PROMOTING COMPETITION IN COMPETITION LAW: THE ROLE OF THIRD-PARTY FUNDING IN OVERCOMING COMPETITIVE BARRIERS IN PRIVATE ANTITRUST ENFORCEMENT PRACTICE

By Jiamie Chen¹

I. INTRODUCTION

Among the most fundamental antitrust concerns are barriers to entry in concentrated markets. Yet antitrust practice itself——specifically big-ticket private enforcement—remains a concentrated market subject to longstanding competitive barriers within the greater legal industry. Private enforcement contingency practice inherently involves high risks and high rewards. Recent developments have driven contingency risks even higher, requiring greater investments at early stages of litigation while creating more ways for plaintiffs to lose. No one can meaningfully compete—or continue competing—in the private enforcement market without effectively managing the financial risks of the practice.

But the private enforcement world is changing. The targeted conduct itself is evolving, from proverbial smoke-filled rooms to computer algorithms² and two-sided e-commerce platforms.³ New thought leaders like Lena Kahn⁴ and Dina Srinivasan⁵ are shifting the conversation on how traditional antitrust principles apply to today’s economic and commercial realities. In addition, key precedents in antitrust collective actions are developing abroad, particularly in the United Kingdom.⁶