Opt-out competition class action rejected due to unsuitability of proposed class representative (PCR)

In a significant judgment for the development of the UK competition class actions regime, the Competition Appeal Tribunal (CAT) has refused to certify a standalone opt-out competition class action against Apple and Amazon to proceed to trial, on the basis that the proposed class representative (PCR) – Professor Christine Riefa – was not suitable to be authorised to represent the class of approximately 36 million claimants: Christine Reifa Class Representative Ltd v Apple Inc [2025] CAT 5.

This is the first time that the CAT has refused certification on the grounds that it was not just and reasonable for the PCR to act as a representative in the proceedings (the so-called "authorisation condition"). The certification hearing also featured the first-ever cross-examination of a PCR, with Professor Riefa questioned in detail about her understanding of the funding arrangements and the potential conflicts of interest that could arise between the funder, the claimant law firm and the class members.

The CAT's judgment is highly critical of the PCR, emphasising that the PCR "is not, and cannot be, merely a figurehead for a set of proceedings being conducted by their legal representatives". The PCR must act as an independent advocate for the class and be capable of engaging robustly with advice received. While the CAT will be cautious about venturing into an assessment of the commercial terms of a litigation funding agreement or intervening in relation to the funder's return at the certification stage, it will scrutinise the funding arrangements to satisfy itself that they reasonably serve and protect the interests of the class.

The CAT also criticised the use of broad confidentiality obligations in funding agreements that can only be waived at the unilateral discretion of the funder. It considered that it is "crucial" in opt-out proceedings for sufficient information about funding arrangements to be made available to the class members to enable each of them to make an informed decision about whether to opt out.

For more information, see this post on our Competition Notes blog.