CALCULATING DAMAGES IN CROSS-BORDER CLASS ACTIONS
CD: How would you describe activity levels for cross-border class actions in recent months? What recent trends have you observed?
Boedeker: Technology, economic globalisation and, most recently, experiences based on the border-crossing COVID-19 pandemic have, and will inevitably lead, to an ever-increasing degree of cross-border characteristics in many class action lawsuits. In cases involving issues such as privacy concerns, data protection, data breaches, online retailing and international banking, to name a few, national borders represent increasingly small barriers to class actions in the digital age. The term ‘cross-border class action’ covers a wide array of legal actions. Cross-border class actions typically relate to antitrust damages and product defect cases, less so false advertising cases. Litigation due to privacy infringement or data breaches are likely to become more prevalent.
Groehn: Cross-border actions include plaintiffs from outside the jurisdiction seeking damages in a specific jurisdiction, as well as plaintiffs in various jurisdictions seeking damages from a specific defendant for the same issue. The air cargo cartel litigation in England is an example of the first, while the diesel litigation against automotive manufacturers is an example of the latter. The European Parliament and the European Council (EC) endorsed a new collective actions legislation in November 2020. Member countries have two years to translate the Directive into national law. Member countries will have to enforce the Directive by June 2023. In some countries, including Germany, some collective redress rules were already in place. While in the US and other countries consumers can take direct action, in the European Union (EU), ‘qualified entities’ can commence representative lawsuits on behalf of consumers.
Jul-Sep 2021 issue
BRG