Justin Le Patourel secures conditional certification of collective claim against Apple and Amazon
Consumers who bought Apple and Beats products on Amazon in the UK are a step closer to obtaining compensation following the Competition Appeal Tribunal’s decision to certify that element of Justin Le Patourel’s collective claim, subject to two conditions. Those conditions are being met, with a view to the Tribunal making a collective proceedings order (“CPO”) in short order.
Hausfeld represents JLP A&A Class Representative Limited, the proposed class representative led by Mr Le Patourel. The claim seeks compensation for consumers alleged to have paid higher prices as a result of agreements between Apple and Amazon that restricted competition on Amazon’s UK marketplace.
The claim
The proceedings concern agreements entered into in 2018 which excluded most independent resellers of Apple and Beats products from Amazon’s UK marketplace and restricted advertising of competing products. Mr Le Patourel alleges that these arrangements reduced competition between sellers and brands, weakened incentives to offer discounts, and caused consumers to pay more.
The claim concerning purchases made on Amazon (the “On-Amazon claim”) is estimated to be worth around £300 million, including projected losses through to the anticipated trial.
The Tribunal’s decision
Under the UK’s collective proceedings regime, a proposed class representative must obtain the Tribunal’s approval before taking a claim forward on behalf of a class. In this case, the Tribunal accepted that the On-Amazon claim advanced a plausible theory of harm and that the proposed economic methodologies provided a credible blueprint for assessing losses at trial.
The Tribunal rejected Apple and Amazon’s challenges to Mr Le Patourel’s suitability to lead the proceedings. It also rejected their argument that the On-Amazon claim should not proceed on cost-benefit grounds if the wider claim concerning purchases from the Apple Store and other retailers was not certified (the “Off-Amazon claim”).
In assessing the benefits to consumers, the Tribunal gave weight to the proposed use of direct payments or account credits to distribute compensation. This could enable a high proportion of affected consumers to receive compensation even where individual payments are relatively modest. The Tribunal also granted permission to amend the claim to seek an injunction aimed at bringing Apple and Amazon’s alleged continuing infringement to an end.
The Tribunal declined to certify the Off-Amazon element of the claim at this stage because it considered the proposed economic methodology insufficient. It did not, however, determine that losses outside Amazon could not arise, and rejected the defendants’ arguments for striking out that claim or disposing of it by summary judgment.
Next steps
Certification of the On-Amazon claim is subject to changes to the funding, insurance and legal fee arrangements to exclude recovery of costs associated with the earlier proceedings brought by Christine Riefa, and to Mr Le Patourel’s remuneration being set at £170 per hour, subject to a £750 daily cap.
The relevant stakeholders have agreed to the required changes, and Mr Le Patourel has accepted the revised remuneration terms. These arrangements are now being documented to satisfy both conditions and enable the CPO to be made shortly.
Once the CPO is made, the On-Amazon claim can progress towards trial, where liability and the amount of any compensation will be determined. Eligible UK-domiciled consumers will be included automatically unless they opt out, subject to the terms of the CPO.
Hausfeld has instructed Thomas de la Mare KC, David Scannell KC, Robert Marven KC and David Went to act in the proceedings.
Media enquiries
Conal Walsh / Richard Seed / Joshua Wolff,
Palatine Communications
UKAAclaim@palatine-media.co.uk
