The session in room 2 was opened with welcoming words from Noah Wortmann, Founder and CEO at NRW Consulting (US), who highlighted the topics that would be covered throughout the day, including timing training and ESG initiatives in class action litigation, and how different jurisdictions deal with absent class members.
The first panel on securities class actions was also led by Noah Wortmann. He emphasized the importance of having a sophisticated lead plaintiff in US class actions. He explained that the average settlement amount significantly increases when a sophisticated lead plaintiff is involved. Bernd Jochem, Partner at Rotter Rechtsanwälte (Germany), brought a wealth of experience to the panel discussion. During the panel discussion, he shared his experiences of being involved in several model proceedings. These proceedings, which are a unique feature of the German legal system, allow for the resolution of multiple similar cases in a single proceeding. He discussed a significant case that started around 2005 and involved a large number of individual filings. This massive influx of cases led the legislature to introduce a new type of proceedings in November 2005 to manage the situation. He explained that this case marked the beginning of mass class action litigation in Germany. Since then, there have been reforms and developments that have made it a bit easier for claimants. Now, claimants can simply register their case, and they do not have to file a full lawsuit. He also mentioned that there’s currently a revision underway to further improve the process. Andrew Hill, Partner at Fox Williams (UK), shared his experiences of working in both opt-in and opt-out class action regimes. He discussed the challenges faced in England, which lacks a proper regime outside the competition space. He mentioned that they have been charting new territory since the RBS and Tesco cases about a decade ago. He emphasized the importance of using the CPR 19.8 rule, which allows for one claimant to represent the interests of other claimants on an opt-out basis if they have the same interest. Steffen Hennig, Founding Partner at Fideres (Germany), discussed the differences in calculating damages across various jurisdictions. He highlighted the two main paths to take: one is no transaction, which means reversing the whole thing economically, and the other one is buying at a different price, which means compensating for the difference. Stefan discussed the complexities of determining damages, particularly in the context of investors’ trading patterns and the theory of the case. Steve Cirami, Vice President at Broadridge Financial Solutions (US), presented an overview of the rank, settlements, securities, and antitrust class actions related to the year 2023. Steve also discussed the trends they are seeing in the types of cases that are being pursued. He mentioned that cases have shifted from typical stock drop cases to more event-driven litigation, such as the BP oil spill. He also discussed the increasing interest in ESG-related cases. Furthermore, Steve provided valuable insights into the global perspective of securities class action, discussing how securities class action litigation originating from the US have spread across the world.
Esther E. Berezofsky, Executive at Motley Rice (US), chaired the second panel on ESG class actions. Martina de Lind van Wijngaarden, Partner at Freshfields Bruckhaus Deringer (Germany), discussed the increasing growth of ESG and climate change-related litigation in Europe and highlighted major trends. One of the trends is the increase of strategic litigation against companies, including financial institutions. Most of these cases seek declarations that the entity is obliged to mitigate its greenhouse gas emissions in a way which is consistent with the Paris Agreement. A further trend are greenwashing claims. Martina discussed the risk of greenwashing claims gaining steam, with the latest targets being cruise operators and airlines. She mentioned that the risk of greenwashing claims will increase with EU legislation, such as the proposal for the Green Claims Directive and the Corporate Sustainability Due Diligence Directive. Martina also touched on the increasing trend of directors and major shareholders being targeted in litigation. She emphasized that the aim is not just to win cases, but also to create awareness. From the defendants' perspective, Martina pointed out that while companies have to prepare for new litigation, it is unfortunate that courts are setting the agenda here and not the legislature. Paul Napoli, Partner at Napoli Shkolnik (US), discussed the role of litigation in driving corporate conduct and legislation. He shared his experience in environmental litigation, particularly in cases involving PFOS. He highlighted the significant settlements achieved with major corporations like 3M and DuPont, emphasizing how these cases have led to changes in corporate conduct and the removal of harmful products from the market. Nicole Rosenboom, Partner at Oxera Consulting (Netherlands), discussed the importance of quantifying environmental damages in ESG and environmental litigation. She highlighted that while there are multiple ways to quantify these damages, established methods provide a good starting point. She also noted the wide range of laws under which cases are being brought, and how the quantification toolkit from antitrust litigation can be translated into quantifying environmental damages. This approach allows for a more comprehensive understanding of the impact of environmental damages.
The third panel on absent class members, notice and case management, distribution of damages and legal tech solutions was chaired by Scott Hardy from Top Class Actions (US). The panelists discussed how different jurisdictions deal with these topics. Kristen Stalling from Rust Consulting (US), emphasized that in terms of tracing and finding absent class members, there are two main aspects to note: the use of press releases, which is more common in the UK than the US, and the use of the media, which is more common in the US. Chris Ford from Blackhawk Network Europe (UK) presented the importance of the quality of the data on the class members in order to distribute the damages to them. He also noted the long periods of time, the effort, the number of people and the marketing it takes for effective communication. The notice also needs to be accessible and easy to understand for it to be shared among class members. Claire van der Zant from Shieldpay (UK) described the situation with regard to sensitive data and privacy, which can differ among different countries. There are also cultural and linguistic differences across jurisdictions when it comes to communication. In the US for instance, data such as household income can be used for communication purposes. This criterion, however, cannot be effectively used in Europe. Generally, working with the correct data is crucial when it comes the aim of distributing 100% of damages to the affected class members.
The fourth panel on rules of disclosure and discovery was chaired by Harris Pogust, Founding Partner at Pogust Goodhead (US). Discovery involves requests sent to the other side for relevant material and disclosure relates to showing all the evidence in the case, no matter whether it is favorable to the parties or not. Harris further discussed the differences across several jurisdictions. Judge Wendy Beetlestone from the United States Eastern District of Pennsylvania, outlined what needs to be disclosed at the outset of litigation in accordance with the rules of federal procedure in the US. This includes insurance agreements, categories of damages, and underlying documents to support claims and defenses. In smaller cases, they are easier to provide, unlike in class actions or complex commercial cases. Mary Walker OAM, Barrister and ADR practitioner (Australia), spoke about the similarities of the Australian system with the one in the US. Disclosure involves case management conferences, expert evidence, funding agreements and insurance agreements. These are continuing obligations; any changes relevant to the case need to be disclosed. Areas of sensitive information, including merits assessment and areas relating to professional privileges, can be
redacted. Hodge Malek KC, Deputy High Court Judge in England and Wales and Chairman of the UK Competition Appeal Tribunal (CAT), explained the situation in the CAT, where details of funding are now exchanged upfront. Disclosure on funding was not an issue until recently. Guidance can be found in the civil procedural rules, but the CAT is much more flexible on these matters. Judges only intervene on disclosure if the lawyers fail to find a solution themselves.
The fifth panel chaired by Louise Trayhurn, Executice Director at Legis Finance (UK), discussed funder rights of remuneration and funders contribution to access to justice. Philipp Leibfried from Burford (UK) spoke about the situation in the Netherlands and in Europe and warned against fixed contingency fee caps for litigation funders. Costs, including adverse cost rules, differ across European jurisdictions and can have a significant impact on third-party funding’s pricing. In view of the Paccar judgement in the UK, it is not advisable to constrain in any way the pricing methods, which are made in accordance with the risk taken. Dai Wai Chin Feman from Parabellum Capital (US) spoke about the need of class action funding. The plaintiffs or class action bar is typically self-funded with the use of contingency fees. Funders get involved through the use of portfolios, funding different law firms and their cases and receive remuneration in case of success. He also spoke about the common fund tradition in US class actions and about specific rules in the Canadian system. John Walker, Executive Chairman at CASL and the Associations of Litigation Funders of Australia, emphasized the need for the introduction of contingency fees, which are not allowed currently. Litigation funding started in the 1990s, and regulatory approaches, including caps which limit class actions, have varied with different governments in Australia. Meanwhile, the concept of management investment schemes with regard to litigation funding was developed. Pricing has come down to around 25% of the damages across the years and also control or instruction by funders is allowed to some extent. John also mentioned instances where litigation funding has provided funding to socially impactful cases, including those relating to indigenous people in Australia, where access to justice would not have been obtained otherwise.
Paul Karlsgodt, Partner at Baker Hostetler (US), chaired the sixth panel on contractual restrictions to collective proceedings. Justice Bernard Murphy, Justice at the Federal Court of Australia, provided insights into Australia’s national unfair contract regime under the consumer law. In Australia, a recent case decided by country’s highest court ruled on the terms of a contract waiver in the context of a class action against a cruise line and its subsidiary. The court found that the class action waiver rules created a significant imbalance because they imposed restrictions on passengers but in no way restricted the carrier’s options. The court ruled that the clause was unfair because it effectively prevented or discouraged passengers from pursueing their legal rights, where the cost of doing so individually was uneconomic. Els Bruggeman, Head of Policy and Enforcement at Euroconsumers (Belgium) provided valuable insights into the European consumer protection laws. She highlighted the Contract Terms Directive, a legislation created in the 90s to ensure uniformity and minimum standards in terms of consumer protection across all EU Member States. This directive states that contract clauses that have not been individually negotiated and cause a significant imbalance between the rights and obligations of the parties to the detriment of the consumer can be considered unfair and non-binding. Els also noted that while Europe has strong consumer protection laws, the enforcement of these laws can be challenging due to the different jurisdictions within the EU. Even though legal proceedings can be time-consuming and costly, they are crucial for holding large corporations accountable and protecting the rights of consumers. Professor Geraint Howels, Executive Dean at Nui Galway (Ireland) emphasized the importance of understanding contract law in these discussions. He highlighted the complexity of consumer credit regulations and transactions, and how they intersect with issues of class actions and arbitration agreements. He discussed a recent case in which individuals have challenged the ability of US arbitration to proceed or to be enforced. A UK court ruled that these cases should be assessed under UK law, emphasizing the importance of vindicating rights in the UK courts.
The concluding session of the Global Class Actions & Mass Torts Conference by Perfect Law LTD on Day 2 provided a comprehensive overview of the diverse and evolving landscape of class actions and mass torts across multiple jurisdictions. The discussions highlighted the critical role of data privacy, environmental concerns, and securities litigation in shaping the future of collective legal actions. Key insights were shared on the nuances of different legal systems, the challenges of proving harm and managing damages, and the importance of robust governance and transparency. The panels underscored the significance of balancing public and private enforcement, enhancing cross-border cooperation, and leveraging technology and innovative funding models to improve access to justice. As the conference concluded, it was clear that ongoing dialogue and shared experiences among international legal experts are essential for addressing the complexities of global class actions and ensuring effective legal frameworks that protect the rights of individuals and communities worldwide.
Eduardo Silva de Freitas,[1] , Adrian Cordina[2], Linus Bättig[3]
[1] PhD Candidate, Erasmus University Rotterdam, The Netherlands, as part of the NWO-funded Vici project
‘Affordable Access to Justice: Towards Sustainable Cost and Funding Mechanisms for Civil Litigation in
Europe’ (No. VI.C.191.082).
[2] PhD Candidate, Erasmus University Rotterdam, The Netherlands, as part of the NWO-funded Vici project
‘Affordable Access to Justice: Towards Sustainable Cost and Funding Mechanisms for Civil Litigation in
Europe’ (No. VI.C.191.082).
[3] Faculty of Law, University of Lucerne, Switzerland.
