Les class actions d'actionnaires: de la nécessaire évolution du droit français sous l'impulsion du juge américain

In France, the introduction of class actions has been a topical issue for about twenty years. Although many politicians and lawyers consider these procedures as essential, company lobbies and conservatism have prevented the evolution of French law. Any thoughts on the introduction of this procedure in France collided, on the one hand, with a fear to see French law being permeated by mechanisms coming from the American culture, and, on the other hand, a fear to leave companies under the power of a "legalised bribery". Even though the debate has not ended yet, it is unlikely that an umpteenth report on the introduction of class actions in favour of consumers will show any results. It is, however, on the subject of securities law that the situation might be changing. The Vivendi case in particular has confronted French and American judges with difficulties regarding the absence of recognition or explicit rejection of class actions in France. The extreme situation in which the complainants – 60 % of them being French – found themselves for the class action in the United States, can only be an alert for the French legislator regarding the urgency to give French complainants a protection mechanism similar to the one they are trying to benefit of in the United States. On June 24th, in Morrison v. NAB, the Supreme Court of the United States has spelled the end for foreign-cubed class actions, i.e. procedures initiated in the United States by non-American complainants against non-American companies regarding operations taking place outside of the United States' territory. The Court's message is clear : the United States won't be an Eldorado for all the plaintiffs around the world and the protective mechanisms of American law should only be enforced for situations that took place on the American market. However, financial markets don't know any borders and this decision by the American judge will only emphasis the insufficiencies of laws such as the French law, pushing those systems to adapt themselves in order to guarantee a better functioning of the markets. Nevertheless, implementing securities class actions can't be a neutral act and can't be dissociated from the introduction of class actions generally speaking. Indeed, securities class actions are not a securities law mechanism, but a procedural mechanism that is able to guarantee a better access to justice and a better regulation. This applies to any field. Implementing shareholder class actions therefore means implementing class actions as a whole. It is thus possible that French law's evolution will eventually take place via securities law rather than via consumer law, as awaited for about twenty years.

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