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Director Mohsin Patel comments on the CAT’s ruling on Proposed Class Representatives in Law360

Director Mohsin Patel comments on a recent Competition Appeal Tribunal ruling in which it refused to certify a class action against Amazon and Apple due to concerns over the proposed class representative, and discusses the impact of this on future consumer claims.

Mohsin’s comments were published in Law360, 21 January 2025, and can be found here.

“As the first outright refusal of certification by the CAT since the FX Claim this decision will serve as stark reminder that, despite the bar being low, the CAT will not necessarily just ‘rubber-stamp’ a CPO and will proactively intervene where there are any concerns as to the suitability of the Proposed Class Representative (‘PCR’) or indeed aspects of the funding arrangement.

“Remarkably, given the fact that the Defendants were not actually challenging certification at the outset and Tribunals generally being slow to interfere with the intricacies of funding arrangements at CPO stage, many will sympathise with the position of Professor Riefa being the first ever PCR to be cross-examined at CPO stage. However, the CAT was clearly unconvinced that she had demonstrated “sufficient independence or robustness so as to act fairly and adequately in the interests of the class”. The CAT reminds us that a PCR cannot be “merely a figurehead…but must act as an independent advocate for the class”

“Going forward, it is essential that Class Representatives understand and indeed where appropriate challenge the funding terms that they are agreeing to sign and ensure that they receive independent advice (both legal and commercial) on said terms. Given the inherent conflicts of interest that exist between stakeholders in any collective proceedings, Class Representatives must take demonstrably proactive steps to ensure that the interests of the class remain paramount.

“It is also clear that funders will need to consider their position on questions of confidentiality and privilege at the outset given the very nature of opt-out class actions.

“It is however somewhat regrettable that the CAT was not more forgiving to the PCR in allowing her to rectify some of the concerns including through the formation of an advisory panel in support of the claim. Ultimately, the net beneficiary of the CAT’s decision are the big-tech giants, and the losers are UK consumers.

“Somewhat ironically, the outcome of this judgement and the substantial cost wasted as a result, only serves to add to the uncertainty and risk factor funders apply to their pricing models when agreeing to fund claims. Only to then be criticised by behemoth Defendants for pricing in said manner.”