CAT Declines Certification of Collective Proceedings Against Mastercard and Visa

The UK introduced a new collective proceedings regime for competition damages claims in October 2015.

The early years of the new regime were characterized by cautious uncertainty as the Competition Appeal Tribunal (CAT) and the appellate courts grappled with identifying the standards for certification. It took almost six years before the CAT certified the first claim in Merricks in August 2021. The CAT subsequently certified 10 other claims in less than two years, which in turn, encouraged additional claims to be brought.

More recently, however, the CAT has declined certification of two FX cases and a proposed opt-out claim against Meta. In keeping with this trend, most recently, on 8 June 2023, the CAT declined to grant the applications for collective proceedings orders (CPOs) in four related cases against Mastercard and Visa (Judgment). Specifically, the CAT found that the proposed class representatives (PCRs) had failed to “bring forward coherent proposals and to show a practical way forward to develop evidence to take the case to trial”.

The Judgment provides a useful summary of the legal framework for certification as informed by the recent case law, highlighting in particular the requirement for PCRs to advance a methodology that could serve as a “blueprint identifying the issues for trial and how they might be resolved”.

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