I wanted to update everyone on the status of the Crypto Class Action against Meta and Google for anti-competitive (anti-trust) and cartel conduct in banning the advertising of the cryptocurrency industry starting in early 2018.
Yes, it has been almost 6 years since the crypto market crashed almost 50% because of the bans and more than 3 years since I first filed proceedings in the Federal Court of Australia.
Being first is not easy
My case was the first private anti-trust lawsuit filed against Facebook (Meta) and Google anywhere in the world (as far as I am aware). It was certainly the first such class action.
Since then a large number of private and public anti-trust lawsuits, including other class actions in Australia and elsewhere have been filed. This table shows just the ones launched in the second half of 2020.
An Epic Legal Earthquake in San Francisco
Some of the most notable ones have been Epic Games (developers of Fortnite) lawsuits against Apple and Google in both Australia and the USA.
This case is about the App Stores exclusivity provisions and the very high commissions Apple and Google take from developers when users download apps.
After losing at first instance against Apple in the US (an appeal is pending), yesterday an Epic legal earthquake occurred in San Francisco when a jury found Google guilty of illegal anti-competitive conduct on every count.
This case is very significant for all other anti-trust cases against Big Tech including my Crypto Class Action.
Matt Stoller expressed it well:
That said, Google is likely to be in trouble now, because it is facing multiple antitrust cases, and these kinds of decisions have a bandwagon effect. The precedent is set, in every case going forward the firm will now be seen as presumed guilty, since a jury found Google has violated antitrust laws. Judges are cautious, and are generally afraid of being the first to make a precedent-setting decision. Now they won’t have to. In fact, judges and juries will now have to find a reason to rule for Google.
The dam has burst and something that many people thought impossible (a Court finding against Big Tech on anti-trust grounds) has now happened.
Epic in Australia too
Epic sued Apple and Google in Australia as well as the US (thanks to @brianoflondon) and that case is scheduled for trial in early 2024. It has already spawned two follow on class actions that are being jointly case managed with Epic's cases by the Federal Court of Australia.
Already the Australian Epic case has proved useful precedent for the Crypto Class Action by establishing that competition law cases have an over-riding public interest that neuters exclusive jurisdiction and choice of law clauses in contracts.
So the amazing result in Epic's US case against Google is the first bit of good news.
Costs awarded against me
As you would know from my earlier posts, the Crypto Class Action was permanently stayed by Justice Cheeseman on 29 September 2023 because of her concerns with conflicts of interest arising from the funding and representation arrangements.
I have sought leave to appeal that decision and am also investigating other methods of rectifying the issues that caused the stay.
The issue of costs was left open for further argument with written submissions made by myself and the respondents.
On 29 November 2023, Justice Cheeseman refused to vary from the standard position that the loser pays the winners costs. The judgement on costs can be viewed here.
As I have appealed, these costs are not payable immediately and will not be payable if I win the appeal. But it is disappointing given I started proceedings 38 months ago on the basis of seeking a No Adverse Cost Order that has never been heard.
So that's the bad news out of the way.
A very helpful High Court Judgement
Only a month after Justice Cheeseman rejected my arguments against a stay, the High Court of Australia handed down a landmark Judgement that vindicated my position on a number of key points and assists me greatly on appeal.
In the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 the High Court rejected a permanent stay in a civil case and finally decided a number of important points of law.
In an appeal against a permanent stay, the appellate Court examines whether the decision to stay as a whole was correct or not, rather than having to find errors of principle. This means everything gets re-examined rather than a far more limited and technical approach.
In order to permanently stay a case, a mere risk of abuse of process is not enough, it must be shown that there will be an actual abuse of process. This is very important as Justice Cheeseman adopted the test that a "real potential for an abuse of process is sufficient" to stay a case. This is clearly now not good law (as I had argued based on other High Court precedents that were not as categorical as GLJ).
"For a trial to be fair it need not be perfect or ideal." This is directly relevant to Justice Cheeseman's findings that unless a top tier law firm and barristers were appointed then I would be breach of my obligations as lead applicant to the the Group Members.
"The Judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case." This is directly relevant to Justice Cheeseman refusing to accede to my invitation for the Court to modify those aspects of the Litigation Funding Agreement which she found problematic and to use the Court's powers to manage any conflicts of interest rather than staying the case.
The High Court also warns against allowing the concept of exceptional circumstances (necessary to grant a permanent stay) to become formulaic - which is exactly what Justice Cheeseman did by allowing potential conflicts of interest, which are commonplace, to justify a permanent stay.
So that's the second piece of good news.
Amended Appeal documents.
As a result of the costs judgement and the new High Court Judgement I have amended my Application for Leave to Appeal and Draft Notice of Appeal.
Amended Application for Leave to Appeal
Draft Notice of Appeal
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This might still drag on for a while, doesn't it. Do you expect them to attempt some sort of deal due to this latest developments and what would that mean for the Class Action Case?
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