Pollack v Alphabet Inc et al [2023] CAT 34

One of the more challenging aspects of competition cases is that they are expensive to litigate. From a funder’s perspective, there are particular risks when two potential cases are vying to be the sole opt-out proceeding. If you back the wrong horse, you could be looking at considerable costs that will be irrecoverable. An overriding concern in respect of any relatively new jurisprudence is the lack of precedent and the associated difficulty that the funder may inadvertently get caught up in the development of that precedent.

The resolution of carriage disputes is a specific case in point. To date, there are only a couple of examples where more than one claimant has issued opt-out proceedings (in the FX litigation and in the Trucks Cartel matter). Both cases have generated appeals - both on the substantive issues before the CAT but also in respect of carriage. In other words, the two claims (one of which will have to fall away if an opt-out order is made) are both being litigated in parallel and attendant costs are being incurred by two funders, only one of which is likely ultimately to maintain its role in the litigation. Both claims have remained alive until the certification stage.

This unsatisfactory state of affairs has been significantly improved by the recent decision of the CAT in respect of the carriage dispute underlying the Google app developer litigation. In that case, as in FX and Trucks, two claimants have issued separate claims against Google. In the Trucks litigation, attempts were made at an early stage to have the carriage dispute dealt with as a preliminary matter but, partly because the law was still in a state of flux because of the ongoing appellate journey of Merricks, those efforts were unsuccessful. On this occasion, the CAT saw the benefit of dealing with the carriage dispute early, As the CAT itself said “it cannot be disputed that hearing carriage in advance of certification can save considerable costs”. The Judge went on to say that “I can see no advantage in this case in hearing carriage with certification; and I suspect – although each case will have to be considered on its merits – that that will be the position in the case of most carriage disputes.”

Important observations were also made about the approach that may well be taken in future carriage disputes. The Judge noted that “Usually, there is a gap, often of some months, between the making of one application and making of a second, rival, application.” This is indeed the case - and there has been a good deal of effort made by the first filer, unsurprisingly, to make something of the point that they got to the Court door first. This argument has been met with the riposte that the filing was premature - and the second application was better thought through. The CAT’s approach was to say that “no potential class representative, considering making an application for certification, should assume that speed trumps consideration.” There is nothing radical in that approach.

In the Google matter, claim 1 was filed on 30 November and claim 2 was filed on 29 March - so roughly a 4 month gap. Such a gap was not troubling to the CAT. Again, as the CAT made clear, “Clearly, the greater the gap in procedural development (unless it can be justified), and the closer the applicant first to file is to a substantive resolution, the harder it will be to displace that applicant.”

That CAT expects that the proposed class representatives should co-operate so as to ensure that a hearing of the issue of carriage is listed before the CAT as soon as possible. To give an indication of the speed with which the CAT wishes to proceed, the hearing in this matter was on 19 May and the CAT wants to have the carriage dispute heard in October, with the certification hearing to be heard in January 2024.

A final aspect to the judgment which may become relevant when it comes to the question of costs is the CAT’s approach in respect of the position of Google. The judge dismissed as “fanciful” the suggestion that Google would suffer any prejudice in having a carriage dispute before a certification hearing, and indeed the CAT indicated that Google would not even need to appear at the hearing of the carriage dispute. Doubtless they will, but funders will take note of the indication from the CAT as to how carriage disputes should be settled in future cases.