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Page 12 September 4, 2017 • Law timeS www.lawtimesnews.com quests for comment for this ar- ticle. Margaret Waddell of Wad- dell Phillips, acting for the rep- resentative plaintiff, presented calculations to show that the arrangement is to the class's ad- vantage. "If we used our usual con- tingency fee arrangement and got funding from the Class Pro- ceedings Fund, the class would be more out of pocket than un- der the Bentham arrangement," she says. "It's a good deal." Waddell says the defendant presented it as a shift, so the funder gets the biggest percent- age instead of the lawyers." "That is because lawyers are taking on substantially less risk," she says. "They are partially paid as they go along." Waddell says funding the le- gal fees frees up capital. "The firm has more resources and the ability to take on more cases. Smaller cases that usu- ally aren't financially feasible become financially feasible," she says. "Little firms that are risk averse may be more willing to take on a class action because the risks are substantially miti- gated." One unusual aspect of the proceedings was that it live streamed on twitter. Samantha Schreiber of Spark LLP, which provided the repre- sentative plaintiff with its inde- pendent legal advice, thought the proceedings were important enough to live-tweet. "I felt they had precedential value for litigation funding ap- proval. The court only started approving them in 2011," she says. "Every decision informs class counsel of the sort of arrange- ments the court will accept and the sort of terms the court will accept. It helps them to under- stand the parameters of what is acceptable to the court." Schreiber had some trepida- tion about tweeting from the court. "I was quite nervous that Jus- tice Perell was going to call me out," she says. "It looked like I was just on my phone and not doing something legal, so I was worried he would notice." Lederman says the move re- f lects the "age of innovation." "It's an open courtroom, so those interested can get access to statements made in the court- room," he says. Apart from the uniqueness of the arrangement, the court's main concern was with the ter- mination provision in the fund- ing agreement. "The clause provides that certain events would allow Bentham, on 10 days' notice, to terminate the funding arrange- ment while staying on the hook for court-ordered costs up until termination," explains Leder- man. "Events would include breaches by the plaintiffs or a situation where a lawyer seeks to withdraw from the proceedings. It also allows Bentham to ter- minate if it ceases to be satisfied that the merits of the proceed- ings warrant the claim being advanced or it is no longer com- mercially viable." Lederman says the court was concerned whether the funder has a right to terminate at all. "Bentham can only engage the termination clause on a rea- sonable basis. Another provi- sion allows parties to approach the court if there's any dispute in the terms or obligations," he says. "We were not opposed to making the issue of termination one that could readily go before a court. We could fashion an adjudication process whether before an arbitrator or judge in a private setting." Waddell says termination rights haven't been explored in previous case law. "The agreement is pretty clear," she says. "If it's terminat- ing, Bentham will only recover to the extent that it put money into the case, not a percentage." Lederman expressed to the court it was more a theoretical concern than a practical one. "There are so many reasons why the funder would not want to terminate in any event. Doing so puts the funder in the posi- tion of losing its investment," he says. "There are also implications to the fund's reputation. People are expecting the funder to care- fully assess the case and come into it for the long haul." Lederman advises that in Bentham IMF's 17-year his- tory, it has only had to terminate funding once. "e commercial reality is that termination is a very rare possibility, but, that said, to com- pel the funder to stay in where it has determined reasonably on the merits it should not or that it is no longer commercially viable really would not serve the public interest at all. We don't want cases clogging up the system," he says. Waddell says her response to the concerns "was that these are precisely the situations when a funder ought to be able to with- draw." "e funder could be accused of champerty by funding some- thing it knows to be unmeritori- ous. at is exactly the stirring of strife that champerty laws are meant to prevent." LT Live-tweeting proceedings reflect 'an age of innovation' Continued from page 11 Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. We offer unparallelled expertise for your most catastrophic injury cases. Direct access to hundreds of specialists from all areas of healthcare expertise. A top provider of cost of care reports for your most catastrophically injured clients. More than 2,000 malpractice, personal injury and class action cases. More than 300 lawyer clients assisted. Serving lawyers across Canada. Also, the United States, United Kingdom, Australia and Caribbean. LEARN MORE: CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 Since 2001, we've become a leader in Expert Witness Services in Canada. onnect Medical_LT_June12_17.indd 1 2017-06-06 1:07 PM FOCUS David Lederman says the Ontario Superior Court scrutinized the termination provision in a recent class action funding agreement. We have agreed to pay a portion of the lawyer's fee so the lawyer operates on a partial contingency fee. Tania Sulan PLATINUM SPONSOR GOLD SPONSOR GOLD SPONSOR HOSTED IN PARTNERSHIP WITH BRONZE SPONSOR BRONZE SPONSOR COCKTAIL SPONSOR SILVER SPONSOR NO TRANSFORMATION WITHOUT INSPIRATION The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. Date: Sept. 19, 2017 Location: Arcadian Court, Toronto 5:30 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Jennifer Brown, Managing Editor, Canadian Lawyer InHouse/Law Times Dress: Business Attire To book your seats or to inquire about sponsorship, contact us at 416-649-8841 or MediaSolutions.Sales@thomsonreuters.com www.innovatio-awards.com Untitled-3 1 2017-08-30 1:13 PM

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