Judgment (Certification)

Judgment of the Tribunal certifying the proposed class representative’s (“PCR’s”) application for a collective proceedings order (“CPO”), pursuant to section 47B of the Competition Act 1998. The PCR alleges that the Proposed Defendants (“Google”) have abused their dominant position in the market for the general internet search services. The claim is brought on an opt-out basis on behalf of millions of UK consumers. The alleged abuses are in two parts (which the PCR says should be viewed in the round):

1. The “Android Conduct”, a follow-on claim arising out of the European Commission’s Decision in Google Android in 2018, which relates to arrangements dating from at least 2009, wherein Google permitted the Play Store to be installed on Android mobile devices only if Google’s own search app was also installed, together with Google Chrome, on which Google Search is the default search engine.
2. The “iOS Conduct”, a standalone claim, which relates to Google’s agreements with Apple under which Google is awarded the exclusive default search engine status on Safari, which is pre-installed on Apple’s devices, in return for a share of Google’s corresponding mobile search advertising revenues.

The issues between the parties narrowed over time, and Google, in opposition to the CPO application, submitted that:

1. The allegations of abuse in relation to the iOS Conduct were so weak that they ought to be struck out or summary judgment ought to be given in Google’s favour on them.
2. The counterfactuals put forward in respect of the Android Conduct and of the iOS Conduct were fatally deficient.
3. Both the claims are time-barred in respect of causes of actions which accrued between 1 October 2015 and 7 September 2017.
4. There were certain issues in relation to funding, although Google did not positively submit that they posed an obstacle to certification.

 For the reasons given in the Judgment, the Tribunal unanimously decided that:

1. The summary judgment/strike out standard was not met by Google with regard to the iOS Conduct.
2. The PCR had put forward a serious case at both the general and specific level as regards the counterfactuals, and the relatively modest standard required of a counterfactual at certification stage meant that any issues identified by Google did not result in them being fatally deficient.
3. Any issue as to limitation was really a case management decision, and deciding the point at this stage would be a distraction from the more important issues in the case.
4. Google did not positively argue that any funding issues posed an obstacle to certification and as such those arguments did not require any action or comment.

Accordingly, the PCR’s application for a CPO was granted.