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The CAT then received two applications to commence collective proceedings under s47B of the Competition Act to combine follow-on claims for damages for breach of Article of the Treaty on the Functioning of the European Union based on the Cartel Decisions:. The CAT handed down its decision on 31 March A consequential matters hearing was due to take place on 5 May but was vacated.

Before engaging with the issues surrounding the granting or refusal of a CPO, the CAT decided first to consider any potential strike out of the claim, though there had been no application for strike out made by any of the Respondents. The CAT concluded that it could, of its own initiative, strike out a claim which would involve consideration as to whether the Applicants have reasonable prospects for making the claims they do rule 41 1 b of the Tribunal Rules.

The first concerns authorisation of the person seeking to bring the proceedings as the representative of the proposed class the authorisation condition. The second requires that the claims are eligible for inclusion in collective proceedings the eligibility condition.

As to certification in this particular case, the majority concluded that each Application — if it were the only application in issue — could and should be certified as collective proceedings as both the authorisation condition and the eligibility condition [CL1] were met. This then led to consideration as to whether the proceedings should be certified on an opt-in or opt-out basis.

Under the Competition Act , collective proceedings may either be brought on an opt-in or an opt-out basis. Opt-out proceedings will bind all persons within the class, except those who have opted out, whereas opt-in proceedings only apply to those within the class who have opted to be involved in the class action.

When deciding on this issue, the CAT took an approach of considering the authorisation condition and eligibility condition which were relevant to the Certification Issue and then considered some further factors. In relation to the authorisation condition, the CAT held that the fact that neither applicant was a pre-existing body, such as a trade association with an established purpose to represent a specific class, would lend to the argument that this application should not be certified on an opt-out basis.

In relation to the eligibility condition, the CAT considered a number of factors. With opt-out proceedings, the costs are not borne by the class, but instead deducted from any damages, which the CAT commented was a reason in favour of advancing opt-out proceedings. However, the CAT also considered that it is better to have opt-in proceedings where there is a risk of overlapping claims in reference to the ongoing Allianz Global Investors GmbH v. Barclays Bank plc proceedings which have been transferred from the High Court to the CAT , as it is better for class members to take the conscious decision to opt-in.

In addition, the CAT considered that the claims pleaded were weak and this amounted to a powerful reason against certifying on an opt-out basis. The CAT also emphasised that the Applicants had failed to substantiate their Applications with many potential claimants and, hence, opt-out proceedings could not be practicable. Nonetheless, the CAT held that despite the small portfolio of claimants, the sophistication of the potential litigants and the overall quantum of the claim meant that there would be substantial individual claims and so it could be practicable for the claimants to join on an opt-in basis.

Overall, a majority of the CAT determined that, when considering the practicability of bringing the claim, it would be best to run the proceedings on an opt-in basis. It is worth noting that one member of the CAT did dissent from the majority and considered that the CPO should be granted on an opt-out basis. He stated that although a high-level analysis of comparing both opt-in and opt-out proceedings was conducted, not enough consideration was given to the practical implications of the claim proceeding on an opt-in basis.

Furthermore, the dissenting judgment highlighted that the opt-in proceedings would in fact be more costly to applicants and provide a less favourable funding package to the potential claimants. The Carriage Issue was no longer a substantive point to be considered by the CAT, after its majority decision not to certify the claims as opt-out proceedings. In summary, the CAT concluded that the Applications could not be certified on the requested basis of opt-out proceedings.

As such, the Applications were stayed and the Applicants given permission to submit a revised application for certification on an opt-in basis within three months of judgment. Indeed, the claimant law firms seeking to pursue the Applications have had not for lack of trying little traction to date in garnering interest from potential claimants according to the evidence given at the hearing.

It also concluded that putative class members are unlikely to be ignorant of their potential claims. The Tribunal acknowledged that there may be individuals and smaller entities who fall within the relevant classes, who will likely have much smaller claims and who may not be aware that they have a claim. As such, the Tribunal concluded that practicability was a factor again weighing strongly against certifying on an opt-out basis. Taking the above factors as a whole, the Tribunal concluded that the Applications should not be certified on an opt-out basis.

The Tribunal acknowledged that this was despite the fact that the claims were unlikely to proceed at all if not certified on an opt-out basis. The Tribunal therefore ordered that the proceedings should be stayed, with the Applicants being given permission to submit a revised application for certification on an opt-in basis within three months of the date of the judgment. In light of its conclusion on the Opt-in vs.

Opt-out Issue, the Tribunal held that the question of carriage did not arise. However, it nonetheless went on to consider it. Mr Lomas dissented from the majority on the Opt-in vs. The judgment represents a significant setback for the Applicants in the FX collective proceedings, which as acknowledged by the Tribunal had previously adduced evidence suggesting that their claims were unlikely to proceed on an opt-in basis. Both Applicants have already announced an intention to appeal.

More generally, the judgment represents one of the first decisions taken by the Tribunal where it has had to grapple with the question of opt-in vs. Slaughter and May acts for JPMorgan in relation to these proceedings. Advanced search. Our Firm. Practices Disputes , Competition Litigation. Contact Information. Ewan Brown Partner at Slaughter and May. Tim Blanchard Partner at Slaughter and May. Olga Ladrowska Associate at Slaughter and May. Michael Fender Associate at Slaughter and May.

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