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The Competition Appeal Tribunal yesterday handed down judgment in its first determination of a carriage dispute between rival applications for opt-out collective proceedings orders as a preliminary issue prior to certification.

Both Ms Hunter and her rival applicant, Mr Robert Hammond, had applied for opt-out collective proceedings orders in respect of claims for abuse of dominance against Amazon in connection with the operation of its “Buy Box” (a prominent design feature of its website promoting a single “featured offer” which is selected by most consumers). Both applicants alleged that the algorithm which selected the merchant offers which appear in the Buy Box was essentially biased in favour of Amazon itself or its own logistics services. The applicants alleged that consumers who purchased through Amazon had suffered loss in the form of higher prices or the loss of alternative purchase options they would have preferred, and provisionally estimated the class-wide loss at between £0.5bn and £1.4bn. Given that the two applications very substantially overlapped, the Tribunal was required to decide which should proceed to the certification stage.

The Tribunal stated that it was appropriate to take a “robust approach” to determining carriage prior to certification which entailed a “degree of rough and readiness”, [10]. It considered which of the methodologies advanced by the rival experts was “clearly or distinctly better” and whether it could be said that either of them would “not work”, [31]. Applying that test, it determined that the methodology of Mr Hammond’s expert was better because it was better aligned to the appropriate counterfactual, [32]. Accordingly, the Tribunal stayed Ms Hunter’s application and stated it would consider lifting the stay if Mr Hammond’s application for certification failed. It declined to dismiss Ms Hunter’s application, stating, “[i]t is well put together, and has simply come second in a hard-fought race. In these circumstances, access to justice requires that we keep (insofar as we can) this alternative application alive.”

The full judgment can be read here.

Tom Coates acted for Ms Hunter.

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