Judgment of the Tribunal in respect of a revised application by Dr Liza Lovdahl Gormsen, as proposed class representative (“PCR”), for a collective proceedings order (“CPO”) pursuant to section 47B of the Competition Act 1998 (“the Act”).
The PCR had applied to commence opt-out proceedings on 11 February 2022. At a hearing which took place 30 January – 1 February 2023, the Tribunal declined to permit the PCR to do so ([2023] CAT 10) and offered a stay to the PCR to enable her to file additional evidence setting out a better blueprint to trial. This judgment considers the PCR’s amended CPO application.
The Tribunal finds that the PCR’s amendments should be allowed, and the case be certified to proceed as a collective action. The abuses articulated by the PCR are arguable and triable, namely (i) Meta’s collection of Off-Facebook Data was an abuse of dominance because it was a condition imposed on Users pursuant to a “take-it-or-leave it” offer for the social network services which Facebook provide, and (ii) Meta’s collection of Off-Facebook Data involved the imposition of an unfair price within the meaning of United Brands. These alleged abuses can be causally linked to a pleadable loss i.e. a conventional form of “negotiating damages”.
The judgment also considers two issues relating to the PCR’s class definition, (i) the relevant period, and (ii) the exclusion of “business users” from the class – the Tribunal is satisfied with the PCR’s proposed changes to her class definition.
