Roger Kaye KC’s proposed antitrust lawsuit against Google “undermines” key claims of exclusionary abuse of dominance against the tech company, counsel to a rival class representative has argued.
Kieron Beal KC, counsel to Or Brook, told the UK’s Competition Appeal Tribunal today that Kaye “undermines” his own case against the tech company by degrading the value of exclusionary abuse allegations against its search advertising practices.
This presents a “positive conflict” between the interests of Kaye’s proposed class of UK search advertisers and that of Nikki Stopford’s consumer-side lawsuit, which seeks £7.3 billion on behalf of millions of UK residents, Beal said.
This conflict arises in Kaye’s counterfactual argument that Google’s market share would likely land at around 80% – something that “doesn’t move the dial” for Stopford’s already-certified class, he claimed.
The CAT today heard further arguments from competing proposed class representatives Brook and Kaye, the latter of whom is a former judge at the High Court of England and Wales.
Both class representatives are seeking certification to claim compensation from Google on behalf of search advertisers, alleging that the tech company abused its dominance by overcharging businesses and providing lower-quality advertising services.
Brook’s proposed case is valued at £5 billion, while Kaye’s rival claim is worth between £15.2 billion and £25.2 billion.
The proposed collective proceedings are also being case-managed alongside Stopford’s class action on behalf of UK consumers, which was certified in November.
‘Significant flaws’
Targeting Kaye’s unfair pricing claim against Google, Beal told the CAT today that it is “very difficult” to allege any “gouging” by the tech company, given a price difference of only around 25% when compared to key rival Bing.
“When you haven’t explained what percentage of that difference is attributable to quality, or to brand reputation, or to any of the other economic value factors, you have a significant flaw in your methodology,” he said.
Google will “go to town” on that point in a future certification hearing, he warned.
Brook’s proposed claim offers a more “coherent” theory of harm that provides an explanation of why Bing’s lower prices failed to undercut Google, including by focusing on foreclosing practices, Beal argued.
If it was easy to propose a “slam dunk” unfair pricing case against Google that is also cost-effective, then everyone would have adopted it, he said.
Mark Brealey KC, counsel to Kaye, argued in response that his client’s proposed cost-plus assessment to determine if Google charges unfair prices does capture intangible elements, including goodwill and brand reputation. That is “part and parcel” of a cost-plus analysis, Brealey said.
He also pointed to the ruling by the Court of Appeal of England and Wales in May that backed the Competition and Markets Authority’s liothyronine decision – a case in which the UK watchdog used a similar cost plus assessment to determine that drugmakers charged unfair prices for a thyroid medication.
Conflict of interest
As the hearing drew to a close, Brealey also targeted the involvement of Geradin Partners as counsel to Brook.
Kaye has argued that the firm’s involvement on behalf of publishers against Google’s conduct in the advertising technology stack presents a “real” risk of a conflict of interest, pointing to their claim that their bargaining position against advertisers has been weakened.
Daniel Carall-Green, counsel to Brook, confirmed earlier in the hearing that Geradin Partners has received consent from key members behind an adtech case to act for the class representative.
Brealey took the issue further, questioning whether advertisers are “happy to disclose information in this case which could be used to their disadvantage vis-a-vis the publishers" in other proceedings.
CAT chair Mr Justice Richard Meade set aside a timetable for both parties to address the issue of disclosure in writing.
The hearing concluded today.
Counsel to Or Brook
Geradin Partners
Partners Damien Geradin in Brussels, David Gallagher and Patrick Teague in London, assisted by Katerina Dres, Anthony Ojukwu, Kieran Anderson and Temi Alade
Brick Court Chambers
Robert O'Donoghue KC and Camilla Cockerill
Fountain Court Chambers
Daniel Carall-Green and Ruth Flame
Blackstone Chambers
Kieron Beal KC
Economics
Yale School of Management
Fiona Scott Morton
Alix Partners
Partner Matt Hunt in London
Litigation funder
Burford Capital
Counsel to Roger Kaye KC
KP Law
Partner Emma Birch in London
Monckton Chambers
Nicholas Khan KC and Mark Brealey KC
Kings Chambers
Adam Aldred
Economics
Keystone AI
Senior partner Andrea Coscelli in London