For the Defense: 28 Shades of European Class Actions

Mullenix, Linda S.

doi:10.1007/978-3-030-73036-9_3

For the Defense: 28 Shades of European Class Actions

Linda S. Mullenix²⁷

Chapter
First Online: 23 June 2021

600 Accesses

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 89))

Abstract

Throughout the twentieth century, virtually all European countries that had studied the American class action had rejected implementation of the class action as a part of domestic law. In the early twentyfirst century, however, several European countries reconsidered their longstanding antipathy to the American class action. The EU Parliament in 2013 issued a Recommendation for Injunctive and Compensatory Collective Redress Mechanisms requesting that all EU countries—by 2017—implement some form of collective redress mechanism. In May 2018, the Commission issued a Report assessing the practical implementation of the Recommendation. The Commission’s study reveals that the 28 EU countries have developed a patchwork quilt of differing approaches to collective redress. Although many EU countries have undertaken legislative initiatives and implemented some of the Commission’s recommendations, in a number of countries, several of the Commission’s principles have had little or no impact on domestic laws. Perhaps most significantly, the 28 EU countries largely have eschewed implementing procedural mechanisms that resemble the American class action rule, in efforts to preserve domestic cultural and legal norms, and to avoid Americanstyle class action abuses. Thus, European initiatives towards implementing a class action device represent an American class action defense lawyer’s dream.

This is a preview of subscription content, log in via an institution.

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 119.00; Price excludes VAT (USA)

Softcover Book: USD 159.99; Price excludes VAT (USA)

Hardcover Book: USD 179.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

1.
See, e.g., Statutes of Ontario, An Act Respecting Class Proceedings; Statutes of Quebec, An Act Respecting the Class Action (1978).
2.
Acts of Parliament of the Commonwealth of Australia, Amendment Act of 1991 (Representative Proceedings).
3.
See, e.g., Cappalli and Consolo (1992), Cappelletti and Garth (1983), Fisch (1979), Koch (1986), Koch (1994), Parker (1995), Taruffo (1990).
4.
Ibid.
5.
Ibid.
6.
Draft Proposal for a Class Action Act, Committee Report of the Legislative Department of the Ministry (January 1995) (proposed Finnish class action); Summary of Proposed Act on Class Actions (1995) (proposed Swedish class action); Official report, Proposed Act on Class Actions (1995) (proposed Swedish class action Act).
7.
Nashi (2010); see Legge 24 Dicembre, n 244, Art. 2, para 445–449, Dec. 24, 2007, in Gazz. Uff. 12 Gennaio 2008, n 8 [original draft] (providing the legal framework for collective actions in Italy); Legge 23 Luglio 2009, n 99, Art. 49, para 14, in Gazz. Uff. 31 Luglio 2009, n 176, Supplemento Ordinario, n 136 [final draft]. The final draft went into effect in January 2010.
8.
Class action litigation in France is situated in its consumer protection provisions and is limited to services provided, sales of products, and damages caused by unfair competition. See generally Lutfalla and Magnier (2006), Brouquier (2015), Lesur (2016), reporting that since October 1, 2014, when the law entered into force, only six class actions were brought through 2016.
9.
European Parliament Resolution of 2 February 2012 Towards a Coherent Approach to Collective Redress [2012](2011/2089 (INI)).
10.
2013/396 EU: Commission Recommendation of 11 June 2013 on Common Principles for Injunctive and Compensatory Collective Redress Mechanisms.
11.
Ibid.
12.
Consortium of European Universities, Max Planck Institute Luxembourg for Procedural Law, An Evaluation of National Procedural Laws and Practices in Terms of Their Impact on the Free circulation of Judgments and on the Equivalence and Effectiveness of the Procedural Protection of Consumers Under EU Consumer Law (June 2017) (report commissioned by the European Commission), JUST/2104/RCON/PR/CIVI/0082).
13.
Voet (2017).
14.
Report from the European Commission to the European Parliament, The Council and the European Economic and Social Committee on the Implementation of the Commission Recommendation of 11 June 2013 on common principles for injunctive collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU) (January 25, 2018) (hereinafter 2018 EU Commission Report).
15.
See Directorate General for Internal Policies, Policy Department for Citizens’ Rights and Constitutional Affairs, Collective Redress in the Member States of the European Union, PE 608.829 (October 2018).
16.
Voet (2017), p. 260.
17.
2018 EU Commission Report, 19–21.
18.
Vairo (2016). The groundwork for the Contract with America was first laid by the President’s Council for Competitiveness, in “An Agenda for Civil Justice in America” (1991); Vice President Dan Quayle unveiled this agenda in a speech to the American Bar Association meeting in August 1991.
19.
Vairo (2016), n 8.
20.
Vairo (2016), p. 1743.
21.
Vairo (2016), 1743, n 10.
22.
See Olson (1991).
23.
Hensler (1991) reviewing Olson (1991).
24.
Vairo (2016), p. 1743.
25.
Hensler (1991), p. 176.
26.
Note (1996) (state tort reform efforts at limiting potential malpractice liability of health-care providers).
27.
Vairo (2016), p. 1743 nn 13–14, reports that by 2004, 23 states had capped non-economic damages in professional liability cases. See also Note (1996), p. 1768 (various tort reform initiatives).
28.
Vairo (2016), p. 1743.
29.
Castano v. Amer. Tobacco Co., Inc., 84 F.3d 734, 744 (5th Cir. 1996); In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); In the Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995).
30.
Forty-eight of the 50 states have state class action rules that permit class litigation in state court. The two states without class action rules are Mississippi and Virginia.
31.
These easily accomplished class certifications in obliging state court jurisdictions were dubbed “drive-by” certifications for the ease with which plaintiffs could receive class certification merely upon the filing of conclusory motions and pleadings, without evidentiary support or judicial hearings.
32.
Vairo (2016), p. 1744 n 15.
33.
28 U.S.C. §§ 1332(d), 1453, 1711–1715: Pub. L. 10902 (Feb. 18, 2005).
34.
28 U.S.C. § 1332(d).
35.
28 U.S.C. § 1453.
36.
Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C.) (1995); see also Securities Litigation Uniform Standards Act of 1998, Pub. L. 105-353, 112 Stat. 3227 (1998).
37.
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
38.
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
39.
AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011); American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2012).
40.
H.R. 917, 104th Cong., 1st Sess. (1995); 141 Cong. Rec. H2486 (March 1995).
41.
H.R. 955, 104th Cong., 1st Sess. (1995); 141 Cong. Rec. H1849 (Feb. 15, 1995).
42.
H.R. 10, 104th Cong., 1st Sess. (1995).
43.
H.R. 956, 104th Cong. 1st Sess. (1995); 141 Cong. Rec. H1849 (Feb. 15, 1995).
44.
Note (1996), p. 1770.
45.
Ibid.
46.
Ibid.
47.
Ibid.
48.
Class Action Fairness Act of 2005, Senate Report 109-14, S. Rep. No. 14, 109th Cong., 1st Sess. 2005, 2005 WL 627977, 2005 U.S.C.C.A.N. 3 (leg. Hist.); Cong. Rec. 151 (Feb. 28, 2005).
49.
Ibid.
50.
See Brief for Petitioners, Frank v. Gaos, 2018 WL 3374998 (U.S. Appellate Briefs 2018); Brief of Chamber of Commerce of the United States of America as Amicus in Support of Petitioners, Frank v. Gaos, 2018 WL 3473993 (U.S. Appellate Brief 2018); Brief of the Cato Institute and Americans for Prosperity as Amici in Support of the Petitioners, Frank v. Gaos, 2018 WL 3455704 (U.S. Appellate Brief 2018). See also Beisner (2010), p. 3.
51.
See Beisner et al. (2009).
52.
See Steinman (2018) (commenting on HR 985, the Fairness in Class Action Litigation Act).
53.
See, e.g., Harbour and Shelley (2007); Hensler (2016) (discussing the 2013 European Principles on Collective Redress); Clark et al. (2013) (commenting on the draft European Recommendation on Collective Redress Mechanisms).
54.
Clark et al. (2013), p. 425.
55.
European Parliament Resolution of 2 February 2012 Towards a Coherent Approach to Collective Redress [2012] (2011/2089(INI)).
56.
Ibid.
57.
Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, Strasbourg, XXX COM (2013) 3539/3.
58.
2013 EU Commission Recommendation, 3.
59.
Clark et al. (2013), p. 425.
60.
2013 EU Commission Recommendation, 5–10.
61.
2018 EU Commission Report, 2: “Legislative activities affected by the Recommendation have remained somewhat limited in the Member States.”
62.
Ibid, 4.
63.
Ibid.
64.
The Report concluded, with regard to the institution of collective redress mechanisms by Member States:

The replies to the call for evidence show that collective redress, where available, is mainly used in the area of consumer protection and related areas such as passenger rights or financial services. Another area where several cases were reported is competition law, especially where alleged cartel victims claim compensation after the decision on an infringement by a competition authority (follow-on actions). The relative absence of recourse to collective redress in other fields is due not only to the fact that in many Member States compensatory or indeed injunctive relief is available only for consumers or in competition law; it also appears to be linked to other factors such as the complexity and length of the proceedings or restrictive rules on admissibility, often relating to legal standing.
65.
Ibid, 2.
66.
Ibid.
67.
Ibid. The Netherlands enacted a collective damage action for monetary damages on March 19, 2019. The legislation applies to harmful events that took place on or after November 15, 2016.
68.
Ibid.
69.
Ibid, 3.
70.
Ibid. The countries that have embraced a complete horizontal approach to injunctive relief collective actions are Bulgaria, Germany, Lithuania, the Netherlands, and Sweden.
71.
Ibid. The countries that have injunctive relief collective actions available in competition (antitrust) collective actions are Hungary, Luxembourg, and Spain.
72.
Ibid. The countries that have made injunctive relief collective actions available for environmental violations are France, Hungary, Portugal, Slovenia, and Spain.
73.
Ibid. The countries that have made injunctive relief collective actions available in employment cases are Hungary and Spain.
74.
Ibid. The countries that have made injunctive relief collective actions available for antidiscrimination claims are Croatia, France, and Spain.
75.
2013 EU Commission Recommendation, para 2.
76.
2018 EU Commission Report, 3. The countries which permit compensatory relief collective actions are Austria, Belgium, Bulgaria, Denmark, Germany, Finland, France, Greece, Hungary, Italy, Malta, the Netherlands, Poland, Portugal, Romania, Spain, Sweden, and the UK.
77.
Ibid, 3.
78.
2013 EU Commission Recommendation, paras 4–7. The Recommendation set out specific minimum criteria for such designation: the non-profit character of the entity, a direct relation between its objectives and the violated rights and a sufficient capacity to represent multiple claimants acting in their best interests.
79.
2018 EU Commission Report, 5.
80.
Ibid, 4.
81.
Ibid, 5.
82.
Ibid.
83.
2013 EU Commission Recommendation, paras 8–9.
84.
2018 EU Commission Report, 6.
85.
Ibid.
86.
Ibid.
87.
Ibid. The countries that require a showing of efficiency to satisfy admissibility are Belgium, Denmark, Finland, Italy, and Lithuania.
88.
Ibid. The countries that require a showing of the capacity of the representative entity to protect the interests of affected persons are Finland, Italy, the Netherlands, Romania, and the UK.
89.
Fed. R. Civ. P. 23(a) and (b) (requirements for class certification).
90.
2018 EU Commission Report, 7. The Commission further recommended that as admissibility was a preliminary phase of the collective action, “expeditious decisions on admissibility are important for the legal certainty of all the parties involved.”
91.
See, e.g., Wal-Mart Stores, Inc. v. Dukes, 563 U.S. 338 (2011) (extensive discussion of Rule 23(a)(2) commonality requirement).
92.
Fed. R. Civ. P. 23(b)(3) (predominance requirement).
93.
2013 EU Recommendation, para 13.
94.
2018 EU Commission Report, 8. The Report noted limited exceptions in some jurisdictions for exemptions from court fees for representative entities and public authorities in consumer cases. The countries with such exemptions were Croatia, Hungary, Malta, Poland, and Romania.
95.
Ibid, 9.
96.
2013 EU Commission Recommendation, paras 29–30.
97.
Ibid.
98.
2018 EU Commission Report, 16. The nine Member States permitting some form of contingency fee arrangements are Bulgaria, Cyprus, Czech Republic, Germany, Greece, Poland, Slovenia, Spain, and the UK.
99.
Ibid.
100.
Ibid.
101.
Ibid.
102.
Ibid. The countries with performance fees in their collective redress legislation were Austria, Belgium, France, Italy, Lithuania, Luxembourg, Poland, and Sweden.
103.
Ibid. A respondent from the UK submitted an example of a collective redress case where the national court had held was an abuse of process where attorneys were working on a contingency fee basis.
104.
Ibid.
105.
2013 EU Commission Recommendation, para 31.
106.
2018 EU Commission Report, 17.
107.
2013 EU Commission Recommendation, paras 14–16, 32.
108.
2018 EU Commission Report, 9.
109.
Ibid, 10.
110.
Ibid, 9. The Report noted that Slovenia is in the process of enacting legislation that would regulate third-party financing in accordance with the limitations on third-party financing set forth in the Recommendation.
111.
Ibid.
112.
Ibid, 10.
113.
Ibid, 9.
114.
Fed. R. Civ. P. 23(b)(3); Fed. R. Civ. P. (c).
115.
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (consent by declining to opt-out of Rule 23(b)(3) damage class action).
116.
See ALI (2010) para 2.10, 176–178 & Reporter’s Note to Cmt. a (Am. Law. Inst. 2010) (encouraging opt-in aggregation in certain cases and “provid[ing] courts with authority to create opt-in mechanisms for voluntary aggregation of claimants by their affirmative consent”); see generally Dodson (2016).
117.
2013 EU Commission Recommendation, paras 21–24. The Recommendation noted that natural or legal persons joining an action should do so based on their express consent only.
118.
Ibid.
119.
2018 EU Commission Report, 13. The Member States adopting the opt-in principle are Austria, Finland, France, Germany, Greece, Hungary, Italy, Malta, Poland, Romania, Spain, and Sweden.
120.
Ibid. The Member States adopting a combination approach are Belgium, Bulgaria, Denmark, and the UK.
121.
Ibid. The Member States adopting an opt-out procedure are only the Netherlands and Portugal.

References

ALI (2010) Principles of the law. Aggregate Litigation
Google Scholar
Beisner JH (2010) Cy Pres: a not so charitable contribution to class action practice. U.S. Chamber Institute for Legal Reform
Google Scholar
Beisner JH et al (2009) Selling lawsuits, buying trouble: third-party litigation funding in the United States. U.S. Chamber Institute for Legal Reform
Google Scholar
Brouquier E (2015) Class Actions in France – What You Need to Know. GEN RE. Available via http://de.genre.com/knowledge/blog/class-actions-in-france-what-you-need-to-know.html
Cappalli RB, Consolo C (1992) Class actions for continental Europe? A preliminary inquiry. Temp Int Comp Law J 6:217
Google Scholar
Cappelletti M, Garth B (1983) The Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation
Google Scholar
Clark SS et al (2013) Is the class action ‘centre of gravity’ moving away from the United States? Def Couns J 80:420
Google Scholar
Dodson S (2016) An Opt-in option for class actions. Mich Law Rev 115:171
Google Scholar
Fisch WB (1979) European analogues to the class action, group action in France and Germany. Am J Comp Law 27:51
Article Google Scholar
Harbour LJ, Shelley ME (2007) The emerging European class action: expanding multi-party litigation to a shrinking world, Prac. Litigator 18(4):23
Google Scholar
Hensler DR (1991) Diagnosing the nation’s legal ills. Judicature 75:176
Google Scholar
Hensler DR (2016) From sea to shining sea: how and why class actions are spreading globally. Univ Kan Law Rev 65:965
Google Scholar
Koch H (1986) Class and public interest actions in German Law. Civil Just Q 66
Google Scholar
Koch H (1994) Mass Torts in Germany. German National Reports in Civil Law Matters for the XIV Congress of Comparative Law in Athens
Google Scholar
Lesur (2016) French class action has less impact than expected. McDermott Will & Emery. Available via https://www.mwe.com/en/thought-leadership/publications/2016/02/french-class-action-law-has-less-impact
Lutfalla E, Magnier V (2006) French legal reform: what is at stake if class actions are introduced in France? Def Couns J 73:301
Google Scholar
Nashi R (2010) Italy’s class action experiment. Int Law J 43:147
Google Scholar
Note (1996) “Common sense” legislation: the birth of neoclassical tort reform. Harv Law Rev 109:1765
Article Google Scholar
Olson WK (1991) The Litigation Explosion: What Happened When America Unleased the Lawsuit
Google Scholar
Parker D (1995) Standing to litigate “Abstract Social Interests” in the United States and Italy: reexamining “Injury in Fact”. Colum J Transnatl Law 33:259
Google Scholar
Steinman S (2018) Tort ‘Reform’ stew. JTLA Trial 54:18
Google Scholar
Taruffo M (1990) Group Actions in Civil Procedure. Italian National Report to the XIII International Congress of Comparative Law
Google Scholar
Vairo G (2016) The role of influence in the arc of tort “reform”. Emory Law J 65:1741
Google Scholar
Voet S (2017) Actions for Collective Redress. In: Consortium of European Universities, Max Planck Institute Luxembourg for Procedural Law (2017) An Evaluation of National Procedural Laws and Practices in Terms of Their Impact on the Free circulation of Judgments and on the Equivalence and Effectiveness of the Procedural Protection of Consumers Under EU Consumer Law (report commissioned by the European Commission). JUST/2104/RCON/PR/CIVI/0082
Google Scholar

Download references

Author information

Authors and Affiliations

University of Texas at Austin, Austin, TX, USA
Linda S. Mullenix

Authors

Linda S. Mullenix
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Linda S. Mullenix .

Editor information

Editors and Affiliations

Faculty of Law, University of Zagreb, Zagreb, Croatia
Alan Uzelac
KU Leuven, Leuven, Belgium
Stefaan Voet

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Mullenix, L.S. (2021). For the Defense: 28 Shades of European Class Actions. In: Uzelac, A., Voet, S. (eds) Class Actions in Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 89. Springer, Cham. https://doi.org/10.1007/978-3-030-73036-9_3

Download citation

DOI: https://doi.org/10.1007/978-3-030-73036-9_3
Published: 23 June 2021
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-73035-2
Online ISBN: 978-3-030-73036-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics