UK’s Competition Appeals Tribunal approves consolidation of Google claims in ad tech litigation

Lawyers say move sets an important precedent and is a ‘milestone’ for the UK’s opt-out regime
August 19, 2018 Mountain View / CA / USA - Google logo on one of the buildings situated in Googleplex, the company's main campus in Silicon Valley

Claimants say Google’s abuse of its dominant position has impacted publishers’ potential ad revenue By Sundry Photography/Shutterstock

The Competition Appeal Tribunal has approved the consolidation of two multi-billion-pound claims against Google on advertising technology.  

Consolidation of the claims, brought by Charles Arthur and Claudio Pollack, will now proceed to a certification hearing in January 2024. Both parties sought to bring an opt-out collective claim on behalf of website publishers and app developers, who they say had suffered loss due to Google’s abuse of its dominant position.  

The approval spares the CAT from deciding which claim should be the most suitable to be certified and proceed to trial, allowing the claimants to present a consolidated claim and a united advisory team, including experts and counsel, and crucially save time and costs.  

Consolidation is not a trivial step. Other significant claims have faced similar issues, such as the Trucks Cartel claim in across 17 different European jurisdictions, with two putative class claims brought in the UK alone.

Earlier this year the FX litigation saw its own carriage dispute result in a Court of Appeal ruling which chose between class representatives, lawyers and funders, with obvious disappointment to those deselected.

Both claims will be consolidated through a special purpose vehicle – Ad Tech Collective Action – with the two class representatives acting as partners of a limited liability partnership, chaired by Kate Wellington, a consumer rights champion.

Pollack criticised Google’s allegedly abusive conduct, which has been the subject of various proceedings internationally, and which the tech giant has defended robustly, with Pollack saying consolidation meant the LLP was able to ensure that UK publishers were “given the best chance possible for justice to be delivered”.  

In a joint statement, Luke Streatfeild of Hausfeld, Toby Starr of Humphries Kerstetter and Damien Geradin of Geradin Partners said the ruling set “an important precedent” that allows the litigation, supported by a subsidiary of third-party litigation funder Fortress, to proceed without delay.

The trio added: “Publishers continue to lose significant revenue from advertising as a result of Google’s conduct and have done so for nearly a decade. This claim, which is made at no cost to publishers, is the best way for them to obtain proper compensation.”   

The LLP has instructed a consolidated team of barristers from Brick Court Chambers, Monckton Chambers and One Essex Court, namely Robert O’Donoghue KC, Gerry Facenna KC, Julian Gregory, Alison Berridge and Greg Adey, respectively.

Market reaction was positive. Martyn Day, of Leigh Day, the co-president of the Collective Redress Lawyers Association, said the permission granted was “a milestone for the UK’s opt-out regime”.

Day said: “It is good to see that the prospective representatives have come together for the benefit of the class members and we would anticipate that this is a model which, as the regime develops, might be adopted by further representatives in future.”

James White, of Henderson Chambers, added: “This interesting development further evidences the flexibility of the collective proceedings’ regime, and, in appropriate future cases, it may be seen as a route to avoid costly and uncertain carriage disputes of the kind seen in the recent past.”

Genevieve Quierin of Stephenson Harwood agreed, saying: “Finally common sense prevails – well done for showing us all how to cooperate. Hopefully this will reduce the number of expensive and time-consuming carriage disputes going forward.”

Herbert Smith Freehills, which represents Google, declined to comment. Stephen Wisking and Kim Dietzel of HSF act for Google, instructing counsel Meredith Pickford KC at Monckton Chambers and Natasha Simonsen at Blackstone Chambers.

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