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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 pro- vide 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 settle- ment. Lowenstein refers to the pro- tocols 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 expecta- tion, 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 pub- lished, 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." IH 20 • DECEMBER 2010/JANUARY 2011 GreenSpiegel_IH_Dec_10.indd 1 INHOUSE 12/1/10 3:59:37 PM