JLP A&A Class Representative v Apple and Amazon

The CAT’s judgment led to a conditional certification of the On Amazon part of the claim (i.e. losses for inflated prices of goods bought on Amazon), but refusal to certify the Off Amazon (or umbrella) part of the claim on ProSys grounds (on the basis of Amazon’s prices affecting wider market prices). The partial certification was conditional because it was subject to acceptance of the CAT’s conditions as to funding/contingent fees and as to class representative remuneration. The CAT rejected the wider Apple/Amazon attempts to resist certification of any part of the claim on PCR suitability and cost/benefit grounds; and rejected the strike out of the off-Amazon claims, such that no estoppel arises.

The Presidential judgment is sure to attract considerable market scrutiny given the number of “hot button” topics it deals with at length including:

• the practical application of the ProSys test and the difference between refual ProSys certification and strike out;
• the handling of legacy funding and legal costs from the earlier failed Riefa proceedings;
• expert independence and credibility at the certification stage (given the expert role in claim instigation and the content of his reports);
• distribution, and the relevance of the potential for direct payments versus payment hubs; cost-benefit and the approach to it;
• the relevance of ongoing infringement (and injunctions) to cost-benefit analysis; and perhaps most topical of all the power and use of the power to cap Class Representative remuneration (a default rule of £150 per hour and a daily cap of £750 being the seeming threshold set by the CAT). Attempts to attack the credibility and suitability of Justin Le Patourel to act as a class representative were rejected; and
• class representative rates – and their setting by the CAT in individual cases – is likely to be a recurrent topic, particularly if the ruling produces “supply side” problems in a market with a strong demand for class representatives – an increasingly daunting job causing for a portfolio of highly marketable skills. If in future cases the rates set by the CAT do not produce parties willing to act the issue is sure to come back before the CAT.

The slimmed down case will be fought on liability and quantum grounds, with Apple and Amazon seeking to rerun the arguments twice rejected by EU regulators that the Agreements restrictions were justified by piracy/infringement concerns and supply continuity concerns in defence of an agreement still operative in the United Kingdom.

Thomas de la Mare KC acted for Justin Le Patourel, leading David Went from Exchange Chambers, instructed by Hausfeld.

The judgment may be found here.