Merricks v Mastercard Inc : Collective Actions Re-invigorated...
With special thanks to Alexandre Biard
On 10 June 2015, The National Assembly adopted at first reading the draft legislation introducing a class action mechanism in case of discriminatory practices.
Under this legislation, certain associations which have the objective of fighting discrimination (as well as trade unions) may bring proceedings to claim compensation for the losses suffered by persons placed in similar or identical situations due to direct or indirect discrimination. The claim may be brought before the private law court (tribunal de grande instance) or the administrative court.
The general framework of this group action in respect of discriminatory practices is similar to class actions for consumers and health-related claims. During the first phase of the procedure, the association/trade union must bring evidence of the discriminatory practices before the court. On the basis of the test cases brought by the plaintiff, the court will decide on the defendant's liability. If the defendant is held liable, the court defines the group of individuals entitled to compensation by establishing the membership criteria. Judges also decide on the nature of the compensation to be awarded to individuals or to groups of individuals; establish how the claim will be advertised in the media at defendant's expenses (once the case is no longer subject to appeal or cassation); set cut-off dates to join the group (this period must be comprised between 2 and 6 months after publication in the media).
If deemed necessary, the court can make any orders to stop the unlawful practices and may also order the defendant to pay a fixed sum in advance to cover the plaintiffs' expenses.
During the second phase and third phase of the proceedings, the group is constituted via an opt-in system. Claimants must fulfill the criteria previously set down by the court. The court may finally intervene should difficulties arise concerning the award distribution.
The draft legislation also provides for a simplified group action in situations where individuals are known and have suffered identical losses. Mediation is also possible. Any settlement agreement must receive judicial approval. Individuals must voluntarily step forward to benefit from the terms and conditions of the settlement agreement.
The draft legislation must now be adopted by the Senate. The text will come back to the National Assembly for a second reading should disagreements between the two Chambers of Parliament arise.