Monday, June 8, 2009
Mark Behrens, Greg Fowler, & Silvia Kim (Shook, Hardy & Bacon) have published Global Litigation Trends in the Michigan State Journal of International Law.
The article explores three particular areas where changes are occurring or are under consideration outside of the United States: (1) aggregate litigation, (2) litigation funding, and (3) punitive damages.
The article concludes that a growing list of countries outside the United States, including Canada, Australia, most European, and several South American countries, now recognize some form of multiclaimant litigation—whether class actions, groups actions, or representative actions by consumer or public organizations. The trend, however, has been to reject wholesale adoption of U.S.-style class actions. What has emerged instead is a distinctly "un-American" approach that generally disfavors opt-out procedures and often allows public bodies and private consumer organizations to bring collective actions in addition to (and sometimes in place of) individuals. Foreign countries also have not so far been inclined to change other rules that have helped make class action lawsuits practical in the United States. In particular, there have not been widespread calls to do away with the loser-pays rule. Contingent fees and punitive damages remain generally prohibited, but changes are occurring in this area and past prohibitions are softening. The steps taken so far in these two areas, in particular, have been incremental and modest—but a wall is built one brick at a time. If collective actions become more prevalent, and the foreign plaintiffs’ bar better funded and coordinated as a result, it would not be surprising to hear calls for broader and speedier reform.
Download the article [PDF] Download DC-162736-v1-Global_Litigation_Trends_Article_pdf.