Complex claims are being brought against Mastercard and Visa in an ongoing decade-long saga involving over 1,800 corporate claimants across the hospitality, arts, financial services, and leisure sectors. With three different strands of cases – Merricks v Mastercard, collective cards, and umbrella proceedings – lawyers involved are finding themselves in court almost weekly. The first of these, the Merricks claim, is the second collective proceedings to have ever been brought in the CAT, starting seven years ago. Judgment on a causation hearing came through in February, examining the veracity of the central facts, which ultimately determined that on the factual basis, the European interchange fees did not drive the UK fees. Cited as a success by Freshfields, a spokesperson for the firm commented, ‘this is a very significant judgment. It finds that over 90% of Mr Merricks’ case fails factually’. If the judgment is left to stand, the value of the claim will be reduced by £9bn from a total of £10bn. Merricks’ lawyers have indicated their intention to push for a trial on a counterfactual scenario, which if successful, would bring this amount back into play.
Commercial claims involving merchants and retailers, including an opt-in claim for large businesses with more than £100m in revenue and an opt-out claim for smaller businesses, will face a certification hearing in the first few days of April. The final proceedings are the high-profile umbrella cases, the first ever of their type in the CAT, pulling together all types of similar claims under the same banner and jointly case managing them. Ricky Versteeg at Freshfields comments that ‘almost everything in this claim is groundbreaking’, expanding that the umbrella proceedings procedure is almost a practice area in itself.
Trial one on liability of the first umbrella proceedings in the CAT first went to the courts in a six-week trial from 14 February. Trial two is set to follow in November, with an estimated six weeks commencing on 11 November. All interchange claims filed in the High Court have been transferred across to the CAT, and they are now being actively case managed by CAT President Marcus Smith and two other members of the Tribunal. This, according to Genevieve Quierin at Stephenson Harwood, is quite unusual, with the CAT liaising with the High Court and pulling all claims in together of its own motion, including those that have not been pleaded out and are stayed, with the outcome being binding on all claimants.
On Merchant Interchange Umbrella proceedings
For the Mastercard Scheme defendants: Timothy Otty KC and Naina Patel (Blackstone Chambers), Matthew Cook KC and Ben Lewy (One Essex Court) instructed by Mark Sansom and Ricky Versteeg (Freshfields)
For the Visa Scheme defendants:Simon Salzedo KC and Daniel Piccinin KC (Brick Court Chambers), Jason Pobjoy and Isabel Buchanan (Blackstone Chambers) instructed by Linklaters and Milbank
For the class representative in Merricks: Nicholas Saunders KC (Brick Court Chambers), Aidan O’Neill KC (Matrix Chambers) and Anneliese Blackwood (Monckton Chambers) instructed by Willkie Farr & Gallagher
For some Umbrella Interchange Fee claimants: Mehdi Baiou (One Essex Court) instructed by Humphries Kerstetter and Scott & Scott
For some Umbrella proceedings claimants: Ronit Kreisberger KC, Philip Woolfe KC and Antonia Fitzpatrick (Monckton Chambers) and Oliver Jackson (11KBW) and instructed by Stephenson Harwood
Commercial cards collective proceedings
For the proposed class representatives:Alexander Hutton KC (Hailsham Chambers), Flora Robertson (Blackstone Chambers) and James White (Henderson Chambers) instructed by Harcus Parker
For Mastercard: Sonia Tolaney KC, Matthew Cook KC and Veena Srirangam (One Essex Court) and Hugo Leith (Brick Court Chambers) instructed by Mark Sansom and Ricky Versteeg (Freshfields) with Nick Cotter and Sarah Batley (Jones Day)
Merricks collective proceedings
For Merricks: Marie Demetriou KC and Crawford Jamieson (Brick Court Chambers) and Paul Luckhurst (Blackstone Chambers) instructed by Willkie Farr & Gallagher
For Mastercard:Joe Smouha KC and Stephen Donnelly (Essex Court Chambers), Matthew Cook KC (One Essex Court) and Hugo Leith (Brick Court Chambers) instructed by Mark Sansom and Ricky Versteeg (Freshfields)