French legal reform: what is at stake if class actions are introduced in France?
Consumers must at long last be given the means to defend their rights: means that were unavailable to them up to now since, when taken separately, each individual injury suffered is not big enough to cover the cost of legal action. This is why I am asking the Government to draft changes to current legislation so that consumer groups and their associations can bring class actions against the unfair practices going on in certain markets. (1)
In general terms, a class action is a lawsuit brought by one person on behalf of a group of people having suffered the same injury. This definition, when examining the possibility of introducing class actions in France, comes up against several principles of French procedural law.
President Chirac's desire to see class actions introduced into French law would therefore mean legislative reform. A working group was set up to this effect and produced its report on December 16, 2005. (2)
I. The Position of French Procedural Law
A. What Types of Action are Currently Available?
The provisions of French law pertaining to consumer protection can lead a consumer association to bring two types of action: an action to assert a collective interest and an action brought on behalf of several individuals.
1. Actions in the Defense of a Collective Interest
Since the Royer Act was passed on December 27, 1973, approved consumer associations are allowed to take legal action to assert the collective consumer interests. When consumer associations bring a collective action, they must ascertain whether or not the injurious event was a criminal offence.
2. Where a Criminal Offence Has Been Committed
First, Article 1 of law no. 88-14 of January 5, 1988 provides that associations entitled to act before Court may "exercise the rights of a plaintiff claiming damages in a criminal case in relation to events causing a direct or indirect injury to consumers collectively." (3)
It is therefore evident that this type of action will only be admitted to the extent that the injury claimed by the association differs not only from the one suffered by the general public, but also from the one personally suffered by the direct victims of the offence. Approved associations can choose between initiating their civil action in a criminal or a civil court. In addition, when the association initiates that civil action, according to Article 3 of the January 5, 1998 law, it may, both in civil and criminal courts, request the judge, if need be under threat of penalty, to order "any measures designed to put a stop to the unlawful behavior or to remove an illegal clause from the contract or type of contract offered to consumers." (4) An action to have such measures implemented can therefore be brought together with the approved association's civil action. Whereas this last type of action gives rise to compensation for the injury, the first type tends to prevent that injury from continuing to occur. These actions are complementary.
In the area of health legislation, one of the objectives of the law passed on March 4, 2002, pertaining to patients' rights and the quality of the health system is to achieve a kind of democratic health system in France. One concrete result of that objective has been to allow associations to take action against health institutions and also to bring actions in the criminal courts. (5) They may exercise the rights of a plaintiff claiming damages in a criminal case involving acts of manslaughter and intentional invasions of a person's bodily integrity, as well as offences provided for in the Code of Public Health, which harm, directly or indirectly, the collective interest of the users of the health system.
3. Where No Criminal Offence Has Been Committed
Pursuant to Articles 5 and 6 of the January 5, 1988 law, it is acknowledged that actions brought by approved associations to assert the collective interest of consumers are not conditional upon a criminal offence having been committed. Article 5 allows those associations to "enter civil court proceedings" in a liability suit brought by a consumer who has been the victim of acts not punishable under criminal law. (6) Article 6 allows those associations, at their initiative only, again in the civil courts and with no criminal offence having been committed, to initiate a suit to "remove unfair clauses from standard contracts typically offered to consumers by professionals." (7) The right of approved consumer protection associations to take autonomous action in a specific case has therefore been acknowledged. The courts have also ruled that a request to remove a clause may be filed spontaneously to assist a consumer in a case brought against him/her by a professional.
To the extent that the purpose of this type of action is to pursue the collective interest, the injury to be repaired continues to be collective and the repair of an individual injury is not possible, unlike a true class action.
4. Actions Brought on Behalf of Several Individuals
This type of action, established by Article 8 of Law No. 92-60 of January 18, 1992, allows approved associations to take action on behalf of the individual interest of several consumers who have been injured due to the actions of the same professional. It brings together, in the same set of proceedings, the individual liability suits that could have been initiated by each of the consumers who are, for example, victims of the same defect in a mass-produced product or of a failure to perform a service offered to the same group of people.
Only approved consumer associations representing consumers at a national level are permitted to bring this type of action. At least two consumers must give their prior written authorization to sue in their name and on their behalf. With a view to getting more victims to join in the action, the association can solicit their authorization in newspapers and magazines, or on television or radio if expressly permitted, or by distributing tracts or personalized letters.
Once these conditions have been satisfied, the action may, according to Article 8-1 of the January 5, 1998 law, be brought "in any court," (either civil, criminal court, or an administrative court). However, without making any distinction between jurisdictions, Article 4 of Decree No. 921306 of December 11, 1992 provides that if a consumer withdraws his or her authorization, "the party having given that authorization may pursue the case as if he/she had initiated it directly." It is the individual's duty to inform the judge and the other party of this change.
Finally, if the action fails, the represented consumers lose their individual right of recourse. However, if the professional is found liable, the damages and interest which that professional is sentenced to pay must be attributed to the injured consumers since this action only allows the repair of their individual injuries. Nevertheless, when bringing an action on behalf of several individuals, there is nothing to stop an approved association from initiating legal action, if need be, to assert the collective interest of consumers, as well.
B. Recent French Initiatives
Three initiatives were taken after President Jacques Chirac's January 4, 2005 speech. The first resulted in the "Class Action.fr" website affair and the second in a report being handed over to the Ministries for Finance and Justice on December 16, 2005. The third initiative is the impact of the Antitrust Commission decision taken on November 30, 2005.
1. The "ClassAction.fr" Website Affair
In May 2005, a website was created so that the general public can go online to join in court proceedings already in progress. Anyone can access the writ of summons, the legal grounds, and the amount being claimed directly on the website. Visitors to the website were therefore invited to join in the first collective action to uphold the law in relation to copies of DVDs. (Major Studios sold DVDs that could not be copied by the end users). Parties joining in the legal proceedings paid a contribution of only 12 [euro] in order to claim damages of 1,000 [euro]
This attempt by lawyers to introduce class actions was the object of summary proceedings initiated by the members of the Lille Bar, as well as proceedings on the merits brought by several consumer associations.
The Paris Court of Appeal Bar gave its opinion on June 14, 2005, in which it mainly requested that lawyers promoting the website not set up a commercial company as a buffer between themselves and the general public or any lawyers visiting the site, but to become the first direct users in accordance with rules accepted by the Bar. The Bar also pointed out that the "ClassAction.fr" website must respect the rules applicable to the Internet and the ethics of the legal profession. In particular, the Paris Bar lawyers were reminded that they have to inform each of their clients individually about just what rights they are giving up when deciding to take part in a suit directed through the website (especially regarding any concerns about the amount of the loss they are likely to be claiming) and to make sure that none of the fee agreements offered are considered, in view of the amounts involved, to be de quota litis agreements. (8)
b. The Legal Angle
On June 3, 2005, the law firm ADNS (Avocats Du Nouveau Siecle) took legal action against the administrators of the "ClassAction.fr" website and against the company Class Action.ft. Its main objective was to request the Lille first instance civil court, ruling in matters of urgency, to note that defendants are not allowed to make any offers of services whatsoever and to stop all illegal solicitation and giving legal advice. Rendering a summary order on June 14, 2005, the Tribunal de Grande Instance of Lille ruled that the claims made against the administrators of the website were inadmissible, since service was irregular, the writs not having been served at the address where the defendants had elected domicile. The crux of the judgement ruled that advertising Class Action.fr's legal services through the website was clearly illegal because it is a commercial company and not a legal entity authorised to provide legal advice. Additionally, the offers made on the website were illicit acts of solicitation, practices that constitute unfair competition with respect to the rest of the legal profession. (9)
Legal action was taken on July 13, 2005 by several consumer associations. (10) Their principle complaint was that the services offered by the website Class Action.fr constitute illicit solicitation. (11) In a judgment rendered on December 6, 2005, the Tribunal de Grande Instance of Paris granted the claimants' requests and prohibited mandates to sue from being collected online. (12)
It is clear from the reactions to the website that new legislation is needed to provide for class actions.
2. Report Submitted by the Working Group on December 16, 2005
As a result of Mr. Chirac's speech on January 4, 2005, a working group was set up in April, 2005 composed of representatives from consumer associations, including CLCV (Consommation, Logement et cadre de Vie), UFC-QUE CHOISIR (Union Federale des Consommateurs), and UFCS (Union Feminine Civique et Sociale), professional bodies, including MEDEF (Mouvement des Entreprises De France), CCIP (Chambre de Commerce et d'Industrie de Paris), FBF (Federation Bancaire Francaise), AFEP (Association Francaise des Entreprises Privees), and legal practitioners, including teachers, magistrates, and lawyers. Their task was to make proposals with a view to improving the system for bringing actions on behalf of several individuals and to setting up new mechanisms "to give consumer associations the possibility of taking legal action, in certain types of dispute, on behalf of a group of consumers in order to ensure compliance with legislation and to obtain compensation for individual injuries." (13)
A report was submitted to the Ministry of Finance and the Minister of Justice on December 16, 2005 analyzing models for class actions in foreign countries, giving a summary of what actions are currently available to consumer associations and identifying several possible types of recourse while commenting that none of them can be brought on behalf of all of their members.
In actual fact, the working group appears to have come up against two obstacles. First, consumer associations are divided on the question of what model of class action to adopt. In the first model, the judge rules on the validity of the action, controls the definition of the group, and then, if the action is admissible, renders judgment and awards damages and interest. In the second model, the judge begins by ruling on whether liability can be attributed to the professional concerned, and if so the court then waits for injured third parties to manifest themselves before enforcing the sentence; each claim for damages and interest is then examined separately. Second, the MEDEF (Mouvement des Entreprises De France), a professional body, is afraid of an "American style drift, with lawsuits being brought without rhyme or reason" (14) and is openly hostile to the idea of class actions.
On December 19, 2005 the two ministries involved issued a press release giving the government's undertaking to make proposals "while reconciling the need to protect consumers with the need to ensure competition and the fundamental respect of French law" (15) after a debate that occurred on March 1, 2006, so as to enable the actors directly affected to put forward their point of view. This debate did not result in any resolution of the class action dilemma.
3. November 30, 2005 Antitrust Commission Decision
In a decision rendered on November 30, 2005, the Antitrust Commission found Orange France, SFR, and Bouygues Telecom guilty of conspiracy to fix market share and fined them 256 million [euro], 220 million [euro] and 58 million [euro] respectively.
However, to the extent that the sentences pronounced by the Antitrust Commission do not repair the losses suffered by consumers as a result of price fixing on the part of the mobile phone operators, UFC-QUE CHOISIR, a consumer association, set up a website with a view to bringing legal proceedings. To date, the website www.cartelmobile.org, which has already had 60,000 visitors, enables each consumer to calculate his or her loss, totaling about 1.2 billion [euro] according to UFC-QUE CHOISIR.
UFC-QUE CHOISIR is currently handling 18,200 files but clearly states that it will not be able to handle more than 40,000 if no reforms are
made to the collective action procedure.
II. The Current Position
It is difficult to gauge with precision the scope of class actions being introduced into French law. Indeed providing for class actions would, to a great degree, depend on the choices made by the legislators. Three solutions could however be envisaged. The simplest option would be to modify existing legislation. In that case, it would not be possible to establish a true class action since individuals would still have to give their mandate to a representative. The second solution, the most drastic, would be for legislators to create a provision for a real class action allowing one person to take action on behalf of a group of people without requiring any prior mandate. However it is unlikely that this solution would be adopted since it would upset the constitutional and procedural principles inherent to French law. The third solution, a compromise between the first two, would be to envisage a proper class action that nevertheless respects the main principles of French law. Two procedural steps would be involved, one giving rise to a judgment in principle concerning the liability of the company in question and the second, inviting third parties who consider they have suffered an injury to come forward and claim damages.
If the third solution is adopted, it will be easier to measure the scope of legislative reform. There are both advantages and risks in following this course.
A. The Advantages of Introducing Class Action
Many of the advantages in bringing a class action appear to concern consumers, however since class actions simplify access to the justice system and improve social justice, introducing a class action in France could benefit everyone since these actions also encourage compliance with French procedural rules. Class action law suits may also make court proceedings less onerous on individuals.
1. Greater Compliance with Procedural Rules and Better Access to the Justice System
Better access to the justice system and the unification of lawsuits and their resolution are the main advantages of introducing a class action into French law. One of the main principles of procedural law is to guarantee access to the courts. This guarantee has been defined as being "the right of any person ... to take legal action in order to uphold his/her rights." (16) This guarantee is very important, since it is provided for by law. The concrete expression of this guarantee, i.e. the tangible rights it bestows on individuals, is strengthened.
According to European Human Rights Commission case law, guaranteeing access to the justice system must be "real and tangible." (17) Simply proclaiming the universal right to justice is not sufficient. Ordinary citizens, especially the poorest in our society, must be guaranteed access to the courts both from a financial and psychological point of view. Introducing class actions would achieve this aim, as illustrated by the U.S. system: "[b]ureaucratic justice implemented through class actions provides better opportunities for achieving individual justice than does the tort system's private law, disaggregative processes." (18)
2. Unification and Resolution of Lawsuits
A second theory to consider (19) in matters of bureaucratic justice lies in the requirement for court decisions to be coherent and to harmonize the amount of damages awarded on a national level. Logically, joining several claims would result in one single judgment being rendered and would give a better guarantee of coherence concerning resolution of a dispute and harmonization of damages than when several claims are heard by different courts. In that respect, class actions would improve the justice system, and they would lead to a better understanding of the legal solutions available and therefore result in improved predictability. This type of action would definitely give much stronger judicial protection to consumers.
The fact remains, however, that there is justifiable concern about class actions. Would the risk of having to defend such an action have a substantial effect on the reserve set aside by a company? People often express fears that class actions would cause financial hardship and even bankruptcy for the company defending the action. These fears are deep-rooted and not restricted to French companies. Each country that has introduced class actions has had to take these fears into account. However, very few studies have been carried out in this respect. The only studies available were done in North America and are not unduly alarming. So to find out whether these fears are justified, a research institute in Quebec has carried out research, based mainly on corporate annual reports as well as the value of shares on the stock exchange. To answer the question of whether class actions have resulted in some companies going bankrupt, interviews were conducted by people from the Class Action Assistance Fund in Quebec, whose experience on the matter is undeniable. The results showed that out of all the class actions brought in Quebec, none of them led to a company's bankruptcy.
The financial consequences of a class action on companies are relatively small, since companies usually either set aside reserves to ensure that their financial situation is not directly affected, or they are making such big profits that the value of their stock is not affected. (20) Obviously one study alone cannot provide a definitive answer and other studies should be conducted to compare results.
3. Making Lawsuits Less Onerous and an Amalgamation of Claims
One of the arguments often made against introducing class actions in France is that they might lead to a plethora of lawsuits that would clog up the court system and, may be, an abuse, of litigation rights, but both remain to be seen. First, to the basic concept of group action would mean amalgamating a great number of individual actions brought by persons having suffered the same injury into one single law suit, rather than having several claims heard in different courts. A class action is therefore an economic way of settling several lawsuits. Moreover, if we are all in agreement that a class action, by its very nature, only involves cases where there has been a mass injury, it is logical to believe that this type of action would not be employed very often. In Quebec, but also in European countries where class actions have been introduced, such as Sweden, this type of recourse is definitely the exception rather than the rule. (21) However, it is important to note that in Sweden, class actions can be initiated in a variety of areas, since the law not only covers consumer protection but also environmental law and labor law. (22) Contrary to the fears expressed when this legislation was being introduced, there have been very few class actions initiated. The Department of the Ombudsman has only recorded five such actions in Sweden since January, 2003. Evidently we do not have sufficient hindsight for an overall assessment of this type of action in Sweden, which will surely develop in the future, but it is clear that introducing class actions has not immediately resulted in the abuse that was feared. This data leads us to conclude, for the time being at least, that class actions do not lead to an increase in lawsuits. To the contrary, they aim at amalgamating several lawsuits and harmonizing their resolution.
Despite this information, class actions do not mean an end to litigation. This concept is illustrated in the opt-out system, where people who have decided not to join in the class action retain their individual right of recourse. It is even more true for the opt-in system where, in all probability, voluntary participation in a class action is still dissuasive and/or can lead to opportunist behavior on the part of potential injured third parties who prefer to stay out of it, letting others bring the initial action then taking advantage of a judgment that in principle is favorable to their case:
Class actions make out-of-court dispute resolution easier. They have the advantage of avoiding long-drawn out, costly law suits. In addition, if a settlement is reached at a very early stage, the company involved can also steer clear of bad publicity. One accusation often leveled at class actions is that they are a form of blackmail, since the companies involved have to sit down at the negotiating table, whatever their share of liability. There are limits to this argument of course. First, nobody can be coerced into signing a settlement agreement. When certain defendants do so, it is probably because it is in their best interest, whether to limit damage to the company's reputation as a result of media coverage, or to reduce their legal fees. Court action always remains a possibility, and the company can choose to pursue the lawsuit to its conclusion instead of settling. Moreover, the pressure applied with a view to settling is not exclusive to class actions. Such pressure exists whenever the financial stakes are very high and in cases involving vast numbers of individual claims. Media interest in this type of case can also be influenced by this pressure. Finally, the specter of "lawful blackmail," so dreaded in the United States, has not necessarily reared its head elsewhere. In Quebec, for example, the proportion of out-of-court settlements is no higher for class actions than it is for normal cases, where only five percent go to trial. (23)
Finally, class actions present more advantages than one might imagine at first glance, once they are stripped of their disquieting elements and are brought within and comply with a pre-established judicial framework. National practices should also be taken into account when considering whether to introduce class actions into a country's legislation; however, there are still risks involved.
B. The Risks Involved in Introducing Class Actions
Compared to the lack of control over certain risks involved in introducing class actions stemming from the obvious lack of hindsight, its value in French law appears relative.
1. Its Value is Relative
The very first class actions were introduced in countries where State intervention is far less prominent than in France. In a system like ours, where the State plays a major role in organizing and directing relationships between individuals, and more particularly between consumers and businesses, the value of class actions must be put into perspective. No one can dispute the fine work done by the DGCCRF (Direction Generale de la Concurrence, de la Consommation et de la repression des Fraudes--the regulation body for goods and services) in France in that respect. However, the financial sanctions imposed by the DGCCRF do not represent direct compensation for consumers who are victims of improper behavior on the part of certain companies.
Second, we must remember that our procedural law already provides for several types of collective action, the purpose of which is to repair both collective injuries (actions brought by consumer associations provided for in the January 5, 1998 law and individual injuries (actions brought on behalf of several individuals). (24)
The low success rate of these actions leads us to ask whether it would be better to improve existing procedures and make them more effective rather than to create a new action whose effectiveness will doubtless be limited. This question does not take into account the fact that the hindsight required to measure the exact scope of such a reform is missing.
2. Lack of Hindsight
The project of reform obviously brings a degree of uncertainty from a macroeconomic point of view. It is very difficult to define the scope of such a reform and the risk of interfering with certain special liability procedures that already exist to simplify the indemnification of injured third parties as much as possible. (25) Comparative law is not of any great utility in that respect.
3. The Different Experiences with Comparative Law
With respect to comparative law, the various class action systems in foreign countries are quite recent, like Portugal or Sweden, and are not used very often or have been subject to recent reform, like in Quebec, England, or the United States. The objective of such reforms has been to avoid certain identified risks of exaggerated claims. (26)
The American style class action reveals, from the procedural angle, certain special characteristics that are very difficult to transpose into the French legal system. For example, the discovery procedures that require parties to disclose evidence and punitive damages are American legal principles that are not present in the French legal system. Analysis of comparative law nevertheless leads us to conclude that the absence of visibility would not be an obstacle to the success of such a reform on condition that a proper framework is established for the French style class action.
4. The Risk of Generating an Unfavorable Financial Situation
In the United States, it is often considered that class actions cost exorbitant sums and that this has direct repercussions on the American economy. A class action can indeed be very costly for the company under attack and insurance companies are bound to react to such a reform by increasing their premiums. At present, the premiums charged to companies vary, depending on whether their business is only in France or both in France and in the U.S.
Another foreseeable consequence involves both the defending companies, within the context of class actions, and their civil liability insurers. In fact, although the compensation paid out for individual claims can be spread over several years, depending on the date when each set of proceedings was initiated and its duration, the costs arising out of a class action must be borne in the same year. The financial burden resulting from a court decision or the execution of a settlement is therefore much harder to shoulder for the company concerned and, as the case may be, its insurer. (27)
There is also the fear that companies will be blackmailed into a settlement due to the risk of media pressure that could give them very bad publicity, very prejudicial to their defense and their image. It could therefore stigmatize the very principle behind settlement agreements, the idea of which would not otherwise have been entertained. (28)
Finally, the cost of the increased number of disputes between professionals and consumers, to the detriment of the very positive types of alternative dispute resolution that have developed over the past few years, will have obvious repercussions on the prices charged for goods and services. (29)
5. The Risk of Increased Litigation
Class actions do enable a plethora of complaints to be amalgamated, but they also give rise to a fear of an explosion in the number of lawsuits. Comparatists must be wary of the lessons learned from studying statistics for foreign countries, particularly the United States, as the figures vary depending upon who is quoting them. In some studies, the number of class actions is on the decrease, while others indicate there has been a strong increase. Despite the statistics, there is a very real concern about an abuse in the number of lawsuits in America, as well. However, although such a drift has been observed in the United States, its cause is more likely to be the awarding of astronomical amounts of damages and interest, known as punitive damages, rather than the special characteristics of the class action (the total cost of tort liability in the United States is expected to reach $300 billion for 2005, i.e. 2.5% of the Gross National Product). (30) Since the system of punitive damages has no place in French law, we must therefore be cautious in our language. Under French law, damages are awarded according to the principle of repairing the entire loss, even though certain people would like to introduce the concept of "diffused" injury, whose scope has not yet been grasped fully. The introduction of punitive damages would be a bad idea as things stand and would only serve to introduce criminal sanctions into the civil court system when there is already provision for such punishment under the criminal law system.
C. Implementation is Incompatible with the Ethics of the Legal Profession
French consumer associations have recently stated that they are not physically capable of managing all of the claims involved in certain group actions. The cost of group actions is usually very high and can only be borne by law firms as a result of mechanisms that are still banned in France: publicizing future actions or suits already initiated and only charging fees if the case is successful. (31) As a general rule, implementing class actions under French law would therefore require the following two changes: permitting advertising of a particular case and even solicitation if a class action is admitted by a court; and allowing lawyers to charge fees depending on the result of the case.
1. Solicitation of Injured Third Parties by Lawyers is Against the Law (Decree of July 12, 2005)
Publicity goes hand in hand with the class action. (32) It would be possible to provide for special advertising with a limit placed on the number of inserts, the amount of legal fees, and the conditions under which the lawyer would be acting in a written agreement that would first have to be given to the prospective client and, in line with consumer protection law, a minimum cooling off period prior to signing the agreement.
2. Quota Lifts Agreements
Quota litis agreements (contingency fee cases) are prohibited by the ethics of the French legal profession; however, from a practical point of view, they do sometimes exist. A lawyer is entitled to draw up an agreement providing for a retainer, plus an extra fee if the action is successful. The question remains as to whether a fee agreement that provides for a retainer of 300 [euro] and a ten percent fee if successful is valid in a case where the amount at stake is 10 million [euro]. (33) In addition, charging a fee depending on the result obtained would only cover the cost of the proceedings if the damages awarded were very high, which is usually not the case in France.
III. Conclusion: What is the Future for Class Actions in France?
Undeniably the project of reform is interesting and attractive. However, class actions in France would lead to problems of implementation under procedural law, since they would come up against certain principles of constitutional law and legal practice. Although not everybody agrees that the current legislation is unsuitable for mass claims, everybody freely admits that a legal void does exist. To step outside of our traditional practices, a great deal of political will would be required both in France and at a European level about establishing class actions.
Unfortunately the European Commission is not currently applying any pressure, considering that this type of reform is the prerogative of domestic law. We cannot therefore be sure that this political will exists. Nonetheless, to believe that France can distance itself for much longer from the general movement that is gradually taking over our European neighbors is pure illusion.
The subject will continue to be debated in the next months, as no official decision has been made. Up to now, two private bills have just been issued, one by the left hand of the French Senate, another by a Rightist Deputy. It is too early to know whether or not this political will exists, but what is sure, is that it causes much ink to flow.
(1) French Republic President Jacques Rent Chirac, 2005 New Year speech, available at http://www.elysee.fr.
(2) Report available at www.minfi.gouv.fr/directions_services/sircom/protection_conso/protection_eco /rapport.pdf.
(3) 3. Law no. 88-14 January 5, 1988. JORF (January 6, 1988).
(5) Article L.1114-2 of the French Code of Public Health.
(8) The lawyers were reminded that they had to "show moderation in how they presented the website," "abstain from any solicitation of the general public to join in the legal actions either 'anticipated' or in progress," to refrain from putting writs of summons onto the website for legal actions already initiated or "anticipated" by the promoters of the website itself acting in a capacity as claimants in those actions; ensure that the general conditions of the website comply with the internal rules of the Paris Law Society relating to attorney-client relationships in legal proceedings; not enter into negotiations with the defense without informing their clients; obtain prior, written authorization from clients, to make settlements and draw fees from their Carpa accounts (French Lawyers' bank account); obtain the agreement of their clients before deciding to waive immediate execution in the collective actions they initiate, and not to force such a decision on their clients if immediate execution is ordered.
(9) Consequently, the Lille court ordered Class Action.fr to withdraw from the website all advertising, offers of services and solicitation aimed at providing legal advice, drafting legal documents and legal assistance contracts, within 48 hours of the court order being notified, under threat of a 1,000 E fine per day for two months.
(10) Several of the consumer associations involved include: ADEIC, UFC-QUE CHOISIR, and UFCS.
(11) The claimants also asked the court to rule that certain clauses contained in the general conditions, in particular those giving lawyers total freedom as to the choice of jurisdiction and legal grounds, the amount of the claim, and negotiation of settlements are illegal and unfair.
(12) This prohibition was accompanied by a 15,000 Euro fine for any offence observed. The judgment also banned all advertising from the website likely to induce consumers into error and ruled, subject to the same fine, that certain conditions offered to consumers are unfair and illegal.
(13) Report available at www.minefi.gouv.fr/ directions_services/sircom/protection_conso/protection_eco/rapport.pdf.
(15) Report available at www.minefi.gouv.fr. Communiques no. 0512193 (December 19, 2005).
(16) S. GINCHARD ET AL, LE DROIT PROCESSUEL, DROIT COMMUN DU PROCES, (Precis Dalloz 3rd ed.).
(17) CEDH, 9 October 9, 1979, Airey v. Irlande, serie A, no. 32.
(18) David Rosenberg, Class Actions For Mass Torts: Doing Individual Justice By Collective Means, 62 IND. L. J. 561 (1987).
(19) V. D. HOUTCIEFF, LE PRINCIPE DE COHERENCE, PUAM.
(20) See www.http/iris-recherche-qc.ca.
(21) Sweden introduced class actions with a law passed on May 30, 2002 that entered into force on January 1, 2003.
(22) However, a class action can only be brought if the group has been accurately identified and its members have given their agreement to join it, which rules out the "opt-out" system.
(23) Activity reports issued by the Ministry for Justice, General Judiciary Dep't; Outside Quebec, see M. GALANTER, I.H. JACOB, ACCESS TO JUSTICE IN ENGLAND; see also M. CAPPELETTI & B. GARTH (DIR.), A WORLD SURVEY, BOOK ONE, 417 (Alphenaandenrjn/Milan, Sijthoff/Giuffrel 1978).
(24) NB. Chapter I, Current state of affairs.
(25) Extract from working group report.
(26) D. HOUTCIEFF, LES PETITES AFFICHES in French courts, Dream or Nightmare, June 2005 no. 115 (French Legal Weekly publication).
(27) Meeting between Author Emmanuele Lutfalla and FFSA in January, 2006.
(28) HOUTCIEFF, supra note 26.
(29) HOUTCIEFF, supra note 26.
(30) HOUTCIEFF, supra note 26.
(31) HOUTCIEFF, supra note 26.
(32) JEAN-GUY LEVY, LES PETITES AFFICHES, June 10, 2005, no. 115.
(33) HOUTCIEFF, supra note 26.
IADC member Emmanuele Lutfalla is a partner in the French Law firm Soulie & Coste-Floret in Paris, France. Ms. Lutfalla received both her undergraduate and graduate degrees from Paris II Assas University in Paris, earning a Master's degree (DESS) in Business Law in 1989. She also graduated from Kent University in England, earning a Master's degree in International Commercial Law in 1990. She was enrolled to the Paris Bar in 1992, and her current practice focuses on insurance law and product liability cases. Ms. Lutfalla has presented at various conferences and she is a frequent speaker for EFE (Edition Formation Entreprise) in product liability law. She is presently serving as a vice-chair for the IADC
Veronica Magnier is Professor of Law at Jean Monnet Law School (Paris XI), Associate Professor at the Institut D'Etudes Politiques De Paris and at Paris II Assas University. She is the Scientific Director of The Dalloz Encyclopedia for Corporate Law. Professor Magnier received a Ph.D in Private Law from Paris II Assas University in 1997, and the Diploma from the Institut d'Etudes Politiques de Paris (1991). Her research interests include corporate law, securities regulation, Constitutional Civil Procedure, European and Comparative Laws. Professor Magnier has published extensively. She was an active member of the governmental working party in the reform of class actions (2005). Additionally, she has served as a Visiting Researcher at Georgetown University (1996-1998).
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|Author:||Lutfalla, Emmanuele; Magnier, Veronica|
|Publication:||Defense Counsel Journal|
|Date:||Jul 1, 2006|
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