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Obtaining Class Certification in the United States

Developments in antitrust class actions over the past year highlight the critical role that the certification decision plays. In the United States, the denial of class certification “may sound the ‘death knell’ of the litigation on the part of plaintiffs.”

To obtain class certification, plaintiffs must satisfy the four requirements in Rule 23(a) of the Federal Rules of Civil Procedure (numerosity, commonality, typicality and adequacy) and at least one of the requirements in Rule 23(b). McDermott’s Nicole L. Castle, David L. Hanselman, Jr. and Steven Vaughn authored the section “United States: Class Action Defense” of Global Competition Review’s America’s Antitrust Review 2020, in which they discuss the requirements of the Rules and offer insight for those seeking class certification.

Access the full article.

An extract from GCR’s America’s Antitrust Review 2020, first published in September 2019. The whole publication is available at https://globalcompetitionreview.com/edition/1001388/americas-antitrust-review-2020.




French Class Action Law Has Less Impact Than Expected

Since the entry into force on 1 October 2014 of the provisions of the “Hamon” law of 17 March 2014, which introduced class actions into French law in relation to consumer and competition law matters, only six class actions have been brought.

The first action was filed on the date the new law came into effect by the consumer association UFC – Que Choisir against Foncia, a real estate group, to obtain compensation for the service charges levied by Foncia. The most recent class actions seem to have been brought in May 2015 by the consumer association Familles Rurales: one against SFR, a network operator that allegedly misled consumers as to the geographic coverage of its 4G network, and one very limited action against a campground operator who forced campervan owners to buy new ones after 10 years if they wanted to keep their plots.

Class actions are clearly not as popular as had been hoped, at least not yet. Indeed, of the (only) six procedures brought before the French Courts, four were brought around one month after the law came into effect, and all relate to consumer matters. One action led to a €2 million settlement intended to compensate the damages suffered by 100,000 consumers who had been required to pay excessive charges for elevator tele-surveillance.

The limited attractiveness of class actions is probably due to the strict conditions for bringing an action under the Hamon law.

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Class Actions as a Means of Private Antitrust Enforcement: Recent European Developments

by Philip Bentley QC and Veronica Pinotti

The European Commission was expected to unveil its plans for a proposed directive on “class actions in antitrust affairs” on 7 October 2009, but at the last minute this was delayed, no doubt due to the far-reaching consequences of the proposal and staunch political and industry opposition in some quarters.   

If adopted into European Union legislation, such a directive would oblige the 27 EU Member States to adopt legislation providing for class actions in antitrust matters.  This would impinge on private law and court procedure in the Member States, thus going well beyond the mere administrative enforcement of Articles 81 and 82 of the European Community Treaty.  For this reason, it is possible that such an innovation can only be adopted as a joint legislative measure of both the EU Council and the European Parliament, and not just as a measure of the EU Council adopted after “consulting” the Parliament.  The possibility of an increased role of the Parliament has no doubt encouraged the proposal’s opponents.

Judging by the Commission’s White Paper published in April 2008, it seems that the idea was to create “opt-in” collective actions, in which individuals, including indirect purchasers, could decide to combine their claims into one single action and representative actions on behalf of “identified victims” brought by “qualified entities” (e.g., consumer associations or similar organizations) which would be either officially designated in advance or certified for a particular antitrust infringement by a Member State on an ad hoc basis.

While the Commission pauses to consider its next step, some Member States are proceeding with class action legislation on their own initiative, including, most recently, Belgium and Italy.

Belgium

A controversial pre-draft bill that would introduce class actions into the Belgian legal system was recently made public.  This proposal does not focus on antitrust, in particular, but would of course be useable in such cases.

Recent “monster” trials, which proved to be almost unmanageable for the Belgian courts, and political pressure from consumer organisations have spurred the Ministries of Justice and of Consumer Affairs to this pre-draft bill.  As with the European Commission’s initiative, the business community has spoken out against the pre-draft bill on business, political, legal and technical grounds.

The proposed procedure would be divided into two phases: an admissibility phase and a phase in which the Court of Appeals would decide on the merits of the claim.  An action could be started unilaterally by writ or by “litigation” agreement among the claimants and the defendants, but in both cases the claimants would be required to nominate a sole legal representative for the conduct of the court proceedings.

In the admissibility phase, the court would determine whether the case in actuality concerned “mass-damage” and would define the class, in the case of an action brought by writ, or give or withhold approbation in the case of an action brought by litigation agreement.  The Belgian approach favours an “opt-out” system unless the court or the litigation agreement [...]

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