RECENT DEVELOPMENTS IN CLASS AND COLLECTIVE COMPETITION CLAIMS IN THE US AND UK

By Victoria L. Weatherford and Rachel H. Ofori¹

Collective competition litigation² continues to evolve around the world, presenting novel issues for both claimants and defendants. Collective competition actions play a key role in the overall enforcement of antitrust claims due to their ability to combine many small claims, which otherwise would have been impossible or otherwise too costly to litigate individually. Collective actions also promote judicial economy and protect against conflicting judgments. In the United States, antitrust class actions are a well-established, commonly used litigation mechanism that allows multiple plaintiffs to jointly litigate antitrust claims. In the U.K., the Competition Appeal Tribunal (CAT) or the Tribunal has been in existence for only 20 years, and class or collective action proceedings for antitrust and competition claims have been generally litigated in the UK for fewer than 10 years.

Throughout the years, collective antitrust actions have addressed a wide range of harms caused by antitrust violations, ranging from monopolistic schemes and price-fixing to anticompetitive actions and market manipulation. These cases have resulted in significant settlements which have continued to increase over recent years, reflecting their importance in deterring anti-competitive behavior and compensating affected parties.

In this article, we highlight the key similarities and differences between the antitrust collective redress regimes in the U.S. and in the U.K., as the first collective action competition cases reach settlement and trials are expected to proceed in the UK in the coming years. We will discuss the current meaningful differences in class certification procedures, scope of discovery, litigation funding, settlement, and damages considerations.

THE BRIEF HISTORY OF ANTITRUST CLASS ACTIONS IN THE US

The history of antitrust class actions in the United States traces its origins to the late 19^th and early 20^th centuries, evolving significantly over time to become a key mechanism for maintaining competitive markets and addressing antitrust claims. The Sherman Antitrust Act of 1890 laid the groundwork, aiming to curb monopolistic practices and promote fair competition.³ However, it was amendments set forth by the Clayton Antitrust Act of 1914 that granted parties the ability to sue for treble damages when harmed by conduct that violates antitrust laws.⁴ The key provisions of the Clayton Antitrust Act specifically provide for the private enforcement of these laws.⁵

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The subsequent development of Rule 23 of the Federal Rules of Civil Procedure in 1938, and amendments to Rule 23 in 1968, were significant, as Rule 23 formalized the aggregation of numerous small claims in the American legal system. The adoption of Rule 23 was instrumental in amplifying the power of antitrust class actions, allowing groups of individual consumers and businesses to collectively challenge anti-competitive practices that would be otherwise economically unfeasible to pursue independently.⁶ Today, almost all states have enacted class rules that mirror Rule 23 in state courts.

Pivotal antitrust collective action cases, such as Illinois Brick Co. v. Illinois (1977)⁷ have further molded the landscape by addressing issues such as which parties have standing to bring actions under federal antitrust laws. In Illinois Brick, the state and local government entities sued concrete brick manufacturers for alleged anticompetitive behavior. The Supreme Court held that the state and local government entities did not have standing, however, because they had hired contractors, who hired sub-contractors, who purchased the bricks from the manufacturers. In this case, the Court made clear that indirect purchasers are not entitled to money damages under the Sherman Act but underscored the fact that groups of individual plaintiffs can combine competition claims if they meet standing requirements. While several states have since adopted antitrust rules that have modified the Court’s ruling in Illinois Brick, antitrust class action cases following Illinois Brick have resulted in significant settlements and judgments, reflecting their importance in deterring anti-competitive behavior and compensating affected parties. The ongoing evolution of antitrust class action litigation continues to reflect broader economic and legal trends in the US, as US courts aim to balance robust enforcement of anti-competition laws with concerns about litigation abuse and efficiency.

THE BRIEF HISTORY OF ANTITRUST COLLECTIVE ACTIONS IN THE UK

The formalization of collective redress mechanisms in the United Kingdom has a notably shorter history. Due to the UK’s common law principles, the UK judicial system had a historical preference for individual litigation over collective redress mechanisms. In the 1990s, the Lord Chancellor’s Department issued a report titled Access to Justice,⁸ which underscored the UK’s need to adopt a formalized system where multiple individuals could aggregate claims in an efficient manner. Following this report, the UK adopted the Civil Procedure Rules, which included rules governing the main procedural mechanism for collective actions in UK, based on the Canadian model.⁹

From this, the first collective actions in the UK began in earnest in 2000, with the advent of the Group Litigation Order (GLO). GLOs allow multiple claims with common or related issues of fact or law to be managed together. GLOs typically function on an "opt-in" basis, meaning that claimants must take affirmative steps to join the action, and

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have been used in product liability, ESG, and other claims that cannot be heard in the (CAT Tribunal).

Despite being a noteworthy step towards providing individuals with a mechanism for collective redress for violations of UK anticompetition laws, GLOs did not fully embody the class action framework seen in the US, as they required each litigant to affirmatively choose to participate in the actions.

In an effort to provide greater protection to vulnerable consumers and deter anticompetitive behavior in an increasingly globalized economy, the UK adopted an opt-out regime in 2015, which specifically addressed violations of competition law the Consumer Rights Act of 2015.¹⁰ Under this Act, the CAT was empowered to hear opt-out class actions for the first time, and grant Collective Proceeding Orders (CPOs), which enable claims on behalf of a defined class without the need for individual litigants to opt-in. This landmark development marked a substantial shift towards facilitating antitrust collective redress in the UK, and empowers the CAT with effectively sole authority over "opt-out" class actions.

Despite this significant shift in the law, few collective litigation cases were filed in the CAT between 2015 and 2020, until the UK Supreme Court on December 11, 2020 issued a landmark decision—and its first collective proceedings case of its kind to reach the Supreme Court—finding that the CAT incorrectly rejected an application for certification to bring collective proceedings in a case against a global credit card company, and setting out important principles and guidelines for collective action proceedings.¹¹

The class representative in Merricks alleged that approximately 46.2 million consumers were defrauded as a result of certain ‘interchange fees’ charged to merchants between 1992 and 2008, and allegedly passed on to consumers. The CAT initially determined that the case was not appropriate for CPO classification because the claims did not lend themselves to an aggregate award of damages. The Supreme Court reversed and held that the CAT erred in denying CPO classification. The Supreme Court noted that the Tribunal applied an overly stringent standard in finding that aggregate damages could not be determined, and should have considered whether individual, separate proceedings were a reasonable alternative. The Supreme Court found that some difficulty in ascertaining individuals class members’ losses or distributing damages was not an adequate reason to refuse CPO classification, and, not all class members need to have suffered some injury.

The test which the UK Supreme adopted in reaching this conclusion was that set out by the Canadian Supreme Court in Pro-Sys Consultants Ltd v Microsoft Corp [2013] SCC 57:

". . . the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement. This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate

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that it is common to the class . . . The methodology cannot be purely theoretical or hypothetical but must be grounded in the facts of the particular case in question. There must be some evidence of the availability of the data to which the methodology is to be applied."

The CAT shortly thereafter issued the UK’s very first CPO on an "opt-out" basis in the same case, and in its decision reflected the principle that class certification is not an inquiry into the merits of a case but instead in an exercise in evaluating case management.¹²

Since the Tribunal’s determination in Merrick, the number of CPO applications the Tribunal to the have rapidly increased.¹³ Filings in the CAT have increased also as a result of the UK Supreme Court decision in Lloyd v Google [2021] UKSC 50. In Lloyd, the UK Supreme Court narrowed the circumstances in which it would permit group litigation procedures, when it refused in that case to permit collective proceedings where damages would need to be calculated on an individual basis and required a showing each plaintiff suffered a "material" damage separate and apart from the alleged violation of data protection rights.¹⁴

As a result, consumer protection cases that might have previously been filed under group litigation procedures are being filed as "opt-out" collective actions in the CAT under an "abuse of market dominance" theory. For example, representative plaintiffs are challenging a social media company’s requirement that consumers agree to certain use of their data in order to access their free product. While the CAT initially refused to certify the claim for failing to meet the Pro-Sys test and expressed skepticism the case addressed harm to competition,¹⁵ on a second look with the plaintiff providing a new expert report and a narrower claim the CAT permitted the claim to proceed as a collective action.¹⁶This is the approach the CAT has taken in other instances where the initial request for certification cannot be granted; to date no collective action proceedings have had a request for class certification decisively rejected.

CLASS CERTIFICATION

Today in the United States, FRCP 23 still governs the requirements for antitrust class action certification. FRCP Rule 23(a) provides that an action satisfy four conditions to qualify for class treatment: (i) the class must be so numerous that joinder of all members is impracticable (numerosity requirement), (ii) there must be questions or law or fact common to the class (commonality requirement), (iii) the claims of the representative parties must be typical of the claims of the class (typicality requirement), and (iv) the

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representative parties will fairly and adequately protect the interests of the class (adequacy of representation).¹⁷ In general, numerosity has been established when the class contains at least 40 individuals, however, there are no set number of individuals required to certify a class.¹⁸ Commonality in the antitrust context is relatively flexible, and a handful of common issues, or even one common issue between prospective class members may satisfy the requirement.¹⁹ In order to determine typicality in the antitrust context, courts consider to what extent the prospective class members claims differ or are similar from those of other class members. For example, in In re Carbon Black Antitrust Litigation, a potential class member’s claims were considered "typical" of that of other class members, even though the class member purchased the product at issue in different quantities or at different prices than other potential class members.²⁰ Finally, a class representative must "fairly and adequately protect the interests of the class."²¹

If a plaintiff meets all requirements under FRCP 23(a), a plaintiff must also meet one of the following three requirements under FRCP 23(b): (i) the litigation poses the risk of inconsistent judgments among class members or the risk that adjudication as to one plaintiff would be dispositive of the interests of an absent party; (ii) the litigation seeks primarily injunctive relief that would effectively resolve the claims of the class as a whole; or (iii) the litigation involves "questions of law or fact common to the class members," but does not fall into either of the first two categories.²² With respect to the risk of inconsistent judgments, courts have declined class certification where there was an extremely low risk of other suits being filed and where the only foreseeable problematic effect of allowing the cases to proceed via individual claims is stare decisis.²³

Antitrust class actions can also be initiated under Rule 23(b)(3) if questions of law or fact common to the members predominate and where a class action is the superior method of adjudication²⁴ The Supreme Court has held that in order to determine if a class has fulfilled the predominance requirement, courts should take a "close look" at whether common questions predominate over individual ones to determine "whether proposed classes are sufficiently cohesive to warrant adjudication by representation."²⁵ Most antitrust plaintiffs seek certification under Rule 23(b)(3) because they can recover treble damages if they prevail on the merits after obtaining class certification under this subdivision. Finally,

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plaintiffs in US antitrust class actions must also demonstrate that anticompetitive damages affected the entire prospective class.²⁶

Notable for antitrust class actions, in April 2024 the US Supreme Court declined certiorari in a case out of the Eleventh Circuit presenting a circuit split on the issue of whether courts can grant certification of a class action by averaging of damages across the putative class and without regard to whether some class members may be uninjured.²⁷ The Supreme Court this year also declined certiorari in a case out of the D.C. Circuit, in which that Court "deem[ed] the proposed method through which plaintiffs intend to prove classwide antitrust impact to be ‘colorable’ and where it defers ‘material factual dispute[s]’ on classwide impact to the merits."²⁸ As a result, significant circuit splits remain among the courts of appeal regarding the thoroughness with which courts scrutinize antitrust impact models as well as the methodology plaintiffs may employ at certification to satisfy predominance for classwide damages.

In the UK, CPOs, CLOs and representative actions are the three main mechanisms for initiating antitrust collective actions. CPOs are the main collective redress option for claimants specifically alleging antitrust violations in the UK. In order to initiate a CPO, a class representative must apply to the Tribunal for certification. As a threshold matter, the CAT must determine whether the proposed class representative is a "just and reasonable" group or individual to represent the class of litigants.²⁹ While the class representative is not required to be a member of the class and is not required to have a personal claim against the proposed defendant, the Tribunal in examining this "authorization condition" will consider factors such as whether the proposed representative would fairly and adequately act in the interests of the class members and whether the proposed class representative has prepared a plan for the collective proceedings.³⁰ The authorization condition is not seen as particularly onerous, however the CAT has carefully scrutinized the terms of representative plaintiff litigation funding agreements and insurance terms, to ensure the proposed representative can fairly and adequately represent the interest of the class and also has adequate funds to pursue the litigation including the defendants’ costs in the event the claim is unsuccessful.

If the class representative meets the CPO representative requirements, the class representative must then demonstrate to the CAT that the litigants seeking relief constitute an identifiable class.³¹ In determining if the class meets the "eligibility condition," the Competition Appeal Tribunal Guide to Proceedings (the CAT guide) advises the Tribunal against certifying classes where the definitions are based on subjective or merits-based

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criteria or classes with overly broad definitions.³² Next, claimants must prove to the Tribunal that the claims sought to be included in the collective proceeding raise common issues of fact or law.³³ The CAT guide notes that the assessment of some individual issues is not fatal to an application for a CPO and provides an example: "the determination of liability for an infringement may raise common issues of fact and law which justify a CPO, while causation and the quantification of any damages may not be common to the class. In such circumstances, the Tribunal may decide to approve collective proceedings in relation to only part of the claims."³⁴

Finally, the claims sought to be added to the CPO must be "suitable" to be brought in collective proceedings. In making its suitability determination, CAT will look to several factors including whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues, costs and the benefits of continuing the collective proceedings, whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class, the size and the nature of the class, whether it is possible to determine in respect of any person whether that person is or is not a member of the class, whether the claims are suitable for an aggregate award of damages; and the availability of alternative dispute resolution and any other means of resolving the dispute.³⁵ A class representative seeking approval to bring opt-out proceedings must make submissions as to why that form of proceedings is more appropriate than opt-in proceedings.³⁶

While far less common in the UK, claimants pursuing collective antitrust claims can join a CLO or initiate a representative proceeding.³⁷ CLOs are orders from the High Court, which allow for the aggregation of claims by multiple individuals that share common issues of fact or law. While there is no class representative in a GLO, the High Court will publish a Group Register that lists all the claims that are subject to the GLO, as rulings made pursuant to the GLO are binding on all claims mentioned in the Group Register. Notably, the High Court also has the authority to transfer proceedings that relate to violations of UK competition law to the CAT for adjudication.³⁸ Representative proceedings are similarly brought before the High Court under Civil Procedure Rule 19. For representative proceedings, class members must have the "same interest in a claim" in order to proceed.³⁹

In general, because the US Federal Rules regarding class actions have been in existence much longer than the UK’s Civil Procedure Rules and the Competition Appeal Tribunal Rules for CPOs, the UK has a far less established history of caselaw from which

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to draw conclusions. However, from the CAT decisions to date it is clear that US courts apply relatively more stringent standards in deciding whether to grant class certification compared to the UK.

SCOPE OF DISCOVERY / DISCLOSURE AND EXPERT USE

In general, the US class action regime permits extensive document and written discovery prior to the certification of a class under FRCP 23. In Walmart v. Dukes, the Supreme Court highlighted the need for lower courts to permit extensive discovery in the class action certification process. In reversing the Ninth Circuit’s decision to grant certification to a class of employees alleging sex discrimination under Title VII of the Civil Rights Act of1964, the Supreme Court stated that parties seeking certification "must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. . . . sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question . . . certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied."⁴⁰

Shortly after, the Supreme Court reaffirmed the need for "rigorous analysis" prior to class certification specifically with respect to antitrust cases.⁴¹ In Comcast v. Behrend, the Court overruled the Third Circuit’s decision to certify a class of respondent cable TV subscribers who brought a putative class action against Comcast, alleging that Comcast swapped services with competitors in violation of US antitrust laws.⁴² The Supreme Court chastised the Third Circuit’s "refus[al] to entertain arguments against respondents’ damages model that bore on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination."⁴³

In the US, experts are also often used by both plaintiffs and defendants in the class certification phase. Parties are permitted to use multiple experts including industry experts, foreign accountants, economists, and statisticians and may choose to have them for both testifying and consulting purposes. By way of an example, in the antitrust context, the use of a private consulting economist may be useful to show the unlawful impact of a defendant’s alleged anticompetitive price increases and to help calculate damages.⁴⁴

The UK takes a far more restrictive approach to disclosure procedures and the use of experts. Disclosure proceedings are not automatic, and disclosure only takes place at the direction of the Tribunal.⁴⁵ During the first case management conference, the CAT will make a circumscribed disclosure plan to determine if and what kind of disclosures the

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parties will make to each other.⁴⁶ In addition to these disclosures, claimants or potential claimants must make an application, supported by evidence, to the CAT if disclosure is sought before proceedings have started.⁴⁷

In stark contrast to the US Supreme Court directives regarding pre-proceeding discovery, the CAT does not encourage disclosure requests as part of the CPO certification process.⁴⁸ The Guide to Proceedings specifically states that "The Tribunal is likely to order pre-action disclosure only of specific documents or a very limited category of documents, and it will be alert to reject any purely speculative disclosure requests."⁴⁹ For example, in an effort to truncate disclosure, the CAT permitted a class representative’s limited orders for a defendant to produce a broad description of a specific part of the defendant’s business that was relevant to the CPO claim, as opposed to extensive document production.⁵⁰ Plaintiffs may submit expert reports in aid of class certification. And while parties are allowed to retain and call their own experts, experts are considered as more neutral parties who have duties to the Tribunal, not the party that called them.⁵¹ In the UK, the CAT may "hot-tub," or aggregate expert advice, to assist the Tribunal in understanding the expert evidence before it.⁵²

In the antitrust context, US courts encourage free and extensive discovery, whereas the CAT aims to streamline and simply the disclosure process as much as possible. Because UK claimants are highly limited in their ability to conduct disclosure prior to certification or before proceedings before the tribunal, the CPO applicant must affirmative demonstrate that they meet the threshold requirements at the time of application.

LITIGATION FUNDING AND COSTS

In the US, litigation funding is lightly regulated. Ethics rules, state law, and bar association guidance place restrictions on litigation funding.⁵³ For example, in 2011 the New York Bar issued a formal opinion regarding various ethical issues that may arise when a lawyer represents a client who is a party to a nonrecourse litigation funding agreement.⁵⁴ The opinion warned that "lawyers should be aware that in certain circumstances, courts have found that nonrecourse litigation financing agreements violate usury laws," even where the financing companies "characterize non-recourse financing arrangements as a ‘purchase’ or ‘assignment of the anticipated proceeds of the lawsuit (and therefore not

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subject to usury laws). " The opinion also stated that "courts in other jurisdictions have invalidated certain financing arrangements under applicable champerty laws."⁵⁵ With respect to litigation costs, parties are generally responsible for their own costs associated with involvement in the class action. In class action settlements, plaintiffs seek approval of their attorney’s fees typically as a percentage of the overall class recovery; however, there is no court oversight of third-party litigation funding arrangements and typically these agreements are not subject to disclosure in discovery.

In the UK, litigation funding is widespread and overall is lightly regulated. While there is a voluntary self-reporting regime governing litigation funding, there is no central authority that regulates it.⁵⁶ Third-party funding before the CAT is explicitly permitted in CPO proceedings, under the Competition Appeal Tribunal Rules 2015, Rule 113, although proposed class representatives must submit any litigation funding agreements to the Tribunal for approval. At present, every opt-out collective action case filed in the CAT is funded by third-party funders.

One area in which there is more stringent oversight is that in the UK, damages based awards (DBAs)—where the fees are a percentage of the recovery—are unenforceable by UK statute unless certain conditions are met.⁵⁷ On July 26, 2023, the UK Supreme Court on an appeal from the CAT held that litigation funding agreements (LFAs), which entitle funders to payment based on the amount of damages recovered, would be classified as impermissible DBAs.⁵⁸ The plaintiffs in this case were required to renegotiate the terms of their LFAs to remove the unlawful DBA provision. In March 2024, the UK government proposed legislation to overturn the PACCAR case and loosen the restrictions on DBAs, which remains pending.⁵⁹

The recently published The Civil Justice Council’s Final Report on litigation funding proposes a comprehensive overhaul of the regulatory framework governing third-party litigation funding in England and Wales, following the UK Supreme Court’s PACCAR decision. It recommends replacing the current self-regulatory model with a light-touch statutory regime administered by the Lord Chancellor, with potential transfer to the Financial Conduct Authority after five years. Key reforms include mandatory capital adequacy, anti-money laundering compliance, and early disclosure of funding arrangements, alongside enhanced protections for consumers and parties in collective proceedings—such as independent legal advice and court approval of funding terms. The report rejects caps on funder returns but calls for transparency and fairness through judicial oversight. It also advocates for the consolidation of CFA and DBA regimes, codification of pure funding principles, regulation of crowdfunding, and the creation of an Access to

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Justice Fund financed by litigation profits. These reforms aim to balance access to justice, market integrity, and consumer protection within a unified legislative framework.⁶⁰

Generally, in the UK legal system, the unsuccessful party is responsible for the successful party’s reasonable costs, however the CPR rules clarify that the High Court or Tribunal may allocate cost by considering a number of factors, including whether a party has succeeded on part of its case.⁶¹ If a collective redress action is classified as a GLO, costs common to the claimants are equally divided, with each being severally liable for their own share.⁶² Claimants are responsible to any individual costs that relate to a particular claim.⁶³

SETTLEMENT AND DAMAGES

In the US, when and if the parties arrive at a mutually resolution, antitrust class settlements are subject to court approval due to their ability to bind absent class members.⁶⁴ Courts have the discretion to deny settlements that they do not believe adequately compensate all class members, regardless of the settlement size. For example. In 2016, the Second Circuit denied a $7.25 billion settlement in an antitrust litigation between certain payment card companies and customers because, the Court held that the settlement improperly compensated some class members more than others.⁶⁵ With respect to damages, US federal law mandates that successful plaintiffs in private antirust class actions up may receive as much as treble damages, which means up to three times their a plaintiffs actual damages).⁶⁶ In some cases, plaintiffs may also be entitled to other monetary remedies such as attorneys fees and pre-judgment interest.⁶⁷ The US Department of Justice explained that" [t]rebling damages generally increases deterrence by compensating for the possibility that anticompetitive conduct will not be detected and prosecuted. Likewise, the possibility of winning multiple damages enhances plaintiffs’ incentives to seek out and detect anticompetitive conduct and to bear the time, expense, and uncertainty of bringing suit."⁶⁸

CPO settlements under the CAT regime similarly require the Tribunal’s approval. The CAT must approve any collective settlement for certified opt-out proceedings and opt-in and opt-out proceedings that have yet to be certified.⁶⁹ For certified opt-out

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proceedings, the CAT will consider if the proposed settlement terms are ‘just and reasonable’, having regard to a number of factors including: the amount and terms of settlement; the likelihood of a higher amount being awarded at trial; and the likely cost and duration of trial. Damages resulting from CPOs are more limited in scope. The Guide to Proceedings under the CAT provides that the Tribunal "may not award exemplary damages in collective proceedings . . . [d]amages awards will usually be limited to the loss suffered, including interest if appropriate."⁷⁰

As of mid-2025, the CAT has approved five class action settlements under its collective proceedings regime. On December 6, 2023, the first approved partial settlement was part of an opt-out claim made by class representative Mark McLaren about delivery charges for new motor vehicles, in a follow-on case after a 2018 European Commission found that defendant companies had infringed competition law and manipulated prices. The settlement was with Compañia Sudamericana de Vapores (CSAV), one of twelve defendants in that case, for £1.2 million in damages and £380,000 in costs.⁷¹

The second CAT approved settlement occurred on May 10, 2024, approving a £25 million settlement between class representative Justin Gutman and Defendant Stagecoach South Western Trains Limited ("Stagecoach"), in one of several abuse of dominance cases alleging passengers were over-charged for certain train tickets.⁷² Class members will have six months to submit claims for payment, and class action practitioners are carefully watching this and other cases in the CAT to see how the tribunal will evaluate class settlements. Most notably, on May 20, 2025, the CAT approved its largest-ever opt-out class action settlement: a £200 million agreement in Merricks v. Mastercard. This landmark case, which began in 2019, set new standards for evaluating collective settlements, including a three-tier "waterfall" distribution model prioritizing consumer compensation over funder profits.⁷³

The approval of antitrust class settlements in the US can be an arduous process that ultimately may prevent the resolution of antitrust claims. Because FRCP 23(e) requires courts to ensure settlements are "fair, reasonable and adequate," a US court may deny seemingly adequate settlements if the settlement unfairly compensates certain class members relative to others. On the other hand, damages resulting from settlements in the

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US may provide aggrieved class members with more options for monetary remedies, as damages from UK collective actions are generally more limited.

CURRENT TRENDS IN ANTITRUST CLASS ACTIONS AND COLLECTIVE ACTIONS

In the United States, the Trump administration has brought with it an overall decline of federal antitrust enforcement. The average annual rate of merger antitrust challenges by the Department ofJustice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) has declined by 20 percent when compared to prior administrations.⁷⁴ In general, there has been less enforcement against anticompetitive agreements and significantly less individuals convicted of Sherman Act Section 1 crimes.⁷⁵ This overall decrease in federal antitrust actions may prompt state attorneys generals and private plaintiffs to fill in the gaps.

In the UK collective actions landscape, several recent CAT decisions have illustrated the posture that the Tribunal may take in future cases, particularly with respect to collective action certification. For example, in Riefa v. Apple and Amazon, the Tribunal had concerns about the proposed class representative’s funding arrangements and decided that the proposed class representative should be cross-examined on these arrangements at a hearing. Following this hearing, the CAT handed down a judgment finding that the proposed class representative lacked adequate understanding of the funding arrangements and did not demonstrate sufficient control of the litigation.⁷⁶ This decision will likely encourage claimant-side stakeholders to closely scrutinize and understand their funding structures.

CONCLUSION

In conclusion, the comparative analysis of antitrust class actions in the US and the UK reveal key differences between the two countries, rooted in their distinct historical context, legal frameworks, procedural approaches, and cultural attitudes towards antitrust laws and collective redress. While the US system, characterized by its well-established class action mechanism, provides a robust avenue for addressing antitrust violations and promoting consumer protection, it also faces challenges such as potential abuse, high litigation costs, and unnecessary delays. On the other hand, the UK, with its more recent adoption of collective proceedings under the Consumer Rights Act 2015, reflects a notably cautious yet progressive approach aimed at balancing effective redress with safeguards against frivolous claims. As both jurisdictions continue to evolve, the overall landscape of antitrust enforcement and collective redress will undoubtedly benefit from ongoing comparative insights, fostering practices that protect individuals around the world from violations of anticompetition laws.

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Notes:

^1. Victoria L. Weatherford is a Partner in BakerHostetler LLP’s San Francisco office and a member of the Antitrust & Competition practice. Rachel H. Ofori is an associate in BakerHostetler LLP’s San Francisco office and a member of the Litigation department.

^2. Collective competition litigation and collective competition actions refer to antitrust class actions and other forms of collective litigation regarding anticompetition laws.

^3. 15 U.S.C. § 1-38.

^4. 15 U.S.C. § 12-27.

^5. 15 U.S.C. § 15.

^6. Fed. R. Civ. Proc. 23.

^7. Ill. Brick Co. v. Illinois, 431 U.S. 720, 97 S. Ct. 2061 (1977).

^8. https://webarchive.nationalarchives.gov.uk/ukgwa/20060213223540/http://www.dca.gov.uk/civil/final/contents.htm.

^9. CPR 19.1-CPR 19.15.

^10. Consumer Rights Act 2015 c. 15.

^11. Mastercard Incorporated & Ors v Walter Hugh Merricks CBE [2020] UKSC 51, available at /www.supremecourt.uk/cases/docs/uksc-2019-0118-judgment.pdf

^12. Walter Hugh Merricks CBE v Mastercard Incorporated & Ors [2021] CAT 28.

^13. See Competition Appeal Tribunal, available at https://www.catribunal.org.uk/cases.

^14. Available at: https://www.supremecourt.uk/cases/docs/uksc-2019-0213-judgment.pdf

^15. Dr Liza Lovdahl Gormsen v Meta Platforms, Inc & Ors [2023] CAT 10, 1433/7/7/22, available at www.catribunal.org.uk/sites/cat/files/2023-02/2023.02.20%201433%20Gormsen%20v%20Meta_FINAL.pdf

^16. Id. 1433/7/7/22, Collective Proceedings Order dated May 2, 2024, available at www.catribunal.org.uk/sites/cat/files/2024-05/14337722%20Dr%20Liza%20Lovdahl%20Gormsen%20v%20Meta%20Platforms%2C%20Inc.%20and%20Others%20-%20Order%20%28CPO%29%20%202%20May%202024.pdf

^17. Fed. R. Civ. Proc. 23(a).

^18. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (stating that under FRCP 23(a), forty individuals likely satisfy the numerosity requirement.)

^19. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (stating that in order to satisfy the commonality requirement for purposes of FRCP 23(a)(2), even a single common question will do.)

^20. See In re Carbon Black Antitrust Litig., 2005 U.S. Dist. LEXIS 660 (D. Mass 2005).

^21. Fed. R. Civ. P. 23(a)(4)

^22. Fed. R. Civ. P. 23(b).

^23. See Klein v. Henry S. Miller Residential Servs., Inc., 94 F.R.D. 651, 666 (N.D. Tex. 1982)

^24. See Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)

^25. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615-16, 623-24 (1997)

^26. Comcast v. Behrend, 133 S.Ct. 1426, 1433, 1435 (2013) ("Calculations need not be exact, but at the class-certification stage (as at trial), any model supporting a plaintiff’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation." (internal quotation omitted)

^27. Brinker International, Inc. v. Steinmetz, Docket No. 23-648.

^28. National ATM Council, Inc. v. Visa Inc. (D.C. Cir., July 25, 2023, No. 21-7109) 2023 WL 4743013, at * 4, cert. denied sub nom. Visa Inc. v. Nat. ATM Council, Inc. (U.S., Apr. 15, 2024, No. 23-814) 2024 WL 1607963. [Back]

^29. The Competition Appeal Tribunal Rules 2015, Rule 78(1)(b).

^30. The Competition Appeal Tribunal Rules 2015, Rule 78(2).

^31. The Competition Appeal Tribunal Rules 2015, Rule 79(1).

^32. Guide to Competition Appeal Tribunal Proceedings, 6.37.

^33. The Competition Appeal Tribunal Rules 2015, Rule 79(1).

^34. Guide to Competition Appeal Tribunal Proceedings, 6.37.

^35. The Competition Appeal Tribunal Rules 2015, Rule 79(2).

^36. Guide to Competition Appeal Tribunal Proceedings, 6.38.

^37. CPR 19.

^38. Section 16 Enterprise Act 2002 Regulations 2015 (SI 2015/1643).

^39. See e.g., Lloyd v Google LLC [2019] EWCA Civ 1599 (02 October 2019) (holding that several million members of the class that Mr Lloyd had the "same interest’ under CPR 19.6(1) and were identifiable.)

^40. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S. Ct. 2541, 2551 (2011) (internal quotation omitted).

^41. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).

^42. Id.

^43. Id

^44. See e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 810 (7^th Cir. 2012)

^45. Guide to Competition Appeal Tribunal Proceedings, 5.86.

^46. The Competition Appeal Tribunal Rules 2015, Rule 60(2)(a).

^47. The Competition Appeal Tribunal Rules 2015, Rule 62.

^48. Guide to Competition Appeal Tribunal Proceedings 6.28.

^49. Guide to Competition Appeal Tribunal Proceedings 5.89.

^50. Ryder Limited and Another v MAN SE and Others, Case 1291/5/7/18 (T; see also the Tribunal’s order made 19-20 September 2019 in Ryder Limited and Another v MAN SE and Others, Case 1291/5/7/18 (T).

^51. Guide to Competition Appeal Tribunal Proceedings, 7.67.

^52. CPR PD 35, para 11.

^53. See, e.g. H.R. 1127, 119^th Gen.; Vt. Stat. Ann. tit. 8, § 2251 et seq.; Ark. Code Ann .§ 4-57-109 et seq. Assemb., Second Reg. Sess. (Ind. 2016).

^54. The Ass ‘n of the Bar of the City of New York Comm. on Prof’I and Judicial Ethics, Formal Op. 2011-12 (June 2011), 2011 WL 6958790, at *2 (hereinafter NYC Ethics Opinion].

^55. Id. at 3.

^56. See http://associati onoflitigationfunders.com/code-of-conduct/.

^57. Courts and Legal Services Act 1990 (CLSA 1990), section 58AA; see also Damages-based Agreements Regulations 2013 (SI 2013/609).

^58. R (on the application of PACCAR Inc and others) (Appellants) v Competition Appeal Tribunal and others (Respondents) [2023] UKSC 28 (PACCAR), available at: https://www.supremecourt.uk/cases/docs/uksc-2021-0078-judgment.pdf

^59. Litigation Funding Agreements (Enforceability) Bill, available at: https://bills.parliament.uk/bills/3702.

^60. Civil Justice Council. (2025). Review of litigation funding: Final report. https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/cjc/current-work/third-party-funding/

^61. Id.

^62. CPR 46.6

^63. Id.

^64. Fed. R. Civ. Proc. 23.

^65. In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig, 827 F3d 223, 233-234 (2d Cir 2016).

^66. 15 U.S.C. § 15(a). There are a limited number of exemptions from this general rule. See, e.g., Export Trading Company Act § 306, 15 U.S.C. § 4016(b)(1) (limiting antitrust claim recovery to single damages against export trading companies).

^67. Id.

^68. US DOJ, Competition And Monopoly: Single-Firm Conduct Under Section 2 Of The Sherman Act: Chapter 9

^69. Guide to Competition Appeal Tribunal Proceedings 6.94 – 6.101.

^70. Guide to Competition Appeal Tribunal Proceedings 6.77.

^71. Mark McLaren Class Representative Ltd v MOL (Europe Africa) Ltd and Ors, 1339/7/7/20, 6 December 2023, available at: https://www.catribunal.org.uk/sites/cat/files/2023-12/13397720%20Mark%20McLaren%20Class%20Representative%20Limited%20v%20MOL%20%28Europe%20Africa%29%20Ltd%20and%20Others%20-%20Order%20of%20the%20Chair%20%28Collective%20Settlement%20Approval%20Order%29%20%206%20Dec%202023.pdf

^72. [2024] CAT 32, Justin Gutmann v First Mtr South Western Trains Ltd and Another, 1304/7/7/19, 10 May 2024, available at: https://www.catribunal.org.uk/sites/cat/files/2024-05/13047719%20Justin%20Gutmann%20v%20First%20MTR%20South%20Western%20Trains%20Limited%20and%20Another%20-%20Order%20of%20the%20Chair%20%28Collective%20Settlement%20Approval%20Order%29%20%2010%20May%202024_0.pdf

^73. Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2025] CAT 28 (20 May 2025), Competition Appeal Tribunal. Available at: https://www.catribunal.org.uk/sites/cat/files/2025-05/12667716%20Walter%20Hugh%20Merricks%20CBE%20v%20Mastercard%20Incorporated%20and%20Others%20-%20non%20confidential%20Judgment%20%28CSAO%20Application%29%20%2020%20May%202025.pdf.

^74. "The State of Antitrust Enforcement and Competition Policy in the U.S." (the Report), dated April 14, 2020.

^75. Id.

^76. 1602/7/7/23 Christine Riefa Class Representative Limited v. Apple Inc. & Others.