Lawyers for defendants and plaintiffs are now both willing to place wagers these days on the Netherlands becoming the next hot spot for overseas class action cases.
Showing confidence in the odds, large corporate defense firms such as Dentons, Fieldfisher, Hogan Lovells and most recently Littler Mendelson have expanded their legal rosters in Amsterdam and engaged local litigation talent through lateral hiring, negotiating mergers and building alliances with Dutch firms.
“It’s obviously much broader than that, but it’s one of the reasons Dentons was interested in the Dutch market,” said Wendela Raas, country managing partner at Dentons Boekel, about the growth prospects of class actions in the Netherlands.
Dentons, which earlier this week absorbed into its global network a leading Hawaiian firm, announced a little more than a year ago a combination with Boekel, a 70-lawyer firm based in Amsterdam. Hogan Lovells, which moved into new office space in the city earlier this year, has long had a presence in Amsterdam.
“We’ve had a presence in the Netherlands for many years. But I would say it’s become a more important jurisdiction for international dispute resolution,” said Hogan Lovells partner Marc Gottridge, global head of the firm’s financial services litigation practice. “It’s not like we suddenly went out and hired a team in Amsterdam. We have an existing financial services practice, but an increasing percentage of their work could be class and collective actions.”
A confluence of events has made the Netherlands appear to be a likely future home to more of such cases. Dutch lawmakers recently proposed to clarify the rules governing class actions, while a pilot English-speaking court is set to open in the country. More generally, the so-called Brexit vote has prompted lawyers to seek alternatives to U.K. courts in settling international claims. As a result, lawmakers in the Netherlands are more optimistic about attracting international legal business.
White Plains, New York-based Lowey Dannenberg is one firm heading the charge into Holland by the U.S. plaintiffs bar. In the past two years, lawyers from Lowey Dannenberg have initiated class actions in the Netherlands related to allegations that banks manipulated the benchmark London Interbank Offered Rate (Libor) and a massive bribery scheme at Brazilian oil giant Petrobras. To pursue those cases, Lowey Dannenberg formed an alliance two years ago with Dutch firm Lemstra Van der Korst.
Lowey Dannenberg chose to pursue those cases in the Netherlands following a 2010 ruling from the U.S. Supreme Court—Morrison v. National Australia Bank—that barred domestic and foreign plaintiffs suing foreign securities issuers for losses from pursuing those claims in U.S. courts. In order to bring such cases, U.S. plaintiffs lawyers had to look elsewhere.
“We were looking to see where it would be feasible. The Netherlands had the least things wrong with it,” said Lowey Dannenberg partner Vincent Briganti, who is representing a foundation (a necessary structure for bringing class action claims in Dutch courts) and other non-U.S. investors suing over alleged Libor manipulation.
Briganti added that Dutch courts offer plaintiffs the advantage of not requiring a loser to pay or insist on cost-sharing, unlike other European jurisdictions, including the U.K. But he noted that Lowey Dannenberg’s litigation in the Netherlands remains a gamble on many fronts.
“This is like the Wild West and there is some down side risk,” Briganti said. “The courts could take a very narrow view of jurisdiction.”
Defense lawyers also were uncertain about whether Amsterdam will transform itself into a haven for effective global class action resolutions. Too many unknowns remain, they said.
“This is still rather theoretical,” said Hogan Lovells litigation counsel Carlijn Van Rest in Amsterdam.
There are, however, a number of reasons for both plaintiff and defense counsel to remain hopeful that the Netherlands will emerge as a venue for future resolutions. Unlike the U.K., the country’s courts do not restrict class actions to specific types of damages. And Dutch lawmakers have proposed creating an opt-out model for class actions, allowing for potential worldwide class settlements and potentially more comprehensive liabilities relief for defendants.
Hogan Lovells’ Gottridge described that pending class and collection action structure legislation as having the potential to create “something close to real U.S.-style class actions.”
Ultimately, the Netherlands could become a popular locale for class and collective actions if the plaintiffs lawyers initiating those cases have a clear path to meaningful compensation for their pursuits, just as they do in the United States.
That is why lawyers from both sides of the bar are awaiting a ruling from a Dutch appellate court about a proposed $1.3 billion settlement involving foundations representing shareholders of Ageas, the successor of Belgian and Dutch financial services giant Fortis, stemming from a financial crisis bailout. (The American Lawyer wrote about the underlying suit in 2011.)
The Amsterdam Court of Appeal previously denied approval for the proposed settlement and asked for more information to understand what amounts would go to lawyers, litigation funders and claimants.
“It was the first time that the Court of the Appeal was critical about that,” said Hogan Lovells’ Van Rest.
In the same vein, Dutch lawmakers recently added an amendment to their proposed legislation for class and collective action structures. The new amendment explicitly states that a foundation representing the claimants and a foundation’s lawyers—not litigation funders—must be the decision makers when its come to developing legal strategies and policies during class and collective action litigation, Van Rest said.
For plaintiffs lawyers looking to Dutch courts for potential riches, such developments only serve to make them more aware of their pioneer status.
“Class action is a foreign concept in a foreign land,” Briganti said.