Collective actions are growing in complexity as evolving procedural regimes collide with questions around funding, economics and reputation, according to lawyers, funders and other disputes specialists gathered at a roundtable hosted by GLP and Ashurst Perkins Coie.
The discussion, which took place during London International Disputes Week, brought together expert contributors to GLP’s Class Actions comparative guide for the official launch of the book, alongside funders, counsel and communications advisers.
Across two panels, speakers examined the development of collective redress in the US and Europe before turning to the practical factors shaping whether claims can be brought, defended and ultimately resolved.
Sarah-Jane Dobson, a London-based disputes partner at Ashurst, moderated the discussion, which ranged from algorithmic pricing claims and mass arbitration in the US to litigation funding in England and the implementation of the EU directive on collective redress in Germany and France.
US class actions
Fellow Ashurst partner Shylah Alfonso, global co-head of antitrust and competition, said the US continued to generate a broad range of class actions: “In the United States, we’re seeing antitrust, privacy, product liability – and increasingly, claims where privacy masquerades as antitrust and antitrust masquerades as privacy.”
Alfonso identified algorithmic pricing as a developing area of risk: “A major emerging frontier is algorithmic and AI-driven pricing tools. What began in the hotel sector and residential rentals is now spreading across industries, raising the question of whether these tools facilitate the exchange of competitively sensitive data and, knowingly or not, enable price-fixing or output restriction.”
She also pointed to mass arbitration as a response to class-action waivers and compulsory arbitration clauses: “Mass arbitration is the claimant bar’s creative response to class-action waivers and arbitration clauses.”
“Instead of one aggregated lawsuit, defendants now face tens of thousands of individual arbitrations – and the leverage point becomes tens of millions of dollars in non-refundable filing fees, payable before a single claim is determined,” she said.
Alfonso said companies were reconsidering waivers: “We’re seeing companies reconsider whether they really want class-action waivers, and if they do, they are trying to draft more exacting arbitration provisions – requiring proof of individual consent to arbitrate, more detailed facts and ‘escape valves’ allowing a return to court when filings reach mass-arbitration scale. But these mechanisms are largely untested.”
She added: “There is a genuine concern about striking the right balance: are we undermining claimants’ constitutional right to bring claims, while at the same time making it practically impossible for defendants to defend themselves in a cost-effective way?”
The English regime
The UK discussion focused on the relative maturity of the English regime and the role of funding. Juliana Pondé Fonseca of Pogust Goodhead in London said: “From a claimant’s perspective, the English system is procedurally sophisticated but substantively immature. It has rapidly evolved over the last decade, but it is still a young regime compared with the 50-year history of US class actions and the now decades-old Brazilian model.”
Pondé Fonseca said England offered a range of procedural routes: “The English framework is unusually rich in procedural tools: you have opt-out and opt-in mechanisms, CAT claims, GLOs and joint claims. That ‘toolkit’ offers claimants a variety of routes, and that very sophistication has driven the rapid rise in collective actions.”
Funding remained central to the market. Pondé Fonseca said: “There are no class actions without funders. Whatever recent case law may say in the other direction, the trend in practice remains towards greater access to justice and a more funder-friendly environment – and claimants welcome sensible regulation and transparency as much as defendants do.”
She also identified a continuing weakness: “The real weakness is that we have yet to see a case tried to judgment on the merits, with a clear, workable distribution of damages to the class. Even the settlements we do have reveal how difficult it is to get the money efficiently to the people who have suffered the harm.”
Germany’s new model
Martin Eimer, a partner at Ashurst and co-lead of the firm's class actions offering in Europe, addressed developments in Germany, where he is based.
“In Germany, as in many continental European jurisdictions, there was historically no true collective actions regime similar to class actions in the US,” he said.
“We are now at a very exciting procedural moment: courts are starting to define on the basis of new procedural rules introduced as a result of the EU's redress actions directive what it takes for claimants to succeed in collective redress cases.”
Eimer said the Dieselgate litigation had “created enormous political pressure to introduce collective redress mechanisms”.
He added: “Germany’s original Declaratory Model Action had limited ‘teeth’ – it offered only declaratory relief – but even that incomplete tool enabled VW to settle thousands of cases.”
The position has changed following implementation of the EU directive. “With the EU directive on collective redress now implemented, the ‘game’ has changed,” he said. “Germany’s new regime allows you to combine declaratory relief with monetary claims, but funders’ profits are capped at 10% – well below what they typically expect in other litigation funding cases.”
Eimer also identified other growing trends: “We’re seeing collective actions used predominantly for data privacy infringements and unilateral changes to terms and conditions – Amazon Prime being a good example – but always against the backdrop of an opt-in model, which inherently produces a fragmented landscape, especially where the individual pursuit of claims remains attractive for claimants and claimant law firms.”
He concluded: “Claimant firms that built industrial-scale infrastructures during the Dieselgate wave can now be seen to combine collective actions with the assertion and bundling of individual claims. For defendants, that is extremely challenging: you must manage multiple proceedings across courts and jurisdictions, where each decision can become a precedent for thousands of others.”
Those differences between national regimes are only part of the picture. The discussion then turned to the practical considerations shaping collective actions – from the availability of funding and the economics of bringing claims to judicial case management and the role of communications.
Dobson said funding remained one of the most exciting – and contentious – elements of the class actions landscape.
Funding
Speaking first, Chris Lisica, an investment manager at Omni Bridgeway, said the UK regime had yet to deliver the procedural efficiency expected of collective redress: “If I had to describe how funders see class actions developing in the current UK market in one word, I would say: 'inefficiently.'”
He pointed to Competition Appeal Tribunal claims, CPR 19.8 representative actions and group litigation orders as mechanisms which could all fit under the umbrella of a class action. “The result is that we presently have a fragmented system which is giving rise to inefficiency – the exact opposite of what a class action regime is meant to achieve.”
Lisica said funders needed certainty that funding agreements are not DBAs, and a predictable regulatory regime, warning that capital may divert to other claims or jurisdictions if the UK became too difficult, impeding access to justice. He also rejected criticisms that enabling litigation funding will result in spurious claims being brought, saying that Omni Bridgeway had historically rejected “over 95%” of funding applications, and undertakes extensive diligence on class actions that are funded.
Tom Middleton, a London-based partner at Grant Thornton, spoke next. He said economics had become decisive at an early stage of collective proceedings, particularly in competition and securities claims. “From both competition and securities perspectives, there is a real demand for analytical rigour at a very early stage – often in a way that is inconsistent with the level of data actually available,” he added.
That made funding decisions and certification critical gateways, Middleton said, because expert views could change materially as better data emerged. Corporate claimants were also weighing management burden and reputational exposure before taking a visible role, while courts were engaging more readily in technical econometric debate.
Multi-party litigation
James Purnell KC of Henderson Chambers took the advocates’ view, saying the class actions system should not be understood solely through part 19 of the Civil Procedure Rules, which addresses group litigation, noting that much coordinated multi-party litigation was managed through judges’ inherent case management powers.
“We do have a very sophisticated system of class actions, but it is not confined to GLOs under CPR 19,” he said. “There is a huge amount of coordinated multi-party litigation managed by judges using the court’s inherent case management powers.”
Purnell said CPR 19 left significant discretion to judges over sequencing, expert evidence and pace. That had translated into a more interventionist approach in major group claims. He cited the NOx emissions litigation, where trial windows were set before a defence had been served, as an example of courts pushing parties to maintain momentum.
By contrast, Hortens de Roux, a disputes partner based at Ashurst’s Paris office, said France remained at an early stage in the development of class actions. “We are an old jurisdiction, but in class actions we are still quite immature,” she said. “The ecosystem in France is trying to catch up with other European and global regimes.”
De Roux said the French regime, introduced in 2014, “was not working at all”, attracting fewer than 40 cases in its first phase. Implementation of the EU directive had created a broader regime covering injunctive and damages actions, but it remained new and quiet. Limitations remained from a claimant perspective, including the unclear framing of third-party funding, compensation limited to actual loss and the absence of punitive damages.
Communications
Finally, Desiree Maghoo, the founder of Questor Consulting, said communications strategy was part of making claims intelligible to regulators, policymakers, markets and potential class members. “PR is far more than writing a press release,” she said. “It is about educating and influencing – not just the media, but governments, regulators and the wider market.”
Maghoo said public authorities still had a limited understanding of the sector, which was an information gap that PR could help fill, coupled with direct engagement such as in-person meetings and providing written responses to consultations. She also drew a distinction between paid digital advertising and earned media in claimant recruitment, saying newspaper coverage could explain claims more comprehensively and with more nuance than short-form adverts.
While there is substantial spend on social media advertising for book building, she said it is often difficult and expensive to recruit claimants in that way: potential class members are increasingly wary of scams and short-form adverts struggle to convey the necessary detail.
By contrast, well-placed newspaper coverage provides a better form of third-party endorsement, which helps to position the claim as meritorious and can explain claims with far greater nuance. It can alert affected consumers and tip the balance and encourage settlement discussions because the business and financial media, for example, are also read by defendants’ boards of directors and shareholders.
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