Collective actions, or class actions, are proceedings in which action is taken on behalf of several parties, often through a foundation (stichting) or association (vereniging).

Class actions usually involves mass damages, i.e. financial (material or immaterial) harm (e.g. share price-related damages, cartel damages, loss of control over personal data or product liability) but the case can also have a more general or public interest (e.g. environmental measures or prevention of misleading advertising). In the United States, class actions around mass damages are commonplace. In the Netherlands, the number of class actions is fairly stable over the years, although they do seem to attract more attention (in media) these days than before.

bureau Brandeis is involved in several high-profile class actions in the Netherlands and therefore has extensive experience in this form of dispute resolution.

Different class actions

Depending on the type of damages and also (the numbers of) injured parties, class actions can be conducted in different ways. For instance, individual claims can be transferred to a foundation (based on the assignment model), which then claims damages in its own name and title. In addition, a foundation or an association can also act on behalf of one or more groups of injured parties under Art. 3:305a of the Dutch Civil Code.

Mass damages involve large numbers of injured parties who have suffered the same type of monetary damage at the hands of one or a limited number of injurers and where the same or similar legal and factual issues are involved. It may involve, for example, deception of shareholders in a stock market fund, concealment of technical defects in mass-marketed consumer products, or collective redress by parties that have unlawfully gained advantages through cartels.

With the introduction of the Collective Mass Claims Settlement Act (WCAM) in 2005, mass claim cases can be settled collectively in the Netherlands and these settlements can be declared binding by the Amsterdam Court of Appeal. The binding declaration means that injured parties who were not involved in the settlement themselves can also derive rights from it. If the injured party does not wish to be bound by the settlement, he can indicate this within a fixed term, the so-called ‘opt out’.

With effect from 2020, the Act on Settlement of Mass Damage in Collective Action (WAMCA) came into force, which also allows for direct claims for damages. The WAMCA also provides for the possibility of appointing an exclusive representative. Another essential feature of proceedings under the WAMCA is that in principle, proceedings are conducted on the basis of the opt-out principle. This means that, in principle, the representative to be appointed represents all injured parties belonging to the “narrowly defined group”, unless an injured party declares not to be represented. With the WAMCA, the Netherlands is (still) leading the way, being one of the few jurisdictions in Europe that has actually implemented the Directive on Representative Actions for the Protection of Collective Interests of Consumers.

The collective action team

bureau Brandeis’ collective action team consists of specialists in areas including contract law, corporate law, financial law, privacy law, competition law and more generally in collective litigation and settlement of mass tort cases.

The team handles cases in cooperation with advocates or claim funders of class actions. Our team also acts in class actions that are mainly conducted in other jurisdictions, such as the United States, but have offshoots in the Netherlands. Think of witnesses who need to be heard here, or providing assistance to injured parties based in the Netherlands. The team also has experience in drafting funding agreements and the setup of foundations.

Experience

We are (have been) involved in the following class action or mass tort cases, among others:

• The diesel scandal, in which several car manufacturers, importers and dealers have been held liable for the presence of illegal manipulation devices in diesel vehicles sold;
• A class action against TikTok. Actions have been brought against TikTok on behalf of the Mass Damage and Consumer Foundation (Stichting Massaschade & Consument) with the aim of prohibiting violations of, inter alia, privacy laws and to order TikTok to pay damages of over EUR 6 billion;
• We stand up for Dutch internet users represented by The Privacy Collective Foundation. This foundation is litigating against Oracle and Salesforce to get damages for its supporters, for violation of their privacy rights;
• We act in multiple cartel damages cases, including in the Trucks cartel and the FX cartel;
• The very first case published in the public register for collective actions in the Netherlands and brought on behalf of the BMA Netherlands Foundation for the Representation of Creditors;
• Institutional investors, including the South African civil service pension fund PIC, against Steinhoff, a South African stock market fund, which had misrepresented financial affairs widely and for years;
• Fortis Bank following false information Fortis gave to the market in 2007 and 2008 about its financial risks resulting from holding large investments in portfolios of US subprime products;
• The Dexia affair on liability for financial products;
• ABP pension fund and other plaintiffs against US pharmaceutical Merck over investment losses resulting from late disclosure of price-sensitive information; and
• The Libor affair, about the manipulation of Libor and Euribor interest rates by a number of banks including Rabobank.

In addition, the specialists of bureau Brandeis are (have been) involved in collective actions with idealistic of public interests, such as the case about the right of the British in the Netherlands, with a view to Brexit, or of the Dutch State to exchange data with the US security services (Citizens v Plasterk) or for Stichting Ukrainian Victims of War to prevent the recruitment of personnel on behalf of Russia through digital platforms in the Netherlands.

Brandeis also advises funders of collective actions and provides advice or second opinions on the feasibility and opportunities of collective actions. The team is also happy to help set up collective actions, including setting up and organising a foundation, related governance issues and book building.

bureau Brandeis’ class action team is headed by Wesley Vader. He is involved in several class actions, regularly lectures on class actions in the Netherlands and publishes on them.

Testimonials

Legal 500 (2024), in which firm Brandeis is ranked as a Tier 3 firm:

‘The practice of bureau Brandeis specialises in class actions, which is a very important niche market that requires hard-core specialisation. The fact that they have chosen the claimants side despite it the lack of security with respect to success, profitability, reputation, turn-over and chances of winning by choosing this is of note. Bureau Brandeis is capable of pulling out the maximum of a class action case and – maybe even more importantly – show passion to win these hard cases. ‘

‘Bureau Brandeis is incredibly thorough in their representation. They are knowledgeable about the legal matters they pursue and are responsive to client communications.’

‘Outstanding skills and experience regarding class actions in The Netherlands. Pro-active, result drive approach. Clear customer communication. ‘

Chambers & Partners (Europe Guide 2024)

“The firm has unique expertise and experience in this field. bureau Brandeis has a long track record as counsel to claim vehicles and assisting funders in class actions. More than any other firm, bureau Brandeis is involved as counsel to plaintiffs in proceedings under the WAMCA, the new Dutch regime for collective redress introduced in 2020. Currently, the firm is involved in several class actions, including in relation to the Diesel Fraud, the Truck Cartel and privacy violations. Key Clients: Truck Cartel Recovery Foundation, Diesel Emissions Justice Foundation, The Privacy Collective”