Canadian Lawyer InHouse

O UNPARALLELED nce the longtime general counsel of Barrick Gold Corp., Patrick Garver left the role of inhouse a number of years ago but still keeps a keen eye on what���s happening in the class action universe. The now-senior adviser to a U.K.-based consulting firm says he has watched with interest as what happens south of the border increasingly influences the fate of companies in Canada. ���I think if you���re a general counsel of a Canadian-based company your biggest risk from class action litigation still probably remains suits that originate in the United States as opposed to in Canada,��� says Garver, who retired from Barrick in 2010 and is now with the Good Governance Group. He acknowledges there has also been a significant upturn in Canadian class action litigation, but says, ���it���s still a bigger threat coming out of the United States because so many Canadian firms subject themselves to jurisdiction of the U.S. courts either by having a U.S. listing or debt traded in the U.S. or putting products into the U.S.��� In general, Canadian courts are seeing more securities law cases, more competition law cases, product liability cases and more cases brought on the heels of U.S. litigation, and regulatory investigations. ���Look around and if you���re in a category that looks like it will be the subject of other cases, make sure your house is in order to the maximum extent that you can,��� says Garver. He points to SNC Lavalin as an example of another trend emerging in the area of class actions. SNC investors filed a $1.5-billion class action against the firm in May alleging former CEO Pierre Duhaime authorized $56 million in improper payments to foreign agents. A second class action for $250 million alleges ���unlawful��� SNC activities in Libya. In late November Duhaime was arrested in Montreal on unrelated charges of fraud. ���The plaintiffs saw a significant drop in share price, which people attributed to the investigation and costs associated with it and any lost business that might flow from it. If you���re the general counsel of another company in the same industry you might reasonably say, ���Are there similar problems like that we should be concerned about?��� You���re not going to get sued if all of your compliance programs are in place and they���re working ��� that���s the best defence against class action litigation,��� says Garver. The speed at which lawsuits influenced by activities in the U.S. are moving to Canada can perhaps best be illustrated by a scenario lawyer Christopher Naudie saw in 2008: A client in Canada issued a press release that disclosed the company was subject to investigation by a regulator. ���Within 24 hours, there was a class action in Quebec, and within the ensuing days and weeks, we had over a dozen class actions filed across nine provinces,��� recalls Naudie, co-chairman of the THE COMPLEX MINEFIELD OF IP AND TECHNOLOGY LAW REQUIRES EXPERT NAVIGATION. IP 22 ��� D ec em b er 2012/ January 2013 SMART & BIGGAR���S internationally recognized professionals have the technical and legal experience to help you navigate the complex, high-stakes world of IP & technology law. With offices across the country, we are able to work with you to provide and leverage the right skills, knowledge and resources to create unparalleled IP solutions tailored to your unique needs. smart-biggar.ca | Ottawa INHOUSE | Toronto | Montreal | Vancouver

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