A collective action claim alleging that Google caused billions of pounds in damages by favouring its own advertising technology services has won certification in the UK.
The UK’s Competition Appeal Tribunal today paved the way for the ad tech class action to seek up to £13.2 billion in damages from Google, ruling in a 26-page judgment that the claim meets the test set out by Merricks, demonstrates the allegations are triable and shows loss suffered by over 200,000 news publishers is quantifiable.
There is an arguable claim that Google could discriminate against rivals and favour itself in the “technically layered and complex market environment” encompassing advertising technology, the tribunal found.
The decision comes eight months after the CAT allowed proposed class representatives Claudio Pollack and Charles Arthur to consolidate their competing claims into a single lawsuit brought by Ad Tech Collective Action LLP.
Following a postponement of the certification hearing in January to allow Google time to review the “voluminous” materials filed by the proposed class, the company argued last month that its self-preferencing conduct was necessary to turn the advertising technology sector into a “huge success story” that provides enormous growth to publishers.
Though the tech company believes it can successfully challenge the merits of the claim, “the mere fact that a claim has been articulated says nothing about the merits of the claim pleaded,” the CAT held today.
The UK’s Supreme Court clearly stated in Merricks that collective proceedings need not pass a “merits test” to obtain certification beyond showing that the claim is not capable of being struck out, the tribunal added.
The CAT rejected Google’s argument that the claimant failed to satisfy the Microsoft test, which effectively requires a “blueprint to trial”. The test was first laid out by the Canadian Supreme Court and is used in that jurisdiction to assess if a particular claim can proceed on a collective basis.
Only when there is no clear path for trying a case should the Microsoft test act as a bar to certification, the tribunal said. Several case management issues will need to be resolved, but the class representative satisfied its burden of making a triable claim, the CAT held.
Limitation remains a live issue, with Google arguing that claims for damages suffered between 1 January 2014 and 30 September 2015 should be struck out as time-barred. Meanwhile, some allegations only arose in a claim form filed in March 2023, which would impact the start date of the limitation period, it argued.
The tribunal said those issues do not preclude the issuance of a collective proceedings order, although it conceded that the question of when those matters should be decided is relevant to a blueprint for trial.
The CAT said these limitation issues should be heard during the trial since they only affect the time periods for the alleged abuses and do not have the potential to strike out any of the pleaded abuses altogether.
Another case management issue relates to how the class is represented following the consolidation of claims, with Hausfeld, Humphries Kerstetter and Geradin Partners acting jointly as its solicitors.
Recognising that such an arrangement was “obviously the outcome of a careful compromise between two aspiring class representatives”, the court said it would not force Ad Tech Collective Action to make any changes despite the fact it would not typically “look kindly” on having three firms involved from the start.
Combining the claims was beneficial as it ensured the case could move forward without requiring a carriage hearing and subsequent judgment, thereby saving significant costs, said Stijn Huijts at Geradin Partners in London, who acts for claimant.
The consolidation “also meant that two top teams of solicitors and barristers joined together on what is an important but complex case, matching the significant firepower that Google can deploy”, he added.
Google legal director Oliver Bethell said the company is prepared to “vigorously” oppose the “speculative and opportunistic” lawsuit.
“Google works constructively with publishers across the UK and Europe – our advertising tools, and those of our many adtech competitors, help millions of websites and apps fund their content, and enable businesses of all sizes to effectively reach new customers,” he added.
Counsel to Google
Herbert Smith Freehills
Partners Stephen Wisking, Kim Dietzel and Rachel Lidgate in London
Monckton Chambers
Meredith Pickford KC and Warren Fitt
Counsel to Ad Tech Collective Action
Geradin Partners
Partners Damien Geradin in Brussels, Stijn Huijts and David Gallagher in London and counsel Anthony Ojukwu in London
Humphries Kerstetter
Partner Toby Starr in London, assisted by Kieran Anderson, Parth Jethwa and Charlotte Flaminger
Hausfeld
Partners Luke Streatfeild and David Lawne in London, assisted by Amandine Gueret, Adrian Langley and Patrick Kenny
Brick Court Chambers
Robert O’Donoghue KC
Monckton Chambers
Gerry Facenna KC, Julian Gregory, Nikolaus Grubeck and Alison Berridge
Fountain Court
Niamh Cleary
One Essex Court
Greg Adey
Economics
Charles River Associates
Vice presidents Oliver Latham and Mikael Hervé in London
