Pollack v Google: CAT provides guidance on carriage disputes

The Competition Appeal Tribunal today handed down a judgment in the Pollack v Google collective proceedings claim – which alleges that Google abused its dominant position in online advertising markets to the detriment of online publishers.

Since the Pollack claim was filed in November 2022, a rival opt-out collective proceedings claim (Arthur v Google) brought on behalf of a similar class and containing similar allegations of abuse was filed on 29 March 2023, giving rise to a potential carriage dispute.

The issue facing the Tribunal was whether it should determine the carriage dispute in an earlier, separate hearing, or in a combined carriage and certification hearing – the approach previously adopted in the FX and Trucks collective proceedings claims.

The Tribunal determined that carriage should be determined first (this autumn), with a certification hearing for the successful claim to follow early next year.

The judgment contains the following comments of wider relevance to the case management of collective proceedings claims where a carriage dispute arises.

1. The decision to hold a combined hearing in FX was influenced by the fact it was the first time the Tribunal had considered carriage issues. Determining carriage first can produce significant cost savings and that approach is likely to be appropriate for most carriage disputes.
2. Rival PCRs should co-operate to ensure that a carriage hearing is listed as soon as possible. There is no need for listing to wait until all foreign proposed defendants have been served.
3. Proposed defendants should not – save to assist the Tribunal – be entitled to have much of a say in carriage hearings, i.e. in picking the party that will be litigating against them. Indeed, proposed defendants do not have to participate in the carriage hearing at all unless they want to.
4. In determining carriage, the question of which PCR was ‘first to file’ is not determinative. On the other hand, where a PCR has spent time and money in framing a carefully considered, standalone, claim, some credit ought to be given for filing first – and the longer the delay before the second claim is filed, the harder it will be to displace the first applicant.

Julian Gregory, instructed by Humphries Kerstetter LLP, represented Mr Pollack at the hearing.  Ronit Kreisberger KC is also instructed.

Meredith Pickford KC, instructed by Herbert Smith Freehills LLP, represented Google.

Gerry Facenna KC, Nikolaus Grubeck and Alison Berridge, instructed by Hausfeld & Co LLP, represented Mr Arthur.