Class actions are procedures in which various parties work together to seek justice. This is often the case in mass claims, which can be claims relating to economic loss (for instance stock exchange losses on shares) but can also immaterial (or non-economic) loss cases (such as environmental measures). Although class actions on mass claims are a normal part of American culture, they are still rare in the Netherlands.
bureau Brandeis’ class action team boasts specialists in corporate law, class actions and mass claims settlement and often works with interest groups and class action claim funders. Our team is also active in class actions which are mainly based in the US but which have their effects in the Netherlands as well. For instance when witnesses need to give testimony here or when Dutch parties, who have suffered damage, need legal assistance.
We are or have been involved in the following mass claim cases, among others:
- Fortis Bank, as a result of incorrect information provided by Fortis in 2007 and 2008 about its financial risks as result of holding large investment portfolios in American subprime products;
- institutional investors, including the South African civil service pension fund PIC, against Steinhoff, a South African listed company, which had grossly misrepresented its financial statements for several years;
- we represent all Dutch Internet users, through The Privacy Collective Foundation. This foundation litigates against Oracle and Salesforce to obtain damages for its constituents, due to violation of their privacy;
- we act in several antitrust damages cases;
- the Dexia affair about liability for financial products;
- the ABP pension fund and others as claimants against the American pharmaceutical company Merck in regard to investment losses suffered as a result of the belated disclosure of price-sensitive information;
- the Libor affair, about how the Libor and Euribor interest rates were manipulated by several banks including Rabobank.
bureau Brandeis’ attorneys have also been involved in class actions of an idealistic nature, such as the case about the right of the British in the Netherlands, in view of the Brexit, or of the Dutch government to exchange data with the American security services (Civilians against Plasterk).
Mass claims can be made when a large number of injured parties suffer the same type of economic loss through one or a small number of responsible parties in cases with the same or similar legal or factual questions. These claims might be the result of shareholders in a stock exchange fund being misled, the withholding of information about technical defects in consumer products which have been sold in large numbers, or collective damages from parties who made a profit as a result of illegal price-fixing (cartels).
The introduction of the Class Action (Financial Settlement) Act (WCAM) in 2005 means that mass damages claims can now be settled collectively and that these settlements can be declared binding by the Amsterdam Court of Appeal. By declaring a settlement binding, the court ensures that injured parties who were not part of the settlement itself, may also derive rights under it. Should an injured party not wish to be bound by the settlement he may indicate this within a set period of time, a so-called opt out. As of 2020, the WAMCA came into effect, which additionally allows for the claiming of damages.
The international relevance of the Netherlands as a class action settlement country has increased over the last few years. The Amsterdam Court of Appeal ruled, in its so-called Converium decision, that just a few reference points with the Dutch jurisdiction are sufficient to make a collective settlement binding on all injured parties throughout Europe. After the Morrison judgment (Morrison v. National Australian Bank) in particular, a decision by the American Supreme Court which makes it harder to litigate class action claims in the US against companies not based in the US, we expect the number of class actions in the Netherlands to increase.
bureau Brandeis’ class action team is led by Frank Peters and Louis Berger.