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SYNTHÈSE
Ben Tidswell
It is important to note the powerful leverage inherent in class actions, whereby defendants can face claims from large numbers of class members for significant amounts, which might well not have eventuated if the claims had to be brought as separate claims. This implements positive policy considerations of facilitating the disgorgement of anti-competitive benefits and chilling anti-competitive behaviour, but also carries the risk that class actions may be used unfairly or even oppressively by representatives. The Supreme Court in Merricks has emphasized the positive policy considerations and there remain various control mechanisms which the Tribunal can exercise to ensure that the proceedings are conducted fairly and appropriately. As a result, we are seeing a number of collective actions being filed on a regular basis for large amounts of money and large classes. That has quite quickly resulted in the development of a “claimant ecosystem” by which Ben means there has already become a reasonably standardised approach to things like funding arrangements, litigation plans, supporting advisers and so on. This trend has been assisted by the Tribunal’s efforts to ensure transparency, so that hearings are generally public and are broadcast on the internet, and transcripts are published on the Tribunal’s website.