On 1 November 2023, the Competition Appeal Tribunal provisionally certified an application for opt-out collective proceedings against Apple Inc., Apple Distribution International Limited, Apple Retail UK Limited, for alleged abuse of their dominant position in relation to the installation of a software update in certain iPhone models which slowed device performance. This certification is provisional until new funding arrangements are in place following the decision in PACCAR. The Tribunal’s judgment is available here.

The proposed class representative, Mr Justin Gutmann, alleges that the Defendants abused their dominant position by failing to inform consumers that the software update contained a performance management function, which would materially reduce the performance of the device. He alleges that this has resulted in UK consumers being owed compensation for the reduction in the value of their phone, as well as for the cost they may have incurred replacing their battery or upgrading their device early.

Mr Gutmann said: “This is fantastic news for iPhone users in the UK, and a major step towards for consumers’ access to justice. Apple misled millions of iPhone users by issuing software updates that avoided addressing their underlying battery issues, choosing instead to curb iPhone performance.”

The application for a collective proceedings order was opposed by the Defendants on various grounds. The Tribunal refused to strike-out any aspects of the claim, instead holding that the claim should proceed to trial. The Tribunal also noted that there exists an ‘inequality of information’ between the parties and that this matter should now proceed to disclosure, to rectify this.

The Tribunal also determined that the claim should be heard across two trials. The first trial would deal with the question of abuse, on the assumption that Apple is dominant. The second trial would deal with the questions of quantum and dominance.

Charles Lyndon Limited are instructed as solicitors for Mr Gutmann.

Dorothea Antzoulatos, Director of Charles Lyndon, said: “Charles Lyndon is delighted that this compensation claim on behalf of millions of iPhone users can go ahead. By slowing down the iPhones of millions of people, Apple failed to be transparent with their customers and abused their market position and customers’ loyalty. We are proud to support Mr Gutmann in his goal to hold Apple to account for this behaviour”.

Philip Moser KC, Anneli Howard KC, Stefan Kuppen, Will Perry and Natalie Nguyen (all of Monckton Chambers) are instructed as counsel for Mr Gutmann.

Balance Legal Capital LLP are funding the claim.