Walter Merricks opened his keynote address at the ICLG’s Global Class Action Symposium with a warm welcome to the collective redress device in Europe and the UK, calling its long absence from both jurisdictions “a disgrace to justice.”
He was optimistic too for the future of the device in England and Wales, despite recognised criticism from some in the legal community that the Supreme Court had set its certification requirement too low in its seminal 3:2 decision in Merricks. Many fear that this could open the floodgates to potentially unmeritorious claims (John Yanchunis, attorney for Morgan & Morgan Complex Litigation Group, would colourfully describe these as, “I only got a half full cup of coffee” claims) and force risk-averse corporations into panicked settlement — discrediting the class action regime in the jurisdiction.
Despite those concerns, Merricks (the man) was keen to point out that the regime in England and Wales was developing positively. He talked about advancements in the way Umbrella and Ubiquitous matters could be heard in the Competition Appeal Tribunal (CAT), sparing Sir Marcus Smith, incumbent President of the CAT, and, by extension, the UK, the embarrassment of a confusion of multiple judgments where different parties in a supply chain were forced to defend separate actions. These procedural developments were a clear sign that the device was being closely monitored across the jurisdiction.
Forum shopping — a race to the bottom?
European parliaments were well on their way to drafting legislation in response to EU Directive 2020/1828 (the “representative actions for the protection of the collective interests of consumers directive”), introducing representative actions for collective redress to all Member States of the European Union. To the question of forum shopping — the possibility that those jurisdictions would race to create plaintiff favourable seats of litigation — Kenny Henderson, partner at CMS, thought that unless there was a global “one size fits all” device, then claimants, as the party that went first, would continue to pick the device and likely the jurisdiction that suited them the most, something that corporations would need to continue to monitor.
Why societies need a successful class-action device
Yanchunis spoke to the development and deployment of Rule 23 in the U.S. — from securities and antitrust litigation to post-internet consumer claims — but was keen to highlight the societal importance of a successful class action device in any jurisdiction, and the role of the lawyer to responsibly use the device to affect societal change. This wasn’t about those nefarious, ambulance-chasing claims that the dissenting voices in Merricks were concerned to hold back, but the claims that had a real societal impact — claims by which consumers could hold corporations to account and achieve access to judgement. When it came his own approach to selecting cases that met those ideals, Yanchunis asked whether:
- Regardless of recovery, he would be able to try the case were it just an individual
- The case would appeal to a judge — that it was persuasive and appealing, that it had societal impact
By this logic, Yanchunis saw a self-regulated answer to the critics of the Merricks decision, but recognised that abuse of the class action device in the U.S. still occurred, reiterating his call to all citizens to secure the success of the global class action device for its ability to force societal change.
Battle of the experts
Leonard Bohmer, partner at CMS, and Michael Armitage, partner at Waters Kraus & Paul, had a word of advice for lawyers working in cross-border class actions: despite the diversity of regimes, lawyers should instruct in-country experts at the start of litigation. Good experts were always in high demand and anything less than early instruction could leave firms and their clients out in the cold.
Magnets on haystacks — the critical role that AI-powered technology plays in class actions
Katie DeBord, Vice President of Product Strategy at DISCO, spoke to the critical importance ediscovery technology plays in class action litigation because of the vast quantities of documents involved. Ediscovery solutions were, in the golden age of data, an essential tool in every great lawyer's arsenal. But, she was keen to highlight the evolution of those tools and the speed by which artificial intelligence (AI) could help those lawyers determine earlier in the matter which documents were relevant and which were not. Even if some lawyers still wanted to review every document. AI-powered solutions, like DISCO Ediscovery, acted like a magnet on top of your document haystack, drawing relevant documents to the top of the pile based on your own tagging behaviour — providing intelligence that actually worked.
To see the science behind the statement, read how DISCO AI is bringing deep learning to legal technology.
A glance into the future
Throughout the event, speakers were asked to opine on the future of the global class action, we captured some of the top predictions for 2023 and beyond:
- The 3:2 judicial tussle in Merricks was a sign that the issue of certification would be revisited in England and Wales — it wasn’t a matter of if, but when and how.
- Knowledge and experience sharing among lawyers at the plaintiff bar in the U.S. was huge and as regimes developed in Europe, so too would European resources and collaboration.
- A proposed Corporate Sustainability Due Diligence Directive will, when implemented, give a lot more teeth to claimants pursuing environmental, social, and governance (ESG) claims in Europe and is something corporations would do well to pay more attention to.
- Greenwashing — the act of making unsubstantiated or deceptive claims about your product/organisation’s environmental qualities — will dominate the class action space in the near future and corporations around the globe should be prepared.
- Corporations more used to creating risk profiles based on U.S.-led litigation should look at their exposure in Europe and the UK as the regimes and jurisprudence continue to develop.
We look forward to seeing how the class action device continues to evolve globally and to the continued evolution of mechanisms and regimes that redress more than half-full cups of coffee.