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The Consumer Rights Act 2015 (CRA) introduced a new collective action regime to the competition law landscape in the UK, including the ability to bring opt-out actions. The defining feature of a collective action is that the Competition Appeal Tribunal (CAT) can consider a collection of individual claims together rather than considering all aspects of every individual claim separately. The UK’s collective action regime aims to facilitate redress for claims that might not otherwise be brought, while avoiding aspects of the US class-action regime. The fact that it can accommodate both opt-in and opt-out claims means it represents a potentially dramatic change in the competition law landscape. Opt-out claims introduce new opportunities for redress for potential claimants and may markedly change the risks and exposure of defendants in cases taken in the UK. Moreover, other member states are likely to draw lessons from the experience and, while the European Commission recommended that member states have collective redress systems by 2015, its recommendation was that they should, as a general rule, be based on the ‘opt-in’ principle. The development of the UK’s new regime has therefore potentially very significant ramifications for the approach across Europe. Two cases have so far reached the stage where the CAT has been asked to certify whether the matter can proceed to trial on a collective basis, Mobility Scooters and the MasterCard consumer case. This article first reviews the core legal test described by the CAT for class certification and then considers the key economic issues at the heart of these cases. The cases relate to two very different types of infringement. Mobility Scooters was a claim following an OFT infringement decision that manufacturer Pride had entered into vertical arrangements with eight of its UKwide online retailers which had as their object the prevention, restriction or distortion of competition in the market for mobility scooters by ‘prohibiting the advertising of below RRP prices online in respect of certain Pride mobility scooters between February 2010 and February 2012.’ In the MasterCard consumer case, the claim relates to a finding by the European Commission that the defendant acted unlawfully and in breach of Article 101 TFEU in establishing and implementing certain fees known as Multilateral Interchange Fees (MIFs), which retailers were required to pay on credit and debit card transactions.

Economic Analysis in Damages Actions—Insights from Recent Proceedings in the UK