Netherlands: Settling Mass Claims From A Defendant's Perspective


In our work as lawyers in an international context, we are seeing a steady increase in cases where a large number of individuals claim damages of a similar nature. There are numerous reasons for this increase; one is the rise of globalisation, another the involvement of interest groups and claims vehicles highlighting the possibility of collective actions. Further, newly enacted collective redress mechanisms in various jurisdictions (for example in the Netherlands and the United Kingdom) are encouraging actions of this kind. In the Netherlands, a draft bill on redress of mass damages in collective actions was recently presented. Although a collective action and a collective settlement procedure were already in place, the proposed new collective damages action could actually force liable parties to collectively redress a mass damages claim. Further, in the United Kingdom, amendments to the Competition Act 1998 - brought into force in October 2015 - allow claimants to bring collective claims in competition cases through a proposed representative claimant before the court and ask for a collective proceedings order to be made.

An increasing tendency to lodge mass claims may require that defendants consider alternative solutions in order to avoid time consuming, costly litigation - as well as reputational exposure. Settling mass claims is one option defendants may choose. This short article addresses issues that may arise and which defendants should keep in mind when choosing to settle mass claims.

Settling all (potential) claims?

Settling mass claims does not always result in the full, final and global release of all (potential) claims. An important question is whether a settlement agreement covers the entire mass claim, or only a part of it. Further, any publicity in relation to a settlement may encourage additional claimants, possibly with low-merit cases, to lodge claims or seek to become a party to a settlement. A defendant should therefore carefully monitor the extent of the coverage of a settlement agreement and may seek to expand that coverage and subsequently limit the number of remaining claims.

In this respect, the Netherlands has a well-developed model for settling mass claims and mitigating the risk of residual exposure. The Dutch Act on the Collective Settlement of Mass Claims (Wet Collectieve Afwikkeling Massaschade; the 'WCAM'), has attracted attention around the world due to its successful application in significant transnational cases. It allows parties to a collective settlement to jointly request the court to declare the settlement binding on all members of a class, on an opt-out basis. Under the WCAM, even a relatively small Dutch interest is sufficient to bring a case within the competence of the Dutch court; a requirement which is usually met. Although recognition by foreign courts may differ from country to country, it is likely that a decision to declare a settlement binding is recognised by other European courts on the basis of Council Regulation 1215/2015 (the "Brussels Ibis Regulation") - making the Dutch model an efficient transnational option. Although the question of recognition in transnational cases has not yet been completely resolved, the WCAM has already been successfully used for several global settlements.

Additionally, a new class action regime was introduced in the United Kingdom in October 2015, which may allow defendants to reduce the risk of facing remaining claims. Claimants can bring a private action for losses suffered as a result of an infringement of competition law before the Competition Appeal Tribunal (the 'CAT'), which now has the power to make collective settlement orders irrespective of whether or not collective proceedings have already begun. Claims can be brought on either an opt-in or an opt-out basis, subject to certification from the CAT. In opt-out cases the claim can be brought on behalf of, and aggregate damages awarded to, a defined group without the need to identify and specify the losses of all the individual claimants within that group. UK claimants within a particular class are automatically included in an action unless they take specific steps to opt-out.

Risk of additional contribution claims

Despite the fact that mechanisms as introduced in the Netherlands and the United Kingdom enable defendants to expand the coverage provided by a settlement agreement, the involvement of other parties in the alleged wrongdoing may prove to be a factor in deciding how to settle mass claims.

In principle, a settlement between the settling defendant and the claimants does not affect the claimants' claims for damages against the other defendants in the case. A settling defendant may therefore still be exposed to possible contribution claims from other parties that may be liable on a joint and several basis, which can be a disincentive to agree on a settlement. The settling parties can however agree to include an indemnification in the settlement agreement, protecting against these contribution claims. However, in the context of settling mass claims, such clause may appear somewhat impractical due to the large amount of participating claimants involved.

Instead of - or in addition to - including an indemnification provision in the settlement agreement, the settling defendant may agree with the claimants that they will reduce the amounts of their claims against the other defendants in line with the settling defendant's share. In practice, the other defendants' performance towards the claimants is then reduced by the amount that the claimant would otherwise have received from the settling defendant. Under Dutch law, this mechanism is laid down in article 6:14 DCC and has a broad scope of application. In proceedings concerning the WCAM, for example, article 6:14 DCC is presumed to apply unless another intention is apparent. Further, on a European level, Directive 2014/104/EU on antitrust damages actions also contains a clause protecting settling parties from contribution claims. Comparable systems operate in several state laws of the United States as well.

Although these share-reduction mechanisms can be effective in fulfilling a settling defendant's main objective - preventing involvement in any future litigation - some complications may remain. For example, when the claimants agree to reduce their claims in relation to the settling defendant's share in the alleged wrongdoing, the definition of 'share' should be carefully considered. A defendant's share may consist of other liabilities than only in relation to its part of the damages (e.g. litigation costs or additional liability in case of bankruptcy of other defendants). Covering this in the settlement agreement affects the amount claimants are able to claim from the other defendants, as they can only pursue claims for the difference between this share and the total damage caused by all defendants involved in the alleged wrongdoing. Therefore, defendants should be aware of the implications of a settlement with regard to future exposure to contribution claims, and should consider including provisions in the settlement itself in order to mitigate these potential risks as much as possible.

Cooperation as a type of non-financial compensation

When settling mass claims, the parties involved must agree on a mutually acceptable compensation. In situations where the claimants are expected to continue to litigate against other defendants, a settling defendant should consider the claimants' potential incentives to give up their claims in return for compensation - which may not necessarily be limited to monetary compensation. For instance, in cartel damages cases it is worth considering if cooperation with the claimants in pursuing claims against coconspirators can be offered in addition to - or even in place of - monetary compensation. As the evidence necessary to prove a claim for damages is often held exclusively by the defendants, and is often not accessible to the claimants, they may wish to ensure that the settling defendant will cooperate on matters of which he has knowledge. Sharing evidence in this way can function as a type of compensation, offered in exchange for the release of claims.

If the European Commission has enforced the competition rules in relation to the alleged misconduct, the defendants will have had access to the European Commission's file pursuant to article 27 of Council Regulation 1/2003 and article 15 of Commission Regulation 773/2004 (as amended by Commission Regulation 2015/1348). This file also contains information on the misconduct of the other defendants.

If the relevant evidence does not come from the defendant itself, but is obtained through access to an investigation file, the defendant has only limited possibilities to share this information. Pursuant to article 16a (1) of Commission Regulation 773/2004 pre-existing documents may be used "for the purposes of judicial or administrative proceedings for the application of articles 101 and 102 of the Treaty [on the Functioning of the European Union]", which seems to give some leeway to settling defendants to share these documents. However, information taken from leniency statements or settlement submissions can never be shared with claimants (article 16a (2)). The same applies to documents that have been created by other defendants or the Commission in the context of the Commission's administrative procedure (e.g. the Statement of Objections), as long as the Commission proceedings are pending (article 16a (3)).


When being exposed to mass claims, agreeing on an amicable settlement instead of case-by-case litigation against a large number of claimants may be an attractive option from a defendant's point of view. Although a settlement provides a certain level of freedom to find a tailor-made, defendant-friendly solution, settling mass damages cases presents unique challenges that require careful analysis. When deciding to settle mass claims, being aware of the various mechanisms and issues inherent in the process might be decisive in the process of selecting the most appropriate way forward.


Tony Piazza, Mediator, Mediated Negotiations

Even in a simple two party dispute, in which the sole material term is dollars, hammering out a settlement can be a challenge. When the field of variables expands to multiple jurisdictions and legal systems, with multiple parties, counsel, and settlement confirmation processes, the journey approaches heroic proportions. There are, fortunately, a few guideposts on the trek to a global antitrust settlement.

Step One: Consider hiring a Sherpa

Sure, you could summit Everest on your own. But while you have been busy litigating over the past few years there are guides who have hiked this terrain many times. Take advantage of the experience of a mediator who has walked through hundreds, or thousands of resolutions of complex cases. And it is not just a question of experience, but of access to a different dynamic than is available to even the most experienced litigator.

Originally published by Global Private Litigation Bulletin ABA Antitrust Section | Global Private Litigation Committee Issue 9 | March 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions