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Using a large sample of securities class action lawsuits, we examine the association of law firm market share with litigation outcomes. We find lawsuits with top market share plaintiff law firms are less likely to be dismissed and take longer to be dismissed and to reach settlement. In contrast, lawsuits with top defendant law firms reach settlement faster. Top market share defendant law firms are neither associated with suit dismissal nor with speed of dismissal. Finally, neither top plaintiff nor top defendant law firms are associated with the cash and/or total settlement amount. These results suggest plaintiff and/or defendant law firm market share is an important factor in securities class action litigation outcomes. The results favor the view that plaintiff and defendant law firms with a higher market share are more reputable and better serve the interests of their respective clients in securities class action litigations.

The paper is devoted to some issues associated with a class action. The subject matter of the study is relevant in light of a comprehensive reform of this institution in the arbitration procedure and the emergence of class actions in civil procedure. The author highlights that class action proceedings cannot be considered as an equal alternative to joinder. Thus, in the author’s view, along with quantitative criteria some other criteria should be used to distinguish class action proceedings from joinder. The author investigates the issue of competition between the class action and individual claims. This problem is resolved in procedural codes in different ways. The paper focuses on some problems associated with the grounds and order of replacement of the claimant representing parties involved. Taking into account that the law allows considering homogeneous claims in collective proceedings, the author concludes that it is necessary to elaborate more detailed rules relating to the case where the class action involves a set of individual claims brought by each participant.

Class actions, originally developed in the United States, have recently spread internationally. Not every country that has emulated the US’s style of class actions has seen the class action tool being frequently used. Korea, one of the civil law countries that adopted a US-style class action in securities law more than 10 years ago, has a securities class action that serves as an excellent example of a legal transplant that is underutilized. Over the last 13 years since the Securities-Related Class Action Act (‘the SCAA’) was enacted in Korea in 2004, only 10 class action suits have been filed. Instead, securities damage suits in the form of non-class actions (‘securities damage suits’) are more frequently used in Korea. In this article, I aim to fill the gap in the literature by empirically researching why the securities-related class action is seldom used in Korea, focusing on the perspective of the plaintiffs’ lawyers and considering securities damage suits as a substitute. To accomplish this, the study relies on a mixed-methods research approach: (1) interviews with plaintiffs’ lawyers and plaintiffs themselves and (2) a content analysis of court decisions on securities class action suits and securities damage suits. This research finds that risk-averse plaintiffs’ lawyers, facing large costs in bringing securities class action suits, consider bringing securities class actions only for cases that have a higher possibility of winning and enforcement. This research provides insights into the conditions for successful legal transplants to other countries considering a US-style class action as an option.

The opt-out class action involves a unique participant, viz, the absent class member whose claim is prosecuted by a representative claimant, who does not opt-out of the action nor do anything else ...

Custodial suicide is a foundational concern for correctional systems. The incarcerated population is at an increased risk for suicide as compared with people living in the community. Sufficient suicide prevention is a critical component of a constitutionally adequate system of correctional mental health care. The remedial phases of class action litigations have animated improvement in suicide prevention in many correctional systems across the United States. In the current climate, many legal obstacles make it more difficult for plaintiffs to prevail in such cases, but it is expected that advocates will find novel approaches in response to these legal hurdles, such as greater reliance on state law remedies, and will seek to expand the scope of potential actions in emerging areas such as immigration detention. Defendants and courts will, in turn, need to respond to these changes. This article explores the history of relevant litigations, and the legal obstacles currently faced by plaintiffs, as well as future directions the authors consider will likely be taken. Practical issues such as appropriate measurement of improvement in the area of suicide prevention are also explored.

The objective of this research is to determine, about the class action, the lack of evidence, due to the negligence of the plaintiff, a lot of class action was declared dismissed, which prevent back to sue. The methods used were: inductive and deductive, based on the analysis of case law and interviews with judges of the, North Lima Court and North Lima District Attorney from the analysis of judgments of class action’s cases; also method used was qualitative to analyze the different approaches taken by the jurisprudence and law doctrine. In addition, it will also seek to establish the active procedural legitimacy of public institutions that are in a position to defend diffuse and collective interests within our procedural system. It has been found that a lot of judicial procedures, that were analyzed above, were dismissed, because the lack of evidence to support the claim suitable, causing harm to the society. Besides, a lot of Constitutional Court’s precedents are not duty to obey them for the judicial branch, and also we have the fact about of the lack of regulation in the law, this situation implies a minimum liability of the justice to point out that the court had expired the applicant on a common cause another member of society can sue again, for it must be regulated.

After years of debate and several failed attempts by various political parties, Belgium enacted its first general Class Action Act on March 24, 2014 (hereafter BCAA). The Act reflects views commonly held by European policymakers on the desirability of class actions. Its scope is limited to the enforcement of an exhaustively listed number of specific statutory provisions, mainly dealing with consumer protection. Actions can only be brought by certain representative organizations, recognized as such by the government, not by ad hoc lead plaintiffs. Only traditional consumer protection groups have been recognized, while Deminor, the most important plaintiff in collective shareholder litigation, has been excluded. The presiding judge has to decide whether the class action will proceed on an opt-in or opt-out basis.

China has two major judicial reliefs against large-scale rights’ infringements. One, established in 1991, is a mass private interest action under which the victims of mass harm can opt-in and join the plaintiff class in representative litigation. The plaintiff class selects their representatives who participate in the trial. The plaintiffs are bound by the judgment. The victims who did not join the plaintiff class may sue separately, but in separate litigation the class judgment is usually applied as a ‘model-litigation’. This type of judicial relief was not sufficiently effective, which led to legislative changes and the establishment of another type of collective relief. In 2012, a new form of collective relief, called ‘public interest litigation’ was established. In public interest litigation the procurator and some other legally authorized social organizations act as plaintiffs in cases of environmental harm and mass infringement of consumer rights. An individual consumer is not allowed to file a public interest lawsuit, in spite of the fact that the legally authorized plaintiff entities often lack motivation to file such claims. Apart from these two means of collective redress, this contribution also addresses the main features of a new, opt-out type of class action established by the Securities Law at the end of 2019.

The 2020 Private Antitrust Enforcement Report provides various empirical analyses of antitrust class actions litigated in federal court from 2009 through 2020. It addresses various topics, including the number of antitrust class action complaints filed each year, the amount of time on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, the total settlement amounts in each year and overall, the law firms that represented plaintiffs and defendants in antitrust class action settlements, and the cumulative totals for claims administrators involved in the settlement process. The Report also distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to provide similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will offer a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions, as well as for actions related to enforcement of the antitrust laws through private class actions.

In a classic securities fraud class action materially false or misleading information is disseminated into an efficient marketplace, resulting in an artificial market price that causes an investor to purchase securities at an inflated price. A corrective disclosure eventually signals the truth to the market and the investor suffers a loss when the share price declines. To prevail on a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission, the defrauded plaintiff must prove loss causation, defined as a causal connection between a defendant's fraud and the plaintiff's economic loss. The analysis in this Article shows that loss causation does not exist, and the defendant escapes liability, if scientists could not ex ante predict the disclosure event that revealed the fraud and corrected the inflated market price. There is no liability, even if all other Rule 10b-5 elements are satisfied. This theory may be relevant in cases where a false or misleading statement that distorted a company’s stock price is corrected by an event such as an unpredictable drug reaction or a novel computer security threat.

The modern securities fraud class action lawsuit rests on a legal fiction. Plaintiffs are able to bring claims together and avoid proving individual reliance because over thirty years ago, the Supreme Court assumed that almost all investors purchase and sell securities based on their belief that the market price is accurate. In today's world of short sellers, options traders, algorithmic traders, and institutional investors with more valuation tools than the issuers themselves, that assumption cannot hold. These atypical traders, particularly short sellers, are becoming more and more visible in class actions as lead plaintiffs and lead plaintiff candidates, and sometimes as defendants. Courts have not decided exactly what to do with short sellers in securities fraud cases, and this Article is one of the first to create a theoretical and normative framework for atypical investors in the securities fraud paradigm. Building on a dataset of all 10b-5 cases filed in federal court in 2017, this Article explores the questions of when and whether short sellers and other atypical traders should benefit from the securities fraud class action structure.

Examine more deeply regarding Class Action Filing in Indonesia which is regulated in the Supreme Court Regulation No.1 of 2002., in this analysis one of the decisions is 262.Pdt.G / Class.Action / 2016 / PN.Jkt.Pst, The decision contains a group of residents of DKI Jakarta Selatan, consisting of several groups, jointly filing a lawsuit against the law (1365 BW) against related agencies which are deemed to have caused material and immaterial losses due to the normalization of the Ciliwung River. The research used is normative descriptive and literature study. In this study will examine the Considerations of the Panel of Judges regarding the Guarantee of Protection of Land Rights based on the Basic Agrarian Law and the Law on Land Acquisition. The result of this research is that the Judge's Decision does not accommodate the Plaintiffs, so that the aspects of justice that live in the eyes of the community are not fulfilled. Keywords: Lawsuit Group Representatives, Judge's Consideration, Land Rights.

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void. Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016. With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed. With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

In determining its universal development agenda, to be implemented between 2016 and 2030, the United Nations established 17 Sustainable Development Goals (SDG). Among these, SDG 16 aims to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Nevertheless, as the failure of the World Bank-inspired “rule of law” reform efforts demonstrates, achieving this laudable goal in extremely unequal countries is a Herculean challenge. I believe, however, that class action could contribute in a decisive way by (i) benefiting all parties interested in a dispute’s outcome, including those groups systematically excluded; (ii) discouraging unfair access to scarce resources; (iii) helping to deter illicit conduct; (iv) presenting demands in one voice, thus economizing public resources and stimulating faster judgments; and (v) contributing to a level playing field for plaintiff and defendant. By presenting an in-depth case study of a landmark class-action litigation for day-care center vacancies in Sao Paulo, I intend to highlight this legal tool’s strengths and weaknesses and to propose a better institutional design.

When firms collude and charge supra-competitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.

For decades, courts and commentators have been aware that the potential for conflicting interests among the class representatives, class counsel, and absent class members is inherent in the class action device. Notwithstanding this realization and a substantial amount of scholarly and judicial commentary on class conflicts, one kind of conflict has not received due attention: the conflict that inevitably arises when class counsel also represents class members as individuals. We demonstrate that this conflict—so common to be almost invisible—arises from the very beginning of a putative class representation, and may create a fraught situation for a lawyer concurrently representing both the class (or putative class) and the class representative individually. We examine three situations in which these conflicts are most acute: holdouts (where the class representative holds out against a settlement that would benefit the class as a whole), sellouts (where the class representative could benefit personally by settling individual claims only), and payouts (where the class representative could use class action procedures to benefit personally at the expense of the class). We canvas potential solutions and conclude that radical ones—for instance, banning concurrent representation of a class and a class member individually—would do more harm than good. We therefore recommend more measured responses, primarily: (1) greater disclosure of risks to individual clients by their attorneys, (2) greater judicial oversight, and (3) an amendment to Rule 23 of the Federal Rules of Civil Procedure, or its advisory committee notes, calling on courts to police the types of conflict we identify.

In this paper, we provide qualitative data on the class actions regime and commercial litigation funding in Australia, based on interviews with experienced legal practitioners from the Federal Court Class Action Users’ Committee and the Law Council Class Actions Sub-Committee. Participants discussed their views on the current operation of the class actions regime; the way in which commercial litigation funding is working; transaction costs and delays associated with class actions; the merits of claims and defences; and ethical issues arising out of the conduct of plaintiff and defence firms, funders and counsel. Practitioners identified various problems associated with class actions and litigation funding and outlined their thoughts on possible solutions to those problems.

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down.

2020 was a big year. From a socio-legal and political perspective, many legislatures and judiciaries around the world have dealt with issues arising from national elections, a global pandemic, and collective action reform. In Australia, the parliamentary enquiry into litigation funding for collective actions dominated the legal headlines. In New Zealand, the Law Commission’s review of class actions and litigation funding commenced. Against this background, it is no surprise that one of the most important decisions in New Zealand’s class action jurisprudence was released by the New Zealand Supreme Court in November 2020. In Southern Response Earthquake Services Limited v Ross, the New Zealand Supreme Court unanimously allowed an opt-out class action to proceed for the first time despite the lack of a specific statutory regime to govern the management of class action litigation. In layman’s terms, an opt-out class action occurs where the plaintiff class includes everyone who meets the class certification criteria unless those individuals expressly choose to opt-out. In contrast, an opt-in class action only includes individuals in a plaintiff class who expressly opt-in to a proceeding. The implications of Southern Response are immense.

Investors tend to litigate large stock price declines, i.e., file “stock-drop lawsuits”. Enterprising plaintiffs’ attorneys seek to take advantage of the stock market declines that have accompanied the COVID-19 outbreak in early 2020 by filing class action lawsuits. However, it is less clear whether the ex-ante threat of security class actions can deter stock price crashes. To address this question, we exploit the 1999 ruling of the Ninth Circuit Court of Appeals that discourages security class actions as a quasi-exogenous shock, and find that reducing the threat of security class actions leads to a significant increase in stock price crash risk. This effect is more pronounced for firms faced with higher litigation risk, with worse earnings quality and weaker monitoring from auditors, and is partially driven by decreased timeliness of bad-news disclosure. Our overall findings highlight the importance of security class actions in constraining bad-news hoarding and maintaining market stability.

This paper examines contests among plaintiffs’ firms to become lead counsel in securities fraud class actions. We study lead plaintiff appointments in all federal securities class actions involving a disclosure claim from 2005 to 2016. We find that law firms’ decisions to combine correspond primarily with the existence of relationships—either with clients or between firms—rather than case characteristics. In the case of initial motions, the presence of a relationship between attorney firms and certain institutional investor movants for lead plaintiff corresponds with motions that propose multiple lead counsel. We also find that although the typical class action has several lead plaintiff motions, many of these motions will either withdraw or combine before the judge chooses the lead plaintiff and lead counsel. When motions combine, the number of selected lead counsel typically increases. The existence of prior relationships between law firms corresponds with the decision to withdraw or combine. Finally, we find that the correspondence of prior relationships between law firms on decisions to withdraw or combine does not increase with our proxies for the importance of synergies between law firms.

In this chapter we discuss various types of civil law cases with a focus on personal injury torts. As the legal terminology in the civil law is very different from the terminology in criminal law, we spend time going over definitions to better understand the cases we present as examples of what roles psychologists play. For example, the person who brings the lawsuit is called the plaintiff (not the state as in criminal cases) and the person accused of causing harm is called the defendant (the same as in criminal cases). The case usually has two parts: (1) the liability or proof that the defendant had a duty to the plaintiff and caused (2) harm or damages by what they did or did not do. It is not enough just to assess the plaintiff’s damages but must also include the nexus or proximate cause of those damages. The burden of proof is different from criminal cases in that it only takes a preponderance of the evidence or 51% in most cases. In some civil cases, the burden of proof is clear and convincing evidence which is somewhere between preponderance and the criminal standard of beyond a reasonable doubt but not usually in personal injury cases. We discuss class action cases where a group of plaintiffs’ cases who all claim the same injury are grouped together like when the tobacco industry was found liable for intentional and reckless behavior in not warning smokers of the danger if they used their product as they knew or should have known that danger but kept it secret. We also discussed the issue of psychological and physical damages and the movement toward compensating them equally in the law.

Class actions are supposed to allow plaintiffs to recover for their high-merit, low-dollar claims. But current law leaves many such plaintiffs out in the cold. To be certified, classes seeking damages must show that, at trial, “common” questions (those for which a single answer will help resolve all class members’ claims) will predominate over “individual” ones (those that must be answered separately as to each member). Currently, many putative class actions in important doctrinal areas—mass torts, consumer fraud, employment discrimination, and more—are regarded as uncertifiable for lack of predominance. As a result, even plaintiffs with valid claims in these areas have little or no access to justice. This state of affairs is exacerbated by a line of Supreme Court cases beginning with Wal-Mart Stores, Inc. v. Dukes. There, the Court disapproved of certain statistical methods for answering individual questions and achieving the predominance of common ones. This Article proposes a first-of-its kind solution: A.I. class actions. Advanced machine learning algorithms could be trained to mimic the decisions of a jury in a particular case. Then, those algorithms would expeditiously resolve the case’s individual questions. As a result, common questions would predominate at trial, facilitating certification for innumerable currently-uncertifiable classes. This Article lays out the A.I. class action proposal in detail. It argues that the proposal is feasible; the necessary elements are precedented in both complex litigation and computer science. The Article also argues that A.I. class actions would survive scrutiny under Wal-Mart, though other statistical methods have not. To demonstrate this, the Article develops a new, comprehensive theory of the higher-order values animating Wal-Mart and its progeny. It shows that these cases are best explained as approving statistical proof only if it can deliver accurate answers at the level of individual plaintiffs. Machine learning can deliver such accuracy in spades.

Last year, we provided an empirical analysis of private antitrust class action lawsuits and their resolutions in federal court from 2013 through 2018 (the 2018 Private Antitrust Enforcement Report). This Report (the 2019 Private Antitrust Enforcement Report) expands on that analysis significantly. It extends the period under consideration to include the years 2009 through 2019 and addresses new issues. To be sure, in part it revisits the same topics, including the number of antitrust class action complaints that are filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, and the total settlement amounts in each year and overall. The 2019 Private Antitrust Enforcement Report also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describes cumulative results, and tabulates cumulative totals for claims administrators involved in the settlement process. The report also addresses new issues, such as distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to continue providing similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will provide a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions and actions related to enforcement of the antitrust laws through private class actions.

Purpose This paper aims to provide an analysis of securities class action filings in 2017 along with related trends over time and a comprehensive current view of the securities class action landscape. Design/methodology/approach The paper details 2017 securities class actions and related trends by measures including the number and size of filings; market capitalization losses; litigation likelihood for US versus non-US exchange-listed companies; status and outcomes of filings (settled, dismissed, continuing); core versus merger and acquisition filings; individual versus institutional investors as lead plaintiffs; and concentration of class action activity by industry sector, stock exchange and court circuit. Findings The number of federal securities class action lawsuits filed in 2017 reached a record high for the second straight year. The jump was spurred by a sharp increase in lawsuits targeting mergers and acquisitions. The 412 securities class action filings in 2017 represented a more than 50 per cent increase from the previous record of 271 filings in 2016. Originality/value This paper details analysis by legal and industry experts.

In the United States, there has been tremendous growth in a form of third-party litigation financing where investors buy pieces of lawsuits from plaintiffs. Many scholars believe that this new financing helps to balance the risk tolerance of plaintiffs and defendants and thereby facilitates the resolution of litigation in a way that more closely tracks the goals of the substantive law. In this Article, I ask whether these risk-balancing virtues of claim investing carry over into class action cases. This is a question that has not yet been addressed by scholars because many think it is not possible for financiers to buy pieces of class action lawsuits in the United States. But I show that such investments are neither impractical nor unethical; indeed, it appears that they are already here. It is therefore worth considering whether the investments confer the same social benefits they do in other cases. I argue that although class members do not need a risk transfer device in class action cases because they are almost always risk-neutral in light of their small losses, their lawyers do need such a device. Although this does not necessarily mean that claim investing is socially desirable overall in class actions, the social costs that have thus far been identified with claim investing seem modest compared to the benefits.

In this punitive class action, named plaintiff Kate McLellan alleges that defendant Fitbit, Inc. misled consumers about the ability of Fitbit's wristband devices to track user heart rate.

Using a sample of all companies named as defendants in securities class actions between July 1, 2005 and December 31, 2008, we study parallel suits relying on state corporate law arising out of the same allegations as the securities class actions. We test several ways that parallel suits may add value to a securities class action. Most parallel suits target cases involving obvious indicia of wrongdoing. Moreover, we find that although a modest percentage of parallel suits are filed first, over 80 percent are filed after a securities class action (termed “follow-on” parallel suits). We find that parallel suits and, in particular, follow-on parallel suits sometimes target individual officers not already named as defendants in the securities class action. Suing more officers, however, does not positively correlate with an increase in settlement incidence, monetary recovery amounts, or attorney fees. Parallel suits sometimes result in settlements when the corresponding class action is dismissed; however, only rarely do the parallel suit settlements provide monetary recovery for investors. We find that follow-on parallel suits often result in nonmonetary, corporate governance settlements, particularly for frequent-filing plaintiffs’ attorneys. Corporate governance settlements correlate with significantly lower attorney hours and attorney fees for the plaintiffs’ attorneys. We conclude that such settlements are used to justify fees in cases in which there is no monetary recovery.

According to the existing literature, institutional investors have a significant impact on the litigation risk of publicly traded companies. This should be particularly true after the Private Securities Litigation Reform Act (PSLRA) of 1995 that encourages institutional investors to serve as lead plaintiffs in securities class actions. Using a large sample of securities class action lawsuits, we distinguish between different types of institutional investors based on their investment horizon and ownership structure and find that both factors significantly affect a firm's litigation risk. Short-term institutional investors are more likely to monitor firms through ex-post litigation, whereas long-term institutional investors prefer to monitor firms internally. Further, we document a nonlinear relation between the stock ownership of the largest institutional investor and a firm's litigation risk. In particular, as measures of long-term (short-term) ownership increase, the likelihood of litigation declines (increases). In summary, shareholder litigation may be an effective external monitoring device for short-term investors that serves as a substitute for internal corporate governance mechanisms.

Both third-party litigation funders and plaintiff lawyers have attempted to improve their competitive positions in the class action market. First, in an environment with very little regulation, litigation funders have sought court approval for the introduction of a ‘common fund’ that would dramatically tilt the cost-benefit calculus in favour of the funder, providing them with far greater certainty about the risks involved in funding a particular action. Second, entrepreneurial lawyers have tested some questionable strategies designed to circumvent the prohibition on lawyers charging contingency fees. To date, neither has succeeded but their efforts have prompted discussion about the way class action litigation should be funded, who should be allowed to fund it and the need for greater regulation.

Delaware's expert courts are seen as an integral part of the state's success in attracting incorporation by public companies. However, the benefit that Delaware companies derive from this expertise depends on whether corporate lawsuits against Delaware companies are brought before the Delaware courts. We report evidence that these suits are increasingly brought outside Delaware. We investigate changes in where suits are brought using four hand-collected data sets capturing different types of suits: class action lawsuits filed in (1) large MandA and (2) leveraged buyout transactions over 1994-2010; (3) derivative suits alleging option backdating; and (4) cases against public company directors that generate one or more publicly available opinions between 1995 and 2009. We find a secular increase in litigation rates for all companies in large MandA transactions and for Delaware companies in LBO transactions. We also see trends toward (1) suits being filed outside Delaware in both large MandA and LBO transactions and in cases generating opinions; and (2) suits being filed both in Delaware and elsewhere in large MandA transactions. Overall, Delaware courts are losing market share in lawsuits, and Delaware companies are gaining lawsuits, often filed elsewhere. We find some evidence that the timing of specific Delaware court decisions that affect plaintiffs' firms coincides with the movement of cases out of Delaware. Our evidence suggests that serious as well as nuisance cases are leaving Delaware. The trends we report potentially present a challenge to Delaware's competitiveness in the market for incorporations. © 2012, Cornell Law School and Wiley Periodicals, Inc.

Quebec’s Court of Appeal has upheld a landmark 2015 judgment ordering three tobacco companies to pay C$16bn (£9.1bn; €10.6bn; US$12bn) in damages to Quebec smokers.12 Imperial Tobacco, JTI-Macdonald, and Rothmans-Benson & Hedges won some minor procedural arguments but lost their appeal on all substantive grounds before Quebec’s highest court. Interest that has accrued during the appeal process will add more than a billion dollars to the payout in Canada’s biggest ever class action suit, which was first filed 21 years ago. The three companies are expected to launch one final appeal, to Canada’s Supreme Court, which the plaintiffs’ lawyers hope could be completed in about a year. The companies also face several lawsuits from provinces looking to recoup decades of smoking related health expenditure. The Quebec class action was notable not just for the size of the claims but for the novel arguments deployed …

This chapter explores class action nuisance suits by examining the plaintiffs that bring them. It focuses on merger litigation—claims brought by shareholders in the wake of corporate mergers and acquisitions transactions—and uses as evidence the litigation history of seven “frequent filer” shareholder plaintiffs. Over a five year period, from 2014 through 2018, these plaintiffs filed 281 shareholder suits nationwide. Compiling data on these filings and their outcomes, this chapter reveals a transformation in merger-related nuisance suits. Plaintiffs went from challenging mergers in fiduciary duty suits under state law to challenging merger disclosures in federal court under the federal securities laws. Just as state fiduciary duty suits were typically settled for supplemental disclosures, federal securities claims are typically resolved by mooting the claims through corrective disclosures. The common denominator between these two types of claims is that both entitle plaintiffs’ counsel to collect fees from the corporation on the basis of supplemental disclosures. The data also reveal two further nuisance suit developments: (1) the filing of disclosure-related claims under the federal securities laws not related to merger activity, and (2) the filing of individual rather than class complaints. The chapter argues that these litigation patterns have evolved in response to efforts to contain nuisance suits. Claims moved from state to federal court to evade hostile state law precedent. Once in federal court, claims changed from settlement to mootness resolutions to avoid further judicial scrutiny and to avoid possible application of the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). Further innovations in nuisance filings seem specifically designed to evade the PSLRA. Consistent application of the PSLRA to merger litigation would reverse the flow of claims back to state court if not eliminate them altogether. However, any hope of this depends upon a more coordinated judiciary. Courts must coordinate their approach to merger litigation generally and to the PSLRA in particular. Fortunately, coordination mechanisms do exist. Courts should use them to halt the inundation of merger-related nuisance suits.

Through its holding in Bristol-Myers Squibb v. Superior Court of California, San Francisco County, the Supreme Court has left many questions unanswered. While the case concerned an aggregation of plaintiffs in a mass action in the California state courts, the opinion contained strong dicta to suggest its principles of specific jurisdiction could be applied to federal class actions – an entirely different procedural tool with its own host of complexities and problems. In the two years following the Supreme Court’s decision, federal district courts are split on applying the Bristol-Myers Squibb analysis to class actions. A distinct category of courts have applied the analysis to dismiss absent class members’ claims who allege no connection to the forum where the class action is filed; strongly implying that nationwide class actions can no longer be conducted outside a defendant’s state(s) of general jurisdiction. While federal district courts remain split on the issue, little to no federal circuit court authority has emerged to clarify the confusion. This Note analyzes the continuing district court divide and discusses the three main concerns which courts have advanced as reasons to apply Bristol-Myers Squibb to class actions: federalism concerns, a violation of the Rules Enabling Act, and forum shopping concerns. Ultimately, these concerns do not warrant applying the analysis to class actions, as they are either not present in class actions, or are adequately handled by other procedural devices.

The public release of the ALRC’s final report on class actions and litigation in late January 2019 was accompanied by the announcement by the Federal Attorney-General that, over the next two months or so, he will seek the views of stakeholders with respect to the 24 recommendations contained in this report. It is, of course, important that these consultations and assessments of the ALRC’s recommendations be based on an accurate understanding of the actual, as opposed to perceived, operation of Australia’s class action regimes. One of the two aims of this third report - in the An Evidence-Based Approach to Class Action Reform in Australia series - is to secure this desirable scenario with respect to two of the most controversial aspects of Australian class actions: (a) the percentages of class action settlements that are paid to commercial litigation funders with respect to their commissions or funding fees; and (b) the impact that the ground-breaking common fund doctrine enunciated by the Full Federal Court in October 2016 has had on the remuneration received by funders in successful class actions. The other purpose of this report is to provide data with respect to what are rapidly becoming common features of class action settlement agreements: what are generally-referred to as reimbursement payments to lead plaintiffs and occasionally to sub-group representatives and active/sample class members.

In the context of a claim for securities fraud under SEC Rule 10b-5, most federal circuit courts have ruled or recognized that loss causation can be proven by an event that demonstrates an earlier statement by a defendant company to be false. In other words, corrective disclosure need not take the form of speech. Rather, a statement can be shown to be false by the materialization of a risk that was concealed by the company, and investors can be compensated for any losses they suffer as a result. Although this materialization doctrine is well established, it is the thesis here that its ultimate effect is to over-compensate investors, thus encouraging excessive securities litigation and chilling voluntary disclosure. The point is graphically illustrated by the securities litigation that followed the Deepwater Horizon explosion and spill. There, plaintiffs argued that BP (the operator of the rig) had misrepresented its safety practices. Assuming the allegations to be true, the pre-event market price of BP stock would have been a bit lower, reflecting additional risk. If plaintiffs had paid that lower price, they would have had no claim as a result of the explosion and spill. So if plaintiffs recover an amount equal to pre-spill price inflation, they will be in exactly the same financial position as if they had bought knowing the truth. But most of the price decline following the event came from the prospect of cash outflows resulting from clean-up, repairs, fines, settlements, and possibly an increase in the cost of capital. To compensate buyers for these consequential losses is excessive. The risk of such losses is one that can be diversified away by investors. Moreover, if these consequential losses are actionable at all, they constitute a claim of mismanagement belonging to the company that should be pursued in a derivative action. To generalize: In cases in which loss causation can be shown only by materialization, the bulk of the claim is almost always more properly characterized as one on behalf of the company that should be resolved by a derivative action instead of by a class action on behalf of individual investors. Moreover, to recharacterize such claims as derivative carries significant collateral benefits: Because the company stands to recover (rather than to pay), derivative actions avoid the circularity problem endemic in class actions while providing a remedy that is perfectly tailored to the true (undiversifiable) loss suffered by investors. It is difficult to overstate the significance of this insight: It implies that much of securities litigation, as we know it must be recast as derivative rather than direct.

Little empirical work has been done to analyze the filing and resolution of private antitrust class action lawsuits. This Report takes an important step toward rectifying that situation. It relies on data that is newly accessible in part through artificial intelligence. Some of the issues it addresses relate only to 2018 and others relate to the years 2013 through 2018. Topics include the number of antitrust class action complaints that are filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorney’s fees and costs awarded, and the total settlement amounts in each year and overall. The report also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describing particular cases as well some cumulative results, and also tabulates cumulative totals for claims administrators involved in the settlement process. The plan is to continue providing similar information on an annual basis. The hope is that this data will prove of interest to the academy and the public and private sectors, and that the data will provide a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions and actions related to enforcement of the antitrust laws through private class actions.

Class action filings in the federal courts surged after the Class Action Fairness Act of 2005 (CAFA) took effect, and resolution of major controversies in a single multidistrict litigation became the norm. Correspondingly, since 2010, the Supreme Court has shown an increased interest in class action procedure. As with other cases, when the Court grants review in a class case it reverses more often than not—a pattern that makes the certiorari stage critical to litigants. Although the Justices in recent cases reached consensus on minor points of class action procedure, their opinions diverged on more significant issues. With Justices Gorsuch, Kavanaugh, and Barrett now on the Court, strict constructionism will no doubt influence how class action law develops. Even before these Justices were seated, the Court’s decisions reflected a divide in how the Justices view the class action device. The 5‒3 decision in American Express Co. v. Italian Colors Restaurant demonstrates these contrasting views. 570 U.S. 228 (2013). A restaurant alleging an antitrust tying violation filed a class action against American Express on behalf of similarly situated merchants. Justice Scalia’s opinion for the Court held that the restaurant could not nullify a provision in its contract with American Express mandating that all disputes between them be decided in individual arbitration. Rejecting the argument that enforcing this clause would serve to immunize American Express, the Court held that “courts must ‘rigorously enforce’ arbitration agreements according to their terms.” Id. at 233 (citation omitted). Only if an arbitration agreement waives a party’s right to pursue statutory remedies may the agreement be invalidated, the Court reasoned, and the class waiver “no more eliminates [the contracting] parties’ right to pursue their statutory remedy than did federal law before its adoption of the class action . . . in 1938.” Id. at 236. In addition, the Federal Arbitration Act’s (FAA) “command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims.” Id. at 238 n.5. Justice Kagan, joined by Justices Ginsburg and Breyer, dissented, opining that for the restaurant to pursue its claim individually in arbitration would be a “fool’s errand” as “[n]o rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands.” Id. at 240, 245 (Kagan, J., dissenting). The dissent further asserted that the majority, “bent on diminishing the usefulness of Rule 23,” had reasoned as if it were still “ye olde glory days.” Id. at 251‒52 (Kagan, J., dissenting). Despite disagreements over how competing class action policies should be balanced, the Court’s precedents make clear that Rule 23 must be interpreted as written. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“[O]f overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce.”). The Court’s most recent class action decisions have been unanimous. The per curiam ruling in Frank v. Gaos, 139 S. Ct. 1041 (2019), avoided reaching the cy pres issue presented, remanding for an assessment of whether plaintiffs whose search terms Google allegedly shared with third parties had standing to maintain Stored Communications Act claims under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In China Agritech, Inc. v. Resh, the Justices agreed that the tolling of statutes of limitations by a class action filing does not apply to class—as opposed to individual—claims filed after a denial of class certification. 138 S. Ct. 1800 (2018) (distinguishing American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)). And in Microsoft Corporation v. Baker, the Court unanimously held (with three Justices concurring in the judgment) that class plaintiffs cannot manufacture a final judgment subject to immediate appellate review by voluntarily dismissing their claims upon a denial of certification. 137 S. Ct. 1702 (2017). The Court will continue to engage with this consequential area of civil procedure in 2021, having granted review in two cases raising class certification issues. Goldman Sachs Grp. v. Arkansas Teacher Ret. Sys., No. 20–222; TransUnion LLC v. Ramirez, No. 20–297. In keeping with how class action issues that reach the Supreme Court are often analyzed, this essay largely focuses on public policy. After a brief excursion into the origins and development of class actions in our legal system, I describe how the Court has approached dueling policies embedded in Rule 23. The discussion then shifts gears, delving more deeply into three of the Court’s most influential class action decisions. I proceed to consider the more immediate matter of how class action jurisprudence has evolved in the twenty-first century. The conclusion frames some open questions of class action law that the Court may address in years to come.

The opioids epidemic has had a significant impact on individuals and communities, including local governments responsible for serving and protecting those affected individuals. This is the first study of its kind to consider whether those local government costs are quantifiable, a question that has salience both for pending opioid litigation in federal and state courts and for local planning and budgeting decisions. This article first provides a detailed description of the opioid litigation landscape, including the federal multidistrict litigation (MDL) in Ohio, the Native American tribes’ actions, and various procedural and other hurdles that local government plaintiffs face in seeking monetary recovery in court. The article also provides a literature review of existing studies on the financial impacts of the opioid epidemic, noting the shortcomings of those studies in regards to quantifying costs for local governments. Finally, it describes our study methodology, which involved unstructured, qualitative interviews with local government department heads and other service providers to determine the extent to which their opioid costs could be readily captured. Our findings reveal that some costs are easy to track and correlate with opioids, specifically, and we provide sample calculations for some of those; other costs are not currently tracked as opioid-specific but could be with additional effort, an effort we intend to undertake with future stages of this project; and still other costs are very hard to disaggregate or quantify, although they are very real and, often, significant. Ultimately, this article provides local governments and policymakers with observations and conclusions on how to calculate the damages governments have incurred from the opioid epidemic, as well the necessary data to make informed decisions in the future.

This Article presents a crucial, unsettled, and recurrent question concerning the “mass action” provisions of the Class Action Fairness Act (CAFA). Under CAFA, a removable “mass action” is a minimally diverse civil action in which the monetary claims of 100 or more persons are “proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” The courts of appeals are divided as to whether a sua sponte proposal by a state court — as opposed to a proposal by plaintiffs — can trigger mass action removal. However, courts should follow the Tenth and Eleventh Circuits, which have noted the passive construction of “proposed to be tried jointly” and suggested that a court’s sua sponte action qualifies for removal.

Samantha Galway is a second year law student at Queen's University in Kingston, Ontario. She prepared an earlier version of this paper for her first year Torts Class, in which she received the Fasken Martineau DuMoulin LLP Prize in Torts, awarded on the basis of academic excellence. Gord McKee is a senior litigation partner at Blake, Casseis & Graydon LLP, whose practices focuses on product liability and class action defence. He was co-author on an earlier article published in the Defense Counsel Journal discussing causation law in Canada. (1) AT least until 2012, there was significant confusion in Canadian jurisprudence surrounding one aspect of the standard for causation in negligence actions. Canadian courts referred to this aspect as the "material contribution" test. In some of its articulations of this test, the courts were talking about a concept similar to the U.S. "substantial contributing factor" test. But in others, they seemed to be talking about something very different. The Supreme Court of Canada had been criticized by academic commentators for its failed attempts, in its earlier decisions in cases such as Athey v. Leonati (3) and Hanke v. Resurfice Corp. (4), to clarify the law in this area. Some critics, including one of the authors of this paper, argued that these decisions only served to further complicate an already unclear area of Canadian tort law. (5) In 2012, the Supreme Court addressed the issues raised in a number of these criticisms, and substantially clarified the law, drawing a clear distinction between two more precisely worded concepts --"material contribution to injury" and "material contribution to risk". (6) The former concept is nothing new or surprising, and akin to "substantial contributing factor". The same cannot be said for the latter, however. This paper will examine in more detail the 2012 decision of the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, (7) and the Court's guidance regarding the material contribution to risk test. While the material contribution to risk test is now clearly part of Canadian tort law, it is a doctrine that will only rarely come into play. For this reason, the test has been referred to as the "unicorn" of Canadian law, often talked about but rarely seen. (8) Given the right fact pattern, this doctrine may be available to assist a plaintiff to establish liability in a negligence action where "but for" causation cannot be established, with or without application of the material contribution to injury test. I. "But for'" Is Still the Default Test for Causation Causation is one of the requisite elements that must be established to bring an action in negligence. It is required in order to link the harm inflicted on the plaintiff to the breach of duty owed by the tortfeasor. (9) To allow recovery where an injury would have occurred absent any breach of duty on the defendant's part would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence. (10) The fundamental rule for determining causation in Canada continues to be the "but for" test. (11) The plaintiff must establish that but for the defendant's negligent conduct (falling below the applicable standard of care) the plaintiff would not have experienced the injury. (12) The defendant's conduct does not have to be the sole cause or even the most important. It just has to have been a materially contributing factor--a necessary ingredient--in the occurrence of the injury. Establishing this connection is a "factual inquiry". (13) Plaintiffs must establish "but for" causation on a balance of probabilities in order to succeed in their claim. The Supreme Court of Canada in Clements reaffirmed that the court's go-to tool for determining causation remains the "but for" test. However, the Court in Clements also acknowledged that there are circumstances where it may be impossible for a plaintiff, through no fault of his or her own, to prove causation. …

It is widely recognized that the review of settlement agreements executed by the formal parties to class action litigation—the representative plaintiff and the defendant—represents the most important and challenging task that judges presiding over such litigation face. In order to facilitate this judicial task the views with respect to proposed class action settlements are sought from those persons who will be bound by such compromises despite having had no involvement in the settlement negotiations and in the conduct of the litigation itself: the class members. If the trial court approves the settlement despite the filing of objections to the settlement (or aspects of the settlement) by one or more of the affected class members, can these dissatisfied class members or objectors seek the intervention of an appellate court? This general question has been considered by American appellate courts on numerous occasions. But in Canada this question has been considered only in Quebec and in a somewhat indirect manner, given that it has been held in that province that settlement approval orders are not appealable regardless of whether the appeal is filed by the representative plaintiff or one of the class members. The aim of this article is to explore the major issues that will need to be grappled with when the intervention of Canadian appellate courts will be sought by dissatisfied class members. This study will be undertaken with respect to British Columbia, which has Canada’s third longest-running class action regime.

This article examines three major options for transforming military mental healthcare in order to end the pattern of self-inflicted and largely preventable wartime behavioral health crises plaguing American veterans, their families, and broader society since the turn of the twentieth century. Evidence is provided that the first option of maintaining the status quo consisting of internal incremental changes has proven largely ineffectual in addressing the broader issues responsible for perpetuating wartime crises. The second option describes necessary transformative changes required to end the cycle of mental health neglect and preventable crises. However, there are no signs that responsible government agencies are inclined to compel the military to overhaul its system. Lastly, we offer a legal analysis for an unprecedented class action against the Department of Defense to effect change. After reviewing the history of tort law and the US military’s immunity from the Feres Doctrine, we examine legal precedents both domestic and aboard. Legal strategies are described in detail from a landmark class action by British soldiers against the Ministry of Defense (MoD) or Multiple Claimants v. MoD (2003) who sued for failure to properly identify and treat predictable war stress injury like post-traumatic stress disorder. The successful claims from individual military plaintiffs have been instrumental in compelling the MoD to implement necessary reforms of its mental health services and possibly end their cycle of neglect and preventable wartime crises. If successful, the proposed American class action will establish a critical precedent to elevate the importance of mental healthcare on equal footing with physical medicine both within and outside of the military.

Antitrust class actions have narrowed significantly in the United States in recent years but still remain robust compared to aggregate litigation in the rest of the world. While the Supreme Court continues to narrow the doorway to class actions, the rest of the world is increasingly interested in creating new mechanisms for aggregate litigation to better support effective private damage litigation in competition cases, and in particular the large number of small claims cases that led to the class action boom in the United States in the first place. The challenge for the rest of the world will be to fashion new remedies consistent with the history, culture, substantive law, and procedural rules of their legal traditions rather than either adopt or reject the system that has evolved in the United States. This article provides an overview of the increasingly stringent requirements for antitrust class actions in the United States and provides a representative survey of the nascent movement toward collective actions abroad where competition cases have been at the forefront of the debate. Part I discusses the standards for class certification under Rule 23 and recent Supreme Court cases tightening those standards. Part II analyzes a separate line of Supreme Court cases which effectively eliminates class actions altogether when parties have entered into a contract requiring arbitration rather than litigation and further requires individual rather than collective arbitration proceedings.Part III continues with a survey of recent developments in the opposite direction outside the United States. This section examines ongoing changes in the EU, UK, other EU Member States, Mexico, and Canada to empower consumers and business with small claims in competition cases by creating collection action mechanisms of different types. This section also briefly discusses the decision of the EU to simply prohibit the type of forced arbitration clauses that the U.S. Supreme actively encourages. Part IV analyzes the critical aspect of whether foreign class actions will thrive or whither on the vine – the need for an opt-out mechanism rather than the opt-in mechanism favored in most jurisdictions outside the U.S. Finally, I conclude by pointing out the irony of the rest of the world struggling to figure out how best to empower plaintiffs to bring appropriate class action type proceedings while the U.S. Supreme Court remains principally concerned with how to restrain or eliminate the very same type of action.

IN 2013, the Ontario government announced that it had asked the Law Commission of Ontario (the "LCO") to engage in a comprehensive review of the Ontario Class Proceedings Act, 1992 (1) and experiences with that legislation since it came into force in 1993. The LCO was created in 2007 by an agreement among the Law Foundation of Ontario, the Attorney General of Ontario, Osgoode Hall Law School of York University, the Law Society of Upper Canada and the Ontario Law Deans. Its mandate is to make the law more effective, relevant and accessible, to clarify and simplify the law, and to see how technology might be used to increase access to justice. This ongoing review is likely to culminate in recommendations for reform of the Ontario class proceedings regime. Given Ontario's status as a leader in this area, the LCO's recommendations and any subsequent action taken by the Ontario government may //influence reforms in other Canadian provinces and territories as well. This is an important moment for class actions in Ontario (and potentially in Canada more broadly). While many accept that class actions will be part of the litigation landscape in Canada for the long term and are an appropriate procedural vehicle in some cases, they also come with some costs. The LCO has the opportunity to consider whether the current regime strikes the right balance between the benefits and costs of a class action regime. (2) The overarching objectives of the CPA are to promote access to justice, judicial economy and behavior modification. With respect to the first and perhaps most important of these objectives, the Supreme Court of Canada has expressly stated that "access to justice" requires access to just results, not simply access to the legal process for its own sake. (3) While many writers in this area focus their remarks on the importance of substantive justice for claimants (class members), some Ontario courts have emphasized the obvious--that defendants, as well as plaintiffs, are entitled to access to justice, (4) in other words, access to just outcomes. However, certain aspects of the Ontario regime, including low certification standards, asymmetrical certification appeal rights (including the ability of plaintiffs to reframe their case for certification on appeal), a sometimes unbalanced application of the loser pays costs regime, and the increasing availability of third-party litigation funding, have led to the perception that Ontario is a very class action-friendly jurisdiction, and raise questions about whether it is fairly achieving its substantive access to justice objectives, properly understood. As in the United States, the certification of a class proceeding in Ontario can result in significant pressure to settle the class's claims, even where they are seriously flawed or meritless. (5) Since the objective of the legislation is access to just results, one should look not only at the merits decisions but also at the settlements in assessing whether a class action regime is meeting that objective--providing access to justice to both plaintiffs and defendants. One should consider whether defendants are being or may be pressured to settle class proceedings for reasons unrelated to, or on terms disproportionate to, their merits. These pressures may arise from the sheer size of the damages exposure, the enormous costs of defense (which include both legal expenses and diverted employee time), potential effects on shareholder value, and reputational pressure. One must also consider whether businesses are incurring substantial and inordinate unrecoverable costs (both out of pocket and in employee time), and courts expending excessive time, to have class actions that should never have been brought dismissed on their merits, as well as the broader potential economic impacts of companies' being exposed to or incurring these unnecessary costs (e.g. increased prices for customers, lower stock prices for current shareholders, and less or delayed innovation). …

The article is devoted to the study of international experience of theoretical and practical aspects of proceedings in class actions. This study will present various models of regulation in this area of the Anglo-Saxon and mixed legal families. By analyzing this legal basis, the practice of application will be possible to establish the essence of the class action in civil proceedings by disclosing the main features that are inherent in it and are such that distinguish it from other procedural structures aimed at protecting violated rights and legitimate interests as effective judicial mechanism.The subject of the study is issues related to one of the jurisdictional ways to protect the rights and legitimate interests of large groups of people. The purpose of this work is to publish the results of the study, which was conducted as part of a dissertation study on "Group lawsuit in civil proceedings in Ukraine." During the study, a general scientific dialectical method of use was used, which allowed to comprehensively study the main provisions of class action in foreign procedural law and the possibility of its development in the legislation of Ukraine, and provided an opportunity to reveal the nature of class actions in civil proceedings. stages. The scope of application of the results of the development of the theoretical basis in the field of mechanisms for the protection of the rights and legitimate interests of large groups of persons in order to introduce the appropriate procedure in the civil procedure legislation of Ukraine.Key words: civil proceedings, group lawsuit, initiating plaintiff, numerous groups, litigation proceedings, model "opt-in", "opt-out"., Стаття присвячена вивченню міжнародного досвіду теоретичного та практичного аспектів розгляду справ за груповими позовами. У рамках даного дослідження представлятимуться різні моделі нормативного регламентування в означеній сфері країн англосаксонської та змішаної правової сім’ї. За рахунок аналізу вказаного правового базису, практики застосування стане можливим встановити сутність групового позову у цивільному судочинстві через розкриття основних ознак, що йому притаманні та є такими, які дозволяють виокремити його з поміж інших процесуальних конструкції, що направлені на захист порушених прав та законних інтересів як ефективного механізму судового. Предметом дослідження є питання, які стосуються одного із юрисдикційних способів захисту прав та законних інтересів чисельних груп осіб. Метою роботи є оприлюднення результатів дослідження, яке проводилось в рамках проведення дисертаційного дослідження за темою «Груповий позов у цивільному судочинстві України». Під час проведення вивчення застосовувався загальнонауковий діалектичний метод використання, якого дозволило комплексно вивчити основні положення групового позову у зарубіжному процесуальному праві та можливості його розвитку у законодавстві України, а також надав можливість розкрити природу групових позовів у цивільному судочинстві, а також простежить їх прояв на окремих його стадіях. Сферою застосування результатів напрацювання теоретичного базису у сфері механізмів захисту прав та законних інтересів чисельних груп осіб з метою запровадження відповідного порядку у цивільно-процесуальне законодавство України. Ключові слова: цивільне судочинство, ініціюючий позивач, багаточисельна група, позовне провадження, модель «opt-in», «opt-out».

The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by July 26, 2015. The claim of the well-known reservations concerns the potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from “opt-out” class action procedures. The Article posits that apart from that claim, at bottom there may be some danger that the European Commission and private interest-groups may try to pursue the enforcement of their regulatory agendas in this way at the expense of individual claimants’ interests. However, in contrast to the situation in the United States, the need to complement regulatory enforcement by collective action may not appear as strong because of the relatively strict regulatory control and enforcement, which may explain EU Member States’ longstanding reluctance to adopt collective proceedings due to their concern for plaintiffs’ individual rights. Therefore, a comparative analysis is carried out to see to what extent individual rights as opposed to regulatory goals are taken into account in the different newly revised systems in place across Europe. As an interim result, the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to dealing with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised as to how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.