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Chr. Frank (Frank) Kroes

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“All animals are equal, but some are more equal than others”. This is probably the most famous sentence from George Orwell’s Animal Farm. Sixty-two  years after its first publication (on 17 August 1945), the Court of Appeal in Amsterdam had to decide whether this also applies to the beneficiaries of a collective settlement under the Act for the Collective Settlement of Mass Claims (Wet collective afwikkeling massaschade or “Wcam” for short). Fortis Group was a Dutch/Belgium…

The Dutch Act on Collective Settlements (Wet collectieve afwikkeling massaschade or “Wcam”) was introduced in 2005 and revised in 2013. It offers the possibility to get a declaration that a settlement is binding on the entire class (as defined in the settlement agreement), much like a U.S. class settlement. Despite its existence for over a decade, there are hardly any precedents on it from the Supreme Court. The reason for that is probably that only…

The Netherlands will get a collective action for monetary damages, not dissimilar to a US-style class action. The government placed a bill to that effect before Parliament on 15 November 2016. However, the Netherlands are keen to avoid what is widely seen, at least in this country, as the downside of class action litigation: blackmail settlements, because of the reputational risk and prohibitive cost of defense that a class action involves, and plaintiff’s lawyers receiving the bulk of the proceeds, whereas little money goes to the aggrieved parties.

Recently, the Dutch Supreme Court handed down three judgments that provide additional guidance as to when a collective action may be used, for what and with what effect. The first case makes clear that a collective actions tolls the statute of limitations, not only for the vehicle (an association or foundation) that acts as plaintiff, but also for the members of the group that it represents. This is the case even, if the claim in…