BaFin approves for the first time unpaid equity commitment as a Tier 2 ancillary own-fund item, creating a cash-efficient alternative to group-internal own-fund financing
17 May 2024
Hengeler Mueller has been at the forefront of defending mass litigation claims in Germany and beyond. For many years, mass litigation predominated in securities and antitrust litigation, where we have developed a track record second to none in defending corporate clients. Currently, we are acting for clients in mass claims involving large cartel claims, the diesel issue and major catastrophic events, amongst others.
The phenomenon of mass litigation is here to stay. Fuelled by the relatively low cost of litigating in Germany, the use of legal tech to facilitate uniform claims (e.g. in connection with the Air Passenger Rights Regulation) and the courts taking a generous stance when faced with matters such as data protection claims, mass claims have rapidly expanded into the retail and consumer areas. Legal finance providers have long perceived Germany as an attractive market to pursue mass claims using assignment models to effectively overcome the lack of a proper class action regime.
Legislation is unlikely to alleviate the burden for courts or companies faced with hundreds, sometimes thousands of individual lawsuits. The recent implementation of the EU Directive on representative actions (Directive (EU) 2020/1828) did not go beyond the bare minimum required, which means that representative actions (dealt with in a single lawsuit) are unlikely to significantly curtail the number of individual lawsuits brought against a company [2023_07_verbandsklage_en.pdf (hengeler-news.com)]. In securities litigation, the recent proposals for a reform of the Model Case Act (KapMuG) are set to limit the scope of the model case, requiring the courts to deal with most cases on their own.
Companies and their legal advisors dealing with claims en masse are faced with challenges at both a strategic and an operational level. Strategic claims need to be identified and prioritized. The sheer mass of claims needs to be handled efficiently. Budgets need to be controlled and allocated towards achieving the greatest return. Legal teams need to stay on top of developments and have access to up-to-date information. Regulatory or criminal proceedings, proceedings in other jurisdictions, fact discovery and investigations may need to be integrated into the defence.
In our view, the most important risk for both in-house and external teams is losing sight of the strategic goals (achieving the best overall result for the company) for all the organizational requirements. After all, our ultimate objective at Hengeler Mueller is not to manage cases but to win them. This requires keeping legal teams’ attention and their time free for actual legal work, and to minimize the time required for organizational tasks as far as possible. This is where technology can help.
We have developed a Mass Litigation Platform, which is designed to streamline and digitize the entire litigation process - from receiving a claim to reporting and summarizing cases. The platform revolves around a database which is the cornerstone of file keeping, workflow-management and reporting.
The platform includes features such as AI-based automated extraction of key information, automatic storing of files according to extracted data (such as docket numbers), automated task allocation to paralegals and lawyers, and semi-automated drafting of legal documents. These features help to minimize the time our lawyers spend on organizational tasks. In undertaking most tasks, double checking of database entries by our lawyers is sufficient.
The platform features an advanced and nuanced permission system for all relevant stakeholders, establishing a single source of truth and eliminating the need for parallel data pools. This greatly enhances efficiency at each stage of the process. Moreover, as every stage occurs within the HM Litigation Platform, clients have instant access to all court files, deadlines, and hearing schedules at any time. Likewise, aggregated information required for internal reporting (e.g. claims number and value by court, jurisdiction, or score) can be customized and accessed in real time.
For proceedings that require the involvement of other service providers (e.g. proceedings involving multiple jurisdictions), the platform facilitates managing numerous law firms or external service providers within our litigation network, since everybody feeds into the same database. This enables rapid response to any surge in claim volumes, and helps us and our clients to keep track of all relevant work streams.
Perhaps most importantly, the Mass Litigation Platform is operated by our dedicated HM Legal Tech Center team. Drawing on a mix of legal expertise, project management acumen, and technical know-how, this team is capable of adapting the platform and all workflows according to the specific requirements of every mass claim scenario.
