FOC TYPES
A/-FOC on same coa, between same parties, is only allowed in the DOCTRINE OF COA ESTOPPEL:
Zurich v Hayward : the RJ judgment was obtained fraudulently…..no time limit if the fraud included CONCEALMENT… …FOC to set aside the judgment and also to seek liability against (Directors, lawyers, witnesses, auditors, accountants etc) on grounds like assisting crime/fraud; co-conspiracy; complicity; liability for contempt of court (knowingly giving dishonest evidence/statements to the court eg intentionally destroying evidence (eg from mobile phone))
B/– FOC between totally different parties….eg:-identify co that can FOC ftc/cta…maybe they did not know it (due to concealment? if so, no time limit).
C/-FOC by cocoo as a stranger….
COCOO as a STRANGER (on the same or on a different coa) v a RJ party, on BOTH the binding (RJ) and non-binding PLFs…FOC on the binding PLFs need no evidence of anticompetition: I only need to prove that the behaviour caused loss to the public purse, or to someone else, and the quantum……Alternatively, I CAN set up ltd co with the sole purpose (spv) to limit liability if losing….[padi’s trustees are personally liable]….Casehub Ltd v. Wolf Cola Ltd are claims assigned to a third party were permitted to proceed . The Casehub judgment is particularly interesting, in that their business model was described by the court as ‘a company which builds consumer group actions online’ – appears similar to the practice seen in other jurisdictions of SPVs ‘bundling’ assigned damages claims.
egs of cocoo focs as a stranger:
c.1/ cocoo will find rj decisions on crime/fraud: eg tax evasion, money laundering, etc…[[why? : LPP does not cover communications that enable crime or fraud, even if the lawyer was not aware of the wrongdoing]] ….cocoo foc, after seeking :
-FOIA s.3: foia applies to [professionals who work for] public bodies, or for uk publicly owned companies, or under tendered contract
-SRA Publication Scheme; Accountants reg.body publication scheme, etc… i can ask for disclosure of communications by private professionals
c.2/ cocoo’s JR : (3m TL) v RJ decisions of FTC/CTA/CMA (decision flaws?; hard to comply court orders? )
c.3/ cocoo FOC v (anchor defendants = subsidiaries of a company held (RJ) anticompetitive via restructuring)…..skanska judgment: if a company tries to avoid its obligations through restructuring, the subsidiaries or group of companies can be anchor defendants (as privies to the parent, in other jurisdictions)
c.4/ cocoo FOC v a settlement decision ( by CMA/CTA/etc ) . Settlement has flaws?; the content of the settlement helps me identify whether which other company has right to FOC?
c.5/ cocoo FOC v the concealing company (that litigated v the Gelmatos in the RJ)….OR, advise Gelmatos (cos that do not fully know they still* have a FOC because of concealment – of the fact they can FOC-) …..COCOO looks into RJ JUDGMENTS (BY EC/CFI(GC)/ECJ…..CAT/CMA) : published judgements; or still unpublished judgments (if still unpublished, this helped the now defendants conceal the Gelmato’s possiblity of FOC)….FOC HAS NO TL…BECAUSE THE LIMITATION CLOCK HAS NOT STARTED TICKING THANKS TO CONCEALMENT: section 2 of the Limitation Act: tort claims are time-barred six years from the date of coa….EXCEPTION: where there is “deliberate concealment” of facts relevant to the coa, the limitation clock only starts to tick from the time a claimant discovered, or could with reasonable diligence have discovered, the relevant facts.
cocoo APPROACHes GELMATOS:
Advice companies with right to FOC (and do not know yet because of their incompetence, or because of Concealment – in which case there is no TL)…section 2 of the Limitation Act: tort claims are time-barred six years from the date of coa….EXCEPTION: where there is “deliberate concealment” of facts relevant to the coa, the limitation clock only starts to tick from the time a claimant discovered, or could with reasonable diligence have discovered, the relevant facts. Use an NDA to disclose , (eg. to Gelmatos), Padi’s Position Paper/Research/DueDiligenceReport/Remedies, and an offer of instruction as a CFA lawyer, as consideration for my researchetc)..The report finds possible recklessness/negligence of the Directors in failing to issue a claim v the anticompetitors, to obtain compensation for Gelmatos). padi will imply to Gelmatos that refusal could mean, inter alia:
-sell the package to shortsellers, and then to the news, and
-contact consumers affected to organise a class action by making an application for a collective proceedings order (CPO), and/or
(about the possible recklessness of Directors in failing to issue claim to obtain redress for their company)
-contact the largest shareholders (in confidentiality) of the company … or padi buys shares and ask shs to relinquish votes….to press the Directors to let me PAP.. or to start shareholder action v company for not starting the claim…..
cocoo APPROACHes THE VILLAINS
I will ask for an interview to the infringing companies and, in confidence, show them padi’s research, due diligenge report and Position Paper , to sell the package to them… make them know that , if they refuse i can organise sh action*, or alternatively sell the package to shortsellers, and then to the news .
*contact main shs (and i buy shares) in confidentiality about my report, to organise sh action v infringing cos for the competition infringements….. that affected the company (regulatory hugh fines etc) and the shs did not know… thus, the limitation clock for the sh action has not started to tick.
FOCS CLASS ACTIONS
Governments (so as to save money) would prefer the enforcement of competition policy to be done by affected companies and individuals rather than taxpayer-funded competition authorities. They therefore encourage those that are damaged by anticompetition to sue (private actions)…eg: “Follow-on” or “piggyback” claims (FOCS):
Where a decision of the CMA, or the CAT on appeal from a decision of the CMA, has already found an infringement of Chapter II prohibition, third parties who consider they have suffered loss may bring an action for damages (follow on action), against the undertaking/s, in the CAT, or in the ordinary courts. The CAT and the courts will be bound, in such proceedings, by the relevant infringement decision, provided that the decision is no longer capable of being overturned on appeal.
Decisions (on anticompetition) of CMA and EC (the regulators) that are binding, offer an opportunity to victims to issue a followon claim – either before the Ordinary Courts or the CAT/ECJ, without having to prove again the unlawful behaviour, so they only need to prove whether the behaviour caused loss to the claimant; and if so, how much….Unfortunately, however, is very difficult to get court damages because:
- is very hard to quantify the loss caused by a cartel.
- buyers are often small and dispersed; and
- larger, immediate buyers can sometimes pass on the costs to downstream buyers so it is hard to identify who has lost what.
- Despite the ease of FOCS, it is not realistic to expect such actions by millions of consumers who have each lost, say, £10, so the 2002 legislation allowed “super-complainants” like the consumer body Which? to bring follow-on class actions on their behalf.
The Government introduced changes intended to make it easier to bring ‘collective proceedings’ (class actions) in 2015, introducing a new power for the CAT to approve ‘opt-out‘ class actions. There were initially not many collective proceedings as
- the litigation still need to be funded,
- the lead body (such as a consumer body) would need to pay the defendants’ costs if the action is unsuccessful, and
- the fundamental problems mentioned above still get in the way
Interestingly, Aspen Pharmacare offered to pay the NHS £8m to help settle a 2017 investigation in which the company was alleged to have entered into anticompetitive agreements and abused its dominance in relation to the supply of fludrocortisone acetate tablets. also, some utility regulators requiring companies to reduce customers’ future bills as compensation for past regulatory misdeeds. …. much better than complex lengthy litigation in which the main beneficiaries seem to be lawyers.
https://globalcompetitionreview.com/guide/private-litigation-guide/
Initially, the regime allowed a consumer representative organisation (eg Which?) designated by the Secretary of State to bring ‘follow-on’ damages claims in competition cases on behalf of consumers (on an ‘opt-in’ basis only). However, just one case was brought (the case settled, with costs understood to have far outweighed the settlement). Also, only 130 claimants opted in, which was less than 1 per cent of those estimated to have been affected.
But from 2015, the Consumer Rights Act 2015 now allows collective claims to be brought by businesses as well as consumers, in stand-alone as well as follow-on cases, and on an ‘opt-out’ basis as well as an ‘opt-in’ basis.
From 1 October 2015, Section 47B CA98 collective competition claims can be brought by businesses as well as consumers, in stand-alone as well as follow-on cases, and – most significantly – on an opt-out basis as well as an opt-in basis. The claimant (called class representative) now can be either a class member or a representative individual or body, subject to authorisation from the CAT.
to bring collective proceedings pursuant to Section 47B is required prior application to the CAT for a CPO. Also, Rules 78 and 79 of the CAT Rules 2015[16] set out the procedural regime for the granting of a CPO. The requirements are that:
- the claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings;[17] and
- the CAT considers that it is just and reasonable for the proposed class representative to act as the representative in the proceedings.[18]
11 CPO applications having been lodged since 2018, all seeking certification on an opt-out basis.[20]
the CAT’s rejection of the CPO application in Merricks v. Mastercard,[21] was overturned on appeal by the CA, and on a further appeal by the Supreme Court in 2020,[22] which held that the CAT had made errors of law when refusing the CPO. Consquently the CAT changed their decision and granted the CPO, on an opt-out basis, provided that a suitable undertaking as to liability for costs is given by the funder [in case an award of costs were to be made in favour of Mastercard].
Other applications for CPOs registered with the CAT:
Justin le Patourel v BT Group PLC, Consumers’ Association v Qualcomm Incorporated, Dr Rachel Kent v Apple Inc. and Apple Distribution International Ltd and David Courtney Boyle & Edward John Vermeer v Govia Thameslink Railway Limited & Others. A further claim is being brought by Liz Coll, former head at Consumers International, on behalf of 19.5 million UK Android phone users against Google, for restricting consumer access to other app distributors by pre-installing Google’s proprietary apps including the Google Play Store and charging a 30 per cent commission on every digital purchase.
The 13 CPO applications, so far filed, involve both consumer and business claimants covering alleged competition law infringements, on both a stand-alone and follow-on basis.
Most of the CPO applications made to the CAT so far have sought certification to proceed on an opt-out basis, and have involved focs
However, many CPO applications have also been made on a non-foc (stand-alone) basis, egs:
– of alleged illegal overcharges paid by millions of rail passengers for rail travel to or from the outer boundaries of Transport for London’s fare zones,[25]
-of alleged leverage of a dominant position in the supply of LTE chipsets with the alleged result that smartphone manufacturers paid supra-competitive royalties for patents[26]
-claims against Apple[27] and Google[28] for alleged overcharging by imposing a 30 per cent commission on digital purchases in the Apple App Store and Google Play Store.
-opt-out action lodged by Michael O’Higgins FX Class Representative Ltd in July 2019 in respect of the European Commission’s Forex infringement decisions,[31] the class of claimants is ‘intended to capture all the varieties of “main customers” of FX traders referred to in the EC’s press release of 16 May 2019, namely ‘asset managers, pension funds, hedge funds, major companies and other banks’.
-The second CPO application brought in relation to the Forex infringements by Mr Phillip Evans also includes a near-identical description of the types of businesses intended to be captured within the claimant classes.[32] That said, larger companies may of course choose to actively opt-out of any collective action and bring their own claims directly (either individually or jointly with a smaller number of other similarly affected companies).
Eligibility of claims
For claims to be eligible for inclusion in collective proceedings, the CAT has to consider that:
1/they raise the same/similar/related issues of fact or law (often referred to as ‘the commonality requirement’); and
2/they are suitable to be brought in collective proceedings (often referred to as ‘the suitability requirement’)
In determining the question of suitability, Rule 79 of the CAT Rules 2015 sets out a non-exhaustive list of potentially relevant factors. These include the size and nature of the class, whether it is possible to determine in respect of any person whether that person is or is not a member of the class, whether the claims are suitable for an aggregate award of damages, and the costs and benefits of continuing the collective proceedings.
Gibson v. Pride
involved an opt-out claim for approximately £3 million brought by Ms Gibson, the General Secretary of the National Pensioners Convention (NPC), against a manufacturer and supplier of mobility scooters, on behalf of approximately 30,000 UK purchasers between 1 February 2010 and 29 February 2012. The claim followed on from a decision by the UK CAT that found that Pride Mobility Products Ltd and eight retailers had infringed competition law and also aimed at prohibiting the online advertising of prices for Pride mobility scooters below Pride’s recommended retail prices. The essence of the claim was that class members had overpaid for mobility scooters as a result.
Merricks v. Mastercard
involves an opt-out claim for £14 billion brought by Mr Merricks (the former Chief Ombudsman of the Financial Ombudsman Service) against Mastercard, on behalf of approximately 46 million customers who purchased goods and services from businesses in the UK that accepted Mastercard payment cards between May 1992 and June 2008 (even if the purchase in question was not actually made using a Mastercard). The claim (purportedly)[35] follows on from the EC’s infringement decision relating to multilateral interchange fees (MIFs) (fees charged between banks in relation to transactions involving the use of a Mastercard card). The essence of the claim is that the MIF overcharge was passed on to consumers in the form of higher prices.
This was the first significant collective action , in 2016, on behalf of its many millions of card-holders, when MasterCard was sued for £14 billion.
The EC had found the company guilty of abusing its dominant position by imposing excessive charges on the use of its credit and debit cards. And several retailers had successfully claimed follow on compensation.
The cardholders claim (fronted by Walter Merricks) failed in front of the CAT who found that there was “no plausible way of reaching even an approximation of the loss suffered by each individual claimant”. This was because MasterCard’s excessive charges were seldom passed on directly the customer who used the card. Instead, the cost was to some extent absorbed by the retailer, and to some extent passed on to all customers, in higher prices, whether or not they used the card at all. It was therefore impossible for the court to apportion compensation. But the CAT’s decision was overturned by both the Court of Appeal and the Supreme Court. The case is now being re-heard by the CAT.
This Supreme Court ruling has encouraged a number of lawsuits, underwritten by cash-rich litigation funders in return for a slice of any compensation. Sony PlayStation, for instance, is being sued for up to £5bn over allegations that it abused its dominant position and overcharged nearly 9 million gamers.
Royal Mail and BT won significant damages in 2023 in a case following on from the EC proving that Daf and other van suppliers had entered into a long-standing cartel – from 1997 to 2011. Royal Mail were awarded over £17 million and BT around £3 million – both plus interest.
The commonality and suitability claim eligibility requirements
The requirement of commonality (of issues between all of the claims) has been a major stumbling block in CPO applications A lack of such commonality was why CAT originally rejected the CPO applications in Gibson v. Pride and in the 2017 Merricks v. Mastercard decision.
Is the loss suffered a ‘common issue’? if so, the CPO applicant must be able to give a fair approximation of the total loss. this could require economic experts to propose a methodology for calculating loss, and this becomes more complex where an overcharge has been ‘passed on’ to the claimants.
Also, in follow-on claims there is the additional hurdle that it has to be limited to the boundaries of the infringement identified in the underlying CMA/EC Decision.
eg. if the alleged losses are too diverse (and, in some cases, outside the scope of the underlying Decision) , the CAT will hold insufficient commonality (of issues between each of the individual claims) and will refuse to allow the collective claim. This is what happened in Gibson v. Pride
In Merricks v. Mastercard, demonstrating commonality proved problematic due to difficulties in determining how much of the alleged overcharge had been passed on to each proposed claimant by the relevant retailers: there was significant variation in pass-on of the alleged overcharge between different kinds of goods and services and different kinds of retailers. While the CAT accepted that damages could, in principle, be calculated on an aggregate basis using a weighted average pass-on percentage, it concluded that more data that would be required to apply such methodology
On the issue of damages: Section 47C(2) CA98 clearly states that the CAT may make an aggregate award of damages in collective proceedings ‘without undertaking an assessment of the amount of damages recoverable by each represented person’. Nonetheless, the CAT concluded that the absence of any plausible means of calculating the loss of individual claimants for distributing any aggregate award of damages meant that the claims were not suitable for an aggregate award of damages, and therefore should not be permitted to proceed as collective proceedings.
However, on appeal, both the CA and the Supreme Court (SC) reached a different conclusion. the CA concluded that pass-on (the fact that ‘passing on’ of the loss by retailers to consumers was also a common issue) was sufficient to satisfy the commonality requirement. On the issue of distribution of damages, the CA held that distribution (of damages) is for the trial judge to consider following the making of an aggregate award, rather than for the CAT at the certification stage.
The defendants appealed to the SC, but SC agreed with the CA.
The CAT had concluded that the overcharge (to retailers) was a common issue. However, the Supreme Court held that the CAT erred in law in failing to recognise that the issue of ‘passing on’ of the loss by retailers to consumers, was also a common issue. The CAT had held that there would be significant variations (no commonality) in ‘pass on’ across the class of claimants, but the SC agreed with the CA that the pass-on was a common issue (and therefore the variations in pass-on could be ignored).
The SC held that CAT failed to recognise that both the main issues in the case were common issues, thus CAT wrongly deemed that there was only a low level of commonality, rather than viewing the presence of common issues as ‘a major plus factor’.
The SC also held that the CAT’s judgment placed too great a weight on its conclusion that the claim was not suitable for aggregate damages: while this is one of many relevant factors in the suitability assessment.
The Supreme Court concluded that in the Merricks case the prospect of individual proceedings by over 46 million consumers would be a ‘practical impossibility’, such that collective claimes would clearly be preferable. However, outside this context (of many consumers with small losses), it is less clear that collective claims are preferable (to individual claims) – particularly where the proposed class of claimants involves large corporate organisations, higher value individual losses, or where there is evidence of individual claims already having been lodged in parallel with a CPO application.
SC: in ordinary civil proceedings, a claimant is not deprived of a trial merely because of ‘difficulties in quantifying damages’. It concluded that the ‘broad-axe’ principle: the court must ‘do its best on the evidence available’, is also ‘fully applicable in competition collective cases’.
SC: section 47C of the Competition Act 1998 expressly removes the requirement for the separate assessment of each claimant’s loss. As a result, the CAT erred in law when it required there to be a way of estimating individual loss (the CAT had done so on the basis of the general principle that damages for breach of competition law must be compensatory). SC insisted that the Compensatory principle is not essential in distribution of aggregate damages in collective claims. the only implied requirement is that distribution should be fair and reasonable. In some cases it may be appropriate to distribute damages in line with individual loss, but there will also be cases where this method would be so difficult that another method would be more reasonable, fair and just. The reason for the power to award aggregate damages in collective actions is precisely to avoid the need for individual assessment of loss.
LOCUS STANDI (of the proposed class representative)
Rule 78 of the CAT Rules: CAT may authorise an applicant to act as the class representative in collective proceedings whether or not the applicant is a class member, provided that it considers that it is ‘just and reasonable’ for the applicant to act as the class representative. the suitability (locus standi) of the class representative is , in practice, connected to his job role, and his ability to pay the defendant’s costs if the action is unsuccessful.
In Gibson v. Pride, Ms Gibson was not a member of the proposed claimant class. Rather, she was the General Secretary of the NPC ( National Pensioners Convention), and the majority of the 30,000 class members she sought to represent were pensioners. Pride Mobility objected to her acting as the class representative on general suitability grounds and also on the basis that she would be unable to pay their recoverable costs if ordered to do so. The CAT held that there was no reason to think that Ms Gibson ( as GS of the NPC) she would not be able to take appropriate decisions about the litigation in the interests of the represented class. On the issue of Ms Gibson’s ability to pay Pride’s recoverable costs if the action was unsuccessful, the CAT noted that Ms Gibson had arranged, through third-party litigation funders, an after-the-event (ATE) insurance policy to cover any liability to pay Pride’s costs up to £1.08 million and her own disbursements in the event that the claim was unsuccessful.
In Merricks v. Mastercard, Mastercard’s objections in relation to the suitability of the proposed class representative did not relate to Mr Merricks (a qualified solicitor with a long and distinguished career in consumer protection) personally, but to the terms of the funding agreement in place with Burford Capital, a third-party litigation funder that had agreed to make £40 million available to fund the action. The CAT rejected the objections, once certain modifications had been made to the funding agreement at the hearing.
Carriage disputes:
One further, and yet unresolved, question, is how the CAT will deal with a scenario where there are two competing class representatives seeking certification of collective proceedings.
the CAT allows competing CPOs from proceeding, whether made on an opt-in or, on both an opt-in basis and one on an opt-out basis. if is in opt-in basis, will be a matter for the claimant to choose. the two competing applicants must go ‘head to head’ for the right to represent the potential class in one single hearing…..where two opt-out applications have been made, the CAT must decide which application may proceed, if either, in such single hearing.
Right of appeal against CAT decisions on certification
Following the CAT’s 2017 decision to refuse certification in Merricks v. Mastercard, the CAT also refused Mr Merricks’ application for permission to appeal against that decision. However, Mr Merricks applied to both the Court of Appeal for permission to appeal and the Administrative Court for judicial review. On 13 November 2018, the Court of Appeal ruled that there is in fact a right to seek permission to appeal against CAT rulings refusing an application for a CPO, on the basis that such a decision constitutes a decision ‘as to the award of damages’
There is a further right to seek permission to appeal against a Court of Appeal judgment on certification to the Supreme Court on questions of law
Group litigation order (GLO)
CPR Rule 19.6: allows to bring a claim involving multiple claimants for claims based on ‘common or related issues of fact or law’. it is necessary to first obtain court approval in the form of a GLO.[58] All claimants wishing to join must actively opt-in onto a group register by a date specified by the court. The common or related issues of fact or law are designated ‘GLO issues’,
While GLOs have been made in a broad variety of cases,[60] they have not proven popular for competition claims: only one GLO has ever been issued in a competition case (Prentice v. Daimler Chrysler),[62] out of 112 GLOs in total.[63]
Informal aggregation and joint case management (High Court and CAT)
In addition to the above explained means of aggregating claims (or certain aspects of claims) in a single claims, it is also possible simply to name multiple claimants when initiating a competition claim. In the High Court, Rule 7.3 of the CPR allows this. the CAT also adopts a similar approach.
In this way, for example, multiple claimants (whether related or not) can jointly commence an action for damages for infringements of competition law. Even where claims are not initiated jointly, they can be consolidated to be heard jointly, or, jointly case-managed, allowing common or similar issues to be heard and dealt with together. In practice, these various forms of informal claims aggregation have proven to be popular.
Also, claims relating to similar underlying facts can move between the High Court and the CAT,
The aim is to avoid the risk of inconsistent outcomes where claims relating to similar underlying facts are heard in different forums.
Assignment of claims to special-purpose vehicles
The assignment of damages claims to special-purpose vehicles (SPVs) has become a feature of the competition litigation landscape in a number of jurisdictions, most notably the Netherlands,[68] and Germany . This route has not yet been used in the UK for competition damages claims, except where a limited company has been created for the purpose of making the CPO application (for reasons including limitation of liability, succession and maintenance of separate accounts). however, in those cases, the spv (Ltd co) was acting as a (proposed) class representative, rather than the claims being assigned to the SPV .
The unpopularity of assignment of damages claims to SPVs in the UK stems from the expectation that the courts would refuse, on the grounds of public policy, the locus standi of SPVs.
However, JEB Recoveries LLP v. Binstock, and Casehub Ltd v. Wolf Cola Ltd are claims assigned to a third party were permitted to proceed . The Casehub judgment is particularly interesting, in that their business model was described by the court as ‘a company which builds consumer group actions online’ – appears similar to the practice seen in other jurisdictions of SPVs ‘bundling’ assigned damages claims.
seeking to bring a competition claim via a SPV is unnecessary in light of the other options available to victims in UK.
Growth of third-party litigation funding
Section 47C(5) CA98 : unclaimed damages in an opt-out collective action (likely to be substantial) are paid to a prescribed charity, currently the Access to Justice Foundation (subject to the power of the CAT to order that all or part of such funds is paid to the class representative in respect of his costs).
However, in Merricks v. Mastercard, the CAT confirmed that third-party funders could be paid from any unclaimed damages. As a result, the growing trend for the involvement of third-party funders in competition collective proceedings is expected to continue ( and will be fundamental to the future development of the regime).
Settlement dynamics in collective claims
MOST competition claims in the UK are often settled before trial.
This trend is supported by the wide range of ADR mechanisms available in the UK (including mediation, adjudication and expert determination) and the UK courts’ encouragement thereof.
it may be preferable for defendants to insist on settling with all claimants (for ‘global peace’) or not at all, because it is not worthwhile to settle some, if he will still have to spend time and money defending the remaining claim.
Consideration will also need to be given to the risk of additional claims later on ‘coming out of the woodwork’….. (also, this can give grounds to undo a merger, or void an agreement between companies)
Thus, is difficult to agree a settlement until the limitation period for the claims has expired…. thus, some settlement commitment between the parties is needed prior to the expiry date.
For claims in respect of which an opt-out CPO has been (or could be) issued by the CAT, the CAT permission is needed to settle, if it approves the terms of the settlement ( a collective settlement approval order)
Where no CPO has been made, the parties must first apply for a collective settlement order, followed by an application for a collective settlement approval order.
This collective settlement procedure does not apply to opt-in collective proceedings, although the CAT’s permission is required to settle such proceedings if the date specified in the CPO for opting in to the claim has not yet expired.