The Essure WAMCA: temporal scope, a framework to test funding, and more besides

In this post, we provide an analysis of the interesting WAMCA decision rendered by the Midden-Nederland district court in the Essure case. You can find the decision here: ECLI:NL:RBMNE:2025:10, Rechtbank Midden-Nederland, C/16/555152 / HA ZA 23-289.

The key lessons:

• The Utrecht and Amsterdam district courts provide different views on how to deal with the temporal scope of the WAMCA. The Utrecht court provides a more efficient approach, finding that the WAMCA can be applicable if a part of a range of events falls under the temporal scope (thus refusing to separate the group and proceedings in a pre-WAMCA and WAMCA claim). The Utrecht approach is also closer to – but not exactly the same as – the view taken by the Amsterdam court of appeal in the recent Volkswagen case (See: ECLI:NL:GHAMS:2024:2238, Gerechtshof Amsterdam, 200.312.819/01, finding 4.18).
• The decision provides an interesting (new) framework to test whether the funding fee agreed upon between representative organization and funder is appropriate. We would summarize it as a three step approach. The first two steps are in the jurisdictional stage. First, a funding fee up to 25% will only be stress tested if the defendant provides an argument why the fee is against the interest of the represented group. Second, the representative organization has an enhanced obligation to furnish facts if the funding fee is more than 25% of the claim, and this obligation also applies if the defendant does not argue against the fee. Third, once a decision on the merits is available, it must be determined on the basis of the level of damages whether the funding fee is “reasonable”. Here one needs to take into account all facts of the case, including the risks taken by the funder, the length of the proceedings, etc. The court correctly already notes that it is important to guard against hindsight bias at the end stage of the proceedings (a real danger in my view, once the dust settles).
• The Utrecht court confirms that immaterial damage claims can also be bundled.
• In terms of jurisdiction, the decision confirms consistent case law that the question whether there is jurisdiction must be decided on a prima facie basis. Interestingly, and rightly so, the court notes that jurisdiction with respect to possible parental liability must also be established on a prima facie basis. In other words: the hurdle to establish jurisdiction must not be too high.
• And finally: Utrecht court rules that it is possible to initiate through a single writ (i) a WAMCA claim and (ii) other related legal claims on behalf of other parties (such parties not being representative organizations), thus in essence starting two different proceedings that thereafter run separately but are dealt with at the same pace.

Facts

The case is brought by (i) Essure Claims Foundation (“ECF”) and (ii) various health insurers against Bayer AG and other Bayer entities as defendants. The plaintiffs claim that the Essure sterilization method is an unsafe product that has caused damage to the women that have made use of the product.

Temporal scope WAMCA

The court finds that the WAMCA regime is applicable on the full claim brought by the representative organization ECF. This even though many (indeed: most) of the products had been put on the market and implanted before 15 November 2016, i.e. before the WAMCA’s temporal scope. The court gets to this in a few steps. First, the court refers to the well-known transitional rule which states that the WAMCA regime is applicable if the claim relates to events that have both taken place before and after 15 November 2016. Second, the court finds that the relevant ‘event’ is when the products have been implanted (not when the product is brought to market). This is crucial, because there is evidence that the product has been implanted after 15 November 2016. Thus, concludes the court, there is a string of events related to the same claim, and the WAMCA can apply to all claims.

The court explicitly refuses to separate the claim (and the represented group) into a pre-WAMCA claim and a WAMCA-claim. This is different from the approach taken by the Amsterdam district court in Allergan, where the claim was separated (ECLI:NL:RBAMS:2024;745, findings 5.39 – 5.50. See: ECLI:NL:RBAMS:2024:745, Rechtbank Amsterdam). Why does the court refuse to ‘cut’ the case in half? The court finds that in case of a string of events involving the same claim, also after 15 November 2025, the WAMCA can apply. A quantitative comparison between the amount of events before and after the cut-off date is not required. The court further supports this decision by noting that this does not infringe principle of legal certainty, given that Bayer knew that the product was still being implanted after 15 November 2016, and given that also under the old system Bayer the same material rules would have applied with respect to liability (finding 3.32).

A framework to test funding

With respect to funding, the court provides an interesting framework to verify whether the funding fee is acceptable. The court (rightly) starts by noting that a range between 10% to 25% is generally deemed the maximum funding fee in WAMCA proceedings. Next, the court asserts that it will employ a basic assumption that a 25% funding fee will not be deemed in conflict with the interest of the represented group if the defendant does not challenge the funding fee (finding 3.72). In the Essure case a higher fee has been agreed between the foundation and the funder. In such a case, the foundation has an enhanced obligation to furnish facts, and thus explain why the funding fee is in excess of 25%. This duty to explain also exists when the defendant does not object to the funding fee. If the foundation cannot properly explain the percentage, the foundation may be declared to not have standing (finding 3.73). The court further explains that at the end of the proceedings, on the basis of the concrete compensation for the group, it will have to be tested whether the funding fee is reasonable when compared to the investment and risks incurred.

Jurisdiction

The decision confirms consistent case law that the question whether there is jurisdiction must be decided on a prima facie basis. In this case the court finds that the damage has been suffered in the Netherlands, as the place where the product has been implanted. With the Netherlands being the Erfolgsort, and article 7 (2) Brussels I being applicable, the Dutch courts have jurisdiction (finding 3.7 – 3.8). This jurisdiction also applies with respect to the parent company Bayer AG. This because on a prima facie basis the parent company has been involved with the Essure product, and thus there may be parent company liability. At this stage of the procedure, prima facie possibility of liability suffices to establish jurisdiction.

Bundling immaterial claims

The court’s confirms that it is possible for ECF to bundle a claim for immaterial damages, and further finds that this can be a fixed amount (forfaitair) (finding 3.45). As we understand the reasoning, the court is also asserting that this fixed amount can be an amount of damage that has at least been suffered (finding 3.45, last sentence). Whether or not a fixed amount is due, and what the amount should be, is of course subject to the debate on the merits that still has to take place. This view in in line with the Abbvie decision by the Amsterdam district court (ECLI:RBAMS:2024:745) and the Oracle Salesforce judgment of the Amsterdam Court of Appeal. In an earlier TikTok WAMCA decision the Amsterdam district court found that immaterial damages claim cannot be bundled, but that decision is being appealed by the representative organizations and is unconvincing in our view. The better perspective is provided in the Essure/Abbvie case law and Oracle Salesforce judgment.

Dealing with separate claims within the WAMCA?

Finally, the court also finds that it is possible to serve on the defendant a single writ on behalf of (i) a representative organization that asserts to start a WAMCA and (ii) health insurers that bring forward their related own non-WAMCA claims. The claims made by the health insurers do not fall under the WAMCA proceedings.  However, they will be dealt with at the same time as the claims made by ECF in the WAMCA proceedings, among others, for efficiency and finality reasons. Thus, there is so called subjective cumulation of claims (subjectieve cumulatie).