Google v Infederation abuse of dominance claim – litigation approach and direction

01 Aug 2013 | by Caroline Sweeney

In this case the High Court considered the proportionate approach to disclosure and trial of abuse of dominance allegations where there is an open EU Commission investigation.

Foundem’s website compares prices and features of products and services. In a 2009 complaint to the EU Commission, and now in this High Court case, Foundem alleges that Google is dominant in online search and in online search advertising and has abused those dominant positions in various respects, including by unfairly demoting Foundem in its search result rankings, and also by giving preferential treatment through the presentation of its search results to Google’s own comparison services over those of Foundem and other similar businesses. The EU Commission opened an investigation into all those allegations in 2010, and in 2012 announced a preliminary assessment that the preferential treatment of Google’s comparison services (but not mentioning the complaints of unfair demotion) may be considered an abuse of dominance. The EU Commission was consulting on commitments by Google, but the entire investigation remained open.  It had indicated that, if commitments could be agreed, then the investigation could be closed before the end of this year.

Against that background, Google sought a stay of the High Court proceedings, pending the Commission’s decision on its investigation, arguing that there were grounds to suppose that the Commission might in particular reject the complaints of unfair demotion, on the merits. Foundem, on the other hand, sought standard disclosure in respect of its entire claim, to be given directly. Mr Justice Roth stated that in these circumstances it was in the discretion of the Court to determine what steps short of trial should be taken, having regard to the overriding objective and all the circumstances.

At the Judge’s invitation, the parties agreed that the abuse allegations should be heard first, with the issue of dominance and market definition being held over, to be addressed at a second trial, if liability for the abuse allegations was established . On that basis, the Judge took a targeted approach to disclosure, rather than ordering standard disclosure: he dispensed with the need for disclosure in respect of the “wide-ranging” dominance issues and, in respect of the abuse issues, mainly required Google to disclose, in the first instance, only material documents within the body of documents already provided to the EU Commission.

The Judge also declined to order disclosure at this stage in respect of one of Foundem’s allegations, where (i) he foresaw at least a possibility that the Commission may take a negative decision, and (ii) he also bore in mind that disclosure was likely to be of particular sensitivity where it represented Google’s current algorithms on which its website mechanism operates.

Jon Turner QC acted for Google.

To read the full judgment please click here.

The judgment has also been widely covered in the press.