Class action

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A class action , class action or class action is a civil action that gives the case its success not only to the plaintiff claims, but every person who like these from the relevant equally matter is concerned - irrespective of whether it has sued themselves. The collection or class action in the United States spread and there is English class action ( Federal Rules of Civil Procedure, Title 28 United States Code Appendix Rule 23 ). It does not exist in this form in Germany or Switzerland. The class action is not to be confused with the so-called subjective accumulation of actions , which is also provided for in German procedural law , in which several plaintiffs or several defendants appear in the same process.

class action

What is special about a class action is that legal and factual issues that can be of importance for a large number of victims can be clarified in a uniform manner for everyone. The individual is no longer dependent on the (complete) proof of a violation of their own subjective rights , but only has to prove that they belong to the group ( class ) concerned.

The legal and factual questions are clarified bindingly for all group members, even if they were not involved in the process . In extreme cases, they don't even need to have been aware of the process. However, US law allows those affected to leave the group for this process, so that those who have left can proceed independently of the process (so-called opting out ). Class action lawsuits often end with a settlement , as the risk of a negative litigation outcome for those affected is hardly predictable and financially serious, especially in the USA.

As a result of the overall economic liberalization of the 1980s and 1990s, the US judicial system lost the heightened moral standards inherent in the profession. Success-related fees increased the incentive to sue for negligible risk immeasurably - six-figure hourly wages for lawyers became a reality in individual cases. Litigation costs (plaintiffs, defense, administration, and damages) in liability cases rose to approximately $ 250 billion a year in the 1990s, which in 2004 represented approximately two percent of all goods and services produced in the United States in a single year.

Examples

Examples of class actions include: the Nazi slave labor lawsuit , several lawsuits against Microsoft over linking Microsoft Windows with Internet Explorer , the US music industry's lawsuit against Bertelsmann over copyright infringement by Napster, and the lawsuit of the victims of the Lockerbie plane crash against Libya . Also of great importance are securities class actions by investors against associated companies, their executives and consultants for violations of capital market regulations (see e.g. the Worldcom and Enron cases).

Germany

In Germany , group actions in the form of class action are generally not permitted, as German law does not involve group action . Normally, each plaintiff has to explain and prove his individual concern, his individual damage and the causality between the two .

Dispute union

There is therefore only joint litigation in Germany in the so-called dispute union if the plaintiffs are in a legal community with regard to the subject of the dispute or are entitled for the same factual or legal reason. In the typical case of class action, they are not, since everyone is entitled to the damage inflicted on them individually, i.e. not for the same reason.

Another possibility is the process connection according to § 147 ZPO. The judge can combine several separate processes for joint negotiation and decision if all of the processes deal with the same legal and factual issues.

Award proceedings

The corporate law award proceedings offer a real extension of the legal force of a court decision beyond those involved in the proceedings . This procedure is used when reviewing compensation payments for structural measures under stock corporation law. The court decision on the rejection or on the determination of an appropriate compensation is effective according to. Section 13 sentence 2 SpruchG for and against everyone, including those shareholders who have already left the legal entity in question in exchange for the originally offered cash compensation or other compensation.

Investor model proceedings

With the capital investor model proceedings law , the attempt has been made to be able to carry out model lawsuits in the event of disputes limited to the area of ​​the capital investment market with many potentially injured parties. In contrast to the US class action lawsuits, each person concerned must bring a lawsuit on their own behalf in order to participate in the test case.

Model declaratory action

On July 12, 2018, the law introducing a civil procedural model declaratory action was passed ( Federal Law Gazette I p. 1151 ). With the model declaratory action, claims from a large number of similarly injured consumers can be efficiently asserted. Most of the legislative changes came into force on November 1, 2018.

Registered consumer protection associations have the opportunity to have the existence or non-existence of factual and legal requirements for the existence or non-existence of claims or legal relationships established for the benefit of at least ten affected consumers . The model declaratory action is conducted exclusively between the plaintiff consumer protection association and the defendant. It thus represents a foreign body in private autonomy, where claimants are otherwise not separated from their claims in the conduct of the proceedings. The consumers concerned can register for a complaint register and thus prevent the statute of limitations of their possible claims. The results of the model declaratory judgment are binding for subsequent consumer complaints.

Representative action

German law does beyond the class action , which is similar to the class action and primarily in environmental law applies. In civil law, the representative action is a foreign body when it comes to the assertion and enforcement of individual claims and the claimant can no longer control the process.

US class actions related to Germany

However, class actions can be brought by Germans for events in Germany in the USA if the facts are related to the USA. So z. B. in the case of the rail accident at Eschede . The process was approved because several victims came from the USA and bought the train tickets in the USA. In the case of a class action lawsuit brought by the survivors of the Herero uprising in Namibia , however, reference to the USA was rejected; the court did not serve the action.

The German judiciary can be referred to class actions insofar as it is a question of whether a lawsuit brought in the USA against a party resident in Germany is by way of intergovernmental mutual assistance under the Hague Convention on the Service of Judicial and Extrajudicial Documents Abroad in civil or Commercial matters (HZÜ) are served. According to Art. 13 (1) HZÜ, a request for service can be refused if the requested state considers service to be appropriate to endanger its sovereign rights or its security. If delivery is ordered by the competent judicial authority, legal recourse can be taken against this judicial administrative act according to § 23 EGGVG . The question of whether a class action, especially when with one, foreign to German law punitive damages ( punitive or exemplary damages connected) must be delivered in Germany, has become the Federal Constitutional Court in a decision dated 25 July 2003 - 2 BvR 1198 / 03 - concerned. Service was prohibited by way of an interim order pending a decision on the constitutional complaint in the main proceedings. A decision on the main issue was no longer made because the constitutional complaint was withdrawn (see BVerfG 2 BvR 1198/03 - decision of November 9, 2005).

Austria

In Austria, the "Austrian-style class action" as a form of accumulation of actions is customary and has repeatedly been declared admissible by the Supreme Court . The claims of a large number of those affected are united through assignments to a single plaintiff (e.g. a consumer association or an association). This plaintiff conducts the procedure as a "two-party" procedure and, in the event of success, distributes the sum obtained to those affected. Such "class actions" are usually accompanied by a litigation cost financer, who finances the litigation costs against a contingency fee. Those affected therefore have to actively submit their claims through assignment (opt-in) and usually only receive an amount that is reduced by the success rate of the litigation cost financier - but save themselves the effort of filing a lawsuit and usually have no financial risk.

Switzerland

As in Germany and Austria, a real class action analogous to the US class action is not planned in Switzerland . However, the same or similar means of collective redress as the countries mentioned are also used in Swiss civil procedural law: In particular, a procedure such as the "Austrian class action" is open, i. H. the assignment of the claims of different claimants to a single (usually legal) person who then asserts the claims jointly by means of an objective accumulation of claims (Art. 90 CCPO). However, as there are hardly any associations in Switzerland that specialize in the preparation and filing of such lawsuits - unlike in Austria, where the spread of these proceedings largely goes back to the activities of the Verein für Konsumenteninformation - the practical significance of these "class actions " is "so far remained low.

rating

Listed advantages

  • Relief of the burden of proof: in the case of complicated evidence (e.g. whether a battery does not reach the required number of charging cycles) the lawsuit itself provides a statistical basis for the assessment. In the case of an individual lawsuit, this would first have to be clarified through a complex expert opinion. This can also speed up the process.
  • Low amount in dispute: Because of the battery mentioned (amount in dispute under € 100), it is usually too risky for an individual plaintiff to claim his right; a lawyer would charge a multiple in the event of a loss.
  • Less bureaucratic burden: instead of many processes, only one process is carried out.

Cited disadvantages

  • The right of the individual plaintiff is severely restricted; By participating in the class action, he is essentially giving up his right to a fair hearing in court.
  • High overall demands almost automatically generate strong media coverage and thus strong pressure on defendants to compare themselves with the class ( class action settlement ). In particular, the Federal Constitutional Court sees this as a possible violation of public policy within the meaning of Art. 13 HZÜ. The Federal Constitutional Court stated on January 24, 2007, 2 BvR 1133/04 [2] that actions for damages (including punitive claims for damages) can otherwise be served and that they obviously do not constitute a violation of German fundamental rights (and in particular public policy) .
  • In the case of class actions (with several thousand victims), lawyers can demand the same fee rates as for individual actions. However, you only need to run a single process; the additional clients only cause administrative costs; this leads to - from a moral point of view - inadequate total fees.
  • This tempts lawyers to incite as many clients as possible to legal disputes through advertising measures (even if they may not originally consider themselves injured); this violates professional ethics.
  • A lawyer must always represent each individual client with full commitment; this is required by the code of conduct. In the case of large class actions, however, this is not possible; the individual victim becomes a number .
  • If the compensation is limited by the economic potency of the defendant (a bankrupt company cannot pay anything more), the lawyers have to distribute the available money - after deducting their fees - somehow (and at worst arbitrarily) among the victims; they have no one who represents their individual requirements optimally.
  • If clients are not optimally represented in court, they may then sue their lawyer themselves. In large class action lawsuits (up to hundreds of millions of euros), the plaintiff's lawyer is often not even remotely able to meet such demands.

literature

Individual evidence

  1. http://en.pons.com/translate?q=massenklage&l=deen&in=&lf=de
  2. [1]
  3. Insanity class action lawsuit in the US; Balance sheet November 2004
  4. with a list of the KapMuG proceedings published in the Federal Gazette. Retrieved October 21, 2018 .
  5. Draft of a law to introduce a civil procedural model declaratory action ( BT-Drs. 19/2439 )
  6. Martin Weimann: Collective legal protection: A memorandum of practice . de Gruyter, Berlin 2018.
  7. State of affairs WD 7 –3000/070 –12 (PDF) German Bundestag: Scientific Services. March 19, 2012. Retrieved October 20, 2019.
  8. ( http://www.sadaba.de/GSIT_HZU.html HZÜ)
  9. Decision of July 25, 2003 - 2 BvR 1198/03 . bundesverfassungsgericht.de. Retrieved October 20, 2019.
  10. Decision of November 9, 2005 - 2 BvR 1198/03 . bundesverfassungsgericht.de. Retrieved October 20, 2019.
  11. Tanja Domej , Uniform Collective Legal Protection in Europe, in: Zeitschrift für Zivilprozess 2012, pp. 421 ff., 429 f.