On 29 June 2022 it was announced that the CAT allowed proceedings between Dr Rachael Kent and Apple Inc. and Apple Distribution International Ltd regarding the prices charged by Apple in its App store.[1] Ms Kent was a proposed representative for all the aggrieved parties of Apple and claimed that Apple was infringing competition law by obtaining 30% income from app developers in exchange for placement in its app store. She requested permission to initiate an opt-out class action, known in England as a collective procedure order (CPO). Although Apple opposed this, the CAT unanimously decided that the subject was sufficiently important to allow these proceedings, but what exactly the proceedings were about would be assessed later. The next discussion was whether her CPO actually met the statutory requirements.

[1] Competition Appeal Tribunal, 29 June 2022, case 1403/7/7/21 (Kent/Apple).

On 13 May 2022, the CAT ruled on a request for appeal by Mastercard Inc in a class action case initiated by Walter Hugh Merricks CBE in connection with the MIFs cartel established by the European Commission in 2007.[1] Merricks had summoned Mastercard on 6 September 2016 on behalf of all of Mastercard’s surviving aggrieved parties, an opt-out case. MasterCard defended itself by asserting that the class action could not or could no longer pertain to people who died after that date. The CAT had rejected this defence in March 2022 and now decided on 16 May 2022 that no appeal could be lodged against that ruling. However, Mastercard could still lodge an objection directly with the appeal court because of the legal issue at hand. Mlex reported on 18 May 2022 that Mastercard had announced that it would lodge an objection.[2]

[1] Competition Appeal Tribunal 13 May 2022, case 1266/7/7/16 (Merricks/Mastercard).

[2] MLex, ‘Mastercard to fight on at appeal court over scope of UK class action’, 18 May 2022.

On 6 May 2022, the Court of Appeal ruled on an appeal of BT Group[1] against the CAT’s 27 September 2021 judgement by which it certified Le Patourel’s proposed damages claim as eligible for collective (class) proceedings upon an opt-out basis.[2] Le Patourel, as second class representative, alleges that BT Group has abused its dominant position in the market for voice only telephony by charging customers supra-competitive prices to customers.

BT Group appealed to the certification of the proposed claim and argued that if the claim were to be certified, it should proceed upon an opt-in basis, instead of opt-out. Opt-in would require any person wishing to benefit from the claims to, deliberately, join the claim at the outset. An opt-out claim, on the other hand, automatically includes all members of a defined class except those that choose to opt-out. The reason the CAT deciding on opt-out had to do with the fact that customers of voice-only services are often elderly and vulnerable and would not easily be inspired to sign up also given the limited award in the end (around 140 pounds).

BT Group argued in an appeal however, that the applicable rules expressed a general preference for opt-in “where practicable”. According to BT Group, it would be practicable to get the proposed class to opt-in because it would be possible to identify and contact BT customers based on customer records held by BT.

The Court of Appeal dismissed the appeal. Later, the court will further rule on whether to grant BT permission to submit an appeal against the CAT’s certification of the claim.

[1] The entities summoned are BT Group PLC and British Telecommunications PLC.

[2] Court of Appeal (Civil Division), [2022] EWCA Civ 593, Case No: CA-2021-000748 (formerly C3/2021/1632).

On 16 February 2022, the District Court of Amsterdam ruled in a case between the foundation Stop Online Shaming (the “Foundation”) and a pornography website called vagina.nl (the “website”), which shows graphic content of persons who are not aware of this and have not consented to this.^[1]District Court of Amsterdam 16 February 2022, ECLI:NL:RBAMS:2022:557

The case concerns the question of whether the website is liable for the unlawful content published by users on the website. In this case, the Foundation acts as the exclusive representative for the alleged victims of unlawful content (persons who appear in the content without their explicit consent).

The District Court opens its decision with the conclusion that the exemption from platform liability does not apply. According to Article 6:196c of the Dutch Civil Code (and the e-Commerce Directive), this exemption does not apply when the platform knows or should reasonably know that the information published is unlawful. If the platform actively intervenes – i.e. by preselecting the content – the platform is considered to have knowledge of the content and the liability exception does not apply. According to the District Court, the explanation given by the website at the hearing shows that the website does preselect content. A video of a forest that the Foundation tried to upload was not published by the website. According to the District Court, this too shows that the website preselects content.

Subsequently, the District Court rules on the question of whether the website acted unlawfully.  According to the District Court, it is unlawful to publish content on an adult website if that content shows recognisable persons who are (completely or partly) naked and that content has been secretly filmed in places where these persons thought they were unobserved. Furthermore, it is unlawful to publish content on these websites that is not professionally produced and shows recognisable persons performing sexual acts in private, unless those persons consent to the publication of the content. Vagina.nl is therefore ordered to remove all unlawful content and pay damages to the victims.

On 8 February, the ICAM Foundation and six individuals launched a collective action against the Dutch State, more specifically the Dutch Minister of Health, Welfare and Sport (hereinafter the “State”), with regard to a data breach that took place at the Dutch Public Health Service (“GGD”).^[1]https://icamcdn.linuxpingops.nl/datalek-ggd.nl/wp-content/uploads/2022/02/20220208_DEF_ANONIEM_Brief_aan_de_Staat_der_Nederlanden_inzake_GGD-datalek_ICAM_c.s._vs_De_Staat_c.s..pdf The Minister of Health, Welfare and Sport is responsible for the IT systems of the GGD. The data breach resulted from the abuse of private data that Dutch citizens had shared with the GGD for the purpose of making a coronavirus vaccination or test appointment, or for the purpose of source and contact testing. Due to a lack of security, call centre employees were able to view and download bulk sensitive information, such as citizen service numbers (BSN), health data and address details. As a result of the data breach, the personal data of at least 6.5 million people were accessible and available for illegal data trafficking. It has been established that the personal data of at least 1,250 people were actually stolen and probably sold.

The ICM Foundation represents the Dutch victims both on the basis of WAMCA and on the basis of participation agreements. The ICAM Foundation, as well as the individual claimants, holds the State liable for the damage suffered by the victims. In addition, the ICAM Foundation summons the State to take adequate measures to prevent this type of incident from recurring in the future.

The class action is based on the grounds that there was a violation of the principle of data minimisation of Article 5 GDPR, the principles of privacy by design and privacy by default of Article 25 GDPR, the security obligation as laid down in Article 32 GDPR and the NEN 7510 standard for information security in healthcare, the Medical Treatment Contracts Act and the Act on Additional Provisions for Processing Personal Data in Healthcare.

In July 2021, the Competition Appeal Tribunal (CAT) examined the battle between two competing mass claim representatives for permission to conduct an action for damages during a five-day hearing. These are proceedings against various banks, including JPMorgan Chase, Barclays and UBS because of their role in the spot forex trading cartel[1]. This requires the CAT to pioneer in the context of the UK class action regime because it is the first time that the CAT is asked to render a decision on which of the two potential mass claim representatives may conduct the proceedings. Both aim to apply an opt-out regime in which injured parties automatically participate, unless they indicate that they do not wish to do so. It is therefore impossible for both claims to result in actual proceedings and the CAT will therefore have to choose which of the two will be allowed to continue.

The two potential representatives are Michael O’Higgins, former head of the UK pension regulator, and Phillip Evans, former chairman of the Competition and Markets Authority (CMA) inquiry group.[2] Both want to represent thousands of institutional investors and act on their behalf in order to recover the damage they have suffered from the banks.

During the hearing, the suitability of both claims was discussed, including in the areas of litigation planning, funding, and definitions of the group to be represented. O’Higgins’ group managed to obtain more financing than Evans’ group, but Evans argued that this would not necessarily mean that O’Higgins’ claim for damages is more suitable than his and that his financing would in any event be sufficient.[3] The banks defended their position, inter alia, by asserting that, in so far as one of the proceedings were even permitted, only an opt-in regime would be appropriate in this case because of the nature of the group and the value of the possible claim. According to the banks, the opt-out regime as introduced in the UK legal system was not intended for large and well-to-do companies like the injured parties in this case.[4] As far as possible representatives are concerned, an opt-in regime is in fact not suitable because it entails practical difficulties such as having to approach and contact potential injured parties, which will take a lot of time.

The group of injured parties to be represented will include pension funds, asset managers and hedge funds, and the claim for damages to be submitted is estimated at around seven billion euros.

[1] European Commission press release, ‘Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel’, 16 May 2019.

[2] Case references are 1329/7/7/19 Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others and 1336/7/7/19 Mr Phillip Evans v Barclays Bank PLC and Others.

[3] According to MLex, ‘Rival claimants for forex-rigging damages lay out core arguments for trial suitability’, 12 July 2021.

[4] According to MLex, ‘UBS insists forex-cartel mass damages claims only viable as ‘opt in’ actions, 14 July 2021.

Italy introduced new rules regarding class action lawsuits on 19 May 2021.[1] The new rules make it possible to start class actions in more areas of law, as well as expanding the opt-in system (in which it is possible to join a class after a favourable judgment), creating better opportunities for evidence (such as disclosure with fines), and encouraging settlements. To emphasise their more general scope, the new rules are now included in the Italian Code of Civil Procedure (ICPC) and no longer in the Consumer Code.

[1] Law n. 31/2019, published on 18 April 2019.

In a four-day trial starting on 19 April 2021, rival claimants the Road Haulage Association (RHA) and UK Trucks Claim (UKTC) argued before the Competition Appeal Tribunal (the CAT) that their applications should be approved, enabling them to proceed to trial.[1] Both claimants are potential class action representatives intending to sue the truck manufacturers that were involved in the truck cartel on behalf of injured parties that bought or leased trucks from the cartelists. The CAT will have to decide whether or not to award a “collective proceedings order” (CPO) to one, both or neither of the claims. A CPO is required under the UK class action regime for either claim to proceed.

The claims differ in that the RHA is looking to use an “opt-in” scheme, while UKTC is primarily looking to bring an “opt-out” claim, with an opt-in scheme put forward only as an alternative. Another difference is that the UKTC claim does not extend to second-hand trucks, while the RHA claim covers all trucks, both new and second-hand.

The truck manufacturers argued that neither RHA or UKTC should be awarded certification because their claims did not satisfy the criteria for approval. As early as October 2019, the cartelists tried to have the planned class actions struck out by challenging the funding arrangement underlying the lawsuits, but without success at first instance.[2] A hearing took place in January 2021 in appeal proceedings brought by DAF to challenge this ruling. The appeal continues.[3]

[1] The case references are: 1282/7/7/18 UK Trucks Claim Limited v. Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others; 1289/7/7/18 Road Haulage Association Limited v. Man SE and Others.

[2] Competition Appeal Tribunal 28 October 2019, [2019] CAT 26, Case No. 1282/7/7/18, 1289/7/7/18.

[3] According to Mlex, ‘DAF tells UK judges truck-cartel mass suits must be struck out over funding arrangements’, 26 January 2021.

In the case against vagina.nl, three interlocutory judgments have so far been rendered. The first two of these have been discussed in Q4 2020. On 28 October 2020 the court ruled that Stop Online Shaming was to be appointed as the exclusive representative. Expertisebureau Online Kindermisbruik is also allowed to perform litigation actives, but only with regard to children. On 18 November 2020 the court proposed the manner in which the case would be announced. The court proposed 1) a text to be published in national newspapers and 2) a text on the Dutch case law website informing potential Dutch victims how to opt out and potential non-Dutch victims how to opt in. On 24 February 2021 the court published the final texts to be published. Interestingly, the defendant argued that the text should be as neutral as possible. The court agrees with this argument in principle, but considers that the text and headline should draw attention. Therefore, preference was given to a slightly less neutral text. The final text is published in the collective claims register. The judgments demonstrate the practical aspects of the opt-in/opt-out character of class actions and the manner in which the court deals with such aspects.

The Stop Online Shaming (SOS) foundation and the Expertise Centre for Online Child Sexual Abuse (EOKM) have filed class actions against vagina.nl for the unauthorised publication of sex videos and photographs. The District Court held in its interlocutory judgement of 28 October 2020 that the case could be substantively adjudicated because the requirements of Article 1018c(5) of the Dutch Code of Civil Procedure had been met. ^[1]Amsterdam District Court 28 October 2020, case number C/13/690916 / HA ZA 20-284. This is one of the first cases in which this point has been decided under the new WAMCA. In this respect, the District Court held, inter alia, that the action was one of principle, which meant that lower requirements applied in determining whether there was a right of action. The District Court did assess, inter alia, whether it was sufficiently plausible that a class action would be more efficient and effective than individual actions in this case. The interests could be sufficiently bundled for that purpose. The foundations had also pointed out the diffidence of the parties involved as regards personally initiating proceedings against the website owner. After this decision, the District Court had to designate an exclusive representative (as referred to in Article 1018e of the Dutch Code of Civil Procedure), but came up against the fact that the claims had been lodged by two legal entities while the law does not regulate a joint request. The District Court dealt with this by designating SOS as the exclusive representative and ruling that EOKM (which focuses on minors) was also permitted to perform procedural acts. In this regard, too, the District Court decided that the decision had to be recorded in the central register, despite this not being prescribed by law.

By interlocutory judgment of 18 November 2020, the District Court supplemented its judgment of 28 October 2020, the reason being that the District Court should have decided ex officio on the provisions of Articles 1018f and 1018g of the Dutch Code of Civil Procedure, but neglected to do so. ^[2]Amsterdam District Court 18 November 2020, case number C/13/690916 / HA ZA 20-284 Article 1018f of the Dutch Code of Civil Procedure attaches a number of rules to the designation of SOS as exclusive representative, the purport of which is that the persons whose interests are being represented by SOS are informed of that designation and can consider their position (‘opt out’, paragraph 1, or ‘opt in’, paragraph 5). The District Court now added that the parties could comment on the practical details of the required notification to the persons whose interests are represented by the foundations, could comment on the necessity and usefulness of setting a time limit for a settlement period and could express any wish they may have to supplement the grounds of the claim. In that context, the District Court directed that advertisements regarding the class action had to be published in a number of national newspapers. The District Court gave the parties the opportunity to comment on the text of the advertisement and on the text that the District Court intended to publish on the rechtspraak.nl website.