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On Friday 13 February, the Competition Appeal Tribunal heard the first case management conference in the collective action brought by the proposed class representative, the Association of Consumer Support Organisations (“ACSO”), against Amazon.
ACSO seeks to claim damages from Amazon on behalf of a class of UK consumers who purchased products sold by merchants on Amazon’s UK marketplace. ACSO contends that Amazon’s use of alleged price parity policies is in breach of the Chapter I and Chapter II prohibitions in sections 2 and 18 of the Competition Act 1998, and enabled Amazon to charge higher marketplace fees to merchants which were passed on to UK consumers. Amazon denies the existence of the alleged price parity policies and denies breaching competition law.
At the first case management conference Amazon applied to strike out ACSO’s claim as an “abuse of process” because the customer class that ACSO seeks to represent overlaps with a related collective proceedings claim brought by a class representative, Mr Hammond, which has already been certified by the Tribunal. In the alternative, Amazon sought a direction that ACSO be compelled in advance of a CPO hearing to replead its claim to rely on the experts instructed by Professor Stephan, a class representative in related proceedings brought on behalf of a class of UK merchants (in relation to the alleged infringement and overcharge) and by Mr Hammond (in relation to pass-on).
ACSO resisted Amazon’s strike-out application on several bases, including that there is no overlap on the issue of Amazon’s alleged liability as between the ACSO and Hammond claims. It resisted Amazon’s alternative application on the ground that it should not be precluded, particularly prior to certification, from relying on its own expert with a different and arguably better-suited methodology to advance its case.
By an oral ruling given on the day by Sir Peter Roth, the Tribunal dismissed Amazon’s strike-out application (with reasons to follow). It directed, however, that ACSO reconsider its CPO application and its claim form and, insofar as issues of market definition and dominance are the same as between ACSO’s CPO application and the certified collective proceedings brought by Mr Hammond, make any necessary amendments so that the customer class use the same expert and methodology and are represented by a single group of lawyers in respect of those issues. The Tribunal also directed that ACSO’s expert economist liaise with the experts instructed by Mr Hammond and Professor Stephan and produce revised proposals in relation to the alleged conduct and pass-on, to be addressed at the hearing of the CPO application.
Ben Lask KC, Luke Kelly and Jenn Lawrence are acting on behalf of ACSO, instructed by Stephenson Harwood LLP.
Daisy Mackersie and Kristina Lukacova are acting for Amazon, instructed by Covington & Burling LLP.