Law Times

lAw Times • April 11, 2011 An online resource 1.800.263.3269 Focus On CLASS ACTIONS Cross-border cases spur dialogue Canadian proceedings usually take lead in class actions BY DARYL-LYNN CARLSON For Law Times I n class actions for which there are similar matters ongoing in the Unit- ed States, lawyers have determined that it's imperative to establish a com- munications dialogue with counsel on the same side to ensure they remain up- dated. For the most part, it seems that law- yers in Canada will have the bulk of the information to share as class actions here, particularly in Ontario, proceed more expeditiously than in the United States. Th e goal for counsel representing both the plaintiff and the defence is to achieve effi ciency in cross-border class actions to save clients costs. Tim Buckley, national leader of Bor- den Ladner Gervais LLP's class action practice, says communication between the lawyers is crucial to the success of the case. In particular, it's imperative to ex- plain Canadian procedure to American lawyers as the two legal systems have sig- nifi cant diff erences in terms of process. "We will often work with U.S. counsel who may or may not have experience working with counsel from Canada, so it's important to explain and instruct them on the Canadian procedure," says Buckley. As he points out, many U.S. lawyers lack familiarity with Canada's laws re- garding class actions. "We're far more knowledgeable about the U.S. proce- dures than they are of ours." Th ere are subtle diff erences between each country's respective franchise and securities laws, for example, so any class actions relating to those areas require diligent communication between law- yers despite the fact that many state- ments of claim fi led in both places are very similar and will usually be forward- ed to Canadian counsel by the U.S. counterpart. "On the defence side, there are cer- tain economies that can be achieved between counsel in the two countries," Buckley says. In securities-related class actions, as the same facts could be relevant in both jurisdictions, it's important to establish a dialogue to identify the liability issues and laws in each country to see which evidence is applicable, he notes. As well, lawyers in the two countries frequently co-ordinate e-discovery pro- cedures to expedite the process and get the case moving, he adds. Canadian lawyers can also become invaluable to American counsel regard- ing counterpart class actions that have been launched in Quebec. "Th ere are barriers regarding the civil code in Quebec, so it's very important for U.S. counsel to have the instruction and the help of Canadian counsel when dealing with a case in Quebec as it is very diff erent from the U.S. system," says Buckley. Th ere's also the issue that there are a limited number of experts for class ac- tions that address specialized areas spe- cifi c to the product. "Th is can give you the opportunity to seek out the best ex- perts worldwide in a cutting-edge case as there are a limited number of experts in any one country," Buckley says. In the event the case reaches a settle- ment in the United States, lawyers must be sure they inform their American counterparts of the Canadian rules per- taining to due process and notice. "Th e lawyers in the U.S. have to make sure, if they want the settlement approved in Canada, they have to satisfy the judge as Get more online Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds lawtimesnews.com • canadianlawyermag.com www.lawtimesnews.com Visit Us Online 1-8-5X.indd 1 2/28/11 2:37:34 PM Fresh Canadian legal news and analysis every day He says that in some cases such as the hydrogen peroxide price-fi xing class action that was successful in Ontario, British Columbia, and Quebec, the U.S. court quashed the certifi cation even though the evidence came from the same experts. Th at prompted Ca- nadian counsel to assume responsibility on both sides. Naudie says that because there will be more cross-border class actions that could end up achieving a result in Can- ada, it's important that lawyers in both countries work together. "It's essential for lawyers to under- 'We're far more knowledgeable about the U.S. procedures than they are of ours,' says Tim Buckley. to the breadth and reach of the notice," Buckley says. "Sometimes, it's a surprise to counsel as to how expensive a notice can be because our population is wide- spread and diff use, but that's just the nature of Canada." Nevertheless, Buckley believes that working on cross-border class actions and those that have an international scope presents an incredible learning curve that he feels is useful for all law- yers who practise in that area of law. "You build up experience that helps you work on the next fi le effi ciently." Christopher Naudie, a partner at Os- ler Hoskin & Harcourt LLP in Toron- to, acknowledges that as there are many diff erences between the two countries, co-operation between the lawyers is a necessity. "Cross-border class actions are growing, and it's something we have to get used to simply because the plain- tiff lawyers are co-ordinating more with their counterparts in the U.S.," he says. "Th e challenge is that we are seeing more and more copycat or parallel class proceedings brought in both Canada and the U.S., and the challenge for us is the plaintiff side is closely co-ordinat- ing their eff orts. So as a result, there is a need to have a consistent defence in both jurisdictions." stand each other's legal system and work together," he says. Jay Strosberg of Sutts Strosberg LLP in Windsor, Ont., agrees there will be many more class actions that span the two countries. "North America is becoming one market, and it's important for lawyers to deal with our American colleagues," he says. He points to the $28-million settle- ment his fi rm facilitated in the class action launched against NovaGold Resources Inc. Th e case was initially launched in the United States, but the judge there declined to allow Canadian clients to collect. Strosberg's fi rm launched the Ca- nadian class action just one day before the limitation period expired. Th e lawsuit alleged the company had misrepresented the costs of a min- ing project that was scheduled for con- struction, which resulted in a decline in share prices for investors on both the U.S. and Canadian stock exchanges. Th e Canadian settlement was sub- ject to approval by the courts in both Canada and the United States. Over the past few years, Strosberg's law fi rm has achieved upwards of $100 million in settlement payments for plaintiff s regarding securities class ac- tions. Most of them have been cross- border cases. Strosberg agrees the experience of dealing with international lawyers can only serve to be insightful for further expediting other cases that have a cross- border or global scope. "In these cases, you have to work together with all parties, including all of the lawyers involved, and it can be a very good learning experience in the long run." PAGE 19

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