1 Mass Torts: Debates and Pathways

I. Setting the Scene

II. Concepts and Basic Legal Issues

III. Debates and Pathways

A. The Debate in Europe

B. Pathways

IV. The Contributions to this Book

A. Cases and Reflections

B. Case Studies

1. Several events with a common cause

2. One event with multiple victims

3. Multinationals and multi-district actions

4. Financial markets and mass damage

C. Academic Reflections

V. Final Considerations

2 The Italian ‘Eternit Trial’: Litigating Massive Asbestos Damage in a Criminal Court

I. Introduction

II. Facts of the Case

A. The Accusations

B. The Stakeholders

C. Public Resonance

D. Jurisdictions Involved

E. The Main Legal Questions

F. Out-of-Court Procedure

G. Court Procedure: The Proceeding of the Trial

H. Court Procedure: The First Instance Court Findings of Fact

I. Court Procedure: The Trial and Appellate Court Decisions

3 Silicone Breast Implants: Mass Tort and Massive Damage in Europe

I. Introduction

A. A Brief History of Implants and the US Litigation

B. Meanwhile in Europe …

II. Legal Issues, Negotiations, and Resolutions

A. The Multi-District Litigation Settlement

B. The Dow Corning Corporation Bankruptcy Proceeding

III. Conclusion

4 The ‘Costa Concordia’ Case

I. Foreword

II. The Wreck Removal Operations

III. The Impact on the Local Industry and the Legal Issues at Stake

IV. Liability Regime Applying to the Actions Brought by the Passengers

V. Damage Assessment for Bodily Injury in Italian Case Law

VI. Costa’s Right to Limitation of Liability

VII. Class Actions and Punitive Damages

VIII. The Possible Damage to the Environment Arising from the Spill of Bunker Oil

5 Ombudsman for the Victims of the Rail Accident at Eschede on 3 June 1998

I. Appointment of the Ombudsman

II. Responsibilities of the Ombudsman

III. Position of the Ombudsman

IV. The Work of the Ombudsman

A. Extensive Personal Assistance

B. Offer of Legal Aid and Community of Interests

C. Psychological Help and Treatment

D. Help for the Helpers

E. Compensation for People Affected

V. Conclusion

6 International Environmental Mass Litigation in the UK

I. Introduction

II. Facts of the Case

III. Legal Liability

IV. Damages Rules

V. Similar Cases

A. BP Oil Spill Colombia

B. Lubbe and Others v Cape Plc

C. Afrika and Others v Cape plc

D. Adam v Cape Industries Plc

VI. Conclusion

7 South African Silicosis Litigation in London. A Case Study

I. What is Silicosis?

II. Silicosis in South Africa

III. The Litigation

A. The Stakeholders

B. Collective Actions in England and Wales

C. The Allegations

D. The London Proceedings

E. Why London?

IV. Jurisdictional Issues

V. What Next?

VI. Lessons for the Future

8 Bank Charges

I. General Introduction

A. The New Class Action Law

B. Italian Class Action Proceedings

C. Class Actions for Bank Charges

II. Overview of the Case

A. The Plaintiffs

B. The Defendant

C. The Class Action Suit

III. Dynamics of the Case and Legal Issues Involved – The First Instance Proceedings

A. Plaintiffs’ Claims

B. The First Instance Decision by the Turin Court

IV. Dynamics of the Case and Legal Issues Involved – The Appeal Proceedings

A. Grounds of the Appeal

B. The Decision of the Turin Court of Appeals

C. Further Progress of the Class Action

V. Conclusions

9 The German Capital Market Model Proceedings Act as Illustrated by the Example of the Frankfurt Deutsche Telekom Claims

I. Introduction

II. The Facts of the Case

A. Actors Involved in the Litigation

B. Actors not Involved in the Litigation

III. Proceedings

A. Out-of-Court Proceedings

B. Judicial Proceedings Prior to Entry into Force of the KapMuG

C. KapMuG Proceedings

IV. Legal Issues

A. Competent Courts

B. The Central Questions of Law

1. The original material questions

2. Questions of procedural law

3. Other substantive questions of law

V. Summary

10 The Madoff Ponzi Scheme

I. Background

II. The Aftermath

III. The US

A. Trustee Recoveries/Clawback Claims

B. Restitutionary Claims against Investors by Feeder Funds

C. Investor Claims

D. Regulatory Aspects

E. Criminal Prosecutions

IV. The European Landscape

A. England and Wales

1. Requests for information

2. Jurisdiction

3. Enforcement

4. MSIL Liquidator Action against MSIL Directors and Others

B. Spain

C. Ireland

D. Luxembourg

E. Switzerland

F. Austria

V. Insurance Issues

VI. The Market for Madoff Claims

VII. Conclusion

11 Mass Damage in Europe: Aggregation of Claims, Effective Enforcement and Adequate Representation

I. Introduction

A. Relevance and Notion of Mass Damage

B. European Initiatives

C. Double Meaning of ‘Damage’ and Claims Mentality

II. Focus: Damage as a Result of Mass Torts

III. Effective Enforcement of Mass Damage Claims

A. Functions of Mass Damage Enforcement

B. Effectiveness and Efficiency

IV. Suitable Ways to Handle Mass Damages Claims Procedurally

A. Out-of-Court Negotiations, ADR, Arbitration

B. Individual Pursuit of Claims, Test Litigation, and its Relevance for other Claims

C. Aggregation of Claims

1. Joinder

2. Assignment

3. Court controlled representation

D. Adequate Representation

1. Conflict of interests

2. Representative’s authority

E. Notice to all Parties Potentially Affected

1. Notice of representation

2. Notice of settlement and appropriation of award

F. Financing Mass Litigation

V. Coping with Mass Damages outside the Law: Delegalisation?

12 Multiple Tortfeasors in Mass Tort Cases

I. Introduction

II. Range of Possible Outcomes

A. No Liability of Any Defendant

B. Full Liability of one Defendant

C. Proportional Liability of Some or All Defendants

1. Proportional liability in general

2. Loss of a chance

D. Several Liability of Some or all Defendants

E. Joint and Several (Solidary) Liability of Some or All Defendants

1. Solidary liability

2. Contribution (recourse)

F. Alternative Compensation Schemes

III. Key Factors

A. Causation

1. Categories of causal scenarios

2. Proportional liability as one potential outcome

3. Legal causation

B. Type of Harm

C. Link(s) between the Parties

D. Bases of Liability

E. Procedural Aspects

F. Further Factors

IV. Policy Arguments in the Mass Torts Scenario

V. Conclusion

13 Mass Damages in Europe – Allocation of Jurisdiction – Cross-Border Multidistrict Litigation

I. Cross-Border Mass Torts and the Need for Forum Shopping

II. The Regulatory Framework of International Jurisdiction

A. European Union – Regulation 44/2001 (the Brussels I Regulation)

B. Mass Litigation on a Global Scale and the forum non conveniens Doctrine

C. International Jurisdiction for Contentious Mass Litigation in the EU

1. Defendant’s domicile

2. Tort cases

3. Contract cases

4. Choice-of-forum agreements

D. Mass Settlements and the Brussels I Regulation

1. Settlements negotiated in the course of contentious court proceedings

2. Settlements without contentious litigation

III. The Future of Jurisdictional Rules over Mass Claims in Europe

A. No Harmonisation of the Instruments of Collective Redress in the EU

B. Harmonisation of the Instruments of Collective Redress and New Rules on International Jurisdiction

IV. Summary and Questions to be Discussed in the Future

14 Delivering Redress through Alternative Dispute Resolution and Regulation

I. Introduction

II. Describing the Mechanisms

III. Origins of the Alternative Techniques

IV. Predicting the Future

15 Mass Tort Related Insolvency Proceedings: Choice of Jurisdiction, Treatment and Discharge of Tort Claims

I. Introduction

II. Choice of Jurisdiction

A. Choice of Jurisdiction with respect to the Insolvency Proceedings

B. Decisions as to the Allowance of Claims – The Concept of Vis Attractiva Concursus

1. The determination of a lodged and contested claim

2. The effect of the opening of insolvency proceedings on pending trials

III. Treatment of Tort Creditors in Insolvency Proceedings

A. Tort Creditors are General Creditors! (?)

B. Treatment of Insurance Policy Proceeds in Insolvency Proceedings

1. The effects of a direct action approach in insolvency

2. Earmarking of insurance policy proceeds

IV. The Effects of a Discharge on the Position of Tort Creditors

A. Discharge of Tort Claims in Principle

B. Treatment of Tort Claims in Restructuring Plans – in Particular the Future Claimant Problem

1. Representation of future creditors’ interests in plan proceedings

2. Depletion of the established trust

V. Lessons to Be Learned From the Asbestos Bankruptcies

16 Mass Tort Resolution: Competition Between Jurisdictions and Mechanisms

I. Introduction

II. The Spectrum of Mechanisms and Fora

A. Civil Procedure

1. The commission recommendation on collective redress

2. Lessons from the case studies

B. Alternative Dispute Resolution

1. Ad hoc ADR

2. The broader picture of ADR

C. Criminal Procedure

1. Priority of criminal over civil procedure

2. The italian asbestos trial

D. Insolvency Proceedings

1. Bankruptcy as the debtor’s response to a mass of tort claims

2. Consolidation of claims via insolvency law

3. Externalities imposed on tort creditors

III. A Functional Approach towards Institutions Designed for Mass Torts

IV. Evaluation

A. Civil Procedure: Aggregate Litigation

B. ADR: Piece-Meal Dispute Resolution out of Court

C. Dispute Resolution the Criminal Way

D. Insolvency Law: Dealing with Scarcity

V. Competition Between Modes and Fora of Dispute Resolution: Where Does the Race Lead?

A. The Range of Choices Available to Forum Shopping Claimants

B. The Supply Side: Responses by Lawmakers, Judges, and Respondents

C. Evaluation of the Competition for the Resolution of Mass Tort Cases