A summary of the panel discussion on "What constitutes best practice for distribution and communication with the Class" at the 2024 ThoughtLeaders4: Competition Collective Actions Forum
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Thought Leaders 4 (TL4) hosted their annual Competition Collective Actions Forum in June this year, bringing together experts across competition law and litigation. The forum and discussions throughout the day shed light on the current health of the class action landscape which is expected to continue to grow, and the current challenges faced in engaging with the class and ensuring the best outcome for consumers. Shieldpay heard from the Competition Appeal Tribunal, and spoke on a panel discussing best practices in distribution and communication within competition class actions.
An introduction from the Competition Appeal Tribunal (CAT)
Sir Marcus Smith, president of the Competition Appeal Tribunal (CAT), provided the keynote for the conference, offering invaluable insight into the CAT’s observations around current class actions. His presentation outlined their key concerns and how they can be tackled, along with projections and focuses for future cases. In particular, Sir Marcus Smith highlighted two key findings the CAT have identified within the market that speak to the significance of competition class action cases right now.
The first is that class actions are currently on the rise. At the moment, there continues to be increased activity in the market, with over 50 class actions currently making their way through the courts. The CAT is anticipating an increase in the number of class action disputes, adding to an ongoing healthy landscape for the class action regime. With this growth in the market it’s important for the industry to prepare for the volume of cases, and finetune the process in place for them.
The second is that the CAT has identified competition as a “test bed” for small matters coming together to form class actions. This means the work currently being done by firms and third-party providers within competition cases will be instrumental in paving the way for class actions across different sectors.
The CAT has identified some key focuses for the class action regime to encourage its efficiency and success, including:
- Succinct applications that appeal to courts.
- Working to the class’s unique needs to get the best results for the participants.
- Getting more of the class on board and involved in cases.
- Open communication to the class throughout the case.
- Adopting best practices around funding and payments.
Discussions that followed in the Competition Collective Actions Forum tackled these key focusses head on, drawing insights from different angles and positions within the market together to better understand and develop the landscape.
Best practice for distribution and communication with the class
Shieldpay’s Chief Growth Officer Claire Van der Zant joined a panel alongside Justin Le Patourel, Class Representative in Justin Le Patourel v BT Group PLC; Anna Morfey from Ashurst LLP; Loree Kovach from Epiq; and Paul Stuart from Cleary, Gottleib Steen & Hamilton LLP, to discuss best practices in distribution and communication of class action payments with class members. The discussion centred around how solutions, including legal tech, can be used to tackle challenges in order to reduce risk and improve the overall experience for participants.
Panellists referenced the recent Spottiswoode class action case, where a method of distribution had not been identified in advance of the judgement, creating uncertainty around the outcome of the class action and a degree of pessimism around its overall benefit to consumers. The judgement ruled that “it is axiomatic that, in order for collective proceedings to fulfil their primary objective of compensating members of the Class, there must be an effective method of distribution, enabling members of the Class to be identified and contacted and maximising the take-up of compensation”. The Tribunal has insisted on a detailed distribution plan at the certification stage in order to facilitate payments reaching consumers, emphasising the importance of setting up a clear path for payment distribution early on in proceedings.
The case highlighted the importance of working upfront to plan how to communicate and engage class members throughout the long legal process. The large size of the class and the difficulties associated with gathering evidence to receive compensation posed a challenge to reaching consumers within the class, however assessing these in advance and working to provide solutions to each of these issues would help to ensure that class members ultimately receive funds at the end of the case. This informs a key part of the cost benefit analysis the tribunal must carry out to understand the sustainability of the claim.
A crucial step to assessing potential challenges and risks within distribution is understanding the class. Legal teams, experts and administrators involved can better understand the class by researching their demographics and requirements. For example, assessing the best way to reach them taking into consideration their age, how much time they have on their hands, and what their typical methods of communication are - from social media to email to over the phone. Meanwhile, some claimants may not have a bank account, while others may have mass debt. Some classes will be larger and more varied than others in terms of demographics, and all factors should be taken into consideration when drawing up plans for distribution, in order to reach as much of the class as possible.
Communication of key concepts and messaging throughout the case is also integral to successful consumer take up. Correspondence should be simplified, removing complex jargon to ensure the message is well-understood. This includes transparent updates to the progress of the case with timelines, and straightforward communication around what information is required from the class and when.
Technology can be used to help reach potential claimants in ways that make sense to them. For example, using technology to efficiently update claimants on the status of their case in real time and improve the accessibility of the class action information. Technology can also be used to securely request and store data needed for payment from claimants, which is crucial to reducing the risk of misdirecting funds and should reassure claimants that data provided for payments is secure. Third parties have a strong understanding of the challenges within class action cases, and are continually working to build and improve solutions around them. This includes understanding different needs and requirements within the class, and tailoring solutions to ensure maximum outcomes amongst claimants.
Reputation and trust are also imperative on both sides of the case. Many cases will go on for a long time, with large class action groups to consider and keep informed about the progress of the case and when they are likely to receive payment. The plaintiff needs to ensure they are meeting their clients needs and humanising the process in order to keep them engaged throughout the process. Meanwhile, the defendant should be thinking about treating customers fairly across the class, and minimising damage to their brand and business over time.
In summary
We are currently sitting in a crucial time for competition class actions, where the work done by the CAT and the wider industry will be instrumental in improving class action cases of the future. This exciting landscape provides opportunities for building upon the valuable tools, expertise and technology we already have at our disposal to ensure the successful scaling of the class action regime, and achieve the best outcomes for participants.
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