Earlier this year we covered how Jim Duncey, the majority owner and face of Duncey’s Caps, Inc., was involved in a car accident and arrested for DWI.  While the company survived the initial PR crisis, its bottom line did not.  Retail sales during the following quarter were down 20 percent.  One of the Duncey’s major commercial customers also terminated its contract that produced $3 million in revenue annually.  Things are so dire that the company is considering laying off half of its workers.  But Duncey’s outside counsel is confident that the major commercial customer does not have the authority to terminate the contract early, and is lobbying Duncey’s to file a lawsuit that could result in $10 million in damages.  Outside counsel advises Duncey’s that the commercial customer has enough assets to satisfy a judgment.  But Duncey’s board is concerned that it cannot afford the cost of long and protracted litigation.  The Board knows that the commercial customer will hire the best law firm in the country to defend the case.  Duncey’s outside counsel suggests Duncey’s uses a litigation funder who will cover the law firm’s fees and the litigation expenses.  What factors should Duncey’s Board consider when deciding whether to use a litigation funder?
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