In its recent judgment in Gutmann v Apple [2026] CAT 20, the Competition Appeal Tribunal partially struck out a collective action brought against Apple.
On 23 January 2017, Apple introduced a software update called the Performance Management Feature to address ‘unexpected power offs’ or UPOs in certain models of iPhones (a UPO is a protective mechanism which occurs when the power demanded by a device exceeds the power that can be supplied by the device’s battery). The Class Representative alleges that Apple infringed the Chapter II prohibition by failing to act transparently in relation to the introduction of the PMF and that users were therefore unable to make an informed choice as to whether or not to install the PMF.
In December 2025, Apple issued an application seeking to strike out the claim in its entirety, alternatively for the period after December 2017 or March 2018. The first ground of the strike out application was that lack of transparency per se is not capable as a matter of law of amounting to an abuse of dominant position. The Tribunal rejected that contention, concluding at [45] that ‘it is arguable that a lack of transparency can be a factor, and a dominant factor, in abuse of a dominant position and there is no established rule of law to the contrary’.
However, the Tribunal accepted Apple’s contentions that (1) there is no arguable case of abuse after March 2018, when Apple introduced iOS 11.3 which turned the PMF off by default and, where it was activated when a UPO occurred, gave users the option of turning it off; and (2) there is no arguable case of abuse insofar as phones were sold with the PMF already installed or where the PMF was installed on first activation prior to use: [57].
The Tribunal therefore concluded that the claim should be struck out (1) in relation to the period after March 2018; and (2) insofar as it extends beyond phones in which the PMF was introduced during use: [66]-[67]. The Tribunal was also critical of the CR’s pleading and indicated that the CR would be required to replead his case before the case can proceed: [69].
The Tribunal confirmed that the effect of the Supreme Court’s recent judgment in Evans v Barclays Bank plc [2025] UKSC 48 is that any ‘evaluative judgments’ (e.g. opinions or conclusions) of regulators are inadmissible: see [50]-[51].
Niranjan Venkatesan KC acted for Apple (with Drishti Suri of Blackstone Chambers). He was instructed by Covington & Burling LLP.
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