The UK Competition Appeal Tribunal (“CAT“) has ruled for the first time that collective proceedings can only proceed on an opt-in basis, rather than the opt-out basis sought by the class applicants. The ruling came in the O’Higgins/Evans [1] case, concerning two competing applications for a Collective Proceedings Order (“CPO“) in respect of claims for alleged loss relating to anti-competitive conduct in foreign exchange (“FX“) trading. In a majority judgment, the CAT ordered that both applications for a CPO be stayed and that the applicants are given permission to submit a revised application for certification on an opt-in basis within a three-month period. The following notable points emerge from the 255-page judgment: First, CPO applicants are not guaranteed the ability to bring opt-out
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The UK Competition Appeal Tribunal rules that class action proceedings may only be brought on an opt-in basis where the class of potential complainants is sophisticated and thus opt-in is practicable (O’Higgins / Evans)
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