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Posts Tagged ‘spanish class action’

Berta Baz published this article yesterday in Money Market UK, which may be of interest anyone who tracks developments in class and collective actions abroad.  The article discusses the tension between a collective action notice procedure and the Spanish Data Protection Act.

According to the article, a Madrid court issued an order requiring the Spanish bank BBVA to produce electronic customer data to consumer association ADICAE so that the association could solicit customers to opt in to a collective action against the bank.  The bank produced the data to the court but asked that the data not be passed on to the association until a request for an injunction is considered by the Constitutional Court.  The question apparently to be raised there is whether Spanish data privacy law prevents an order requiring a company to produce private data to the plaintiff representative in a collective action so that the plaintiff can give notice of the opportunity to opt in the lawsuit. 

Like many civil law jurisdictions in Europe, Spain allows collective litigation only on an opt-in basis (would-be group members have to affirmatively opt in to be bound).  (For more on Spanish Collective Litigation, see this article by Pablo Gutiérrez de Cabiedes Hidalgo, available courtesy of the Stanford Global Class Actions Exchange).

Baz points out that there is a practical alternative to requiring the defendant to turn its customer data over to the plaintiff in a collective action that arguably does not violate privacy rights: requiring the defendant to give the notice to the class members directly.  It is unclear, under either procedure, who bears the cost of sending the notice.

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I promised myself that I would turn to more highbrow class action analysis after my Bigfoot manifesto over the weekend, but of course the most interesting legal news today was the case of the Knights Templar suing the Pope, so serious class action commentary will have to wait another day.  Plus, I heard the story on NPR, so that makes it real news, right?  Apparently, an association in Spain claiming that its members are descendants of the fabled Knights Templar, of Da Vinci Code fame, have filed a lawsuit in the Spanish courts against Pope Benedict XVI seeking an apology from the Pope and an order recognizing that the Church unlawfully seized assets belonging to the order when it was disolved more than 700 years ago, which are now worth an estimated $100 billion Euros.  The case is now on appeal, after the trial judge reportedly declined to accept jurisdiction, concluding that events that occurred 700 years ago fall within the jurisdiction of historians, not the courts.

In addition to this tiny statute of limitations problem, the case would seem to present a host of other interesting issues, including the problem of how the association’s members would prove that they descended from original members of the secretive Catholic order, whether there are any freedom or establishment of religion issues implicated under Spanish law by a civil claim against the Pope, and whether the Pope has any sovereign immunity protection as the elected monarch of the State of the Vatican City.

But the big question for ClassActionBlawg.com is whether this case is some sort of representative action.  Unfortunately, the news reports don’t provide enough detail to answer definitively whether the case is being pursued in a representative capacity.  But this article on collective actions in Spain, available at the Stanford Global Class Actions Exchange, provides some insight on the possibilities   According to that article, Spanish procedural law does not permit “class actions” brought by individuals, but does allow certain associations to bring representative claims on behalf of their members, similar to the similar to the associational standing doctrine that was applied in a recent case in the US against the Veteran’s Administration.  However, with at least one of the possible mechanisms for representative actions, there is a requirement that “most” of the members of a particular group of affected persons be part of the group bringing the action, a requirement that the authors point out necessitates a threshold proceeding in which the group must prove the number of persons affected.  This requirement would appear to be a bit of a hurdle for a group claiming to consist of the descendants of the Knights Templar.  Alternatively, the article notes, associations are independent legal entities with their own rights and may sue on their own behalf.  It is unclear whether limiting the case to claims brought exclusively based on the association’s own rights would limit the potential recovery.

For a summary on the regulations affecting collective litigation in Spain, see this summary, also available at the Stanford Global Class Actions Exchange.

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