The recent introduction of the possibility of class action suits in Italy has stirred many feathers. These are legal actions that an individual wouldn't be able to carry out alone, and have existed for decades in the United States. This is the reason why the Italian debate constantly refers to the U.S. case, which can be considered the country where class action originated and where its recourse can be assessed.
In America, representative action is not only about providing legal protection to individuals, but has often been the driver of major changes in law and society. In the 60s, class action suits brought desegreation in the schools of the South, while in the 80s, dangerous products such as asbesto or the Dalkon Shield contraceptive were taken to court and off the market thanks to class action. Today class action suits are being used to end gender discrimination at the workplace, accelerate cuts in emissions of gases causing climate change, to take human rights violators to justice.
The effectiveness of class action in obtaining reparations in case of infringement of competition law, of financial fraud, and damages caused by defective products have led many legislators to contemplate the introduction of similar mechanisms in European law. Many wonder, especially in the Italian case, whether class action can actually be applied with its contingency fees (payments to lawyers that are set in percentage of the money won by the defendant), punitive damages (payments imposed not as reparation, but as punishment), and discovery, according to which parties are obliged to exchange of information pertaining to the trial. These accessories of class action are essential in the United States, but, as many have observed, they could be potentially incompatible with the Italian legal system.
One could also wonder whether class action suits are appropriate to the Italian socio-political context, and about the role of courts in this process. Alexis Tocqueville once famously noted that there's no political question in America that doesn't get transformed into a judicial issue, and this remark has been right time and again. For example, when the National Rifle Association tried to block a gun-control bill or the prohibition of lethal "black talon bullets", class action suits brought against gun makers succeeded where legislative power failed. Analogously, when the tobacco industry managed to block federal action on smoking, the various States came together as actors in class action suit, obtaining from cigarette producers an extralegal settlement of more than $250 billion as compensation for health costs due to cigarette-smoking. Courts have thus acted creatively, often turning into veritable policy-makers.
In Italy, political dissatisfaction usually finds readier outlets in strikes, political and antipolitical demonstrations (such as the ones organized by Beppe Grillo). It is thus important to address the question where Italian society and its political system are ready for a more active and creative role for its judiciary.
by Catherine Rogers,
Adjunct Professor of US Commercial Law, Bocconi, and
Associate Professor of Law,Louisiana State University