International Comparative Legal Guide to: Class and Group Actions: (17 International Comparative Legal Guide Series)

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.

Table of 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