Judgment of the Tribunal certifying the proposed class representative's ("PCR's") application for a collective proceedings order ("CPO"), pursuant to s47B of the Competition Act 1998. The PCR alleges that the Proposed Defendants ("Apple") have abused their dominant position in the market for the distribution of software applications ("apps") for Apple's proprietary mobile operating system ("iOS"), by charging prices (in the form of a commission) which are excessive and unfair. The claim is brought on behalf of UK-domiciled app developers that have paid the allegedly unfair commission during the claim period.
Apple opposed the CPO application, submitting that:
(1) The proposed claims are not eligible or suitable to be brought in collective proceedings because of the actual or potential conflicts of interest between the proposed class members (“PCMs”).
(2) The proceedings are not suitable for an award of aggregate damages because of the radical differences between the claims of individual class members.
(3) The proceedings are not suitable to be brought on an opt-out basis.
(4) The funding arrangements are unsatisfactory in that they give rise to an incentive to the funders to delay settlement until after the start of the trial.
For the reasons given in the Judgment, the Tribunal unanimously decided that:
(1) The damages claim advanced by the PCR is based on the counterfactual in the Claim Form, and seeks to maximise the aggregate damages to be awarded to the PCMs by claiming that Apple should have charged all members of the class a flat rate that was not excessive or unfair. In pursuing a claim based on this counterfactual, the interests of all the class members are aligned. Individual variations between class members could, to the extent appropriate, be reflected at the distribution stage.
(2) Differences between the claims of individual class members do not make the claim unsuitable for an award of aggregate damages.
(3) The fact that the proceedings might be financially viable on an opt-in basis, because of the number of large PCMs with substantial claims, would not overcome the impracticability of opt-in proceedings vis a vis the majority of the PCMs with relatively modest claims. An opt-in basis would not be in the interests of the PCMs as a whole.
(4) There is no valid basis of objection to the uplift in the Funder’s return at the start of the trial in the present case. A similar funding arrangement was approved by the Tribunal in Le Patourel.
The Tribunal considered the PCR is a suitable person to act as the PCR, and that the requirements for a CPO are satisfied in this case. Accordingly, the PCR’s application for a CPO was granted on an opt-out basis.
