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Page 1: Collective redress  in  the Netherlands

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Collective redress in the NetherlandsFlip Wijers - 13 November 2012

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Collective litigation

• A foundation or association can initiate collective litigation– Existence of similar interests that the plaintiff actively aims to protect;– No extensive description of the ‘class’ is required; – No prior decisions regarding the illigality of the defendants actions is required;– Scope: injunctive and declaratory relief available, no claim for monetary damages;– Binding effect is limited;

• Alternative instruments of collective redress– Alternative instruments are available but often not practical;

• Costs of collective litigation– Not necessarily (much) more expensive than individual litigation;– Loser pays (a little), no contingency fee scheme allowed;

• Prejudicial requests to Dutch Supreme Court

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Collective Settlements - I

Dutch Act on the Collective Settlement of Mass Claims Amsterdam Court of Appeal can declare a settlement binding on a class,

with a subsequent opt-out possibility for injured parties; Four stages: settlement agreement, petition, opt out period, distribution of

funds;

The Court will test: Whether the group of injured parties is sufficiently sustantive and

identifiable; The representativity of the foundation or association; Whether notification requirements have been met; The reasonableness of the settlement;

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Collective Settlements - II

Opt out possibility Minimum period of three months; Settlement agreement may provide that if too many injured parties opt out, the

defendant can withdraw from the settlement;

Jurisdiction and notification in international settlements Case law shows that the treshold to accept jurisdiction is low; Notification requirements align with applicable treaties and conventions;

Extraterritorial effect Brussels I Regulation will assist in international enforcement;

Interaction with US settlements post Morrison vs. NAB ‘Foreign purchasers’ are banned from US class actions. The Netherlands is an

alternative for certification of class action settlements.


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