Judgment of the Tribunal concerning an application brought by the Defendants (Apple) for summary judgment and/or strike out. The Class Representative’s (CR) case concerns the way Apple addressed the problem of unexpected power offs (UPOs) in certain models of iPhones (Affected iPhones) from about December 2016, including through the installation of the performance management feature (PMF). The CR alleged that the negative impact of the PMF, coupled with the failure properly both to explain to users the impact of the PMF and to give them an informed choice whether or not to install it, amounted to an abuse of Apple’s dominant position.
Apple contended that summary judgment should be granted or the claim should be struck out:
a. in its entirety because: (1) the Class Representative’s pleadings on lack of transparency could not amount to an abuse of a dominant position; (2) competition law did not require Apple to disclose the particular matters specified by the Class Representative; and/or (3) Apple’s conduct was objectively justified;
b. insofar as it related to Affected iPhones in which the PMF was installed after 28 December 2017 when Apple published “A Message to Our Customers about iPhone Batteries and Performance”; and
c. insofar as it related to Affected iPhones in which the PMF was installed after March 2018, when iOS 11.3 was introduced, which had the effect of turning off the PMF by default, activating the PMF only when there was a UPO, notifying users when the PMF had been turned on, and giving users the option to turn this off.
The Tribunal did not grant summary judgment and/or strike out the case in its entirety. The Tribunal concluded that it was arguable that a lack of transparency could be a factor, and a dominant factor, in abuse of a dominant position, with there being no established rule of law to the contrary. The Tribunal also determined that the CR’s pleaded case concerning Apple intervening in the behaviour of an Affected iPhone already owned by users, without explaining the potential negative impact of the PMF, and without giving the owner of the Affected iPhone the option of declining the PMF, was not amenable to summary judgment or being struck out. Likewise, Apple’s defence on objective justification did not mean that the case was amenable to an application for summary judgment.
However, the Tribunal did not consider there was an arguable case of abuse insofar as phones were sold with the PMF already installed or where it was installed on first activation prior to use. Once it was accepted that the phone being supplied did not fail to meet any relevant standards or representations as to the phone’s performance, it could not be an abuse to have engineered a method into the phone’s design for moderating UPOs. It followed that the Affected iPhones, which were the subject of these proceedings, should only be those in which the PMF was downloaded after the Affected iPhone was already in use.
Regarding whether the Class Representative had an arguable case after December 2017, the Tribunal rejected Apple’s submissions, citing the Court of Appeal’s reasoning regarding a similar application Apple had made previously in these proceedings.
Regarding whether the CR had an arguable case after March 2018, for reasons similar to the position on phones sold with the PMF already installed, this was not arguably abusive. Accordingly, the application for summary judgment and/or to strike out the claim after March 2018 succeeded.
