Dutch Mass Claims Litigation – Has the WAMCA failed to deliver its promise to high-risk litigation funders or is it yet too soon to tell?

The Netherlands have historically been at the forefront of developments in collective redress. Since 2020 the country has seen a remarkable growth in mass class actions as in that year the Act for the Settlement of Mass Damages in Collective Actions (Wet afwikkeling massaschade in collectieve acties or “WAMCA’’) came into force.

The first substantive judgment for a mass damages claim under the “WAMCA” regime was rendered on 9 October 2024 (Stichting Nuon-Claim v Vattenfall). Eagerly awaited by the Dutch legal community and taking more than 4,5 years to deliver, it was anticipated as a landmark case that would open the doors to many other mass claims. The court, however, denied the plaintiff’s claims against energy giant Vattenfall for allegedly misrepresenting the amount and existence of certain costs and fees. 

In this article we consider what this judgment may mean for those involved in mass claims actions, as well as the potential downsides of the WAMCA procedure. Do these mean that the WAMCA is not as attractive for third-party litigation funders as previously thought or is that still too soon to tell? And if litigation funders get out of the game, will that mean the end of the Netherlands' position as a frontrunner in mass claim litigation?

The Vattenfall-case

First, a few words on the long-awaited Vattenfall ruling. This case pivoted around a claim by small business customers united in the foundation Stichting Nuon-Claim against energy supplier Vattenfall (formerly Nuon) for allegedly charging certain fees without providing an actual service or product in return, and without sufficient contractual basis. The foundation argued that these charged fees were therefore illegitimate and excessive. The group represented by the foundation included medium-sized businesses, small businesses and non-profit organisations that had all contracted with Vattenfall for a specific small grid-connection contract.

The District Court of Amsterdam dismissed all claims on substantive grounds. It held that Vattenfall did not conceal essential information and that the fees were outlined sufficiently clearly in the information provided prior to concluding the contract. As such, the customers could have chosen to reject Vattenfall’s offer and contract with another energy supplier if they did not want to accept the fees. Instead, they accepted Vattenfall’s offer, and the customers are therefore also held to pay the fees they accepted, according to the court, who dismissed all claims and found for the defendant Vattenfall.

Although round one is now over, the Stichting may appeal the judgement within three months to try and obtain a different outcome. It is yet unknown whether the Stichting will do so. Following the judgement, the Stichting stated its disappointment and announced it would carefully consider its next steps in the coming months, including appeal, but they have yet to announce a decision. 

WAMCA

The WAMCA has not only simplified initiating mass claims based on breach of contract or tort, but also offers a comprehensive collective compensation scheme for potential large claimant groups, with nuanced opt-in and opt-out features. This has also attracted many third-party litigation funders seeking to benefit from the enhanced claim-appetite triggered by the initiation of the WAMCA, and resulted in the Netherlands becoming an attractive forum for both mass consumer claims wherein the claimants claim monetary or non-monetary damages (particularly in Technology and Communications, often with a data protection angle), but also for more…