May 2008

Section to Develop Protocols for Simultaneous Class Actions

By Anthony R. McClure, LITIGATION NEWS Associate Editor

Working group to propose best practices for cross-border litigation

Class action attorneys are increasingly discovering that multiple class actions are proceeding simultaneously against the same defendants in Canadian and U.S. courts. They are also finding, however, that there are no standards on how these cross-border lawsuits should be handled. The Section of Litigation’s Federal Practice Task Force has created a working group to develop such guidelines.

The problem appeared most recently in a group of separate class action lawsuits against Nortel Networks. When the parties reached a global class settlement in federal court in New York, that settlement was then considered for approval by separate courts in Ontario, British Columbia, and Quebec.Citing the cross-border nature of the settlement, Chief Justice of Ontario Warren Winkler wrote: “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.” Frohlinger v. Nortel Networks Corp.

The Chief Justice’s comment has had quite an impact. “The impetus for creating the working group was Chief Justice Winkler’s suggestion that developing protocols would facilitate efficient handling of class actions, for the benefit of the courts and the parties,” says Irwin H. Warren, New York City, a class action attorney and member of the Section’s Federal Practice Task Force, who initially suggested creating the group. “We hope to do so through the practical insights of judges and practitioners who deal with these kinds of cases.” The group includes judges from Canada and the federal courts as well as law school professors and Section leaders.

“We are seeing some differences in how certain issues are handled in the two countries,” says Loren Kieve, San Francisco, a Cochair of the Federal Practice Task Force and a member of the working group. “We hope to develop approaches that will accommodate both legal systems and the parties’ interests in addressing U.S.-Canada cross-border class action litigation.”

Specifically, the group will address such issues as the priority of proceeding among multiple courts that consider similar claims, as well as the approval of multiple settlements. Other issues, which are often governed by different substantive law, include the attorney-client privilege, standards for class certification, and collateral estoppel.

Of the working group’s eventual final product, Warren says, “Ideally, we’ll come out with at least a recommended set of model standards or best practices.” The group has circulated to its members an extensive issues list for discussion, in advance of its first meeting in April, and hopes to have a report out within 15 months.

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