Class Action Litigation

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Lorena Kern
Katja Bullemer-Wülfert

The German Bundestag, or Federal Parliament, passed a reform of the Capital Markets Model Case Act (KapMuG) on June 13, 2024, and Germany’s Federal Council (Bundesrat) passed it on July 5, 2024. The reform is expected to take effect before the previous version expires on August 31, 2024. In the following guest post, Lorena Kern and Katja S. Bullemer-Wülfert of the DRRT law firm take a look at the reformed KapMuG and consider the possible implication of the reformed Act’s new provisions. A version of this article previously was published as a DRRT law firm client alert. I would like to thank Lorena and Katja for allowing me to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Lorena and Katja’s article.Continue Reading Guest Post: “Class Actions” in Germany – KapMuG 2.0

One phenomenon I have been tracking over the years is the rise in jurisdictions outside of the U.S. of procedural mechanisms for collective redress, particularly in the U.K (as noted, for example, here) and the E.U. (as noted here). While I have always been careful to note the important differences between these collective action mechanisms and the U.S.-style class action approach, it may be the case that as time has passed and as procedures have developed and evolved, the mechanisms many jurisdictions are adopting increasingly are coming to resemble the U.S.-style class actions model.

As an October memo from the Jones Day law firm puts it, class action litigation “is no longer a US-specific phenomenon.” The law firm memo, which is entitled “The Rise of US-Style Class Actions in the UK and Europe,” states that the growth in the UK and EU of group litigation has been “exponential” and the rise of these actions is a “key corporate risk that will only continue to increase.” The law firm’s memo can be found here.Continue Reading The Rise of Group Actions in the U.K and the E.U.

As I have noted in prior posts, there has been in recent years a slowly developing E.U. initiative for the introduction of a rights of collective redress on a Union-wide basis. As discussed here, in April 2018, the European Commission introduced a proposal – as part of what it called a “New Deal for Consumers” – that would introduce a European collective redress right for consumers. More recently, on March 26, 2019, the EU Parliament, in plenary session, adopted the Commission’s proposal. The next step is that the Council of Europe will now take up the proposal, moving the E.U. one step closer toward the adoption of a pan-European collective redress mechanism for consumers that would be available in all of the member states.  The March 26, 2019 application on which the EU Parliament acted can be found here.
Continue Reading Proposal for E.U. Collective Redress Mechanism Advances

In the current political environment, class action lawsuits are under assault, particularly in conservative legal circles. As Joe Patrice put it in an August 30, 2017 Above the Law post (here) , with a somewhat tongue-in-cheek summary of the conservative perspective on class actions, “The only thing every good conservative legal thinker knows is that class actions are greedy money grabs perpetrated by slimy lawyers that help no one and only frustrate the hard-working capitalists making America great again.”

Given this general outlook among conservatives about class action lawsuits it is all the more surprising and interesting that a conservative legal scholar has come forward with a robust defense of class actions. Vanderbilt Law Professor Brian Fitzpatrick, who clerked for Reagan appointee Dairmuid O’Scannlain on the 9th Circuit and for conservative Supreme Court Justice Antonin Scalia, has published a paper entitled “Do Class Actions Deter Wrongdoing?” (here), as part of his forthcoming book, “The Conservative Case for Class Actions.” In Fitzpatrick’s view, class actions serve an important role because they deter corporate wrongdoing. Fitzpatrick’s analysis may not only be important for the ongoing debate about class actions in the U.S., but, as discussed further below, it may be even more important for the debate about class actions outside the U.S.
Continue Reading A Conservative’s Case in Support of Class Actions

The highest-profile attempt to utilize the new U.K. regime for consumer class actions has come to a grinding halt. The case involved a claim alleging that MasterCard’s fee structure had resulted in overcharges to tens of millions of U.K. consumers. On July 21, 2017, the Competition Appeal Tribunal, newly re-organized to oversee the consumer class action regime, declined to grant the necessary collective proceedings order that would have allowed the action to go forward. The tribunal’s ruling is highly fact-specific and its decision to decline the collective proceedings order very much reflects the specific features of the claims against MasterCard, but the ruling nevertheless does raise concerns about the viability of the class action regime and its attractiveness to prospective claimants in other cases. A copy of the Tribunal’s July 21, 2017 order can be found here.
Continue Reading U.K. Court Halts Effort to Use New Opt-Out Class Action Procedures

Columbia Law School Professor John C. Coffee, Jr.

On February 10, 2017, as I noted in a recent post, Rep. Bob Goodlatte of Virginia introduced a bill in Congress seeking to introduce a number of reforms to class action litigation. In the following guest post, Columbia Law School Professor John C. Coffee, Jr. provides his views regarding the reforms proposed in the bill. A version of this article previously appeared on the CLS Blue Sky Law blog (here). I would like to thank Professor Coffee for his willingness to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Professor Coffee’s article.
Continue Reading Guest Post: How Not to Write a Class Action “Reform” Bill

us capitolIn the early days of the Trump presidency, the new administration has made it clear that it is going to tackle perceived regulatory excess. The new President has also made it clear that he intends to reform the Dodd-Frank Act. In keeping with these initiatives, a Republican congressman has now introduced a legislative proposal to reform class action litigation. According to his February 10, 2017 press release (here), Rep. Rob Goodlatte (R-Va.), the Chairman of the House Judiciary Committee, introduced the Fairness in Class Action Litigation Act (H.R. 985) to “keep baseless class action suits away from innocent parties, while still keeping the doors to justice open for parties with real and legitimate claims.” The Bill, which is a grab bag of proposed procedural reforms clearly intended make class action litigation more difficult, addresses a host of concerns and includes some surprising features, including, among other things, a provision that would address third party litigation funding.
Continue Reading Major Class Action Reform Legislation Introduced in Congress

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Christopher Bogart

One of the most noteworthy recent developments in the litigation arena has been the rise of litigation funding.  Litigation funding is well-established in Australia and Canada, and it is becoming increasingly important elsewhere. Among the largest litigation funding firms is Burford Capital, which is a publicly traded company with offices in London and New York and whose securities trade on the London Stock Exchange. The company’s most recent interim financial results can be found here. Christopher Bogart, who previously was EVP and General Counsel of Time Warner and whose background includes a stint at the Cravath law firm, is the company’s CEO. In the following post, Chris answers my questions about litigation funding and about his firm. My questions appear in italics, followed by Chris’s answers in plain text.  I would like to thank Chris for his willingness to participate in this Q&A.
Continue Reading Interview with Christopher Bogart, CEO of Litigation Funding Firm Burford Capital

spokeoIn a closely-watched case, the U.S. Supreme Court held that to establish standing to sue, a claimant who alleged that inaccurate information on the Spokeo website about him violated the Fair Credit Reporting Act must show that the supposed FCRA violation caused him “concrete” harm. Defense-side advocates had hoped that the Court would strike down the plaintiffs’ claims in the case and help stem the flow of proliferating “no injury” class action litigation under the FCRA and other federal statutes such as the TCPA and the ADA. However, the Court’s did not strike down the plaintiffs’ claim, but instead remanded the case for the Ninth Circuit to determine whether or not the claimant’s allegations met the “concrete harm” requirements to establish standing.  Though the holding is narrow, there is language in the Court’s opinion that may prove helpful for defendants in other cases. A copy of the Court’s May 16, 2016 opinion in Spokeo, Inc. v. Robins can be found here.
Continue Reading U.S. Supreme Court: To Establish Standing, Statutory Claimant Must Allege “Concrete” Injury

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Noelle Reed

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Daniel Mayerfeld

On March 22, 2016, the U.S. Supreme Court held in Tyson Foods, Inc. v. Bouaphakeo (here) that claimants asserting Fair Labor Standards Act claims on half of a class of Tyson Foods employees could rely on statistical evidence to support their assertion that common issues of fact or law predominated among class members. In the following guest post, Noelle Reed and Daniel Mayerfeld of the Skadden Arps law firm take a closer look at the Supreme Court’s opinion and suggest that the decision may be a reflection of distinct circumstances involved in the Tyson Foods case, that the circumstances are highly unlikely to arise in securities cases, and therefore that the decision is unlikely to have a significant impact on securities cases. I would like to thank Noelle and Daniel for their willingness to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Noelle’s and Daniel’s guest post.
Continue Reading Guest Post: Supreme Court Upholds Class Certification in Tyson Foods