Law Times

LAW TIMES / APRIL 14, 2008 FOCUS New firm has familiar faces BY IAN HARVEY For Law Times T he announcement that Won Kim, co-founder of high-profile class action firm Roy Elliott Kim O'Connor LLP, was leaving sparked more than a few cocktail conversations in legal circles last December. The split was positioned as "amicable" by Peter Roy of REKO and rooted in "a differ- ence of management style," with Won Kim later announcing he'd convinced longtime tennis part- ner and litigator Jim Orr, of Af- fleck Greene Orr LLP, to join him in the new firm, which formally opened its door March 1 at 200 Front St. W., sharing the 23rd floor with his former REKO part- ners, at least temporarily. The transition has been hectic, says Kim — echoed by Orr, who complains he's been shuffling so much paper, "I've got tennis el- bow and can't even play tennis" — as the new firm prepares ongo- ing matters it brought in house. Kim Orr PC also includes Gregory Graham, Elizabeth Koes- ter, and Victoria Paris, with asso- ciates Megan McPhee, Samuel Yoon, and Jessica Bettencourt. It's not as though the firm will be short of clients. In addition to a fistful of files brought in from their previous firms, Kim says he gets an "e-mail a day" from other lawyers soliciting interest in a po- tential class action. But far from simply signing onto cases with abandon, Kim says a firm, conservative, disci- plined approach is called for — one that scrutinizes, analyzes, and plots each potential outcome and risks. "You know for every 100 cases we're offered — and all our re- ferrals come from other lawyers across the North America — we reject probably 98 or 99 of them," says Kim, dispelling the notion made by some observers that plaintiff's bar in class action are behaving more like venture capitalists, funding cases like web startups and banking on hitting one or two of every 10 out of the park to recoup their investments. "That's just the wrong ap- proach," chimes in Orr, a veteran of nearly 30 years in the profes- sion. "You do that and you're go- ing to be out of the game because of the cost if you're wrong." Already in hand, Kim Orr PC is working with Rochon Genova LLP against Medtronic Inc. and Medtronic of Canada Ltd., along with Sutts Strosberg LLP and Le- rners LLP. The matter has been certified and involves implantable cardiac defibrillators and cardiac resynchronization therapy defi- brillators. It was launched after Medtronic announced in 2005 that certain models manufactured between 2001 and 2003 might have battery problems. Since the device is implanted it requires sur- gery to remove it. Kim, who has been driving class actions for a dozen years, is also working with Stutts Stros- berg, Siskind Cromarty Ivey & Dowler LLP, Harrison Pensa LLP, and Hotz Lawyers, on a class ac- tion involving Korean Air and other trans-Pacific airlines alleged to have colluded to fix prices be- tween Canada and Korea from 2000 to 2006. Also among the files Kim Orr transferred was the $210-million action on behalf of the Long Lake Reserve No. 58, near Geraldton in northern Ontario, which claims the federal government failed to follow its own warnings and al- lowed the majority of homes the reserve to become infested with toxic mould for an evacuation in 2001. Forty of the homes were demolished. "We even have an action against LG for their fridges which exploded and caught fire," says Kim. "CBC Marketplace brought us that one. I said, 'Wait, you have fridges that explode?' The fire chief of Newmarket is the lead complainant." He also dismisses critics who say too many firms are simply chasing the money. It's an access to justice for the average con- sumer who can't afford to take on Presented by Don't miss these events… SHAREHOLDERS RIGHTS, DISPUTES AND REMEDIES April 29, 2008 | Calgary ASSET BASED-LENDING May 9, 2008 | Toronto COPYRIGHT REFORM IN CANADA May 12 – 13, 2008 | Toronto ABORIGINAL LAW May 13 – 14, 2008 | Vancouver CANADIAN SECURITIES REGULATION COURSE May 21 – 22, 2008 | Calgary DISABILITY CLAIMS MANAGEMENT AND LITIGATION May 22 – 23, 2008 | Vancouver ENROLL TODAY! 1 888 777-1707 | www.insightinfo.com Media Partner large companies or government agencies alone, he insists. He said product liability, phar- maceuticals, and government it- self are open to class action suits, and it has leveled the playing field. "I doubt very much whether Jim and I could even afford to liti- gate," he says. "As it has been said, litigation is the sport of kings." However, he's also quick to point out the power afforded by class actions should not be taken lightly, pointing to Kerr v. Danier Leather Inc., in which the litigant Rick Durst was ordered to pay $1 million in costs by the court, as a good one, he says. "You know, it was a matter in which an investor with a sizeable amount of shares which was a personal grievance which used the class action process," says Kim, noting it clearly spells out the right way and wrong way to use the process. The next wave, though, says Kim, will be class actions in se- curities law — somewhat ironic since it was his former partner Pe- ter Roy who brought in the Bre-X action that set his former firm on the road to success. The future of one securities action, however, is still not clear. Kim is still in talks with REKO over the Can-Am Fund litigation, Despite the costs of litigation in Ontario and the risks associ- ated with it being a costs regime, Kim says, it's still the place to be. Ontario jurisprudence in class actions is stable and well respected, he adds, making it an attractive arena. "It may be that the Manitoba Won Kim predicts the next wave will be class actions in securities law. a case dating to 2003 in which it is claimed the investment prod- uct failed to mirror the S&P 500 index as promised. It also alleges the investment product, sold by NN Life Insurance Co. of Can- ada, which was amalgamated with Transamerica Life Canada, charged a management-expense ratio fee of 2.6 per cent to 3.65 per cent, not the 2.5 per cent as stated. Kim would like to take the case with him, but his former partners have laid some claim to it. Discussions are ongoing. court is more liberal and it's eas- er to certify cases there, but it's never really caught on in other jurisdictions, because for better or for worse all the head offices are mostly in Toronto, and that's what is driving it and why Jim and I see a huge market in class actions in the financial sector." Class actions are becoming global in nature, says Kim, and the stakes are being raised as large, full-service firms beef up their litigation departments with class action specialists. "Things are much more seri- ous. There are going to be more discoveries, trials, and appeals, and you have to be prepared for that," says Kim, who also ex- pects the firm to handle some conflict work for other firms and toact for defendants from time to time. "And I think we're well posi- tioned for all that; we've got the talent, the experience, and the credibility," says Kim. LT PAGE 11 Trust [ Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Alan Farrer - Managing Partner | Desmond Dixon - Partner | David Neill - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Untitled-1 1www.lawtimesnews.com sight_LT_Apr14_08.indd 1 4/8/08 12:09:49 PM 4/7/08 9:02:11 AM

• Cover