Overview North America Europe Australia

Africa Asia Oceania South America

OVERVIEW

Increasingly, countries worldwide are motivated by powerful social policies to adopt methods of group litigation. The foremost motivation toward group litigation is the recognition that persons with small, or even modest-size claims, cannot afford access to justice. Thus, unless countries cultivate fair and efficient methods for collective litigation of similar claims, justice will not prevail for large segments of society. Court systems, too, need to find efficiencies for managing caseloads of similar claims among growing populations. Additionally, group litigation has the capability to deter wrongdoing and require “behavior modification” in ways that the threat of individual claims by themselves cannot.

Different countries use a variety of terms for group litigation: “class actions,” “representative litigation,” and “group litigation” are among them. All these methods have in common the desire to strike a fair balance between the efficient management of similar plaintiff claims and the protection of defendants’ due-process rights.

More than 30 countries have now adopted systems of group litigation, and other countries are actively debating enactment of such procedures. In some of the countries, the United States for example, class action practice has been active for many decades. In many other countries, such laws are new or merely a few years old.

No country possesses all the answers to group litigation. In the United States, class action practice is robust, yet the proliferation of cases sometimes includes marginal claims and attorney fee–driven litigation — what some in the international legal community refer to as the “American problem.” Concerned in part by what they perceive to be occurring in American class litigation, many countries use the following and other methods to restrain group litigation:

• The limitation of representative litigation to actions for injunctive and declaratory relief
• The restriction of standing to consumer associations and foundations that may lack adequate funding or motivation
• Prohibition of contingency attorney fee contracts; the requirement that the losing party pay the winning party’s costs and attorney fees (sometimes referred to as the “loser-pays rule”)
• The favoring of the opt-in method (whereby class members need to choose to be included in the claim) instead of the opt-out method (whereby class members are automatically included in the claim unless they indicate by reply to the notice that they want to be excluded)

These restraints produce a higher level of decorum in group litigation, but they often fail to incentivize plaintiffs’ lawyers to bring group cases: the doors to the courthouse effectively remain closed to many persons.

The demands of group litigation place a premium on judicial management of complex cases to expedite resolution for the parties and to efficiently use the court’s resources. Judicial management strategies are evolving, using the following and other methods:

• Proactive judicial management with frequent case conferences
• The identification and separate adjudication of key issues early in the case
• The streamlining of fact-finding discovery
• The use of alternative methods of common proof at trial; these include increased use of experts to prove common issues, use of statistical proof, and random sampling of claims

The growing literature on complex case management includes the venerable Manual for Complex Litigation, Fourth (2004),published by the Federal Judicial Center in the United States (http://www.fjc.gov).

The summaries of class action law presented on this Web site reflect the law current as of May 2008. For updated information, see the sources mentioned and check with the contacts given.

© Copyright 2008 Class Action Publishers, Inc.