Putting The Carriage Into Reverse: The CAT Resolves To Determine A Carriage Dispute In 'Opt-Out' Class Action Proceedings As A Preliminary Issue

• Jurisdiction: United States,Federal
• Law Firm: Milbank LLP
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Arbitration & Dispute Resolution, Class Actions, Advertising, Marketing & Branding
• Author: Mr Julian Stait, Cormac Alexander, Emma Hogwood, Mark Padley and Emily Norton
• Published date: 15 June 2023

In a break with the previous practice of the Competition Appeal Tribunal ("CAT"), the President of the CAT¹ has recently decided that the resolution of a 'carriage' dispute (i.e., the question of which proposed class representative ("PCR"), where there is more than one, should have conduct of the proceedings) should generally be decided by way of a preliminary issue, before the certification hearing (the "Judgment").² As we discuss further below, this decision is likely to be followed in subsequent cases and may streamline the process of commencing and certifying a class action where there are multiple PCRs vying with each other to take carriage of the dispute - to the potential benefit of both PCRs and defendants.

The proposed collective proceedings and the CAT's decision

The Judgment was given in proposed collective proceedings against Google concerning an alleged abuse by Google of its dominant position in the online advertising market to the alleged detriment of online publishers. The claim is a standalone action,³ although, to some extent it follows on from a decision of the French competition authority (which has no binding authority in England) in which Google was fined EUR 150 million for abusing its dominant position in the search advertising market.⁴ The U.S. Department of Justice and the Attorneys General of a number of U.S. states have also sued Google in the U.S. District Court for the Eastern District of Virginia concerning alleged abuses relating to key digital advertising technologies.⁵

The first application for a collective proceedings order ("CPO") was made by Mr Pollack on 30 November 2022, with Mr Arthur filing a subsequent application on 29 March 2023. The issue of whether to determine the carriage dispute by way of a preliminary issue was heard by the President on 19 May 2023, who handed down judgment very soon after on 26 May 2023.

At the outset, the Judgment notes that, in Mr. Phillip Evans and Michael O'Higgins FX Class Representative Limited v. Barclays Bank plc and others,⁶ the CAT had decided not to hear the carriage dispute as a preliminary issue in advance of certification. The carriage dispute in the Trucks litigation was also resolved at the certification stage,⁷ although the issue of carriage in that case was intrinsically linked to whether the proceedings should be certified on an 'opt-in' or 'opt-out' basis,⁸ with the two PCRs taking different approaches in this regard.

In considering the previous decision in FX, the...