UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                

IN RE: PORK ANTITRUST               Case No. 18-cv-1776 (JRT/JFD)        
LITIGATION                                                               

IN RE: CATTLE AND BEEF              Case No. 22-md-3031 (JRT/JFD)        
ANTITRUST LITIGATION                                                     

This Document Relates To:                   ORDER                        
Sysco Corp. v. Agri Stats, Inc., Case No.                                
21-cv-1374 (D. Minn.), and Sysco Corp.                                   
v. Cargill Inc., Case No. 22-cv-1750 (D.                                 
Minn.)                                                                   


    This Order decides Sysco Corporation and Carina Ventures LLC’s Joint Motions 
for Substitution of Plaintiff, which have been filed in the In re: Pork Antitrust Litigation, 
Case No. 18-cv-1776, at Docket No. 1940, and in the In re: Cattle and Beef Antitrust 
Litigation, Case No. 22-md-3031, at Docket No. 277. If any portions of this Order apply 
to only one case, the Court will indicate that at the appropriate part of the Order. The 
motions for substitution are denied.                                      
I.   INTRODUCTION                                                         
    When a party to a lawsuit transfers an “interest,” a federal court has the discretion 
to choose one of three options: allow the action to proceed as though there had been no 
transfer, join the interest’s new owner as a party along with the former owner, or dismiss 
the former owner and substitute the new owner as a party to the lawsuit. Fed. R. Civ. P. 
25(c). Sysco Corporation, a large food distributor and a direct-action plaintiff in these 
cases, financed its litigation expenses through Burford Capital, which holds itself out as 
“the world’s largest provider of commercial legal finance.” See burfordcapital.com/about-
us/ (last visited Feb. 8, 2024). The litigation finance contract between Sysco and Burford 

gave Burford the authority to approve or disapprove of settlements. After Sysco attempted 
to settle with some defendants in these cases on terms Burford did not favor, Burford 
refused to permit the settlements. Sysco then fired its legal counsel, Boies Schiller Flexner 
LLP, accusing them of disloyalty because Sysco’s lawyers were also (for purposes other 
than this lawsuit) Burford’s lawyers, and Sysco alleged that its lawyers provided legal 
advice to Burford that was contrary to Sysco’s interests during the dispute between Sysco 

and Burford over settlement authority. This Court allowed Sysco’s counsel to withdraw, 
but then had to partially stay both the In re: Pork MDL and the In re: Cattle MDL while 
Sysco hired new lawyers. The dispute between Sysco and Burford over settlement authority 
also generated an arbitration proceeding in New York, a New York state court action (later 
removed to the U.S. District Court for the Southern District of New York) to enforce the 

arbitration award, an action in the U.S. District Court for the Northern District of Illinois 
to stay the arbitration award, and a substitution motion in each of the Minnesota MDLs, 
plus a substitution motion in In re Broiler Chicken Antitrust Litigation, Case No. 16-cv-
08637 (N.D. Ill.).                                                        
    Sysco and Burford resolved their differences by engineering an assignment of 

Sysco’s antitrust claims in the two Minnesota cases and the Illinois case to a “special 
purpose vehicle” established by Burford. This special purpose vehicle is a limited liability 
company named Carina Ventures LLC, which was formed in June of 2023 and apparently 
has no assets except its ownership of Sysco’s federal antitrust claims in these three lawsuits. 
Sysco’s discharged former counsel, Boies Schiller, now represents Carina.  

    In the motions to substitute, Sysco and Carina ask the Court to substitute Carina for 
Sysco in these cases. The Court will not do so, because the transfer does violence to the 
Federal Rules of Civil Procedure’s meaning of transferring an “interest,” has caused serious 
practical problems in this litigation, and will allow a financer with no interest in the 
litigation beyond maximizing profit on its investment to override decisions made by the 
party that actually brought suit.1 The Court exercises its discretion by choosing the first 

option under Rule 25(c)—allowing this case to proceed by the original party. The two 
substitution motions are therefore denied.                                
II.  LEGAL STANDARD                                                       
    Federal Rule of Civil Procedure 25(c) governs transfers of interests after a lawsuit 
has begun and states, in relevant part: “If an interest is transferred, the action may be 

continued by or against the original party unless the court, on motion, orders the transferee 
to be substituted in the action or joined with the original party.” “Whether to grant a motion 
to substitute parties under Rule 25(c) is within the discretion of the district court.” Jackson 
Nat’l Life Ins. Co. v. Bohnert, No. 15-cv-3044 (WMW/DTS), 

 (D. Minn. 


1 During the first week of August 2023, the attorney who orally argued the substitution 
motion for Carina entered appearances in these matters identifying himself as “counsel of 
record for Plaintiff Carina Ventures LLC.” (See Dkt. No. 1985, Case No. 18-cv-1776; Dkt. 
No. 309, Case No. 22-md-3031) (emphasis added). Carina also appeared on the docket of 
the In re: Pork MDL as a “Plaintiff.” Carina is not a plaintiff in these cases, having 
appeared only to brief and argue the substitution motions. The Court directs the Clerk of 
Court to correct the docket of the In re: Pork MDL by assigning Carina the status of 
“movant.”                                                                 
June 10, 2020) (citing Froning’s, Inc. v. Johnston Feed Serv., Inc., 

, 110 n.4 
(8th Cir. 1978)). “The decision whether to substitute parties lies within the discretion of 

the trial judge and he may refuse to substitute parties in an action even if one of the parties 
so moves.” Froning’s, Inc., 

 n.4; see Panther Pumps & Equip. Co. v. 
Hydrocraft, Inc., 

 (7th Cir. 1977) (“The very nature of Rule 25(c) vests a 
great deal of discretion in the hands of the court. It is not mandatory that a substitution be 
made in every case of a transfer of interest.”).                          
    “The most significant feature of Rule 25(c) is that it does not require that anything 

be done after an interest has been transferred. The action may be continued by or against 
the original party, and the judgment will be binding on the successor in interest even though 
the successor is not named.” 7C Charles A. Wright et al., Federal Practice & Procedure 
§ 1958 (3d ed). “Since the matter is discretionary, the court . . . may refuse substitution if 
this seems the wisest course.” Id.                                        

III.  FACTUAL AND PROCEDURAL CONTEXT                                      
    Although Carina and Sysco argue that the factual and procedural background of 
Sysco’s lawsuits and  Sysco’s dispute with  Burford are irrelevant, the Court strongly 
disagrees. This context is quite relevant to the Court’s exercise of discretion under Rule 
25(c).                                                                    

    A.   Background of Sysco’s Lawsuits                                  
         1.   In re: Pork                                                
    In  March  of  2021,  Sysco  filed  suit  in  the  Southern  District  of  Texas  against 
Defendants Agri Stats, Inc.; Clemens Food Group, LLC; Clemens Family Corporation; 
Hormel Foods Corporation; JBS USA Food Company; Seaboard Foods, LLC; Smithfield 
Foods, Inc.; Triumph Foods, LLC; Tyson Foods, Inc.; Tyson Prepared Foods, Inc., and 

Tyson Fresh Meats, Inc. See Complaint, Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374 
(D. Minn. filed Mar. 8, 2021) (Dkt. No. 1). Sysco’s Complaint alleged a conspiracy among 
all the Defendants “to fix, raise, maintain, and stabilize the price of pork” in violation of 
Section One of the Sherman Act. Id. ¶¶ 4, 228. Sysco sought treble monetary damages 
under Section Four of the Clayton Act, id. ¶¶ 11, 239, and an injunction against further 
anticompetitive behavior under Section 16 of the Clayton Act, id. ¶¶ 11, 240.  

    On March 22, 2021, Sysco moved to transfer the action to the District of Minnesota 
for coordination with this MDL. Notice of Motion for Transfer filed with the J.P.M.L., 
Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374 (D. Minn. filed Mar. 22, 2021) (Dkt. No. 
18). The J.P.M.L. transferred the case, and it was consolidated into the MDL on November 
14, 2021. Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374, slip op. at 11 (D. Minn. filed 

Mar. 22, 2021) (Dkt. No. 34). The operative Complaint is a consolidated complaint filed 
by the direct action plaintiffs, including Sysco, in the In re: Pork MDL at Docket No. 1659. 
         2.   In re: Cattle                                              
    In  June  of  2022,  Sysco  filed  suit  in  the  Southern  District  of  Texas  against 
Defendants Cargill, Inc.; Cargill Meat Solutions Corporation; JBS S.A; JBS USA Food 

Company; Swift Beef Company; JBS Packerland, Inc.; National Beef Packing Company; 
Tyson Foods, Inc.; and Tyson Fresh Meats, Inc. See Complaint, Sysco Corp. v. Cargill, 
Inc., No. 22-cv-1750 (D. Minn. filed June 24, 2022) (Dkt. No. 1). Sysco’s Complaint 
alleged a conspiracy among all the Defendants “to limit the supply, and fix the prices, of 
beef sold to Plaintiff in the U.S. wholesale market” in violation of Section One of the 
Sherman Act. Id. ¶¶ 2, 346. Sysco sought treble monetary damages under Section Four of 

the Clayton Act, id. ¶¶ 25, 357, and an injunction against further anticompetitive behavior 
under Section 16 of the Clayton Act, id. ¶¶ 25, 358–59. The case was transferred to the 
District of Minnesota on July 12, 2022, and consolidated into the In re: Cattle MDL on 
October 12, 2022. Sysco Corp. v. Cargill, Inc., No. 22-cv-1750, slip op. at 4 (D. Minn. Oct. 
12, 2022) (Dkt. No. 17). The operative Complaint is a consolidated complaint filed by the 
direct action plaintiffs, including Sysco, in the In re: Cattle MDL at Docket No. 132. 

    B.   Background of the Substitution Motions                          
    The Court first learned of the dispute that led to the substitution motions on March 
10, 2023, when Sysco filed “stipulations” for the withdrawal of its counsel, Boies Schiller, 
accompanied by motions asking for a limited stay to allow Sysco to find new counsel. (See 
Dkt. Nos. 1841, 1843, Case No. 18-cv-1776; Dkt. Nos. 162, 164, Case No. 22-md-3031.) 

The Court denied the stipulations because they did not comply with District of Minnesota 
Local Rule 83.7. (Dkt. No. 1872, Case No. 18-cv-1776; Dkt. No. 180, Case No. 22-md-
3031.) The Court eventually learned that the dispute between Sysco, Boies Schiller, and 
Burford had already been going on for some months.                        
    Starting in 2019, Sysco financed its litigation in these matters with approximately 

$140 million of litigation financing provided by Burford. (Carina’s Mem. Supp. Joint Mot. 
Substitution, Dkt. No. 1952, Case No. 18-cv-1776); Pet. Confirm Arbitration Award ¶ 8, 
Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed Mar. 23, 2023) (Dkt. No. 1-
1).2 Sysco is required, under Amendment No. 1 to the Second Amended and Restated 
Capital Provision Agreement between Burford and Sysco, to immediately email to Burford 

any settlement offers it receives “and shall not accept a settlement without the Capital 
Providers’ prior written consent, which shall not be unreasonably withheld.” Swiber Decl. 
Ex. B at 5, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) 
(Dkt. No. 21-2). Matters came to a head in 2022 when Sysco negotiated settlements with 
some defendants, and Burford, thinking the settlement amounts too low, withheld its 
approval. See Pet. Vacate Arbitration Award ¶¶ 16, 27–34, Glaz LLC v. Sysco Corp., No. 

1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. No. 21-3). More concerningly to Sysco, 
the law firm that represented Sysco in the Minnesota antitrust cases, Boies Schiller, also 
represented Burford on other matters. When Sysco heard allegations that Boies Schiller 
had allegedly played a role in counseling its client Burford to veto its other client Sysco’s 
antitrust settlements, Sysco fired Boies Schiller, and accompanied the firing with angry, 

public accusations of serious professional misconduct, even including disloyalty to a client. 
See Sysco’s Opp’n Pet. Confirm Arbitration Award at 6, Glaz LLC v. Sysco Corp., No. 
1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. No. 18) (Burford “induced [Boies 
Schiller] to violate its fiduciary duties to Sysco” and “sought to use the courts for a purpose 
other than the pursuit of justice.”).                                     



2 Citations to documents in the New York state court action or the arbitration proceedings 
are to the versions of those documents that were filed as exhibits to filings made in the 
federal action in the U.S. District Court for the Southern District of New York. See footnote 
3, infra.                                                                 
    In December of 2022, Burford applied for and was granted a temporary restraining 
order by an arbitration panel in New York, to prevent Sysco from finalizing the negotiated 

settlements. Three months later, in March of 2023, Sysco filed an action in U.S. District 
Court for the Northern District of Illinois to vacate the arbitration award. Sysco Corp. v. 
Glaz LLC, No. 1:23-cv-01451 (N.D. Ill.) Burford responded within a week by filing in New 
York state court a Petition to Confirm Arbitration Award, which Sysco removed to the U.S. 
District Court for the Southern District of New York, thereby commencing the Glaz LLC 
v. Sysco Corp. case.3                                                     

    There was yet more litigation over Burford’s efforts to bar Sysco from settling its 
claims. After discharging Boies Schiller, Sysco filed motions asking this Court for 60-day, 
partial stays of both these cases.4 (Dkt. No. 1843, Case No. 18-cv-1776; Dkt. No. 164, Case 
No. 22-md-3031.) Sysco argued that it needed this much time both because it claimed 
Burford was illicitly seeking to obstruct Sysco’s ability to retain new counsel and because 

some law firms were reluctant to represent a client whose freedom of action to settle a case 
was limited.                                                              


3 The complete records of the arbitration proceeding do not seem to be publicly available. 
However, some of the key documents were appended as exhibits to Burford’s Petition to 
Confirm Arbitration Award that it filed in New York state court. When Sysco removed that 
action to federal court, the state court exhibits became part of the federal court record. 
Notice of Removal Ex. C, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489-PGG (S.D.N.Y. 
filed Mar. 23, 2023) (Dkt. No. 1). This Court has used the Southern District of New York’s 
docket as its source of information about the arbitration. The documents available to this 
Court through PACER are the redacted, public versions, not the sealed versions. 

4 The cases were stayed only as to Sysco. The balance of the cases went forward, to the 
extent possible, during the stay.                                         
    Peace of a sort was restored, but it was achieved in a manner that, as explained 
below, this Court will not countenance. On June 28, 2023, Sysco, now represented by new 

lawyers, assigned its interest in the In re: Pork and In re: Cattle MDLs and its interest in 
the In re Broiler Chicken case, to Carina. Carina was created by Burford in late June of 
2023, and its only reason for existence is to accept Sysco’s assigned claims and litigate 
them, one assumes in the way Burford wants the cases litigated.           
    Carina and Sysco filed a “Joint Motion” to substitute Carina for Sysco in both In re: 
Pork and In re: Cattle on June 29, 2023, one day after the assignment was executed. The 

motions did not comply with District of Minnesota Local Rule 7.1(b) in several respects, 
and the Meet and Confer Statement (and the In re: Pork Defendants’ responses to that 
Statement) reflected that Carina and Sysco had not met and conferred meaningfully and in 
good faith with Defendants before filing the motions. (See Dkt. Nos. 1940, 1941, 1945, 
1946, Case No. 18-cv-1776; Dkt. Nos. 277, 278, Case No. 22-md-3031.) As it turns out, 

Defendants object strongly to the substitution. If the substitution motions are granted, 
Sysco will no longer be a party to these cases, and Carina will step into its place.  
    The litigation burden caused by Burford’s efforts to maximize return on investment 
has been enormous. A state court in New York and two federal district courts, the Southern 
District of New York and the Northern District of Illinois, have been involved in litigation 

over enforcement of the arbitration award Burford obtained. This Court has ruled on Boies 
Schiller’s motion to withdraw as counsel for Sysco and then had to partially stay two of 
the largest cases on its docket for 60 days each while Sysco obtained new counsel. In this 
Order, this Court is dealing with two substitution motions that Burford and Sysco want to 
have granted as an endorsement of their transfer of the antitrust claims to Carina. A Rule 
25(c) motion to substitute Carina for Sysco is also pending in the In re Broiler Chicken 

litigation in the Northern District of Illinois. Joint Mot. Substitution, In re Broiler Chicken 
Antitrust Litig., No. 1:16-cv-08637 (N.D. Ill. filed June 28, 2023) (Dkt. No. 6630).  
IV.  ANALYSIS                                                             
    A.   Preliminary Matters                                             
    Before turning to the substance of the substitution motions, the Court must address 
two preliminary matters, standing and the rule of decision, because the Court’s resolution 

of those questions is essential context for the balance of the discussion.   
         1.   Standing                                                   
    At oral argument on these motions, Carina and Sysco intimated that they had 
presented the Court with a fait accompli because the transfer of Sysco’s interests in these 
cases deprived Sysco of Article III standing. (Mot. Hr’g Tr. at 86, Dkt. No. 2013, Case No. 

18-cv-1776; Dkt. No. 337, Case No. 22-md-3031.) They are mistaken, because Article III 
standing is evaluated at the time a lawsuit is filed and in neither the briefing nor the oral 
argument on this motion was there so much as a hint of an argument that Sysco lacked 
standing at the time it filed its complaint. Carina and Sysco’s Article III standing argument 
is unavailing.                                                            
              a.   Sysco  Has  Article  III  Standing  in  This  Case    
                   Notwithstanding  Its  Transfer  of  Its  Antitrust  Claim  to 
                   Carina, Because Article III Standing Is Evaluated When a 
                   Case Is Filed.                                        

    Because  the  judicial  power  of  the  United  States  is  limited  to  “Cases”  and 
“Controversies,” U.S. Const., Art. III, federal courts will hear only cases brought by 
plaintiffs who can establish standing. Under the well-known rule of Lujan v. Defenders of 
Wildlife, 

 (1992), to show Article III standing, “the plaintiff must have 
suffered an ‘injury in fact,’” must establish a causal relationship between the contested 
conduct and the alleged injury, and must show that a favorable decision from the court will 
redress its injury. 

 at 560–61.                                        
    For Article III standing to exist, “an actual controversy must exist not only at the 
time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, 
Inc., 

, 90–91 (2013) (cleaned up). No party involved in these motions claims 
Sysco did not have Article III standing at the time Sysco filed suit. Nor could they. Taking 
the allegations in Sysco’s Complaints as true for purposes of this discussion, Sysco alleges 
what is immediately recognizable to a reader as price-fixing conspiracies that Sysco claims 

caused it to pay more for pork and beef. Sysco’s injury can be redressed by the relief it is 
asking for—a monetary damages award and an injunction against further anticompetitive 
behavior.                                                                 
    Sysco did not lose Article III standing by transferring its interest in this lawsuit to 
Carina. See Cranpark, Inc. v. Rogers Grp., Inc., 

 (6th Cir. 2016) (stating 

that “one who sells his interest in a cause of action is not deprived of Article III standing”). 
Cranpark is not directly on point because the assignment occurred before the case was 
filed,  but  the  Court  finds  its  reasoning  persuasive  nonetheless.  With  respect  to  any 

argument  concerning  redressability,5  the  proper  focus  of  that  inquiry  is  “the  causal 
connection between the alleged injury and the judicial relief requested,” 

 (quoting Allen 
v. Wright, 

, 753 n.19 (1984)), not “that the plaintiff actually be entitled to the 
relief sought,” 

 (quoting 15 James W. Moore et al., Moore’s Federal Practice § 101.42 
(3d ed. 2015)). “Stated differently, the question is not whether plaintiff is absolutely, 
personally entitled to possess the remedy for its injury, but whether the injury plaintiff 

suffered is redressable by the requested relief, regardless of who ultimately gets that relief.” 
NextEngine Inc. v. NextEngine, Inc., No. CV 19-00249-AB (MAAx), 

, at 
*5 (C.D. Cal. Jan. 15, 2021). Thus, Sysco continues to meet the redressability requirement, 
despite the assignment. See 

 (relying on Cranpark in finding that the plaintiff did not 
lose Article III standing by assigning rights mid-suit).                  

    The Court finds that Sysco had Article III standing in this case at the time it filed its 
complaint and still has Article III standing today.6                      


5 “An assignment has no bearing on the first two elements” of Article III standing. Fund 
Liquidation Holdings LLC v. Bank of Am. Corp., 

 (2d Cir. 2021). “After 
all, an assignment does not erase an injury – it is simply an exchange of legal entitlement 
about who can seek to rectify that injury in court.” 

 (citing Cranpark, 821 F.3d at 730–
31). Nor can an assignment sever a pre-existing causal link between that injury and the 
defendant. 

                                                            

6 The Cranpark court also noted the potential presence of a real party in interest argument. 
That concern is not present in this case, because such an argument applies only when a 
litigation claim is assigned before the filing of a complaint. In this case, of course, the 
assignments came mid-litigation.                                          
              b.   Carina  Has  Article  III  Standing  Only  Through  the 
                   Assignment from Sysco; Carina Does Not Have Standing  
                   as an Affiliate of a Litigation Funder.               

    Carina has Article III standing in this case only through the assignment to it of 
Sysco’s antitrust claims. Were Carina to try and bring this case on its own, as a special 
purpose vehicle of a litigation financer rather than as an assignee, Carina would not have 
standing. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 

 (2000), the Supreme Court held that while a qui tam relator had an interest in the 
outcome of a lawsuit—the relator’s financial share of any recovery—that type of interest 
was insufficient to confer standing. 

 at 772–73. The qui tam relator had standing only 
through the assignment to the relator, by operation of the False Claims Act, of the interest 
of the United States. The purely financial interest of a qui tam relator, as opposed to the 
relator’s assignment interest, was no more than that “of someone who has placed a wager 
upon the outcome.” 

. A wager on a lawsuit would not confer standing because 

any interest a wager yields is no more than a “byproduct of the suit itself,” indistinguishable 
from trying to “achieve standing to litigate a substantive issue by bringing suit for the cost 
of bringing suit.” 

 at 773 (quoting Steel Co. v. Citizens for a Better Env’t, 

 (1998)). “An interest unrelated to injury in fact is insufficient to give a plaintiff 
standing.” 

 at 772 (citing Valley Forge Christian Coll. v. Ams. United for Separation of 
Church & State, Inc., 

 (1982); Sierra Club v. Morton, 

, 734–
35 (1972)).7                                                              

    Carina has Article III standing through the assignment from Sysco. Despite this, as 
we will see, prudential considerations do not allow Carina to be substituted for Sysco in 
these cases.                                                              
         2.   Federal Law, Specifically Federal Rule of Civil Procedure 25(c), 
              Provides the Rule of Decision for the Motions to Substitute. 

    Because the parties disagree whether the Court should focus on the assignment or 
on the substitution, the parties also disagree over which body of law provides the rule of 
decision for these motions. The moving parties concentrate on the substitution and Federal 
Rule 25(c), while the opposing parties concentrate on the assignment, the legality of which 
they evaluate under state law. Because these motions ask the Court to allow Carina to be 
substituted for Sysco in a federal antitrust case, the Court decides the motions by analyzing 
the substitution, and so looks to federal law, not state law, for the rule of decision. 
    Defendants ask the Court to find the assignment of Sysco’s federal antitrust claims 
to Carina illegitimate because it violates the rule against champerty,8 then, in a second step, 


7 Vermont Agency was eventually decided against the relator, but not on standing grounds. 
The Supreme Court held that the term “person” in the False Claims Act did not include a 
state or one of its agencies. Vermont Agency, 

.            

8 Champerty was a form of medieval land tenancy that eventually gave its name to the vice 
of vexatiously stirring up other people to litigate. Together with barratry, champerty is a 
form  of  maintenance.  “Put  simply,  maintenance  is  helping  another  prosecute  a  suit; 
champerty is maintaining a suit in return for a financial interest in the outcome; and barratry 
is a continuing practice of maintenance or champerty.” In re Primus, 

 (1978). As explained below, the policy concerns behind the doctrine of champerty are 
still alive, even though most courts to consider the doctrine itself have found it to be 
to disallow the substitution of Carina for Sysco. There is no need for the first step, and 
therefore no need for reference to state contract law, because the Court need not decide the 

validity of the assignment of Sysco’s claims to Carina. The question of the assignment’s 
validity is analytically distinct from the question of whether the Court should exercise its 
discretion to allow the substitution under Rule 25(c).                    
    In these cases, federal subject-matter jurisdiction is premised on the existence of a 
federal question, namely whether Defendants conspired to fix prices in violation of Section 
One of the Sherman Act. Because a federal statute is involved, this Court will analyze the 

substitution under federal law. Only if the Court were to analyze the assignment would 
state law become relevant. In re Milk Prods. Antitrust Litig., 

, 435–36 (8th 
Cir. 1999) (describing the sale of an antitrust claim as a matter of contract law and stating 
that “we see little need for federal common law to govern this issue of contract law”). 
While another magistrate judge in this District, in Fischer Bros. Aviation, Inc. v. NWA, 

Inc.,  

  (D.  Minn.  Aug.  11,  1987)  first  analyzed  the  underlying 
assignment before permitting a Rule 25(c) substitution, too much should not be read into 
that holding. The full holding was that “[a]s a matter of federal law, assuming a valid 
assignment, an antitrust claim may be assigned.” 

 (emphasis added) All that Fischer 


archaic. See, e.g., Maslowski v. Prospect Funding Partners, LLC, 

, 241 
(Minn. 2020); Osprey, Inc. v. Cabana Ltd. Partnership, 

 (S.C. 2000) 
(“we abolish champerty as a defense”). For a thorough history of champerty, see Max 
Radin, Maintenance by Champerty, 

 (1935), although the undersigned 
hopes that this order can be understood without needing to read that “[f]requent reference 
is made to the ‘assache after the custom of Wales’ in which the compurgators numbered 
three hundred,” and its accompanying citation to Ellis’s treatise, Welsh Tribal Law (1926). 
Radin, at 48 n.1.                                                         
Bros. held was that federal law allows antitrust claims to be assigned. The validity of the 
assignment is a matter of state law. Fischer Bros., 117 F.R.D at 146 (applying Ohio and 

Minnesota state law to assess the validity of the antitrust claim’s assignment). 
    What is before the Court is whether to exercise its discretion and allow substitution 
under Federal Rule of Civil Procedure 25(c). That analysis is the central portion of this 
Order and is set forth below.                                             
    B.   The Proper Exercise of the Court’s Discretion Is to Find the Substitution 
         Contrary to Public Policy and Decline to Allow It.              

    “[I]t is difficult to conceive of any stipulation more against public policy than a 
contract  term  requiring  the  litigation  financier’s  permission  to  settle  the  underlying 
litigation.” Maslowski v. Prospect Funding Partners LLC, 

, 241 (Minn. 
2020) (quoting Huber v. Johnson, 

 (Minn. 1897), abrogated on other 
grounds by Maslowski). “Courts and attorneys should . . . be careful to ensure that litigation 
financiers do not attempt to control the course of the underlying litigation . . . .” 

 
    “[A] lawyer should counsel a client to refuse any funding agreement that allows a 
funder to take control of settlement, which would be seen as against public policy in every 

state, or withdraw from representation if the client persists in granting the funder control.” 
Anthony J. Sebok, The Rules of Professional Responsibility and Legal Finance: A Status 
Update, Cardozo Law Jacob Burns Inst. for Advanced Legal Studies, Faculty Research 
Paper No. 671, at 11 n.41 (2022), quoted in Expert Report of Professor Maya Steinitz at 
23 n.68, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. 

No.  21-4).  Professor  Sebok  is  ethics  advisor  to  Burford  Capital.  Burford  Capital, 
https://www.burfordcapital.com/about-us/our-team/anthony-sebok/  (last  visited  Feb.  8, 
2024).                                                                    

    As these quotations show, there is a strong public policy in favor of the parties to a 
lawsuit  controlling  the  litigation,  and  particularly  settlement,  giving  voice  to  the 
community’s sense that “[l]egal justice consists in the right determination by a judge of a 
controversy between two litigants.” Max Radin, Maintenance by Champerty, 

, 49 (1935).                                                       
    The  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. Burford wants the litigation to continue so it can realize two sorts of benefit. First, 
Burford apparently hopes to extract larger settlement payments from the parties with whom 
Sysco negotiated settlements or was in the process of negotiating settlements and thereby 
realize a larger return on its investment in this case. Second, as a dissenting member of the 

arbitration panel astutely pointed out, Burford is trying to prevent these settlements because 
the Sysco settlements, if they go through, will set benchmarks for other settlements with 
other defendants. Burford apparently hopes that if those benchmarks can be set at high 
enough levels, Burford will realize a financial gain on not just its financing contract with 
Sysco but with other, as-yet-undisclosed financing agreements that seem to be in place in 

these cases. See Dissent of John J. Kerr, Jr., Co-Arbitrator, Notice of Removal Ex. C at 
123, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed Mar. 23, 2023) (Dkt. 
No.  1-3)  (“[I]f  the  Proposed  Settlements  are too  low,  they  will  have  a  ripple effect 
decreasing future settlements in cases where Burford is a litigation funder.”) These private 
interests of Burford’s, however, cannot overcome the strong public policy in favor of 
settling lawsuits9 or the public policy in favor of allowing litigants to control their own 

cases. The public policy limiting the plaintiffs who can launch large, expensive federal 
antitrust cases, judicially expressed in the doctrine of antitrust standing, while not precisely 
on point, is also relevant to the Court’s exercise of its discretion under Rule 25(c).  
         1.   Public Policy Disfavors Allowing Carina to be Substituted for  
              Sysco.                                                     

    The Court finds that allowing the substitution would contravene the important 
public policy granting control of litigation to the parties who claim to have actually suffered 
injury and their counter-parties. Most important for this Order is the specific control that 
the parties should have over the decision to settle a lawsuit and on what terms. The Court 
further finds that while the medieval doctrine of “maintenance by champerty” relied upon 
by those parties opposing the substitution is no longer an automatic route to dismissal, the 
reasons behind the champerty doctrine are significant factors to the Court’s discretion. 
Sysco and Carina correctly point out that there is also a strong public policy in favor of 


9 Sysco points out in its motion papers that there have been “numerous assignments in this 
very matter and the related protein cases—including by Sysco itself.” (Sysco’s Reply at 6, 
Dkt. No. 1992, Case No. 18-cv-1776.) The assignments are collected at footnote 2 of 
Sysco’s Reply. The Court has reviewed the materials cited in this footnote, and notes that 
all  these  assignments  are  assignments  from  direct  purchasers  to  indirect  purchasers 
pursuant to Illinois v. Illinois Brick, 

 (1977). None of these assignments was 
to an entity that did not actually buy the product whose price is alleged to have been inflated 
by conduct that violated the antitrust laws; none of these assignments was to a litigation 
financer;  and  none  of  these  assignments  was  undertaken  with  the  specific  intent  of 
scuppering settlements. Most significantly, none of these assignments occurred mid-suit, 
nor did they require a Rule 25(c) motion for substitution. These significant differences 
mean the assignments collected at footnote 2 and the history of assignments in these cases  
have no persuasive value.                                                 
vigorous antitrust enforcement, but that policy, properly understood, only weakly supports 
substitution (if it supports it at all). On balance, the Court finds that public policy disfavors 

allowing substitution.                                                    
         2.   Substituting Carina for Sysco Would Contravene the Strong  
              Public Policy in Favor of Settling Lawsuits.               

    Sysco and Carina frankly admit that their motive to substitute Carina for Sysco is 
that Sysco was planning to settle these antitrust claims for lower amounts than Burford 
wanted. Put more starkly, a non-party has interfered with the decision of a party to settle 
that party’s claims, because of reasons specific to the non-party.        
    The Eighth Circuit and the District of Minnesota have frequently recognized that 
public policy favors settlement of lawsuits. Associated  Elec. Co-op, Inc. v. Mid-Am. 
Transp. Co., 

 (8th Cir. 1991) (recognizing a “public policy in favor of 
encouraging settlements”); Weems v. Tyson Foods, Inc., 

 (8th Cir. 2011) 
(holding that a district court clearly abused its discretion in admitting settlement evidence 
because doing so militated “against the public policy considerations which favor settlement 
negotiations”) (quoting Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 

 (2d Cir. 1989) (“explaining that a party’s letter offering to settle a contract dispute 
was inadmissible to prove compliance with the statute of frauds because . . . ‘admission of 
the documents . . . would . . . militate against the public policy considerations which favor 
settlement negotiations’”)); Red Wing Shoe Co., Inc. v. B-Jays USA, Inc., No. 02-cv-257 
(DWF/AJB), 

, at *3 (D. Minn. Apr. 19, 2002) (concluding that contacts 

with the forum state resulting from efforts to settle a case would not be considered 
“minimum substantial contacts” supporting the exercise of personal jurisdiction because 
doing so “would undermine the public policy in favor of settlement of disputes”) (following 

the holding of Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE) Ltd., 

, 524-
25 (8th Cir. 1996) (stating that “courts have hesitated to use unsuccessful settlement 
discussions  as  ‘contacts’  for  jurisdictional  purposes”  because  “[g]iving  jurisdictional 
significance to such activities may work against public policy by hindering the settlement 
of claims”)).                                                             
    The  District  of  Minnesota  has  held  specifically  that  overturning  a  negotiated 

settlement is antithetical to public policy. Smith v. Questar Capital Corp., No. 12-cv-02669 
(SRN/TNL), 

, at *12 (D. Minn. Apr. 30, 2015) (“There is a public policy 
which favors the settlement of disputes, and preserving the integrity of a negotiated 
settlement is important in promoting the private settlements of class action disputes”) 
(emphasis added).                                                         

    Sysco and Carina do not dispute the existence of this public policy. Instead, they try 
to avail themselves of the policy because, they point out, the assignment of claims from 
Sysco to Carina was part of the settlement of the dispute between Sysco and Burford. (Mot. 
Hr’g Tr. at 8.) Therefore, they say, the Court should uphold the assignment because doing 
so furthers the public policy in favor of settlement. (Id.)               

    The Court is unconvinced, because this argument tells only half, and not the most 
important half, of the effect of the assignment from Sysco to Carina. The argument that the 
Sysco-Carina assignment is pro-settlement falls apart when rewritten to include both halves 
of the Sysco-Burford settlement. The complete picture is that Burford and Sysco came to 
loggerheads when Burford attempted to prevent Sysco from settling litigation. Moreover, 
Sysco and Carina have forthrightly said that the assignment was intended to allow Carina 

to stymie settlements with Defendants. The Sysco-Burford settlement, put plainly, is a 
settlement that was meant to prevent other settlements. Consequently, the Court finds the 
Sysco-Burford settlement—even notwithstanding that it is a settlement—antithetical to the 
public policy in favor of settling litigation.                            
    The public policy in favor of settlement of lawsuits does not favor allowing the 
substitution of Carina for Sysco.                                         

         3.   The Rationale Behind the Doctrine of Antitrust Standing    
              Weighs Against Substitution.                               

    Both the general public policy favoring leaving litigation decisions in the hands of 
the litigants, and the special importance within that general policy of the specific decision 
whether to settle a case and, if so, on what terms, become particularly important in large, 
expensive antitrust cases like these. Federal courts recognize that antitrust litigation is 
expensive for the parties and burdensome for both the parties and the courts. For example, 
in the context of specificity of pleading, the Supreme Court has reminded lower courts not 
“to forget that proceeding to antitrust discovery can be expensive.” Bell Atl. Corp. v. 
Twombly, 

 (2007); see Inline Packaging, LLC v. Graphic Packaging 
Int’l, Inc., No. 15-cv-3183 (ADM/LIB), 

, at *5 (D. Minn. July 25, 2026) 
(citing  Twombly  as  standing  for  “a  need  to  cabin  the  trend  towards  expensive  and 
burdensome antitrust discovery”). The Seventh Circuit has also recognized the uniquely 

far-reaching nature of antitrust discovery. In re Text Messaging Antitrust Litig., 

, 625–26 (7th Cir. 2010) (“When a district court by misapplying the Twombly standard 
allows a complex case of extremely dubious merit to proceed, it bids fair to immerse the 

parties  in  the  discovery  swamp  .  .  .  and  by  doing  so  create  irrevocable  as  well  as 
unjustifiable harm to the defendant . . . .”). Courts have responded to this burden and 
expense by limiting antitrust litigation in several ways, including by creating a prudential 
doctrine,  “antitrust  standing,”  that  limits  the  pool  of  potential  antitrust  plaintiffs. 
“Constitutional and prudential standing are about, respectively, the constitutional power of 
a federal court to resolve a dispute and the wisdom of so doing.” United States v. The 

Cameron-Ehlen Grp., Inc., No. 13-cv-3003 (WMW/DTS), 

, at *3 (D. 
Minn. Aug. 8, 2020) (quoting Miller v. Redwood Toxicology Lab., Inc., 

 
(8th Cir. 2012)) (internal quotation marks omitted).                      
    The question of antitrust standing is “whether the plaintiff, even if injured, is a 
proper party to bring the action.” Midwest Commc’ns v. Minn. Twins, Inc., 

 (8th Cir. 1985). Antitrust standing is analyzed only after Article III standing has been 
found,  and  differs  from  Article  III  standing  in  being  a  court-made  doctrine,  not  a 
constitutional limitation on the power of federal courts.                 
    To demonstrate antitrust standing, a plaintiff must show more than the requirements 
of Article III standing. 

 (“[A]ntitrust standing requirements go beyond injury in fact.”). 

To show antitrust standing, a plaintiff must show not just injury but antitrust injury, which 
is “a loss that Congress intended to prevent with the antitrust laws and that flows from the 
unlawfulness of the defendant’s acts.” Lovett v. Gen. Motors Corp., 

 (8th 
Cir. 1992) (noting that cases “routinely deny[] antitrust standing to a corporation’s sole 
shareholders, officers, employees, lessors, guarantors, and creditors”) (emphasis added). 

     Six factors inform the antitrust standing analysis:                  
     (1) the causal connection between the alleged antitrust violation and the harm 
     to the plaintiff; (2) improper motive; (3) whether the injury was of a type that 
     Congress sought to redress with the antitrust laws; (4) the directness between 
     the injury and the market restraint; (5) the speculative nature of the damages; 
     and (6) the risk of duplicate recoveries or complex damage apportionment.  

 (quoting McDonald v. Johnson & Johnson, 

 (8th Cir. 1983)) 
(cleaned up). While some sort of prudential standing limits apply in many types of federal 
cases, those limits are quite rigorously enforced in antitrust cases. Insulate SB, Inc. v. 
Advanced Finishing Sys., Inc., 

 (8th Cir. 2015) (quoting NicSand, Inc. v. 
3M Co., 

 (6th Cir. 2007) (en banc) (“[A]ntitrust standing [is] more 
rigorous than Article III standing,” and “courts ‘must[ ] reject claims under [Rule] 12(b)(6) 
when antitrust standing is missing.’”)). Federal courts are aggressive about weeding out 
antitrust cases for lack of antitrust standing for numerous reasons, including the size and 
complexity of antitrust litigation, and the existence of treble damages as a remedy in 
antitrust cases. Blue Shield v. McCready, 

, 476–77 (1982) (“An antitrust 
violation may be expected to cause ripples of harm to flow through the Nation's economy; 
but . . . [i]t is reasonable to assume that Congress did not intend to allow every person 
tangentially affected by an antitrust violation to maintain an action to recover threefold 
damages for the injury to his business or property.”).                    
     Most courts that justify the existence of the antitrust standing doctrine do so on the 
grounds that only plaintiffs whose suit vindicates an interest protected by the antitrust laws, 
such as harm to competition, should bring suit. Carina, an “affiliate” of Burford created by 
Burford, sues to maximize its return on investment, which is not an interest Congress 

protected in the Sherman Act, the Clayton Act, or any other antitrust statute. Absent 
assignment, Carina’s suit would be dismissed for failure to establish antitrust standing.  
    While protecting litigants and the courts from the expense of antitrust litigation is 
implicit in the antitrust standing doctrine, at least one court has made that underpinning of 
the antitrust standing doctrine explicit. The Fifth Circuit in Pan-Islamic Trade Corp. v. 
Exxon Corp., 

, 546–47 (5th Cir. 1980), held that potential plaintiff Pan-Islamic 

did not have antitrust standing. While Pan-Islamic’s holding on antitrust standing was 
abrogated on other grounds by Associated General Contractors of California, Inc. v. 
California State Council of Carpenters, 

 (1983), the Fifth Circuit’s 
approving observation that “[t]he trial court also concluded that the defendants would be 
subjected to hardship and prejudice if the filing of the amended complaint were allowed 

and if Pan-Islamic were permitted to pursue massive discovery into every phase of the 
defendants’ worldwide oil operations,” 

, was left intact by the Supreme Court.   
    Carina will object that antitrust standing, like Article III standing, can be obtained 
via an assignment, see, e.g., Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 

, 430–32 (3d Cir. 1993), and that is correct, but the rationale behind the 

doctrine—that antitrust cases and their attendant burdens should be launched only by 
plaintiffs who have suffered antitrust injury—counsels against this Court exercising its 
discretion to allow a special purpose vehicle created by a litigation funder whose Article 
III and antitrust standing comes only from assignment—Carina—to be substituted for a 
party who had both types of standing ab initio—Sysco.                     

         4.   Carina and Sysco Cite No Authority for the Proposition that a  
              Litigation Funder Should be Substituted as a Party         
              under Rule 25(c).                                          

    In support of substitution, Sysco and Carina lean heavily on the public policy 
favoring  energetic  antitrust  enforcement.  It  is  beyond  doubt  that  vigorous  antitrust 
enforcement is the public policy of the United States. “[T]he purposes of the antitrust laws 
are best served by insuring that the private action will be an ever-present threat to deter 
anyone contemplating business behavior in violation of the antitrust laws.” Perma-Life 
Mufflers v. Int’l Parts Corp., 

 (1981), overruled on other grounds by 
Copperweld Corp. v. Indep. Tube Corp., 

 (1984).               
    However, a policy of strict enforcement is not the same as a policy that allows 
anyone at all to go to federal court to wage unrestricted warfare on alleged monopolists 
and price-fixers. Again, the doctrine of antitrust standing imposes court-created, prudential 
limits on private antitrust enforcement.                                  
    Sysco  and  Carina’s  protest  that  assignments  are  common  in  antitrust  cases, 
including this one, is unpersuasive, as the Court explains above at footnote 9. Based on the 
cases cited by the parties and the Court’s independent research, no court has ever before 

been asked to ratify a substitution under Rule 25(c) of a party with undoubted Article III 
and antitrust standing with a newly formed shell company created mid-suit for the sole 
purpose of litigating assigned claims on behalf of a litigation funder, which has no stake in 
the litigation other than maximizing its return on an investment it made in the outcome of 
the litigation. If such a case exists, neither the parties favoring substitution nor the parties 
opposed to substitution have directed the Court’s attention to it.        

    It may be objected that the cases the Court cites at the outset of this analysis section  
and their dire remarks about the expense and burden of antitrust discovery are not cases 
dealing with a substitution motion under Rule 25(c) and that the doctrine of antitrust 
standing was developed to make sure a plaintiff has suffered the type of injury the antitrust 
laws are meant to address, not to guard parties and courts against the expense and burden 
of antitrust discovery. Both criticisms have a point, up to a point, but both also miss the 

point. The fact is that both Twombly’s requirement that pleadings allege a “fair probability” 
and the doctrine of antitrust standing have their roots in a recognition that antitrust cases 
are uniquely large and uniquely burdensome, and therefore plaintiffs in such cases should 
be limited to those who can allege a “fair probability” of the specific type of injury 
denominated “antitrust injury.” Carina cannot do that.                    

    As to finding cases that combine the recognition of the uniqueness of antitrust law 
with an abuse-of-discretion analysis of a Rule 25(c) substitution motion, no party or 
nonparty has cited a case in which a court either allowed or disallowed a litigation funder 
to take control of litigation in order to maximize settlement value. The briefs for and against 
substitution at times read like a duel of maxims: Carina and Sysco announce that “nothing 

in Rule 25 entitles Defendants to litigate against their preferred plaintiff” (Carina’s Reply 
Mem. Supp. Joint Mot. Substitution at 2, Dkt. No. 1991, Case No. 18-cv-1777), which is 
countered with “Sysco’s assignment to Burford turns its litigation claim into an instrument 
of financial speculation for a litigation funder with no connection to the underlying claim” 
(Defs.’ Mem. Opp’n at 4, Dkt. No. 1971, Case No. 18-cv-1776.)             

    While  both  those  in  favor  of  substitution  and  those  opposed  to  it  have  cited 
numerous cases, nowhere among them is there a case that so much as approaches the facts 
of this case—an attempt by a litigation funder to step into the shoes of the party it was 
funding, once litigation was well underway and settlements purportedly negotiated, and 
conduct the litigation for itself, in search of a larger payoff. In all the cases cited, on both 
sides, there is some pre-existing nexus between the party accepting the assignment and the 

litigation. For example, Fischer Bros. Aviation, cited by both sides, involved an assignment 
by a corporation that was about to be sold of its antitrust claims to its four shareholders, a 
group that Magistrate Judge Symchych described in her order as having “a very real interest 
in the case as shareholders” who “cannot fairly be referred to as strangers to the events 
involved in this litigation.” 

. As Magistrate Judge Symchych noted, the 

shareholder/plaintiffs were not trying to base standing on “an investment gambit by a 
disinterested party trying to collect a windfall.” 

                    
    The Court takes the absence of Rule 25-specific precedent as evidence that what 
Sysco and Carina ask in this case is something that has not been asked of a court before. 
Of course, that this might be the first time a litigation funder has asked for what Burford is 

asking for here is not a reason, standing alone, to decline to grant the substitution. But in 
combination with the other reasons not to allow the substitution that are set out in this 
Order, the extraordinary nature of Sysco and Carina’s request—the fact that no other 
litigation funder has apparently ever before asked to be substituted for its client under Rule 
25(c)—leads the Court to be particularly chary of granting the substitution, as the Court 
must consider that allowing this substitution will lead to other such requests being made, 

with this Order adduced as support, in scenarios far removed from the one in this case – 
perhaps frequent (monthly or weekly) assignments and reassignments, presenting courts 
with significant challenges in addressing numerous mid-suit motions for substitution.  
V.   CONCLUSION                                                           
    The parties have briefed and argued, exceptionally well, issues of governing law, 
the state law of contracts, the history of the champerty doctrine, and whether the Court 

ought to order at least some discovery into Sysco’s assignment of its claims to Carina. In 
the end, though, these issues are peripheral. The central question is whether this Court will 
allow a mid-litigation Rule 25(c) substitution that will let a litigation funder be substituted 
for its client in order to try and negotiate larger settlements. The answer to that central 
question is no.                                                           

    This  Court does  not  doubt  that  antitrust  claims  are  freely  assignable  and  that 
aggressive antitrust enforcement is an important public policy. But the substitution sought 
here is different from any other case to which the Court’s attention has been directed by 
the parties, because this substitution would have a litigation funder, in order to prevent 
settlement of litigation, step into the shoes of the party to whom it was providing financing, 

after litigation was well underway. Therefore, the Court will exercise its discretion and 
deny substitution pursuant to Rule 25(c). As expressly allowed by the Rule, “the action 
may be continued by the original party,” that is, Sysco.                  
    For the reasons set out above, IT IS HEREBY ORDERED that Sysco Corporation 
and Carina Ventures LLC’s Joint Motions for Substitution of Plaintiff (Dkt. No. 1940, Case 

No. 18-cv-1776; Dkt. No. 277, Case No. 22-md-3031) are DENIED.            
    IT IS FURTHER ORDERED that the Clerk’s Office shall correct the docket of 
Case No. 18-cv-1776 by designating Carina Ventures LLC as a “Movant” rather than a 
“Plaintiff.”                                                              

    Date:  February 9, 2024        s/  John F. Docherty                  
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge        

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                

IN RE: PORK ANTITRUST               Case No. 18-cv-1776 (JRT/JFD)        
LITIGATION                                                               

IN RE: CATTLE AND BEEF              Case No. 22-md-3031 (JRT/JFD)        
ANTITRUST LITIGATION                                                     

This Document Relates To:                   ORDER                        
Sysco Corp. v. Agri Stats, Inc., Case No.                                
21-cv-1374 (D. Minn.), and Sysco Corp.                                   
v. Cargill Inc., Case No. 22-cv-1750 (D.                                 
Minn.)                                                                   


    This Order decides Sysco Corporation and Carina Ventures LLC’s Joint Motions 
for Substitution of Plaintiff, which have been filed in the In re: Pork Antitrust Litigation, 
Case No. 18-cv-1776, at Docket No. 1940, and in the In re: Cattle and Beef Antitrust 
Litigation, Case No. 22-md-3031, at Docket No. 277. If any portions of this Order apply 
to only one case, the Court will indicate that at the appropriate part of the Order. The 
motions for substitution are denied.                                      
I.   INTRODUCTION                                                         
    When a party to a lawsuit transfers an “interest,” a federal court has the discretion 
to choose one of three options: allow the action to proceed as though there had been no 
transfer, join the interest’s new owner as a party along with the former owner, or dismiss 
the former owner and substitute the new owner as a party to the lawsuit. Fed. R. Civ. P. 
25(c). Sysco Corporation, a large food distributor and a direct-action plaintiff in these 
cases, financed its litigation expenses through Burford Capital, which holds itself out as 
“the world’s largest provider of commercial legal finance.” See burfordcapital.com/about-
us/ (last visited Feb. 8, 2024). The litigation finance contract between Sysco and Burford 

gave Burford the authority to approve or disapprove of settlements. After Sysco attempted 
to settle with some defendants in these cases on terms Burford did not favor, Burford 
refused to permit the settlements. Sysco then fired its legal counsel, Boies Schiller Flexner 
LLP, accusing them of disloyalty because Sysco’s lawyers were also (for purposes other 
than this lawsuit) Burford’s lawyers, and Sysco alleged that its lawyers provided legal 
advice to Burford that was contrary to Sysco’s interests during the dispute between Sysco 

and Burford over settlement authority. This Court allowed Sysco’s counsel to withdraw, 
but then had to partially stay both the In re: Pork MDL and the In re: Cattle MDL while 
Sysco hired new lawyers. The dispute between Sysco and Burford over settlement authority 
also generated an arbitration proceeding in New York, a New York state court action (later 
removed to the U.S. District Court for the Southern District of New York) to enforce the 

arbitration award, an action in the U.S. District Court for the Northern District of Illinois 
to stay the arbitration award, and a substitution motion in each of the Minnesota MDLs, 
plus a substitution motion in In re Broiler Chicken Antitrust Litigation, Case No. 16-cv-
08637 (N.D. Ill.).                                                        
    Sysco and Burford resolved their differences by engineering an assignment of 

Sysco’s antitrust claims in the two Minnesota cases and the Illinois case to a “special 
purpose vehicle” established by Burford. This special purpose vehicle is a limited liability 
company named Carina Ventures LLC, which was formed in June of 2023 and apparently 
has no assets except its ownership of Sysco’s federal antitrust claims in these three lawsuits. 
Sysco’s discharged former counsel, Boies Schiller, now represents Carina.  

    In the motions to substitute, Sysco and Carina ask the Court to substitute Carina for 
Sysco in these cases. The Court will not do so, because the transfer does violence to the 
Federal Rules of Civil Procedure’s meaning of transferring an “interest,” has caused serious 
practical problems in this litigation, and will allow a financer with no interest in the 
litigation beyond maximizing profit on its investment to override decisions made by the 
party that actually brought suit.1 The Court exercises its discretion by choosing the first 

option under Rule 25(c)—allowing this case to proceed by the original party. The two 
substitution motions are therefore denied.                                
II.  LEGAL STANDARD                                                       
    Federal Rule of Civil Procedure 25(c) governs transfers of interests after a lawsuit 
has begun and states, in relevant part: “If an interest is transferred, the action may be 

continued by or against the original party unless the court, on motion, orders the transferee 
to be substituted in the action or joined with the original party.” “Whether to grant a motion 
to substitute parties under Rule 25(c) is within the discretion of the district court.” Jackson 
Nat’l Life Ins. Co. v. Bohnert, No. 15-cv-3044 (WMW/DTS), 

 (D. Minn. 


1 During the first week of August 2023, the attorney who orally argued the substitution 
motion for Carina entered appearances in these matters identifying himself as “counsel of 
record for Plaintiff Carina Ventures LLC.” (See Dkt. No. 1985, Case No. 18-cv-1776; Dkt. 
No. 309, Case No. 22-md-3031) (emphasis added). Carina also appeared on the docket of 
the In re: Pork MDL as a “Plaintiff.” Carina is not a plaintiff in these cases, having 
appeared only to brief and argue the substitution motions. The Court directs the Clerk of 
Court to correct the docket of the In re: Pork MDL by assigning Carina the status of 
“movant.”                                                                 
June 10, 2020) (citing Froning’s, Inc. v. Johnston Feed Serv., Inc., 

, 110 n.4 
(8th Cir. 1978)). “The decision whether to substitute parties lies within the discretion of 

the trial judge and he may refuse to substitute parties in an action even if one of the parties 
so moves.” Froning’s, Inc., 

 n.4; see Panther Pumps & Equip. Co. v. 
Hydrocraft, Inc., 

 (7th Cir. 1977) (“The very nature of Rule 25(c) vests a 
great deal of discretion in the hands of the court. It is not mandatory that a substitution be 
made in every case of a transfer of interest.”).                          
    “The most significant feature of Rule 25(c) is that it does not require that anything 

be done after an interest has been transferred. The action may be continued by or against 
the original party, and the judgment will be binding on the successor in interest even though 
the successor is not named.” 7C Charles A. Wright et al., Federal Practice & Procedure 
§ 1958 (3d ed). “Since the matter is discretionary, the court . . . may refuse substitution if 
this seems the wisest course.” Id.                                        

III.  FACTUAL AND PROCEDURAL CONTEXT                                      
    Although Carina and Sysco argue that the factual and procedural background of 
Sysco’s lawsuits and  Sysco’s dispute with  Burford are irrelevant, the Court strongly 
disagrees. This context is quite relevant to the Court’s exercise of discretion under Rule 
25(c).                                                                    

    A.   Background of Sysco’s Lawsuits                                  
         1.   In re: Pork                                                
    In  March  of  2021,  Sysco  filed  suit  in  the  Southern  District  of  Texas  against 
Defendants Agri Stats, Inc.; Clemens Food Group, LLC; Clemens Family Corporation; 
Hormel Foods Corporation; JBS USA Food Company; Seaboard Foods, LLC; Smithfield 
Foods, Inc.; Triumph Foods, LLC; Tyson Foods, Inc.; Tyson Prepared Foods, Inc., and 

Tyson Fresh Meats, Inc. See Complaint, Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374 
(D. Minn. filed Mar. 8, 2021) (Dkt. No. 1). Sysco’s Complaint alleged a conspiracy among 
all the Defendants “to fix, raise, maintain, and stabilize the price of pork” in violation of 
Section One of the Sherman Act. Id. ¶¶ 4, 228. Sysco sought treble monetary damages 
under Section Four of the Clayton Act, id. ¶¶ 11, 239, and an injunction against further 
anticompetitive behavior under Section 16 of the Clayton Act, id. ¶¶ 11, 240.  

    On March 22, 2021, Sysco moved to transfer the action to the District of Minnesota 
for coordination with this MDL. Notice of Motion for Transfer filed with the J.P.M.L., 
Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374 (D. Minn. filed Mar. 22, 2021) (Dkt. No. 
18). The J.P.M.L. transferred the case, and it was consolidated into the MDL on November 
14, 2021. Sysco Corp. v. Agri Stats, Inc., No. 21-cv-1374, slip op. at 11 (D. Minn. filed 

Mar. 22, 2021) (Dkt. No. 34). The operative Complaint is a consolidated complaint filed 
by the direct action plaintiffs, including Sysco, in the In re: Pork MDL at Docket No. 1659. 
         2.   In re: Cattle                                              
    In  June  of  2022,  Sysco  filed  suit  in  the  Southern  District  of  Texas  against 
Defendants Cargill, Inc.; Cargill Meat Solutions Corporation; JBS S.A; JBS USA Food 

Company; Swift Beef Company; JBS Packerland, Inc.; National Beef Packing Company; 
Tyson Foods, Inc.; and Tyson Fresh Meats, Inc. See Complaint, Sysco Corp. v. Cargill, 
Inc., No. 22-cv-1750 (D. Minn. filed June 24, 2022) (Dkt. No. 1). Sysco’s Complaint 
alleged a conspiracy among all the Defendants “to limit the supply, and fix the prices, of 
beef sold to Plaintiff in the U.S. wholesale market” in violation of Section One of the 
Sherman Act. Id. ¶¶ 2, 346. Sysco sought treble monetary damages under Section Four of 

the Clayton Act, id. ¶¶ 25, 357, and an injunction against further anticompetitive behavior 
under Section 16 of the Clayton Act, id. ¶¶ 25, 358–59. The case was transferred to the 
District of Minnesota on July 12, 2022, and consolidated into the In re: Cattle MDL on 
October 12, 2022. Sysco Corp. v. Cargill, Inc., No. 22-cv-1750, slip op. at 4 (D. Minn. Oct. 
12, 2022) (Dkt. No. 17). The operative Complaint is a consolidated complaint filed by the 
direct action plaintiffs, including Sysco, in the In re: Cattle MDL at Docket No. 132. 

    B.   Background of the Substitution Motions                          
    The Court first learned of the dispute that led to the substitution motions on March 
10, 2023, when Sysco filed “stipulations” for the withdrawal of its counsel, Boies Schiller, 
accompanied by motions asking for a limited stay to allow Sysco to find new counsel. (See 
Dkt. Nos. 1841, 1843, Case No. 18-cv-1776; Dkt. Nos. 162, 164, Case No. 22-md-3031.) 

The Court denied the stipulations because they did not comply with District of Minnesota 
Local Rule 83.7. (Dkt. No. 1872, Case No. 18-cv-1776; Dkt. No. 180, Case No. 22-md-
3031.) The Court eventually learned that the dispute between Sysco, Boies Schiller, and 
Burford had already been going on for some months.                        
    Starting in 2019, Sysco financed its litigation in these matters with approximately 

$140 million of litigation financing provided by Burford. (Carina’s Mem. Supp. Joint Mot. 
Substitution, Dkt. No. 1952, Case No. 18-cv-1776); Pet. Confirm Arbitration Award ¶ 8, 
Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed Mar. 23, 2023) (Dkt. No. 1-
1).2 Sysco is required, under Amendment No. 1 to the Second Amended and Restated 
Capital Provision Agreement between Burford and Sysco, to immediately email to Burford 

any settlement offers it receives “and shall not accept a settlement without the Capital 
Providers’ prior written consent, which shall not be unreasonably withheld.” Swiber Decl. 
Ex. B at 5, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) 
(Dkt. No. 21-2). Matters came to a head in 2022 when Sysco negotiated settlements with 
some defendants, and Burford, thinking the settlement amounts too low, withheld its 
approval. See Pet. Vacate Arbitration Award ¶¶ 16, 27–34, Glaz LLC v. Sysco Corp., No. 

1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. No. 21-3). More concerningly to Sysco, 
the law firm that represented Sysco in the Minnesota antitrust cases, Boies Schiller, also 
represented Burford on other matters. When Sysco heard allegations that Boies Schiller 
had allegedly played a role in counseling its client Burford to veto its other client Sysco’s 
antitrust settlements, Sysco fired Boies Schiller, and accompanied the firing with angry, 

public accusations of serious professional misconduct, even including disloyalty to a client. 
See Sysco’s Opp’n Pet. Confirm Arbitration Award at 6, Glaz LLC v. Sysco Corp., No. 
1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. No. 18) (Burford “induced [Boies 
Schiller] to violate its fiduciary duties to Sysco” and “sought to use the courts for a purpose 
other than the pursuit of justice.”).                                     



2 Citations to documents in the New York state court action or the arbitration proceedings 
are to the versions of those documents that were filed as exhibits to filings made in the 
federal action in the U.S. District Court for the Southern District of New York. See footnote 
3, infra.                                                                 
    In December of 2022, Burford applied for and was granted a temporary restraining 
order by an arbitration panel in New York, to prevent Sysco from finalizing the negotiated 

settlements. Three months later, in March of 2023, Sysco filed an action in U.S. District 
Court for the Northern District of Illinois to vacate the arbitration award. Sysco Corp. v. 
Glaz LLC, No. 1:23-cv-01451 (N.D. Ill.) Burford responded within a week by filing in New 
York state court a Petition to Confirm Arbitration Award, which Sysco removed to the U.S. 
District Court for the Southern District of New York, thereby commencing the Glaz LLC 
v. Sysco Corp. case.3                                                     

    There was yet more litigation over Burford’s efforts to bar Sysco from settling its 
claims. After discharging Boies Schiller, Sysco filed motions asking this Court for 60-day, 
partial stays of both these cases.4 (Dkt. No. 1843, Case No. 18-cv-1776; Dkt. No. 164, Case 
No. 22-md-3031.) Sysco argued that it needed this much time both because it claimed 
Burford was illicitly seeking to obstruct Sysco’s ability to retain new counsel and because 

some law firms were reluctant to represent a client whose freedom of action to settle a case 
was limited.                                                              


3 The complete records of the arbitration proceeding do not seem to be publicly available. 
However, some of the key documents were appended as exhibits to Burford’s Petition to 
Confirm Arbitration Award that it filed in New York state court. When Sysco removed that 
action to federal court, the state court exhibits became part of the federal court record. 
Notice of Removal Ex. C, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489-PGG (S.D.N.Y. 
filed Mar. 23, 2023) (Dkt. No. 1). This Court has used the Southern District of New York’s 
docket as its source of information about the arbitration. The documents available to this 
Court through PACER are the redacted, public versions, not the sealed versions. 

4 The cases were stayed only as to Sysco. The balance of the cases went forward, to the 
extent possible, during the stay.                                         
    Peace of a sort was restored, but it was achieved in a manner that, as explained 
below, this Court will not countenance. On June 28, 2023, Sysco, now represented by new 

lawyers, assigned its interest in the In re: Pork and In re: Cattle MDLs and its interest in 
the In re Broiler Chicken case, to Carina. Carina was created by Burford in late June of 
2023, and its only reason for existence is to accept Sysco’s assigned claims and litigate 
them, one assumes in the way Burford wants the cases litigated.           
    Carina and Sysco filed a “Joint Motion” to substitute Carina for Sysco in both In re: 
Pork and In re: Cattle on June 29, 2023, one day after the assignment was executed. The 

motions did not comply with District of Minnesota Local Rule 7.1(b) in several respects, 
and the Meet and Confer Statement (and the In re: Pork Defendants’ responses to that 
Statement) reflected that Carina and Sysco had not met and conferred meaningfully and in 
good faith with Defendants before filing the motions. (See Dkt. Nos. 1940, 1941, 1945, 
1946, Case No. 18-cv-1776; Dkt. Nos. 277, 278, Case No. 22-md-3031.) As it turns out, 

Defendants object strongly to the substitution. If the substitution motions are granted, 
Sysco will no longer be a party to these cases, and Carina will step into its place.  
    The litigation burden caused by Burford’s efforts to maximize return on investment 
has been enormous. A state court in New York and two federal district courts, the Southern 
District of New York and the Northern District of Illinois, have been involved in litigation 

over enforcement of the arbitration award Burford obtained. This Court has ruled on Boies 
Schiller’s motion to withdraw as counsel for Sysco and then had to partially stay two of 
the largest cases on its docket for 60 days each while Sysco obtained new counsel. In this 
Order, this Court is dealing with two substitution motions that Burford and Sysco want to 
have granted as an endorsement of their transfer of the antitrust claims to Carina. A Rule 
25(c) motion to substitute Carina for Sysco is also pending in the In re Broiler Chicken 

litigation in the Northern District of Illinois. Joint Mot. Substitution, In re Broiler Chicken 
Antitrust Litig., No. 1:16-cv-08637 (N.D. Ill. filed June 28, 2023) (Dkt. No. 6630).  
IV.  ANALYSIS                                                             
    A.   Preliminary Matters                                             
    Before turning to the substance of the substitution motions, the Court must address 
two preliminary matters, standing and the rule of decision, because the Court’s resolution 

of those questions is essential context for the balance of the discussion.   
         1.   Standing                                                   
    At oral argument on these motions, Carina and Sysco intimated that they had 
presented the Court with a fait accompli because the transfer of Sysco’s interests in these 
cases deprived Sysco of Article III standing. (Mot. Hr’g Tr. at 86, Dkt. No. 2013, Case No. 

18-cv-1776; Dkt. No. 337, Case No. 22-md-3031.) They are mistaken, because Article III 
standing is evaluated at the time a lawsuit is filed and in neither the briefing nor the oral 
argument on this motion was there so much as a hint of an argument that Sysco lacked 
standing at the time it filed its complaint. Carina and Sysco’s Article III standing argument 
is unavailing.                                                            
              a.   Sysco  Has  Article  III  Standing  in  This  Case    
                   Notwithstanding  Its  Transfer  of  Its  Antitrust  Claim  to 
                   Carina, Because Article III Standing Is Evaluated When a 
                   Case Is Filed.                                        

    Because  the  judicial  power  of  the  United  States  is  limited  to  “Cases”  and 
“Controversies,” U.S. Const., Art. III, federal courts will hear only cases brought by 
plaintiffs who can establish standing. Under the well-known rule of Lujan v. Defenders of 
Wildlife, 

 (1992), to show Article III standing, “the plaintiff must have 
suffered an ‘injury in fact,’” must establish a causal relationship between the contested 
conduct and the alleged injury, and must show that a favorable decision from the court will 
redress its injury. 

 at 560–61.                                        
    For Article III standing to exist, “an actual controversy must exist not only at the 
time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, 
Inc., 

, 90–91 (2013) (cleaned up). No party involved in these motions claims 
Sysco did not have Article III standing at the time Sysco filed suit. Nor could they. Taking 
the allegations in Sysco’s Complaints as true for purposes of this discussion, Sysco alleges 
what is immediately recognizable to a reader as price-fixing conspiracies that Sysco claims 

caused it to pay more for pork and beef. Sysco’s injury can be redressed by the relief it is 
asking for—a monetary damages award and an injunction against further anticompetitive 
behavior.                                                                 
    Sysco did not lose Article III standing by transferring its interest in this lawsuit to 
Carina. See Cranpark, Inc. v. Rogers Grp., Inc., 

 (6th Cir. 2016) (stating 

that “one who sells his interest in a cause of action is not deprived of Article III standing”). 
Cranpark is not directly on point because the assignment occurred before the case was 
filed,  but  the  Court  finds  its  reasoning  persuasive  nonetheless.  With  respect  to  any 

argument  concerning  redressability,5  the  proper  focus  of  that  inquiry  is  “the  causal 
connection between the alleged injury and the judicial relief requested,” 

 (quoting Allen 
v. Wright, 

, 753 n.19 (1984)), not “that the plaintiff actually be entitled to the 
relief sought,” 

 (quoting 15 James W. Moore et al., Moore’s Federal Practice § 101.42 
(3d ed. 2015)). “Stated differently, the question is not whether plaintiff is absolutely, 
personally entitled to possess the remedy for its injury, but whether the injury plaintiff 

suffered is redressable by the requested relief, regardless of who ultimately gets that relief.” 
NextEngine Inc. v. NextEngine, Inc., No. CV 19-00249-AB (MAAx), 

, at 
*5 (C.D. Cal. Jan. 15, 2021). Thus, Sysco continues to meet the redressability requirement, 
despite the assignment. See 

 (relying on Cranpark in finding that the plaintiff did not 
lose Article III standing by assigning rights mid-suit).                  

    The Court finds that Sysco had Article III standing in this case at the time it filed its 
complaint and still has Article III standing today.6                      


5 “An assignment has no bearing on the first two elements” of Article III standing. Fund 
Liquidation Holdings LLC v. Bank of Am. Corp., 

 (2d Cir. 2021). “After 
all, an assignment does not erase an injury – it is simply an exchange of legal entitlement 
about who can seek to rectify that injury in court.” 

 (citing Cranpark, 821 F.3d at 730–
31). Nor can an assignment sever a pre-existing causal link between that injury and the 
defendant. 

                                                            

6 The Cranpark court also noted the potential presence of a real party in interest argument. 
That concern is not present in this case, because such an argument applies only when a 
litigation claim is assigned before the filing of a complaint. In this case, of course, the 
assignments came mid-litigation.                                          
              b.   Carina  Has  Article  III  Standing  Only  Through  the 
                   Assignment from Sysco; Carina Does Not Have Standing  
                   as an Affiliate of a Litigation Funder.               

    Carina has Article III standing in this case only through the assignment to it of 
Sysco’s antitrust claims. Were Carina to try and bring this case on its own, as a special 
purpose vehicle of a litigation financer rather than as an assignee, Carina would not have 
standing. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 

 (2000), the Supreme Court held that while a qui tam relator had an interest in the 
outcome of a lawsuit—the relator’s financial share of any recovery—that type of interest 
was insufficient to confer standing. 

 at 772–73. The qui tam relator had standing only 
through the assignment to the relator, by operation of the False Claims Act, of the interest 
of the United States. The purely financial interest of a qui tam relator, as opposed to the 
relator’s assignment interest, was no more than that “of someone who has placed a wager 
upon the outcome.” 

. A wager on a lawsuit would not confer standing because 

any interest a wager yields is no more than a “byproduct of the suit itself,” indistinguishable 
from trying to “achieve standing to litigate a substantive issue by bringing suit for the cost 
of bringing suit.” 

 at 773 (quoting Steel Co. v. Citizens for a Better Env’t, 

 (1998)). “An interest unrelated to injury in fact is insufficient to give a plaintiff 
standing.” 

 at 772 (citing Valley Forge Christian Coll. v. Ams. United for Separation of 
Church & State, Inc., 

 (1982); Sierra Club v. Morton, 

, 734–
35 (1972)).7                                                              

    Carina has Article III standing through the assignment from Sysco. Despite this, as 
we will see, prudential considerations do not allow Carina to be substituted for Sysco in 
these cases.                                                              
         2.   Federal Law, Specifically Federal Rule of Civil Procedure 25(c), 
              Provides the Rule of Decision for the Motions to Substitute. 

    Because the parties disagree whether the Court should focus on the assignment or 
on the substitution, the parties also disagree over which body of law provides the rule of 
decision for these motions. The moving parties concentrate on the substitution and Federal 
Rule 25(c), while the opposing parties concentrate on the assignment, the legality of which 
they evaluate under state law. Because these motions ask the Court to allow Carina to be 
substituted for Sysco in a federal antitrust case, the Court decides the motions by analyzing 
the substitution, and so looks to federal law, not state law, for the rule of decision. 
    Defendants ask the Court to find the assignment of Sysco’s federal antitrust claims 
to Carina illegitimate because it violates the rule against champerty,8 then, in a second step, 


7 Vermont Agency was eventually decided against the relator, but not on standing grounds. 
The Supreme Court held that the term “person” in the False Claims Act did not include a 
state or one of its agencies. Vermont Agency, 

.            

8 Champerty was a form of medieval land tenancy that eventually gave its name to the vice 
of vexatiously stirring up other people to litigate. Together with barratry, champerty is a 
form  of  maintenance.  “Put  simply,  maintenance  is  helping  another  prosecute  a  suit; 
champerty is maintaining a suit in return for a financial interest in the outcome; and barratry 
is a continuing practice of maintenance or champerty.” In re Primus, 

 (1978). As explained below, the policy concerns behind the doctrine of champerty are 
still alive, even though most courts to consider the doctrine itself have found it to be 
to disallow the substitution of Carina for Sysco. There is no need for the first step, and 
therefore no need for reference to state contract law, because the Court need not decide the 

validity of the assignment of Sysco’s claims to Carina. The question of the assignment’s 
validity is analytically distinct from the question of whether the Court should exercise its 
discretion to allow the substitution under Rule 25(c).                    
    In these cases, federal subject-matter jurisdiction is premised on the existence of a 
federal question, namely whether Defendants conspired to fix prices in violation of Section 
One of the Sherman Act. Because a federal statute is involved, this Court will analyze the 

substitution under federal law. Only if the Court were to analyze the assignment would 
state law become relevant. In re Milk Prods. Antitrust Litig., 

, 435–36 (8th 
Cir. 1999) (describing the sale of an antitrust claim as a matter of contract law and stating 
that “we see little need for federal common law to govern this issue of contract law”). 
While another magistrate judge in this District, in Fischer Bros. Aviation, Inc. v. NWA, 

Inc.,  

  (D.  Minn.  Aug.  11,  1987)  first  analyzed  the  underlying 
assignment before permitting a Rule 25(c) substitution, too much should not be read into 
that holding. The full holding was that “[a]s a matter of federal law, assuming a valid 
assignment, an antitrust claim may be assigned.” 

 (emphasis added) All that Fischer 


archaic. See, e.g., Maslowski v. Prospect Funding Partners, LLC, 

, 241 
(Minn. 2020); Osprey, Inc. v. Cabana Ltd. Partnership, 

 (S.C. 2000) 
(“we abolish champerty as a defense”). For a thorough history of champerty, see Max 
Radin, Maintenance by Champerty, 

 (1935), although the undersigned 
hopes that this order can be understood without needing to read that “[f]requent reference 
is made to the ‘assache after the custom of Wales’ in which the compurgators numbered 
three hundred,” and its accompanying citation to Ellis’s treatise, Welsh Tribal Law (1926). 
Radin, at 48 n.1.                                                         
Bros. held was that federal law allows antitrust claims to be assigned. The validity of the 
assignment is a matter of state law. Fischer Bros., 117 F.R.D at 146 (applying Ohio and 

Minnesota state law to assess the validity of the antitrust claim’s assignment). 
    What is before the Court is whether to exercise its discretion and allow substitution 
under Federal Rule of Civil Procedure 25(c). That analysis is the central portion of this 
Order and is set forth below.                                             
    B.   The Proper Exercise of the Court’s Discretion Is to Find the Substitution 
         Contrary to Public Policy and Decline to Allow It.              

    “[I]t is difficult to conceive of any stipulation more against public policy than a 
contract  term  requiring  the  litigation  financier’s  permission  to  settle  the  underlying 
litigation.” Maslowski v. Prospect Funding Partners LLC, 

, 241 (Minn. 
2020) (quoting Huber v. Johnson, 

 (Minn. 1897), abrogated on other 
grounds by Maslowski). “Courts and attorneys should . . . be careful to ensure that litigation 
financiers do not attempt to control the course of the underlying litigation . . . .” 

 
    “[A] lawyer should counsel a client to refuse any funding agreement that allows a 
funder to take control of settlement, which would be seen as against public policy in every 

state, or withdraw from representation if the client persists in granting the funder control.” 
Anthony J. Sebok, The Rules of Professional Responsibility and Legal Finance: A Status 
Update, Cardozo Law Jacob Burns Inst. for Advanced Legal Studies, Faculty Research 
Paper No. 671, at 11 n.41 (2022), quoted in Expert Report of Professor Maya Steinitz at 
23 n.68, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed May 3, 2023) (Dkt. 

No.  21-4).  Professor  Sebok  is  ethics  advisor  to  Burford  Capital.  Burford  Capital, 
https://www.burfordcapital.com/about-us/our-team/anthony-sebok/  (last  visited  Feb.  8, 
2024).                                                                    

    As these quotations show, there is a strong public policy in favor of the parties to a 
lawsuit  controlling  the  litigation,  and  particularly  settlement,  giving  voice  to  the 
community’s sense that “[l]egal justice consists in the right determination by a judge of a 
controversy between two litigants.” Max Radin, Maintenance by Champerty, 

, 49 (1935).                                                       
    The  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. Burford wants the litigation to continue so it can realize two sorts of benefit. First, 
Burford apparently hopes to extract larger settlement payments from the parties with whom 
Sysco negotiated settlements or was in the process of negotiating settlements and thereby 
realize a larger return on its investment in this case. Second, as a dissenting member of the 

arbitration panel astutely pointed out, Burford is trying to prevent these settlements because 
the Sysco settlements, if they go through, will set benchmarks for other settlements with 
other defendants. Burford apparently hopes that if those benchmarks can be set at high 
enough levels, Burford will realize a financial gain on not just its financing contract with 
Sysco but with other, as-yet-undisclosed financing agreements that seem to be in place in 

these cases. See Dissent of John J. Kerr, Jr., Co-Arbitrator, Notice of Removal Ex. C at 
123, Glaz LLC v. Sysco Corp., No. 1:23-cv-02489 (S.D.N.Y. filed Mar. 23, 2023) (Dkt. 
No.  1-3)  (“[I]f  the  Proposed  Settlements  are too  low,  they  will  have  a  ripple effect 
decreasing future settlements in cases where Burford is a litigation funder.”) These private 
interests of Burford’s, however, cannot overcome the strong public policy in favor of 
settling lawsuits9 or the public policy in favor of allowing litigants to control their own 

cases. The public policy limiting the plaintiffs who can launch large, expensive federal 
antitrust cases, judicially expressed in the doctrine of antitrust standing, while not precisely 
on point, is also relevant to the Court’s exercise of its discretion under Rule 25(c).  
         1.   Public Policy Disfavors Allowing Carina to be Substituted for  
              Sysco.                                                     

    The Court finds that allowing the substitution would contravene the important 
public policy granting control of litigation to the parties who claim to have actually suffered 
injury and their counter-parties. Most important for this Order is the specific control that 
the parties should have over the decision to settle a lawsuit and on what terms. The Court 
further finds that while the medieval doctrine of “maintenance by champerty” relied upon 
by those parties opposing the substitution is no longer an automatic route to dismissal, the 
reasons behind the champerty doctrine are significant factors to the Court’s discretion. 
Sysco and Carina correctly point out that there is also a strong public policy in favor of 


9 Sysco points out in its motion papers that there have been “numerous assignments in this 
very matter and the related protein cases—including by Sysco itself.” (Sysco’s Reply at 6, 
Dkt. No. 1992, Case No. 18-cv-1776.) The assignments are collected at footnote 2 of 
Sysco’s Reply. The Court has reviewed the materials cited in this footnote, and notes that 
all  these  assignments  are  assignments  from  direct  purchasers  to  indirect  purchasers 
pursuant to Illinois v. Illinois Brick, 

 (1977). None of these assignments was 
to an entity that did not actually buy the product whose price is alleged to have been inflated 
by conduct that violated the antitrust laws; none of these assignments was to a litigation 
financer;  and  none  of  these  assignments  was  undertaken  with  the  specific  intent  of 
scuppering settlements. Most significantly, none of these assignments occurred mid-suit, 
nor did they require a Rule 25(c) motion for substitution. These significant differences 
mean the assignments collected at footnote 2 and the history of assignments in these cases  
have no persuasive value.                                                 
vigorous antitrust enforcement, but that policy, properly understood, only weakly supports 
substitution (if it supports it at all). On balance, the Court finds that public policy disfavors 

allowing substitution.                                                    
         2.   Substituting Carina for Sysco Would Contravene the Strong  
              Public Policy in Favor of Settling Lawsuits.               

    Sysco and Carina frankly admit that their motive to substitute Carina for Sysco is 
that Sysco was planning to settle these antitrust claims for lower amounts than Burford 
wanted. Put more starkly, a non-party has interfered with the decision of a party to settle 
that party’s claims, because of reasons specific to the non-party.        
    The Eighth Circuit and the District of Minnesota have frequently recognized that 
public policy favors settlement of lawsuits. Associated  Elec. Co-op, Inc. v. Mid-Am. 
Transp. Co., 

 (8th Cir. 1991) (recognizing a “public policy in favor of 
encouraging settlements”); Weems v. Tyson Foods, Inc., 

 (8th Cir. 2011) 
(holding that a district court clearly abused its discretion in admitting settlement evidence 
because doing so militated “against the public policy considerations which favor settlement 
negotiations”) (quoting Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 

 (2d Cir. 1989) (“explaining that a party’s letter offering to settle a contract dispute 
was inadmissible to prove compliance with the statute of frauds because . . . ‘admission of 
the documents . . . would . . . militate against the public policy considerations which favor 
settlement negotiations’”)); Red Wing Shoe Co., Inc. v. B-Jays USA, Inc., No. 02-cv-257 
(DWF/AJB), 

, at *3 (D. Minn. Apr. 19, 2002) (concluding that contacts 

with the forum state resulting from efforts to settle a case would not be considered 
“minimum substantial contacts” supporting the exercise of personal jurisdiction because 
doing so “would undermine the public policy in favor of settlement of disputes”) (following 

the holding of Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE) Ltd., 

, 524-
25 (8th Cir. 1996) (stating that “courts have hesitated to use unsuccessful settlement 
discussions  as  ‘contacts’  for  jurisdictional  purposes”  because  “[g]iving  jurisdictional 
significance to such activities may work against public policy by hindering the settlement 
of claims”)).                                                             
    The  District  of  Minnesota  has  held  specifically  that  overturning  a  negotiated 

settlement is antithetical to public policy. Smith v. Questar Capital Corp., No. 12-cv-02669 
(SRN/TNL), 

, at *12 (D. Minn. Apr. 30, 2015) (“There is a public policy 
which favors the settlement of disputes, and preserving the integrity of a negotiated 
settlement is important in promoting the private settlements of class action disputes”) 
(emphasis added).                                                         

    Sysco and Carina do not dispute the existence of this public policy. Instead, they try 
to avail themselves of the policy because, they point out, the assignment of claims from 
Sysco to Carina was part of the settlement of the dispute between Sysco and Burford. (Mot. 
Hr’g Tr. at 8.) Therefore, they say, the Court should uphold the assignment because doing 
so furthers the public policy in favor of settlement. (Id.)               

    The Court is unconvinced, because this argument tells only half, and not the most 
important half, of the effect of the assignment from Sysco to Carina. The argument that the 
Sysco-Carina assignment is pro-settlement falls apart when rewritten to include both halves 
of the Sysco-Burford settlement. The complete picture is that Burford and Sysco came to 
loggerheads when Burford attempted to prevent Sysco from settling litigation. Moreover, 
Sysco and Carina have forthrightly said that the assignment was intended to allow Carina 

to stymie settlements with Defendants. The Sysco-Burford settlement, put plainly, is a 
settlement that was meant to prevent other settlements. Consequently, the Court finds the 
Sysco-Burford settlement—even notwithstanding that it is a settlement—antithetical to the 
public policy in favor of settling litigation.                            
    The public policy in favor of settlement of lawsuits does not favor allowing the 
substitution of Carina for Sysco.                                         

         3.   The Rationale Behind the Doctrine of Antitrust Standing    
              Weighs Against Substitution.                               

    Both the general public policy favoring leaving litigation decisions in the hands of 
the litigants, and the special importance within that general policy of the specific decision 
whether to settle a case and, if so, on what terms, become particularly important in large, 
expensive antitrust cases like these. Federal courts recognize that antitrust litigation is 
expensive for the parties and burdensome for both the parties and the courts. For example, 
in the context of specificity of pleading, the Supreme Court has reminded lower courts not 
“to forget that proceeding to antitrust discovery can be expensive.” Bell Atl. Corp. v. 
Twombly, 

 (2007); see Inline Packaging, LLC v. Graphic Packaging 
Int’l, Inc., No. 15-cv-3183 (ADM/LIB), 

, at *5 (D. Minn. July 25, 2026) 
(citing  Twombly  as  standing  for  “a  need  to  cabin  the  trend  towards  expensive  and 
burdensome antitrust discovery”). The Seventh Circuit has also recognized the uniquely 

far-reaching nature of antitrust discovery. In re Text Messaging Antitrust Litig., 

, 625–26 (7th Cir. 2010) (“When a district court by misapplying the Twombly standard 
allows a complex case of extremely dubious merit to proceed, it bids fair to immerse the 

parties  in  the  discovery  swamp  .  .  .  and  by  doing  so  create  irrevocable  as  well  as 
unjustifiable harm to the defendant . . . .”). Courts have responded to this burden and 
expense by limiting antitrust litigation in several ways, including by creating a prudential 
doctrine,  “antitrust  standing,”  that  limits  the  pool  of  potential  antitrust  plaintiffs. 
“Constitutional and prudential standing are about, respectively, the constitutional power of 
a federal court to resolve a dispute and the wisdom of so doing.” United States v. The 

Cameron-Ehlen Grp., Inc., No. 13-cv-3003 (WMW/DTS), 

, at *3 (D. 
Minn. Aug. 8, 2020) (quoting Miller v. Redwood Toxicology Lab., Inc., 

 
(8th Cir. 2012)) (internal quotation marks omitted).                      
    The question of antitrust standing is “whether the plaintiff, even if injured, is a 
proper party to bring the action.” Midwest Commc’ns v. Minn. Twins, Inc., 

 (8th Cir. 1985). Antitrust standing is analyzed only after Article III standing has been 
found,  and  differs  from  Article  III  standing  in  being  a  court-made  doctrine,  not  a 
constitutional limitation on the power of federal courts.                 
    To demonstrate antitrust standing, a plaintiff must show more than the requirements 
of Article III standing. 

 (“[A]ntitrust standing requirements go beyond injury in fact.”). 

To show antitrust standing, a plaintiff must show not just injury but antitrust injury, which 
is “a loss that Congress intended to prevent with the antitrust laws and that flows from the 
unlawfulness of the defendant’s acts.” Lovett v. Gen. Motors Corp., 

 (8th 
Cir. 1992) (noting that cases “routinely deny[] antitrust standing to a corporation’s sole 
shareholders, officers, employees, lessors, guarantors, and creditors”) (emphasis added). 

     Six factors inform the antitrust standing analysis:                  
     (1) the causal connection between the alleged antitrust violation and the harm 
     to the plaintiff; (2) improper motive; (3) whether the injury was of a type that 
     Congress sought to redress with the antitrust laws; (4) the directness between 
     the injury and the market restraint; (5) the speculative nature of the damages; 
     and (6) the risk of duplicate recoveries or complex damage apportionment.  

 (quoting McDonald v. Johnson & Johnson, 

 (8th Cir. 1983)) 
(cleaned up). While some sort of prudential standing limits apply in many types of federal 
cases, those limits are quite rigorously enforced in antitrust cases. Insulate SB, Inc. v. 
Advanced Finishing Sys., Inc., 

 (8th Cir. 2015) (quoting NicSand, Inc. v. 
3M Co., 

 (6th Cir. 2007) (en banc) (“[A]ntitrust standing [is] more 
rigorous than Article III standing,” and “courts ‘must[ ] reject claims under [Rule] 12(b)(6) 
when antitrust standing is missing.’”)). Federal courts are aggressive about weeding out 
antitrust cases for lack of antitrust standing for numerous reasons, including the size and 
complexity of antitrust litigation, and the existence of treble damages as a remedy in 
antitrust cases. Blue Shield v. McCready, 

, 476–77 (1982) (“An antitrust 
violation may be expected to cause ripples of harm to flow through the Nation's economy; 
but . . . [i]t is reasonable to assume that Congress did not intend to allow every person 
tangentially affected by an antitrust violation to maintain an action to recover threefold 
damages for the injury to his business or property.”).                    
     Most courts that justify the existence of the antitrust standing doctrine do so on the 
grounds that only plaintiffs whose suit vindicates an interest protected by the antitrust laws, 
such as harm to competition, should bring suit. Carina, an “affiliate” of Burford created by 
Burford, sues to maximize its return on investment, which is not an interest Congress 

protected in the Sherman Act, the Clayton Act, or any other antitrust statute. Absent 
assignment, Carina’s suit would be dismissed for failure to establish antitrust standing.  
    While protecting litigants and the courts from the expense of antitrust litigation is 
implicit in the antitrust standing doctrine, at least one court has made that underpinning of 
the antitrust standing doctrine explicit. The Fifth Circuit in Pan-Islamic Trade Corp. v. 
Exxon Corp., 

, 546–47 (5th Cir. 1980), held that potential plaintiff Pan-Islamic 

did not have antitrust standing. While Pan-Islamic’s holding on antitrust standing was 
abrogated on other grounds by Associated General Contractors of California, Inc. v. 
California State Council of Carpenters, 

 (1983), the Fifth Circuit’s 
approving observation that “[t]he trial court also concluded that the defendants would be 
subjected to hardship and prejudice if the filing of the amended complaint were allowed 

and if Pan-Islamic were permitted to pursue massive discovery into every phase of the 
defendants’ worldwide oil operations,” 

, was left intact by the Supreme Court.   
    Carina will object that antitrust standing, like Article III standing, can be obtained 
via an assignment, see, e.g., Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 

, 430–32 (3d Cir. 1993), and that is correct, but the rationale behind the 

doctrine—that antitrust cases and their attendant burdens should be launched only by 
plaintiffs who have suffered antitrust injury—counsels against this Court exercising its 
discretion to allow a special purpose vehicle created by a litigation funder whose Article 
III and antitrust standing comes only from assignment—Carina—to be substituted for a 
party who had both types of standing ab initio—Sysco.                     

         4.   Carina and Sysco Cite No Authority for the Proposition that a  
              Litigation Funder Should be Substituted as a Party         
              under Rule 25(c).                                          

    In support of substitution, Sysco and Carina lean heavily on the public policy 
favoring  energetic  antitrust  enforcement.  It  is  beyond  doubt  that  vigorous  antitrust 
enforcement is the public policy of the United States. “[T]he purposes of the antitrust laws 
are best served by insuring that the private action will be an ever-present threat to deter 
anyone contemplating business behavior in violation of the antitrust laws.” Perma-Life 
Mufflers v. Int’l Parts Corp., 

 (1981), overruled on other grounds by 
Copperweld Corp. v. Indep. Tube Corp., 

 (1984).               
    However, a policy of strict enforcement is not the same as a policy that allows 
anyone at all to go to federal court to wage unrestricted warfare on alleged monopolists 
and price-fixers. Again, the doctrine of antitrust standing imposes court-created, prudential 
limits on private antitrust enforcement.                                  
    Sysco  and  Carina’s  protest  that  assignments  are  common  in  antitrust  cases, 
including this one, is unpersuasive, as the Court explains above at footnote 9. Based on the 
cases cited by the parties and the Court’s independent research, no court has ever before 

been asked to ratify a substitution under Rule 25(c) of a party with undoubted Article III 
and antitrust standing with a newly formed shell company created mid-suit for the sole 
purpose of litigating assigned claims on behalf of a litigation funder, which has no stake in 
the litigation other than maximizing its return on an investment it made in the outcome of 
the litigation. If such a case exists, neither the parties favoring substitution nor the parties 
opposed to substitution have directed the Court’s attention to it.        

    It may be objected that the cases the Court cites at the outset of this analysis section  
and their dire remarks about the expense and burden of antitrust discovery are not cases 
dealing with a substitution motion under Rule 25(c) and that the doctrine of antitrust 
standing was developed to make sure a plaintiff has suffered the type of injury the antitrust 
laws are meant to address, not to guard parties and courts against the expense and burden 
of antitrust discovery. Both criticisms have a point, up to a point, but both also miss the 

point. The fact is that both Twombly’s requirement that pleadings allege a “fair probability” 
and the doctrine of antitrust standing have their roots in a recognition that antitrust cases 
are uniquely large and uniquely burdensome, and therefore plaintiffs in such cases should 
be limited to those who can allege a “fair probability” of the specific type of injury 
denominated “antitrust injury.” Carina cannot do that.                    

    As to finding cases that combine the recognition of the uniqueness of antitrust law 
with an abuse-of-discretion analysis of a Rule 25(c) substitution motion, no party or 
nonparty has cited a case in which a court either allowed or disallowed a litigation funder 
to take control of litigation in order to maximize settlement value. The briefs for and against 
substitution at times read like a duel of maxims: Carina and Sysco announce that “nothing 

in Rule 25 entitles Defendants to litigate against their preferred plaintiff” (Carina’s Reply 
Mem. Supp. Joint Mot. Substitution at 2, Dkt. No. 1991, Case No. 18-cv-1777), which is 
countered with “Sysco’s assignment to Burford turns its litigation claim into an instrument 
of financial speculation for a litigation funder with no connection to the underlying claim” 
(Defs.’ Mem. Opp’n at 4, Dkt. No. 1971, Case No. 18-cv-1776.)             

    While  both  those  in  favor  of  substitution  and  those  opposed  to  it  have  cited 
numerous cases, nowhere among them is there a case that so much as approaches the facts 
of this case—an attempt by a litigation funder to step into the shoes of the party it was 
funding, once litigation was well underway and settlements purportedly negotiated, and 
conduct the litigation for itself, in search of a larger payoff. In all the cases cited, on both 
sides, there is some pre-existing nexus between the party accepting the assignment and the 

litigation. For example, Fischer Bros. Aviation, cited by both sides, involved an assignment 
by a corporation that was about to be sold of its antitrust claims to its four shareholders, a 
group that Magistrate Judge Symchych described in her order as having “a very real interest 
in the case as shareholders” who “cannot fairly be referred to as strangers to the events 
involved in this litigation.” 

. As Magistrate Judge Symchych noted, the 

shareholder/plaintiffs were not trying to base standing on “an investment gambit by a 
disinterested party trying to collect a windfall.” 

                    
    The Court takes the absence of Rule 25-specific precedent as evidence that what 
Sysco and Carina ask in this case is something that has not been asked of a court before. 
Of course, that this might be the first time a litigation funder has asked for what Burford is 

asking for here is not a reason, standing alone, to decline to grant the substitution. But in 
combination with the other reasons not to allow the substitution that are set out in this 
Order, the extraordinary nature of Sysco and Carina’s request—the fact that no other 
litigation funder has apparently ever before asked to be substituted for its client under Rule 
25(c)—leads the Court to be particularly chary of granting the substitution, as the Court 
must consider that allowing this substitution will lead to other such requests being made, 

with this Order adduced as support, in scenarios far removed from the one in this case – 
perhaps frequent (monthly or weekly) assignments and reassignments, presenting courts 
with significant challenges in addressing numerous mid-suit motions for substitution.  
V.   CONCLUSION                                                           
    The parties have briefed and argued, exceptionally well, issues of governing law, 
the state law of contracts, the history of the champerty doctrine, and whether the Court 

ought to order at least some discovery into Sysco’s assignment of its claims to Carina. In 
the end, though, these issues are peripheral. The central question is whether this Court will 
allow a mid-litigation Rule 25(c) substitution that will let a litigation funder be substituted 
for its client in order to try and negotiate larger settlements. The answer to that central 
question is no.                                                           

    This  Court does  not  doubt  that  antitrust  claims  are  freely  assignable  and  that 
aggressive antitrust enforcement is an important public policy. But the substitution sought 
here is different from any other case to which the Court’s attention has been directed by 
the parties, because this substitution would have a litigation funder, in order to prevent 
settlement of litigation, step into the shoes of the party to whom it was providing financing, 

after litigation was well underway. Therefore, the Court will exercise its discretion and 
deny substitution pursuant to Rule 25(c). As expressly allowed by the Rule, “the action 
may be continued by the original party,” that is, Sysco.                  
    For the reasons set out above, IT IS HEREBY ORDERED that Sysco Corporation 
and Carina Ventures LLC’s Joint Motions for Substitution of Plaintiff (Dkt. No. 1940, Case 

No. 18-cv-1776; Dkt. No. 277, Case No. 22-md-3031) are DENIED.            
    IT IS FURTHER ORDERED that the Clerk’s Office shall correct the docket of 
Case No. 18-cv-1776 by designating Carina Ventures LLC as a “Movant” rather than a 
“Plaintiff.”                                                              

    Date:  February 9, 2024        s/  John F. Docherty                  
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge