Class action against Apple can proceed to certification stage

Daniel Carall-Green and Victoria Green, led by Paul Stanley KC of Essex Court and Robert O’Donoghue KC of Brick Court, and instructed by Geradin Partners, acted for Dr Sean Ennis in successfully resisting Apple’s attempt to have Dr Ennis’ class action summarily dismissed at the jurisdiction stage.

Dr Ennis is seeking to bring collective proceedings in the Competition Appeal Tribunal against Apple on behalf of around 1,500 UK-based app developers. Dr Ennis’ case is that app developers have paid excessive and unfair prices in the form of Apple’s commission on sales made via the App Store. The claim is estimated to be worth approximately $1 billion.

Apple applied to the Tribunal complaining that the claims (improperly) related to commissions on app developers’ sales to device users all over the world (as opposed to just in the UK). Apple argued that the applicable law to such claims was the law of the place where the device user was based. Therefore, Apple said, the law governing commissions on sales made to UK device users was UK competition law, but the law governing commissions on sales made elsewhere was the law of the various other countries in which the device users were based. Alternatively, Apple argued, the commissions on sales made elsewhere were outside the territorial scope of UK competition law. Either way, Apple argued, the claims in respect of commissions on sales to non-UK device users could not be heard in the Tribunal—because (under statute) the Tribunal can only apply UK competition law.

Apple challenged jurisdiction and sought summary judgment/strike-out of the non-UK parts of the claims, and also asked the Tribunal decline jurisdiction over the UK parts of the claims on the grounds of forum non conveniens. Finally, Apple asked the Tribunal to set aside an order for alternative service that had been made in respect of service on Apple’s non-UK entities.

The Tribunal dismissed all of Apple’s applications. In doing so, it found that Apple’s arguments on governing law and territorial scope could not be determined on a summary basis: it was arguable that the commissions charged—to UK businesses, on a market which Dr Ennis had defined as a UK market, leading to losses in the UK—were indeed governed by UK competition law.

Dr Ennis’s case will therefore now proceed to the certification stage.

The full judgment can be found here.