A U.K. court has stalled one of three major price-fixing class action suits launched against salmon producers who serve the nation’s grocery chains.
The Competition Appeal Tribunal, which has jurisdiction over cases related to economic competition, refused to certify a request from Waterside Class Limited to proceed with a GBP 382 million (USD 519.5 million, EUR 441.8 million) collective action case it has proposed on behalf of British consumers against Mowi, Grieg, SalMar, Leroy, and Scottish Sea Farms.
In their refusal decision, judges overseeing the tribunal said the collective proceedings order (CPO) request from Waterside Class Limited v Mowi ASA and Others had failed primarily on procedural grounds, chiefly that Waterside’s estimated costs – which the judges called “inexplicably high” – would not justify the settlement it was seeking for the consumers it says were hurt.
Waterside Class Limited was established in 2024 to pursue a major class action suit against the salmon producers, which it alleges purposely inflated salmon prices between 2015 and 2019, affecting up to 44 million shoppers at numerous U.K. retailers including Aldi, Asda, Co-op, Iceland Foods, Marks & Spencer, Morrisons, Ocada, Tesco, and others.
Waterside alleged the salmon companies “unlawfully colluded to increase Atlantic Salmon prices, in particular by means of the manipulation of the NASDAQ Spot Price and through the unlawful exchange of commercially sensitive information regarding the prices and volumes of sales of Atlantic Salmon.”
It also claimed that between 2015 and 2019 the NASDAQ Spot Price and the average price of Norwegian Atlantic Salmon had risen “substantially without any explanation,” and linked its allegations of NASDAQ Spot Price manipulation to these price increases.
The class action would have included all consumers who purchased salmon from retailers during that time who did not opt-out from Waterside's suit. Waterside estimated that affected British consumers had lost between GBP 1.61 (USD 2.19, EUR 1.86) and GBP 8.77 (USD 11.93, EUR 10.14) each due to the alleged price-fixing.
In its rejection of the suit in its current form, the Tribunal wrote Waterside “failed to demonstrate that the likely benefits to the class [on whose behalf the case was brought] would be proportionate to the very substantial costs of the litigation.”
A key issue the Court found with the proposed claim was that the method by which Waterside planned to establish and assess damages was inadequate. The decision, offered by Justin Turner, Lesley Farrel, and Alasdair Smith, said that it was unconvinced that a class action suit was an “appropriate means for the fair and efficient resolution” of the issues at hand.
“At the heart of our concerns are the proposed legal costs of these proceedings as weighed against the anticipated sums which will be returned to the class,” they wrote.
The court’s decision was informed, its written decision said, by the fact that it currently has two other similar cases under consideration. Both Asda and Tesco have initiated similar class actions, and Grieg, Leroy, and SalMar are defendants in both cases, while Mowi is also a defendant in the Asda case.
The court indicated that these two proceedings were likely to be merged into a collective case, that would then, if certified by the court, go forward. The judgement asked why Waterside had not chosen to limit procedural costs by proceeding in tandem with the other class actions by Asda and Tesco, and suggested that Waterside consider doing so.
Ultimately the Court said that despite the certification refusal, it would not strike Waterside’s claim entirely, however, and invited the company to reformulate it and reapply to the Tribunal.
A number of legal experts in the U.K. have weighed in on the decision, saying that it sets new precedent with regard to the certification of class action suits, signaling that in future, claimants will need to offer clear plans about how they intend to distribute damages at the certification stage of the proceedings.
Lawyers for MacFarlanes, which provides legal services to corporate, private capital, and wealth management clients, for instance, wrote that future claimants should expect that their plans for distributing damages will be “closely scrutinized.”
Matthew Lo of Exton Advisors wrote that “given that the costs of bringing collective proceedings are, in anything, trending upward, one foreseeable consequence is that ‘smaller’ collective actions will cease to be economically viable.”
The judges indicated that a class action brought by Waterside in tandem with Tesco and Asda might meet this standard, saying that they saw “no reason why a scheme could not be devised … to return close to 100 percent of damages” to affected consumers. The decision added that “if these matters were addressed then the costs and benefits of the proceedings could be revisited.”
In a statement to SeafoodSource, Waterside Class Limited director Anne Heal said that while her organization was "disappointed" the claim had not been certified, it was encouraged by the invitation to resubmit.
"The judgement makes clear that this is the type of claim that can properly be brought on behalf of consumers, and that there should be a route for people to recover losses where they have paid unfairly high prices for salmon,” Heal said.
