Investor claims against Philips in two legal systems
After the recall of sleep apnoea devices, Philips investors are litigating in New York and Amsterdam, and in both cities it comes down to one question: how do you prove what Philips knew when the documents are with Philips? In New York investors obtained depositions and internal documents once they cleared the first hurdle; in Amsterdam they did not. The ING judgment shows how high the bar is in Amsterdam.
Two groups of Philips investors, two sets of proceedings
In August 2021, shortly after the recall, a class action was filed in New York. A class action is a group claim: if the court certifies the class, the outcome binds everyone in it who does not opt out. The class consists of investors who bought Philips shares in the United States; the parties themselves agree that purchases on Euronext Amsterdam fall outside it (federal court New York 2024, footnote 1). That reflects the American rule that the federal securities laws reach only transactions on American exchanges and other domestic transactions (Morrison v. National Australia Bank, 2010).
For investors who bought on Euronext, separate proceedings are pending in the Netherlands; no WAMCA collective action has been brought. Cases against Philips have been brought on behalf of groups of investors through Deminor and DRRT. On 10 October 2026 the Enterprise Chamber refused three petitions for an inquiry into the company's policy, a decision discussed in the article on the group leadership duty at Philips. It did not rule on damages for misleading statements, but it did examine Philips's communications and found no well-founded reasons there either to doubt the soundness of its policy (Enterprise Chamber 10 October 2026, paras 5.73-5.75). For the damages claims this means that the investigation that could have brought the facts to light will not take place for now.
New York: the Philips investors' claim clears the first hurdle
In American proceedings the plaintiff must first plead in detail what was wrong and that management knew it or recklessly disregarded it. At this stage the court takes those allegations as true. Even that first test is demanding: the inference of intent or recklessness must be at least as compelling as any innocent explanation (federal court New York 2024, p. 9). On 23 September 2024 the court held that the statements in Philips's annual reports about its commitment to compliance, quality and safety are capable of being misleading. A generic risk warning did not help Philips: it is not enough when the facts on the ground are already different. For the then chief executive, intent or recklessness from early to mid-2018 was sufficiently pleaded. He attended the meetings of the quality committee at which the post-market surveillance of devices was discussed. The court dismissed the claims against two other defendants and those concerning the €250 million provision (federal court New York 2024, pp. 16-17 and 29).
A plaintiff who clears that hurdle gains access to the other side's documents (discovery). That phase closed in December 2025, and what it produced is now on the public docket. In opposing a new motion by Philips, the investors filed excerpts from an October 2025 deposition of the then chief executive and internal Philips documents (court filings New York, March 2026). The plaintiffs had added the current chief executive as a defendant, and Philips moved to dismiss the claim in part. While that motion is pending, further discovery and the class certification proceedings are on hold; the court upheld that stay on 15 July 2026 (federal court New York July 2026).
Amsterdam: investors must prove what the board knew then
The case against ING shows how the Amsterdam court assesses such a claim. DRRT organised that case too, and it also concerned misleading annual reports and late disclosure of price-sensitive information. Investors who bought ING shares on Euronext between 2010 and 2020 alleged that ING had concealed structural shortcomings in its anti-money-laundering policy. In 2018 those shortcomings led to a €775 million out-of-court settlement with the Public Prosecution Service. On 5 November 2025 the district court dismissed all claims (Amsterdam District Court November 2025, paras 3.21 and 6.2).
A company that discloses price-sensitive information late or incorrectly may act unlawfully towards investors (Section 6:162(2) DCC and Article 17 of the Market Abuse Regulation). But the investors must state and prove what the company knew at the relevant moment, and the court exercises restraint so as not to judge with the benefit of hindsight (hindsight bias). The fact that the Public Prosecution Service later found structural shortcomings did not, therefore, prove that ING knew or ought to have known of them at the time. Nor is a pending criminal investigation in itself price-sensitive information that must be disclosed immediately: a company may first map out its scope and consequences (Amsterdam District Court November 2025, paras 6.15-6.19 and 6.47).
The ING investors also failed on the very point on which the Philips investors cleared the first hurdle in New York: the risk factors. ING had stated in its annual reports that a criminal investigation was pending whose consequences "could be significant". That was enough, because it had not been shown that ING concealed a more specific risk that had already materialised (Amsterdam District Court November 2025, para. 6.85). The difference from New York lies partly in the stage of the proceedings, and the facts differ too. The contrast is still clear: in New York a generic warning gave no cover where the facts were already different, while in Amsterdam it sufficed as long as no more specific risk had been concealed.
In both Amsterdam cases the investors also had to be specific before the court would order documents to be produced. The ING investors did not know what ING's internal investigation had found and asked for that investigation and the board minutes; given such weak substantiation, ING did not have to hand them over (Amsterdam District Court November 2025, para. 6.59). In the Philips matter, a similar request had already failed. The claim vehicle set up by Woodsford sought access to virtually all of EY's audit files on Philips, covering nine financial years. The court held this to be an impermissible fishing expedition. The vehicle did not make it plausible that investors had assigned their claims to it, and it identified no specific error by EY (Amsterdam District Court June 2025, paras 4.10-4.13). The article on Dutch discovery explains how far the right of inspection has extended since 2025.
Investor claims compared: United States and the Netherlands
The Philips cases do not stand alone. The differences follow from how the two systems are designed, and they can be summarised in six points.
| Topic | United States | Netherlands |
|---|---|---|
| Which purchases | Only purchases on an American exchange or in another domestic transaction (Morrison) | A WAMCA action requires a sufficiently close connection with the Dutch jurisdiction (Section 3:305a(3) DCC) |
| Who is bound | Opt-out: anyone within the certified class is bound unless they opt out (Rule 23) | Opt-out for residents of the Netherlands, opt-in for residents abroad, unless the court decides otherwise (Section 1018f DCCP) |
| How the group litigates | One plaintiff runs the case for the class, if the court certifies the class | A foundation must first be held admissible; investors also bring bundled individual claims |
| Funding and costs risk | Lawyers work for a percentage of the recovery, set by the court (30% in the Estee Lauder case, October 2026); in principle each side bears its own costs | Litigation funders bear the costs in return for a share of the recovery; the losing party pays a fixed-scale contribution to the other side, in the ING case over €22,000 per case (Amsterdam District Court November 2025, para. 6.94) |
| Evidence | No access until the first hurdle is cleared; then broad discovery, including depositions and internal documents | Access to specific information where there is sufficient interest; the case law requires a sufficiently plausible claim (Section 194 DCCP) |
| Causation | A presumption that investors relied on the integrity of the market price, rebuttable by the defendant (Basic v. Levinson, 1988) | A presumption of causation for a misleading prospectus (Supreme Court 27 November 2009, para. 4.11.2); undecided for annual reports |
The systems also differ in scale. In the United States 207 new cases were filed in 2025, and virtually none reaches a trial, the hearing on the merits: 0.4% of federal core filings since 1997 (Cornerstone Research, January 2026). The median settlement in 2025 was USD 17.3 million (Cornerstone Research 2026). In the Netherlands, investor cases number no more than a handful. The largest settlement remains Fortis/Ageas, €1.3 billion in 2018 (Amsterdam Court of Appeal 2018), and recent cases foundered on admissibility (Airbus) or on the merits (ING).
What does this mean for Philips investors?
Where the shares were bought determines the route. Anyone who bought on the NYSE between February 2018 and November 2022 falls within the American case if the court certifies the class, without bearing any costs risk of their own. Anyone who bought on Euronext falls outside it; the Dutch proceedings have so far been run through litigation funders. The Airbus case on the influence of litigation funders shows why an investor foundation can founder there; the collective route is described on the page on collective action and mass damage.
The Enterprise Chamber has also already made findings that bear on the Amsterdam cases. It rejected as incorrect the assumption that Philips had known, years before the first quarter of 2021, of a financially material risk. Nor did it see any indication that Philips had breached its duty under Article 17 MAR, and it referred to the AFM, the Dutch financial markets regulator, which on 17 July 2023 found no breach (Enterprise Chamber 10 October 2026, paras 5.72 and 5.85-5.86). Those findings were made in inquiry proceedings, but they are far removed from what the New York court found sufficiently pleaded at the first stage: intent or recklessness from 2018.
Anyone preparing an investor claim must therefore answer two questions from the outset: which facts make the alleged misstatement plausible, and how can the missing documents be brought to light? In New York those documents follow once the first hurdle is cleared. In the Amsterdam cases discussed, the substantiation had to be there already, and the documents were never produced.
Frequently asked questions
Can a Dutch investor join the American class action against Philips?
Only for shares bought in the United States. The proposed class covers purchasers on an American exchange or in another domestic transaction between 21 February 2018 and 1 November 2022. Where the investor lives does not matter. Purchases on Euronext Amsterdam fall outside it, and the court has yet to certify the class.
Does the World Online presumption also apply to annual reports and price-sensitive information?
The Supreme Court laid down the presumption for a misleading prospectus: absent the misleading statement, the investor is presumed not to have bought, or not on the same terms (Supreme Court 27 November 2009, para. 4.11.2). For periodic reporting the question is undecided in the judgments analysed; in the ING case the court never reached the question of loss (Amsterdam District Court November 2025, para. 6.90).
Can investors also hold the directors of a listed company liable?
Where the annual accounts or management report are misleading, directors are directly, jointly and severally liable unless they prove they were not to blame (Section 2:139 DCC). In the ING case the court still held that suing them was unnecessary: ING could pay, indemnified them, and nothing had been alleged against each of them individually (Amsterdam District Court November 2025, paras 6.92-6.93). Deminor also sued eight current and former directors and supervisory directors.
Cited case law
Supreme Court: ECLI:NL:HR:2009:BH2162 (World Online, 27 November 2009, para. 4.11.2; for a misleading prospectus the starting point is that causation with the investment decision exists).
Amsterdam Court of Appeal: ECLI:NL:GHAMS:2018:2422 (Fortis/Ageas, 13 July 2018; settlement of €1.3085 billion declared binding for the affected shareholders).
Amsterdam Court of Appeal, Enterprise Chamber: ECLI:NL:GHAMS:2026:2900 (Philips, 10 October 2026, paras 5.72-5.75 and 5.85-5.86; inquiry petitions refused, communications examined and no sufficient ground for doubt, no indication of a breach of Article 17 MAR).
Amsterdam District Court: ECLI:NL:RBAMS:2025:8223 (ING, 5 November 2025, paras 6.15, 6.19 and 6.68; breaches of disclosure duties assessed as at the time and with restraint, burden of proof on the investors, all claims dismissed). ECLI:NL:RBAMS:2025:4331 (Philips Investors Recovery v EY, 12 June 2025, paras 4.11-4.13; request for production against the auditor refused, assignment and breach of duty of care not sufficiently plausible).
United States: Patel v. Koninklijke Philips N.V., E.D.N.Y. 1:21-cv-04606 (23 September 2024; claims against Philips and the then chief executive over statements on compliance, quality and safety sustained). Docket of the same case (15 May and 15 July 2026; discovery stayed pending the decision on the new motion to dismiss). Morrison v. National Australia Bank (Supreme Court, 24 June 2010; the American securities laws reach transactions on American exchanges and other domestic transactions). Basic v. Levinson (Supreme Court, 7 March 1988; rebuttable presumption that investors relied on the market price).