CAT refuses to certify forex collective claims on an “opt-out” basis

04 Apr 2022

The Competition Appeal Tribunal has refused to certify two applications for collective proceedings on an “opt-out” basis.

The two competing applications were brought by O’Higgins (represented by Scott+Scott) and Mr Evans (represented by Hausfeld & Co). Both advanced claims against major banks seeking compensation for alleged losses sustained by buyers and sellers of G10 currencies in foreign exchange markets.

The Tribunal, by majority, upheld the objection of the banks and refused to certify the applications on an “opt-out” basis. It also granted three months to O’Higgins and Mr Evans to decide whether or not to amend their applications so as to proceed on an “opt-in” basis.

Collective proceedings which are certified on an “opt-in” basis will usually be much smaller, and hence much harder to fund, than proceedings which are certified on an “opt-out” basis. Indeed, both O’Higgins and Mr Evans submitted to the Tribunal that forcing them to proceed on an “opt-in” basis would have the effect of stifling their claims.

A link to the judgment is here.

Ronit Kreisberger QC and Thomas Sebastian acted for MUFG (instructed by Herbert Smith Freehills).

Daniel Beard QC, Rob Williams QC and Daisy Mackersie acted for JP Morgan (instructed by Slaughter and May).

Josh Holmes QC appeared on behalf of the NatWest/RBS Respondents in Cases 1329 and 1336 (instructed by Macfarlanes LLP).