Tuesday, July 19, 2022

UK court certifies 19.5 million consumers as plaintiff class against Google Play's Android app tax: Competition Appeal Tribunal held hearing on Monday

In the next post I'll talk about a new U.S. class action over Apple Pay, but let's not lose sight of the second-most "popular" target of class actions raising issues of abuse of mobile gatekeeper power: Google (Alphabet).

Last year, the Hausfeld firm brought a UK antitrust class action on behalf of consumers seeking redress of up to 920 million UK pounds (now approximately US$1.1B) for "excessive and unlawful" surcharges on digital purchases made via the Google Play Store. Previously, the same firm also brought a similar case against Apple, which passed an important legal and factual plausibility test a few weeks ago.

Interestingly, the official website that was set up to inform UK consumers of both cases, www.appstoreclaims.co.uk, is extremely hard to find via Google searches. I actually found it only because of a press release that links to it. I don't mean to suggest that there is any foul play (Google always insists that ther is no manual manipulation of the ranking of search results), but it is a counterintuitive state of affairs given that the case was widely reported on, and may be worth keeping an eye on.

In September 2021, the President of the Competition Appeal Tribunal (CAT), Mr. Justice Roth, handed down a reasoned order (PDF). He "note[d] that Google’s conduct in connection with the Android operating system and Google ecosystem has formed the subject matter of a number of regulatory investigations and private claims in several jurisdictions, including by the UK Competition and Markets Authority." Clearly, those UK class actions came on the heels of a CMA investigation. One of the wordings used by the CMA has since been quoted in cases around the globe (though not in the CAT order I just linked to): "vice-like grip"--which I prefer to spell as "vise-like grip."

Citing a UK case previously brought by Epic Games, Mr. Justice Roth declared himself "not satisfied that there is an issue to be tried as against either Google Commerce or Google Payments" in what was described as a "bundling" abuse, but that was just one of various claims raised and not mission-critical.

The website of the CAT still notes that "[a] hearing for the CPO [Collective Proceedings Order] Application has been listed for 18 July 2022, with a time estimate of half a day." The decision will presuambly be published pretty soon, but the outcome is already known. On LinkedIn, Liz Coll--the class representative--announced the favorable decision (click on the image to enlarge or read the text further below):

Here's (again) what the class representative wrote:

"Delighted to get certification from the Competition Appeal Tribunal today to proceed with my #classaction against #Google today for breaching competition law by overcharging consumers for apps and in-app purchases in the #PlayStore. Thanks to excellent Hausfeld team and Counsel team. One step closer to fairer digital markets and redress for consumers #competitionlaw #appstores"

This means the case against Google is now as far along as the parallel (and previously-filed) one against Apple.

For UK consumers, the class sought approval as an "opt-out" class, meaning all UK-based Android users who made payments in or on Android apps via Google Play Billing will automatically get a share of any funds to be redistributed unless they decline in order to be able to pursue their own cases. There may additionally be an "opt-in" avenue for those who made payments via the Google Play Store in the UK but are not residents of the UK--at least that's what the original complaint proposed.

The "Goopple" duopoly also has to defend against a similar pair of actions brought in Australia as I reported earlier this month.