We’ve been hearing distant thunder for a long time. One of us wrote nearly two years ago about the possibility that American-style class action litigation might soon rear its ugly head in Europe. See Mark Herrmann and Richard Elks, “Jumping the Pond,” Pharmaceutical Executive (Sept. 2005). But we were more than a little spooked when we searched a few legal blogs this weekend to see what was in the news.
Over at the Torts Prof Blog, Bill Childs tells us that the German Constitutional Court recently struck down as unconstitutional a law barring contingent fees in all cases. Anthony Sebok writes in the underlying article that the German court held that an absolute ban on contingent fees interfered with both the client’s right of access to the courts in civil cases and the lawyer’s right to practice her profession freely. The court thus required the German Parliament, within a year, to amend the law banning contingent fees.
We then surfed over to the Product Liability Prof Blog. (We didn’t miss the fact that an awful lot of these blogs are written by professors. The longer we’re at this, the more we realize that you have to be nuts to engage in the full-time private practice of law and blog in your spare time. But that’s for another day.)
Anyway, David Prince reports that the new European Union Commissioner of Consumer Affairs told the European Parliament that she’s considering rules that would allow “collective redress” in the EU. According to the press release, Commissioner Meglena Kuneva wants to build trust in the European Single Market. A critical part of building that trust is apparently to allow “collective redress mechanisms for consumers for infringements of consumer protection rules and breaches of the EC anti-trust rules.”
We were pretty upset by now, but we made the mistake of surfing over to pointoflaw.com, where we learned that “[c]lass-actioneer Michael Hausfeld” has hit “London in a whirl of publicity.” And the underlying article there, from The Sunday Times Online, tells us that Hausfeld is “opening a London office and is preparing an aggressive assault on British companies.” The Times reports that, in Britain, “class-action cases traditionally have a terrible ‘ambulance chaser’ reputation and have largely proved unsuccessful. However, Hausfeld believes this is about to change.”
We don’t know precisely when this storm is going to hit, and we don’t know its precise force, but it’s coming. As more countries allow lawyers to finance litigation (through contingent fee arrangements) and ensure that huge amounts of money can be placed in dispute (by aggregating claims), we’ll see more and more litigation that looks like the American model. We can only hope that other countries will study what we’ve done, learn from our mistakes, and develop systems that are better able than ours to separate the legal wheat from the chaff.
And, next weekend, we’re sticking to college hoops for entertainment. Reading what the bloggers have to say just isn’t much fun at all.