Law Times

PAGE 4 NEWS November 9, 2009 • Law Times recent court decision that could facilitate the involvement of U.S. fi rms in Canadian class actions. Th e issue of U.S. fi rm in- U.S. firms can help but not act, Ont. judge rules L BY HELEN BURNETT- NICHOLS For Law Times awyers anticipate more cross-border co-operation in the future following a documents show that Kim Orr, which has a relationship with U.S.-based Milberg LLP, submitted that it would be "in the best interests of the class members to grant it carriage of the class action" as a result of factors such as its association with the U.S. law fi rm. Ultimately, in what Justice volvement in cases on this side of the border arose in a recent Ontario Superior Court judg- ment dealing with a carriage dispute between Siskinds LLP and Kim Orr Barristers in a class action against Canadian metals company Timminco Ltd. Both fi rms had brought pro- posed class actions against the company earlier this year on behalf of investors advancing claims for negligence and negli- gent misrepresentation after the company's share price tumbled. Th e fi rms subsequently brought carriage motions for orders stay- ing the other fi rm's class action. Ontario Superior Court Paul Perell called "a very diffi - cult decision and a very close call," carriage of the case went to Kim Orr. Although the question of Milberg's involve- ment was a "neutral or sterile factor" in this motion, lawyers note that the decision has es- tablished some parameters for the participation of U.S. fi rms on the plaintiff side of class ac- tions in Canada. In his judgment, Perell said the signifi cance is not that an American law fi rm would be involved in an Ontario class action but rather how it would do so. He noted that "there is noth- ing inherently wrong with opinion, it would be grounds for disqualifi cation of an On- tario law fi rm if it entered into an arrangement where any for- eign law fi rm assumed the role of the lawyer of record for the representative plaintiff unless they had permission to practise law in Ontario. In this case, according to court documents, Milberg would only be providing Kim Orr with in- vestigative services, assistance 'I think you'll see more co- operation, especially on cross- border cases,' says Won Kim. Ontario class counsel who are acting for plaintiff s in obtaining services from foreign law fi rms so long as there is no interfer- ence with or usurpation of the lawyer and client relationship between the Ontario lawyer of record and his or her clients." Th e judge says that in his with document management, and strategic advice based on the fi rm's expertise in "comparable American class actions." Dimitri Lascaris, the Sis- partner on the Tim- kinds minco fi le, says he's not aware of any other decisions where a carriage motion was decided in part over questions about a U.S. law fi rm's assistance to a Canadian counterpart. "I think it will facilitate the involvement of U.S. law fi rms in Canadian class action litigation. I think it's also established some valuable parameters for helping of Canadian class counsel deter- mine how to structure the rela- tionship with the U.S. law fi rm in a way that will be palatable to a Canadian court," says Lascaris. "I think that this is really part of a larger trend of the internationalization class action litigation," he notes, adding some U.S. securities class action fi rms have already successfully branched out into European jurisdictions. Involving U.S. fi rms allows Canadian lawyers with limited resources to level the playing fi eld with the defence. "Th e defendants typically have vast- ly greater resources than the plaintiff s do," Lascaris says. Won Kim, the Kim Orr partner in charge of the Tim- minco fi le, tells Law Times that U.S. defence fi rms are here ac- tively defending cases and in- structing their Canadian coun- terparts. American lawyers Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes that are ready to be presented in court or to a board. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Download the reported or unreported decisions in seconds and include them with your factum, memorandum or in your file. NEW! Disburse your costs! BestCase now allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! have more resources and can provide tactical advice as need- ed, he says. "Th e reality is these cases are massive and they're going to require expertise in diff erent areas. What American fi rms do is they support the big Canadian fi rms doing these ac- tions. Th ey're not there to be instructing principals or they're not there to run their cases but what they do is they correct the balance of power between the big defence fi rms and they bring a level of expertise and resources which more than recalibrates the playing fi eld." "I think you'll see more co- operation, especially on cross- border cases," Kim adds, noting Milberg has already been active on other major fi les here. "In the context of a carriage fi ght, the light shone on their role more brightly, but Mil- berg's been active in Canada before and will be again." However, in this particular case, Kim says the involvement of a U.S. fi rm was a non-event since it wasn't an instance of a weaker fi rm being "topped up" by an American counterpart. As a result, he argues the case "emphasizes how strong the Canadian lawyers are. We don't need American lawyers holding our hand. Th ey're there to sup- port us as needed, not the other way around." Lascaris, meanwhile, says his fi rm has instructions from the client not to pursue an appeal of the carriage decision. LT 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 6/10/09 10:43:32 AM LT0715

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