Trade secrets have quietly become the most commercially valuable intellectual property most growth-stage companies own — and the most contested. Federal trade secret filings hit an all-time high in 2025, and when these cases reach a verdict, plaintiffs win roughly 84% of the time. Yet the companies that hold these claims are too often making the most important decisions — which firm to hire, on what fee terms, whether to move for an injunction, how much to invest in forensics — in a matter of days, without a clear view of what their case is worth or how a sophisticated investor would underwrite it. To help business owners, executives, and in-house teams change that, Certum has released The Trade Secret Litigation Playbook — a comprehensive, plain-English guide to protecting trade secrets and recovering their value when someone takes them. This publication is now available for free download . Why We Wrote This Playbook : Most trade secret guides are written by lawyers, for lawyers. The Playbook is different. It is written for the people whose businesses depend on these assets and who have to make the early calls — often before counsel is even engaged. That moment matters. Across the matters Certum sees every week, the same patterns recur: Misappropriation discovered, but no preservation protocol issued in the first 72 hours Counsel hired on a structure that looks reasonable at signing but constrains the matter for years Damages framed around lost profits alone, leaving the largest measures of recovery unexamined Litigation finance considered as a last resort instead of a strategic option at the outset Each of these is correctable — but only if the claim holder knows what to look for before decisions get locked in. The Playbook walks through the moves that matter, in roughly the order we recommend thinking about them. The Trade Secret Litigation Playbook is organized into seven parts: ✔ Why Trade Secret Claims Matter Now The market forces — employee mobility, AI competition, the DTSA — that have pushed trade secrets to the center of modern competitive strategy, and the real cost of waiting once misappropriation is discovered. ✔ Trade Secret Law in Plain English A practical overview of what qualifies as a trade secret, the choice between federal DTSA and state-law venues, what misappropriation actually covers, and the full range of remedies the law makes available — written so a business reader can follow without a J.D. ✔ The Pre-Litigation Playbook What good early triage looks like in the first 72 hours, the forensic fundamentals that decide most cases, the role of the ex parte seizure order, and the trade secret identification problem that derails more well-founded cases than any other. ✔ What Your Case Is Worth The four damages theories trade secret plaintiffs can pursue, why funders evaluate cases the way private equity firms evaluate investments, and how early damages work changes counsel selection, fee structure, and settlement posture. ✔ Choosing Counsel and Structuring the Economics The three fee arrangements available to claim holders, the case for talking to a funder before hiring counsel, the specific questions to ask in a trial-counsel interview, and the side-letter terms that prevent misalignment later. ✔ Litigation Finance for Claim Holders What litigation finance is (and isn’t), why claim holders of every size now use it, the funding process step by step, the anatomy of a term sheet, and the five questions that determine whether a trade secret case is fundable. ✔ How Certum Helps Certum’s offerings across litigation funding, claim monetization, IP enforcement financing, and special situations — plus two anonymized case studies showing how these structures actually deploy in real trade secret matters. The Playbook also includes a tear-out triage sheet for the first 72 hours, a self-assessment checklist for claim holders considering funding, a business reader’s glossary, and a sources section for those who want to go deeper. This publication is designed for: Business owners and CEOs whose companies have built valuable know-how, source code, processes, or customer relationships and want to understand the asset they actually own In-house counsel and general counsel managing IP enforcement decisions, fee structures, and the increasingly common question of whether to bring litigation finance into a matter Executives at growth-stage companies weighing whether and how to pursue a suspected misappropriation without diverting operating capital from the business Litigators and law firms advising trade secret claim holders, who want a structured resource to share with sophisticated business clients The Playbook is part of Certum’s growing library of resources — including Certum’s Guide to Litigation Finance and Certum’s Model Brief Opposing Discovery of Litigation Funding — aimed at helping businesses and their counsel navigate the evolving landscape of litigation finance and risk transfer. The Trade Secret Litigation Playbook is available now. To access your copy: DOWNLOAD THE TRADE SECRET LITIGATION PLAYBOOK HERE If you are working through a live trade secret situation, a confidential conversation with Certum is free and carries no obligation. We will tell you candidly whether a case is likely to be fundable, where the evidentiary gaps are, and what the highest-leverage next moves look like — before you make decisions about counsel or strategy that are hard to undo.
Let the Big Law AI arms race begin. Kirkland & Ellis, America’s largest and most profitable law firm, announced last week that it’s investing $500 million to build its own artificial intelligence platform. Kirkland’s bet is that proprietary AI will give it an edge over rivals stuck with off-the-shelf tools such as Harvey and Legora. Expect a handful of Kirkland’s wealthy peers to make similar bets. But for most US law firms, the AI race is a contest they won’t win because it’s a contest they’re effectively prohibited from entering. Law firms can’t raise outside capital the way other businesses do. Legal ethics rules—specifically Rule 5.4 of the Model Rules of Professional Conduct—ban firms from raising equity financing or sharing fees with non-lawyers. Those rules explain why not a single law firm, not even Kirkland & Ellis with its $10 billion in annual revenue, is publicly traded on any stock exchange. No surprise, then, that Kirkland said it would fund its AI platform from its own revenues rather than through a third-party investment. Rule 5.4 cuts law firms off from the capital markets. In nearly every other industry, robust capital markets allow small upstarts to vie with large-scale incumbents, producing healthy competition that lowers prices and improves quality. While Rule 5.4 hurts all law firms, it gives a comparative advantage to larger, wealthier law firms like Kirkland that can self-finance long-term investments. And it gives a courtroom advantage to the larger, wealthier businesses that can afford those law firms’ rates. The stakes are about nothing less than access to justice: who gets legal representation, and who is left standing outside the courthouse gates. Our civil justice system has long been plagued by an affordability and access crisis. According to New York University Law School, as many as 90% of Americans show up to state court without a lawyer. Even those individuals and small businesses who can afford a lawyer are often outmatched by better-resourced litigation opponents. The promise of “Equal Justice Under Law,” emblazoned across the façade of the US Supreme Court, is out of reach for too many. Promising market solutions have recently emerged. The capital restrictions that prevent firms from matching Kirkland’s bet are the same ones these emerging reforms are designed to dismantle. The Arizona Supreme Court in 2020 eliminated its version of Rule 5.4 allowing for alternative business structures, or ABS, where law firms can accept equity investment from non-lawyers. The court explained that the program was “rooted in the idea that entrepreneurial lawyers and nonlawyers would pilot a range of different business forms” to improve access to justice. Stanford researchers concluded in 2025 that individual consumers and small businesses are the prime beneficiaries of an ABS framework. ABS structures would allow firms to obtain third-party capital to invest in AI and other projects. A second innovation is the managed services organization, or MSO, which permits law firms to subcontract non-legal services and receive cash investments in ways that are consistent with Rule 5.4. Some firms, including McDermott Will & Emery, are exploring partnerships with MSOs to obtain third-party capital infusions they can deploy toward AI and other long-term investments. Certain MSOs, like ours at Certum Group, maintain full-stack development teams that are already building proprietary AI and other technological tools, providing smaller firms with cutting-edge capabilities that were traditionally available only to the largest firms. And then there is third-party litigation finance, where outside investors fund the fees and costs of litigation in exchange for a share of any recovery. Third-party funding enables plaintiffs and their lawyers to prosecute meritorious cases regardless of their resources. Funders also can provide non-recourse working capital to claimholders, allowing them to better compete not just in the courthouse but in the marketplace, as Suneal Bedi of Indiana University and I recently argued in the Southern California Law Review. Each of these innovations rests on the same premise: Market forces can bring third-party capital to law firms and their clients, enabling the “have nots” to obtain better results. They allow firms to invest in their clients and in themselves, equipping both to succeed in the courtroom and the market square. These innovations also share something else: sustained opposition. California, Colorado, and Illinois advancing bills to limit the ability of ABSs and MSOs to serve those states’ citizens. Third-party litigation finance has long been a target of some federal and state lawmakers. A failed provision in last year’s federal reconciliation bill would have imposed an industry-crippling excise tax of more than 40% on litigation funding returns. Critics argue that third-party investment will undermine attorney independence. This is an important concern. But as Arizona recognized when it eliminated Rule 5.4, other professional responsibility rules already preserve that independence. Legal scholarship, including work I have done with Brian Fitzpatrick of Vanderbilt Law School, suggests that third-party finance will improve rather than undermine the attorney-client relationship. The cost of legal prohibitions on third-party finance is borne by the litigant who can’t find a lawyer willing to take a meritorious case because no firm can afford the risk. It’s borne by the small business that settles a legitimate claim because it cannot match its opponent’s litigation budget. And it’s borne by the party who shows up to an eviction hearing, a custody dispute, or a debt collection action without counsel—facing an adversary who has it. Kirkland’s announcement is a preview of where the legal market is headed: A world where only the largest firms can self-finance the technology that will define competitive advantage for a generation. AI and third-party investment can close that gap and expand access to justice—but only if policymakers let them. This article was originally published on June 4, 2026, on Bloomberg Law and is available here . Copyright 2026 Bloomberg Industry Group, Inc. (800-372-1033) www.bloombergindustry.com. Reproduced with permission.
MLex, a LexisNexis publication covering global regulatory intelligence, recently interviewed and quoted Certum Group’s William Marra in an article examining the U.S. International Trade Commission’s proposed rule that would require disclosure of third-party litigation funding in Section 337 patent investigations. The proposed rule, published in the Federal Register on April 30, 2026, would require parties and intervenors in Section 337 investigations to disclose certain entities that provide funding or hold approval rights over litigation or settlement decisions. The ITC stated that the proposal is intended to identify conflicts of interest, clarify whose rights are at issue, and promote settlement and transparency. Comments are due June 29, 2026. Marra expressed concerns about the asymmetrical nature of the proposed disclosure requirements. While the rule would reach third-party litigation funding, it would not require disclosure of personal loans, bank loans, insurance funding, or contingent fee arrangements. “If you want to have a rule requiring the disclosure of third-party finance… it is more appropriate to have a rule requiring the disclosure of any and all forms of third-party finance,” Marra told MLex, including contingency-fee arrangements. Marra argued that selectively targeting only certain forms of funding creates an uneven playing field. “To the extent that you have disclosure rules that are targeted only at specific forms of third-party funding and not others, you are going to give certain parties a strategic advantage or disadvantage,” he said. “We have nothing to hide. We don’t want to give the other side of litigation a strategic advantage.” Marra also highlighted the outsized burden that overly broad disclosure requirements can impose on smaller parties. “TPLF disclosure tends to impose a burden disproportionately on small- and medium-sized enterprises,” he said, drawing on arguments he made in a recent co-authored article in the Southern California Law Review . The full MLex article is available here .