Although a number of different terms are possible – group actions, collective actions, class actions (the term used in US) and mass litigation – they all refer to the same thing: the possibility to act for large groups in similar cases in the Netherlands. These are cases that attract a great deal of publicity and attention at a national and international level, without exception.
BarentsKrans has made a major contribution to the development of this instrument ever since mass litigation first became possible in the Netherlands. Back in the 1980s, BarentsKrans was one of the first firms of lawyers to institute mass litigation (Coop AG / ABN AMRO). Since then we have led the way in all kinds of areas, because of which the mass litigation weapon has now become one of the most feared procedural techniques. Back in 2001, more than 100,000 securities lease clients were already being represented by us via the first Internet-coordinated mass litigation (Stichting Leaseverlies / Dexia Bank, better known as the Legio Lease affair). The case was a success: a settlement worth billions was agreed on with Dexia in 2005. This was followed later by (amongst other cases) the Stichting Verliespolis (better known as the profiteering policy affair), in which even more profiteering policy clients were represented. This resulted ultimately in the achievement of multi-billion compensation settlements with the six biggest insurers in the Netherlands.
Besides the possibility to institute proceedings on behalf of big groups of victims, it has also been possible to declare the settlements that have been agreed on binding to big groups of victims in the Netherlands since 2005. If the court of appeal in Amsterdam declares a settlement binding following a review, all of the various victims will be bound by the said settlement, except where they utilise the option to issue an opt-out in the time allowed for this purpose. If they do this, it will become possible for them to institute individual proceedings at this stage. If they do not, this possibility will be ruled out. BarentsKrans is leading the way in this area too: two requests for orders declaring a collective settlement binding were submitted virtually immediately after the entry into force of the so-called Class Action (Financial Settlement) Act (Wet collectieve afwikkeling massaschade (WCAM)): in the DES case and the Dexia issue (share lease). In the last of the two issues above, lawyers from BarentsKrans acted for the Stichting Leaseverlies, the Dutch Consumers’ Association (Consumentenbond) and the Association of Stockholders (Vereniging van Effectenbezitters), which had agreed on a settlement worth billions with Dexia. The court of appeal in Amsterdam declared this settlement binding too.
Funding and no cure / no pay
BarentsKrans is the most specialist firm involved in the field of mass litigation in the Netherlands. It has decades of experience and a track record consisting of the cases mentioned above and also cases involving the Beleggingsclub D’n Anwas, Stichting Via.Claim, the ObliDAF and DupDAF foundations, Stichting Volendam, the Vereniging DSBSpaarder.nl and also various foundations that act for the victims of cartels (including the air cargo cartel and the lift cartel). As a result, we have developed an extensive network of leading national and international claim funders. In certain circumstances, they are willing to finance mass litigation cases entirely on a no cure / no pay basis. In this situation, all costs – including lawyer’s fees – are covered by the litigation funder. If successful, the latter will receive a percentage of the damages. If not successful, it receives nothing. The victims themselves are not subject to any litigation risks.