You Should Know: Global Class Action Symposium 2020

Recently, I attended the virtual Global Class Action Symposium 2020, hosted by ICLG.

 The virtual three-day event brought seasoned US class actions specialists together with European and international practitioners, judges, regulators, academics, in-house lawyers, funders, claims administrators, economists and other experts to exchange dialogue on all things class action.

 I chaired the closing panel on the Future of Global Class Actions.

 Here are my top 5 thoughts You Should Know:

1.  Access to Justice: The fundamental purpose of a class action is to give access to justice and the local judicial system to individuals who have been similarly harmed by a common misconduct. This often includes situations where the damage is too small to sue individually and will needlessly clog a judicial system. Regardless of whether it is in the US, UK, EU or other countries, the same principle applies across most collective actions, which is to find an appropriate judicial forum where the court is willing to hear claimants’ collective harms and address them as judiciously as possible.
2. EU’s Collective Redress Directive: This new directive assures that collective redress on behalf of consumers is here to stay in the EU and its member states in various areas including data protection and financial services. A number of EU member states currently have collective redress mechanisms in place including Germany and the Netherlands, but this new directive will expand access to justice for consumers in all EU member states. The writing was on the wall when the EU could not avoid setting basic ground rules for collective redress sparked in large part by Dieselgate, a major cross-border scandal that impacted many Europeans. This is an important step forward for EU member states but also signals the importance of access to justice, and the future of global class actions.
3.  “Loser Pays” Rule: While the principle is to create a safeguard from abusive or frivolous litigation, it will not prevent US plaintiffs’ law firms from crossing the Atlantic to establish offices to act as essentially funders for their own litigation. As they don’t want to be on the financial hook to defendants, they will naturally be more selective and target near slam dunk cases with potentially large recoveries; this also opens the door for litigation funders, where a lot of money is coming into the system.
4.  Morrison v. National Australia Bank Ltd.: This case came up on many different panels. The US Supreme Court might have tightened the universe of securities class action in the United States by limiting the ability of private litigants to sue foreign issuers for securities violations in the US. However, an unintended consequence ten years later is a growth of shareholder collective actions globally particularly in Europe, where shareholders are seeking alternative venues for collective redress to hold issuers accountable for corporate misconduct.
5.  Global Adoption of Class Actions: Much of the above leads one to the conclusion that class action regimes are being adopted worldwide. It was a theme across various panels, including the last one which I chaired on the Future of Global Class Actions. The EU’s wide adoption is only the latest signal that access to justice has become important around the globe, and that class actions are important and here to stay.