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A London tribunal has dismissed a significant portion of claims from a £10 billion ($12.7 billion) class action against Mastercard, citing that the allegations were time-barred. The decision on Wednesday addresses claims that Mastercard concealed information about its interchange fees from consumers.

Mastercard Time Barred Claims : Tribunal's Findings on Interchange Fees

The Competition Appeal Tribunal (CAT) rejected consumer advocate Walter Merrick's argument that Mastercard had deliberately hidden relevant facts from consumers through confidentiality agreements with its member banks. The tribunal concluded that claims for losses suffered before June 1997 were time-barred.

"There was no hiding the fact" that Mastercard set European multilateral interchange fees (MIFs) for cross-border transactions, said Judge Peter Roth, who led the panel of three. He emphasized that no other entity, apart from the international payment organizations, could set these international MIFs.

Scope of the Class Action

The class action represents approximately 46 million adults in the U.K., alleging that consumers paid higher prices in shops between 1992 and 2008 due to excessively high swipe fees charged by Mastercard. A liability hearing took place in July. The case stems from the European Commission's 2007 finding that Mastercard infringed on EU competition law through its imposition of multilateral interchange fees on retailers.

Mastercard Time Barred Claims : Judge's Rationale

Judge Roth concluded that Mastercard did not hide the actual levels of the charges or the methodology for setting them. "Given the information in the public domain regarding the broad range of interchange fees, we consider that there was no deliberate concealment of the fact that the European Economic Area MIFs were 'appreciably above zero,' in the relevant sense here of 'appreciable,'" he stated.

The tribunal also found that applying limitations under English law does not breach the EU principle that it is essential for anyone harmed by competition law infringement to bring a claim for damages.

Historical Context and Legal Journey

This case marks the first mass consumer action under the U.K.'s collective action regime, introduced in 2015 under the Consumer Rights Act to help individuals recover losses from competition law violations. The tribunal initially refused to approve the claim in 2017, expressing concerns about assessing consumer losses. However, the U.K. Supreme Court overturned this decision in December 2020, endorsing a more lenient standard for determining whether an antitrust case merits collective status.

Mastercard Time Barred Claims : Reactions from Parties

A Mastercard spokesperson stated that Wednesday's decision "reinforces what we have maintained since this case was first filed — Mr. Merricks' claim is fundamentally flawed and should be thrown out entirely." Freshfields Bruckhaus Deringer LLP, representing Mastercard, said the CAT "has found emphatically for Mastercard on the limitation issues that were before it, which it has described as 'undoubtedly of great practical significance' to these proceedings."

A representative for Merricks did not immediately respond to a request for comment.

Legal Representation

Mastercard is represented by Sonia Tolaney KC, Matthew Cook KC, and Daniel Benedyk of One Essex Court, and Hugo Leith of Brick Court Chambers, instructed by Freshfields Bruckhaus Deringer LLP. Merricks is represented by Marie Demetriou KC, Victoria Wakefield KC, and Allan Cerim of Brick Court Chambers, and Anneliese Blackwood of Monckton Chambers, instructed by Willkie Farr & Gallagher LLP.

The case is Walter Hugh Merricks v. Mastercard Inc. and others, case number 1266/7/7/16, in the Competition Appeal Tribunal.