The Amsterdam Court of Appeal has approved a €1.3 billion collective settlement of claims asserted on behalf of shareholders of the former Fortis (now Ageas). The July 13, 2018 decision again shows that the Dutch Act on Collective Settlement of Mass Claims (the “WCAM”) can be used to resolve transnational disputes regardless of whether those claims could be litigated adversarially on a classwide basis in the Netherlands or elsewhere.
The Amsterdam Court of Appeal denied approval of the €1.204 billion collective settlement of former Fortis (now Ageas) shareholders’ claims unless the parties agree to restructure the allocation of the settlement amount among class members and the compensation for the organizations that filed the proceeding. The court’s June 16, 2017 decision does not undermine the use of the Dutch Act on Collective Settlement of Mass Claims (the “WCAM”) to resolve transnational disputes, but it constrains the ways in which parties can allocate the settlement amount and pay attorneys’ fees.
As U.S. law has become less willing to entertain certain types of lawsuits on behalf of worldwide classes of plaintiffs, litigants have looked for other forums that might allow the prosecution – or at least the resolution – of claims on a global, classwide basis, ideally through opt-out classes. The Netherlands has emerged as an option in recent years because the Dutch Act on Collective Settlement of Mass Claims (the “WCAM”) authorizes the settlement, but not the prosecution, of classwide claims on an opt-out basis.
On Tuesday, the Second Circuit in In Re Vitamin C Antitrust Litigation vacated a $147 million award against two Chinese companies for engaging in anti-competitive behavior. At issue was how a federal court should respond when a foreign government’s regulatory scheme conflicts with U.S. laws. Because the Chinese companies could not simultaneously comply with Chinese law and U.S. antitrust laws, the principles of international comity required the district court to abstain from exercising jurisdiction in the case. As a result, the Second Circuit reversed the district court’s denial of the Chinese companies’ motion to dismiss and remanded the case with instructions to dismiss the complaint with prejudice. In re Vitamin C Antitrust Litig., No. 13-4791 (2d Cir. Sept. 20, 2016).
Prosecutors in the District of Connecticut have appealed a district court’s ruling that conspiracy and aiding and abetting charges cannot be used to extend the FCPA’s jurisdictional reach.
Much ink has been spilled since the Supreme Court’s 2010 decision in Morrison v. National Australia Bank about the federal securities laws’ applicability to foreign transactions in foreign securities. But what happens when non-U.S. residents sue in the United States under foreign law based on U.S. securities transactions?