Global Coordinating Counsel

Recent legal changes have redefined the nature and scope of liability in the EU. The Representative Actions Directive (RAD) has altered the EU’s litigation landscape by requiring all EU Member States to implement a collective redress mechanism. This RAD arrives simultaneously with the new Product Liability Directive fit for the “digital age” and the anticipated AI Liability Directive. These changes pave the way for class actions and mass torts on a scale not seen before in most EU Member States. As a result, consumers now have increased power and access to litigation mechanisms, leading to a surge in class action filings in various EU jurisdictions and a greater concentration of plaintiffs’ firms and third-party litigation funders.

Our team understands and can address the implications of these developments and how they impact businesses operating in European markets. Moreover, we understand how litigation in one jurisdiction affects and drives litigation and risk in other jurisdictions. We are adept at assisting clients with coordinating litigation and regulatory issues across borders to ensure consistency and efficient collaboration among in-house counsel, U.S. counsel and foreign outside counsel.

What is the Representative Actions Directive?

The RAD aims to ensure consumer access to procedural mechanisms to enforce EU consumer protection laws in all Member States, safeguard consumer interests and permit consumers to pursue claims aggregated. Each Member State must enable “qualified entities,” such as consumer organizations and public bodies, to bring representative cases on behalf of consumers against “traders” (e.g., businesses) for violations of any of the 66+ EU laws outlined in the directive.

U.S. manufacturers and businesses with an international foothold should be aware of the risks posed by the EU RAD. The plaintiffs' bar in Europe sees the economic opportunity; it is becoming increasingly organized, including seeking guidance and collaboration with U.S. plaintiffs’ firms and the class action and mass tort models that plaintiffs’ firms have used in the U.S. for decades.

Jurisdictions such as the Netherlands and Portugal have emerged as particular hot spots for class actions, and an expansion of mass tort litigation is also on the horizon in the United Kingdom. As these developments pick up pace across the continent, U.S. and international companies should strategically prepare to face a rise in collective actions overseas.

What is the new Product Liability Directive (PLD)?

Europe’s product liability landscape is currently undergoing some of the biggest changes seen in 40 years, as a new PLD comes into effect to replace the old law, which has been in place since 1985. The world has changed immensely in these intervening years, and the new PLD updates liability rules to reflect products as they are in the digital age. Member States have two years to implement the new rules, which will only apply to products put on the market after implementation. The existing PLD will continue to apply to products in the meantime.

The new rules apply to all products, including software (AI software as well). They apply to the product itself, raw materials within the product, or any related service that is integrated or inter-connected with the product. There are still risks for manufacturers outside of the EU, as importers, authorised representatives or fulfillment service providers may be targeted under the new PLD.

Finally, the RAD will apply to the new PLD, making it easier for claimants to bring claims on an individual or collective basis, or for qualified entities to do so on their behalf. Other litigation risks include new rebuttable presumptions between defects and damage that put the onus on defendants, new disclosure rules that make it easier to get documents from defendants, and an extended definition of damage.

Together, the RAD and new PLD will likely lead to an increase in manufacturers dealing with lawsuits and class actions across the EU. All manufacturers of consumer and business-to-business products will be affected by and should be apprised of these changes, but given current litigation trends, those in the health and life sciences, technology, and food and agriculture industries need to be particularly vigilant.

At Faegre Drinker, we understand the importance of comprehensive assistance in global coordination in class, consumer, and mass tort actions. 

With a national footprint in the U.S. and strategic offices in London and Shanghai, we are positioned to meet our client's international business needs and engage with our trusted global networks of firms when their local support is needed. We go where our clients need us and collaborate to support their goals worldwide. 

Our commitment to global reach goes beyond our physical office locations. We have the connections and capabilities to build a top-tier team worldwide. We have created a working group to collaborate with experienced European law firms to ensure broad support for our clients.  This partnership allows us to facilitate relationships between our clients and the most suitable local professionals with the necessary knowledge to navigate the foreign legal landscape. By incorporating local partnerships and knowledge into our global approach, we provide clients with the tailored guidance they need to achieve successful outcomes. 

As a founding Lex Mundi member and the World Law Group member for over three decades, we participate in a combined network of nearly 200 law firms and 40,000 legal advisers in 140 countries. Learn more about our global networks here.

Our team has decades of experience working with trusted networks of Canadian lawyers to coordinate product liability litigation in Canada and the U.S.  We understand that there are fundamental differences between the two legal systems in terms of procedure and exposure. Still, we know that neither of these legal systems operates in a vacuum.  Many mass tort actions that start in one country eventually cross the border, and coordinating these actions poses unique challenges. Our team understands how these two legal landscapes influence one another and diverge. We understand that careful coordination of cross-border litigation is essential to manage risk and exposure effectively.  We partner with Canadian counsel to provide consistent, efficient, and effective litigation and risk management strategies for our clients facing individual, mass tort, and class action claims.