For The Defense, November 2012 - DRI Today

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Think Globally Another Step Forward European-Style Class Actions By Dr. Thomas Rihm The prospect of European- style class actions took another step forward recently when the European Parliament passed a resolution emphasizing the need to legislate a standard approach toward collective redress, that is, class actions. This column provides an overview of this recent resolution and an update on existing class action laws throughout the European Union. In this recent resolution, the European Parliament underscored the need for a judicial framework applicable to all legal entitlements that would ask courts in Europe to deal with mass claims according to a uniform, “horizontal framework” across the entire European Union. Earlier efforts by the European Commission on collective redress mainly focused on consumer protection and competition law and used different approaches in different sectors. In the recent resolution, the European Parliament also resolved that it should not introduce American- style, U.S. class actions through legislation that would adopt certain practices such as extensive pretrial discovery procedures, punitive damages, contingency fee arrangements, and the U.S. legal system tradition that parties must bear their own legal costs regardless of the outcome of litigation. The European Parliament emphasized in the resolution the importance of taking a opt-in approach that required an action for collective redress to identify and to make known all claimants seeking the collective redress when they filed a claim for collective redress, as opposed to the U.S. framework, which provides res judicata for all claimants who have not opted out before litigants agree to a settlement or a court hands down an award. The European Parliament resolution offers guidance to the European Commission in its further legislative work on collective redress in 2012 and the following years. While the “top-down approach” taken by the European Commission and the European Parliament has received well- deserved public attention over the last years, a majority of 27 European Union members countries had passed almost unnoticed collective redress legislation in the last two decades, including, among others, France in 1992, Portugal in 1995, the United Kingdom, ■■ Dr. Thomas Rihm is a senior partner with the mid-sized business law firm of Thouvenin Rechtsanwälte in Zürich with more than 20 years of experience in dispute resolution and arbitration, particularly focusing on shareholder litigation battles and disputes dealing with private company takeovers and D & O liability cases. Think Globally, continued on page in the French- influenced and Italian- influenced parts of 81 78 ■ For The Defense ■ November 2012 without Scotland, and Spain in 2000, Sweden in 2003, Germany and The Netherlands in 2005, Italy and Greece in 2007, Bulgaria in 2006 and 2008, Denmark in 2008, and Poland in 2010. It does not come as a surprise that these collective redress regimes are as diverse as these European Union member countries. Significant differences exist, to name just a few, in terms of available legal reliefs, such as mere injunctive judgements as opposed to judgements also granting damage awards; in terms of how victims have the right to sue, such as only through consumer associations or as individual claimants grouped together in a class of claimants; in terms of procedures, such as optin as opposed to opt-out classes; or whether the regimes permit lawyers’ contingency fee arrangements or thirdparty litigation funders. For example the Swedish Class Action Act of 2003 offers a collective redress system that comes close to U.S. class actions under rule 23 of the U.S. Federal Rules of Civil Procedures. Then there is France, which entrusts claim enforcement, including damage compensation, only to governmentally approved nonprofit associations in the consumer and financial market law areas. Austria has a system similar to France whereby not- forprofit associations can represent one or more claimants through an assignment of claims. The United Kingdom has taken yet another but rather innovative approach through its group litigation order (GLO) or GLO- system, a procedural judicial management mechanism that allows a judge to resolve certain factual or legal issues, or both, common to a variety of claimants by an award order, such as the illegality of certain market actions or the causality between illicit actions and resulting damages. However, claimants and claimants’ entitlements are not collectivized in any form, so claimants remain individual trial parties from the moment that they file their court actions until a dispute is resolved, though individual claimants may benefit from a positive GLO award. Switzerland enacted in 2011 a new Civil Procedural Code, thereby replacing the 26 civil procedural codes corresponding to the 26 different Swiss “cantons,” akin to federated states, in effect for more than a 100 years and under which particular difficulties existed in reconciling the trial systems of the Latin cantons existing
Defense Ethics and Professionalism An Entitlement of the Profession The Pro Bono Call of Professionalism By Thomas A. Gilligan, Jr. Not too long ago, I accepted a pro bono case in which I agreed to represent a woman seeking a domestic abuse order for protection. When I arrived at the courthouse, I saw a woman sitting alone in a conference room. Guessing that it might be my client, I knocked on the door and entered the room. I asked her name and told her that I would be her lawyer. She immediately burst into tears. She then apologized and said that she thought I was going to tell her that I represented her abuser. I was able to help her get the relief that she and her children needed. She thanked me for being her lawyer. I walked out of the courthouse that morning with a renewed understanding of the how a lawyer can affect someone vulnerable, scared, and poor. She did not thank me because I was particularly capable, or even because I was able to help her. She thanked me because I showed up. Model Rule 6.1 reminds lawyers of their “professional responsibility” to provide pro bono legal services. See Model Rules of Prof’l Conduct R. 6.1. This is not a mandatory rule. See Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono Is That What We Want, 7 Geo. J. Legal Ethics 1139 (1994). In most states, pro bono representation remains an aspiration, which makes it a matter of professional fulfillment, rather than a matter of ethics. See Policies—State Pro Bono Ethics Rules, Am. Bar Ass’n (Jan. 20, 2012), http://www.americanbar.org/groups/ probono_public_service/policy/state_ethics_rules.html (last visited Sept. 13, 2012). For the most part, lawyers understand their responsibility to do free work for the poor. We aspire to do pro bono work, not because it is the right thing to do, or because it makes us feel good, but because it is a vocation of our profession. We have received a unique and exclusive privilege to provide legal advice and representation. The comments to Model Rule 6.1 remind us that “[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.” Model Rules of Prof’l Conduct 6.1 cmt. 1. The breadth of Model Rule 6.1 likely was designed to cast the widest possible net for pro bono. A lawyer should be heartened by the wealth of opportunities that satisfy it. You can provide legal services to persons of limited means. You can provide legal services to charitable, religious, civic, community, governmental, and educational organizations designed primarily to address the needs of persons of limited means. The rule reflects your skill set, interest, or expertise. The legal needs of the poor are great. Although public defenders, poverty law centers, law students in law clinics, and others partially fulfill the legal representation needs of the poor, the needs are so great that others still must fill the gap. Taking yourself from understanding to action can only occur if you take a professional interest in the need for your help and gain an awareness of the critical nature of the need. Once you understand the professional obligation and the need, you must begin thinking of the ways that you can meet your professional responsibility to do pro bono work. It is difficult to translate that understanding into an undertaking. We often exaggerate the effect that taking a pro bono case will have on our practices and underestimate the tremendous effect that we can have if we take a case for a pro bono client. Keep in mind that you are immediately competent to do what you do in paying practice for free. On the other hand, you can become competent to do something that you have not dreamed of since law school. If you are a trial lawyer, learn to advise a nonprofit board. If you are a medical malpractice lawyer, learn immigration law. If you are an insurance coverage lawyer, represent kids in juvenile proceedings. Sometimes we forget about the breadth of our education and how it has prepared us to do many things. Countless local and national organizations would be happy to train you to begin undertaking pro bono representation. Many state and local bar associations have active pro bono programs, and your state or local defense organization may also have established pro bono service connections. Often the same pro bono group that trains you will ask you to handle cases. Unlike your daily practice, you will never, ever, struggle to find clients. And DRI members have a proud pro bono representation tradition. See “DRI Cares Honor Roll,” http://www.dri.org/About/Cares (then follow “Click here” hyperlink). ■■ Thomas A. Gilligan, Jr., is a shareholder with Murnane Brandt in St. Paul, Minnesota. Mr. Gilligan’s trial and appellate practice focuses on product liability, employment, and personal injury litigation in Minnesota and Wisconsin. Mr. Gilligan serves as publications chair for the DRI Lawyers’ Professionalism and Ethics Committee When you have selected your interest area and develand is a former investigator for the Ramsey County District Ethics Committee. Ethics, continued on page 81 For The Defense ■ November 2012 ■ 79
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