Judgment (CPO Application)

The proposed claims are made on a “stand-alone” basis under s.47A of the Competition Act 1998 (the Act). They allege that the Proposed Defendants (together, Apple) has abused its dominant position in respect of the operating system for Apple devices (iOS) by unlawfully favouring its own cloud storage product, namely iCloud, to the exclusion of what is said to be the many actual and potential competitors for the provision of cloud storage services. In particular it is said that Apple deployed a set of technical restrictions and practices which prevented Apple iOS users (such as those who have iPhones or iPads) from storing certain significant file types on any cloud storage service other than iCloud. This means that in those respects such users can only use iCloud if they wish to have a comprehensive backup of their iOS devices. Further, it is alleged that Apple deploys unfair choice architecture options which individually and cumulatively steer iOS users towards using and purchasing iCloud rather than any other cloud storage services available from other providers and/or limits their effective choice and/or excludes or disadvantages competitors and potential competitors. 

The Proposed Class Representative (the PCR or Which?) alleges that Apple has infringed the prohibition on such anti-competitive conduct in Chapter II of the Act and (for the period prior to 31 December 2020) Article 102 of the Treaty on the Functioning of the European Union.

The Tribunal concluded that the Eligibility Condition was satisfied: 

1. The class is an objectively identifiable one consisting of around 38.5m persons being those who have or have used an iOS device and/or have or have used (and paid for where applicable) iCloud services. Class members themselves can readily understand whether they would form part of the class or not and further, their membership of the class or not can be checked by them through their own Apple account, device settings or App Store purchase history. This can also be verified by Apple itself based on its membership and billing records.
2. All of the claims concern the same services, namely the provision of iCloud storage to users of iOS devices, and the same alleged abusive conduct. They therefore raise “the same, similar or related issues of fact or law”. The fact that the classes then split into Purchasing Customers and Non-Purchasing Customers for the purposes of the damages claimed does not affect this.
3. The claims are suitable to be brought in collective proceedings because the relevant proposed class consists of a very large number of individual consumers, each of whom is said to suffer a modest loss, but one which is far too small to justify the bringing of an individual action by each such consumer. On the other hand, the aggregate damages will be very substantial and the PCR is a well-known and experienced class representative, extremely familiar with consumer issues. 

The Tribunal held that the Authorisation Condition was also satisfied. Apple had raised a number of matters relating to LCM Ltd as the funder of the proceedings and the proposed litigation funding agreement, which were said to affect whether it is just and reasonable for the PCR to be the class representative. In exercising its judgment overall, and with regard to the interests of the proposed class members, the Tribunal was satisfied that it is just and reasonable for Which? to act as class representative. It would fairly and adequately act in the interests of the class members and would be able to pay Apple’s recoverable costs if ordered to do so. 

Accordingly, the Tribunal was satisfied that a collective proceedings order should be made.