Class action da esportare?

[FaGal]

http://www.forbes.com/business/globa.../1220/022.html

Companies, People, Ideas
Can You Say Tort?
Michael Freedman, 12.20.04

A Washington attorney is on a crusade to export America's legal system around the world. Call your lawyer.
Michael Hausfeld has built a career pushing the boundaries of American law. In the 1990s his firm wrung a $176 million settlement out of Texaco, then the most ever in a race discrimination case. A leader in Holocaust litigation, he obtained $8 billion from Swiss banks and German industry and government. His firm is now lead counsel in the largest class action in history, representing 1.5 million current and former female Wal-Mart employees.

Now the 58-year-old lawyer is building an international network of plaintiff lawyers in such diverse places as Great Britain, India, Panama and South Africa. The goal: to export U.S.-style litigation tactics, including contingency fees and class actions, throughout the world. In coming months, he says, he and allied lawyers in various countries plan to file antitrust, product liability, securities and human rights cases.

Hausfeld's plan should terrify corporations already reeling from the U.S. plaintiffs' bar. But he says his plan is for the defendants' own good. By hooking up with foreign law firms he can offer corporate defendants a settlement that will stick in other countries. Now a corporation that settles in the U.S. might still get socked with billions of dollars' worth of claims abroad.

Cold comfort maybe, but he's already naming targets. Parmalat and Marsh & McLennan look ripe for securities actions in the U.K. His British partner firm, Irwin Mitchell, is looking for potential Vioxx claimants against Merck. In India Hausfeld and a partner are investigating filing a claim related to the cleanup of the site of the 1984 Bhopal disaster. And in South Africa Hausfeld and U.K. human rights lawyer Martyn Day are exploring an environmental suit against Anglo American.

Hausfeld and partners at Cohen, Milstein, Hausfeld & Toll have been laying the groundwork for this sort of cross-border work for years. The firm was among the first to use the once-obscure Alien Tort Claims Act in U.S. courts to pursue human rights violations abroad. Over the last few years it also represented in the U.S. a group of foreign vitamin purchasers who sued foreign companies for antitrust violations that had already sent 11 defendants to jail. The U.S. Supreme Court ruled against Hausfeld's clients in June, sending the case back to an appeals court. The firm also attempted, with mixed results, to obtain powerful lead plaintiff status in securities actions for foreign investors who lost money in Royal Dutch/Shell Group, Royal Ahold and Parmalat.

Hausfeld is tapping into a trend suggesting U.S.-style litigation is already spreading, particularly in the European Union. Recently departed EU competition commissioner Mario Monti has repeatedly stressed the need for private legal action in antitrust cases. And last year the European Commission hired the London law firm Ashurst to examine ways to encourage more suits. Next year the EU is expected to begin a potentially heated debate on adopting U.S.-style tactics, including allowing contingency fees and monetary damages in class-type suits.

But Hausfeld is fighting immense procedural differences among countries. In the U.K., for instance, each member of a class must be identified, a policy that prevents lawyers from dreaming up cases where there are few identifiable victims. In the U.K., New Zealand and Australia, where legal fees are carefully regulated, lawyers must take on part of the cost risk, and potential plaintiffs often take out insurance policies to cover costs if their cases flop. Securities class actions do not even exist in most of Europe. Instead, thousands of claims are "federated" and move forward as a cumbersome mass of individual cases. In Belgium shareholder lawsuits must wait until the outcome of criminal investigations.

Even some of Hausfeld's simpaticos wonder whether U.S.-style litigation will ever take root overseas. At least in the U.K., America's "compensation culture" is frowned upon. Elsewhere people have not historically thought of private litigation as a remedy. "They've always allowed the governments to protect them, and they're used to that," says Paul T. Gallagher, a Cohen, Milstein partner. "In a lot of countries, even when people are given the ability to go into court and prove civil damages, it is difficult to find people who will step up and ask for it."

Meanwhile Hausfeld is planning to exploit the differences in legal systems. Great Britain, Ireland and Cyprus, for instance, all allow limited discovery before potential plaintiffs even file a claim. The U.S. provides greater latitude for digging up evidence once litigation is under way. So under one scenario Hausfeld could pry open corporate secrets in the U.K. with prefiling discovery and follow up with massive document-dredging in the U.S. His network of firms would share information--and fees--and offer defendants court-approved global resolution of claims.

In the next 90 days Hausfeld plans to file a private antitrust case in Great Britain with law firm Irwin Mitchell. Only 60 private antitrust cases in European history have led to awards. This one will be brought on behalf of an unnamed British company that claims to be a victim of the same global vitamin cartel that Hausfeld sued in the U.S. (Defendants then included BASF, Aventis and Roche.) Hausfeld's Washington, D.C. firm already has witnesses and thousands of pages of evidence that will be shared with his partner firm.

If successful, they have a half-dozen other cases lined up, including those related to alleged price-rigging of methionine, an amino acid used in animal feed, and of electrical and mechanical carbon and graphite products. Says Hausfeld: "We feel we're at the frontier."

[Verm & Solitair]

Se ne discute, ma l'individualismo italico può combinarsi con sistemi democratici di promozione di azioni collettive? o ci sarà sempre il "capoccione" che porta avanti il gruppo di risparmiatori e poi si accorda sottobanco rompendo le righe?