I. Introduction 11. II. Part One. Comparative analysis 41. Section One. Role of the court at the initiation of the collective redress proceedings 43

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1 Table of contents Summary 5 Preface 7 I. Introduction 11 A. Setting the scene Context Methodology Structure 19 B. The national mechanisms introduced England & Wales: Group Litigation Order Germany: Capital Market Model Claim Procedure Italy: Azione collettiva risarcitoria Portugal: Acção popular Spain: Acción colectiva para la defensa de derechos e intereses de los consumidores y usuarios Sweden: Grupprättegång 38 II. Part One. Comparative analysis 41 Section One. Role of the court at the initiation of the collective redress proceedings 43 A. Problems that need to be avoided Unmeritorious claims Inappropriate rerpesentative claimant Too large or imprecise group definition 53 B. Comparative analysis Role of the court once faced with a collective claim Filtering the claims on the basis of admissibility requirements Giving a separate ruling on admissibility 79

2 316 The role of the court in collective redress litigation 2. Role of the court when ensuring the suitability of the representative claimant Assessing the adequacy of representation of the repre sentative claimant and his financial capacity The role of the court when verifying the way the repre sented group is constituted Choosing between opt-in or opt-out proceedings Fixing the modalities of the option s exercise Verifying the modalities of the option s exercise 107 C. Concluding summary The filtering stage Identified concerns and abuses Interests at stake Potential solutions Approach of the selected Member States to the proposed solutions Judicial verification of the representative claimant Identified concerns and abuses Interests at stake Potential solutions 114 solutions Judicial verification of the constitution of the represented group Identified concerns and abuses Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions 117 Section Two. Role of the court during the progress of the collective redress proceedings. 121 A. Problems that need to be avoided Impression of judicial arbitrariness Lengthy, complex, expensive and fishing-expedition processes Additional management tools to deal with common and individual issues Additional management tools to deal with evidence Inadequate protection of represented group members interests 131

3 Table of contents 317 B. Comparative analysis Exclusively competent, specially trained and experienced courts as a safeguard against judicial arbitrariness Case management Existing case management powers Additional management tools to help the court to deal with common and individual issues Additional management tools to help the court to supervise the parties collection and preparation of evidence The role of the court as protector of the absent represented group members interests Communicating with the represented group members during the trial Considering the participation of the represented group members Maintaining supervision of the adequacy of representation of the representative claimant Encouraging and approving collective settlements 161 C. Concluding summary Enhanced and improved management of the case Identified concerns and abuses Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions Active conduct of the trial: a responsibility shared by the court and the parties Identified concerns and abuses Interests at stake Potential solutions 173 solutions A management of the case sensitive to the interests of the represented group members Identified concerns and abuses Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions 175

4 318 The role of the court in collective redress litigation Section Three. Role of the court at the judgement stage 179 A. Problems that need to be avoided Dilution of the individual rights in the interest of the group Confusion between generic and individual issues Over-compensation and/or under-compensation Punitive damages Extensive and abusive binding effect of the judgement Capture of the mass dispute by intermediaries Abuses encouraged by third-party funders Entrepreneurial lawyering 196 B. Comparative analysis Role of the court in deciding the terms of the final verdict Choosing between a final and/or an interim judgement Assessing and calculating the mass damage Choosing the form of compensation Role of the court in assessing the extent of the binding effect of the final decision Role of the court in monitoring funding arrangements Third-party funding agreements Lawyers funding agreements 222 C. Concluding summary The final verdict Identified concerns and abuses Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions The binding effect of the final verdict Identified concerns and abuses Interests at stake Potential solutions 229 solutions Funding arrangements Identified concerns and abuses 231

5 Table of contents Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions 232 Section Four. Role of the court at the distribution stage 233 A. Problems that need to be avoided Ineffective judgement due to difficulties linked to the distribution of the award Concern that the defendant does not in practice pay for its liability Concern that direct compensation is prohibitively expen sive and/or time consuming Concern that the strict application of the traditional law of damages to direct distribution of mass award is pro hi bitively expensive and/or time-consuming Unclaimed damages 242 B. Comparative analysis Role of the court in the execution of the decision and in the distribution of damages Choosing between individual and collective recovery Choosing between direct and indirect compensation Deciding the supplementary steps to be undertaken by individuals in order to obtain compensation Appointing a claim administrator to administer and allocate the award Role of the court in the affectation of unclaimed damages 251 C. Concluding summary Distribution of compensation Identified concerns and abuses Interests at stake Potential solutions Approach by the selected Member States to the proposed solutions Unclaimed damages Identified concerns and abuses Interests at stake 255

6 320 The role of the court in collective redress litigation 2.3. Potential solutions 255 solutions 255 III. Part Two. Recommendations 257 A. General preliminary remarks 259 B. Role of the court at the initiation of the collective redress proceedings Gatekeeping responsibility Role of the court at the initiation of the collective proceedings Approving the suitability of the representative claimant Monitoring the constitution and definition of the represented group 269 C. Role of the court during the progress of the collective redress proceedings An enhanced and improved management of the case Conducting the trial actively: a responsibility shared by the court and the parties Managing the case in a way which is sensitive to the interests of the represented group members 278 D. Role of the court at the judgment stage Deciding the terms of the final verdict Supervising the funding agreements 289 E. Role of the court at the distribution stage Role of the court in the execution of the judgement and in the distribution of damages Role of the court in the affectation of the unclaimed damages 296 Addendum 297 Bibliography 303 Index 313 Table of contents 315