Collective Action – Litigation’s Burgeoning New Ecosystem
Over the last few years, a new legal ecosystem has been evolving in the courts in England and Wales. It has been fed by a combination – some might say a perfect storm – of factors. A change in the law in 2015 ushered in US-style opt-out class actions in competition claims which are heard at the Competition Appeal Tribunal. This meant that everyone within the class of those affected by unlawful activity would be automatically included in the claim, unless they opted to leave it; in other words, individual claimants no longer had to be located and “opt-in”. The rapid growth in third-party funders has also contributed, with big financial players increasingly willing to bankroll large group claims. US law firms and big-name US class action lawyers also saw the potential of the lucrative ecosystem developing and, together with UK firms, wanted to be players.
These claims involve losses to large numbers of individuals, none of whom would be inclined or able to bring a claim on their own. For these groups there is strength in numbers, which can be vast. The claims often involve financial services companies that have routinely overcharged their customers, or motor manufacturers that have hoodwinked car buyers into believing that their vehicle emissions were “greener” than reality. Those on the receiving end of unlawful activity at the hands of big tech companies are also featuring heavily in the new claims landscape. For all of these people, collective actions provide a powerful means of access to justice.
The new ecosystem has developed to accommodate a whole plethora of different species interested in securing their slice of the class action market. They include the specialist lawyers and third-party funders, claims management companies that carry out many of the complex and technical aspects of administering the claim, and firms that specialise in “book building” (gathering the class members).
As in all ecosystems, each “class action” species depends to a certain extent on the other. One such “species” that is currently considered to be of somewhat secondary importance but can be central and critical to the success of a collective action is the specialist litigation PR firm.
An effective PR strategy that leads to informed and extensive news coverage that highlights and explains a claim in a responsible manner will be of enormous importance. It will alert members of the group or class to the claim itself. It will give them an understanding of the reasons behind bringing the claim and how they can become a part of it. It also provides an opportunity for both the claimants’ and defendants’ cases to be articulated so that the public can understand the claim itself and the significance to both those involved and the wider stakeholders. Where appropriate, it will also significantly help to build the book of those who have been wronged and are rightly entitled to compensation.
More commonly used in the collective action space, paid for advertising can soak up a vast amount of cash and, if ill judged, can be seen as distasteful. “Ambulance chasing” is never an attractive look for a law firm. In a world beset by scams, class members can also be extremely wary of ads asking them to “sign up” to something, especially when this involves them disclosing a chunk of their personal data.
On the other hand, articles that appear on national broadcasters, such as the BBC or ITV and elsewhere, including in the national press, will dramatically increase the level of trust potential claimants have in becoming part of the claim through effective third-party endorsement from a trusted source. While advertising a claim comes with credibility problems, those are largely extinguished when the claim is covered, analysed and explained on trusted media outlets.
In one case, we were instructed after a collective action against a major international corporation was discontinued. The case concerned the alleged unlawful harvesting of the data of up to 5 million children in the UK, effectively arguing that they were having their every move digitally tracked on the corporation’s platform. The claim foundered on the rocks of the UK Supreme Court judgment in Lloyd v Google, which ruled that mass claims for breach of personal data were not suitable for class action lawsuits, because each individual’s personal loss was impossible to quantify.
However, the lead claimant was still keen to take action against the corporation as they passionately believed it had overstepped the mark and acted outside of the law, and needed to be held to account.
Working with the individual and their legal team, we devised a media strategy around the filing of a super complaint with the Information Commissioner. The resulting news story was covered by the BBC’s Technology Editor Zoe Kleinman and ran across all BBC platforms – TV, radio and online. Television news packages ran on Breakfast and then on the News Channel every hour on the hour until the evening. They also ran on BBC World. An online piece ran on the front page of the BBC website, with the lead claimant quoted at length. They were interviewed on the Today programme, Radio Five Live and the BBC News Channel.
In just a few hours, the story had been picked up around the world, across 33 different jurisdictions, and mentioned in over 1,000 separate news items. It was seen by tens of millions of people in under 24 hours. That material remains permanently available on news websites. Crucially, the story will have been seen by the regulator, and public reaction and subsequent debate gauged and analysed.
Where claimants are bringing a case against a major corporate, securing media coverage can help raise the pressure on them to settle the claim. Highlighting the public interest in the claim can encourage regulators to look more closely at allegations raised, increasing scrutiny on the counterparty. Shareholders, stakeholders and business partners may also share the media coverage with defendants, further increasing pressure on them to come to the table.
Not every claim will have a sharp news angle that can secure coverage across all media platforms. But that is where a PR expert comes in. They will know how to best frame the issue at the heart of the claim for journalists. They will understand the story elements that journalists need, such as a number of compelling case studies who can articulate the experience and loss suffered by the claimant class. The PRs can help to find and prepare them for interview. They will also be able to work with the lead claimant or claimant committee where media training is required and a clear and persuasive narrative needs to be formulated. As well as knowing how best to frame the story, PRs will bring to the table their personal relationships with journalists, and their reputations as trusted suppliers of robust news stories.
In another matter involving a prominent corporate, we acted for an international law firm submitting a UK collective action against a tech giant. Even though a similar claim had already been launched by another law firm, we secured national coverage of the new claim, again including a piece on the BBC website. Through briefings to journalists, we explained that even though our client’s case wasn’t first to the starting line the court would have to decide which claim should progress through “carriage”. Our comprehensive briefing note gave journalists everything they needed to write about this complex legal issue in a way that appealed to readers and viewers. It highlighted important points about our client’s claim without in any way disparaging its rival. We detailed how the same grievance had already led to enforcement action and lawsuits around the world and now it was time for the UK courts to address the issue, providing a fresh angle on a story that had already received coverage.
A PR professional that understands the architecture of collective action litigation, and who can explain all of that to a busy journalist, is someone you want on your team, dovetailed with the lawyers. While the lawyers are rightly focused on the facts and the law and winning the claim in court, the PR team are focused on winning the claim in the court of public opinion and alerting all potential claimants to its existence.
Earned media coverage, achieved in the two matters described above, can also become free content to be used in owned media – eg, on a claim website or social media channels. Earned media carries a kite mark of authenticity; it convinces prospective claimants that the claim is real, credible and not a scam. The knock-on effect on potential interest and sign-ups is clear, particularly where multiple firms may be representing their own individual claimant groups.
A lead claimant is another new species in the ecosystem. Their advocating of their case in the national media creates content that can be highlighted on social media to make sure earned media reaches beyond the traditional news media. The value of trustworthy news coverage can therefore be amplified and extended.
Another advantage of earned media comes from the investment any journalist has in the issue. As the claim develops, a good journalist who has invested in the story will want to update their audience – especially where their original story has had a big impact.
The class action ecosystem is still evolving. After all, the first mass consumer action Merricks v Mastercard was only authorised by the courts in August 2021 and has yet to be heard. Meanwhile, cases like Lloyd v Google are setting the ground rules.
Interestingly, battle lines are being drawn within the ecosystem. Lobbying groups representing big business, backed by some of the UK’s biggest law firms, are mustering their forces to influence legislators to stifle the burgeoning class action industry, as a “brake” on commerce.
On the other hand, lawyers working on class actions on behalf of claimants have banded together to create a “trade association”: the Collective Redress Lawyers Association (CORLA). It aims to promote best practice across the sector in the service of providing access to justice for those groups of people who have suffered as a result of unlawful activity, and for whom collective action provides the only hope of redress.
Earned news coverage is always helpful, but it is especially critical for cases at the Competition Appeal Tribunal where claimants and their lawyers are under an obligation to show the tribunal that members of the class have been alerted to, and are aware of, the claim. It is equally important when a claim succeeds, as damages have been awarded, and members of the class need to be reached in order to receive their pay-out. If distribution rates are low (in the US they can be as low as 10% of the class), then claimants get short-changed. A good PR strategy for these high-profile cases can help guard against this risk.
Clive Coleman, Senior Partner, Maltin PR
Gaetan Portal, Partner, Maltin PR
This article was first published by Chambers and Partners, here.