One of the more interesting recent developments in the world of directors’ and officers’ liability and insurance has been the rise of collective actions and mass actions outside the U.S. Class actions are of course a well-established part of the litigation scene in the U.S., but at least traditionally class, mass, or collective actions have been rare outside the U.S. However, as discussed in a December 29, 2025, memo from the Labaton Keller Sucharow law firm entitled “Global Class Action Litigation: Causes, Effects and What’s Next” (here) a variety of changes in a number of jurisdictions has led to an increase in collective litigation outside the U.S., a development that could have important future implications for potential D&O liability.

As the law firm memo notes, since 2021, “hundreds of securities class or group actions have been filed outside the United States, mostly in Europe, Australia, and parts of the Asia-Pacific region.” These proceedings have arisen “alongside a broader change in patterns for various types of class and mass actions globally.” The changes have been driven by “new collective redress frameworks, more active institutional investors, and a maturing litigation-funding market.”

One region where these changes have been pronounced is in Europe and in the UK, as I have noted in previous posts on this site (most recently here). The UK, for example, has adopted an opt-out mechanism for antitrust claims, as discussed here, and has recently seen a rise in cases involving “group litigation orders,” as discussed here. Indeed, the growth in the U.K. of legal matters involving these kinds of mechanisms has started ringing alarm bells in at least certain quarters.

The European Union, for its part, has adopted a proposal for an EU collective redress mechanism, as discussed here. The specifics of the EU mechanism, the adoption of the mechanism in EU member states, and the developments so far are detailed in a November 3, 2025, memo from the A&O Sherman law firm entitled “Class Actions in the European Union” (here). As the memo notes, “the expected impact of the Directive is a multiplication of representative actions in the EU and a new risk of large cross-border representative actions initiated by one of several qualified entities” representing claimants across the EU.

While many EU jurisdictions have under their local laws limited these representative actions to consumer actions only, other jurisdictions have extended the mechanisms to data protection, public health, antitrust, and environmental matters as well. Many jurisdictions (e.g., German, Netherlands, France, and Poland) expressly provide that representative actions can be brought for the benefit of businesses as well as consumers.

The Labaton law firm’s memo notes that these kinds of changes to the procedural frameworks, in the EU and elsewhere, have the effect of “promoting collective actions by removing procedural hurdles” that “may make litigating varieties of class and mass actions outside the U.S. more attractive.”

In addition to the EU changes noted above, the Labaton law firm memo also notes recent recommended changes to the statutory regimes regarding collective actions in New Zealand and Singapore. The memo also notes that collective investor actions are allowed under the laws of China (as discussed further here), specifically noting the recent approximately $40 million settlement under the new Chinese opt-out mechanism in the Essence Information Technology case. (Readers interested in a more detailed overview of the Chinese collective action mechanism should refer to the recent detailed memo from the Jingtian & Gongcheng law firm here.)

With respect to the development of collective actions outside the U.S., the Labaton law firm memo identifies “two consequential structural developments” of particular importance: “the diffusion of opt-out collective actions and the growth of third-party litigation funds, or litigation funding.”

The memo expressly notes that opt-out claims are growing in Europe (and as discussed above, in the UK as well). The memo notes that in markets where “opt-out regimes are permitted or courts are receptive to broad aggregation,” plaintiffs “can bring larger cases with more ease and less cost.”

The A&O Sherman law firm memo to which I linked above notes that under the EU directive, member states can decide whether the claimants must actively join (opt in) or can passively benefit from (opt out) representative actions. However, the directive also requires that the opt-in mechanism should be required for representative actions where claimants do not habitually reside in the member state where the representative action is brought. Claimant who reside in a jurisdiction other than where the action is brought must therefore opt-in.

As the Labaton law firm memo notes, litigation funding has been a contributory factor to the rise of collective actions outside the U.S. as well. Litigation funding traditionally has not been widely utilized in many jurisdictions, such as, for example, within the EU;  however, litigation funding increasingly is an important part of the conversation.

As the A&O Sherman law firm memo notes, in September 2022, the European parliament adopted a resolution with respect to litigation funding, providing minimum standards for litigation funders. Interestingly, and as discussed in detail here, in December 2025, the European Commission announced that it would not proceed with plans to regulate litigation funding, following a member forum earlier in the year, leaving the matter to be addressed at the member state level.

The Labaton law firm memo suggests that “together, opt-out regimes and litigation funding may lead to growth in non-U.S. securities litigation filings,” as the combination could “materially increase the supply of large, well-capitalized non-U.S. investor claims.” The international securities litigation environment will, the memo concludes, “continue to evolve and is worth watching.”

I offer the following additional personal observations on this topic, for whatever they may be worth.

It has been my privilege for years to be able to travel to and attend insurance and legal industry forums around the world. Often at these forums, I am the only American in the room. Early on, I became very accustomed to an almost universal revulsion toward the U.S. class action system, which was viewed as excessive, expensive, and abusive.

However, as time has gone by, an interesting thing has been happening.

Increasingly, jurisdictions around the world have, slowly but surely, adopted various elements of the U.S. class action system. To be sure, no country has adopted anything like the whole U.S. class action system. The fact is that in a modern, complex, global economy, there is a need for legal mechanisms allowing mass claims to be processed collectively. Collective actions can be efficient and even cost-effective, as an increasing number of jurisdictions are recognizing.

 If I were to pick one thing that I think is the most important global development over the last ten or fifteen years, it is the increasing recognition across many jurisdictions of the need for collective action mechanisms as a procedural way for complex claims involving masses of claimants to be addressed. I believe that these kinds of mechanisms will continue to be increasingly available in jurisdictions around the world.