Marit Bosselaar and Peter Sprietsma from the class actions team wrote a commentary on the ongoing class action against KLM Royal Dutch Airlines (KLM), which was published this week by the leading Dutch civil procedural law journal Jurisprudentie Burgerlijk Procesrecht. The contribution focusses on the possibility of parties intervening in cases governed by the Dutch Collective Damages in Class Action Act (Dutch Acronym: WAMCA).
Our class actions team previously reported on the trend of the increasing amount and increasingly high profile of ESG litigation in the Netherlands, such as the Shell and Urgenda cases. Many of the ESG related cases are class actions. The Dutch class action against KLM fits this trend: claims organisation is stating that KLM is ‘greenwashing’ flying in airplanes by, inter alia, advertising carbon compensation schemes.
In their commentary, Marit and Peter discuss the trend of ESG class actions as well as several relevant considerations in a recent interim judgment in the KLM case. Particularly relevant, from a procedural point of view, is whether a claims organisation can intervene in a WAMCA-case, on the side of the claim organisation that initiated the proceedings, after the dedicated period for other claims organisations filing a writ of summons regarding the same facts has lapsed. In short, the Amsterdam District Court ruled in the KLM case that such an intervention would, in principle, be contrary to the procedural system introduced by the WAMCA: under the WAMCA, if multiple claims organisations file a writ on the same events, the court will select one ‘exclusive representative’ out of the claims organisations that submitted an admissible claim (similar to the ‘lead plaintiff’ system in the US). An intervention by other claims organisations at a later stage would indeed appear to be incompatible with this WAMCA system.
Our class actions team always keeps abreast of ongoing developments in ESG litigation and Dutch class actions (those governed by the WAMCA and those litigated under the pre-WAMCA regime). Our class actions team regularly publishes commentaries and articles on the developments in Dutch class actions and ESG litigation. The commentary on the KLM case as well as the class actions team’s other publications are available upon request.
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Our team has vast experience with class actions and collective settlements. For more information, please contact one of the members of our class actions team.