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1 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Timothy C. Smith Managing Partner – Europe Lungershausen & Smith www.lspdi.com EU Class Action Law - Recent Developments
2 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany
3 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (GVMuG) Class action act (GVMuG) effective 01 Nov 2005 for competition, antitrust, and consumer disputes First time introduction of group actions for more than 20 plaintiffs Similar facts or questions of law involved
4 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (GVMuG) Opt-in required within 3 month period Qualified institutions, chambers of commerce, and consumer organizations also have standing to sue
5 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (GVMuG) New “skimming off” actions Intentional or gross-negligent violation of consumer protection provisions Damage less than €25.00 Violators pay pecuniary advantage (wrongful profits) into state fund Loser pays No contingency fees Michael Ballack, German Football God (image not class action law related, but inserted here solely to irritate British football fans)
6 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts Decision to pass group litigation acts influenced by recent litigation, such as Telekom shareholder lawsuit
7 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (KapMuG) Shareholder class action act effective 01 Nov 2005 Capital Markets Model Case Act (KapMuG) Only applicable to shareholders claiming compensation for false, misleading or omitted information Breach of duty to inform Common issues of law decided if at 10 similar lawsuits are joined
8 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (KapMuG) Shareholders file separate claims and then declaratory class action motions Complaints published in court complaint register If 9 other motions filed within 4 months, court will initiate class action process
9 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Germany – New Class Action Acts (KapMuG) Other plaintiffs have right to actively participate in class action as part of due process Class action decisions binding on all parties in separate complaints Cost splitting among plaintiffs Loser pays; no contingency fees
10 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 United Kingdom
11 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 UK – Group Litigation Orders Group Litigation Orders (GLO) introduced into part 19 CPR on 02 May 2000 Involve common or related issues of fact or law Up to plaintiffs to inform other potential claimants and include them until court cut-off date
12 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 UK – Group Litigation Orders Claimants do not have to opt- in or out Individual claims still possible, but no cost sharing Loser pays; no contingency fees, but capped “success fee” agreements on top of ordinary fees (if won)
13 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 UK – Group Litigation Orders GLOs have been used against corporations mostly in personal injury cases Recently also used by corporations e.g. to claim tax refunds against U.K. authorities
14 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 UK – Group Litigation Orders Latest list of current GLOs available at: http://www.hm-courts- service.gov.uk/cms/15 0.htm
15 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Sweden
16 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Sweden – Introduced Class Action Act New class action act in effect since 01 Jan 2003 Group actions on similar and common circumstances Organization action by on- profit consumer protection organizations
17 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Sweden – Introduced Class Action Act Public group action by authority on behalf of class members Only plaintiffs can bring group action Once court granted class action application, potential members need to be notified Opt-in process within period set by court
18 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 Sweden – Introduced Class Action Act Court may grant inclusion of further plaintiffs or claims at later time Loser generally pays costs and fees Plaintiff is primarily responsible for costs and fees if he is unsuccessful; needs to turn to group members for partial reimbursement Contingency fee agreements possible with approval from court
19 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 The Netherlands
20 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 The Netherlands – Proposal for Class Action Act Revisions Since 1994, limited group litigation rules exist sec. 3:305a Dutch Civil Code Instead of a lead plaintiff, an association or entity acts as representative of the class
21 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 The Netherlands – Proposal for Class Action Act Revisions Association‘s right to claim for damages on behalf of members can be assigned Current class action settlements are not binding on all class members
22 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 The Netherlands – Proposal for Class Action Act Revisions As of end 2005, Dutch parliament still reviewing class actions act in “final round” Proposed law will make settlements binding for all group members who do not opt-out Loser pays; no contingency fee agreements
23 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 France
24 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 France – Debating Initial Law French President Jacques Chirac January 2005: French President Chirac announces introduction of class actions to strengthen consumer rights April 2005: Minister of Economic and Financial Affairs creates „commission“ of consumer protection groups and trade and bar associations to prepare class action recommendations to introduce class actions Recommendation (still expected) will form the basis for a draft bill Draft bill will then be debated in French Parliament
25 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 France – Debating Initial Law Screen shot of www.classaction.fr Mid-2005: French lawyer Jean-Marc Goldnadel started www.classaction.fr Website is, inter alia, a client recruiting tool for lawsuit against movie distributors re copy-protecting DVDs Website tells visitors „you have suffered prejudices for which we are demanding damages in court on your behalf“ Invites visitors to click on a flashing red button to „sign up“ and enter credit card details. Fees start at €12.00 in exchange for promise to take part in lawsuit demanding €1,000 per plaintiff Goldnadel also seeking clients to sue for allegedly mislieading financial information given to Vivendi Universal SA shareholders Website has aroused widespread French and EU discussion about this issue Debate largely re lawyer advertising v. ethical standards
26 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 France – Debating Initial Law Goldnadel says his website is justified because it „gives citizens direct access to Justice“ and „fights for particular interests whereas the associations fight for general interests The Paris bar association filed a formal objection re this type of lawyer advertising The Union Fédéral de Consummateurs (UFC) (the biggest consumer protection association in France) favors US-style class action procedures that cover potential victims unless they opt out Opponents of the government plan (i.e., Mouvement des Enterprises de France (Medef)) have seized on www.classification.fr as evidence that a new French class action law would encourage the kind of „excesses“ that the United States is now trying to curb with CAFA „This is exactly what we don´t want. We have no desire to see this kind of practice become widespread“ Jean-Marc Goldnadel and his website
27 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 France – Debating Initial Law French Minister of Economic and Financial Affairs Thierry Breton French government so far has not formally participated in the discussion Silence order in place – there have been no public statements by anyone in government pending the commission‘s formal Recommendation Minister of Economical and Financial Affairs Thierry Breton „informally“ says: France is keen to avoid class action „abuse“ as seen in the United States If class action laws come, they will be introduced „in a French context and in a more controlled way“
28 © 2006 Timothy C. Smith BIICL PL Forum Meeting 02 Mar 06 www.lspdi.com Thank You for Your Attention! Michael Ballack, German Football God (these additional images included here again solely to taunt English football fans)
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