It is fair to say that I have some first-hand knowledge of the so-called excesses of the class action system in the US, having been one of the country’s leading plaintiffs’ class action lawyers from 1966 to 1980. Many of these claims are nonsense, and what isn’t can be controlled. One does not have to change the cost-shifting rules, permit contingent fees, have jury trials, institute treble damages or run the risk of having claimants lose control of the proceedings – the last danger being fixed by strong case management. Yet these are the hobgoblins that stand in the way of effective collective redress.
The European Commission’s (EC’s) White Paper on collective redress for breaches of antitrust rules recommends the use of opt-in class actions, or representative actions provided they are brought by a designated consumer organisation. But every expert and honest practitioner in the field knows that the opt-in class is totally incapable of providing effective collective redress. At the same time, the EC recommends the adoption of a ‘passing on’ defence which, absent effective collective redress, will allow price-fixers and the other antitrust violators to escape civil liability. Perhaps the White Paper is better called The Great Escape.
