Apple and Google lose early bids to view sensitive funding information in separate collective actions in the UK
In separate proceedings, both Apple and Google have lost in quick succession early bids to access sensitive information relating to the funding of the collective actions which allege abuses of dominance in relation to their respective app stores.
In December 2021, Apple objected to certain redactions made by the proposed class representative (PCR), Dr Rachael Kent, to several documents filed in support of her application for a collective proceedings order (CPO Application) in Kent v Apple Inc and Apple Distribution International Ltd.
The redactions were made by Dr Kent on the grounds of commercial confidentiality, strategic sensitivity and / or privilege. The redacted information related to the deposit premia payable under the PCR’s after-the-event insurance policy (the ATE Policy); and certain information in the PCR’s Litigation Funding Agreement (LFA) concerning mechanisms which applied if the budget was exceeded before additional funding could be requested.
Prior to the hearing, Apple had also sought disclosure of the conditional fee arrangements (CFAs) entered into with the PCR’s legal team and a version of the litigation budget, revealing the legal team’s discounted rates under their CFAs. However, following opening submissions from Dr Kent’s counsel, Apple withdrew their objections to that redacted material.
In January 2022, Google raised similar objections to redactions in the funding documentation in Coll v Alphabet Inc and Others. In addition, Google sought disclosure of the Priorities Deed appended to the LFA, which sets out the order of payments from undistributed damages in the event that the PCR is successful in her claims, and the level of the “success fees” payable under the PCR’s CFAs.
In two separate rulings, two panels of the Tribunal unanimously found in favour of both PCRs.
The Tribunal ruled that, despite there being a presumption of transparency in collective proceedings, proposed defendants are not automatically entitled to be told the level of deposit premium under a PCR’s ATE policy. In addition, ATE premia may also attract legal advice privilege and / or their disclosure may give rise to an unfair tactical advantage. The Tribunal found that this provided discretionary grounds to refuse disclosure where it was warranted by the circumstances.
Similarly, proposed defendants are not entitled to be told the percentage level of success fees payable under any CFAs entered into with a PCR’s legal team (even in aggregate). Knowledge of the level of such fees could confer an unfair tactical advantage on proposed defendants.
In determining these issues, the Tribunal has struck the correct balance between the need for transparency in collective proceedings whilst also affording PCRs with the necessary level of confidentiality in respect of their funding arrangements so as not to prejudice their prospects of success. Such a balance is critical, particularly in circumstances where the collective proceedings regime does not require proposed defendants to provide any information about their costs, funding and insurance arrangements; whereas PCRs are required to provide detailed information from the inception of their claims.
Next steps in the proceedings
Certification hearings are now listed in both sets of proceedings, which will determine whether the PCR’s can be authorised to act as class representatives on behalf of their proposed classes.
 Hausfeld & Co. LLP acts for both Dr Rachael Kent, in Kent v Apple Inc and Apple Distribution International Ltd, and Ms Liz Coll, in Elizabeth Helen Coll v Alphabet Inc. and Others.
 The ruling in Kent v Apple Inc  CAT 37 was handed down on 21 December 2021 and the ruling in Coll v Alphabet Inc  CAT 6 was handed down on 3 February 2022.