Brussels-based antitrust partner Matthew Hall brings us an update on two ongoing UK antitrust class actions and one on the horizon.
Antitrust class actions in the UK are beginning to take hold before the specialist Competition Appeal Tribunal (CAT), but progress is not all smooth. Two cases have been filed and another is about to be filed.
The first claim, started May 25, 2016 under the rules introduced on October 1, 2015, was relatively small, with an alleged claim value of £7.7 million, including interest. The claim was based on a type of resale price maintenance (RPM)—specifically, a finding by the UK antitrust regulator that a supplier of mobility scooters had illegally banned retailers in the UK from advertising online prices below its recommended retail price.
The claim was brought on an opt-out basis by the UK National Pensioners Convention (NPC) on behalf of people who allegedly paid too much as a result of this RPM. The NPC needed court approval for for an opt-out “collective proceedings order” (CPO) but the case ran into trouble when this was considered at the preliminary stage. The CAT had its doubts about the proposed class and asked the NPC to provide evidence of an effect on the wider scooter market.
The NPC instead withdrew the claim, since the costs of litigation would have substantially exceeded the possible amount of damages. It in effect accepted that it would be difficult to show that agreements with a limited number of retailers gave rise to significant umbrella effects across the market. This was not an encouraging start to such claims.
The second claim was filed before the CAT on September 8, 2016. This claim is also an opt-out follow-on case, but based on a finding by the EU-wide antitrust regulator, the European Commission (EC). The EC found that the MasterCard payment organization had infringed EU antitrust law by in effect setting a minimum price which merchants had to pay to their acquiring bank for accepting payment cards in the European Economic Area. The EC’s finding was based on a horizontal antitrust infringement theory, as opposed to the vertical infringement found in the Pride case.
This case has not advanced past the CPO stage. The CPO application hearing was held in January 2017 and judgment has been reserved. Progress is therefore slow.
The case which is about to be filed before the CAT was announced on June 13, 2017 by the UK Road Haulage Association (RHA). This differs in that it is an opt-in claim but is also a follow-on claim, being based on the July 2016 fine imposed by the EC on a number of truck manufacturers for price fixing and other cartel activities relating to truck sales.
According to the RHA, early indications are that compensation could be in the region of £6,000 per truck on average. Companies that have purchased or leased new or second-hand trucks direct from manufacturers or dealers from 1997 onwards are eligible to join the claim. The first hearing (on the CPO application) is expected to be later in 2017.
These three cases are very different, but show the wide range of possibilities before the CAT for the new class action antitrust law. The first case was relatively small in value terms while the others are very large indeed (the MasterCard case is claimed to be the largest-ever UK claim of any type). The first case related to a vertical infringement of antitrust law, while the others relate to a horizontal infringement. The first case concerned a relatively small group of customers, while the MasterCard case concerns a large portion of the entire UK population and the truck case concerns an alleged 650,000 trucks. The first two cases are or were opt-out cases, while the claimants in the truck case will go down the opt-in route.
There is a long way to go on both the current cases, but it’s clear from the mobility scooters case that the CAT will tightly manage the process so as to make sure that the various protections in the legislation against the perceived problems with class claims are implemented. Meanwhile, to a significant extent, UK lawyers will learn on the job as these cases proceed.