How “freely assignable” are antitrust claims?

Can federal antitrust claims be assigned? Yes.  See John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394 (2d Cir. 2018).  Can the assignee of the claim substitute in for the assignor? Also yes.  See Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir.2007).  Will the assignee have standing to litigate?  That’s usually a yes too. See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 903 (9th Cir. 2005). 

But what if a litigation funder controls the assignee entity?  Seems that’s a no-go (or at least it’s not an abuse of discretion to deny the substitution request):

The Magistrate Judge exercised his discretion to deny the motions. He did not invalidate Sysco’s assignment of its claims to Carina, but denied the motions for substitution after reasoning that substitution would be contrary to the Federal Rules and public policy. (Magistrate Judge’s Order at 3, 14–15.) The Magistrate Judge was particularly concerned with the possibility that on the facts of this case, substitution would allow a litigation financer “with no interest in the litigation beyond maximizing profit on its investment to override decisions made by the party that actually brought suit.” (Id. at 3.) The Magistrate Judge concluded that Sysco and Burford’s assignment agreement and substitution request would allow Carina to stymie settlements for Burford’s gain, contravening public policy favoring party control over litigation and settlements. (Id. at 18–21.) Specifically, he wrote that “[t]he largest harm that condoning Burford’s efforts to maximize its return on investment would cause is the harm of forcing litigation to continue that should have settled.” (Id. at 17.)

See In re Pork Antitrust Litig., No. 18-cv-1776 (D. Minn. June 3, 2024).

It’s unclear why Sysco, as the assignor, still has standing to litigate a claim that it assigned away to Carina.