Class Actions Notes

Class Actions

UK does not have opt out class action regime. Currently Bill before parliament proposing such a procedure for competition cases.

Question on exam geared to allow to write about own jurisdiction on exam.

Principles arising

• Collective action v personal autonomy - rule of opt out process is that action ca be brought in your name without your knowledge and you will be bound by it.

  • Court makes effort to inform, but no requirement of express consent

• Stare decisis and res judicata

  • Courts can be reluctant to allow plaintiffs to litigate on own behalf if class action going on

  • If d loses, can they re litigate substantially the same claim re claim later arising in same circs

• Democratic participation - how to choose representative, level of involvement and decision making.

  • Generally little participation and representative chooses themselves. Assumption is that they will be passive.

• Undue pressure - concern that unbalances scale in favour of plaintiffs

• Public v private enforcement

  • More desirable to empower public regulators to litigate on behalf of groups that have suffered loss.

  • But leaves decision to public bodies rather than private autonomous parties

• Commodification of legal rights

  • Third party litigation funding - companies develop business model to fund litigation

  • Funds access to justice but causes plaintiffs to lose their rights in commercial transaction

• Ethical duties of lawyer to client

  • Duty to client - becomes difficult if clients in group litigation have conflicting interests - impossible to act in accordance with group as a whole.

• Procedure as barrier to litigation

  • Costs are too high for small claims, aggregation makes litigation viable

  • <> some economic barriers to litigation are sensible and don't want to encourage litigation culture

    • De minimis non curat lex

• Concern about proliferation of frivolous litigation

  • Why not worry about trivial claims? Allows minor bending of laws to occur without any recourse to remedy. Is the whole point of class litigation

Practical questions

• Due process

  • Claimants - right to opt out, right to notice? Defendants - are they entitled to confine to one case?

• Adequacy of representation

• Blackmail suits - suits to extract money for unmeritorious claims?

• Should it be confined to certain sectors? Eg competition?

  • In aus & us, general right of class actions

  • In UK, contemplating only for sectors - labor suggested financial services, now bill for competition cases

• Management - to what extent should merits of individual claims be determined? Bad claims and good claims can come together in class action

  • Damages to be calculated on aggregates basis? Cy pres basis, where cost of distributing damages or identifying claimants? Eg donation to medical research fund, reduced prices for set period of time for competition breach

• Settlements - risk of collusion, balancing fairness and finality

  • What if some members of the class object?

• How should class actions be funded?

  • Eg in UK, ban on contingency fees - to avoid ambulance chasing lawyers

Procedures by justification

Where access to justice a problem - not economically rational to bring claims

• Representative proceeding

  • Where access to court is a problem

    • Minor claims or high costs or risk of litigation makes economically irrational

  • CPR 19.6

    • Consent and notice not required

    • Where litigants have the same interest - narrowly interpreted - for a long time not available in damages claims because interests will be different - or where direct and indirect purchasers in the same supply chain as direct purchasers may pass on inflated price

• Opt out

  • Some say opt out isn't even necessary - if opt out of unviable action there is no other recourse in any event.

• Action by regulator or authorised NGO

  • Has no financial interest in the matter so risk of manipulation of procedure is removed.

  • But potentially regulators judgment not as good as individual litigants

  • Regulatory inertia - depend on regulators funding

  • Potential for corruption - relationship between regulators and the regulated

• Opt in class actions

  • Query whether viable - legal advice costs etc in signing up litigants

  • Technology may make viable. And must be more legitimate

  • In Australia, mainly opt in even though opt out is available

Cost and consistency

• Rationale

  • Even if individual claims viable, saves litigant and court time and funds to do together

  • Good for defendants as well as only face one case

  • Consistency if judgments - especially where juries are used

• Joinder

• Representative proceedings

• Group litigation orders CPR 19.10-15

  • Every person has to file a claim - very opt in. Has consequence that access class actions can't be supported by this mechanism

  • Everyone severally liable for costs

  • Successful for case management of large, viable claims but not for small ones.

• Follow on class actions - 47B competition act.

  • Cannot bring separate class action to establish liability

  • Opt in. Not very effective

• Mandatory proceedings

  • In us - can require people to participate in collective action where risk of inconsistency

Equity

• Rationale

  • Claimants that are first in time shouldn't have priority in insolvency

  • Bankruptcy procedure to avoid bankruptcy

  • Should bring together to ensure equity of distribution of compensation

• Eg mandatory proceedings for bankruptcy actions

• Can also be where don't know who the appropriate defendant is - eg if not sure who made particular pill - damages based on market share

Abuse of collective redress

• Are there cases that are so small that not worthy of adjudication

• argument from public costs

  • But Defendants will develop tolerated zone of noncompliance

• Argument from costs of defendants

  • Costs of distributing settlement monies for minor breach could be excessive and punitive on defendants

    • But critique applies equally to individual actions

    • D shouldn't get windfall just because reversing gain would be too high

  • Can pressure defendants into settling...

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