The court’s ruling in Poulin v. Ford Motor Co. of Canada noted that parallel litigation led by plaintiffs’ litigation firm Motley Rice LLC existed in the U.S. Curiously, the firm entered into an agreement to act as a consultant to Canadian class counsel firm Will Barristers: Morin & Miller LLP, which filed the Poulin action in Ontario. The deal would see the Canadian firm collect 70 per cent of approved fees, with the remainder going to Motley Rice, which would also fund disbursements. The atypical arrangement caught the court’s attention, especially a separate agreement between the firms indicating that Will Barristers must consult with Motley Rice before incurring and paying any disbursement of more than $2,500. That reluctance was framed around the separate finding that the Canadian representative plaintiff, Maurice Poulin, seemed to lack awareness of the nature of the claim and was therefore of questionable value in that capacity.
The court determined the U.S. firm was acting more as “underwriters for the litigation” than consultants to the Canadian class counsel. It went on to identify Poulin as an “unwitting pawn” in the action. The court denied the certification motion, a decision later backed by a Divisional Court appeal panel.
While the formulation of the proposed Poulin action seemed unusual just a few years ago, it is just the type of action that David Kent, the Toronto-based chairman of McMillan LLP’s class action group, is increasingly defending. He says while parallel actions of all varieties have sprouted up, they are most common in the antitrust and competition law areas. Some of the top actions have targeted alleged price-fixing of products such as vitamins, feed additives, computer memory technology, and flat-screen monitors. Plaintiffs’ lawyers in Canada have also seized opportunities based on cases of product liability and securities fraud.
Such actions have gained prominence as Canada’s class actions plaintiffs’ bar gains strength and sophistication. It has also become more of a headache for corporations thanks to the bar’s closer ties with counterparts south of the border, as seen in the Poulin case. Many of the parallel class actions brought forward have been brazen enough to include identical paragraphs in their separate statements of claim.
While some Canadian courts have voiced concern over these arrangements, others have begun to support fee-splitting deals between plaintiffs’ firms on opposite sides of the border. “It used to be kind of a hidden disbursement,” says Kent. “But now everybody’s pretty upfront about it.”
The changing relationship means Canadian companies will face a steadier onslaught of class actions, and corporate counsel on both sides of the border will increasingly be called upon to work together to manage the ensuing high-stakes litigation. It won’t be an easy task, with Canada’s relatively young class actions jurisprudence and lack of country-wide protocols adding to the cross-border confusion.
But experts maintain that various strategies can be employed to help in-house counsel best defend their company when faced with parallel Canadian and U.S. class actions. Michael Mori, general counsel of Epson Electronics America Inc., has experience dealing with this type of class action in his role managing antitrust litigation globally for parent Seiko Epson Corp. The company recently faced antitrust class action litigation in both countries regarding thin film transistor-liquid crystal display panels, which are most often found in computer monitors and flat-panel televisions. Epson is one of several global companies targeted in the actions, which involve allegations of price-fixing and other anti-competitive behaviour. While Mori is unable to comment on the approach taken in that ongoing litigation, he asserts his first move when these matters arise is to retain top-notch outside counsel. That’s particularly important in class actions involving multiple defendants — the pool of unconflicted and competent firms can quickly dry up, and the company could end up with inferior representation if the services of a top firm aren’t quickly retained.
Mori emphasizes that parallel U.S.-Canada class actions can cost as much as US$30 million to defend once fees for experts, outside counsel, and vendors are factored in. The financial commitment can soar exponentially when investigations in multiple jurisdictions are factored in, along with the potential for additional opt-out cases in the U.S. That’s not to mention the possibility of state attorneys general suing companies on behalf of residents or governmental agencies who may have purchased a product or service that has been called into question. On top of all that, authorities may target certain company executives for their personal roles in a matter that has prompted class action litigation — organizations are typically responsible for bankrolling those defences.
In light of these cost considerations, Mori encourages corporate counsel to conduct a cost-benefit analysis when pondering a settlement agreement. “Quantitatively, it could simply be the math of, ‘Well, how much is it going to cost me, and what is my exposure, and what good defences do I have, etc.’,” he says. “Qualitatively, you have to think about the impact on the reputation of the company and those kinds of things.”
If a decision is made to go forward with the defence, it’s crucial to include solid outside counsel guidelines in any retainers. Those guidelines should include the company’s expectations for the firm, and what the firm is permitted to bill for. Efforts should be made to minimize intra-firm conferences and maximize efficiencies by eliminating the duplication of work, says Mori.
A detailed litigation plan, which includes phases and cost estimates with rigid budgets, is also essential for managing expenses, he adds. Firms should also be encouraged to avoid conducting work too far in advance. “You certainly don’t want to be unprepared, but on the other hand, you don’t want to have the firm doing research and work that would be relevant later but not now,” he says. “That work would have to be revisited at the later time, or if something intervenes and that work becomes unnecessary, then you’ve authorized work that wasn’t required.”
Tim Buckley, national leader of Borden Ladner Gervais LLP’s class actions group in Toronto, says a costly oversight in many parallel class action defences comes in the document production process. He says defendants are wise to seek an order from the U.S. court stipulating that any document provided can be used only for the U.S. litigation, and may not be passed along to Canadian plaintiffs’ counsel. Many corporate counsel, unaware of the level of co-ordination between class counsel in both countries, have had to learn that lesson the hard way. This is particularly troublesome for companies that have settled a defensible class action due to cost concerns, or to simply put to rest an action involving a product it no longer sells.
Buckley has worked with in-house lawyers who were shocked to discover that documents turned over in a settled U.S. action have been used in a separate lawsuit in Canada. After all, litigation costs north of the border can be on par with what they hoped to avoid by settling in the U.S. “When the U.S. [counsel] is sitting down and looking at the defence of claims, they’re looking at precluding claims worldwide,” says Buckley. “They have to understand that Canada may have different procedures, may have different damages awards, but has the prospect of the same defence costs and the same requirement of management time and operations time in defending a case. So in some respects, they should look upon us as another state with a population of [33 million] people.”
Similarly, Kent urges in-house counsel to put their minds to the future when it comes to the discovery process. In parallel U.S.-Canadian class actions, discovery typically first takes place in the U.S. That means Canadian class counsel may ask defendants to simply turn over all documents produced for the U.S. action. Kent describes such requests as “good news, bad news.”
On the plus side, the information has already been acquired, organized, and stored, which leads to an overall cost savings. Unfortunately, this type of request can also lead to the production of information that is unrelated to the Canadian action. That leaves counsel with a somewhat perplexing problem: “Is somebody going to dive back into that stuff and try and sort out relevance for the millions of documents in the box full of CDs?” asks Kent. “That’s kind of expensive.” That’s why he urges Canadian corporate counsel to keep an eye on any actions arising south of the border that may migrate north. If Canadian counsel can alert their U.S. colleagues early on, the U.S. legal team can add codes indicating relevance to Canada during their own document-collection process. “That will make it a push-button operation later, if they have to produce in Canada, instead of a hideous scenario of massive and wasted expense,” he says.
Collaboration like that can certainly help ease the burden of parallel class actions, but it’s equally important for counsel to identify areas where a uniform approach simply won’t do. Andrew Trask, a class actions defence lawyer at the McLean, Va., office of McGuireWoods LLP, notes key differences in Canadian and U.S. class actions rules that will force counsel to take different approaches. He says Canadian class actions allow defence counsel to probe the merits in a way that is unavailable in the U.S.
Specifically, part of the test for certification in Ontario’s Class Proceedings Act — which is in line with similar legislation in other provinces that use common law — is the requirement that “the pleadings or the notice of application discloses a cause of action.” A similar rule does not exist in the U.S. “It allows you to attack the merits of the claim early on in a way that you can’t in the U.S. unless you’ve already filed a motion to dismiss,” says Trask.
U.S. class actions for damages also force plaintiffs’ counsel to show “common issues will predominate over individual issues.” In Canada, however, it must only be shown that there are common issues. Typically, it is easier to get an action certified in Canada than the U.S. Trask says studies have shown that about 75 per cent of Ontario class actions are certified, while less than 50 per cent get the green light in the U.S. That means it’s important for in-house counsel to keep in mind that a class action that has been shot down in the U.S. could very well be certified in Canada. “If I’m working on class actions in the U.S. for, say, American Widgets Inc., and it turns out that American Widgets of Canada has had a couple of similar incidents, I’ll go back to my client and talk through what we think the story is in the U.S. on both the merits and on certification,” says Trask. “At that point, we’ll look at whether those same stories will work in Canada. The certification story will have to be stronger if we’re going to oppose certification in Canada, but it’s not insurmountable to get there.”
Trask’s firm has also started to give careful consideration to the role of U.S. class counsel in the Canadian action. If the Canadian litigation appears to be of the copycat variety, Trask will investigate how close the ties are between Canadian and U.S. class counsel. “My understanding of the case law as I’ve read it, is at this point Canadian courts are somewhat suspicious of cases that have heavy involvement from American counsel,” he says. “They don’t really want to be viewed as a spillover from American courts.” This observation is in line with the Ontario Superior Court’s handling of the proposed Poulin class action.
Counsel must also consider the option of including Canadian events in a U.S. action, or litigating separately in Canada. McMillan’s Kent suggests a case-by-case approach is best here, as money spent north of the border could be worthwhile in certain actions with a worldwide reach. For example, in a worldwide vitamins cartel class action, in which Kent acted as the defendant’s counsel, several in-house lawyers were based outside of Canada and the U.S. Many wanted to first battle the action in Canada, suggesting the Canadian justice system would offer a more reasonable outcome to bring to other courts across the globe. “They didn’t want to have litigation in Australia and be faced with some crazy U.S. jury verdict, and be told by Australian plaintiffs, ‘Well, that’s what you’ve got to measure up to here,’” explains Kent. “They thought the Canadian court system was more like other jurisdictions, so they thought it was worth spending some money on litigating in Canada to see if they could get a more modest outcome, whether by settlement or by litigation, and use that as the precedent for resolving things in other jurisdictions.” In the end, settlements were reached for US$1 billion in the U.S. and $140 million in Canada.
While corporate counsel in the short term will have to remain flexible when it comes to the defence of cross-border class actions, efforts are afoot to make their lives easier through enhanced collaboration between courts in Canada and the U.S. The need to foster a uniform approach became evident following the 2007 global settlement for parallel class actions involving Nortel Networks Corp. in New York, Ontario, British Columbia, and Quebec.
Larry Lowenstein, a Toronto-based partner with Osler Hoskin & Harcourt LLP, was involved in that litigation. He says the U.S. and Canadian counsel involved in the action were forced to create procedures for the notification and administration of the settlement. Then-regional senior justice Warren Winkler of the Ontario Superior Court of Justice — who is now Ontario’s chief justice — noted the need for such measures in his ruling approving the settlement. “The differences in the jurisprudence between the two countries highlights some of the potential difficulties that may arise in cross-border litigation, particularly in respect of class actions,” wrote Winkler. “Given the increasing trends toward globalization, it is likely that cross-border litigation will increase. . . . It would be useful if more formal protocols were developed to facilitate the courts and the parties in dealing with these types of cases.”
The American Bar Association answered that call with the creation of its Canada/U.S. Class Action Protocol Project in 2008. The group is made up of judges and class actions lawyers from both countries. Lowenstein, who is part of the group, says it is close to finalizing its first protocol, which focuses on the notification of class members during the co-ordination of multi-jurisdiction class proceedings. The rules will make clear, for example, the need to provide documents in French, include a plain-language description of the case background, information on the relief sought and defences available, size of class, and essential terms of any settlement. Lowenstein refers to the protocols as a “Good Housekeeping gold standard set of protocols that you can look at if you are counsel.”
What remains to be seen is whether the courts and counsel embrace the protocols. After all, no cross-border authority exists to legislate them. “Our bet, and our strong hope and expectation, is that if this is available on a web site, it will become known to those of us who practise in this area, and people will resort to it on a voluntary basis,” says Lowenstein. “Because of the stature of all of the judges involved [in the project], it will have a persuasive force for counsel and will make for a more efficient and orderly process, since hopefully we’ll have done a lot of the legwork.”
Once those initial protocols are published, the ABA group hopes to expand its reach into more controversial aspects of parallel class actions. Lowenstein acknowledges they have their work cut out for them. Topics such as the carriage of actions will be highly contentious, and will likely prove far more difficult to find consensus on. Regardless, he says the group is optimistic and hopes to mirror the success of similar efforts involving co-ordination of cross-border insolvencies, where uniform protocols have been embraced on both sides of the border. He also points out that it’s best for counsel from Canada and the U.S. to come to the table and work out mutually agreeable rules.
“Eventually, the law is going to be worked out,” he says. “A body of law will start to be built up, judge-made law, which will serve as guidelines. But some people may get hurt along the way. So perhaps it’s better if we could put our heads together and come up with workable, meaningful protocols so that you save a lot of time and effort and create a lot of efficiencies — all the sort of values that litigation systems should promote.”