Part 2 of “Class action in the Netherlands: how does the procedure work?”

Substantive hearing?

Whether there will be a substantive hearing of the case after the case is filed, will depend on the judge's decision as to whether the claim organization meets the admissibility requirements, whether the claim organization has made a sufficiently plausible case that pursuing the class action is more efficient and effective than bringing an individual claim, and whether or not there is a summary mischaracterization of the claim filed.

Exclusive advocate and narrowly defined group

In case there are several claimants who have filed a class action, the court will choose an exclusive advocate from this group of claimants. In making its choice, the court will consider the following circumstances:

• The size of the group of persons for whom the claimants is acting;
• The size of the financial interest represented by this group;
• Other work performed by the claimants on behalf of the persons for whom he is acting outside of court;
• Previous work performed or class actions brought by the claimants.

It may be that the nature of the claim, the claimants, or the interests of the persons for whom the claimants are suing, give rise for the court to choose multiple exclusive advocates. In principle, however, the court will appoint one exclusive advocate.

The exclusive advocate then acts exclusively for the interests of all persons who fall within the to be determined so called "narrowly defined group". The narrowly defined group includes both persons who have joined an interest group, as well as persons who have not joined and even persons who have no knowledge of the proceedings at all. The narrowly defined group is thus an important concept, as the court's final decision will in principle be binding only on this narrowly defined group.

All individual aggrieved parties (who belong to the narrowly defined group) do have the opportunity to use an opt-out arrangement after the judgement. If they do not so in time, they will be represented by the exclusive advocate and the judgment will be binding on them.

In addition, the exclusive advocate acts as a representative of the claimants who have not been designated as the exclusive advocate. This way, the other claimants remain involved in the proceedings. However, it is only the exclusive advocate who may perform litigation acts (unless the court determines otherwise).

The judge's decision as to which claimant becomes the exclusive advocate is not subject to appeal. Thus, once it is decided which plaintiff is the exclusive representative, it is binding.

The further proceedings

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This blog is part of a blog series on the WAMCA (Act on Settlement of Mass Damages in Collective Action). Interested in learning more about mass claims in the Netherlands? Please contact us at s.poutsma@ploum.nl or b.schoenmaker@ploum.nl.

Read more: Part 1 of “Class action in the Netherlands: how does the procedure work?”