On 14 January 2025, the Competition Appeal Tribunal issued a significant ruling in Christine Riefa Class Representative Limited v Apple Inc. and Amazon.com, Inc., denying the request for a collective proceedings order (CPO) on the basis that the proposed class representative (PCR) was not suitable to fulfill that role.
This ruling represented the first instance in which the Tribunal has declined to issue a CPO solely due to concerns regarding the suitability of a PCR, underscoring the substantial obligation that class representatives bear in proving their capability to represent the interests of class members effectively in collective actions.
See Collective Actions Insight’s article on this landmark decision.
The claim aimed to pursue opt-out collective proceedings against both Apple and Amazon. The allegations focused on purported anti-competitive agreements between Apple and Amazon, which allegedly resulted in inflated prices for Apple products sold in the UK by restricting the number of UK resellers permitted to sell Apple products on the Amazon Marketplace.
Following the CAT’s ruling, Professor Riefa applied to the Tribunal seeking permission to appeal. On 19 February, the CAT denied the application.
The PCR’s application is based on a singular premise: the Tribunal made a legal error in opting to dismiss the request for a collective proceedings order instead of allowing the PCR the chance to address the issues that led the Tribunal to determine that the authorization condition outlined in Section 47B(5)(a) of the Competition Act 1998 was not met.
Specifically, the PCR argues that the Tribunal did not adequately consider, or failed to consider at all, the historical context of the case, especially given that the issues prompting the Tribunal’s refusal to certify arose late in the proceedings. The Tribunal unjustifiably deviated from the approach taken in previous cases where the “package” presented to it was not immediately approvable. Furthermore, the Tribunal neglected to perform the essential balancing exercise necessary to determine whether outright refusal to issue a CPO was proportionate, particularly in light of the statutory regime’s objectives and the interests of the proposed class members in continuing the proceedings.
The CAT holds that it is inaccurate to assert that the Tribunal deviated from the conventional practice of permitting the PCR to amend its application prior to denying certification. The PCR was afforded a two-month period to rectify the issues highlighted during the July hearing, followed by an additional opportunity to present its case during the September hearing. Moreover, there is no obligation for the Tribunal to grant the PCR yet another chance to amend its application thereafter.
The statutory framework does not mandate that the Tribunal provide multiple opportunities for the PCR to fulfill the certification requirements. Additionally, it is incorrect to claim that the issues leading to the Tribunal’s refusal to certify arose only later in the proceedings. Professor Riefa’s suitability was a significant concern from the outset of the certification hearing in July, particularly regarding the inaccuracies in her initial witness statement. Her overall misunderstanding of her own claim prompted the request for her cross-examination.
Furthermore, it is the PCR’s responsibility to convince the Tribunal of its capability to meet the authorization criteria, and the Tribunal must take an active role in assessing the certification standards. The proceedings were not dismissed due to a minor technicality; rather, there was a fundamental and irreparable flaw in the application, specifically that the PCR failed to meet the authorization condition.
It is insufficient to argue that she would establish a consultative committee if certified, as this would not resolve many of the issues outlined in the judgment. Regarding the proposal that the PCR could be fundamentally restructured by appointing additional directors or replacing Professor Riefa, any newly formed PCR would need to make a new determination on whether to pursue these proceedings, along with the necessary funding arrangements to do so. At this juncture, the Tribunal cannot make any assumptions regarding how the PCR may be restructured or the decisions that a restructured PCR might render.
In conclusion, the Tribunal said that certifying this PCR would not serve the best interests of consumers. The PCR has not demonstrated the required independence or robustness to function fairly and effectively in the interests of the consumer class it represents.
The Tribunal’s determination does not preclude the opportunity for a renewed certification application, whether through a restructured version of this PCR or an altogether different PCR.
