On February 5, 2024, the Competition Appeal Tribunal, for the first time, issued a judgment concerning the preliminary issue of “carriage dispute” in advance of certification. To resolve the issue, the Tribunal was tasked with determining which of two class applicants – Julie Hunter or Robert Hammond – would be most suitable to serve as the proposed class representative to bring stand-alone claims regarding Amazon’s alleged abuse of a dominant position. Because the applications involved similar allegations with overlapping class members, the Tribunal was forced to choose between Hunter’s application (filed in November 2022) and Hammond’s (filed in June 2023) and ultimately determine which should be considered for class certification. After examining evidence from the applicants’ experts and the respective methodologies used to demonstrate and quantify the alleged abuse, the Tribunal preferred the approach used by Hammond’s expert and ruled unanimously that Hammond should serve as the proposed class representative.
According to the Judgment, the abuses alleged by the applicants relate to use of the “Buy Box” option on Amazon Marketplace, which enables merchants to display products available for online purchase. Both applicants allege that Amazon used an algorithm to select “Featured Offers”, which are products that would be promoted or featured in the Buy Box, that favored Amazon’s own retailers and sellers that use Amazon’s fulfilment service over other vendors. The applicants claimed that Amazon’s use of the biased algorithm violated competition laws, and each sought between £539.6 million and £1.3 billion in estimated damages. Amazon denies both applicants’ allegations.
While the Tribunal ruled in favor Hammond’s application, it decided to stay and not dismiss Hunter’s application, while acknowledging that the application was “well put together, and has simply come second in a hard-fought race.” The Tribunal also indicated that it would consider lifting the stay if, for any reason, Hammond’s application for certification were to fail.