As the third anniversary of the Dutch Collective Damages in Class Actions Act (Dutch acronym WAMCA) draws near, we look back to identify notable trends in Dutch class actions. Perhaps most noteworthy is that the trend of class actions brought in the Netherlands against multinational ‘big tech’-companies has continued to develop. In addition, international law firms and litigation funders have increasingly converged on the Netherlands as one of Europe’s class actions hubs.

Class actions against Big Tech

New cases

Per writ of summons of 17 October 2022, Stichting App Stores Claims (SASC) brought a claim against Google regarding the alleged abuse of its dominant position as distributor of apps on its Android platform. This claim is very similar to the one SASC brought against Apple in 2021 (alongside two other interest organisations, one of which has already announced it will also bring a claim against Google).

Meanwhile, Google also became the subject of discussions around a potential claim to be brought on behalf of (digital) news media publishers throughout the EU. This claim concerns the alleged abuse of Google’s dominant market position in the market for selling advertising space. In 2021, the French authorities already fined Google EUR 220 million for violations of anti-trust regulations in this respect.

Another big-tech class action that has been announced is the claim by Stichting Data Bescherming Nederland (‘Data Protection Netherlands Foundation’) against Twitter for the alleged sharing of sensitive data without user consent gathered by its former subsidiary MoPub.

Developments in ongoing cases

These potential new actions come on top of a number of ongoing cases against Meta/Facebook, Apple, Oracle, Salesforce, and Bytedance/TikTok. We highlight two of the most relevant recent developments below.

In the case brought against Oracle and Salesforce (which we previously coveredthe Amsterdam district court determined that an interest organisation needs to substantiate (i) that the class that it purports to represent actually supports the claim; and (ii) that such organisation is able to effectively communicate with its purported class. This decision by the district court fits a tentative emerging trend towards enhanced court scrutiny of interest organisations bringing a class action in the Netherlands.

Another recent decision was rendered by the Amsterdam district court in the case against TikTok. The court assumed jurisdiction under Article 79 section 2 of the GDPR for all TikTok entities involved (none of which are domiciled in the Netherlands), because the claims based on the GDPR were instituted on behalf of (and limited to) Dutch residents. The court determined that the interest organisations represented the interests of their constituency in accordance with Article 80 of the GDPR. This­ second decision is interesting since there was some debate in Dutch legal literature on whether or not an interest organisation under the WAMCA would satisfy the conditions of Article 80 (in particular, the Dutch opt-out system is not necessarily congruous with the data subject ‘mandating’ an organisation in accordance with Article 80 section 1).

For claims based on tort, the court assumed jurisdiction against TikTok Ireland under Article 7 section 2 of Brussels I Recast regulation, and against the non-European TikTok entities via the Dutch Code of Civil Procedure based on the connection between the claims against them and the claims against TikTok Ireland.

Notably, the district court ordered all three interest organisations in the TikTok case to share their financial agreements with their respective litigation funders with the court (but not the defendants). The court aims to review said agreements in assessing the claimants’ admissibility and deciding upon an exclusive representative. This measure had already been suggested in the legal history of the WAMCA (to which the court refers in its decision), but as far as we know it is the first time a court used this possibility in practice. This also fits the aforementioned trend of enhanced scrutiny of interest organisations.

Finally, an interesting development on the European level with regard to class actions against big tech in the Netherlands is the opinion of AG Campos Sánchez-Bordona on damages in GDPR cases. He concludes that the GDPR does not allow for awarding punitive damages in the absence of actual (material or immaterial) damages. Furthermore, he concludes that the ‘upset’ experienced by a data subject following an infringement of the GDPR is in and of itself is not enough to establish (immaterial) damages, unless a court deems in a particular case that such feelings amount to immaterial damage.

Growing international interest in Dutch class actions

Since the introduction of the WAMCA, we have seen increasing numbers of globally operating plaintiff firms and litigation funders opening offices or becoming more active in the Netherlands.

We believe that the increase of plaintiff firms and litigation funders located in the Netherlands underlines the trend of class actions being initiated as investment opportunities rather than to (primarily) serve the interests of injured parties seeking redress. In our view, this commercial approach to class actions could result in exactly the kind of ‘entrepreneurial lawyering’ that the Dutch legislator sought to avoid when the WAMCA was adopted.