CAT Turns Down Apple in Attempt to Stop App Developers’ Claim to Move Forward
LONDON — Scott+Scott is pleased to announce that the Competition Appeal Tribunal today ruled against an application filed by Apple Inc to ‘decertify’ a collective action first filed by Dr Sean Ennis in 2023 on behalf of thousands of UK app developers. The collective action alleges that Apple, through its App Store, abused its dominant market position and for years overcharged app developers for marketing their software products on the platform.
Apple’s application was made pursuant to the judgment of the UK Supreme Court in Evans v Barclays, which Apple said demonstrated that the claim could not continue on an “opt-out” basis.
In its judgment refusing the application, the CAT confirmed its 2024 ruling that the claim is suitable to be brought on an opt-out basis, allowing app developers to automatically be included in the class without having to proactively register to join the lawsuit.
Class representative Dr Sean Ennis commenting on the judgment, said: “I am pleased that the CAT sided with UK app developers in allowing this collective action to continue before the tribunal. We look forward to pursuing this claim on behalf of the developers who have been subjected to excessive commission fees for their software products to be marketed on the Apple App Store. Decertifying the proceedings would have led to substantial unfairness, harming app developers who don’t have the means to stand up against a technology giant such as Apple or who are unwilling to do so.”
Scott+Scott UK Managing Partner Cian Mansfield added: “We are delighted to have resisted this opportunistic attempt at stopping the claim – key aspects of which the CAT has described in its judgment as ‘unusually strong’ – and look forward to pursuing the claim to trial and damages for the class members. We are also pleased to see the Tribunal’s recognition of the relevance of the litigation funding arrangements to its decision, given the pivotal role that litigation funders play in collective proceedings.”
Separately, Scott+Scott acted for the class representative, Dr Maria Luisa Stasi, in her collective action against Microsoft which was recently certified by the CAT in the face of arguments by Microsoft about, amongst other things, the application of Evans. “Stasi and Ennis show that the UK collective action regime remains fit for businesses to challenge Big Tech”, said Mr Mansfield.
The team on the Ennis collective action consists of Cian Mansfield, Adam Bradley, Taylor Wood, Sian Jacob, Saphya Caus, and Robert McDonnell of Scott+Scott; Robert O’ Donoghue of Brick Court Chambers; and Daniel Carrall-Green, Victoria Green, and Sam Hussani of Fountain Chambers. The action is funded by Harbour and the team consists of Tom Rotherham and Oliver Way.
Find out more about the claim HERE. A link to the judgment can also be found HERE.
About Dr Sean Ennis:
The claim is being brought by Dr Sean Ennis, director of the Centre for Competition Policy and Professor of Competition Policy at Norwich Business School. Dr Ennis has extensive experience in competition law and policy. From 2003-2018, he was a Senior Economist in the Competition Division of the OECD. Prior to 2003 he worked as an economist at the European Commission’s DG Competition and at the U.S. Department of Justice’s Antitrust Division, developing economic analyses for competition law investigations.
About Harbour:
Harbour is a trusted advisor and provider of capital to law firms, corporates and claimants, supporting them in progressing high-value commercial disputes all over the world. Its London-based team of experienced litigators, finance experts, and commercial professionals, have a deep understanding of what is required to bring litigation and arbitration to a successful conclusion. Harbour is a founding member of the Association of Litigation Funders and is consistently recognized in the Chambers and Partners and Legal 500 directories.