Full Description
Each year we
comment on the growth of class and collective action litigation, and this year
is no exception. The global growth of class and collective action litigation
shows little sign of slowing, and there are no signs that group litigation
activity will not continue its inexorable rise.
Collective actions
are now seen as part of the business landscape in the United Kingdom and,
increasingly, in Europe. While interest in collective actions was historically
transactional (typically following major events, such as Dieselgate), or
confined to certain sectors (such as product liability, particularly in the
medical context), participation in collective actions has increased markedly.
There is also much greater press and media interest and coverage of the
actions, and the events that have given rise to them.
This change in
perception is attributable to various factors, including a rise in claims of
specific types (such as actions following high-profile data privacy breaches),
and increased media attention in respect of other claims (such as high-profile
competition actions against water companies and gaming console manufacturers).
Public concern about environmental issues (and a perception of governments
failing to do enough to tackle climate change) has also generated increased
interest in environmental class actions.
A key driver of
the expansion in activity over recent years has been attempts by claimant
groups (supported by increasingly experienced law firms, litigation funders and
other service providers) to test the boundaries of the procedural routes by
which collective actions can be pursued. Similar developments have occurred in
the last 12 months. From a procedural perspective, key judgments have been
issued that are likely to shape the future of the collective actions landscape,
providing 'blueprints' that offer guidance to key market participants
(including law firms, funders and prospective claimants) on the likely demands
of pursuing collective actions.
One particular
area to watch in the United Kingdom - where available mechanisms for so-called
'opt-out' claims are comparatively restricted - is representative actions. The
Courts are regularly being asked to consider whether they are prepared to show
flexibility in their interpretation of the procedural rules allowing for
representative actions to assist collective actions to proceed. Some cases
currently proceeding through the Courts are expected to shine an interesting
light on this important area.
Third-party
litigation funding continues to underpin (and often drive) the rise in
collective actions. Funders are increasingly receiving returns from collective
action proceedings, and are increasing their investments in various types of
cases, which include competition, securities litigation, labour and employment,
environmental and data privacy. Cases in all of these areas are now assessed
against a background of increased knowledge about the legal and procedural
issues which determine their likely success.
All of these areas merit close scrutiny and monitoring. Other
areas showing growth in the market are collective actions following the
fallouts from recent geopolitical events, such as COVID-19 and the invasion of
Ukraine, and claims directly or indirectly arising from 'greenwashing' and
ESG. The much-developed marketplace is increasingly well-poised for future
geopolitical and other events and the current trajectory seems likely, if not
certain, to continue.
Contents
1 Collective Actions on the Rise in the UK and
Europe: Impacts on Securities, Data Privacy, Competition and Climate Change
Litigation
Vishnu Shankar, Daja Apetz-Dreier, Leonidas
Theodosiou & Keir Baker, Morgan Lewis
9 Developments and Trends in Collective Actions
Raif Hassan, Brienne M. Letourneau, Sonja
Hoffmann & Sheldon Philp, White & Case LLP
20 Climate Change, Business Disclosures and
Greenwashing Risks
Dr. Robin Cantor, Chris Ring & Sydney
Fallone, Berkeley Research Group
26 Class Action Risks in Products
Samantha Silver, Emilie Civatte, Ed Gibson
& Paula Margolis, Kennedys
33 The Changing Face of European Class Actions:
The Impact of the Representative Actions Directive
Johanna Weißbach & Emilie Jones, Pinsent
Masons
40 A Class Act - Navigating the Rise of Group
Actions in the High Court and the CAT
Tim West, Jon Gale, Sarah-Jane Dobson & Max
Strasberg, Ashurst LLP
50 Is the Collective Redress Regime a Valid
Practice Across Europe?
Dave White & Chris Ford, Blackhawk Network
54 Starting With the End in Mind
Rob Heffernan, Talli
Thomas R. Glenn, A.B. Data
57 Multi-Party Fertility Negligence Actions
Tracey Cowan, Ryan Clarkson, Timothy Giordano
& Sara Beller, Clarkson Law Firm
65 Austria
Peter Machherndl & Maximilian Albert
Müller, Pitkowitz & Partners
74 Brazil
Bruna Ficklscherer, Pogust Goodhead
Anna Carolina Cazarin, Barbara Pimentel & Leonardo
Nigri, Hotta Advocacia
82 Canada
Sylvie Rodrigue, Matthew Angelus, Sarah
Whitmore & Alexandra Lawrence, Torys LLP
92 Denmark
Heidi Bloch & Safinaz Altintas Karaca,
Kennedys
101 France
Jérémy Bernard, CPC & Associés
113 Germany
Dr. Martin Eimer, Katrin Weixlgartner,
Dr. Nicolas Nohlen & Dr. Katrin Hansen,
Ashurst LLP
126 Hong Kong
Paul Kwan & Mandy Pang, Deacons
135 Indonesia
Oene J. Marseille, Kevin Sidharta, Giffy
Pardede & Elsie Hakim, AGI Legal
145 Malaysia
Kwong Chiew Ee, Rahmat Lim & Partners
153 Netherlands
Damiën Berkout, Noor Hogerzeil & Simon
Mineur, Lindenbaum
162 New Zealand
Fionnghuala Cuncannon & Kate Muirhead,
Cuncannon
171 Portugal
Miguel Sousa Ferro & Manuel Vaz Brandão,
Sousa Ferro & Associados
180 Sweden
Krister Azelius & Matilda Kronqvist,
Advokatfirman Vinge
189 Switzerland
Peter Haas, Eversheds Sutherland
197 United Kingdom
David Barker & Emilie Jones, Pinsent Masons
LLP
