INTERNATIONAL LAW
PARMA UNIVERSITY
International Business and Development
International Markets and Organizations Law
Prof. Gabriele Catalini
CLASS ACTION:
U.S. AND ITALY
APPROACHES
DEFINITION
In law, a class action or a
representative action is a
form of lawsuit in which a large
group of people collectively
bring a claim to court and/or in
which a class of defendants is
being sued.
HYSTORY
• Medieval Europe: England 1125: record of a
few individuals' representing a large group of
people in legal suits.
• First Suit: 1309 a Discart vs. Otes case.
• Rule 48: 1833: U.S. law first introduced group
litigation
• Rule 38: allowed absent parties to be
represented as members of the prosecuting
class.
• Rule 23: Rule 38 became Rule 23 and "opt out“
was introduced
• Private Securities Litigation Reform Act” of
1995: new rules in securities class action
lawsuit.
• Class Action Fairness Act of 2005: expansion
of federal jurisdiction over many large classaction lawsuits in the United States.
U.S. FEDERAL CLASS ACTIONS
• Class action lawsuits may be brought
in federal court if the claim arises
under Federal Rules of Civil Procedure
Rule 23 and 28 U.S.C.A. § 1332 (d)
• It is also possible to bring class
action lawsuits under state law
• Typically, federal courts are thought
to be more favorable for defendants
and state courts more favorable for
plaintiffs.
“CANT” CHARACTERISTICS
1 Numerosity - the class must be so large as to make
individual suits impractical
2 Commonality - there must be legal or factual
claims in common
3 Typicality - the claims or defenses must be typical
of the plaintiffs or defendants
4 Adequacy of Representation - the representative
parties must adequately protect the interests of the
class
5. common issues opposed to individual fact-specific
conflicts between class members and the defendants
6. class action, instead of individual litigation, is a
superior vehicle for resolution of the disputes at
hand
STATE CLASS ACTIONS
• Since 1938, many states have
adopted rules similar to the FRCP
(Federal Rules of Civil Procedure)
• However, some states have civil
procedure systems which deviate
from the federal rules
• Some states, do not provide for
any class actions, while others, limit
the types of claims that may be
brought as class actions.
How does a Class Action suit work?
Step 1:
Step 2:
drafting a complaint
filing it in court
"serving" on the defendants
defendants answer or
challenge the complaint
Step 3: a period of "discovery" takes place
How does a Class Action suit work?
Step 4:
the plaintiff files motion to
certify a class action.
the defendants will file
objections to certification.
the Court will have a hearing.
If plaintiffs win, the case will be certified.
Step 5: Notice about member’s rights and
deadlines for "opting out"
Step 6: Trial or Settlement
https://nutellaclassactionsettlement.com/
http://www.huffingtonpost.com/2012/04/26/
nutella-lawsuit_n_1457183.html
Alperin v. Vatican Bank is a class action suit by Holacaust survivors
against the Vatican Bank ("Institute for Works of Religion") and
Franciscan Order ("Order of Friars Minor") filed in California on
November 15, 1999. The case was initially dismissed as a political
question by the District Court for the Northern District of California
in 2003, but was reinstated in part by the Court of Appeals for the
Ninth Circuit in 2005. That ruling has attracted attention as a
precedent at the intersection of the Alien Tory Claims Act (ATCA)
and the Foreign Sovereign Immunities Act (FSIA).
The complaint against the Vatican Bank was dismissed in 2007 on
the basis of sovereign immunity, but the case against the
Franciscan Order continues as of 2009. According to Hart, "the
case is extremely complicated and potentially massive,
considering the large class spread across many countries.
The Vatican bank was charged with laundering and
convering "the Ustaša treasury, making deposits in
Europe and North and South American, [and]
distributing the funds to exiled Ustaša leaders including
Pavelić.
A principal piece of evidence against the Vatican is the
"Bigelow dispatch", a October 16, 1946 dispatch from
Emerson Bigelow in Rome to Harold Glasser, the
director of monetary research for the U.S. Treasury
Department. Former OSS agent William Gowen has
also given deposition as an expert witness that in 1946
Colonel Ivan Babic’ transported 10 truckloads of gold
from Switzerland to the Pontifical College.
CLASS ACTION IN ITALY
EUROPE'S ATTITUDE FOR THE CLASS
ACTION
The European Consumer Commissioner:
“The old continent will never “go
down [the American class action]
road” with its “toxic cocktail” of
contingency fees, punitive damages,
and pretrial discovery”.
HISTORY
• 1970 - the first Italian debate took place
• 2010, January 1st - the new consumer class
action law became effective
• Italian consumer associations announced
they would launch class actions for some
450,000 small Italian investors who claim
they have been “cheated” by banks who
sold them Argentinian bonds
Other «participants» of class action
THE TERMS
The Italian law has no retroactive
effect, The Class Action Act allows
claims based on torts occurring
after August 15, 2009
FIRST RESULTS
In less than a year, six significant class action
lawsuits have been filed against both Italian
and foreign defendants, making Italy’s number
of class action lawsuits high in comparison to
other countries with recently introduced class
action laws.

At least two of the cases seek extremely high
damages, totaling €6.25 billion together (and
some numbers suggest that damages sought
could exceed €10 billion).

FEATURES
The class action law is the first law in Italy to
provide for monetary damages in a class action,
as previous laws only allowed for injunctions,
marking extraordinary change in the Italian
litigation system.
These lawsuits are limited to four types of cases:
•contracts,
•product liability,
•anti-competitive (anti-trust) practices,
•and unfair commercial practices.
THE DIFFERENCE FROM THE US LAW
The law differs from the U.S. Federal
Rule of Civil Procedure 23:
 in a number of areas, e.g., more
restrictive class certification process;
 an “opt-in” basis;
 no discovery;
 absence of punitive damages.
NEGATIVE TRENDS
Consumer associations are proactively looking for class
action opportunities and are advertising to attract and
“recruit” potential plaintiffs. But they are not actual
plaintiffs.
So it is not clear:
HOW and AT WHAT RATE the consumer associations
will be “compensated” for their class action work;


HOW and HOW MUCH they will pay the consumers;
Do the consumer associations will advocate the specific
interests of the class of plaintiffs they represent, or will
pursue their own interests and/or the interests of their
members as a whole?

WHO MAY FILE?
Entities that can act on behalf of
the plaintiff:
• Consumer association or committee with
nationwide presence
• Consumer/Investor groups (registered
with the Italian Ministry of Productive
Activities)
• Promoters vis a vis Plaintiff
The proceeding
1° Stage: Admissibility
The class action is deemed inadmissible if:
• The claim is unfounded
• There is conflict of interest
• The rights infriged upon are not
homogenous
• The lead plaintif is unable to adequately
represent the interest of the class
1° Stage: Admissibility
The lead plaintiff must be a consumer
The lead plaintiff must have “an interest
in the suit”
The phase ends with a court decision
Publicity and opt-ins
• Public dissemination of the admissibility
finding
• A deadline for opting in is settled
• Members must affirmatively opt in to the
class
• Decision on liability and damages can
not be changed after the opting in.
2° Stage: Liability and Damages
• Liability and damages are determined
The court specifies:
• Damage amount
• Uniformly applicable criterion for each
individual claim
• No provision for punitive damages
Final considerations
• Italian consumer association vis a vis US
plaintiff law firms
• Italian consumer association have the
possibility to shape the law
• What’s next?