Sony is facing a huge, £5 billion competition claim in the CAT (Competition Appeals Tribunal) over allegations that it abused its dominance of the online gaming market by charging a hefty 31% commission on purchases from the PlayStation store. The contention is that by charging high fees to game developers, PlayStation passed these costs on to players, who lacked an alternative digital market place to buy games.
Fellow tech company Apple has already suffered a £1.5 billion defeat at the CAT over the App Store, and this case could set a similar precedent for gaming; a potentially vast market for class actions given 57% of Britons aged over 16 play some kind of video game.
The trial lasted from 10th March to 8th May, and it may be some time before a decision is handed down. For claimants, looking to keep funders onside and pressure the defendant to reach a negotiated settlement, these protracted timelines can be a real communications challenge. This case was filed in August 2022 and only came to trial this year. These kinds of delays are common in large consumer class actions, the Student Group Claim against universities was launched in October 2022, but only received its first settlement (UCL) in February this year.
So, how do claimants keep the class, funders, and the press engaged and maintain the pressure on the defendant?
1. Make the most of the milestones
It’s easy to look at the time from filing to trial as a period of quiet preparation, with little to say to the press and few levers to pull to pressure the other side to settle. This early stage is actually an excellent chance to take the initiative and win over journalists, funders, the public, and any other stakeholders before the defendant can.
In the Sony CAT claim, there were 4 CMCs (Case Management Conferences) from the case registration to the trial’s start. Each of these presents the claimant with a chance to shape the narrative. If a CMC is intended to deal with disclosure for example, one might frame it to journalists as an event that could force Sony’s internal correspondence and commercial strategy into the public eye.
The Collective Proceedings Order (CPO) can also be positively framed to the press. The CPO, the claimants’ team should emphasise, is itself a victory, as it allows an entire class of claimants, whether opt-in or opt-out, to take their claim forward.
Between these legal developments, claimants can continue to make their case and keep the dispute in the public eye. A large corporate being sued can’t just pause their normal activities and focus fully on the legal case. AGMs, investor updates, and corporate news like c-suite hires and product launches still need to take place; they shouldn’t take place uninterrupted. The claimants should use these chances to put the case back in the public eye, and signal to the media and defendant’s stakeholders that all their apparently BAU activities are overshadowed by a serious and unshakeable legal claim.
2. Use pauses to plan and brief
For all the chances to keep the trial in the public eye, there will inevitably be times when there is no news. This gives the claimants a chance to slow down and plan for the next stage.
Even if journalists won’t be writing about the claim, claimants must continue engaging with them. With the pace slowed down, now is the chance to brief journalists in more depth, setting up chats with the lawyers leading the claim, or event some of the claimants themselves.
By clearly communicating the key arguments and the human stories behind them to journalists, claimant law firms, funders, and PR teams can build credibility and goodwill when there is less time pressure, familiarising the media with the complexities of a claim so that – when the next legal milestone is reached – journalists understand the case and can focus their reporting and questions on key new details.
3. The story doesn’t end when the trial does
After the trial ends, it will be some time before a decision is handed down. In the trucks cartel case, the CAT hearing took place in late April 2021, but the judgment did not appear until 8th June 2022.
There is relatively little media activity which a claimant can do here, as any public pronouncement will be a hostage to fortune. As with other lulls in activity, this is the time to plan. Whatever the CAT’s judgment, on the day it is handed down you will have to deal with detailed scrutiny from journalists, and, if the judgment goes against you, difficult questions about the precedent set and the next steps the claimants are considering. A detailed scenario plan, with a coherent set of key messages and highly detailed Q&A prepared in close collaboration with your legal team is a non-negotiable as you await the judgment.
Conclusion
When the CAT judgment on Sony is handed down, the claimants will have to work extremely hard to keep the case in the public eye. Activity must happen at every stage of the process, and the claimants cannot afford to pause their media relations activity at any time of a dispute. Even when there appears to be no news, continuing to brief journalists, finding novel ways to keep the dispute in the headlines, and put pressure on the defendants is vital for influencing perceptions of the claim and increasing the likelihood that the matter is settled.
