Judgment granting collective proceedings order in claim by Road Haulage Association

 

 

The Competition Appeal Tribunal (CAT) has given judgment in a claim brought by Road Haulage Association Limited (RHA) under section 47B of the Competition Act 1998, to commence a collective action to seek damages from various truck manufacturers. 

The claims follow on from the European Commission's 2016 and 2017 truck cartel decisions.

In June 2022 the CAT preferred the RHA’s opt-in application and rejected a proposed opt-out claim brought by UK Trucks Claim Limited (UKTC).  In July 2023 the Court of Appeal mainly dismissed an appeal against the CAT’s June 2022 judgment.  However, finding a potential conflict of interest between new and used trucks claimants the Court of Appeal remitted the case to the CAT for it to consider whether to grant the collective proceedings order (CPO) on the basis of revised arrangements, in particular relating to separate legal and expert representation.

The CAT first ruled that it was not necessary to make separate provision in the class definition for companies which had been dissolved but might be restored to the register.

The CAT ruled that it would be appropriate for claims for leases, other than the first lease of a new truck, to be included in the used truck sub-class. Those claims are, therefore, subject to a longer run-off period (until 31 January 2015).

The CAT also ruled that the funding arrangements are adequate.

The CAT also concluded that arrangements put in place to separate the claims in relation to new trucks and claims relating to used trucks were adequate. A new company, RHA Used Trucks Ltd (RUTL), has been established to act as the proposed sub-class representative for class members with claims for used trucks. This has appointed separate solicitors, counsel and expert.

The CAT, therefore, decided to authorise RUTL as a sub-class representative and to make a CPO in favour of RHA as the class representative.

Road Haulage Association Limited and RHA Used Trucks Limited v Traton SE and others [2024] CAT 51

Call for inputs on review of assimilated Technology Transfer Block Exemption

 

Call for inputs on review of assimilated Technology Transfer Block Exemption

 

The Competition and Markets Authority (CMA) is seeking views as part of its review of the assimilated Technology Transfer Block Exemption Regulation (Regulation 316/2014) (TTBER) and the accompanying European Commission guidelines on technology transfer agreements (the Guidelines).

The assimilated TTBER expires on 30 April 2026.

While the TTBER may seem a relatively small matter when navigating compliance of licensing arrangements with competition law, for IPR licensors and licensees it has proven to be a useful instrument.  The review is important as it offers the scope for some divergence between the approaches under EU and UK law.

The assimilated TTBER automatically exempts certain types of technology transfer agreements from the Chapter I prohibition if they meet certain conditions (including market share thresholds, hard core restrictions and excluded restrictions).

The CMA will review whether the assimilated TTBER continues to meet its intended purpose and will take account of any specific features of the UK economy and interests of businesses and consumers.

The CMA is seeking views on whether technology transfer agreements covered by the assimilated TTBER continue to produce benefits outweighing their potential harmful effects on competition (and what these harmful effects are), including whether the TTBER contributes to promoting competition and economic benefits in the UK.

The Guidelines set out general principles for the assessment of technology transfer agreements and provide guidance on the application of the TTBER. Experience of the various incarnations of the TTBER over the years suggests that the 200+ Guidelines can tend to be of more practical utility than the TTBER itself.

The CMA invites responses by 6 September 2024.

https://connect.cma.gov.uk/technology-transfer-block-exemption-regulation

Judgment on payout of costs as part of damages in Mclaren collective settlement

The Competition Appeal Tribunal has given judgment on an application by Mark McLaren Class Representative Limited (the CR) for an order that the costs and part of the damages paid to it by one settling defendant be used to cover part of the CR’s costs, fees and disbursements in connection with the proceedings.

The order relates to sums paid by the Twelfth Defendant (Compania Sudamericana de Vapores SA) pursuant to a settlement agreement in the Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and others collective proceedings.

The approved settlement figure is £1.5 million, comprising 1) the damages sum of £1.12 million; 2) the costs of the application for approval of the settlement, of £100,000; 3) the Twelfth Defendant's share of the CR’s costs in the proceedings, of £280,000 (proceedings costs sum).

The CAT considered it does have jurisdiction, under Rule 53(2)(n) of the CAT Rules 2015, to make the order sought. However, it decided it would not be appropriate to assess what sums should be paid to funders before the outcome of the proceedings is known. The CAT found that payment of the “relatively small” sums at stake would do little to lessen the funder’s “exposure and duration risk.”

The CAT, therefore, did not permit the use of any part of the damages sum at this stage. It stated it was, however, prepared to apply an additional £71,000 from the proceedings costs sum to be dealt with in the same way as the £100,000 application costs sum to cover the CR’s costs of the Collective Settlement Approval Order application.

While in this case the CR may not use a settlement agreed with one defendant towards costs in ongoing litigation, the CAT has left open a possibility for future cases.

 

Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and others [2024] CAT 47 (Related Costs Application)

CMA publishes issues statement in household pets market investigation

 

 

The Competition and Markets Authority (CMA) has published its issues statement in its market investigation into the supply of veterinary services for household pets in the UK.

The CMA made the market investigation reference on 23 May 2024.

The CMA has identified the following initial high-level theories of harm:

1.       concerns about lack of effective engagement by pet owners in the choice of the best veterinary practice

2.       concentrated local markets

3.       incentives of large integrated groups to act in ways that reduce choice and weaken competition

4.       overpayment by pet owners for medicines or prescriptions

5.       an outdated regulatory framework.

The CMA has also identified some potential remedies that may help to address these issues if one or more adverse effects on competition are identified in the investigation. These could include:

1.       information transparency remedies such as mandating what information should be provided to customers, as well as how and when this should be provided

2.       price remedies such as imposing maxima for prescription fees, or maximum prices or mark-ups for other services

3.       market opening remedies aimed to lower barriers to entry or otherwise to promote competition in the provision of certain elements of veterinary services. Remedies in this category could include targeted structural remedies.

The CMA invites comments on the issues identified by 30 July 2024.

https://www.gov.uk/government/news/cma-takes-next-procedural-step-in-vet-services-investigation

CAT rules that claims against MasterCard arising before June 1997 are time-barred

The Competition Appeal Tribunal (CAT) has ruled that Walter Merricks’ collective competition law damages claims against MasterCard are time-barred in respect of any loss suffered before 20 June 1997.

In January 2023, the CAT granted Merricks permission to argue that limitation periods should be postponed under both English and Scots law to allow for the inclusion of claims that had already been time-barred when the Competition Act took effect in 2003.

The CAT rejected the Class Representative's (CR) arguments that the operation of the primary six-year limitation period was suspended pursuant to either section 32(1)(b) or section 32(2) of the Limitation Act m1980. The CAT found no deliberate concealment of relevant facts nor any deliberate breach of duty for the purposes of these provisions. 

The CAT’s findings on the application of the EU principle of effectiveness are instructive.  The CAT ruled that “the EU principle of effectiveness does not impose a hard-edged rule that for such proceedings the limitation period cannot (sic) being to run until the ‘average class member’ can reasonably be expected to discover the relevant facts necessary to bring those proceedings or be aware that they have suffered harm as a result of the alleged infringement” (para 109).

Rather, “[s]ince the class representative is the person bringing the proceedings, we consider that for the purpose of the EU principle of effectiveness, the knowledge requirement should apply to the class representative. We have already observed that, here, the CR was very far from being in the position of the average class member or average consumer: para 61 above. The burden is on the CR to displace the operation of the primary limitation period and we did not hear any evidence as to what the CR knew or could reasonably have discovered” (para 110).

It follows that the CAT will be slow to displace the normal limitation rules by the EU principle of effectiveness.  The relevant knowledge is that of the CR and not the “average class member”. 

 

Case 1266/7/7/16 Walter Hugh Merricks CBE v MasterCard Incorporated and Others

Ruling on relief from sanctions in Rachel Kent collective action

 

The Competition Appeal Tribunal (CAT) has ruled on relief from sanctions in the collective proceedings brought by Dr Rachael Kent (the Class Representative (CR)), under section 47B of the Competition Act 1998.

The proceedings allege that Apple has abused a dominant position, in breach of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act.

The alleged infringements involve requiring iOS App developers to distribute iOS Apps exclusively via the Apple App Store.  It is further alleged that Apple device users are charged excessive and unfair prices represented by a commission charged by Apple on all purchases over Apple payment system.

In August 2023, the CAT ordered that the parties serve signed statements of witnesses of fact by 26 January 2024. The CR sought relief from the sanction set out in CAT Rule 55(2), to submit a witness statement of Christian Owens, dated 13 May 2024.

Although the failure to provide witness statements in accordance with the timetable directed by the CAT is a serious matter, the CAT concluded that the failure in this case was not of material significance and at the lower end of seriousness for the type of breach. It was found that Mr Owens gave evidence on 11 April 2024 in proceedings in an Australian court against Apple entities and the CR only became aware of that evidence shortly thereafter.

Dr Rachael Kent v Apple Inc and Apple Distribution International Ltd [2024] CAT 40, ruling on relief from sanctions

Judgment granting application by Ad Tech to bring collective proceedings against Google for abuse of dominance

 

The Competition Appeal Tribunal (CAT) has given judgment on the application for a collective proceedings order (CPO) brought by Ad Tech Collective Action LLP (the PCR) under section 47B of the Competition Act 1998, against Alphabet Inc, Google LLC, Google Ireland Limited and Google UK Limited.

The action concerns an opt-out claim concerning Google's alleged conduct in relation to sale of digital display advertising.

The application combines two standalone claims originally brought separately by Mr Claudio Pollack and Mr Charles Arthur for damages caused by alleged breaches by Google of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act 1998.

Google argued that the claim form was insufficiently pleaded so as to preclude certification at this stage because the Pro-Sys v Microsoft test was not satisfied.  The CAT rejected those arguments.   

The CAT held that limitation issues should be dealt with as part of the main trial, rather than as questions of strike out. The CAT further held that the points raised by Google as to a potential conflict of interest within the proposed class would be more effectively dealt with during the course of proceedings. The CAT also resisted a claim that the PCR should change the arrangements for its legal representation.

Ad Tech Collective Action LLP v Alphabet Inc and others [2024] CAT 38