Multibillion-dollar tech matters don’t appear to be determined in the London tribunal building on Bloomsbury Place. Calm corridors. There’s a tiny cafe in the foyer. Most people, including most lawyers, never visit the Competition Appeal Tribunal, which is located in a part of the British legal system. However, what transpired in the Apple iCloud case is the kind of thing that spreads throughout Cupertino, Brussels, and the offices of all of Europe’s Big Tech competition attorneys. Apple desired a reduction in the class. The tribunal declined.
On paper, the lawsuit is massive. It was introduced by Which?, a British consumer advocacy group, and accuses Apple of locking customers into iCloud for the things that really matter, including device backups, app data, settings, and the unglamorous infrastructure that makes a phone feel like yours, by utilizing its control over the iOS ecosystem. About 38.5 million British iCloud users are left with little real option but to pay Apple’s rates when their free 5GB eventually runs out, according to the argument that Apple doesn’t truly let competing cloud providers touch those features. Which? refers to those costs as “rip-off.” Naturally, Apple doesn’t agree.
As is often the case, Apple’s attempt at the tribunal was ingenious. The millions of consumers who saw the upgrade prompt, chose not to spend the money, and continued to live with their compressed photo libraries, they contended, should at the very least be excluded from the class. From Apple’s perspective, those users weren’t overcharged because they weren’t charged at all. At first glance, the reasoning seems plausible.
The tribunal refrained from biting. The judges relied on the idea of “foregone consumer surplus,” which is more intriguing to competition attorneys than most non-lawyers. In a nutshell, the premise is that if Apple’s anti-competitive behavior kept prices artificially high, then consumers who turned away after seeing those high costs were still affected. They would have purchased storage at the more affordable, competitive cost that ought to have been available. The harm is not eliminated by the lack of a transaction. It simply modifies the measurement.
That is a significant line of thinking. It enhances Apple’s exposure in UK competition cases and broadens the definition of a class. This decision will be used by plaintiffs in comparable tech cases in the future whenever a defendant attempts to exclude the group of customers who chose not to engage in an allegedly inflated market. Apple’s attorneys are aware of this. Amazon’s, Google’s, and Meta’s also do.
The wider timing is difficult to ignore. Since Brexit removed it from the EU’s enforcement framework, the UK has been discreetly attempting to establish itself as a genuine venue for collective competition actions. The Competition Appeal Tribunal is now more proactive, self-assured, and open to allowing new theories to withstand early obstacles. American tech firms, who have traditionally relied on Washington and Brussels to handle competitive risk, now have a new front to consider. London is no longer a courteous afterthought.
In isolation, the practical stakes appear low for average UK iCloud users—roughly £43 to £58 if the case ultimately settles or prevails. That may cover a month’s worth of gym memberships and a few lunches at a restaurant. However, when the value is multiplied by the entire class, it approaches £3 billion, which is the kind of amount that draws attention in any boardroom. Like most of these, there’s a feeling that the lawsuit will eventually settle. Although Apple has the means to fight it for years, the cost-benefit analysis of the legal process usually leads to a negotiated settlement well in advance of trial.
