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CAT’s first outright refusal to certify a class action

15/01/25

The Competition Appeal Tribunal (“CAT”) has handed down a judgment on collective proceedings that contains two ‘firsts’. It is the first judgment containing an outright refusal of certification; and it is the first judgment to refuse certification on the ground that the class representative is unsuitable.

The case concerns an agreement between Apple and Amazon that allegedly restricts the sale of iPhones and other Apple products on the Amazon Marketplace. At the first certification hearing the CAT raised concerns about the ability of the class representative, a consumer law academic named Professor Riefa, to stand up for the interests of the class independently of the interests of her funders and solicitors.

Exceptionally, the CAT directed a further hearing at which Professor Riefa was to be cross-examined. In its judgment, the Tribunal says that it was not reassured by her performance. It was particularly concerned by the fact that:

  • Professor Riefa had acceded to the funder’s request to keep the terms of its funding confidential, including from the class members whose interests she was supposed to be representing.
  • She had agreed to a term in the funding agreement which required her to persuade the CAT to allow payments to be made to the funders and her solicitors, Hausfeld, in priority to the class members, out of any pool of damages.
  • Professor Riefa had not understood that she had signed up to such an obligation, and the Tribunal’s “overall impression was that [she] did not really understand” how the funding agreement worked more generally.

The judgment represents a landmark for the collective proceedings regime, and arguably marks the beginning of a tightening of the CAT’s approach to certifying class actions, following a period of generosity ushered in by the Supreme Court’s ruling in Merricks four years ago.

The judgment is here

Sarah Abram KC, Tom Pascoe and Michael Quayle act for Apple, instructed by Freshfields Bruckhaus Deringer.