Prof Barry Rodger v Alphabet (Google) (2024)

Professor Barry Rodger applied to the Competition Appeal Tribunal for a collective proceedings order against Alphabet Inc and Google LLC in relation to Google’s practices in the Android app distribution market, specifically the charges imposed on app developers through the Google Play Store. The claim alleged that Google had abused its dominant position by requiring app developers to use its proprietary billing system and charging an excessive 30% commission on in-app purchases, with the overcharge being passed on to consumers. The proceedings were supported by third-party litigation funding, and the defendants raised objections relating to the enforceability and terms of the LFA as part of their opposition to certification. The CAT granted the collective proceedings order, certifying the claim for trial. The Tribunal’s decision to certify was significant in the context of ongoing PACCAR uncertainty, demonstrating that the CAT was not allowing the unresolved questions about LFA enforceability to act as a barrier to the certification of new collective proceedings.

The Tribunal assessed the proposed claim against the certification criteria, including whether the claims raised common issues suitable for collective determination, whether the proposed class was adequately defined, and whether collective proceedings were the most appropriate means of resolving the dispute. The LFA objections were considered but did not prevent certification. The decision was encouraging for the litigation funding market, signalling that the pipeline of new collective proceedings would continue to grow even while fundamental questions about funding arrangements were being resolved through the appellate courts. It also demonstrated that the CAT would assess certification applications on their merits rather than adopting a cautious approach pending resolution of the PACCAR litigation. For funders, the decision confirmed that investments in new collective proceedings applications remained viable despite the regulatory uncertainty.