March 31, 2023

Willkie recently secured a significant victory in a high-profile and landmark collective action against Mastercard – the first collective action to be certified in the United Kingdom – on behalf of 45.5 million consumers who allegedly paid higher prices due to Mastercard’s unlawful interchange fees, resulting in damages of approximately £17 billion. 
On March 21, the UK Competition Appeal Tribunal issued a judgment in favor of Willkie client Mr. Walter Merricks CBE, the class representative in the collective action. The litigation follows the European Commission’s 2007 infringement decision holding that the way in which Mastercard set its multilateral intra-EEA interchange fees (EEA MIFs) from 1992-2007 was anticompetitive and therefore illegal. The Tribunal’s judgment determined whether Mastercard is entitled to argue in the counterfactual that the level of EEA MIFs would have been at some ‘exemptible’ level above zero. The Willkie team, on behalf of Mr. Merricks, successfully argued that a zero EEA MIF is the only permissible counterfactural, and that allowing Mastercard to argue an alternative EEA MIF would go against the European Commission’s infringement decision and also aiming to an abuse of process under English law. 
The judgment represents an important win for Mr. Merricks in his groundbreaking lawsuit against Mastercard, and for the millions of consumers seeking billions in damages. This is the first ruling on the substantive issues in dispute and strikes out a major part of Mastercard’s defence. Had Mastercard prevailed on the permissible level of the interchange fees, it would have had significant implications on the determination of the unlawful overcharge and would have allowed Mastercard to seek to substantially lower the quantum of damages. 
In addition, the Tribunal adopted Mr. Merricks’ arguments on applicable law, establishing that it should be determined according to where the loss was suffered, as opposed to where the restriction of competition took place, rejecting Mastercard’s attempt to complicate the proceedings by arguing numerous different foreign laws applied. Mr. Merricks also successfully established that the claims of Scottish consumers are all within time, again rejecting Mastercard’s arguments that claims to which Scots law are time barred. 
Willkie represents Mr. Merricks in the collective action, which in 2021 became the first mass consumer action to be approved in the UK. The lawsuit alleges that 45.5 million UK consumers suffered around £17 billion in damages as a result of Mastercard’s unlawful EEA MIFs between 1992 and 2007.

The Willkie team is led by partners Boris Bronfentrinker and Nicola Chesaites, and includes associates Adele Behles, Aadil Master, Charlotte Ruffell and Oliwia Siutkowska.