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claimants who purchased on foreign exchanges of a foreign issuer. ���I think we���re setting ourselves up to be the ���hotel��� jurisdiction for plaintiffs who are just visiting and using Ontario for a forum from which to launch a global transaction,��� says Michael Rosenberg, an associate at McCarthy T��trault LLP and adjunct professor of class actions at the University of Toronto Faculty of Law. ���It���s easier to do it here because our laws permit global classes in many circumstances and the formerly ideal jurisdictions in the United States have closed their doors to this kind of international business. It���s become impractical Canadian courts have to look at cases involving investors who purchased on foreign exchanges with a high degree of skepticism, says Laing. ���I think we should be taking an approach closer to that adopted in the United States. But it���s really early days and it���s not clear how strictly our courts are going to interpret the responsible issuer definition. It is possible people will look to Ontario as an overflow jurisdiction for cases thrown out in the United States over jurisdictional reasons. ���If a class action comes to a company in the U.S., general counsel for that company in Canada should look very quickly I think we���re setting ourselves up to be the ���hotel��� jurisdiction for plaintiffs who are just visiting and using Ontario for a forum from which to launch a global transaction. Michael Rosenberg, McCarthy T��trault LLP to litigate for a global class in a securities context in the United States.��� Rosenberg says there are conflictive law issues that arise when part of a class is subject to a different regulatory regime. ���The courts have yet to really take one of these class actions through from snout to tail to play out how these complications are to be resolved. In Silver v. Imax the approach the court has taken has been very much ���We���ll deal with that as it comes up.��� So this is really cutting edge in that sense.��� to see if they should appoint Canadian shadow counsel,��� says Laing, to strategize around potential Canadian proceedings and start to co-ordinate early with the U.S. lawyers. ���Just because you haven���t been sued in Canada yet, if you���re cross listed there���s a very good prospect it���s going to happen and you have to be proactive and engage Canadian defence counsel early.��� She adds: ���The strategy that works in the States won���t always be optimal in Canada so it���s very important the two sets of counsel on either side of the border co-ordinate very closely. I think the big message is if you trade in the U.S. and Canada and you���re facing litigation in the States, as quickly as possible appoint Canadian defence counsel and make sure they work closely with your U.S. lawyers.��� Growing areas of class action I n 2011, Garver says there were 188 new class action cases filed in the U.S. federal courts ��� there wasn���t a huge spike but what was interesting was the changes in the composition of the cases. In 2011, 33 of the 188 cases were related to Chinese reverse mergers like Sino-Forest. ���That���s a huge increase,��� he says. Paul Martin, a partner with Fasken Martineau DuMoulin LLP, points to employment law as another area seeing an increase in class action cases that once were predominantly seen only in the U.S. ���Overtime is a good example and employment cases in general are the No. 1 class action filing by numbers in the United States and a large number of those are the wageand-hour cases,��� he says. ���There���s been a very well-developed approach to those cases in the United States that we hadn���t seen in Canada and now we���re seeing some of them spin their way out. So much does happen in the U.S. first ��� it will typically happen here six months later. ���Having a good handle on what���s going on in the U.S. is essential for corporations that have a global business or export their products into the U.S., and might be vulnerable there.��� IH Your lawyer. Your law firm. Your business advisor. BennettJones_IH_Dec_12.indd 1 ca na dia nl awy e rm a g . c o m / i n h o u s E December 2012/January 12-11-29 10:33 AM 2013 ��� 27

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