INTERNATIONAL LAW. PARMA UNIVERSITY International Business and Development International Markets and Organizations Law Prof. Gabriele Catalini. CLASS ACTION: U.S. AND ITALY APPROACHES. DEFINITION.
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International Business and Development
International Markets and Organizations Law
Prof. Gabriele Catalini
In law, a class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued.
Medieval Europe: England 1125: record of a few individuals' representing a large group of people in legal suits.
First Suit: 1309 a Discart vs. Otes case.
Rule 48: 1833: U.S. law first introduced group litigation
Rule 38: allowed absent parties to be represented as members of the prosecuting class.
Rule 23: Rule 38 became Rule 23 and "opt out“ was introduced
Private Securities Litigation Reform Act” of 1995: new rules in securities class action lawsuit.
Class Action Fairness Act of 2005: expansion of federal jurisdiction over many large class-action lawsuits in the United States.
Class action lawsuits may be brought in federal court if the claim arises under Federal Rules of Civil Procedure Rule 23 and 28 U.S.C.A. § 1332 (d)
It is also possible to bring class action lawsuits under state law
Typically, federal courts are thought to be more favorable for defendants and state courts more favorable for plaintiffs.
1Numerosity- the class must be so large as to make individual suits impractical
2Commonality - there must be legal or factual claims in common
3Typicality - the claims or defenses must be typical of the plaintiffs or defendants
4Adequacy of Representation - the representative parties must adequately protect the interests of the class
5.common issues opposed to individual fact-specific conflicts between class members and the defendants
6. class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand
Since 1938, many states have adopted rules similar to the FRCP (Federal Rules of Civil Procedure)
However, some states have civil procedure systems which deviate from the federal rules
Some states, do not provide for any class actions, while others, limit the types of claims that may be brought as class actions.
Step 1: drafting a complaint
filing it in court
"serving"on the defendants
Step 2: defendants answer or
challenge the complaint
Step 3: a period of "discovery" takes place
Step 4: the plaintiff files motion to
certify a class action. the defendants will file
objections to certification.
the Court will have a hearing.
If plaintiffs win, the case will be certified.
Step 5: Notice about member’s rights and
deadlines for "opting out"
Step 6: Trial or Settlement
The European Consumer Commissioner:
“The old continent will never “go down [the American class action] road” with its “toxic cocktail” of contingency fees, punitive damages, and pretrial discovery”.
1970 - the first Italian debate took place
2010, January 1st - the new consumer class action law became effective
Italian consumer associations announced they would launch class actions for some 450,000 small Italian investors who claim they have been “cheated” by banks who sold them Argentinian bonds
The Italian law has no retroactive effect, The Class Action Act allows claims based on torts occurring
after August 15, 2009
In less than a year, six significant class action lawsuits have been filed against both Italian and foreign defendants, making Italy’s number of class action lawsuits high in comparison to other countries with recently introduced class action laws.
At least two of the cases seek extremely high damages, totaling €6.25 billion together (and some numbers suggest that damages sought could exceed €10 billion).
The class action law is the first law in Italy to provide for monetary damages in a class action, as previous laws only allowed for injunctions, marking extraordinary change in the Italian litigation system.
These lawsuits are limited to four types of cases:
anti-competitive (anti-trust) practices,
and unfair commercial practices.
The law differs from the U.S. Federal Rule of Civil Procedure 23:
in a number of areas, e.g., more restrictive class certification process;
an “opt-in” basis;
absence of punitive damages.
Consumer associations are proactively looking for class action opportunities and are advertising to attract and “recruit” potential plaintiffs. But they are not actual plaintiffs.
So it is not clear:
HOW and AT WHAT RATE the consumer associations will be “compensated” for their class action work;
HOW and HOW MUCH they will pay the consumers;
Do the consumer associations will advocate the specific interests of the class of plaintiffs they represent, or will pursue their own interests and/or the interests of their members as a whole?
WHO MAY FILE?
1° Stage: Admissibility
The phase ends with a court decision
Publicity and opt-ins
2° Stage: Liability and Damages
The court specifies: