The Global Class Actions & Mass Torts Conference by Perfect Law LTD took place on 23-24 May 2024 at the Hilton London Bankside. The event brought together over 200 eminent practitioners, academics, funders, experts, and service providers in the class actions and mass torts space from the US, Canada, the UK, Australia, and across Europe.

The conference was kicked off with welcoming words by Prof. Christine Riefa of the University of Reading (UK), Dr. Ariel Flavian, Partner at Herzog Law (Israel), and Steven Weisbrot, President and CEO at Angeion (US). The Perfect Law conference aims to advance the field of collective redress and promises to be filled with important updates, discussions, and takeaways of the class action world.

The first panel was chaired by Prof. Samuel Isaacharoff, Reiss Professor of Constitutinal Law at NYU (US), who highlighted the benchmark set by previous Perfect Law conferences and observed the evolution of class actions in Europe and the UK as well as the narrowing differences with the US. Prof. Ianika Tzankova from Tilburg University and Founding Partner at Birkway (the Netherlands) outlined the situation in the Netherlands, which has a long tradition of collective redress covering all areas of law. The former Dutch Law provided for declaratory and injunctive reliefs and enabled 12 approved settlements. Since the 2020 WAMCA regime, a thorough admissibility stage (certification) has been implemented. In Europe, typically only non-profit entities can bring actions and certain criteria regarding funding, whereas independence and supervisory boards play an important role. Prof. Astrid Stadler from the University of Kostanz (Germany) then provided an overview on Germany. Despite being the origin of the Dieselgate, Germany is not a role model when it comes to collective redress. There is still resistance and reluctance when it comes to class actions and third-party funding. It is noteworthy that the Representative Actions Directive implementation in Germany provides a limiting 10% cap on third-party funding success fees, which is far below market standards. However, the assignment of claims model gets regularly successfully used, providing at least to some extend collective redress in Germany. Kenny Henderson, Partner at CMS (UK), presented the CMS 2023 report on class actions which showed that the global number of class actions is increasing. Establishing the quantum is challenging; the amounts asserted by the claimant law firms or claimants serve as a proxy for the quantum methodology used. For instance, the claimed value of opt-in class actions is a big share of the total claimed value of the pending class actions in the UK, but this is mainly due to the Mariana dam claim, which concerns 35 billion pounds. Also the amount of class members has grown significantly. In fact, Merricks vs Mastercard has set out a low threshold for certification of opt-out competition class actions. Now, there is a growth of both ‘standalone’ (not relying on a previous breach) and ‘follow-on’ class actions. The Italian Supreme Court Judge Remo Caponi then outlined some important developments in Italy, including the recent Euroconsumer and Altroconsumo Dieselgate settlement, which provided over 50 million euro relief to more than 60,000 Italian consumers. This landmark settlement is now also used as a leverage to obtain compensation in other European jurisdictions. Prof. Duncan Fairgrieve from Université Paris Dauphine (France) examined the complexities and defects surrounding the collective redress system in France. Entities which can bring actions are not well equipped and particularly their funding has been a challenge. In Europe, private international rules are not well adapted to collective redress actions and this issue is also not addressed in the EU Representative Actions Directive. Moreover, the European tradition of not litigating but rather relying on statutory funds can pose its own problems in terms of access to justice.

Chaired by Michael Dell’angelo, the second panel discussed the conditions to certify a class action in different jurisdictions. Sir Marcus Smith, Judge of the High Court of Justice of England and Wales and President of the UK Competition Appeal Tribunal (CAT), highlighted the role of judges in the certification process. When scrutinizing a class action, a court shall ensure that the interests of the members and representatives of a class align with each other. Moreover, only representatives which are truly committed to the class shall act as representatives. A judge shall concentrate on the essentials and complexity shall not grow for its own sake. Judge Lee H. Rosenthal, a United States District Court Judge, provided an overview of the US certification process. She further emphasized the importance of being clear and reliant when seeking certification of a class action in order to make the judge understand the claim and the needs of the class members. This is particularly relevant as the courts regularly scrutinize the requirements for certification in a rigorous way. Judges are also increasingly required to look at the merits in order to ensure that there is class wide proof for the certification’s requirements. She also expressed optimism by stating that judges generally welcome class actions as they are usually well presented and interesting to deal with. Machteld de Monchy, Partner at De Brauw Blackstone Westbroek (The Netherlands) brought the Dutch perspective to the table. The Netherlands only know an opt-out system for class actions since the WAMCA was launched in 2020 and is therefore still within the process of finding balance between the different stakeholder’s interests. In the still young Dutch practice, it could already been noticed that judges also keep an eye on the claim’s funding to ensure that the class member’s representatives have sufficient control over the claim and the class member’s interests are pursued.

The third panel on settlement practices and procedures featured prominent legal experts. Steve Weisbrot, CEO of Angie Group (US), chaired the panel and discussed the unique presence of professional objectors in the American context. Judge Larisa Alwin, Appellate Judge at the Amsterdam Court of Appeal (the Netherlands) opened the discussion by reflecting on the Dutch courts’s evolving approach to settlement approval. She emphasized the importance of judges making independent assessments, often identifying issues that the parties involved may overlook. She noted that objectors can significantly contribute to ensuring settlements are fair and comprehensive by bringing forward arguments that the parties may not see or wish to avoid. She, along with Judge Bernard Murphy from the Federal Court of Australia, noted that while both types of settlements – claims-made and common fund – are present in their jurisdictions, fixed settlements are often preferred because they provide clarity on what class members will receive. The two judges also emphasized the critical scrutiny of the costs associated with settlements, ensuring that settlements are proportionate and reasonable. Bernard provided examples of settlements being refused due to significant flaws, underscoring the judiciary’s role in maintaining the integrity of class action settlements. He mentioned instances where settlements were rejected because they disproportionately favored the attorneys’ fees over the interests of the group members, or where the terms were deemed unfair to the class members. He explained that Australia follows a “loser pays” system, except in one state, and highlighted the role of litigation funding in covering adverse costs if the case is unsuccessful. Sabrina Lombardi, Partner at Class Action Litigation Group -Mckenzie Lake (Canada), outlined the rigorous scrutiny applied by Canadian courts to settlement proposals. She emphasized that Canadian judges play a crucial role in assessing whether settlements are fair, reasonable, and in the best interests of all class members, considering factors such as the risks and costs of continuing litigation. She described a mixed approach, with some jurisdictions having a no-cost rule and others following the “loser pays” system, whereas agreeing to contingency fees are a common practice. Deborah Greenspan, Executive at Blank Rome (US), echoed similar sentiments from the US perspective, emphasizing the importance of transparency and impartiality in settlement negotiations. She highlighted the use of court-appointed neutrals and guardians ad litem in complex cases, particularly those involving minors, to ensure that the settlement terms are fair and in the best interests of all parties involved. She detailed her experience as a court-appointed neutral in the US, where she reviews and reports on the reasonableness of attorneys’s fees and other litigation expenses to ensure that they are appropriate and justified.

Jeremy Lieberman, Managing Partner at Pomerantz (US), chaired the fourth panel on the role of lawyers and class representatives in the litigation and discussed the evolving class action landscape. He highlighted that the US regime is being adopted elsewhere as a paradigm, albeit an imperfect one. The class representative can be either a consumer, a retail investor, or someone whose privacy was violated – essentially anyone who is not too sophisticated and represented by a lawyer. The lawyers and funders often have more financial stakes, which can lead to tensions, especially in settlements. Judge Robert Dow, a United States District Court Judge, emphasized typicality as a characteristic for the class representative. Some cases with multiple class representatives are not appropriate. Class representatives are there to keep track of the lawyers and need to show knowledge about the case at hand. While cases are indeed driven by lawyers, and the lawyers usually put more effort into them, at the first place it is the client that make the case possible. Prof. Chistina Riefa from Reading University (UK), discussed the UK experience, where the class representative does not need to have suffered harm or be a member of the class in order to bring a case in front of the Competition Appeal Tribunal (CAT). There are no requirements for specific qualifications, but usually, there are capable representatives, ranging from policy consultants and consumer advocates to academics. Some have experience in industry sector, while others do not. The quality of the representatives is scrutinized, whereas the CAT rules require that a representative is just and reasonable for the class representative to act. So far, there have not been made any real objections about the individuals put forward. Marco Pierani, Director Public Affairs and Media Relation at Euroconsumers (Italy), brought the EU and Italian perspective to the table and discussed recent trends. Nowadays, qualified entities can bring representative actions in EU Member states, following the Representative Action Directive. Entities need to have a legitimate interest, shall not have any conflicts of interest. Actions may be brought on a national level or on a cross-border basis. The fifth panel, chaired by Dr. Janet Netz, Founding Partner at Applecon (US), explored models of damages assessment. Depending on the particulars of the case, there are often different levels at which people may be harmed, as a product regularly goes down a distribution chain. Thierry Wetzel, Associate Director at CEG (Switzerland), outlined the economic perspectives of such situations. Generally, a claimant needs to prove that the damages were passed on, meaning that there is a casual link, which becomes increasingly challenging as the supply chain lengthens and more layers must be addressed. Notably, the longer the causal link is and the further the damages are passed on, the greater the damages become. Once the damages reach a consumer level, they may have an economy-wide impact. Building on this, Derek T. Ho, Partner at Kellogg Hansen Todd Figel & Frederick (US), spoke on the distinction between injuries and damages. He noted that there are two types of damages: individual (e.g., any given consumer actually paid an overcharge) and class-wide damages (e.g., overcharges suffered by consumers as a group). From an economic perspective, injuries are damages greater than zero. But injury also impacts other issues apart from damages. In the US, injury is an element of liability and it is also a requirement for a claimant to get access to a federal court. Therefore, when discussing damages, one not only talks about the quantum of harm suffered by individuals or a class as a whole. The panel also touched upon the implications of having direct and indirect consumers in the same class. Dr. Dante Quaglione, Managing Director in BRG’s London office (Italy and UK), highlighted that the crucial question at the certification stage is whether direct and indirect consumers pass the commonality test. Commonality typically requires a common impact. One must bear in mind that having a common class may raise concerns regarding conflicts of interest, as direct and indirect consumers regularly have different business models and different customers. These circumstances make the requirement of commonality hard to prove, particularly in the US where the commonality test is strict. Finally, when it comes to the assessment of damages, also the availability and quality of data is of great importance for claimants. Tjeerd Krol, Managing Director at Kroll (the Netherlands), explained that in European jurisdictions, data collection often occurs at a relatively late stage due to the lack of disclosure requirements. This delay poses problems because the older the data is, the harder it becomes to obtain, as the data may no longer be complete or of satisfactory quality.

The sixth panel, moderated by Greg Coleman, Managing Partner at Milberg (US), delvedinto the diverse roles and challenges faced by class representatives and lawyers in a global litigation context, offering insights from both US and international perspectives. Dena Sharp, Founding Partner at Girard Sharp (US), discussed the strategic significance of effective representation in mass tort and class action lawsuits, highlighting the intricate dynamics between plaintiffs, defendants, and legal strategies. Sylvie Rodrigue, Managing Partner at Torys’ Montréal Office (Canada), offered strategic insights into the dynamics between plaintiff and defense counsels in complex litigation scenarios. She also discussed the challenges and opportunities in coordinating cross-border settlements and litigation strategies, referencing mechanisms like the Dutch Collective Settlement Act (WCAM) as models for enhancing global cooperation. She emphasized the importance of access to justice and effective regulatory coordination in navigating international class action litigation complexities. Following up on this, Jeremy Sher, Global Co-Head of Class Action and Complex Litigation at DLA Piper (UK), emphasized the interdependent relationship between public enforcement actions and subsequent private litigation across global markets. He noted that regulatory actions often catalyze private enforcement efforts and shape litigation strategies in the context of competition, environmental, and employment law. Julia Suderow, Founding Partner at Suderow Fernandez (Spain), brought a compelling European perspective to the discussion, focusing on the ongoing debate surrounding public versus private enforcement in the EU, particularly in cartel cases. She emphasized the significant reliance on public enforcement decisions due to limited information availability and the protracted legal processes in Europe compared to other jurisdictions. She highlighted the regulatory challenges and the need for enhanced coordination between public and private enforcement
efforts to streamline litigation strategies across border.

In summary, Day 1 of the Global Class Actions & Mass Torts Conference by Perfect Law LTD offered deep insights into the evolving global landscape of collective redress. Discussions on certification criteria, settlement practices, and cross-border litigation underscored key challenges and opportunities in this dynamic field. The first day of the conference highlighted the importance of judicial scrutiny, fairness in settlements, and strategic dynamics between parties, setting a valuable stage for future advancements in class action and mass tort litigation 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.