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In its first certification judgment since the Supreme Court’s recent judgment in Evans v Barclays, the Competition Appeal Tribunal (CAT) has certified opt-out proceedings brought against Valve Corporation, which operates Steam, the world’s largest PC game distribution platform.
The claim, estimated to be worth up to £656m, alleges that around 14 million consumers have been overcharged for games and additional content on Steam and other platforms as a result of Valve’s abuse of dominance.
The Class Representative alleges, in summary, that Valve has unlawfully imposed: (a) platform parity obligations (PPOs), that restrict publishers’ ability to offer better prices or terms through competing distribution channels, (b) anti-steering and/or tying provisions, that prevent users from purchasing additional content through competing distribution channels, and (c) excessive and unfair commission charges on sales made through Steam.
Valve opposed certification on multiple grounds, in particular alleging deficiencies in the proposed methodologies for establishing liability and loss in relation the PPO and unfair pricing abuses, as well as deficiencies with the proposed class definition. The CAT rejected Valve’s objections and certified the claim.
Before reaching its judgment, the Tribunal of its own motion raised issues concerning the Class Representative’s funding arrangements (following its judgment last year in Riefa v Amazon) and whether the proceedings warranted certification on an opt-out basis (in the light of Evans v Barclays).
On the former point, the CAT accepted the Class Representative’s submission that the facts of Riefa were highly unusual, and moreover (as stated in Riefa itself) that the Tribunal’s comments in Riefa should not be elevated into a set of independent legal tests or rules, and that the Tribunal should be reluctant to venture into an assessment of the commercial terms of the LFA unless they are sufficiently extreme to warrant calling out.
On the latter point, the Tribunal found that Evans did not call into question certification on an opt-out basis, noting that this was a claim brought on behalf of a large class of consumers each of which had suffered moderate losses – described by the Supreme Court as a ‘paradigm’ of where opt-out certification is appropriate.
Julian Gregory and Will Perry were instructed by Milberg London LLP for the Class Representative at the CPO hearing.
Robert Palmer KC was instructed for the Class Representative at an earlier stage of proceedings.
The claim is funded by Bench Walk Advisors.