Law Times

PAGE 10 FOCUS February 23, 2009 • Law Times together frequently enough that continuing relationships are re- placing one-off or occasional working partnerships as the or- der of the day in cross-border suits and regulatory matters. Canuck and U.S. firms teaming up on cross-border cases I BY JULIUS MELNITZER For Law Times ncreasingly, a globalized world is bringing litigators from Canada and the U.S. would in most instances dictate or at least try to dictate proce- dure and strategy to their Ca- nadian counterparts," says Paul Morrison of McCarthy Tétrault LLP. "In my view, the Americans didn't always have a suffi cient ap- preciation of the nature of joint strategy and how the necessities of the Canadian case didn't ac- commodate the tail wagging the dog very well." event that did in fact produce the expected benefi ts. Pro-Sys Consultants Ltd. v. Infi neon Technologies AG, a "copy- cat" case to the ongoing DRAM litigation in the U.S., is a more recent example where putting the Canadian case front and for- ward proved advantageous to the defendants' position in the U.S. Behind the lawsuits were allega- tions that certain international To be sure, the interrelationship of U.S. and Canadian fi rms is complex and sophisticated and depends to some extent on what the Americans know about Canada. "The relationship between Canadian and U.S. counsel has evolved dramatically, producing some very good relationships that have given rise to a level of trust which promotes the sharing of information and strategic ideas," says Paul Martin of Fasken Mar- tineau DuMoulin LLP. "We don't have to reinvent the wheel every time we have a case together." A signifi cant attitudinal change marks that evolution. "A few years ago, U.S. lawyers By way of example, Morrison cites the Conrad Black-related civil litigation with respect to the Hol- linger Inc. group of companies. "For a long time, the Ameri- cans were telling us not to do anything, but we kept insisting that we thought we could get the Canadian proceedings stayed with a very positive impact on the U.S. proceedings," he recalls. Eventually, former Ontario Superior Court justice James Farley stayed the proceedings, an manufacturers of dynamic ran- dom access memory chips, an essential component of virtually all modern electronic products, had engaged in an unlawful con- spiracy to fi x prices. "Although there had been some guilty pleas in the U.S., there were none in Canada and the ones in the U.S. were limited in terms of admissions regarding the victims of the conspiracy," says Morrison, who led the Mc- Carthy team acting for the Hynix Semiconductor group of compa- nies. "But because there was so much litigation in the U.S., the Americans were reluctant to have the Canadian case proceed fi rst." The plaintiffs, however, forced the certifi cation hearing on in B.C., where no previous decisions on competition class actions had emerged. Notwithstanding the guilty pleas in the U.S., however, Justice David Masuhara of the B.C. Supreme Court made the plaintiffs regret their decision with a sweeping ruling that de- nied certifi cation. Because U.S. procedural requirements for cer- tifi cation are more stringent than Canadian ones, the U.S. defence bar suddenly had an important — if not binding — precedent in hand, as well as a signifi cant psy- chological setback for plaintiffs' counsel across the continent. No surprise, then, that a team approach now borders on necessity. "In the U.S., a single event frequently gives rise to national litigation where the fi rm run- ning the case at times looks at Cross-Border Litigation: Inter-Jurisdictional Practice and Procedure local counsel as little more than agents," Martin says. "But given the fl uidity of the border, many cross-border cases take on a much more signifi cant complexion in Canada than they may in indi- vidual U.S. jurisdictions," Mar- tin says. "So in no way does the 'you're-our-agents' attitude apply to the relationship between U.S. and Canadian fi rms. It's become much more of a team approach." Ron Dimock of Dimock Strat- ton LLP, an IP litigator, agrees. "If you're going to do well for a client facing cross-border suits, you have to have the kind of co- ordination which ensures that counsel do not take inconsistent decisions or do things that would hurt the client in another juris- diction," he says. It's a long way from the day not so long ago when Martin's partner John Campion received an unusu- al phone call from the U.S. "The lawyer on the other end of the line wanted me to arrange to have one of his partners ap- pear in court on a Canadian case we were working on," Campion recalls. "There was a pause and then stunned silence when I gave him the news that wasn't going to be possible." In fact, Canadians tend to have a more robust understand- ing of the American system com- pared to U.S. lawyers' familiarity with our process. "We watch their TV and they Guidance on all aspects of cross-border litigation for inter-provincial, international and multiple jurisdictions don't watch ours," Campion says. "So they don't know much about Canada until they get through their fi rst case." But it's not just TV. "There are many more law- Brian Casey, International Lawyer, Baker & McKenzie LLP Cross-Border Litigation: Inter-Jurisdictional Practice and Procedure offers practical guidance on all aspects of cross-border litigation, covering everything from deciding where to commence litigation to enforcement of a judgment. It is an excellent handbook to help you understand the legal considerations involved and map out the right course of action, such as: • where is the best place to sue • strategies for challenging the plaintiff's choice of venue • how to ensure proper service outside your jurisdiction • how to determine which jurisdiction's laws apply • obtaining evidence from other jurisdictions • responding to requests for evidence from other jurisdictions • pleading and proving foreign law • pre-judgment cross-border remedies • enforcing foreign judgments at home and domestic judgments abroad This resource includes time saving features such as a decision tree to help analyze where a case should be litigated, appendices with related Hague Service Conventions and a glossary of terms. ORDER your copy today Hardbound • Approx. 370 pp. • May 2009 • Approx. $110 P/C 0291010000 • ISBN 978-0-88804-484-6 yers who've done graduate work or juniored in the U.S., and that has certainly changed the relation- ship because of the fl uency with American law that these people have imported," says Tim Buckley of Borden Ladner Gervais LLP. Still, to a large extent it is a two-way street. "Take those of us [who] prac- tise insolvency on either side of the border," says Buckley's partner Michael MacNaughton. "The degree of co-operation is re- ally extraordinary, largely because Canadian and U.S. practitioners have become more familiar and comfortable with the oddities of each other's processes." But as is often the case in Canadian-American relations, the highways south of the border tend to have more lanes. "To be sure, the interrelation- ship of U.S. and Canadian fi rms is complex and sophisticated and depends to some extent on what the Americans know about Canada," Campion says. "But a clear understanding of how the Americans work and their nu- ances of their system is what re- ally drives the bus." LT To advertise in Law Times call: For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice to applicable taxes and shipping & handling. www.lawtimesnews.com MacDonald_cross border litigation (LT 1-2x4).indd 1 2/18/09 10:07:36 AM LT0126 905-841-6481 Kenneth C. MacDonald "This will be a very useful and timely addition to the library inter- of jurisdictional any litigator involved disputes." in ... and more

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