Mass Litigation Research Articles

The Short Unhappy Life of the Negotiation Class

The Short Unhappy Life of the Negotiation Class

The Compensation of Non-Pecuniary Loss in GDPR Infringement Cases

Abstract According to art 82(1) of the General Data Protection Regulation (GDPR), ‘any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered’. This provision is at the core of the private enforcement of data protection rights; its interpretation could thus have major implications for business, administration and other organisations. Despite its potential for mass litigation, the case law under art 82(1) GDPR is limited and, five years after the Regulation entered into force, several questions remain still unanswered. This paper gives an overview of the most significant issues relating to the right of data subjects to the compensation of non-pecuniary loss, pending five significant CJEU judgments, which are expected to be delivered in 2023.

Book review: Collective and Mass Litigation in Europe: Model Rules for Effective Dispute Resolution by Astrid Stadler, Emmanuel Jeuland and Vincent Smith. (Cheltenham: Edward Elgar, 2020)

Book review: <i>Collective and Mass Litigation in Europe: Model Rules for Effective Dispute Resolution</i> by Astrid Stadler, Emmanuel Jeuland and Vincent Smith. (Cheltenham: Edward Elgar, 2020)

On the People’s Nature of Judicature from the Way of Ma Xiwu’s Trial Mode

As the product of the judicial work under the leadership of the Party during the Chinese revolution, the Ma Xiwu’s Trial Mode is a creative contribution of the Chinese Communists to the judicial work, bearing the spiritual core of the red judicial culture of the People’s Republic of China, focusing on investigation and research, facilitating the mass litigation and solving disputes on the spot. Under the background of socialism with Chinese characteristics stepping into a new era, people’s judicature is the essential feature of socialist judicial system with Chinese characteristics. The core connotation of people’s judicature is reflected in Ma Xiwu’s judicial stand of people-centered, judicial idea of justice as the core, working principle of insisting on the dialectical unity of people’s nature and impartiality of judicature and evaluation standard of reflecting public opinion.

Identifying the applicable law in cross-border disputes on injuries caused by the covid-19 in India: a critical analysis

The outbreak of COVID-19 (also known as the novel coronavirus disease) has led to the initiation of several disputes. While some of these relate to the non-performance of contracts, others concern the damages arising from the injuries caused by coming into contact with the virus. Considering the nature of the pandemic, a plethora of disputes arising from tortious liability for the injuries caused are likely to involve a foreign element—when it results in injuries in some form to persons by the violation of quarantine rules by foreigners or the failure to impose a lockdown to curb the outbreak. For instance, in the United States [US], a group of individuals and business owners have reportedly initiated proceedings against the Chinese government for failing to prevent the disease from spreading. Likewise, tourists from several countries such as the Netherlands, Germany and the United Kingdom have initiated mass litigation against the Austrian Federal State of Tyrol and tourist businesses such as sports resorts, bars and restaurants for continuing the to operate in the State despite being designated as a high-risk zone. International disputes such as these chiefly involve the identification of the law that will govern the claim to decide the rights and liabilities of the parties. Unlike in the case of contractual claims, the determination of the applicable law is more arduous in the case of torts for the reason that the parties rarely, if ever, know each other and do not expect any particular person to injure them by the harmful behaviour. That said, several countries across the globe have made remarkable progress over the years in developing a framework to identify the governing law to adjudicate cross-border disputes on torts. The European Union [EU], the UK, China, Russia, Australia and Canada are some examples. In contrast, India continues to adhere to the century-old mechanism developed under the English common law which has mostly been replaced in the UK itself. In the absence of any black-letter law on the subject, the development of the method to identify the applicable law in matters of tort has depended on the courts. The Indian courts, however, lack experience in handling international disputes on tort. As a result, there is no conclusive and coherent mechanism to identify the governing law in such matters in India. The paper demonstrates how the rules to determine the applicable law in the present form in India will severely debilitate access to justice and increase transactional costs in obtaining legal information. In particular, it highlights the plethora of problems that are likely to arise in adjudicating disputes concerning the COVID-19 pandemic. In this respect, the author provides some suggestions that the lawmakers may consider while reformulating the mechanism to identify the applicable law in matters of tort and, in particular, while adjudicating disputes relating to the COVID-19 pandemic.

Entrepreneurial Mass Litigation – Balancing the Building Blocks

Entrepreneurial Mass Litigation – Balancing the Building Blocks

Access to Justice and the Limits of Environmental Class Actions in Ontario

AbstractFor over half a century, it has been axiomatic that environmental claims are particularly well suited for class actions. This paper examines this notion in the context of Ontario’s regime and finds that environmental class actions have been limited in the extent to which they have promoted access to justice. Starting with a brief overview of class action history in Canada and the economics of mass litigation at a general level, the paper then analyzes barriers specific to environmental claims. A series of representative case studies is then offered to substantiate the central contention on the limits of environmental class actions. In so doing, the paper takes a holistic approach, incorporating empirical, economic, political, and procedural factors and dynamics to provide an integrated assessment about the type of access to justice that is presently achieved and achievable for environmental claims in Ontario.

Primary Jurisdiction and the Limits of Measurement in Mass Litigation

This Article examines the use of primary jurisdiction through the lens of institutional economics and the ongoing revolution in pre-suit, plaintiff-side testing in mass litigation. In this setting, primary jurisdiction serves a necessary pro-agency institutional role. The ability of plaintiffs’ attorneys to easily generate sophisticated laboratory testing results has allowed them to create a quasi-regulatory quality-control regime for defendants’ products and extract value from it through enhanced settlements. This offers defendants the burdens of regulation without the benefits of uniformity or policymakers with subject-matter expertise and capacity for public input. Primary jurisdiction enables defendants in mass litigation to move these quasi-regulatory actions back to regulatory settings, where the potential for efficient quality-control standards increases with agency expertise. Shifting decision-making in testing-based actions to agencies then preserves this value from conversion into litigation-based transaction costs. As scientific resolving power and the scope of potentially measurable harm evolve, primary jurisdiction thus functions as a central balancing mechanism allowing corresponding evolution in adjudication.

A Remix Compulsory Licensing Regime for Music Mashups

Spurred by advances in digital technologies, music mash-ups emerged as a defining musical genre in the early twenty-first century, reshaping content industries and the broader culture. Digital technology and file-sharing platforms enabled creators to reach vast audiences without the high share of proceeds demanded by traditional record labels, publishers, and distributors. Creators seeking to earn a living in the creative arts faced new challenges in this environment. The very technologies that liberated them from the shackles of the old intermediaries made it ever more difficult to achieve an adequate return on their investments in training, time, expense, and opportunity cost to produce art. Aggressive copyright enforcement, which was rarely a problem in the pre-internet age, took center stage in the twenty-first century, especially for independent creators. A just, effective, and forward-looking copyright system would channel internet-age creators and consumers into well-functioning digital-content marketplaces. Such a system must come to grips with the reality that a growing segment of the population does not view traditional markets for copyrighted works as the only means to access creative works. To many, participation in markets for copyrighted works is voluntary; it is more about convenience and fairness than compliance with the rule of law. Thus, trends in technology, social dynamics, and moral conscience have eroded copyright protection. Heavy-handed responses by copyright owners — such as mass litigation campaigns threatening outsize statutory damages, efforts to ramp up enforcement tools, and troll litigation — have alienated consumers, judges, and legislators and spurred work-arounds that lead new generations away from authorized digital content marketplaces and copyright-based creative careers. Notwithstanding the decline of the copyright system’s public approval rating, the core social, economic, and moral foundations on which copyright was built have not been rendered obsolete by technological advance. To a large extent, what many creators want and need has remained the same: freedom to create and fair compensation based on the popularity of their art. What many consumers want has also largely remained the same: easy access to creative original art at a fair price. These two forces create the conditions for copyright to provide a critical engine of creative and free expression in the digital age. For the copyright system to remain vital, copyright reform must channel post-Napster creators and consumers into a balanced marketplace, not alienate them. This essay explores why and how to transition the copyright system to the internet age through the lens of music mash-ups, a salient art form that has a particular cultural and social significance.

PILOT AND QUASI-PILOT JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS: ENSURING ENHANCED PROTECTION OF HUMAN RIGHTS

Following the enlargement of the Council of Europe during the 1990s, the workload of the European Court of Human Rights multiplied, with thousands of cases coming from the new Member States. The Court has been dealing with mass litigation arising out of diverse structural and complex problems in the Contracting States for nearly two decades. These human rights deficiencies in the Contracting States give rise to constantly increasing numbers of applications to the Court. The Court has developed new remedial powers and mechanisms that significantly change the architecture of the Convention system regarding the implementation of the Court’s judgments. A relatively new competence for the Court is to initiate a pilot and quasi-pilot judgment procedure. The main category of judgments referring to Article 46 of the Convention is composed of pilot judgments. For the present days, the distinction between pilot and quasi-pilot judgment is not really clear. The Court is overloaded with cases, mostly of a repetitive nature and in order to maintain the system’s effectiveness, Member States have been urged to execute judgments more rapidly. The pilot judgments procedure was a response to the structural human rights problems in Contracting States triggering repetitive applications and to several Contracting States’ reluctance to solve those problems on the national level.

"Hurricane" Sandy

On the evening of October 29, 2012, “Hurricane” Sandy made land- fall on the New York coastline, battering the land with strong winds, torrential rain, and record-breaking storm surges. Homes and commercial structures were destroyed; roads and tunnels were flooded; and more than 23,000 people sought refuge in temporary shelters, with many others facing weeks without power and electricity. At the time, Sandy was heralded as one of the costliest hurricanes in the his- tory of the United States; the second costliest hurricane only to Katrina, which hit New Orleans in 2005. Unfortunately, recent experience with Hurricanes Florence, Maria, Harvey, and Irma suggest that this pattern of devastating superstorms may become the new norm as climate change produces more extreme and unpredictable weather events. In Sandy’s aftermath, as individuals returned to their homes, or what remained of them, and communities began to rebuild, the true cost of the storm became apparent. A year after the storm, the Federal Emergency Management Agency (“FEMA”) estimated that over $1.4 billion in assistance was provided to 182,000 survivors of the dis- aster; another $3.2 billion was provided to state and local governments for debris removal, infrastructure repair, and emergency protective measures. More than $2.4 billion was provided to individuals and businesses in the form of low-interest loans through the Small Business Administration (“SBA”), and millions more were spent on grants de- signed to implement mitigation measures in the future and to provide unemployment assistance to survivors. Before the storm, homeowners paid premiums for flood insurance provided through the National Flood Insurance Program (“NFIP”), and for homeowner’s insurance provided by dozens of private insurers. In the months following the storm, they began to file claims for assistance in rebuilding their homes. While many such claims were re- solved successfully, many homeowners were unhappy with the settlement amounts offered by their insurance carriers and felt compelled to file lawsuits in the surrounding state and federal courts. Many of those lawsuits were filed in the United States District Court for the Eastern District of New York (“EDNY”). This case study describes the EDNY’s specifically crafted, unique approach to handling the mass litigation that ensued from Sandy’s devastation, documents some of the problems that the Court faced during that mass litigation, and describes some of the lessons learned from the Court’s experience.

Recovery of Attorney's Fees in the Absence of a Contract in Texas: Amicus Curiae Brief on Behalf of the Public in Hill v. Shamoun (Tex 2018)

In Shamoun & Norman, LLP v. Hill, 483 S.W.3d 767 (Tex. App.-Dallas 2016, pet. granted), the Dallas Court of Appeals held that a law firm could recover attorney’s fees from a former client in the absence of a contract that complied with the statute of frauds based on the common-law theory of quantum meruit as an alternative, and reversed a trial court that had denied such recovery, reinstating a jury verdict for $7,250,000 in fees for the attorney, the equivalent of $48,000 per hour. The Texas Supreme Court granted the former client’s petition for review and held oral arguments on October 10, 2017. Cause No. 16-0107, styled ALBERT G. HILL, JR. v. SHAMOUN & NORMAN, LLP. This amicus curiae brief urges the Texas High Court to consider the implications of the legal questions presented in Hill v. Shamoun for the general public (rather than merely the well-heeled parties before the court), and to address the broader issue of how the reasonableness of attorney’s fees is to be determined in the absence of a contract and in the absence of market-place price setting. This includes court-ordered fees in the fee-shifting context in addition to lawsuits by attorneys against their former clients seeking additional fees that were not incurred under a traditional attorney-client retainer agreement. It is argued that neither the lodestar method used by federal courts, nor the fee factors articulated in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997), are adequate to address the matter of fee awards in computer-driven mass litigation that requires little attorney time per case.

Managing claims

This paper considers active court-based case management of civil proceedings. It was originally prepared as a General Report for the International Association of Procedural Law/China Law Society Conference 2017; as such, it draws on a number of national reports. It provides an in-depth examination of the approach to case management taken in: Austria; Australia; Brazil; Chile; England and Wales; France; Germany; Italy; the Netherlands; Norway; Poland; the United States of America. It also considers the approach in Canada, Hong Kong and Singapore. It examines the following specific issues: differing approaches to case management’s purpose; differential approaches to the role played by courts and parties; specific case management provisions, such as procedural case tracks; procedural innovation, such as flexible forms of case management and contract procedure; and, to a lesser extent, the management of mass litigation.

On Individual Participation within Mass Litigation: The Case of the Fairness Hearing

On Individual Participation within Mass Litigation: The Case of the Fairness Hearing

The EU Directive on Representative Actions for Consumers: A Milestone or Another Missed Opportunity?

Collective redress has been on the EU civil justice agenda for a long time, and has triggered considerable debate as a result of the complexity of the matter and the hugely diverging approaches in the Member States. The 2013 Recommendation on collective redress was the result of compromises, and up until now it has had little practical impact. On 11 April 2018, the Commission published its proposal for a directive on representative actions for the protection of the collective interests of consumers, replacing Directive 2009/22/EC (the ‘Injunctions Directive’). This proposal is a follow-up to the 2016-2017 Fitness Check of EU consumer and marketing law, and to the 2018 evaluation report of the Commission on the implementation of the 2013 Recommendation on collective redress. While this is a big step in the right direction, the proposal has a number of shortcomings. It is submitted that, first, in view of the ever-increasing globalization of goods and services, a revision of European private international law rules is urgently needed for resolving cross-border mass claims. Second, the proposal fails to fully consider new actors and new forms of mass litigation that are now emerging, in particular the rise of mass dispute entrepreneurs who are using online platforms and digital tools to structure and to create mass claims. Third, it leaves several questions relating to the financing of mass litigation still unanswered.

Mass Environmental Harm-in Principle

Environmental harm is a diverse problem. It can arise in various forms, ranging from environmental disasters causing pollution, to environmental nuisances. Almost by definition environmental harm often affects many and may cause widespread damage, as a result of which it becomes mass environmental harm. Such harm is an inevitable by-product of modern living in today’s mass consumer society. This paper examines the phenomenon of mass environmental harm, its distinctictive features and the challenges that these present for litigation. These include issues surrounding toxic torts; causation and evidential complexity; latency; legal cost; and the corporate veil. It explores some novel remedies for mass environmental harm, such as interim measures and medical monitoring. It then explores routes to collective redress for mass environmental harm, where it examines the role of public law and regulation, private enforcement and other techniques such as Alternative Dispute Resolution. It also examines solutions that multi-party actions (MPAs) may offer as one form of collective redress for environmental mass harm. This is illustrated by the collective action experience of the EU and some of its individual member states and also of a number of common law jurisdictions, including Ireland, England and Wales and the United States. There is a detailed examination of Ireland as a case-study of a common law juridiction that does not have an effective MPA procedure and the difficulties that this presents. Finally, the paper speculates what may lie ahead for environmental mass harm redress given ongoing developments, for example at EU level and also in the area of human rights and the Aarhus Convention. The paper demonstrates that there is not a huge likelihood that MPAs will be brought for mass environmental harm and this is because of three reasons: firstly, the environment does not fit naturally within the framework that is traditionally recognised for the protection of private rights; secondly, it is predominantly public authorities that play the primary role in environmental enforecement in Europe; and thrirdly, there are many difficulties with private enforcement (these are discussed in detail). These problems support academic commentory that tort law in the past was not equipped to address the problems of modern pollution and torts. This would appear to undermine the potential role for MPAs in the environmental mass harm sector. It would appear that the best solution for mass environmental harm to have the widest range of possible legal remedies in order to deter pollution, to compensate harm and to protect the environment. While mass litigation is not necessarily the best solution to environmental mass harm claims, it would appear that it could benefit from the managerial advantages that MPAs can confer.

The Imitation Game: Structural Asymmetry in Multidistrict Litigation

This Article examines some of the consequences of asymmetric transaction costs in multidistrict litigation, or MDL. Using principles from legal ethics, economics, and accounting, we show how the structure of MDL affects attorneys’ incentives to recruit plaintiffs and screen cases to form mass litigation. The low marginal costs required to file credible-seeming complaints and the need for global peace in many-on-one settlement create a perfect storm for mass-produced nuisance litigation. Separating quality claims from frivolous suits in complex litigation entails significant costs, rendering much of MDL practice an “imitation game” in which vast resources are spent screening cases that would not have been filed outside MDL. This gamesmanship tests ethical responsibilities of plaintiffs’ attorneys, impairs efficient financial reporting, and strains scarce judicial resources. Building on recent rulings by frustrated courts in drug and device litigation and the proposed allegations verification rules of the Fairness in Class Action Litigation Act of 2017, we show how changes in MDL management can put teeth into ethical rules, decreasing the challenges inherent in MDL while preserving the scale economies offered to litigants.

Are We Really Helping Them? – The Needs of Tort Victims in Mass Litigation Environments

AbstractIn the area of mass litigation, little is known about the needs of the individual victim and to what extent these needs are satisfied through the system of collective redress. Are we really helping tort victims through procedures of mass litigation? In response to this question we conducted two studies that focused on the needs of the individual victim in mass litigation contexts. The main results and valuable insights from these studies are presented and compared in this article. We conclude that although the damages have derived from vastly different origins, it is remarkable that some of the needs are rather comparable. Money is not the only need of victims. Sometimes it is not even the primary reason for victims to litigate. Both groups of victims express the need for recognition, taking responsibility, prevention, and information. Moreover, we have found that these victims experience feelings of solidarity, have altruistic needs in multiple forms, and could experience an overwhelming feeling of empowerment in joining a mass litigation process.

The Global Convergence of Global Settlements

This article was written for a symposium celebrating the fiftieth anniversary of the modern class action. It argues that a global trend in mass litigation is emerging. Spurred by “victim-centered” justice movements in criminal and administrative law, the United States increasingly relies on public actors — state attorneys general, federal prosecutors, agencies, and legislative compensation funds — to compensate large groups of people in ways that mirror class actions. And increasingly, the same is true outside the United States. Even as the United Kingdom, Sweden, Norway, Denmark, Germany and Argentina adopt more expansive class action and collective redress procedures, they also have expanded the authority of prosecutors, agencies, consumer associations and other non-governmental organizations to bring representative and other mass proceedings. This new “convergence” of public approaches to mass litigation presents new challenges for judges. Government settlements share many of the same problems as large private cases — struggling to coordinate actions across different jurisdictions, ensure adequate participation, overcome conflicts of interest with different stakeholders, and distribute funds fairly. And despite the variety of judicial approaches and systems around the world, judges are often charged with reviewing the fairness of settlements brokered by different state and individual actors, each with different state, institutional or personal interests in a final resolution. After highlighting judicial responses to the problems presented in large public and private disputes, this article recommends that countries that rely on government actors to commence class action-like litigation adopt reforms to assist judges charged with reviewing those settlements. Such reforms may include: (1) joint hearings across jurisdictions, (2) coordinated notice procedures between government and private actors, and (3) limited judicial review to force government and private actors to justify difficult trade-offs in a mass settlement.

Standard-Solution Procedures and Mass Litigation

The article presents a general overview of the existing judicial proceedings to achieve a standard solution for serial or repetitive claims, tackling the major problems faced by legal systems all around the world in search of the balance between efficiency of the judiciary and respect for fundamental rights.