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On 2 April 2024, the Competition Appeal Tribunal certified the collective proceedings brought by Which? against Apple in respect of icloud services. The judgment is available here.
The claims allege that Apple has abused its dominant position in respect of the operating system for Apple devices (iOS) by unlawfully favouring its own cloud storage product, namely iCloud, to the exclusion of what is said to be the many actual and potential competitors for the provision of cloud storage services. In particular, it is claimed that:
(a) Apple deploys a set of technical restrictions and practices which prevent Apple iOS users (such as those who have iPhones or iPads) from storing certain significant file types on any cloud storage service other than iCloud; and
(b) Apple deploys unfair choice architecture practices which individually and cumulatively steer iOS users towards using and purchasing iCloud rather than any other cloud storage services available from other providers and/or limits their effective choice and/or excludes or disadvantages competitors and potential competitors.
The Tribunal’s judgment concludes that the claims were eligible for inclusion in collective proceedings and that Which? met the authorisation requirements under the collective proceedings regime. In particular, the Tribunal rejects Apple’s submissions relating to LCM as the funder of the proceedings and the proposed litigation funding agreement, which were said to affect whether it was just and reasonable for Which? to be the class representative.
Philip Woolfe KC and Jack Williams act for the successful class representative, Which?, and are instructed by Boris Bronfentrinker and Elaine Whiteford of Willkie Farr & Gallagher.