On 24 January the Competition Appeal Tribunal (“CAT”) handed down a landmark judgment in collective proceedings. The judgment is the first judgment whereby the CAT has refused outright to certify the claim on the basis that the class representative is unsuitable.
The case is a substantial proposed opt out collective action concerning allegations that Apple and Amazon agreed to restrict the sale of iPhones and other Apple products on the Amazon Marketplace. It is understood to be the first occasion on which the CAT has agreed to order cross-examination of a class representative as to her understanding of the terms of the funding arrangements agreed to in support of the claim and the basis on which the class representative agreed to those arrangements and the first occasion where, following such cross-examination, certification has been refused on an outright basis without any provision allowing the class representative a further opportunity to revise the funding arrangements.
The Tribunal in particular expressed concerns as to the basis on which the class representative had agreed to terms requiring the terms of the funding arrangement to be kept confidential, including from the class members, as to the basis on which she had agreed to terms which obliged her to apply to the CAT, in a successful claim, for payments to be made to the funders in priority to the class members and as to how the class members would be adequately protected in the circumstances.
It remains to be seen whether this judgment represents the start of stricter scrutiny as to whether class representatives are properly demonstrating that they are complying with their duties to act in the best interests of the class members.
Roger Mallalieu KC acted for Apple and cross examined Professor Riefa. He was instructed with Sarah Abram KC, Tom Pascoe & Michael Quayle by Freshfields Bruckhaus Deringer.
A copy of the judgment is here.