UK Competition Appeal Tribunal certifies first opt-in class in collective proceeding

On June 8, 2022, the Competition Appeal Tribunal of the United Kingdom (“Tribunal”) certified for the first time an opt-in class action pursuant to s. 47B of the Competition Act 1998. The opt-in class action was brought by the Road Haulage Association Limited (“RHA”), a trade association. In certifying the RHA’s proposed action, the Tribunal refused certification of the competing opt-out class action that UK Trucks Claim Limited (“UKTC”), a special purpose vehicle established to pursue the litigation, had applied for.

In July 2016, the European Commission found that five European truck manufacturers -- DAF, Daimler, Iveco, Volvo/Renault, and MAN (“OEMs”)* -- had, between 1997 and 2011, continuously infringed Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement by exchanging information about prices, and colluding on when to pass on the costs of new emissions technologies.**

Relying on that decision, purchasers brought thousands of damages claims against the OEMs in the United Kingdom and throughout Europe.  In the UK, additionally in 2018, two applications were made to certify class actions, one on an opt-in basis and one on an opt-out basis.

In considering the two applications for class actions, the Tribunal first noted the differences between them.

Characteristic

UKTC Claim

RHA Claim

Seek follow-on damages

Yes

Yes

Collective proceedings brought on an opt-out basis

Yes

No

Collective proceedings brought on an opt-in basis

No

Yes

Seek aggregate damages

Yes

No

Covers only new trucks

Yes

No

Covers new and used trucks

No

Yes

Covers trucks acquired in the UK

Yes

Yes

Covers trucks acquired in the EEA

No

Yes

Covers trucks acquired before end 2011

Yes

Yes

Covers trucks acquired before 18 May 2019

No

Yes

Proposed class includes haulers, excludes dealers

Yes

Yes

Includes truck lessees under 12 months, includes short-term rental contracts

Yes

No

Excludes truck rental companies but includes truck lessees of any period

No

Yes

Seeks operational costs impacted by delayed fuel emissions implementation

Yes

No

Seeks higher fuel cost caused by delayed fuel emissions implementation

No

Yes


Relying on the court’s reasoning in Merricks SC, the Tribunal accepted that both UKTC and RHA satisfied the standard for class representation.  The Tribunal then turned to a detailed analysis of whether each proposal addressed issues common to all class members, the methodologies proposed by each, and whether the proposals met the requirement of suitability to be brought in collective proceedings rather than in individual proceedings.  The Tribunal concluded that, with some amendments, both the UKTC and RHA claims met all of the prerequisites for collective proceedings.

Crucially, however, the Tribunal found that the actions overlapped in significant ways, and that it would defeat the purpose of collective action were the court to certify both proposed classes.  The court compared the primary elements of the UKTC and RHA claims, finding that, while in some areas neither had a distinct advantage, the inclusion of used trucks, the longer run-off period (with limitations), and the method of emissions delay calculation favored the RHA application.

The Tribunal’s focus, though, was on what it termed “the most fundamental difference between the two applications”:  the opt-out versus the opt-in class.  The Competition Act allows for both opt-in and opt-out classes, directing the court in Rule 79(3) to take all relevant matters into account, including the strength of the claims and whether it is practicable, under the specific circumstances, for the action to be brought on an opt-in basis.

The Tribunal viewed in a favorable light measures taken by the RHA -- for example the establishment of a website in 2017 providing information and enabling potential class members to register, coupled with the fact that by March 2021 over 15,000 operators had signed up, and the data provided by opt-in systems that would enable expert economists to more accurately estimate damages.  

Having weighed these factors, the Tribunal certified the RHA application with the proviso that it make certain adjustments to the definition of the plaintiff class.

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**Collectively, these truck companies are called Original Equipment Manufacturers or “OEMs.”

**Another truck manufacturer, Scania, was the subject of a separate Commission decision that resulted in the imposition of a €880 million fine for its collusion with the other truck companies; this decision is currently on appeal to the Court of Justice of the European Union.

Judgment 

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