The Chancellor of the UK ’s High Court dismissed a claim brought against British Airways (“BA ”) on behalf of a broad group of air-freight customers. The claimants, two flower importers, sued BA for damages resulting from BA ’s alleged involvement in an illegal agreement to fix prices for air-freight services. The claim was brought on behalf of the claimants and of all other direct and indirect customers that have purchased air-freight services at inflated prices. The Chancellor allowed the claimants to sue BA on their own behalf but ruled that the representative element of the claim should be struck out, because it was impossible to identify the members of the class unless and until the action was successful. The Chancellor also noted that conflicts would inevitably arise between the claims of different members of the class, e.g. between those that had absorbed higher air freight prices and those that had passed on the inflated prices to their own customers.
This judgment illustrates the difficulty of bringing an opt-out “class action” before UK courts. An antitrust class action is a lawsuit brought on behalf of the victims of an antitrust violation without the express consent of each of the victims (defendants can “opt out” of the class action). Both UK and EU authorities are debating legislative proposals aimed at facilitating antitrust class actions.