Latest - May 17, 2019

Mass claim litigation vehicles must sufficiently substantiate their claims up front

Mass claim litigation vehicles, when litigating on the basis of damage claims acquired from a group of claimants, must sufficiently substantiate their case for each underlying claimant and for each individual damage claim. They must do so from the start of the proceedings, even if these are only intended to establish liability. An example of evidence for each claimant does not suffice. Insufficiently substantiated claims will be denied.

This was what the Amsterdam District Court decided on 15 May 2019, in a follow-on antitrust damages case against truck manufacturers. The court ordered claim vehicles to specify for each underlying claimant, not only which trucks it had bought, but also when, how, and from whom, and for how long these trucks were in its possession. De Brauw represented DAF and PACCAR in this case.

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The litigation vehicles argued that the European Commission’s decision to impose antitrust fines on the truck manufacturers was enough to establish liability (with damages to be assessed at a later stage). However, the court decided that it was necessary and efficient for the litigation vehicles to substantiate up front for each underlying party if and to what extent it was actually harmed.

As earlier recent case law shows, the burden to sufficiently substantiate a claim is not only about when a claim should be substantiated, it also raises the bar on how. In a recent judgment in the follow-on lift case, customers had bundled their claims for damages in a claim vehicle, EWD. The Arnhem-Leeuwarden Court of Appeal gave EWD the opportunity to submit, for each customer, a file providing more detailed information on each individual claim. Instead, EWD submitted a USB stick with digital files containing over 15,000 pages of information. The court of appeal did not look at the content. Instead, it held that EWD had not sufficiently substantiated its claim, as the documents had not been organised and EWD had not provided explanations on the information. As a result, EWD lost the case.

The trend and overall message is clear: claim litigation vehicles can no longer hide behind a bundle of claims. These claim vehicles, and claimants in general, must do their homework before starting litigation, and must do that in a properly accessible manner. Otherwise, their claims will be dismissed.

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