1. Collective redress in the Netherlands Flip Wijers - 13 November 2012 1

2. Collective litigation A foundation or association can initiate collective litigation – Existence of similar interests that the plaintiff actively aims to protect; – No extensive description of the ‘class’ is required; – No prior decisions regarding the illigality of the defendants actions is required; – Scope: injunctive and declaratory relief available, no claim for monetary damages; – Binding effect is limited; Alternative instruments of collective redress – Alternative instruments are available but often not practical; Costs of collective litigation – Not necessarily (much) more expensive than individual litigation; – Loser pays (a little), no contingency fee scheme allowed; Prejudicial requests to Dutch Supreme Court 2

3. Collective Settlements - I  Dutch Act on the Collective Settlement of Mass Claims  Amsterdam Court of Appeal can declare a settlement binding on a class, with a subsequent opt-out possibility for injured parties;  Four stages: settlement agreement, petition, opt out period, distribution of funds;  The Court will test:  Whether the group of injured parties is sufficiently sustantive and identifiable;  The representativity of the foundation or association;  Whether notification requirements have been met;  The reasonableness of the settlement; 3

4. Collective Settlements - II  Opt out possibility  Minimum period of three months;  Settlement agreement may provide that if too many injured parties opt out, the defendant can withdraw from the settlement;  Jurisdiction and notification in international settlements  Case law shows that the treshold to accept jurisdiction is low;  Notification requirements align with applicable treaties and conventions;  Extraterritorial effect  Brussels I Regulation will assist in international enforcement;  Interaction with US settlements post Morrison vs. NAB  ‘Foreign purchasers’ are banned from US class actions. The Netherlands is an alternative for certification of class action settlements. 4