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Clifford Chance

Clifford Chance

Antitrust/FDI Insights

Antitrust class actions: UK Tribunal's judgment in first opt-out class carriage dispute

On 31 March 2022, the Competition Appeal Tribunal (“CAT”) handed down an important judgment regarding antitrust collective proceedings in the UK. The Tribunal considered three issues: (1) whether the Tribunal should permit the collective proceedings to proceed (the “Certification Issue”); (2) if so, whether they should proceed on an opt-in or an opt-out basis (the “Opt-in vs Opt-out Issue”); and (3) which proposed class representative (“PCR”) should be permitted to take the collective proceedings forward (the “Carriage Issue”).

The CAT panel was split by 2-1. The majority was willing to permit the collective proceedings to proceed. However, because the claims were so weak that they were liable to be struck out and because there was no practical reason why members of the class could not have opted-in, the CAT refused to allow the claims to proceed on an opt-out basis. While it did not have to decide which PCR had carriage of the claims, it found marginally in favour of the Evans PCR. The applications have both been stayed and they have been given permission to submit a revised application for certification on an opt-in basis within three months of the date of the Tribunal’s judgment.