Automated Summary
Key Facts
The applicant, Clare Spottiswoode CBE, seeks to serve a collective proceedings claim on Motorola Solutions, Inc (MSI) in the USA, alleging abuse of dominant position by imposing excessive prices on Airwave Services from 2020 to 2023. The claim is based on the Competition and Markets Authority's (CMA) findings of £1.27 billion in supernormal profits during the claim period (1 January 2020–31 July 2023) and the applicant's expert report estimating £517 million in overcharges. The case involves Motorola's alleged monopolistic control of the UK public safety radio network market and refusal to reduce prices after the original 19-year PFI agreement expired.
Issues
- The Tribunal assessed whether there are serious issues to be tried on the merits of the claim that Motorola Solutions Inc (MSI) and its UK subsidiaries abused their dominant position by imposing excessive prices on Airwave Services, leading to supernormal profits. This is based on evidence from the CMA's Final Report and expert analysis, which highlight the monopolistic nature of the Airwave Network and the lack of competitive pricing post-2019.
- The Tribunal considered CPR Practice Direction 6B gateway 3.1(9)(c), which requires the claim to be governed by the law of England and Wales. The Applicant demonstrated that the claim is under UK competition law, supported by Rome II and Retained Rome II regulations, which tie the applicable law to the jurisdiction where the market is affected.
- The Tribunal assessed CPR Practice Direction 6B gateway 3.1(3), which permits service on a foreign defendant if they are a necessary or proper party to a claim involving an anchor defendant within the jurisdiction. The Applicant argued that MSI, as the ultimate parent company of UK-based ASL and MSUK, is part of the same economic entity and thus a proper party to join, based on cases like Sainsbury's Supermarkets Ltd v. Mastercard Inc.
- The Tribunal evaluated the applicability of CPR Practice Direction 6B gateway 3.1(9)(a), which requires that damage was sustained within the jurisdiction. The Applicant argued that UK-based purchasers of Airwave Services suffered overcharges, supported by the CMA's findings and case law like Apple Retail UK Ltd v. Qualcomm.
- The Tribunal evaluated whether England and Wales is the appropriate forum for the trial of the claim against a US-based defendant. Factors included the location of anchor defendants, the UK-based nature of the claim, the application of English law, and the need to avoid parallel proceedings. It concluded that the UK is the proper forum due to these considerations.
Holdings
- Permission was granted to serve the claim form on Motorola Solutions, Inc. (MSI) in the USA via its registered office, registered agents in Illinois and Delaware, and the respective Secretaries of State.
- The Tribunal noted that the Applicant’s request for an extension of time for service may not be necessary, as parties have six months to serve a claim form out of jurisdiction under the Rules.
- The Tribunal determined that there are serious issues to be tried on the merits of the claim, including allegations of abuse of dominance by Motorola in relation to Airwave Services pricing.
- The Tribunal concluded that the claim falls within the three jurisdictional gateways (3.1(3), 3.1(9)(a), and 3.1(9)(c)) under CPR Practice Direction 6B, as the damage was sustained in the UK, the claim is governed by UK law, and MSI is a necessary or proper party to the claim against UK-based anchor defendants.
- The Tribunal found that England and Wales is the proper forum for the trial, citing factors such as the location of anchor defendants, class members, and the applicable law (English competition law).
Remedies
- The Tribunal permits service of the Collective Proceedings Claim Form (CPCF) on Motorola Solutions, Inc. (MSI) in the United States through its registered office in Chicago, Illinois, and its registered agents in Illinois and Delaware, as well as the Secretaries of State in those states.
- The Tribunal grants permission for alternative service on MSI under Article 10(b) or (c) of the Hague Service Convention, allowing the CPCF to be served via a process server in the USA in the states of Illinois and Delaware, using the relevant registered agent and Secretary of State methods.
Legal Principles
- The Applicant bears the burden of proof under Rule 31(2)-(3) of the Competition Appeal Tribunal Rules 2015 to demonstrate a reasonable prospect of success and that England and Wales is the proper forum for the claim.
- The Tribunal determined England and Wales is the proper forum (per VTB Capital Plc v Nutritek International Corp [2012] EWCA Civ 808) due to anchor defendants' presence, UK-based claimants, and English law applicability.
- The Tribunal applied the 'serious issue to be tried' standard (per AK Investment CJSC v Kyrgyz Mobile Tel Ltd [2011] UKPC 7) to assess the merits of the claim against Motorola Solutions, Inc.
Precedent Name
- Sainsbury's Supermarkets Ltd v. Mastercard Inc
- VTB Capital Plc v Nutritek International Corp
- Goldman Sachs International v Novo Banco SA
- Massey v Heynes & Co
- DSG Retail Ltd v. Mastercard Inc
- Carvill America Inc v Camperdown UK Ltd
- Apple Retail UK Ltd v. Qualcomm (UK) Ltd
- Westover v Mastercard
- Iiyama (UK) Ltd v. Samsung Electronics Co. Ltd
- JJH Enterprises Ltd v. Microsoft Corp
- Epic Games v. Apple
- The Spiliada
- Brownlie v Four Seasons Holdings Inc
- AK Investment CJSC v Kyrgyz Mobile Tel Ltd
- CMA v. Volkswagen AG
- Altimo Holdings v Kyrgyz Mobil Tel Ltd
Cited Statute
- Competition Act 1998
- Civil Procedure Rules
- Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II)
- Competition Appeal Tribunal Rules 2015
- Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)
- Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) (Retained EU Legislation)
Judge Name
Hodge Malek KC
Passage Text
- 20. As regards the gateway in para. 3.1(9)(a) (damage sustained within the jurisdiction), the Tribunal is a UK jurisdiction. 'Damage' in this gateway refers to 'actionable harm, direct or indirect, caused by the wrongful act alleged'... In the present case there is a good arguable case that damages have been sustained within the jurisdiction (in this case, the UK) as the Proposed Class Members are based in the UK, have made allegedly inflated payments for using Airwave Services in the UK.
- 33. The UK and specifically the Tribunal sitting in England and Wales is clearly the proper forum for the determination of the claims set out in the CPCF in view of the following: (1) Two anchor defendants are based in the UK. The Proposed Class Representative is resident in the UK. (2) It would be undesirable for the same claims to be litigated across multiple jurisdictions with the two of the Proposed Defendants in England and Wales, and MSI in the USA. (3) The Proposed Class members are based in the UK and are to claim in respect of loss and damages suffered in the UK. (4) The claim sought to be proceeded with relates to an alleged abuse of a dominant position within the UK. (5) The applicable law is English law.
- 34. In all the circumstances it is appropriate for the Tribunal to exercise its jurisdiction to permit the service out of the CPCF (and supporting documents) on MSI in the USA. As to where in the USA service may be on the following addresses: (1) MSI's registered office at 500 W Monroe Street, Ste 4400, Chicago, IL 60661-3781, USA. (2) MSI's registered agent's address for service in the State of Illinois... (3) MSI's registered agent's address for service in the State of Delaware... (4) the respective Secretaries of State in the States of Delaware and Illinois, USA.