The Next Wave of Global Litigation.

AuthorPulido, Marco

THE "dramatic increase in international commerce" has increasingly required companies and their lawyers to think "globally when considering their litigation objectives." (1) In this article, we discuss four emerging trends that are likely to have a significant impact on global litigation in the product liability space and beyond: (1) the expansion of class and collective actions, (2) the explosion in costly data-privacy litigation, (3) the budding product liability lawsuits in the cannabis and vaping industries, and (4) the increase in third-party litigation funding.

  1. Class and Collective Actions

    The "United States class action regime is sophisticated and well established," but the United States is not the only jurisdiction with a form of collective action. (2) Procedures for "collective actions or aggregate litigation in some form have existed ... for some time in both common law and civil law countries." (3)

    Canada has "well-established class action regimes at [the] federal level and in most of its provinces." (4) Under Canada's class action procedure, individuals and corporations are both permitted to bring class actions for a wide variety of causes of actions where the purported representative plaintiff is able to establish the certification or authorization criteria. These criteria include a class of two more persons, issues that are common to the class, and that the class action is the preferable procedure. Most jurisdictions in Canada have relatively low certification thresholds.

    Australia similarly has a well-established collective action procedure, "particularly at [the] federal level and in some states." (5) The Australian collective action procedure "is widely used for product liability and securities litigation," although there have also been some "competition damages class actions." (6)

    Class and collective redress actions "are on the rise in Europe" as well, (7) where "collective action regimes for competition law damages claims are nascent at best, but there is a strong push from the European Commission ... for such regimes to be developed and enhanced within the Member States." (8)

    Many European countries, with a perceived "increasing number of mass wrongs" and "lack of any feasible alternative," have modeled their class or collective action procedures after the well-established American class action system, "to the point where the class action has now [become] one of the most successful judicial exports of [the] United States." (9)

    The United Kingdom has enacted the Consumer Rights Act, which "permits private-enforcement actions for violations of competition law, and authorizes the Competition Appeals Tribunal to bless opt-out suits"; in other words, "a consumer antitrust class action in the American style is possible in the United Kingdom." (10) This "U.K. innovation was one of many responses to the European Commission's recommendation for collective actions in...

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