As technology makes the legal and business worlds smaller, legal counsel who manage the affairs of companies doing business outside Canada are concerned that the spectre of global lawsuits is getting bigger. Sandra Rubin’s article, “Defending Global Class Actions,” which appeared in the October 2015 issue of Lexpert Magazine, describes how in-house counsel can best defend global class actions. Deborah Glendinning, Chair of the National Litigation Department at Osler says that “she is among those who expect the number of global class actions to increase because barriers are coming down. International firms are expanding, business and the economy is global, and the technology is making everything more accessible. Because barriers are coming down, the number of global class actions will increase,” says Deborah.
Global class action lawsuits can have a ripple effect across multiple jurisdictions and while the United States remains the most influential jurisdiction, especially in securities, other countries are working their decisions into Canadian decisions. As a point of reference, those developments must be factored in so that appropriate steps can be taken. What direction the courts are moving in and the rulings behind those decisions gives a guideline as to where things are going in Canada and provides in-house counsel with some tactical advantages. Says Deborah, “I also see plaintiffs are starting to be more strategic about where they bring cases and when, in terms of jurisdiction – bringing cases where they think they have the most leverage in the early days, which we didn’t use to see much. I think the globalization of the litigation world has facilitated this to some extent.”
As the article points out, managing multiple jurisdictions along with an expanded legal team and possibly an increased number of law firms magnifies the complexities of global class actions. Strategies are available, such as sharing information and documents between teams or sub-teams. A coordinated strategic counsel approach centralizes the work and allows one firm, possibly one partner, to “quarterback” that role and oversee inter-team communications. Deborah, who was national coordinator and at the helm of the most significant class action case in the country says, “in-house counsel doesn’t want to have to make 10 different calls to get updates on 10 different cases, they should be making one call to get an update on 10 cases. It saves everybody time and it saves them money because it avoids duplication of resources.”
Deborah Glendinning sees one of the significant trends in the area coming not from courts but from corporate clients themselves, “who are changing their approach to these things.” She feels that success is measured by the number of trials based on merit and common issues and that certification doesn’t necessarily mean a cheque will be written. While it remains to be seen where the global class-action direction moves, the shape of global litigation is not confined to class-action lawsuits.
Read Sandra Rubin’s full article from Lexpert Magazine: Defending global class actions.