Abstract: It is now legal to sell securities to the general public in unregistered, crowdfunded offerings. But offerings pursuant to the new federal crowdfunding exemption pose a serious risk of fraud. The buyers will be mostly small, unsophisticated investors, the issuers will be mostly small startups about whom little is known, and crowdfunded offerings lack some of the protections available in registered offerings. Some of the requirements of the exemption may reduce the incidence of fraud, but there will undoubtedly be fraudulent offerings. An effective antifraud remedy is needed to compensate investors and help deter wrongdoers. But, because of the small dollar amounts involved, neither individual litigation nor class actions will usually be feasible; the cost of suing will usually exceed the expected recovery. Federal and state securities regulators are also unlikely to focus their limited enforcement resources on small crowdfunding offerings. A more effective remedy is needed. Arbitration is cheaper, but even ordinary arbitration will often be too expensive for the small amounts invested in crowdfunding. In this article, I attempt to design a simplified, cost-effective arbitration remedy to deal with crowdfunding fraud. The arbitration remedy should be unilateral; crowdfunding issuers should be obligated to arbitrate, but not investors. Crowdfunding arbitration should be online, with the parties limited to written submissions. But it should be public, and arbitrators should be required to publish their findings. The arbitrators should be experts on both crowdfunding and securities law, and they should take an active, inquisitorial role in developing the evidence. Finally, all of the investors in an offering should be able to consolidate their claims into an arbitration class action.

Abstract: 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.

Abstract: Canada’s largest retailer was a major buyer from factories in Bangladesh’s Rana Plaza when the building collapsed in 2013 killing 1,130 people. Most of the dead and injured were workers employed in factories that were never approved from garment production in a building not authorized for industrial production. Like other corporations sourcing from Rana Plaza, Loblaw had an impressive sounding corporate social responsibility (CSR) program that utterly failed to protect its supply chain workers from the largest industrial tragedy in history. This paper examines an interesting decision by an Ontario Court in a multi-billion dollar class action negligence lawsuit filed on behalf of Rana Plaza victims. The plaintiffs argued that, through its CSR program, Loblaw had accepted responsibility to take steps to protect workers in its supply chain from foreseeable harm and that it had failed to meet the standard of care required. In a lengthy decision, the Court dismissed the lawsuit on the basis that it was plain and obvious that the case was certain to fail. The paper explores how the Court’s discussion of the concepts of ‘responsibility’ and ‘control’ contrast sharply with the meanings ascribed to those concepts in the logic and discourse of CSR. The Court’s surprising conclusion that Loblaw should be commended for its CSR efforts, despite clear evidence that company ignored violations of its Code of Conduct, is explored and critiqued.

Abstract: The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain how these earlier efforts both influenced and created the conditions for the third wave reforms that are now underway, including a “groundswell” of class action litigation that seeks to minimize pretrial detention by breathing new life into longstanding principles of equal protection and due process. We then analyze the impact of these third wave reforms nationwide, while using Cook County as a case study. The results suggest reason for both optimism and caution, particularly in jurisdictions where advocates have been willing to trade a more expansive scheme of preventive detention for the elimination of the cash bail system. We conclude with observations in support of a just system of pretrial release—one that relies neither on money bond nor on preventive detention measures. This system is one in which the vast majority of the presumptively innocent people charged with offenses are immediately released back into their communities. It is a system in which courts provide services rather than onerous conditions, to minimize failures to appear in court, mitigate recidivism, and ensure that communities are not decimated by unconstitutional pretrial detention. While this model is not without some societal risk, we contend it is the only tolerable outcome under our constitutional system.

Abstract: Consumers and users are daily involved in commercial practices and transactions that can end up not pacifically. We buy items and services, we travel, we use public services and vehicles and we enter into contracts with banks, insurance and financial services companies. The disputes arising from these everyday life events need collective remedies which may facilitates access to justice by those whose rights have been violated by one and the same professional. A class action allows a number of consumers to bring a case together before the Court to obtain compensation for a damage caused by the same professional. It is a lawsuit brought by a group of claimants, which allows them to enforce their rights collectively where they would not have done on an individual basis because of the cost, the risks and the time that legal proceedings entail. This paper analyzes the peculiarities of this kind of litigation, both in general and on a European perspective; then it tackles: the archetype of U.S., Italian class actions rules and cross-border litigations issues.

Abstract: Governments can use regulation to pay for public goods out of the pockets of consumers, rather than taxpayers. For example, the Affordable Care Act underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross-subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits. Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent, and to fit better with the recommendations of public finance economics. We show how these same arguments can be extended to many other contemporary cross-subsidies. We also argue, however, that the critics may well be wrong. Drawing on recent theoretical and empirical advances, we show that cross-subsidies can be more efficient than taxes, especially when they are used to redistribute wealth on grounds other than income, such as the ACA’s transfer from men to women. We then apply our analysis to several key contemporary cross-subsidies, including personal-injury law, patents, class action lawsuits, paid family leave, and of course the ACA.

Abstract: Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization. This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying. We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent preferences and interests within the broad publics that the states represent, and this deficiency becomes particularly important in politically polarized times. Although our account of state litigation is, on the whole, a positive one, we caution that state attorneys general face a significant risk of backlash by other political actors, and by courts, if state litigation is (or is perceived to be) a bitterly partisan affair.

Abstract: Forced arbitration has long been controversial In the 1980s, the Supreme Court expanded the Federal Arbitration Act (FAA), sparking debate about whether private dispute resolution is an elegant alternative to litigation or a rigged system that favors repeat-playing corporations Recently, these issues have resurfaced, as the Court has decided a rash of cases mandating that lower courts enforce class arbitration waivers in almost all circumstances Critics argue that abolishing the class action insulates companies from wrongdoing, but businesses have predicted that pro se plaintiffs will flood the arbitral forum with their own low-value claims The Obama administration responded to the Court’s FAA jurisprudence by regulating arbitration clauses in the employment, financial services, and healthcare fields However, after the balance of power shifted in 2017, Republicans have repealed many of these rules Despite this policymaking frenzy, we know little about what happens inside the confidential world of arbitration This Article sharpens our understanding of this pervasive and polarizing institution by reporting the results of an empirical study of 40,775 cases filed in four major arbitration providers between 2010 and 2016 It highlights three main points First, a wave of reforms has made arbitration surprisingly affordable for consumers, employees, and medical patients Indeed, in leading arbitration providers such as the American Arbitration Association, JAMS, and the Kaiser Office of the Independent Administrator, a majority of plaintiffs pay no arbitration fees Second, enterprising plaintiffs’ lawyers — not pro se litigants — have taken advantage of arbitration’s open doors In fact, some attorneys have filed class action-style cases, bringing dozens or even hundreds of related arbitrations against the same company Third, although arbitration does indeed favor repeat playing businesses, that is just half of the repeat player story Repeat playing plaintiff’s law firms also fare well In fact, in a variety of settings, no variable affects win rates as dramatically as whether a plaintiff hires attorneys with arbitration experience The Article then uses these findings to propose reform For decades, state lawmakers have tried to protect substantive rights by exempting claims from arbitration Yet because the FAA prohibits state law from discriminating against arbitration, these efforts have failed Accordingly, this Article urges policymakers to reverse course and create incentives for plaintiffs’ lawyers to arbitrate Specifically, jurisdictions should create an “arbitration multiplier”: a bounty for winning a case in arbitration By encouraging skilled plaintiffs’ lawyers to capitalize on arbitration’s accessibility, this approach would counteract the corporate repeat player advantage In addition, because the multiplier actually encourages arbitration, it would not be preempted

Abstract: Until recently, there was no antitrust enforcement of a prohibition of excessive pricing in Israel However, in recent years, a large and growing number of motions to certify class actions alleging excessive prices have been filed, although so far, only one class action has been certified by the court and it may take years before a final verdict is issued Given this trend and given that courts are yet to clarify what excessive prices are and when high prices are deemed excessive and violate the Israeli Antitrust Law, monopolies in Israel face a high degree of legal uncertainty In this chapter, I review these developments in detail and discuss the lessons that can be drawn from the Israeli experience

Abstract: It is widely agreed that the federal-court class action became a somewhat revolutionary device after Rule 23 was amended in 1966. Since 1966, further substantial changes to the rule have been considered by the rulemakers, but more proposals have been discarded than adopted. Meanwhile, a major battle has emerged about whether class actions should primarily or solely be designed to achieve deterrence or limited to a compensatory function. That division has been central to many current debates, such as the issue of “no injury” class actions, whether courts could certify classes only after determining that they were “ascertainable” by an identified administratively feasible method, and whether the idea of cy pres could be used to justify class actions in which the defendant paid a large amount, but the class members themselves received little or nothing and the funds were instead used for good works of some relevant sort. Changes to Rule 23 in the last half century have not directly addressed these hot-button issues. But judicial decisions— including some by the Supreme Court—have tackled some of these issues, and Congress has adopted legislation to address some alleged class action abuses, such as “coupon settlements.” This Article explores the last half century of class action reform in terms of whether further “revolutionary” changes will occur in federal class action practice. It finds that although the rulemakers looked at some aggressive changes in the 1990s, those amendment ideas were eventually jettisoned, and the changes actually adopted have been evolutionary rather than revolutionary. That trend continues with the most recent amendment package, which may go into effect on December 1, 2018; the rulemakers are not embracing dramatic changes to the rule. Meanwhile, the possible sources of “revolutionary” change lie elsewhere. Some worry that the Supreme Court will deliver shocks to class action practice by deciding cases, though in recent terms it has not proved to be as adventurous as some thought it might. Congress has pending before it legislation that seemingly would make a fairly “revolutionary” commitment to limiting class actions to the compensatory purpose, and disavowing the deterrence purpose endorsed by many. The fate of that proposed legislation is uncertain as of this writing. Though action by Congress or decisions by the Supreme Court might produce “revolutionary” change for class actions, this Article suggests that technology may instead be the most important source of major change. In the wired world of the twenty-first century, the “headless” class action of the past may be replaced by the “wired” class action in which class members have regular contact with one another and class counsel. That could work a genuine revolution.

Abstract: Prior studies are quite ambivalent on the relation between disclosure and litigation risk since greater disclosure can be perceived as either ex-ante deterrent or ex-post misleading. I hypothesize that more information is disclosed in the non-numerical narratives in SEC filings than that has been analyzed in the extant literature. Using comprehensive hand-collected data on federal securities class action lawsuits spanning nearly two decades, matched peers, and widely used measures in natural language processing (NLP) that capture degree, readability, and sentiments in textual disclosures, I find results consistent with the theoretical view that argues that more and difficult to comprehend disclosure is often perceived as ex-post misleading, hence, increasing the odds of litigations. After controlling for other explanatory numerical variables, these results are robust to various empirical specifications using difference-in-differences (DiD), principal component analyses (PCA), and market response, across different types of shareholder class action litigations. Finally, using the Ninth Circuit Court of Appeals ruling, Re: Silicon Graphics Inc., that led to an unexpected and sudden reduction in the threat of litigation for firms headquartered in the Ninth Circuit, I find that firms that are headquartered in the Ninth Circuit tend to use more uncertainty words in their filings post-shock, which is consistent with my main results. Such findings indicate that there is a need to distinguish between more versus better disclosures.

Abstract: One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like soft drinks and snacks and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue. Ascertainability is not only of great practical importance, but it is interesting on three different levels. First, there is a question of prose – whether the text of the Rule supports the implication of the strict ascertainability requirement. Second, there is a question of policy – whether concern for the class action defendant, the absent class members, or the trial court overseeing the action justifies imposition of the strict requirement, notwithstanding its harsh impact on consumer class actions. Third, there is a process question: which governmental actor – the lower courts, the Supreme Court, the Advisory Committee on Civil Rules, or Congress – has the greatest institutional competency to resolve the policy issue and establish a uniform approach to ascertainability. This Article addresses each of these questions in turn.

Abstract: The proposed Fairness in Class Action Litigation Act of 2017 (FICALA) represents the most aggressive attempt in recent memory to dismantle the apparatus of mass litigation through procedural reform. When viewed as a whole, it is difficult to see the package as anything other than a defendant-driven effort to reduce liability by making it difficult for plaintiffs to aggregate claims, difficult for plaintiffs’ lawyers to make money, and expensive for plaintiffs to pursue claims to adjudication. Hidden among FICALA’s bad ideas, however, are a few good ones, and they represent promising opportunities for improving the litigation process. This article, part of a symposium on Civil Litigation Reform in the Trump Era, breaks down the bill’s proposals and considers each idea on its own terms. The bill contains several pieces that, if tweaked, could offer attractive starting points for procedural reform: provisions that align class counsel fees with value for class members, provisions that improve data collection concerning class action settlements, and a provision to work around the complete diversity requirement for federal jurisdiction in mass disputes.

Abstract: Unlike most countries, the United States and Israel have employed the class action procedure for decades This Article compares the two countries’ class action regimes and examines how the device has evolved in those countries It examines the current procedures, as well as proposed reforms It also compares class action statistics in the two countries relating to lings and outcomes We demonstrate the many common features between the United States and Israeli class action procedures As we illustrate, these common features have led to robust class action practices in both countries At the same time, there are profound differences between the types of class actions led and their outcomes Thus, while Israel has many more class actions than the United States on a per capita basis, the cases are much less consequential from a monetary and subject matter perspective We explore possible explanations for these observations Furthermore, this study identi es features — utilized by the United States and Israel — that can serve as models for other countries that are adopting or amending their own class action regimes

Abstract: If human rights education of schoolchildren addresses advocacy at all, it is mostly or exclusively in terms of civic participation, which perhaps includes civil protest. This approach implicitly discourages young people from considering engaging with the courts as an additional or alternative vehicle in seeking a remedy for violations of their fundamental human rights. Human rights education is incomplete when it fails to address the child’s right to legal standing in the effort to seek justice; for instance, as part of a child collective that is significantly adversely and directly impacted by particular government actions. Exemplars of children acquiring legal standing and pursuing their rights through the courts can serve as a useful educational tool in raising awareness of the potential for child public interest advocacy through the courts. One such exemplar, the youth-led class action environmental protection case Juliana et al. v the United States et al., is discussed.

Abstract: Class actions aim to bring economies of scale to bear on legal proceedings, by joining cases that have a common cause of action against a common defendant into a single lawsuit leading to a judgment or settlement that binds the entire class. Legal procedures, lawyer time, evidence by experts and court resources are thus all used once for all, rather than multiple times during individual lawsuits. Where individuals would not have brought suit because the damage they suffered is too small in relation to the minimal fixed cost of a lawsuit (small claims, but, in a different sense, also mass torts, where the evidentiary problems may be extraordinarily complex and costly), the class action may make it possible to impose on a wrongdoer the full weight of individually small harms inflicted on many persons, that would otherwise go unchallenged. From an economic point of view, this "internalisation" of costs, shoring up the deterrent effect of legal rules, is a desirable development. Where individual victims are facing a large enterprise that is a repeat player in similar matters, with an interest in fighting to prevent any adverse judgment, the class action may (somewhat) level the playing field. Even where the individual interest at stake is large enough to justify a lawsuit, resorting to a class action may still be worthwhile given the more ample resources that can be mobilised, considering the size of the class, to collect evidence and present the case in court. While the class action's potential deterrent effect and the economies of scale in legal proceedings are undisputed, the procedure generates its own transaction costs, in particular as regards the agency problem of supervising the class counsel handling the case, whose interests may diverge from those of the class members. Class actions also create a risk of litigation about trivia, which in ordinary proceedings is controlled by the de minimis judex non curat rule. Furthermore, the size of the class may cause difficulties in contacting some of the members and of distributing the sums collected, such that a leftover amount may have to be paid to an outside entity whose activities favour the class. As the class action makes its deterrent effect felt, it becomes apparent that it is an alternative to direct regulation of potentially wrongful behaviour. This raises the question of the comparative advantages and disadvantages of this procedure.

Abstract: This article contains the first empirical study on opt-in class actions, which are referred to as representative actions, filed under r 4.24 of the High Court Rules 2016 in the New Zealand High Court and the New Zealand Employment Court. The findings of this study reveal that opt-in class actions are now part of the New Zealand legal landscape in substance, if not in name. In particular, the data reflects the rise of consumer class actions in New Zealand, which, in part, have been assisted by litigation funders entering into the market. However, despite an increase in opt-in class actions, New Zealand’s civil procedure mechanism for managing class action litigation is inefficient, uneconomic and creates significant uncertainty for all class action stakeholders. This article examines the empirical data, the trends in the data, and the reasons for those trends. It concludes by discussing why reform is required against the backdrop of this study and New Zealand’s procedural process values as contained in the High Court Rules.

Abstract: The present study aims to demonstrate that the class action should be used as a tool to gather a great amount of individual suits The problem is that Brazilian legal system does not provide judicial measure to dismiss or stay individual suits when a class action is certified, reducing the positive outcomes of class actions for the overloaded Judiciary Despite the clear legislative gap, the Superior Court of Justice (STJ), in a recent case, has confirmed the suspension of individual cases until the class action final decision arouse, before responding to the problems exposed From this paper point of view, the decision of staying the individual actions set a method of case management in a repetitive suits perspective This method is based on the recognition of the absence of the class action as a threshold requirement for individual action addressing the same subject This is an innovative approach aiming to streamline the court answer for the problem of repetitive suits

Abstract: The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain of all electronic and shrinkwrap contract cases and makes four critical findings. First, we document two shifts: One arises from a steady decline in the number of cases adjudicated in state court relative to federal courts, which by 2015 adjudicate the vast majority of cases. The other stems from a rise in class actions, which is intimately tied to the migration of cases to federal court. The result is that today the vast majority of cases are class actions brought in federal court. The increase in class actions is not surprising given the relatively small stakes of most transactions and the little incentive that creates for individual consumer litigation. The increased dominance of the federal forum is in part likely a reflection of the federalization of class action law under the Class Action Fairness Act (CAFA). Second, the consequence of the dominance of the federal forum is that the common law is being elaborated in federal court in suits arising under diversity jurisdiction. In turn, those federal courts are largely bereft of any state law moorings as they develop the common law of the electronic marketplace. Erie Railroad v. Tompkins notwithstanding, the common law is driven by federal court decisions, building incrementally on each other rather than state law. Third, the development of common law in federal court means that there is no apex court that can define conclusively the law of any jurisdiction. Diversity jurisdiction allows federal courts to predict how they believe state common law would develop, but binds no state courts in the affected jurisdiction, and does not even bind federal courts in the same Circuit putatively applying the law of another state. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions, regardless of the state law that the case may have arisen under. Finally, we conjecture that the use of contractual clauses compelling arbitration and forbidding claim aggregation may have affected the number of cases being adjudicated in court and, consequently, depressed the development of publicly-available law in this area.

Abstract: The “American-style” class action, when combined with private rights, is an important tool of American regulatory policy And just as American regulation has global reach, the global class action is not unfamiliar to US courts Yet, global US class actions are facing ever-stronger headwinds In addition to the recent retrenchment of class actions and international litigation generally, US courts have raised additional barriers to global class actions in particular This Article’s rst goal, therefore, is to document these developments and their consequences for regulation Against this backdrop, this Article also reviews the options available to foreign lawmakers, foreign courts, foreign litigants and litigation funders, and foreign public enforcers Foreign lawmakers may provide alternatives to global US class actions; foreign courts and foreign litigants may explicitly or implicitly coordinate to approximate global class resolution; and foreign public enforcers may achieve the goals of global regulatory litigation while avoiding some of its legal impediments Finally, this Article evaluates these various foreign responses from an institutional perspective, with special attention to the institutional incentives for lawmakers and law enforcers

Abstract: This Article attempts to clarify a proposition of certain Canadian authors that while class actions represent a signi cant part of our court activities, they may not truly be compensating our citizens. I argue that leading up to the present study, we did not know for certain whether a class action was an effective mechanism to compensate class members. Through empirical data collected up by the Class Actions Lab from the past twelve years from cases led in the province of Quebec, District of Montreal, analyzed through the lens of a collective approach to compensation, I demonstrate that Quebec citizens are in fact being compensated by class actions.

Abstract: This paper will address whether a correlation may be drawn between the types and modalities of notices sent to class action members and the rate of compensation of these members, based on data collected in 854 class action court files in Quebec superior court over a twenty year period (1997-2017). Notices are essential to fair procedure in all class action regimes, but it is difficult to know whether these notices have reached their intended addressee in such a way as to make them aware of the case and its potential distributions, and eventually allow for this distribution to be completed. If a collective approach to compensation is favored, class notices should aim to compensate at least 50% of the members. My hypothesis is that technologies will help doing just that. In this paper, I ask whether this hypothesis is supported by the data, and which forms of technological notices are actually most effective at reaching and compensating members. I argue that we have come to a revolution in class action noticing, a digital revolution. In traditional forms of notice, reduced cost has almost always meant reduced probability of achieving actual notice. By contrast, properly designed e-notices are potentially transformative because they serve to lower the cost of notice while increasing reach rates in time and space. With the support of empirical data, I demonstrate that cases making use of technological noticing serve to compensate members more efficaciously than those who rely upon traditional noticing (mail, newspaper notices), with a distribution (or take-up) rate of 69%.

Abstract: New Zealand has been relatively dormant in the area of class action litigation. As a result, the procedural regime for managing class action litigation is developing in an ad hoc manner through judicial discretion. However, recent developments suggest that class action litigation is on the rise in New Zealand. In contrast, class action litigation is declining in the United States. In the face of procedural and substantive uncertainty, New Zealand corporate defendants, like their American counterparts, are likely to pursue other avenues such as class action litigation waivers in arbitration agreements to control management of legal disputes. However, New Zealand should not follow in the footsteps of the United States by enforcing waivers in arbitration agreements to curtail class action litigation. This article explains why corporate defendants are likely to pursue class action litigation waivers in arbitration agreements, the undesirable outcome if class action litigation is prohibited by contractual waivers, and how the judiciary can prevent the enforcement of those contractual waivers. This article also addresses why class action legislative reform is required to provide corporate defendants with a certain and transparent procedural alternative to arbitration in resolving disputes. Civil procedure provides the framework which enables substantive rights to be vindicated. New Zealand class action litigation procedure needs legislative reform so that procedure does not impinge on parties’ substantive rights. PLEASE NOTE THAT ARTICLE AVAILABLE ON SSRN IS A DRAFT. THE FINAL VERSION OF THE ARTICLE (WITH AMENDMENTS) IS AVAILABLE IN THE NEW ZEALAND LAW REVIEW.

Abstract: One common imagining of class actions is associated with a few popular novels and films in which aggressive and unscrupulous lawyers sue giant corporations with a view to extorting financial settlements that will be highly profitable for the lawyers themselves but rarely for the members of the class action, the individual men and women who actually suffered injury. This is the dark side of class actions, one which is widely known by the public. But there is also a bright side, even though less glamorous and hardly appreciated, at least outside the United States: it is the experience of human rights class actions, namely the experience of class actions used as a form of civil redress available to the victims of mass violation of fundamental human rights. This contribution focuses on a number of particular aspects of human rights class actions, expounding on the controversial concept of universal civil jurisdiction.

Abstract: The article is devoted to the application of the class action institution in different countries and legal systems. The article deals with questions about the meaning of the institute of class action, interests protected with the help of it, positive and negative aspects of this institution are estimated. In addition, the article analyses characteristics and conditions of presentation of the class action. The research was conducted by using general scientific and specific methods of research including the analogy method, formal logical and comparative law methods. As a result, the Russian institute of class action, by its characteristics, is classified as a continental model. The analysis of the latest changes in Russian legislation reveals, at the same time, a tendency to converge with the Anglo-Saxon model of private class action.

Abstract: Entrepreneurial litigation is litigation in which the plaintiff’s attorney functions as a risk-taking entrepreneur, financing, organizing, managing, and settling the litigation on behalf of numerous clients (who generally hold “negative value” claims), but with only modest oversight from the clients. Although well established in the United States (and to a lesser extent in Australia, Canada, and Israel), it has long been resisted in Europe, the U.K., and elsewhere, where local rules both preclude the opt-out class action, contingent fees, and jury trials in civil cases, and mandate a “loser pays” rule with respect to legal fees. Yet, despite these obstacles, entrepreneurial litigation appears now to be coming to both Europe and Japan, with large settlements having recently been struck in securities litigation (most notably $1.4 billion this year in the Fortis litigation). Perhaps surprisingly, the driving force leading this transition has been American plaintiff law firms, who do not litigate the action, but do organize it, using third party funding and litigation insurance as functional substitutes for the contingent fee and the American Rule on fee shifting. Some have explained this phenomenon as a response to the U.S. Supreme Court’s decision in Morrison v. National Australia Bank Ltd., which barred U.S. courts from exercising extraterritorial jurisdiction over the federal securities laws, and thereby arguably encouraged other jurisdictions to compete for the cases that formerly were litigated in the U.S. Although the Morrison decision was a catalyst, this article rejects the claim that foreign jurisdictions are engaged in any competition for securities litigation, finding instead that defense counsel have found that they can sweep absent class members into a low cost settlement class action under The Netherland’s WCAM statute by discriminating between “active” and “non-active” class members.This article examines these developments and the issues they pose for Europe and Japan. Ultimately, despite early successes, the long-term question becomes: How successful can legal entrepreneurs be when operating in a different and skeptical legal culture?

Abstract: This article concerns the recent case of Georges v United Nations, which constitutes, to date, the most elaborate public law challenge to the principle of UN immunity from suit and private law attempt at procuring compensation from the UN for alleged malfeasance. Despite the fact that it relates to people and events in Haiti, the case was brought by United States lawyers on behalf of US plaintiffs, was decided by US courts, used the US-style class action method, called for reparations of US proportions and was intervened in by the US government. The article addresses how the US legal culture of expansionism, litigiousness and charity have influenced the case. It asks whether, in drawing on this culture, the US legal system has overextended its extraterritorial engagement in international and foreign affairs.

Abstract: Class action is an important safeguard to protect the rights and legitimate interests of large groups of people and it has already proven successful in advanced foreign legal systems. One of the most popular forms of class action in countries with acontinental legal system (France, Sweden, Argentina) is a representative action, which is initiated by non-profit associations, i.e., “ideological claimants” (associations, foundations, non-profit organizations) in defense of violated collective rights of a large group of people or unspecified persons in the most vulnerable areas of economic life. The institution of collective redress by representative bodies is less popular in countries with common law legal systems (the USA, Australia, Canada), which traditionally use class actions. Nevertheless, countries with common law legal systems such as the United Kingdom (England and Wales) actively use the legal tools for the social protection of the violated rights and interests of citizens. This article analyzes the legislative consolidation and application of representative actions in the Russian Federation. The absence of amechanism (for filing alawsuit before the decision) of judicial protection of professional representatives’ collective rights and public interests according to the generally accepted international practices involving interested persons whose rights have been violated (opt-in or opt-out), creates barriers to the development of representative actions in Russia. At the same time, the scope of these claims and the judicial protection of collective rights and public interests by public associations has its own characteristics, which can be used by legislators to effectively protect human rights.