On the second day of the Global Class Actions & Mass Torts Conference by Perfect Law LTD, there were two parallel sessions in two rooms, both focusing on different subject areas. The session in room 1 was opened with welcoming words from David Greene, who highlighted the international character of class actions and the value of sharing experiences across jurisdictions.

The first panel on data privacy and class action practices was led by Johnny A. Yanchunis, Partner at Morgan & Morgan (US). Maria José Azar-Baud, an Associate Professor at Paris- Saclay University, highlighted the importance of class actions in ensuring access to justice and law enforcement. She emphasized that class actions are essential for overcoming judicial difficulties in identifying victims and dealing with evidence collectively. Thomas E. Loeser, Partner at Cotchett Pitre & McCarthy (US), discussed the evolution of privacy laws in the US and how state laws have been used to establish a private right of action. He also touched on the role of the Federal Trade Commission (FTC) Act in policing big tech in the US, emphasizing that the FTC Act’s broad scope allows to adapt to changing technologies. However, he also pointed out that the effectiveness of such enforcement often depends on the political will and desire of the administration in power. Mary Frantz, Managing Partner of Enterprise Knowledge Partners (US), stressed the importance of understanding technology when enforcing regulations. She pointed out that large global companies often use technical jargon to confuse judicial officers and regulators. She further advocated for more engagement between legislators, judicial officers, law firms, and their technology partners to improve understanding and enforcement. Ryan J. Clarkson, Founder and Managing Partner of Clarkson Law Firm (US) discussed the private enforcement of data breach and misuse cases, emphasizing the importance of state statutory law in this context. He mentioned the California Consumer Privacy Act (CCPA) and the Biometric Information Privacy Act (BIPA) in Illinois as examples. He also shared his experiences with cases that heavily rely on statutory law, explaining the need for creativity due to the lack of public policy makers and legislators addressing the harm experienced in the digital space.

The second panel on breach of privacy, misuse of connections, artificial intelligence, data transfers, and minors was chaired by Carla Peak, Vice President of Legal Notification Services. Damien Berkhout, Founding Partner at Lindenbaum (The Netherlands), mentioned a class action against TikTok for infringement of privacy rights against Dutch children. In this case, both immaterial damages and material damages were claimed. However, the court decided at the first instance that they could not bundle the immaterial claims because it didn’t necessarily contain just people who have suffered loss. He argued that this decision might be in error because one can certify a group and then categorize between individuals who have not suffered loss and individuals who have. Marco Scialdone, Head of Litigation and Academic Outreach at Euroconsumers (Italy), discussed the difficulties in proving harm following a data breach in Europe. He highlighted the need for improvements in the General Data Protection Regulation (GDPR) and the necessity of proving damages. He also discussed a recent decision by the European Court of Justice that fear can be considered as compensable harm. This includes fear for something that may occur in the future, such as the fear that data will be misused. However, he expressed skepticism about whether national courts would accept this ruling, as it could potentially conflict with constitutional principles. Lesley Weaver, Partner at Bleichmar Fonti & Auld (US), emphasized the importance of understanding how data is used and the need for transparency in these processes. She stressed the importance of understanding how data is used and the need for transparency in these processes. She discussed the unjust enrichment in cases of data breaches and the need for individuals to prove how much money was made when their data was taken. In her view, Europe has the right approach when it comes to data privacy, while the US is doing better in terms of ex-post mitigation. She noticed that there is a need to merge these approaches to effectively address data privacy issues. Robert Grosvenor, Managing Director at Alvarez and Marsal (UK), discussed the challenges of understanding and quantifying risk as organizations evolve quickly with technology changes. He emphasized the need for robust governance to catch up with these rapid changes and build in the right controls and measures. He further mentioned the need for companies to justify the legal basis for how they are using data and the challenges associated with transparency, misrepresentation, and issues of fairness.

The third panel on competition class actions was moderated by Ianika Tzankova, Professor of Class Actions and Mass Claim Dispute Resolution at Tilburg University. Peter Roth, Judge of the High Court of England and Wales and former President of the Competition Appeal Tribunal (UK), provided a succinct summary of the UK regime for connected proceedings. He explained that the system was introduced following the Consumer Rights Act in 2015 and is not limited to consumers, but also covers small businesses, large businesses. The system allows for opt-out or opt-in alternatives, with non-UK domiciled potential class members having to opt-in. The panelist also highlighted the importance of authorizing the class representative and ensuring that the claims are eligible for connected proceedings. Gerhard Klumpe, Presiding Judge at the Regional Court of Dortmund (Germany), shared insights into the German system. He clarified that Germany does not have a class action system similar to other countries, but they do have options for bundling cases. These options are the traditional joint claims and the assignment model, where a special purpose vehicle (SPV) is established and then purchases the claims. He also discussed the challenges of dealing with direct and indirect purchasers in such proceedings. According to him, both models reach their limits when direct and indirect purchasers are combined in one and the same case. The paradigms of antitrust law causes difficulties in such collective proceedings. These issues could be solved or standardized through legislation, but there are currently no signs of this happening in Germany. Giorgio Afferni, Managing Partner at Delex Law Firm (Italy), provided an overview of the two class action systems in Italy, the old and the new one. The old class action applies to infringements that took place before May 2021 and is only accessible for consumers, whereas the new class action applies to infringements that took place after that date and is not limited to consumers. He explained that the old class action is an opt-in system, where consumers have the burden of opting in immediately after the action is set. The new class action system is seen as an improvement as it allows victims of infringement to opt in either immediately after certification or after the case has been decided. Sam Marden, Director at Charles River Associates (UK), provided a detailed analysis of the complexities involved in exclusionary and exploitative cases. He used the Google and Facebook cases as examples to illustrate the challenges of establishing counterfactuals in such cases. He emphasized the need for a flexible approach to evidence in these complex cases as the traditional econometrics might not be sufficient and and more factual evidence, grounded in economic analysis, might be needed. He also highlighted the importance of considering the industry’s economics early in the case, creating a lot of interesting work for economists and lawyers in the short term, and potentially leading to better outcomes for consumers in the long term.

Nils von Hinten-Reed, Founder and Managing Director from CEG Europe (Belgium and UK), chaired the forth panel on private and public enforcement of competition law. James Wright, Legal Director at the UK Competition and Market Authority (CMA), started the discussion by elaborating on the relationship between leniency and private enforcement from a UK perspective. In the UK, there was a recent debate whether leniency recipients shall not only be immunized against the full range of the public enforcement powers but also from private damages claims. The UK government, however, refrained from making any changes in the law as there was no clear evidence about the effectiveness of private actions on the leniency side. Generally, leniency applications are of great and crucial importance. They not only initiate half of CMA’s cartel cases, but also have a deterrence effect on businesses which may face the prospect of a CMA investigation, regularly accompanied with well-funded and investigated parties seeking compensation. Natasha Pearman, Partner at Milberg London (UK), further commented on the trends in leniency applications and their impact on investigations. She noted that the UK has seen a resurgence in leniency applications with 11 in 2020, 12 in 2021, and 23 in 2022. However, only a few of these applications actually result in investigations. She noted that in the UK the focus is generally on abuse of dominance cases, which are less covert and thus easier to detect than cartels, potentially leading to a gap when it comes to access to justice and compensation for consumers and SMEs affected by cartels. Prof. Miguel Sousa Ferro, Managing Partner at Sousa Ferro (Portugal) and Professor at the Lisbon Law school, discussed the trends regarding antitrust enforcement in Portugal. Alongside the UK and the Netherlands, Portugal is indicated as one of the jurisdictions where there is a major concern for companies in terms of facing opt-out actions with large amounts of damages. There was a rise in the number of leniency applications to the Portuguese competition authority, last year they even had a record number of these, which does not fit well with the notion that that increased private enforcement leads to a decreased number of leniency applications. Another trend that can be seen is that national courts suspend cases until there is a final public investigation decision, regularly delaying justice for consumers and plaintiffs.

Sylvie Gallage-Alwis, Partner at Signature Litigation (France) and pure a defense counsel herself, chaired and moderated the fifth panel, alongside her consisting only counsels and consultants working on the plaintiff side. The panelists discussed international mass torts and product liability class actions. Nicholas Deluca, Managing Director at Alvarez and Marsal (US), started the discussion by referring to the ongoing trends in the Volkswagen dieselgate. In the US, Volkswagen has paid $33 billion so far to resolve claims related to the diesel scandal, with some cases still pending. Also in other industries, such as the pharmaceutical industry, significant legal developments could be seen, specifically referring to the Zantac cases. He highlighted the different timelines across jurisdictions, including dieselgate, and the fluctuations in medical pricing, showing the unintended nature of the class actions’ effects. Guy Robson, Partner at Pogust Goodhead (UK), brought the UK perspective of the dieselgate to the table. In the UK, numerous group litigation orders (GLOs) were filed against major car manufacturers, distributors, and finance companies over the diesel scandal, involving over 1,000 defendants and 12 large manufacturing conglomerates. The courts have effectively managed this complex litigation by following a case managing system, which handled the cases in stages and consolidated issues to avoid contradictory judgments and enable efficient proceedings. Wesley Vader, Partner at Bureau Brandeis (the Netherlands), explained that in the Netherlands, class actions for claiming damages are relatively rare, averaging only about 25 cases per year. Also the implementation of the new WAMCA regime has not led to a rise in the number of class actions. However, the Netherlands have become a leader when it comes to climate litigation, evidenced by significant cases such as the ones against Shell or KLM. The case against Shell was not meant to have any damages awarded, but asked for a 45% reduction in emissions by 2030 compared to 2019, while the KLM case asked to find that KLM’s business practices were unfair and misleading regarding sustainability.

After Clare Ducksbury from Case Pilots (UK) introduced the sixth panel on bundling claims, Lord Erich, Judge of the Court of Session in Scotland and Chairman of the Competition Appeal Tribunal (CAT), outlined the trends regarding class actions in Scotland. He focused on funding, which is used widely in Scotland, particularly on group representatives and on disclosure. It is noticeable that Scotland uses a halfway system between civil and common law with regard to disclosure. Francesco Consoli from Libra Claims (Italy), expressed his perspective as an entrepreneur and mentioned the recent increase and future potential in the use of litigation funding in class actions. Italy now has a digitised civil justice system with less delays than one might think. There can be seen many pollution cases concerning hundreds of thousands of claimants, alongside employment and consumer cases, mainly using the Italian class action and the bundling model. However, the effectiveness of the class action regime is limited because it is only an opt-in regime, and because of its limitations on success fees despite litigation fees and costs being relatively low. Sir Robin Knowles CBE, Judge of the High Court of England and Wales, mentioned the importance of the competition class regime in the jurisdiction which may be extended in the future to other areas of law. The use of a specific procedural rule would benefit case management and the administration of justice as a whole. Group litigation orders (GLOs), and the English CPR 19.8 opt-out representative action are the main options that the English system provides. The world’s judiciaries are listening to each other and comparing ideas on the subject of multi-party litigation, on how can access to justice be delivered in a sensible way. Seth R. Lesser from Klafter Lesser (US) on the other hand provided an overview of the American class action regime’s history with regards to employment claims, which are nowadays regularly limited by arbitration clauses. He outlined the strategies concerning the bundling of these types of claims, including starting class actions at a state level, and the impacts this may have on settlement.

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.