CAT
rules on carriage dispute in collective proceedings against Amazon
The
Competition Appeal Tribunal (CAT) has determined the "carriage issue"
in two applications to commence collective proceedings, under section 47B of
the Competition Act 1998, against Amazon.
The first application was brought by Ms Julie
Hunter and the second by Mr Robert Hammond (each as the proposed class
representatives).
The
proposed proceedings would both combine standalone claims for damages caused by
alleged breaches by Amazon of Article 102 of the TFEU (prior to 31 December
2020) and the Chapter II prohibition of the Competition Act 1998.
Each
sets of proceedings allege abuse of a dominant position by Amazon in the market
for intermediation services on online marketplaces through the operation of its
"Fulfilled by Amazon" and "BuyBox" features.
The
CAT ruled that it would not be able to certify both sets of proceedings due to
the overlaps between them. It decided
which set of proceedings should be allowed to continue to a certification hearing
as a separate provisional issue.
The CAT concluded that Mr Hammond was most
suitable to act as the proposed class representative. It considered that the
methodology submitted by Mr Hammond's expert was preferable as it more closely
aligned the counterfactual to the alleged abuse.
However,
this may not be the final resolution of the matter. The CAT decided that Ms Hunter's application
should be stayed, rather than dismissed. It could still proceed to a
certification hearing on the event that Mr Hammond's application for
certification were to fail or, if granted, be revoked. It may even be that the two class representatives
might join forces in the future to allow claims to be brought by as wide a body
of claimants as possible.
The
CAT made no ruling on which class definition was more appropriate, finding that
it is not an issue to be determined in a carriage dispute.
Julie
Hunter v Amazon.com, Inc and others and Robert Hammond v Amazon.com, Inc and
others [2024] CAT 8
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