The race of Parliament to approve a radical reform of class action perplexing for more than one reason.
The class action tool has been operating in Italy for eight years. Courtroom experience does not provide specific indications of system inadequacy. In the absence of official data, news reported in the press or on the websites of consumer associations shows that around half of the class actions promoted so far have not passed the admissibility screening, generally due to the lack of homogeneity of the rights asserted. Among the actions admitted, some have registered a significant number of adhesions and have led to compensation.
Before messing with the rules, it would also be appropriate to take account of ongoing developments at European level. In parallel with the work of the Italian Parliament, the procedure for the adoption of a directive on collective actions to protect consumers continues in Brussels. To ensure the coherence of national legislation with that of the EU and avoid subsequent modifications, which cause instability of the reference framework, it would be advisable to engage in the ascending phase of European law and wait to see what choices will be made in the definitive text of the directive.
Some adjustments to the current legislation may be necessary to increase the efficiency of the system. For example, making the procedure for joining the action entirely telematic would encourage greater participation of interested parties. However, the acceleration of the law in Parliament may reflect an anti-corporate ideological approach. It is essential not to lose the balance of discipline, which must aim to ensure the relief of those damaged by mass crimes, not to encourage litigation by attributing a punitive connotation to compensation, which is foreign to our legal system. The fact that the bill transforms the class action from a tool that can be used for specific offenses against consumers to a tool of general scope, inserted in the code of civil procedure, makes it even more important that the rules are balanced, because otherwise the impact on business activity and on the entire economy can be very damaging.
The most problematic provisions in the bill concern three profiles: the adhesion mechanism, the company's obligation to disclose the evidentiary material and legal fees.
Memberships
While confirming the need for injured individuals to express their willingness to join the action (opt-in), the proposal enormously expands its scope, providing that it is possible to join the action even after the conviction sentence. In this scenario, it is extremely difficult for the defendant company to make a reliable estimate of the sums to be compensated, while the risk of opportunistic conduct by the interested parties is evident. This provision may also alter the parties' incentives to use alternative dispute resolution tools and to enter into settlement agreements. It would be more balanced to allow the opt-in within a reasonable time, in any case no later than the sentence of the first instance, and to subject the right to revoke membership to precise conditions.
Disclosure
The institution of disclosure is introduced: the judge, upon reasoned and detailed request of the plaintiff, may order the defendant company to produce evidence in his possession relevant to the decision of the case. The rules replicate the provisions for antitrust damages actions and establish guarantees to balance the various interests, including the right of the defendant to be heard before the disclosure order. The crucial issue is to ensure that the judges carry out a rigorous check on the actual usefulness of the requested evidence and on the proportionality of the measure, taking into account the costs that the exhibition may entail for the company, including those of revealing sensitive elements of its commercial strategies .
Legal fees
In the event of conviction, the defendant will have to pay both the plaintiff's lawyer and the representative of the members, appointed by the judge, fees established as a percentage of the total amount of compensation. In the case of the lawyer, unlike the representative of the members, this remuneration mechanism has a rewarding nature, as it is added to the fee for the professional service, and does not appear justified by the need to make the regulation of the action more effective class. Rather, the reward system creates a strong incentive for litigation and aggravates the defendant's burden well beyond the sum of the individual's claims for damages, assuming a punitive connotation.
It seems to us that these aspects should be rethought in order to arrive at a balanced discipline, which guarantees the protection of those injured by mass crimes without producing unjustified costs for businesses.
