The Rise (And Fall?) of Class Actions: Comparative Law Resources

Some Slaw readers may soon become members of a class that is suing one of the leading sources of online legal information in Canada. In 2010, Lorne Waldman, a Canadian attorney, filed a statement of claim against Thomson Reuters Corporation for infringing Waldman’s moral right to control the reuse of his writings included in Thomson’s “Court Documents Collection” (CDC) database (available via Carswell Litigator). CDC permits subscribers to download documents Thomson copied from court files in Canadian cases. The court files include briefs and other documents written by Canadian lawyers, including Waldman. Thomson does not ask the authoring lawyers for permission to include their writings in the CDC database. Waldman seeks to make his lawsuit a class action brought on behalf of all authors of documents “copied, used or otherwise dealt with” in the CDC database. Waldman v. Thomson Reuters Corp. & Thomson Reuters Canada Ltd. , 2012 ONSC 1138 (CanLII).

Thomson moved to dismiss Waldman’s proposal to certify the class. The Ontario Superior Court of Justice denied the motion to dismiss. The court will hear the motion to certify the proposed class this September (Jason Wilson, Westlaw Canada + Litigation Service + Bored Lawyers = Copyright Class Action, rethinck, June 11, 2012).

More than ten years ago, in Western Canadian Shopping Centres v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, the Supreme Court of Canada wrote of the social need for class action lawsuits to resolve problems that arise when many persons suffer similar harms as a result of a single act or decision. See J. Kalajdzic, Accessing Justice: Appraising Class Actions Ten Years After Dutton, Hollick & Rumley. The need for class actions has grown due to

[t]he rise of mass production, the diversification of corporate ownership, the advent of the mega-corporation, and the recognition of environmental wrongs.” Dutton at par. 26. The court said, “Without class actions, the doors of justice remain closed to some plaintiffs, however strong their legal claims. Sharing costs ensures that injuries are not left unremedied.
Dutton at par. 28.

The law of class actions varies considerably from country to country, and within many countries, the applicable law is changing rapidly. “In less than a decade, the number of countries that permit representative litigation by private actors has multiplied dramatically.” (Hensler). NAFTA became a class action zone when Mexico enacted legislation on “acciones colectivas” in 2011. It came into effect on March 1, 2012. While some scholars believe class actions will become less common in the United States (see Robert H. Klonoff, The Decline of Class Actions), several European countries have recently adopted laws permitting class actions or expanding the availability of collective lawsuits. (E.g., Dutch Act on Collective Settlement of Mass Damage Claims of 2005; see Bentley). Other members of the European Union remain hostile to several aspects of class litigation. (See Trevelyan). Belgium, the Czech Republic, Hungary, Ireland, Lithuania and Poland, amongst others, have no legal mechanism for collective redress. (Mulheron). “The hotchpotch attitude to class actions in Europe causes enormous problems for Europeans seeking redress.” (Trevelyan).

Class actions in one country may directly affect citizens of other countries, and some plaintiffs have defined the classes they seek to represent to include persons outside of the jurisdiction of the forum court. (Monestier). Transnational class actions present special problems of jurisdiction and res judicata. John P. Brown, Chair of the Consumer Litigation Committee of the International Bar Association (IBA), said,

The collective redress regimes around the world do not have to be identical but if they are designed to protect the same substantive and procedural rights of class members and are based on some of the same fundamental principles, it is more likely that class action judgments from one jurisdiction will be enforceable in another jurisdiction. We are in a global economy now. People buy goods and services across borders and fly around the world all the time. If collective relief is sought it will only be effective if the resulting judgment is enforceable in all the required jurisdictions.
(Trevelyan).

In this column, I’ll discuss how to locate the applicable law and both historical and current information on class actions in countries worldwide.

Terminology

A researcher looking into class actions in foreign countries must recognize the variety of terms used for similar forms of redress. Relevant resources in English may use any of the following terms: aggregate actions, aggregate litigation, collective actions, collective litigation, collective redress, collective suits, group actions, group litigation, mass actions, mass claims, mass torts, mass disputes, multi-party actions, multi-plaintiff litigation, representative actions, or representative litigation. The researcher should also consider foreign language terms for class actions. In French, for example, the researcher should look for “recours collectifs” or “actions de groupe.”

Primary Sources

Researchers can find the primary law governing class actions in civil procedure codes and similar legislation, or in court rules. Radu Popa and Mirella Roznovschi’s Comparative Civil Procedure bibliography in Globalex is a useful guide to civil procedure codes. Reynolds & Flores’ Foreign Law Guide can also help uncover the pertinent statutes and rules. The researcher can also look for specialized legal research guides. For example, the Law Society of Upper Canada’s class actions pathfinder lists sources of primary law, textbooks, treatises, practice guides, and websites for Canada, the U.S., and Australia.

Organizations & Networks

Stanford Law School, the Oxford Centre for Socio-Legal Studies, and Tilburg University have organized “a series of international conferences on the worldwide spread of class actions, group proceedings and other forms of collective litigation.” The Global Class Actions Exchange website, which complements the conferences, has empirical data on Australian class actions, and it links to country reports for over 30 countries and regions, and national legislation and rules for Victoria (Australia), Chile, France, Germany, Israel, Malaysia, Mexico, New Zealand, Norway, Poland, Singapore, and Spain. The Exchange’s site also has selected class action case reports.

The professors involved with the Global Class Actions Exchange (Deborah Hensler, Christopher Hodges, Ianika Tzankova) now co-chair the International Collaborative Research Network (sometimes called the International Research Collaborative) on the Globalization of Class Actions and Other Forms of Collective Litigation. This Law & Society Association IRC group conducts cross-national comparative analyses of class action litigation.

The American Bar Association organizes an annual National Institute on Class Actions co-sponsored by the Center on Continuing Legal Education (CLE) and the Section on Litigation. Researchers can also contact the IBA’s Multi-Jurisdictional Class Action/Collective Redress Working Group and its Task Force on International Procedures and Protocols for Class Actions (see their Guidelines for Recognising and Enforcing Foreign Judgments for Collective Redress); the RAND Institute for Civil Justice (Class Actions and Mass Torts); the Oxford Centre for Socio-Legal Studies, European Civil Justice Systems; the Searle Civil Justice Institute at George Mason University’s Law & Economics Center (SCJI); and check the Securities Class Action Clearinghouse (Stanford Law School)).

Databases & eBooks

The Canadian Bar Association’s National Class Action Database / Base de données canadienne des recours collectifs indexes Canadian class action law suits by date, subject, title/case name, and class group from 1996 to 2011. Most of the national monographs in The International Encyclopaedia of Laws: Civil Procedure and the Encyclopedia of International Commercial Litigation cover class actions. LexisNexis’ multi-jurisdictional surveys on toxic torts standards cover class actions that fall within the surveys’ limited subject area. The International and Comparative Legal Guides (ICLG) Series on Class and Group Actions has information for 21 jurisdictions on court procedures, time limits, remedies, costs, and funding for actions by representative bodies, and it includes a general chapter on EU cross-border actions for collective redress. For briefer summaries of useful information, the Martindale-Hubbell International Law Digest (LexisNexis) includes sections on Class Actions for each country.

Books, Articles & Documents

Secondary literature on class actions usually appears under the Library of Congress subject headings: Class actions (Civil procedure), Citizen suits (Civil procedure) or Consumer protection – Law and legislation. Books on civil litigation, civil justice, and civil procedure generally tend to include sections on class actions. The researcher can use journal indexes to find articles such as Antonio Gidi, Class Actions in Brazil – A Model for Civil Law Countries, 51 Am. J. Comp. L. 311 (2003).

The Annals of the American Academy of Political and Social Science published a special issue on The Globalization of Class Actions in March 2009. It includes an overview article and special articles on class actions in Argentina, Australia, Austria, Belgium, Brazil, Canada (written by Jasminka Kalajdzic, W.A. Bogart and Ian Matthews), Chile, China, Denmark, England & Wales, the European Union, Finland, France, Germany, Indonesia, Israel, Italy, Japan, Malaysia, the Netherlands, Norway, Poland, Portugal, Singapore, Spain, South Africa, Sweden, Switzerland, Taiwan, the United States. It concludes with an article titled “What Are People Trying to Do in Resolving Mass Issues, How Is It Going, and Where Are We Headed?” The Spring 2001 issue of Duke Journal of International and Comparative Law on Debates over Group Litigation in Comparative Perspective What Can We Learn from Each Other?” covers class actions in Australia, Canada, England, Germany, Switzerland, and Europe generally.

Journals

A variety of journals can help researchers keep up with new legal developments on class actions. The Canadian Class Action Review = La revue canadienne des recours collectifs (2004- ) and the Stanford Journal of Complex Litigation (2012- ) publish current articles. In the U.S., the Practising Law Institute (PLI) publishes an annual class action litigation handbook. For more frequent updates, the researcher can use resources such as the BNA Class Action Litigation Report. This e-newsletter recently reported that shareholders filed two potential shareholder class action lawsuits against Facebook (Pathan, No. 53760/12 and Dewhurst, No. 100 S of 2012) in Ontario and Saskatchewan for alleged collusion with bankers leading to investor losses. The Kim Orr Class Action Monitor (via Westlaw Canada) and Class Action Reports (1972- ) also provide updated information. 

Blogs

For news of new class action lawsuits and legislation, check out specialized blogs such as Canadian Class Actions Law, ClassActionBlawg, Mass Tort Litigation Blog, Mass Tort Defense, and Jackson on Consumer Class Actions and Mass Torts blog. General law blogs will sometimes cover class action case news. See, for example, Omar Ha-Redeye’s 2011 Slaw blog post on Use of YouTube for Notice in Class Actions, the Trial Warrior Blog, and Jason Wilson’s rethinck blog on the Waldman class action case.

Select Bibliography 

Accessing Justice: Appraising Class Actions Ten Years After Dutton, Hollick & Rumley (Jasminka Kalajdzic ed., LexisNexis Canada, 2011)(also published in v.53 Supreme Court Law Review (2d.)(2011).

American Law Institute, Principles of the Law of Aggregate Litigation (2010)(adopted and promulgated on May 20, 2009).

Deborah Lyn Bassett, U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction, 72 Fordham L. Rev. 41 (2003).

Diana Bentley, People Power – Collective Actions in Europe (International Bar Association, 2010).

Willem H. van Boom, Collective Settlement of Mass Claims in The Netherlands, in Auf dem Weg zu einer europäischen Sammelklage? 171 (Matthias Casper et al. eds., Sellier, 2009).

Howard Borlack, Canadian Class Actions: A Plaintiff’s Paradise? (Canadian Litigation Counsel; compares U.S.-Canada regimes).

Civil Justice Systems in Europe: Implications for Choice of Forum and Choice of Contract Law (Stefan Vogenauer & Christopher Hodges eds., Hart Pubs., forthcoming January 2013).

Collective Actions: Enhancing Access to Justice and Reconciling Multilayer Interests? (Stefan Wrbka, Steven van Uytsel, & Mathias M. Siems eds., Cambridge University Press, 2012).

Collective Redress: Where & How It Works (BEUC, The European Consumers’ Organisation, May 8, 2012).

Extraterritoriality and Collective Redress (Duncan Fairgrieve & Eva Lein eds., Oxford University Press, forthcoming September 2012).

Globalization of Class Actions (Deborah R. Hensler, Christopher J. S. Hodges; Magdalena Tulibacka, & Phyllis C Kaniss eds., Sage Pubs., 2009).

Manuel A. Gómez, Will the Birds Stay South? The Rise of Class Actions and Other Forms of Group Litigation Across Latin America, (September 19, 2011). University of Miami Inter-American Law Review, Vol. 43, No. 3, 2012; Florida International University Legal Studies Research Paper No. 11-23. Available at SSRN: http://ssrn.com/abstract=1930413.

Green Paper on Consumer Collective Redress (European Commission, DG Health and Consumers, Consumer Affairs)(COM(2008) 794, Nov. 27, 2008).

Laurel J. Harbour & Marc E. Shelley, The Emerging European Class Action: Expanding Multi-Party Litigation to a Shrinking World, 18 No. 4 PRAC. LITIGATOR 23 (July 2007)(excerpt).

Deborah R. Hensler, The Globalization of Class Actions: An Overview, 622(1) The Annals of the American Academy of Political and Social Science 7-29 (2009).

Christopher Hodges, Multi-Party Actions (Oxford University Press, 2001)(covers England and Wales, Canada, Australia).

Christopher Hodges, The Reform of Class and Representative Actions in European Legal Systems: A New Framework for Collective Redress in Europe (Hart Pub., 2008)(Studies of the Oxford Institute of European and Comparative Law ; v. 8).

Christopher Hodges & Rebecca Money-Kyrle, European Civil Justice Systems: Safeguards in Collective Actions (The Foundation for Law, Justice and Society, 2012).

Samuel Issacharoff & Geoffrey P. Miller, Will Aggregate Litigation Come to Europe? 62 Vand. L. Rev. 179 (2009).

Sonja E. Keske, Group Litigation in European Competition Law: A Law and Economics Perspective (Intersentia, 2010).

Robert H. Klonoff, The Decline of Class Actions, (April 5, 2012). Washington University Law Review, Vol. 90, 2013; Lewis & Clark Law School Legal Studies Research Paper No. 2012-6. Available at SSRN: http://ssrn.com/abstract=2038985.

The Law and Economics of Class Actions in Europe: Lessons from America (Jürgen G, Backhaus, Alberto Cassone & Giovanni B. Ramello, Edward Elgar, 2012).

“The Law on Representative Proceedings and Class Action Regimes in Other Jurisdictions, in Report: Class Actions 25-62 (The Law Reform Commission of Hong Kong, May 2012).

Klaus-Heiner Lehne, Report on ‘Towards a Coherent European Approach to Collective Redress’ (January 12, 2012, European Parliament).

Hélène van Lith, The Dutch Collective Settlements Act and Private International Law: Aspecten van Internationaal Privaatrecht in de WCAM (WODC, 2010).

Mass Justice: Challenges of Representation and Jurisdiction (Jenny Steele & Willem H. van Boom eds., Edward Elgar, 2011).

Joseph M. McLaughin, McLaughlin on Class Actions: Law and Practice (7th ed. Thomson Reuters/West, 2011)(2v.).

Rebecca Money-Kyrle, Collective Redress. A Comparative Study of Safeguards and Barriers (Hart Pub., forthcoming March 2013).

Tanya J. Monestier, Transnational Class Actions and the Illusory Search for Res Judicata, 86 Tul. L. Rev. 1 (2011).

Vince Morabito, Defendant Class Actions and the Right to Opt Out: Lessons for Canada from the United States, 14 Duke J. Comp. & Int’l L. 197 (2004).

Rachael Mulheron, The Case for an Opt-Out Class Action for European Member States: A Legal and Empirical Analysis, 15 Colum. J. Eur. L. 409 (2010).

New Frontiers of Consumer Protection: The Interplay Between Private and Public Enforcement (Fabrizio Cafaggi & Hans-W. Micklitz eds., Intersentia, 2009).

Angel R. Oquendo, Upping the Ante: Collective Litigation in Latin America, 47 Colum. J. Transnat’l L. 248 (2009)

Paris-Rio Guidelines of Best Practices for Transnational Group Actions (International Law Association, Committee on International Civil Litigation and Interests of the Public, 2008).

Report on Class Actions [v.1, v.2, v.3] (Ontario Law Reform Commission, 1982).

Tiana Leia Russell, Exporting Class Actions to the European Union, 28 B.U. Int’l L.J.141 (2010).

Edward F. Sherman, Group Litigation under Foreign Legal Systems: Variations and Alternatives to American Class Actions, 52 DePaul L. Rev. 401 (2002).

Lucy Trevelyan, Power to the People: Collective Redress for Consumers (International Bar Association, 2009).

Francisco Valdes, Procedure, Policy and Power: Class Actions and Social Justice in

Historical and Comparative Perspective, 24 Ga. St. U. L. Rev. 627 (2008).

World Class Actions: A Guide to Group and Representative Actions around the Globe (Paul G. Karlsgodt ed., Oxford University Press, forthcoming August 2012).

Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action (Yale University Press, 1987).

Christopher Hodges, Current Discussions on Consumer Redress: Collective Redress and ADR (Academy of European Law, Annual Conference on European Consumer Law 2011).

Viviane Reding, Towards a Coherent European Approach (October 5, 2010, European Commission).

Genevieve Saumier, USA-Canada Class Actions: Trading in Procedural Fairness (April 12, 2005). Global Jurist Advances, Vol. 5, No. 2, p. 1, 2005. Available at SSRN: http://ssrn.com/abstract=753344 (in Currie, “an Ontario appellate court held that an Illinois settlement was not binding on absent Canadian class members, on the basis of inadequate notice”).