A two day hearing on whether a class action against property portal Rightmove should proceed on an opt-out basis or require businesses to register individually has concluded with no decision made as yet.
A Competition Appeal Tribunal has reserved judgment following a two day hearing. The collective, led by former Competition and Markets Authority (CMA) panel member Jeremy Newman, claims Rightmove abused its dominant position in the online property portal market by charging excessive and unfair fees to estate agents that list properties on its online portal.
Ahead of the hearing Newman said the claim should proceed on an opt-out basis because it alleges sustained anti-competitive conduct by Rightmove that has harmed a whole sector of the economy. Rightmove has not applied to have it struck out, so the claim is one that can properly be argued and tried.
He added an opt-in claim would cost more and reach fewer businesses, so many would have no realistic route to compensation. That is not in the interests of affected businesses and would benefit only Rightmove.
Opt-out supports the purpose of the collective actions regime he argued, which is to give people access to justice and to deter anti-competitive behaviour that harms the UK economy.
In the hearing Rightmove said it challenged the opt out on the basis affected businesses are identifiable and capable of deciding whether to participate; though it did not apply to strike out the claim which could cost as much as £1.5 billion. Rightmove did say it strongly denied the allegations, and will defend the claim, which it described as “without merit”, vigorously.
A compromise position was proposed under which businesses that spent more than £1m with Rightmove during the claim period would have to opt in.
Following the hearing Newman said: “Rightmove has not tried to strike out these claims. Instead, its focus is on how the case goes ahead, not whether it should.
“Rightmove wants thousands of small and medium-sized businesses to sign up one by one, which they know is costlier, riskier and more burdensome.”
“We remain confident that opt-out is the most realistic path to redress for the businesses impacted by Rightmove’s unfair fees.”
In reserving judgment, a “not unusual” step said Newman, the tribunal has not confirmed a decision will be made. He added he would not comment further “while a decision is pending.”
