Legal news and trends for Canadian in-house counsel and c-suite executives
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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 pro- posed 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 increas- ingly defending. He says while parallel actions of all varieties have sprout- ed 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 promi- nence as Canada's class actions plain- tiffs' bar gains strength and sophis- tication. It has also become more of a headache for corporations thanks to the bar's closer ties with counter- parts south of the border, as seen in the Poulin case. Many of the parallel class actions brought forward have been brazen enough to include identi- cal paragraphs in their separate state- ments of claim. While some Canadian courts have voiced concern over these arrange- ments, others have begun to support fee-splitting deals between plaintiffs' firms on opposite sides of the bor- der. "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 steadi- er onslaught of class actions, and cor- porate counsel on both sides of the border will increasingly be called upon to work together to manage the ensu- ing 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 © 2009–2010 Cassels Brock & Blackwell LLP. Cassels Brock and the CB logo are registered trade-marks of Cassels Brock & Blackwell LLP. TSX and the TMX logo are trade-marks of TSX Inc. All rights reserved. strategies can be employed to help in- house counsel best defend their compa- ny when faced with parallel Canadian and U.S. class actions. Michael Mori, general counsel of Epson Electronics America Inc., has experience deal- ing 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 16 • DECEMBER 2010/JANUARY 2011 ntitled-1 1 INHOUSE 11/30/10 9:04:18 AM LOOK FOR GROWTH CAPITAL Toronto Stock Exchange and TSX Venture Exchange offer attractive 'going public' alternatives for small and mid-cap US companies. With more than 3,600 issuers and nearly $2 trillion in market capitalization, TSX is a strong and growing world leader across all sectors. Is the TSX the right option for you or your clients? Cassels Brock, one of Canada's leading law rms, can help you to make that decision. With a long and successful track record of assisting cross- border entrants to the Canadian capital markets, we understand the legal and tax rami cations of these unique transactions and can offer practical guidance and advice on every step of the process. We would be pleased to provide a complimentary consultation to review your business plans and objectives. Call Mark Young, Managing Partner, at 416 869 5443. NORTH