Today the Hausfeld law firm--the global leader in the recovery of antitrust damages--announced that "[c]ollective competition claims [i.e., antitrust class actions] against Apple and Google have been filed with the Portuguese Competition Court with a view to recovering compensation of up to €198 million total on behalf of 6.5 million Portuguese consumers and businesses who made purchases of apps or digital content, services and subscriptions within apps on both Apple’s iOS and Google Android devices."
This makes the westernmost European country the fifth jurisdiction in which the world in which consumer class actions have been brought against Apple and Google over their infamous 30% app tax. The following earlier-filed cases are pending in four other jurisdictions:
United States:
Pepper v. Apple: The Pepper case (official caption: In Re Apple iPhone Antitrust Litigation) in the Northern District of California was filed in 2011. Judge Yvonne Gonzalez Rogers dismissed it, but was overruled by the Ninth Circuit and, ultimately, the Supreme Court. (There already was a class action of that kind in the late 2000s, but it went nowhere.)
Carr v. Google (PDF) and Bentley v. Google (FOSS Patents post) are class actions in the same district that were brought in 2020, shortly after Epic Games v. Google. In mid-2021, 36 U.S. states filed a lawsuit against Google over its Google Play terms, and all those Google cases are proceeding in sync.
United Kingdom:
Dr. Rachael Kent v. Apple Inc. and Apple Distribution International Ltd is a British case that passed the Competition Appeal Tribunal's legal and factual plausibility test about a month ago. The plaintiff class (from which UK consumers can opt out, while foreign consumers who were harmed in the UK can opt in) compromises approximately 19.6 million Apple device users and alleges "aggregate losses of between £621 million [US$747 million] and £1.7 billion [US$2.5 billion]."
Elizabeth Helen Coll v. Alphabet Inc. and Others is the parallel consumer class action against Google. At a hearing last week, the Competition Appeal Tribunal certified an opt-out class of 19.5 million Android device users seeking redress of up to 920 million UK pounds (now approximately US$1.1 billion).
Australia:
Specialized class-action law firm Phi Finney McDonald, with support from litigation funder Vannin Capital, brought cases last month against
Apple (law firm's webpage, litigation funder's webpage) and
Google (law firm's webpage, litigation funder's webpage).
Those lawsuits assume that out of 20.6 million smartphones in Australia, 55% are iPhones and 45% are Android devices.
The Netherlands:
Against Apple, there are two different Dutch class actions. One of them--brought by the App Stores Claims Foundation ("stichting app stores claims")--specifically represents Dutch consumers while the other--brought by the Consumer Competition Claims Foundation--seeks approximately $5 billion on behalf of EU citizens (even including those outside the Netherlands).
The App Stores Claims Foundation is also suing Google and seeking a total of approximately 1 billion euros (in the total of the Apple and Google cases, but limited to Dutch consumer claims). What makes that initiative interesting is that it's chaired by Dutch Internet entrepreneur Alexander Klöpping, represented by Hausfeld, and funded by Fortress Investment, an investment firm with which Apple settled various patent cases last year.
The App Stores Claims Foundation informs on its website that no agreement with Apple was reached, so the proceedings have entered the next stage. With Google they're apparently still talking, but I doubt that a deal will materialize. So both cases will have to proceed to trial.
And now there's the new pair of Portuguese class actions. The initial plaintiff and proposed class representative for 2.9 million App Store users and 3.6 million Google Play Store users is Fabrizio Esposito, Assistant Professor in Private Law at Lisbon-based NOVA School of Law. The J+Legal firm represents Apple customers while Cardigos represents Android users. The Portuguese firms are being supported by Hausfeld and Spanish law firm Eskariam, who have significant experience with class actions under EU competition law.
We'll see what country will become the sixth in which consumers bring class actions against Apple and Google over their app tax regime.
All those consumer class actions are a serious threat to Apple, which doesn't really care about whether developers feel treated fairly as Tim Cook's deposition at last year's Epic Games v. Apple trial showed, but which does want to be loved--if not worshipped--by consumers. Now imagine a scenario in which at least some of those class actions succeed and many millions--potentially hundreds of millions--of Apple customers worldwide receive letters informing them of the fact that Apple has been found by the courts to have illegally overcharged them, and has been ordered to refund the excessive parts of those App Store charges. It would be devastating--the modern-era equivalent of a medieval pillory.
Google won't like it either, but most Android devices are not made by Google itself, and consumers would still use Android as well as Google's search engine. But Apple's brand would suffer greater damage.
The problem for Apple and Google is that it wouldn't even look a lot better if they settled. Consumers would still receive those letters notifying them that Apple and Google were sued for having overcharged end users, and in that hypothetical scenario would have agreed to make payments.
