Judgment of the Tribunal on an application by JLP A&A Class Representative Limited (the PCR) for certification of collective proceedings on behalf of consumers who purchased Apple products in the UK, in a claim against Apple and Amazon. The PCR alleges that agreements entered into between Apple and Amazon in 2018 unlawfully restricted competition by limiting the sale and advertising of Apple products on Amazon’s marketplace, causing consumers to pay higher prices for Apple products purchased both on Amazon (“On-Amazon”) and through other retail channels (“Off-Amazon”). The PCR sought certification on an opt-out basis on behalf of an estimated class of 28.9 million consumers.
The claim followed earlier proceedings brought by Christine Riefa Class Representative Limited, in which certification was refused because the Tribunal was not satisfied that the authorisation condition was met. Following that refusal, the PCR was reconstituted under the direction of Justin Le Patourel and substantially the same claim was reissued, together with an application to amend the claim form to include injunctive relief.
The Proposed Defendants opposed certification on a number of grounds, including objections to the independence and reliability of the PCR’s expert economist, Dr Chris Pike, arguments that the Off-Amazon claim failed to satisfy the Microsoft test and/or should be struck out and that the costs in bringing the remaining On-Amazon claim were greater than the benefits, concerns regarding distribution, costs and funding arrangements; and challenges to the suitability of the PCR and the proposed remuneration of Mr Le Patourel.
The Tribunal concluded that Dr Pike’s evidence should be treated with caution but not disregarded entirely. It held that the proposed methodology in respect of the On-Amazon claim was sufficiently credible and grounded in the facts to satisfy the Microsoft test. However, it found that the Off-Amazon claim relied on insufficiently coherent theories of harm and an inadequately developed methodology, and therefore did not satisfy the Microsoft test. Certification of the Off-Amazon claim was accordingly refused, although it was not struck out or summarily dismissed.
The Tribunal further held that the proposed direct-credit distribution mechanism was sufficiently credible and practical for the purposes of the On-Amazon claim and that, subject to amendments to the funding and remuneration arrangements, the likely benefits of continuing that claim outweighed the likely costs. It held, however, that the proceedings should not be certified on the basis of funding, insurance or fee arrangements permitting recovery of costs relating to the earlier Riefa proceedings, and that those arrangements must be amended. It also held that Mr Le Patourel’s future remuneration should be revised to no more than £170 per hour, subject to a daily cap of £750.
The Tribunal concluded that, if those amendments are made, it would be just and reasonable to authorise the PCR and certify the On-Amazon claim on an opt-out basis. It refused certification of the Off-Amazon claim and indicated that, if the proceedings are certified, permission will be granted to amend the claim form to include a claim for injunctive relief.
