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Posts Tagged ‘israel’

My promise to provide close-to-real-time updates of the Haifa conference was derailed by my lack of a Israeli power cord adapter to charge my laptop.  In truth, Israel mostly uses the same two-pronged circular plugs used throughout Europe, but I forgot adapters altogether, and it sounds better to say that I lacked a specific adaptor unique to one small country.  In any event, I now have to convert my combined typed and handwritten conference notes to a series of blogs in lieu of live-blogging.  

I will not attempt to give a detailed narrative of everything that was said during each presentation.  Instead, I’ll give you just a few of the highlights and insights I gained from each presentation.  What follows is the first installment.  You’ll observe that my notes became less detailed as the conference went on.  Please be assured that this is not a reflection of any diminishing quality in the content, but rather a symptom of my less-than-admirable work ethic.

But don’t fear, the conference was videotaped in its entirety, so very soon you’ll be able to enjoy all of the content as if you were there in person.  Check back for updates (but by now I’m sure you’ve learned, don’t hold your breath).  For now, you can find the conference materials here.

Panel 1: Class and collective redress – Global co-operation and developments

CLICK TO SEE THE VIDEO REPLAY OF THIS PANEL

University of California Hastings Law Professor Richard Marcus introduced a theme that would resonate throughout the remainder of the conference: the idea of US-style class actions being the “Big Bad Wolf” of collective redress procedures, at least as viewed by many in other jurisdictions considering similar procedures.  Marcus focused his comments not only on how class action practice has been changing in the US in recent years, but also on the explosion of multi-district litigation over the past 15 years.

The remaining panelists gave updates on developments in collective actions in other jurisdictions, primarily civil law jurisdictions, juxtaposing those developments against the “Big Bad Wolf”.  Professor Astrid Stadler discussed competing proposals being considered for a collective redress regime in the European Union, one proposed by the EU commission, which would cover consumer law only, and a competing proposal from ELI/UNIDROIT, which would be a general procedure not limited by subject matter.  Both proposals would include a limited opt-out procedure, where non-parties to the litigation could be bound by the outcome unless they opt out, as opposed to having to do something affirmative to opt in to the litigation.

Dr. Albert Ruda discussed collective redress for the unauthorized use of personal data in social networks, particular to developments in Spain.  He discussed a particular pending case against Facebook arising out of the Cambridge Analytica scandal.  He noted that the case will be decided under an existing statutory and procedural framework that is untested and confusing.  The court has yet to decide whether the case should be allowed to proceed as a collective action.

Professor Ianika Tzankova next offered insights about developments in the Netherlands.  She pointed out that Dutch law provides for an interesting combination of typical civil law collective redress procedures but also includes a mechanism for settlement of mass disputes that allows for class action settlements similar to those available under US law.  She described a new Dutch collective action law that has recently been passed by the legislature but has not yet come into force.

Professor Claudia Lima Marques discussed the rise of “model” cases resolution and the fall of “class actions” in Brazil.  Brazil has an existing collective action procedure, but a recently enacted law calls for issues common to repetitive cases to be identified by the courts and treated as model cases and put on a fast track for resolution, where the decision in the model case becomes binding on other cases involving similar issues.  She noted that the current law does not give any priority for collective actions to be chosen as model cases, so the effect is often that an individual litigant’s case is chosen as a model while collective actions are stayed.  A bill to give collective actions priority as model cases has failed.

Finally, following up on the “Big Bad Wolf” theme, Professor Miguel Sousa Ferro described Portugal’s collective action procedures as a “sheep in hippy clothing. . . . We’re the Prozac pill telling everyone to chill.”  Portugal’s collective action laws, Sousa Ferro pointed out, are very easy to use with no significant impediments.  A “paradise” in other words, which is why it’s amazing that nobody uses it.  This led into a more serious discussion about why collective action procedures like Portugal’s are in existence but put to limited use.  Economic viability of a lawsuit, challenges to recovering costs, and the loser-pays rule are all impediments to bringing collective actions, even when the available procedures technically make them possible.

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I’m very pleased to report that I will be moderating a panel on the use of statistics in class actions at the 3rd Annual International Conference on Dispute Resolution of Consumer Mass Disputes Collective Redress, Class Action, and ADR, sponsored by the University of Haifa in Haifa, Israel.  Our panel presentation will be just one of many excellent presentations on a variety of topics in the ever-evolving area of international class actions and collective redress.  The faculty includes titans of the bench and bar from a variety of jurisdictions, as well as top academic minds from universities around the world.  Registration is still open to attend this excellent conference in a beautiful venue.  Click the link below for more information:

https://lawers.club/wp-content/uploads/2019/03/Agenda_compressed.pdf

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In recent years, academics outside of the United States have made some of the most valuable contributions to the development of legal theory of class actions and other collective litigation.  Here are two examples of recent works by thought leaders in this area:

INDIVIDUAL STANDING IN CLASS ACTIONS (A LEGITIMIDADE DO INDIVÍDUO NAS AÇÕES COLETIVAS)

Author: Larissa Clare Pochmann da Silva (Master in Law in UNESA, Doctorate in Law student at UNESA and Professor of Complex Litigation and Civil Procedure at UCAM – Rio de Janeiro, Brazil)

Abstract (translated from Portuguese):

Individual Standing in Class Actions offers an important and interesting approach to the question of standing, one of the most important themes relating to the development of Brazilian class actions.

The first part the book summarizes research on foreign law, inquiring into the state of the art of collective protection throughout Latin America (Brazil, Argentina, Chile and Mexico), in the United States and Canada, in the European Union (Germany, France, England and Italy) and in Australia.  Part two offers a comparative analysis of these jurisdictions’ various approaches to standing.

Part three organizes the main objections to representational standing and argues for laws recognizing the standing of individuals to sue in a representative capacity, demonstrating the reasons for its relevance, and the important role to be played by lawyers in class actions.

Finally, the book addresses the question of the participation of the individual from various perspectives, seeking to offer a systematic framework for the standing discussion and proposals for the improvement of collective protection in Brazil.

The result is a work that contributes to the development and strengthening of collective action law in Brazilian and brings a new perspective of modernization and improvement of tools for access to justice and the effectiveness of the process.

Pochmann da Silva’s book is available at http://www.editoragz.com.br/produto.asp?prodId=199.

 

AN ECONOMIC ANALYSIS OF RELIANCE IN MARKET FRAUD AND NEGLIGENT MISREPRESENTATION

Authors: Alon Klement and Yuval Procaccia (Interdisciplinary Center (IDC) Herzliyah – Radzyner School of Law, Israel)

Abstract:

A deeply entrenched principle in the law of fraud and negligent misrepresentation provides that damages can be recovered only upon a showing of reliance. To prevail, plaintiffs must not only establish the mere falsity of a statement, but also show that they had acted upon the statement and sustained injury as a consequence.

Despite the intuitive appeal of this principle, this paper argues that the reliance requirement ought to be abandoned. Harm can be caused by a misrepresentation without reliance, and recovery for such loss should not be barred. When a firm misrepresents an attribute of a product, its price in equilibrium typically rises. The inflated price is an injury caused to all consumers, relying and non-relying alike. A rule restricting recovery to only relying consumers results in inadequate deterrence of the firm, which in turn spurs a host of inefficient effects: it may distort allocative efficiency; encourage investments by firms in the production of fraud; induce investments by consumers in self-protection efforts and in detrimental reliance investments; and prompt competing firms to invest excessively in signaling. Furthermore, it undermines deterrence by erecting a substantial barrier to private enforcement through class actions.

While the discussion focuses on consumer markets, it applies more broadly to other markets and other market structures. We explicitly discuss its extension to security markets, in which the requirement has been famously revoked. While the analysis supports existing policy in the domain of primary security markets, it does not do so in the context of secondary markets.

Klement and Procaccia’s article is available for download at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2372922

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