Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
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Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
THE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepteduspicious start for the UK’s first opt-out class action regime. Neither of the first two collective proceedings (as the regime, principally embodied in the Competition Act 1998. terms them* 1 * * * * * * * *) has made it past certification — and there have only been the two claims filed at the time Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedof writing. Its commencement has been something of a ‘slow-bumer’. as potentially suitable cases are identified for litigation by both law firms and tMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
hird party funders?Whilst the Competition Act regime (the ‘CA regime’) caters for both stand-alone and follow* on actions arising from competition lawTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedurisdiction is vested? has been confronted with two quite different follow-on collective actions, against which to test the legislative phraseology and ethos of this new procedural tool.Chair of Tort Law and civil Justice, Department of Law, Queen Mary University of London, UK. The author is a servi Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedng member of the Civil Justice Council of England and Wales (CJC); was a member of the Competition Appeal Tribunal (CAT) Class Aơions Working Party whMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
ich was responsible for drafting rules of court for the class aơion regime enacted in the Consumer Rights Act 2015 (UK): and advised the Dept for BusiTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedn a personal academic capacity, and should not be taken to necessarily represent the views of any entity with which the author is associated, or of which the author is or was a member.McHugh Chair in American Institutions and Leadership, Department of Political Science, Colorado College, Colorado Sp Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedrings, Colorado, USA. The author gratefully acknowledges the support of the US-UK Fulbright Commission, which allowed for the research and writing ofMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
this article while the author was a Fulbright Scholar at Queen Mary University of London Department of Law.Per s 47B(1) of the Competition Act 1998 (*THE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted2015. Various amending provisions were inserted into both the Competition Act 1998 (‘CA 1998') andthe Enterprise Act 2002. Supporting court rules were inserted into the Competition Appeal Tribunal (CAT)Rules 2015 (SI 1648/2015). Pt 5. rr /3-98.Whilst percentage contingency fees are banned in opt-out Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted collective proceedings (per CA1998, s 47C(8)). third party funding is not prohibited. In the first two aơions filed, third party fundersfunded part'aMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
ll of the representative claimant's own legal costs and disbursements, and undertook to coveradverse costs if required, signifying the importance of tTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedor 'an alleged infringement' stipulated in either the CA 1998 or the Treaty on the Functioning of the EU, per CA 1998, s 47A(2). Follow-on actions occur where some infringement has previously been found by either the Office of Fair Trading (OFT) or the European Commission (EC).■*Per CA 1998, s47B(l) Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted.'£ Rachael Mulheron and Douglas Edlin 20181The first collective proceeding filed, that of Gibson V Pride Mobility Products Ltd (‘Mobility Scooters’).Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
5 concerned proven infringements against the defendant constituting resale price maintenance of certain models of mobility scooters. The class action THE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedhe representative claimant’s agreeing to pay adverse costs of almost £310,000/The second action, that of Merricks V Mastercard Inc (’Mastercard'),6 failed outright at certification. An application for special leave to the Court of Appeal was thereafter rejected by the CAT,9 on two bases: (1) that th Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedere was no jurisdiction conferred by the CA regime to permit any appeal to the Court of Appeal;10 and (2) that, even had such jurisdiction existed, thMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
e CAT did not consider that the case ‘would have any real prospects of success’ on appeal.11 * At the time of writing, a ‘rolled-up appeal'11 has beenTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedew of the CAT’s refusal to certify.13 A significant interim adverse costs award against that claimant has also been ordered by the CAT.14 * What happens next in the Mastercard action is crucial, given that other high-profile class actions are reportedly waiting in the wings.13The Mobility Scooters d Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedecision set an important and landmark point of precedent for the UK’s fledgling opt-out class action — viz, that any follow-on class action must relatMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
e to the actual12017] CAT 9 (President Roth, and members Glynn and Stuart; dated 31 Mar 2017). It followed a finding by the OFT of an infringement of THE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedrothy_Gibson250517>.That sum represented 60% of the defendant’s costs of defending the certification application.12017] CAT 16 (President Roth, and members Mayer and Potter, dated 21 Jul 2017).Merrtcks V Mastercard Inc [2017] CAT 21 (dated 28 Sep 2017).Specifically, by reference to CA 1998, s 49. An Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Acceptedalysis of that point lies outside the scope of this article, but is discussed further in: M Armitage and J Williams, ‘Some Tilings Money Cannot Buy: LMulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
essons Learned from the Latest Judgment under the UK’s New Regime for Collective Competition Law Claims’ (2018) 37 CJQ 49. 60-61. and see too. the relTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted].Per CPR 52.4.The press release dated 27 Oct 2017, and lire statement of facts and grounds for each application, are locatable at:Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted
July 2016, has been widely discussed: M Walters, ‘Litigation funder backs £100M trucking cartel claim’ (Law Society Gazette,14 Nov 2017); Collyer BriTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most au Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 Accepted Berwin Leighton Paisner,‘Declined: Competition Appeal Tribunal strikes out collective action brought against Mastercard’ (26 Jul 2017).•& Rachael Mulheron and Douglas Edlin 20182 Mulheron The mere mirage of a class action- A challenge to Merricks v Mastercard Inc 2018 AcceptedTHE MERE MIRAGE OF A CLASS ACTION? A CHALLENGE TO MERRICKS V MASTERCARDRachael Mulheron' and Douglas E EdlinA. IntroductionIt has not been the most auGọi ngay
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