Beyond the class: How legal finance is changing the economics of antitrust claims

Antitrust litigation remains firmly in the spotlight in the US. The Department of Justice’s landmark cases against Google regarding its search and advertising technology are among the most prominent examples of recent government enforcement. Government actions of this kind can highlight potentially anticompetitive conduct that may give rise to damages claims by companies that compete with, or purchase, the products and services at issue. Private antitrust actions can follow government enforcement, as affected companies seek to recover damages arising from the same alleged conduct. More broadly, private antitrust litigation remains active across a range of industries, from protein markets to a new multidistrict proceeding concerning nitrogen, phosphorus and potassium fertilizers. For the companies affected, the question is how best to pursue a recovery.

Identifying a valuable claim is only the start. For companies with substantial antitrust claims, pursuing an individual action rather than remaining in a class may offer an opportunity to maximize recovery. But doing so means taking on litigation that is lengthy, complex and expensive. Establishing liability and quantifying damages often requires significant spending on outside counsel, economists and other experts, as well as discovery and data analysis. Companies must incur those costs without knowing when, or whether, they will ultimately recover. Legal finance can help overcome that barrier, helping companies mitigate litigation risk and manage the financial burden of pursuing their claims, while allowing them to redirect some of their capital toward core business priorities.

The case for opting out

Whether to remain in a class action is a strategic decision that depends on the company and the claim.  For some corporate plaintiffs, participating in the class may make sense. Others may conclude that opting out and pursuing an individual claim offers a better opportunity to maximize recovery.

An opt-out gives a company greater control over its litigation strategy and allows it to pursue a recovery based on its own damages rather than those of the class as a whole. An opt-out plaintiff can build its damages case around its own transaction data, choose its own counsel and experts and pursue a settlement based on its individual claim. The trade-off is that the company gives up its share of any class settlement and takes on the cost of litigating on its own.

The sums involved can be significant. In Burford’s 2025 survey of 301 US in-house lawyers, more than half (54%) said their companies had potential commercial class action recoveries exceeding $50 million in aggregate over the previous five years, and 71% believed opting out would have increased their company’s recovery by more than 25%.

Yet most companies still stay in the class. Nearly two thirds (62%) of respondents said their companies always or usually did so. Cost is a key part of the explanation: 73% identified the cost of litigation as a primary barrier to opting out.

Even when a company has a substantial claim, committing millions of dollars to litigation that may take years to resolve can be difficult to justify. Legal departments compete for capital with the rest of the business, and litigation spend has an immediate impact on cash flow and profitability. The potential for a significant recovery years from now must be weighed against the cost of pursuing it today.

Legal finance changes the calculation

Where the cost of pursuing an individual claim is what prevents a company from opting out, legal finance is an important solution.

With fees and expenses financing, a legal finance provider pays some or all of the costs of pursuing the claim. The capital is typically provided on a non-recourse basis, meaning the funder recovers its investment and return only if the claim succeeds; if the claim fails, the company owes the funder nothing. The company maintains control over the litigation and any decisions about settlement.

Fees and expenses financing addresses the cost of pursuing the claim. A monetization structure addresses a different issue: the time it takes to recover that value. Through a monetization deal, a company receives upfront capital based on a portion of the expected value of a pending claim, judgment or award, rather than having to wait for the matter to resolve to realize any of that value.

In the survey, 71% of in-house lawyers said access to a monetization structure that could convert part of an expected future recovery into immediate capital would make them more likely to opt out.

As companies assess potential claims arising from major antitrust disputes, the question is not simply whether litigation is expensive. It is whether the claim is valuable enough to pursue—and, if it is, whether the company should use its own capital to do so. Legal finance provides another option.