pass-through group that isn’t required to publicly disclose its donors. As a result, wealthy environmental donors are able to remain anonymous while funding the litigation that could dismantle the fossil fuel industry.
As an excerpt from MoFo’s item notes (link to the advisory opinion is here):
On November 18, 2024, the U.S. Department of Justice (DOJ) Foreign Agents Registration Act (FARA) Unit published an advisory opinion that appears to severely narrow the statute’s most important exemptions. In the opinion, the Unit concluded that a law firm that received funding from a foreign non-governmental organization (NGO) to pursue impact litigation in U.S. courts was required to register under FARA and was ineligible for both the legal and commercial exemptions. This development delivers on an enforcement promise made by DOJ leadership last year and foreshadows forthcoming changes to FARA’s regulations.
Foreign Litigation Funding, an Enforcement Priority
In December 2023, FARA Unit Chief Turgeon identified foreign litigation funding as an enforcement priority, expressing concern that such arrangements could be weaponized in U.S. courts to tie up U.S. businesses, deplete their resources (providing foreign competitors with an advantage), and sow division among the U.S. public by inflaming social tensions.
You don’t say.
It continues:
Less than a year later, the Unit has taken its first shot across the bow of foreign litigation funders. In a June 24, 2024 opinion and follow-up letter dated September 30, 2024, the Unit advised a U.S. law firm that it was required to register under FARA to pursue impact litigation on behalf of third-party plaintiffs funded by a foreign NGO.
The Unit found that the law firm would be acting as an agent of a foreign principal by accepting funding from the foreign NGO and, in exchange, agreeing to engage in at least two types of registrable conduct. First, the law firm would be collecting, disbursing, and dispensing money for or in the interests of the foreign organization.[1] Second, the law firm would be engaged in “political activities” because it would seek to solicit potential plaintiffs to pursue claims and the litigation would serve as a vehicle to advance the foreign organization’s interests and “highlight . . . policy implications, spur legislative and rulemaking actions desired by [the foreign organization], and conform industry practices to [the foreign organization’s] preferences.”[2]
Let’s call this “One to watch.”