Law Times

PAGE 12 FOCUS apriL 12, 2010 • Law Times Strategizing to minimize risk Lawyer offers up guidance on how to avoid a claim BY ROBERT TODD Law Times quency, many companies have W NEW 32163394 Red Ruled, Canary Paper Padded 11", 3-Hole, extra-stiff padded with law rule. 100 sheets per pad, 6 pads per pkg. Reg $42.50 $29.75 SELECTIONS AVAILABLE NOW! NEW ith class action law- suits sprouting up with increased fre- been left wondering when they will be targeted through this high-stakes form of litigation. But thankfully for them, businesses can — and should — formulate a strategy that aims to both prevent the onset, and diminish the severity, of a pos- sible lawsuit, lawyers say. Ian Leach, leader of Lerners LLP's London, Ont., commer- cial litigation group, has acted on both sides of the class action process and admits it's impossible your OFFICE PRODUCTIVITY source LITIGATION/TRIAL/COURT PAPER For use in trial and examinations for discovery, interviews, pre-trial conferences, etc. to create a surefi re plan to pre- vent a claim. "But there are things, looking at the case law and experience, that potential defendants can do," he adds, noting high-profi le businesses should be particularly mindful of class action litigation as they're the most likely targets. He recommends companies NEW 32163983 Ruled, Ivory Paper Padded 11", extra-stiff padded with law rule. 50 sheets per pad, 2 pads per pkg. Reg $20.25 $14.15 NEW 32163984 Ruled, Ivory Paper Padded 11", extra-stiff padded with litigation rule. 50 sheets per pad, 2 pads per pkg. Reg $20.25 $14.15 get started by creating a media- relations strategy for possible class actions. Plaintiff s' counsel typical- ly issue a press release in tandem with the service of a statement of claim, he notes. Th at helps attract additional class members beyond the representative plaintiff , which has several advantages. Th e sudden media push following the announcement of an action can overwhelm unprepared defendants, Leach suggests. It can also hurt their brand as the plaintiff 's side of the story gains prominence. At the same time, defendants 31700050 Green Ruled, Green Paper 11", double sided, 3-Hole, loose sheets with litigation rule. 50 per pkg. Reg $4.99 $3.49 32200115 Red Ruled, Green Paper Padded 11", 3-Hole, padded with law rule. 75 sheets per pad, 5 pads per pkg. Reg $25.79 $18.05 31500248 Red Ruled, White Paper Padded 11", 3-Hole, padded with law rule. 100 sheets per pad. Reg $6.89 $4.79 100% Contact your Account Executive or view these items at dyedurhambasics.ca Prices in effect until April 30, 2010 now have a better opportunity to respond to allegations thanks to the enactment of Ontario's Apology Act, which permits them to express regret without off ering an admission of legal liability. "You can do a signifi cant amount of damage and image control without any litigation consequences," says Leach. Once that preparatory step is Since 1998 1-888-393-3874 • dyedurhambasics.ca D&D_LT_Mar29_10.indd 1 3/23/10 12:13:59 PM complete, Leach urges companies to investigate the type of class actions that have received previ- ous certifi cation and consider advance steps they could take to contain similar exposure. Once that's done, the idea is to concen- trate the organization's resources Arbitration clauses could take companies 'a long way to con- taining your exposure to multi- ple national class actions,' says Ian Leach. on checks and balances in those areas. Th ird-party liability should also focus on potential class ac- tion targets, Leach suggests. In addition, companies would be wise to spend time pondering what type of iden- tifi able class might be involved in a future case against them. Leach says this is an area where proper organizational structuring can go a long way towards minimizing potential damages. "Th is is where lawyers and businesses sometimes speak at cross purposes because econo- mies of scale and effi ciencies might suggest that you have one integrated, coast-to-coast operation that's servicing every- body. However, that means that you've got one large ship where, if the hull gets pierced, it could take everything down." Th at's why it's best to use sub- sidiaries or separate regional cor- porations if possible, Leach says. Shifting to a geographic per- Class Actions in Canada Everything you need to successfully initiate, defend or manage a class action lawsuit This respected and comprehensive guide to bringing and defending class actions provides detailed analysis emphasizing the practical and tactical, as well as identifying pitfalls. This important work provides examples and direction through analysis of hundreds of class action cases litigated across Canada, as well as a comprehensive bibliography of class action articles. This well-organized, easy-to-read text features: • • • • ORDER your copy today Looseleaf & binders (2) • $289 Releases invoiced separately (2-3/yr) P/C 0378030000 • ISSN 1206-2375 • • practical direction and commentary by an expert in class action litigation guidelines for drafting appropriate class action pleadings expert guidance on the effective use of class actions in different legal areas, such as securities, environmental law and product liability analysis of case law regarding current topics including pre-certification motions, jurisdiction, costs and funding detailed Canada-wide coverage; including the full text of all class action legislation and local rules from across the country analysis of all significant case law in Canada (including Quebec) spective, Leach notes national classes are "still very much a matter of debate." Yet there is a signifi cant body of law dealing with choice-of-law and choice- of-forum clauses, he adds. So for many contract-based cases, legitimate reasons — such as the location of the bulk of the workforce, business activity, and corporate records — can help justify the inclusion of such clauses. "You could go a long way to containing your exposure to multiple national class actions that are being brought across the country," says Leach. Arbitration clauses may also pay dividends, he notes. While there has been much litigation and legislation on this topic re- cently, particularly for consum- er protection matters, there are still instances where such claus- es can help prevent class certi- fi cation, says Leach, adding the courts are likely to accept them only if they're eff ective. "Make it a real arbitration For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0412 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Branch_Class Actions (LT 1-3x4).indd 1 www.lawtimesnews.com 4/6/10 12:05:06 PM procedure. Have a demonstrated history of using it. Make it cheap, extensive, and eff ective, not just something that sits on the books but has never been used." LT W ard Branch

• Cover
• Clinic Cutbacks
• Building Boom
• Focus On Class Actions