Law Times

Law Times • apriL 18, 2016 Page 9 www.lawtimesnews.com FOCUS Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 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. DARCY MERKUR | SLOAN MANDEL | DEANNA GILBERT Untitled-4 1 2016-04-12 3:09 PM Course Leaders Nicolas Faucher, Partner, Fasken Martineau DuMoulin LLP Kareen Zimmer, Partner, Fasken Martineau DuMoulin LLP The Rise of Finance Technology in Canada FINTECH, A RADICAL NEW PARADIGM IN CANADIAN FINANCE FINANCE THREATS | REGULATORY HURDLES | CHANGING THE BUSINESS MODEL REGISTER BEFORE MAY 13 AND SAVE $300 To register and learn more visit www.lexpert.ca/cpdcentre FULLY ACCREDITED IN-CLASS PROGRAM & LIVE WEBINAR Toronto, June 9 • Webinar, June 9 ntitled-5 1 2016-04-13 10:40 AM Counsel seeking alternative fee arrangements Lawyers seek creative solutions to finance costly litigation BY JIM MIDDLEMISS For Law Times C lass actions have become big- ticket litigation in Canada and costly not only to prosecute but defend. That creates challenges for both plain- tiff and defence counsel. For plaintiff lawyers, it means figuring out ways to finance litigation that could go on for years, often against the deep pockets of corporate defendants with steady cash f low that can afford to hire top legal talent. Defence counsel have their issues, too. They must justify high legal bills in a cost-conscious environment where gener- al counsel and their corporate masters are looking to rein in spending. Though plaintiff counsel certainly don't believe that's the case. "I would love to hear how defence are reining in their costs," says Jay Strosberg, of Sutts Strosberg LLP in Windsor, Ont. "If they were to ask me, they could start by having two people on the file instead of having six. Imagine what that would do in terms of bringing down the billings," he half-heartedly jokes. While plaintiff counsel often complain about the size of defence legal teams, they don't mention the growing size of class con- sortiums, where two, three, or even four law firms or more band together to tackle the growing and complex range of suits being filed. "Generally, the issue with class actions is that they are complicated cases that tend to be expensive from both the plaintiff and defence perspective," says Randy Sutton, a class action defence lawyer at Norton Rose Fulbright Canada LLP in Toronto. "Both sides are looking for ways to deal with those issues." What plaintiff lawyers don't see, he says, is the changing landscape from the office of general counsel. Gone are the days when defence firms simply submitted their tab for hourly billings. Today's focus is value- based billing. "General counsel are looking for alter- native fee arrangements," Sutton says, and ways to perfect alternative billing. Right now, he says, much of the focus is on estab- lishing fixed fees. For defence counsel, it means looking at legal project management and breaking matters down into stages and managing them. For example, his firm has hired a le- gal project manager whose job is to work through those issues and "understand pricing and give clients some sense of cer- tainty." From the plaintiff counsel's perspective, they either self-fund or turn to some type of litigation funding. "Traditionally, the Class Proceedings Fund has been the go-to location for fund- ing," notes Joel Rochon, of Rochon Genova in Toronto, who says there is "a stark power imbalance between the defence and the plaintiffs." He says the plaintiff 's bar needs to do what it can to "level the playing field and de-escalate the asymmetry." Strosberg notes that the CPF has been important to the development of class ac- tions. If the Class Proceedings Committee approves a case, then, under Ontario leg- islation, the Class Proceedings Fund pro- vides counsel with an indemnity against an adverse cost award and covers some disbursements. In return, 10 per cent net of any award or settlement gets kicked back to the fund. Since 2005, the fund has ap- proved 75 applications for funding, and its bank accounts held more than $19 mil- lion. In 2014, it spent $1.8 million financing litigation. Securities class actions led the way, followed by product liability lawsuits, consumer protection actions, residential schools cases, and contract cases. But the CPF is not the only game in town. BridgePoint Financial Services Inc. has been funding cases since 2005. As class litigation grows around the world, more foreign players are entering the market or looking to target Canada. "As the market gets bigger, I think you are going to find more sophisticated players get- ting attracted to it," says Strosberg. LT Jay Strosberg says the Class Proceedings Fund has been important to the development of class actions.

• Cover