ICLG The International Comparative Legal Guide to: Class & Group Actions 2018 10th Edition A practical cross-border insight into class and group actions work Published by Global Legal Group, in association with CDR, with contributions from: Arnold & Porter Kaye Scholer LLP J. Sagar Associates Baker Botts L.L.P. Josh and Mak International Blake, Cassels & Graydon LLP Lin & Partners Attorneys-at-Law Clayton Utz Linklaters LLP Cliffe Dekker Hofmeyr Mori Hamada & Matsumoto Clifford Chance Munari Cavani Studio Legale De Brauw Blackstone Westbroek N.V. Norton Rose Fulbright Drinker Biddle & Reath LLP Russell McVeagh Eversheds Sutherland Ltd. Squire Patton Boggs Fangda Partners Yigal Arnon & Co. The International Comparative Legal Guide to: Class & Group Actions 2018 General Chapters: 1 EU Developments in Relation to Collective Redress – Alison Brown, Arnold & Porter Kaye Scholer LLP 1 2 International Class Action Settlements in the Netherlands since Converium – Contributing Editors Jan de Bie Leuveling Tjeenk & Dennis Horeman, De Brauw Blackstone Westbroek N.V. 5 Ian Dodds-Smith & Alison Brown, Arnold & Porter 3 Deal or No Deal? Increased Judicial Scrutiny of Class Action Settlements in the U.S. – Kaye Scholer LLP Bradley J. Andreozzi, Drinker Biddle & Reath LLP 13 Sales Director Florjan Osmani Country Question and Answer Chapters: Account Director Oliver Smith Sales Support Manager 4 Australia Clayton Utz: Colin Loveday & Andrew Morrison 18 Toni Hayward Editor 5 Belgium Linklaters LLP: Joost Verlinden & Michiel Vanwynsberghe 26 Caroline Collingwood Senior Editors Suzie Levy, Rachel Williams 6 Canada Blake, Cassels & Graydon LLP: Jill Lawrie & Daniel Szirmak 31 Chief Operating Officer Dror Levy 7 China Fangda Partners: Frank Li & Rebecca Lu 38 Group Consulting Editor Alan Falach 8 England & Wales Arnold & Porter Kaye Scholer LLP: Alison Brown & Ian Dodds-Smith 45 Publisher Rory Smith Published by 9 France Squire Patton Boggs: Carole Sportes & Valérie Ravit 55 Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK 10 Germany Clifford Chance: Burkhard Schneider 63 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] URL: www.glgroup.co.uk 11 India J. Sagar Associates: Ananya Kumar & Pragya Chauhan 72 GLG Cover Design F&F Studio Design 12 Israel Yigal Arnon & Co.: Barak Tal & Ruth Loven 78 GLG Cover Image Source iStockphoto 13 Italy Munari Cavani Studio Legale: Raffaele Cavani & Bruna Alessandra Fossati 85 Printed by Stephens & George Print Group 14 Mori Hamada & Matsumoto: Daisuke Oda & Aruto Kagami 92 October 2017 Japan Copyright © 2017 Global Legal Group Ltd. 15 New Zealand Russell McVeagh: Chris Curran & Andrew Butler 100 All rights reserved No photocopying ISBN 978-1-911367-78-9 16 Pakistan Josh and Mak International: Aemen Zufikar Maluka & Pir Abdul Wahid 107 ISSN 1757-2797 Strategic Partners 17 Russia Baker Botts L.L.P.: Ivan Marisin & Vasily Kuznetsov 113 18 South Africa Cliffe Dekker Hofmeyr: Pieter Conradie & Anja Hofmeyr 119 19 Switzerland Eversheds Sutherland Ltd.: Peter Haas 125 PEFC Certified 20 Taiwan Lin & Partners Attorneys-at-Law: Robert H. Lou & Joey Kao 132 This product is from sustainably managed forests and controlled sources 21 USA Norton Rose Fulbright: Daniel M. McClure & Matthew A. Dekovich 137 PEFC/16-33-254 www.pefc.org Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM EDITORIAL Welcome to the tenth edition of The International Comparative Legal Guide to: Class & Group Actions. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of class and group actions. It is divided into two main sections: Three general chapters. These are designed to provide readers with a comprehensive overview of key issues affecting class & group actions, particularly from the perspective of a multi-jurisdictional transaction. Country question and answer chapters. These provide a broad overview of common issues in class and group actions in 18 jurisdictions. All chapters are written by leading class and group actions lawyers and industry specialists and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editors Ian Dodds-Smith and Alison Brown of Arnold & Porter Kaye Scholer LLP for their invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com. Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected] Chapter 10 Germany Clifford Chance Burkhard Schneider Act (Wertpapiererwerbs- und Übernahmegesetz, WpÜG). Yet, the 1 Class/Group Actions 2012 amendment has broadened the scope of the Act to include mis-selling claims in which false or misleading public information 1.1 Do you have a specific procedure for handling a series concerning securities is an element of a claim against a broker or or group of related claims? If so, please outline this. dealer in financial products. Thus, not only can parties responsible for prospectuses and ad hoc notices be defendants in model Under German law, there is no specific procedure for handling a proceedings, but also brokers and dealers. series or group of related claims applicable under all circumstances. The basic procedures of the Act, however, remain unchanged. In While the general rules of civil procedure permit groups of claimants essence, the law permits claimants to apply in their pending lawsuits to aggregate their claims into a single action, no specific procedures for a collective action regarding common factual and legal issues exist for handling these aggregated claims. Courts even have, and before a Higher Regional Court. If a sufficient number of claimants often use, discretion to split aggregate actions by multiple claimants apply within a certain time frame, the first trial court to receive an into separate individual proceedings. application will aggregate the applications and submit them to In Germany, claimants also normally only have standing to bring a Higher Regional Court. The Higher Regional Court will then their own claims in litigation. Thus, series or groups of related select a lead claimant to represent all other claimants in the model claims generally cannot be brought by individuals or institutions in a proceedings while all individual actions are stayed. Nevertheless, representative capacity. However, the principle of individual standing all other claimants may still file briefs in the model proceedings, but is softened de jure by procedures that provide for representative or are not allowed to contradict the lead claimant’s submissions. In collective actions in selected areas of law, and de facto by private practice, however, most ordinary claimants in model proceedings efforts to replicate collective procedures, by assigning numerous remain passive. Based on the lead claimant’s and the defendant(s)’ related claims to litigation vehicles established by plaintiffs’ law submissions, the Higher Regional Court will rule on the common firms, often supported by commercial third party funding. issues of fact or law raised in the aggregated applications. Hence, the model proceedings resemble a class action led by one claimant on behalf of all similarly situated claimants who have brought a lawsuit. 1.2 Do these rules apply to all areas of law or to certain The model ruling will bind trial courts in all individual actions affected sectors only e.g. competition law, security/financial by the common issues of law or fact – irrespective of whether a party services? Please outline any rules relating to specific areas of law. in these proceedings was an applicant for the model proceedings. Under the revised Act, instead of bringing a lawsuit, investors are The German Capital Investors Model Proceedings Act alternatively able to register their claims with the Higher Regional (Kapitalanleger-Musterverfahrensgesetz, KapMuG) enables investors Court handling the model proceedings. These investors do not to have elements of pending securities actions adjudicated collectively. become parties to the model proceedings and are barred from pursuing their individual claims while the model proceedings are The Act came into force in 2005, seeking to address the German pending. De jure, the registered claimants only enjoy a tolling of courts’ difficulties with administering large numbers of similar the statute of limitations for the duration of the model proceedings. securities actions, in particular over 13,000 individual actions Yet, one can expect registered claimants to benefit from thede facto brought against Deutsche Telekom. It introduced a unique procedure precedential value of model proceedings in practice. permitting claimants to collectively litigate common issues of law or fact that arise in their individual securities actions before a single higher court. In 2012, the German