Litigation Finance and Antitrust Law

Just as litigation finance is seen as an area in the legal field that has seen increased development recently, antitrust law is similar.  Both fields have been gaining traction not only in the United States in the recent years but also abroad.  In fact, the growth of the two could be related, as antitrust claims are attractive to litigation funders.

Funders are attracted to antitrust claims specifically for a variety of reasons but here are a few that arose from interviews of litigation financiers: as antitrust is a complicated area of practice, cases are generally brought by experienced and highly specialized legal teams; the value of antitrust claims is usually high, especially when a cartel has been operating for many years; sometimes there are there are enough victims to file a class action which increases the financial viability of particular actions; and antitrust claims usually settle before a final judgment which reduces some of the risks associated with funding.

As litigation finance has been used longer in Europe than in the United States there have been several high-profile court actions brought by third party funders in regards to antitrust cases. One of the largest was when the Belgian firm Cartel Damage Claims, sought recompense in various member states against manufacturers who were price-fixing cartels regarding different chemical mixtures: Hydrogen Peroxide in Germany and Finland, Sodium Chlorate and Paraffin Wax in the Netherlands, and Clement in Germany, to name a few.

Litigation finance is a plus for parties because it allows for justice even when the party cannot afford it.  By using litigation finance there is no cost upfront but rather only is there is a successful outcome.  Additionally, in antitrust cases that are being dragged out there could be an advantage to using litigation finance to sustain the claim, even if it wasn’t used from the beginning of the matter.

Also, it should be noted that many antitrust cases could span multiple jurisdictions just by the nature of what usually happens.  A good example of this is the Belgian Cartel Damage Claims case mentioned above.  But with multiple jurisdictions comes added cost, just giving another reason why antitrust cases and litigation finance may go hand-in-hand.

Topics:  litigation finance, alternative litigation finance, third-party funding, antitrust, American Bar Association


Works Cited:  Anna Rodgers, Peter Scoot, Arnaud Sanz, D. Michael Brown, Emerging Issues in Third-Party Litigation Funding: What Antitrust Lawyers Need to Know, American Bar Association (December 2016).