The Competition Appeal Tribunal has certified the case brought by Or Brook Class Representative Limited in respect of Google’s alleged monopolisation of search. The Tribunal decided that the Brook case should proceed on an opt-out basis. 

Daniel Carall-Green and Ruth Flame are acting for the class representative.

The Brook case is brought on behalf of UK advertisers who have purchased search advertising on Google. The case is that Google has abused its dominance in a number of related ways. In summary, the allegations are:

  1. First, Google imposed conditions in agreements with Android device manufacturers which tied Google Search to the Play Store and tied Google Chrome to Google Search and to the Play Store. Relatedly, Google restricted the development of alternative versions of Android, and also offered financial incentives to device manufacturers and mobile network operators to ensure that Google Search and Chrome were pre-installed and prominently placed on Android devices.
  2. Second, Google offered monetary incentives to browser developers (most notably Apple) in exchange for those developers making Google Search the default search engine on the developers’ browsers.
  3. Third, Google developed Search Ads 360 (its advertising management platform) so as to introduce additional functionality for users accessing Google’s own search advertising services, but refused or delayed providing the same functionality for users accessing competitors’ services.

The Brook case is that, as a result of Google’s conduct, advertisers have paid more for a lower-quality product. Initial estimates have valued the case at around £5 billion. Brook is related to Stopford, which is brought on behalf of UK consumers, and seeks damages for higher costs allegedly passed on to advertisers’ customers.

Google opposed certification of Brook on four grounds:

  1. First, it raised issues with the funding arrangements and costs (both incurred and budgeted).
  2. Second, it complained that damages were being sought with no clear end date.
  3. Third, it objected to the class definition.
  4. Fourth, it said that that, applying the Supreme Court’s decision in Evans, any certification should be opt-in, not opt-out. 

On the funding arrangements and costs, the Tribunal did not consider that there was any reason to withhold certification. The Tribunal remarked that Dr Brook’s fees were not “undue and excessive”, and took into account her “major, careful, detailed contributions to the shaping, drafting, management and governance of the claim”.

On the issue of the end date for the damages sought, the Tribunal held that it did not need to decide the point, as it was common ground that the relief sought would need to be limited to a defined period at some stage pre-trial.

On the class definition, the Tribunal said that there might be “some possible arguments at the fringes”, but, overall, concluded that “We do not consider the class definition problematic”.

On the issue of opt-in vs opt-in, the Tribunal concluded that “the balance is very clearly in favour of opt-out certification”. This was because, among other reasons, “Opt-in would have many practical problems, would be slow, would have an undesirable and unfair impact on the Stopford proceedings, and would unjustifiably reduce the size of the overall claim because of appreciable numbers of PCMs being lost”. By contrast, there was “almost nothing to be said in favour of opt-in”. On this last point, Brook stands as the fourth in a line of recent cases – beginning with Stasi, Ennis (discussed here), and Rodger (discussed here) – in which the Tribunal has rejected defendants’ arguments based on Evans.

The full judgment can be found here.