On 14 January 2025, the Competition Appeal Tribunal (the Tribunal) delivered a landmark judgment in Christine Riefa Class Representative Limited v Apple Inc. and Amazon.com, Inc., refusing to grant a Collective Proceedings Order (CPO) as it was not satisfied that it was just and reasonable for the proposed class representative (PCR) to act as the class representative. 

The judgment marks the first time the Tribunal has refused to grant a CPO solely on the grounds of the suitability of a PCR, and highlights the heavy responsibility class representatives have in demonstrating that they can fairly and adequately act in the interests of class members in collective proceedings.

Background 

The claim, initiated by Christine Riefa Class Representative Limited, sought to commence opt-out collective proceedings against Apple and Amazon. Professor Riefa is the sole member and director of the company set up to act as the PCR. 

The allegations centred on anti-competitive agreements between Apple and Amazon, which purportedly led to inflated prices for Apple products sold in the UK by limiting the number of UK resellers of Apple products on Amazon Marketplace. The proposed class included all individuals who purchased Apple-branded or Beats-branded products at retail level in the UK during the relevant period, estimated to encompass over 36 million people. The size of the claim was estimated at £494m.

The claim was brought on a standalone basis but sought to draw on the findings of an infringement decision issued by the Italian competition authority in 2021 in respect of substantially the same conduct.

The Tribunal's concerns

The Tribunal's decision to refuse the CPO was based on cumulative concerns regarding the authorisation condition under section 47B(5)(a) of the Competition Act 1998 and Rule 77(1)(a) of the Tribunal Rules. 

The Tribunal may only authorise a PCR if it is satisfied that it is "just and reasonable" for the applicant to act as a class representative in the proceedings. In determining this question, the Tribunal must consider whether the PCR would “fairly and adequately act in the interests of class members”.

The key issues identified by the Tribunal, which led to it concluding that authorisation condition was not met, included:

1. The PCR’s understanding of funding arrangements

The Tribunal found that Professor Riefa did not demonstrate a strong understanding of the funding arrangements, either in her witness statements or during cross-examination. 

The litigation funding agreement (LFA) had undergone multiple amendments and included provisions which appeared inimical to the interests of the class, notably an obligation on the PCR to seek priority of payments to the funder over the class members (later amended to apply only where “appropriate in all the circumstances”). The Tribunal was concerned that Professor Riefa  did not fully understand these provisions and may therefore not have been able to balance adequately the competing interests of the funders and lawyers with those of the class members. 

Additionally, there were errors in the funding and insurance agreements which contributed to the Tribunal's overall impression of there being insufficient control over and attention to detail in managing the litigation process.

2. Confidentiality provisions in the LFA

The LFA contained confidentiality obligations that prevented the PCR from disclosing key terms to potential class members, including the funder’s return and the fact the PCR was obliged to seek priority of payments to the funder. 

The Tribunal highlighted the importance of transparency in collective proceedings, noting that class members have a strong interest in understanding the commitments made by the PCR. The Tribunal was not convinced that Professor Riefa had adequately considered the interests of the class members in this regard, and was concerned by a statement that Professor Riefa “would not want to take a position contrary that of her funder”.

3. The independence and robustness of the PCR’s decision-making

More broadly, the Tribunal questioned Professor Riefa’s ability to act independently and robustly in the interests of the class members. Her apparent reliance on her legal advisers and the lack of a  consultative panel to provide additional support and scrutiny were seen as significant shortcomings. 

The Tribunal emphasised that a class representative must be able to engage critically with advice they receive and make informed decisions independently. 

Implications of the judgment

The Tribunal’s decision is an important reminder of the "heavy responsibility” proposed class representatives bear in ensuring that proceedings are conducted in the best interests of the class.

In particular, the judgment demonstrates that, despite the relatively low threshold for certification established by the Supreme Court in Merricks, the Tribunal’s gatekeeper role in collective proceedings remains an important hurdle and it will assess the particular circumstances of individual cases. Whilst the Tribunal acknowledged Professor Riefa’s significant experience in her field, a PCR must demonstrate that it acts independently and robustly in the class's best interests (including in respect of funding), and gives sufficient consideration to the relevant issues in the case throughout the litigation process, particularly given the complexity, size and cost of these types of proceedings. 

As the Tribunal stated, “a class representative is not, and cannot be, merely a figurehead for a set of proceedings being conducted by their legal representatives, but must act as the independent advocate for the class”. Future class representatives must be ready to meet these stringent requirements to secure authorisation.