January 2008

Protocols for Simultaneous Class Actions

Increasingly, securities class actions are being litigated simultaneously against the same issuers, officers, and directors in both U.S. federal courts and the courts in one or more provinces in Canada. In the recent Nortel class action litigation, Chief Justice of Ontario Warren Winkler observed that “Courts in both countries have thus far been adept and adaptable in developing ad hoc procedures to deal with these types of issues . . . [but] [i]t would be useful if more formal protocols were developed to facilitate the courts and the parties in dealing with these types of cases.” In response, the Section of Litigation’s Federal Practice Task Force has set up a working group to develop proposals for such protocols.

The working group will be utilizing input and perspectives from all of the principal constituencies, including the plaintiffs’ and defendants’ bars in both countries. Thus far, working group members include such prominent jurists and academics as Chief Justice Winkler, Justice Clement Gascon (Superior Court of Quebec), Judge D. Brock Hornby (District of Maine), and Professors Merritt Fox (Columbia Law School) and Janet Walker (Osgoode Hall Law School). The working group’s practicing lawyers include Julie Hannaford, Larry Lowenstein, Harvey Strosberg (Toronto), and Irwin Warren (New York) and Loren Kieve (San Francisco). We will complete the appointment of the working group shortly.

The working group will identify the issues facing the parties and the courts, and then propose best practices consistent with the often quite different rules of procedure in the United States and the various Canadian provinces, notions of international comity, and due process to the litigants. Among the issues to be addressed will be the priority of proceeding among the various courts that will be hearing overlapping or identical claims arising out of the same course of conduct, though governed by different substantive law. The group will consider timing and appropriate procedures for pretrial discovery in the multiple cases, and it will also look at an array of privilege issues (e.g., those affecting self-incrimination, attorney-client privilege, and waiver) for which the United States and Canada have different rules. The group will also focus on approval of multiple settlements, including where the substantive law governing the underlying claims and defenses differs from country to country or province to province.

Judith A. Miller
Chair, Section of Litigation