Class Action – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Should Representative Plaintiffs Receive More? http://lawiscool.com/2012/01/27/should-representative-plaintiffs-receive-more/ Fri, 27 Jan 2012 22:21:30 +0000 http://lawiscool.com/?p=3304 A.  INTRODUCTION

Under the Ontario Class Proceedings Act, 1992 (“CPA”) [1], the Representative Plaintiff (“RP”) is a member of the class that in most instances commits to a bigger responsibility than all other class members.  Under section 5(e) of the CPA:

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. 1992, c. 6, s. 5 (1).

The CPA is clear in that the RP not merely put his/her name to proceedings.[2]  Ideally, the undertaking is one of giving instructions to counsel and making decisions that affect the rights and potential success for the whole of the class.[3]  In many situations the RP is the driving force in identifying the claim, choosing counsel, advancing the claim and in bringing the proceeding to result.[4] In Ontario courts show reluctance in awarding more compensation to the RP and where there is quantum meruit[5] basis for this higher compensation, portions of disbursements are usually awarded.[6]  At the far end of the deleterious effects weighing against more compensation for RPs is the potential for corruption similar to what lead to the conviction of top Securities Class Actions counsel in United States (US).[7]

 

There are arguments to be made for and against a more liberalized access of an RP to more compensation than the rest of the class.  Premise in support of more compensation is the incentive that may seem necessary to motivate individuals would otherwise not take on the responsibility and potential liability.  More compensation may only seem fair for individuals who have put time and effort away from their daily living activities to contribute to a cause through which every other class member may be enriched with little effort especially where the compensation is small.[8]  On the other hand, another question that must be addressed is why the RP should get more compensation in Cy-près distributions where no one in the class would get any pay out for example.  There is a possibility for bringing the administration of justice into disrepute when the RP could always access a greater level of compensation than the rest of the class who may have been harmed hypothetically in the very same way because of the Defendant’s conduct.  The other concern is that greater compensation for the RP would risk creating “plaintiff mills” such that lead to Private Securities Litigation Reform Act by the US Congress.[9]  The experience of criminal convictions for some of the top class actions lawyers in the US indicates the potential for corruption.  It may be fair to consider the minute possibility for RPs in Ontario to benefit from judicial decisions in the same way that has landed these US counsel in prison.[10]  It is possible to assess what courts should consider when deciding the net outcome of liberalizing the test for awarding more compensation to the RP beyond other class members by balancing the deleterious and salutary effects of providing more compensation to the RP.

 

  1. B.  POTENTIAL FOR DELETERIOUS CONSEQUENCES

1)    Has Judicial Discretion already occupied the Field

 

It is possible to argue that an RP may derive benefits from performing his/her role and hence make further compensation unnecessary.  These may include psychic benefits such as the pleasure of having his/her name represented by class counsel, or participating in an “interesting and stimulating undertaking.”[11]  The RP also benefits, along with other class members, from the compensation that a successful litigation would produce.[12]  Evidently, the mere amount of time and effort that is spent by an RP is not the only question that must be addressed.

In Huras v Primerica Financial Services Limited[13]an agreement on settlement was reached which provided small compensation to each member of the large group of class members.[14]  The settlement provided for additional compensation to be paid to the Ontario and British Columbia RPs – $3000 and $2000 respectively.[15]  By way of contract, in Sutherland, Justice Winkler disallowed a claim where the RP sought compensation for work related to the administration of the settlement fund which was not strictly “necessary” and did not result in any monetary gain to the class members.[16]  Meanwhile, in some cases it was decided that class RPs are entitled to be reimbursement when they financially contribute to the financing of the litigation.[17]  In addition if class members are going to assist the administration of a settlement fund, they were entitled to be compensated for their out-of-pocket expenses.[18]  The judiciary has taken the quantum meruit idea and through judicial interpretation of the concept on some occasions award RPs for their work.  Cases are evaluated on their merits.  The status quo argument is that judicial discretion is the way to balance the polycentric effects of more compensation to the RP.

2)  Conflict of Interest between the RP and the Rest of the Class in its Clearest Form: The Cy-près Settlement

 

In Sutherland, Justice Winkler raises the caution that more compensation for the RP who benefits from the class proceeding to a greater extent than the class members beyond the damages suffered by him/her would create an appearance of a conflict of interest between the RP and the class members.[19]  He notes that a class proceeding cannot be seen to be a method by which individuals can seek to receive personal gain beyond any damages.[20]  Hence, the appearance of a conflict of interest is something our Justices carefully consider.  Although it is reasonable to suggest that the conflict would be difficult to measure since if the RP is motivated and fights for the incentive award, it may be more likely that the lawsuit may succeed.  Incentive awards may help increase competition amongst class members and the most eligible candidates may be able to work as an RP which would in turn promote access to justice, judicial economy, and behaviour modification[21] for the whole class.  At its heart, RP – class member’s relationship is a symbiotic relationship and the conflict of interest concern requires further study.

In Garland[22] where the court settlement was in the form of Cy-près, the RP, Mr. Garland requested over $95,000 of compensation and with consent of counsel on further appeal he eventually received $95,000 in the form of disbursement.[23] Although there was no precedent for an award of such an amount in Ontario, the presiding Justice Cullity was satisfied with Mr. Garland’s contribution to the success of the proceeding to an extent that exceeded significantly what might properly have been expected of the RP in such a case.[24]  On motion to approve settlement, RP sought compensation for 1,584 hours spent on case over 12 years, estimated that time cost him between $102,960 and $134,640 in lost income from his business.[25] Contribution related to functions necessary for preparation or presentation of case and resulted in direct financial benefit to class.[26]  Mr. Garland took initiative in seeking legal advice and in instructing counsel to commence proceedings and was instrumental in keeping legal team together when class members sought to withdraw from proceedings.[27]  Justice Cullity states in paragraph 42 of his judgement that in Sutherland, the recovery was $2.25 million and the RP had requested $80,000 to be paid out of the amount recovered.  In distinguishing Windisman[28], Winkler J. had stated that in Sutherland the work of the RP was unnecessary to the preparation or presentation of the case. Indeed, their work did not begin until after the settlement had been structured.[29]  That the work of the RPs did not result in any monetary success for the class and to be compensated in the manner requested they would be the only class members to receive any direct monetary compensation. The entire settlement is in the form of Cy-près distribution he argued. In Garland, the RP was found to have satisfied the test stated in Windisman and in the same way in which counsel is entitled to monetary compensation while every class member has to be satisfied with the Cy-près distribution the RP also received monetary award.  The test has been set narrowly because of comments of Justice Winkler with respect to the possible inconsistency between the concept of a Cy-près distribution and an award of an amount of compensation to an RP.   However, in Garland, Justice Cullity accepts that there is a chance for an appearance of conflict of interest that could arise if such compensation were to be awarded routinely.[30]  However, because the test was set strictly, the judicial discretion to award compensation in a Cy-près in distribution Garland would not open the flood gates of conflict of interest amongst class members.

The concern regarding a judicially invented inherent conflict of interest amongst class members and the RP if awards of compensation were to be liberally provided to the RP has led to the narrow Windisman test.  This deleterious effect for a conflict of interest is most exemplary when a Cy-près distribution is negotiated for the class.  A strong argument continues to lurk against liberalizing the test for more compensation given its potential for creating a conflict of interest amongst class members especially in cy-près distributions.

3) RPs in the United States and the potential for corruption

It is fair to suggest that perhaps the media coverage of the 2007 convictions of plaintiff counsels in a large US Class Actions Law Firm has reduced the reputation of plaintiff-side lawyers in the eyes of the public. [31]  When top Class Actions counsel are indicted for creating “plaintiff mills,” it is possible to imagine that there may also be a minute risk that courts may in their own way help develop professional plaintiffs if they were to provide a liberal test for allowing compensation on a systematic basis to all RPs.  The US Congress fully banned “incentive awards” to RPs through Securities Litigation Reform Act (PSLRA) of 1995.[32] A potential deleterious effect of compensation beyond the rest of the class is the possibility of individuals merely seeking profit to race towards courtrooms seeking the position of RP.

 

C.          SALUTARY EFFECTS WEIGHING IN FAVOUR OF MORE COMPENSATION

1)    Level of RP’s Responsibility and Liability

           

The initial report of the Ontario Law Reform Commission (OLRC) identified access to justice, judicial economy, and behaviour modification as the central role of suits proceeding under the CPA.[33] Such goals would only be fulfilled with the presence of appropriate RPs with the level of incentive to take on the burden and liability that is inherent in the RP.  It may seem only fair that a successful litigants fighting with his litigation counsel team to also be reimbursed especially in cases where a Juris Doctor degree may be the only thing separating the counsel and this hypothetical exemplary RP.

An RP tends to devote a great amount of time in litigation in comparison to the “absent” members of the class.[34]  The RP must swear affidavits, and may be subjected to cross-examination even before class certification stage is decided.[35]  In Windisman[36]the court reasoned that although ordinarily, the RP was not entitled to be compensated for the time and effort expended in relation to prosecuting an action, there was an important distinction to be drawn with reference to class proceedings.  Since the RP undertakes the proceedings on behalf of a wider group and that wider group will, if the action is successful, benefit by virtue of his/her effort as the plaintiff class would be enriched at the expense of the RP to the extent of the time and effort.  Hence by showing that he/she gave an active and necessary level of assistance in the preparation or presentation of the case and that such assistance resulted in financial success for the class, this RP may be compensated on quantum meruit bases for the time spent.[37]  This decision allowed for a discretionary level of awarding an RP with compensation beyond the rest of the class because of a high level of dedication and effort.

It is very clear that RPs incur costs in performing their role.  Even “figurehead” plaintiffs incur the costs of learning about the case, as they must display some familiarity with and responsibility for the case in order to satisfy section 5(e)(i) requirement to “fairly and adequately represent the interests of the class.”[38] Defendants also typically take the deposition of the named plaintiff which is an experience that can be time consuming and demanding to someone not familiar with the legal system.[39]  Named plaintiffs also run a slight, but potentially worrisome risk of being saddled with sanctions if the litigation turns out badly and they are not indemnified by class counsel.[40]  These costs can be significantly greater when the RP assumes a more active role in selecting or supervising counsel, as in the case of private securities litigation or as the court in Windisman suggests in situations when the RP may indeed be seeking to meet the test for compensation beyond rest of the class.

Furthermore, in some cases such as pattern or practice employment discrimination actions the RP may also experience dangers in the form of reprisal or loss to reputation.[41]  The level of risk and responsibility suggests the obvious danger for a net loss to the RP.  Historically in Ontario, this additional work is not compensated:  that is, “for the purpose of assessing entitlement to damages, the RP is treated like any other class member.”[42]  However, a strong argument can be made for the salutary effects of providing an RP compensation that reimburses their dedication and hard work.  Especially in situations where an RP- the only member of the class that has to show extraordinary devotion and effort – the courts should balance the factors in favour of liberalization of the Windisman test.

2)    The Services to Access to Justice by Providing Individuals with Necessary Incentive for Acting as RP

 

At its heart, the balancing that is necessary seems to be to avoid a situation where legislators need to step in to avoid the danger of courts developing “professional plaintiffs” or provoking conflict of interest between class members and the RP for example – as was necessary in the US Securities Actions – and on the other hand providing individuals with the necessary incentive to undertake the representation and presentation of the interests of the class as a whole.   The reality is that the RPs must swear affidavits, and may be subjected to cross-examination even before class certification is granted.[43]  The RP alone will be subjected to document discovery and examinations after discovery at the initial stage of the proceeding.[44]  Commentators working on the plaintiff side provide us with their experience arguing that RPs are not usually individuals who assume the role for a “quick buck.”[45]  These commentators further suggest that people with only monetary interests are more likely to stand back and let someone else do the work for them RPs tend to be firmly committed to the particular cause at hand. [46]  Perhaps to provide individuals with a fair incentive to become involved as an RP for the sake of judicial economy, behaviour modification, and access to justice of a whole class of people can be evaluated as a mitigating factor in response to the concern of Ontario Justices concerned about inciting conflict of interest between an RP and the class.  The problem is that despite even the strongest of convictions, an individual will think twice before agreeing to take on the role of the representative plaintiff.  In particular, who would risk a cost if their role is in cases where no monetary or at most a small amount of money may be recovered as was the case in Markson and Cassano[47]?

There are also lessons to be learned about providing an incentive award to RPs through a more liberalized test from our neighbours to the south.  Prohibition of compensation beyond the rest of the class in the Private Securities Litigation Reform Act (PSLRA) by the US Congress was strongly attacked by a comprehensive quantitative study in 2006.[48]  Although opinions change based on whether a paper is written by practitioners and academics on various sides of the issue, this paper seemed to provide a fair and balanced view on the negative consequences of the PSLRA prohibition of incentive awards to RP in securities Class Actions.[49]  In addition, US Congress’s Class Actions Fairness Act of 2005 (CAFA), characterizes more compensation for RPs in the area of Securities Fraud as one of the “abuses” of Class Actions practice the situation in which “unjustified awards are made to certain plaintiffs at the expense of other class members.”[50]   The 2006 study attacks the reforms claiming that outside the private securities litigation context, courts regulated the grants of incentive awards reasonably and a total ban of incentive awards in securities Class Actions was heavy-handed.[51]  The Congress had attempted to enact rules that would avoid the abusive litigation that took place there when “professional plaintiffs” raced to the courthouse to become lead plaintiffs in a suit.[52]  To address this, US Congress limited the role of the RP to the “most adequate plaintiff.”[53]  Thereafter, the PSLRA specified criteria for courts to determine the “most adequate plaintiff,”[54] including in the factor to determine the RP as “in the determination of the court, has the largest financial interest in the relief sought by the class.”[55] As a result, the PSLRA sought to eliminate the monetary motivations for “professional plaintiffs” to be the RP by compensating on a proportional share of the stock ownership.[56]  According to the empirical study in 2006, the institutional investors that Congress hoped to lure as class representatives likely incurred significant opportunity costs and may be discouraged from serving if they cannot receive adequate compensation.[57]  Hence, the question remains, what’s the incentive for an individual to volunteer for most likely burdensome task of representing the class?

In Ontario some plaintiff counsel report that despite indemnification guarantee in case of a failed lawsuit, many ideal RPs ultimately decide not to take on this role.[58]   It is important to consider whether individuals would burden themselves with the task of becoming an RP if they can just wait for someone else to complete the work especially where every class member would receive either no monetary benefit or an amount that is very small.  Where Cy-près distributions are handed out or in cases where the recovery is small, RPs may even experience a net loss because the small remedy is not enough to cover the increased costs of serving as the RP.[59]  In other cases, the class member’s expected compensation may surpass the costs of acting as RP, but “free-rider effects” make the individual unwilling to go forward.[60]  The “free-rider effects” can result in failure of litigation if for example no one risks volunteering as RP.[61]  Hence, the most important salutary effect for more compensation is providing the necessary amount of incentive for a great number of individuals in the class to become willing to work as an RP.

 

D. CONCLUSION

Courts in Ontario continue to rule on the topic of more compensation to the RP with reluctance and hesitation.  Most Judges seem to focus on the reduction of the conflict of interest between class members and the RP rather that aiming to provide any sort of monetary incentive to RPs even where there are hints of quantum meruit basis for such payment.[62]  Where these incentives seem most necessary – to provide the necessary incentive in Cy-près and small-return settlements, the concern for conflict of interest seems to become the central question.  This clearly is a dilemma that every court must consider in balancing the salutary and deleterious effects of providing compensation for the current RP and an incentive for potential future RPs.  The CPA was enacted so that the RP does not merely “put [his/her] name to proceedings.”[63]  Ideally the RP’s undertaking is to give instructions to counsel and make decisions that affect the rights and potential triumph for the whole of the class.[64]  The motivation that is necessary to take on this responsibility and the amount of energy and time that is spent in litigation are strong arguments in support of liberalizing the Windisman test through judicial discretion.  On the other hand, there are risks associated with a system that would constantly compensate RPs beyond the rest of the class.  This way of compensation may provoke an atmosphere ripe for conflict of interest in a relationship that ought to be close to a symbiotic interaction.  The CPA legislators did not want to turn Class Actions into a “playground for mere seeking of profits.”[65]  For example in Cy-près distributions where no other class member receives any compensation, sole monetary compensation for the RP may seem unfair but no compensation at all to the RP may mean a net loss to that individual.  Hence a balancing of the positive and negative effects of more compensation may be the difficult path that every Justice must endure.

The good news is that the experiences of some practitioners in the field suggests that the potential deleterious effects for RPs motivated solely by monetary gains is somewhat neutralized, it is reported that such individuals are more likely to stand back and let someone else do the hard work for them.[66]  Advocates for more compensation further suggest that most RPs tend to be firmly committed to the particular cause at hand.[67]   Despite the need for scepticism, it is without a doubt that an individual will think twice before agreeing to take on the role of the RP.[68]  A judicial balancing of such factors is helpful in deciding the format of compensation for an RP.

Taken together, I contend that these claims represent the present scope of arguments for and against more compensation for the RP under the CPA, and it is on these grounds that Canadian courts should continue assess the viability of such a request by the RP.  Admittedly, it is still possible that a trial court might find for the RP in a class proceeding requesting more compensation despite the difficult test set in Windisman. Yet for all the reasons above, I think that it is unlikely — and this is not necessarily a bad thing. If a Class Action ends with all sorts of conflicts of interest and individuals tempted to make a living from becoming a “professional plaintiff”, attention will likely be focused on the need for substantive Class Actions reform and lawyers may find themselves in great ethical dilemma.  The US experience of corrupt plaintiff counsel is certainly a concern must not be easily dismissed.  Courts should carefully assess how settlements balance access to justice; will liberalizing the Windisman test be fair to the whole class? What value do we ascribe to access to justice, judicial economy, and behaviour modification and a settlement process free of corruption and conflict of interest? These are the key questions. If we are willing to organize resources around the ideas that were promoted in the OLRC’s vision for class proceedings, we must be forthcoming with the way that we evaluate the role of the RP.

If we believe that the success of Class Actions very much depends on the existence of RPs willing to work for the success of the whole class, a decision must be taken either through legislation or judicial edict to allow for more ways to provide individuals with the necessary incentive to take this role or simply accept the risk that some RPs will be facing the very real danger of net loss. Spurred by a more liberal test for compensating RPs, settlements would provide an adequate deterrent to those who would otherwise rather sit on the sidelines when they may in fact be the best candidate for the role of RP.  Until such a deci­sion is implemented, it is difficult to see how we can increase the interest for taking on the role that most people may very well be tempted to pass onto another class member.


[1] Class Proceedings Act, 1992, SO 1992, c 6 [CPA].

[2] Branch, Ward K. & Brasil, Luciana. “’If it aint’ broke, don’t fix it!  If it is broke, fix it!’ Cost Regimes for Class Actions.”  What is the real cost regime in Ontario Class Actions?  Shouldn’t Ontario move closer to the Costs regime in other provinces?  (Osgoode Hall Law School Professional Development: 4th Annual Symposium on Class Actions, April 26-27, 2007) (See Part C. “The Role of the Representative Plaintiff.”)

[3] Ibid.

[4] Justice Winkler, Warren K & Matthews, “Caught in a trap. Ethical Considerations for the Plaintiff’s lawyer in class proceedings.”  At 5th Annual Symposium on Class Actions.  Ethical Issues and Conflicts.  (Presented at Osgoode Hall Law School, professional Development: April 10-11, 2008).  Also see Windisman v Toronto College Park, [1996] 3 CPC (4th) 369 at para 28 (ONSC): “The evidence here is that Ms. Windisman took a very active part at all stages of this action. It seems clear that the case would not have been brought but for her initiative. She assumed the risk of costs and she devoted an unusual amount of time and effort to communicating with other class members, acting as a liaison with the solicitors, and assisting the solicitors at all stages of the proceeding.”

5 See Sutherland v Boots Pharmaceutical PLC, [2002] OJ No 1361 (QL) at Para 28 (ONSC) [Sutherland] and Windisman v Toronto College Park, [1996] 3 CPC (4th) 369 at para 27 (ONSC) [Windisman]: “The operative word is that the functions undertaken by the Representative Plaintiffs must be “necessary”, such assistance must result in monetary success for the class and in any event, if granted, should not be in excess of an amount that could be purely compensatory on a quantum meruit basis.”

[6] Hislop v The Attorney General of Canada, [2004] OJ No 1867 at para 22 (ONSC) and Garland v. Consumers Gas (2006), 56 CPC (6th) 357 at para 50 (ONSC) varied on consent, 2008 (CA) [Garland].

[7] Yang, DW.  “Milberg Weiss Law Firm, two senior partners indicted for secret kickback scheme involving name plaintiffs in Class Actions Lawsuits.”  United States Attorney Central District of California News Release (May 18, 2006), online: <http://online.wsj.com/public/resources/documents/milbergpress05182006.pdf>

[8] Supra at note 4.

[9]  See 15 USC § 78u-4(a)(2)(A)(vi) (2000) requires an RP in securities litigation to file a sworn certification with the complaint that states that the plaintiff will not receive any payment for serving as an RP beyond what the rest of the class receives, except as ordered or approved by the court in accordance with paragraph (4).  Furthermore, 15 USC§ 78u-4(a)(4) states: “The share of any final judgment or of any settlement that is awarded to a representative party serving on behalf of a class shall be equal, on a per share basis, to the portion of the final judgment or settlement awarded to all other members of the class. Nothing in this paragraph shall be construed to limit the award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of a class. The PSLRA applies to actions filed after December 22, 1995. Private Securities Litigation Reform Act of 1995, Pub L No 104-67, § 108, 109 Stat. 737, 758.”

[10] Elkind, P.  “Top Class Actions lawyer to be indicted.” Fortune Magazine (September 20 2007), Reported online at10:44 AM EDT: <http://money.cnn.com/2007/09/19/magazines/fortune/weiss_indictment.fortune/index.htm>

[11] Eisenberg, T & Miller, GP, “Incentive Awards to Class Actions Plaintiffs: an Empirical Study,” (2005-2006) 53 UCLA L Rev 1303 at 1306.

[12] Ibid

[13] Huras v. Primerica Financial Services Ltd., [2000] OJ No 1474 (SCC).

[14] Eizenga, MA et. Al.  “Representative Plaintiff Compensation.” Class Actions Law and practice.  (Lexis Nexus: Issue 26, February, 2008).

[15] Ibid.

[16] Supra note 5.

[17] Supra note 15.

[18] Fraser v Falconbridge Ltd., [2002] OJ No 2383; Fakhri v Alfalfa’s Canada Inc., [2005] BCJ No 1723 (SC) at paras 29-31; See also Sutherland v Boots Pharmaceutical PLC, [2002] OJ No 1361 where a request for compensation rather than expenses was denied.

[19] Supra note 5 at para 22.

[20] Ibid.

[21] In Hollick v. Toronto (City), [2001] 3 SCR 158 at para 27, the Supreme Court of Canada adopted the OLRC’s three justi­ficatory rationales to decide whether a class proceeding would be the preferable procedure for the resolution of the common issues, as required by s. 5(1)(d) of the Ontario Class Proceedings Act, 1992, SO 1992, c. 6. Subsequent cases have decided the issue of preferable procedure with reference to these three factors.

[22] Garland v. Enbridge Gas Distribution Inc. [2006] OJ No 4273, 2006 CarswellOnt 6585, 38 CPC (6th) 70 (ONSC) at para 51 [Garland]

[23] Garland v. Enbridge Gas Distribution Inc., 2008 ONCA 1.

[24] Supra note 22 at para 48.

[25] Supra note 5.

[26] Supra note 24.

[27] Ibid.

[28] Windisman v Toronto College Park. (1996), 3 CPC (4th) 369 at para 27 (ONSC) [Windisman].

[29] Supra note 5.

[30] Supra note 22 at para 51.

[31] DW Yang, “Milberg Weiss Law Firm, two senior partners indicted for secret kickback scheme involving name plaintiffs in Class Actions Lawsuits.”  United States Attorney Central District of California News Release (May 18, 2006), online: <http://online.wsj.com/public/resources/documents/milbergpress05182006.pdf>

[32] See 15 USC § 78u-4(a)(2)(A)(vi) (2000) requires an RP in securities litigation to file a sworn certification with the complaint that states that the plaintiff will not receive any payment for serving as an RP beyond what the rest of the class receives, except as ordered or approved by the court in accordance with paragraph (4).  Furthermore, 15 USC § 78u-4(a)(4) states: “The share of any final judgment or of any settlement that is awarded to a representative party serving on behalf of a class shall be equal, on a per share basis, to the portion of the final judgment or settlement awarded to all other members of the class. Nothing in this paragraph shall be construed to limit the award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of a class. The PSLRA applies to actions filed after December 22, 1995. Private Securities Litigation Reform Act of 1995, Pub L No 104-67, § 108, 109 Stat. 737, 758.”

[33] Ontario Law Reform Commission, Report on Class Actions (Toronto: Ministry of the Attorney General, 1982), reproduced in Jacob Ziegel, Michael Rosenberg, & Garry Watson, eds., Class Actions: Cases, Materials and Notes (Toronto: University of Toronto Faculty of Law, 2011) vol. 1 at 42.

[34] Supra note 14.

[35] Supra note 4.

[36] Windisman v Toronto College Park. [1996], 3 CPC (4th) 369 at para 27 (ONSC) [Windisman].

[37] Ibid.

[38] T Eisenberg & GP Miller, “Incentive Awards to Class Actions Plaintiffs: an Empirical Study,” (2005-2006) 53 UCLA L Rev 1303 at 1305.

[39] Ibid.

[40] See In re Contituional I11S. ec. Litig., 962 F2d 566, 572 (7th Circuit 1992).

[41] Supra note 20.

[42] Supra note 4.

[43] Supra note 2.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] See Markson v. MBNA Canada Bank, [2007] 85 OR (3d) 321 (CA) [Markson] and Cassano v. The Toronto-Dominion Bank, [2009] OJ No 2922 (ONSC) [Cassano].

[48] Supra note 44.

[49] Ibid.

[50] Supra note 44 at 1311-12.

[51] Ibid. Debate between leading securities class action practitioners Paul Steep (McCarthy Tétrault) and Dimitri Lascaris (Siskinds) on Class Actions, Faculty of Law, University of Toronto, 2 November 2011.  Perhaps US Securities Counsel are finding it difficult to make a living in the US with such stringent control by Congress, this may be one of the reasons that top class actions lawyers are moving to Ontario.  See Rubin, S.  “Top U.S. class-action lawyer coming to Canada. The Globe and Mail. Online: <http://www.ctv.ca/generic/generated/static/business/article2017397.html>

[52] Pandey-Jorrin, N.   “A Case for Amending the Private Securities Litigation Reform Act: Why Increasing Shareholders’ Rights to Sue Will Help Prevent the Next Financial Crisis and Better Inform the Investing Public.” Business Law Brief (Spring 2009) at 15.

[53] Supra note 14.

[54] H.R. Conf. Rep. 104-369.  Prior to the PSLRA, attorney’s fees would be calculated by the court using the lodestar approach. The lodestar approach required multiplying the attorney’s hours by a reasonable hourly fee. Thereafter, additional factors such as the case’s risk, degree of skill required, and difficulty involved in the case, the degree of its urgency, and its novelty. See Blacks Law Dictionary (8th ed. 2004).

[55] Ibid.

[56] Supra note 59.

[57] Supra note 44 at 1348-49.

[58] Won J. Kim, lecture on Class Actions, Faculty of Law, University of Toronto, 5 October 2011. (Kim reports that people who are told to get independent legal advice to become an RP still don’t have the incentive to do so even despite being indemnified in every case, many continue to turn away from the opportunity).

[59] Ibid

[60] Ibid

[61] Ibid

[62] See Hislop v The Attorney General of Canada, [2004] OJ No 1867 at para 22 (ONSC) and Garland v. Consumers Gas (2006), 56 CPC (6th) 357 at para 50 (ONSC) varied on consent, 2008 (CA).

[63] Supra note 2.

[64] Ibid

[65] Supra note 2.

[66] Supra note 2.

[67] Supra note 2.

[68] Supra note 4.  See also Supra note 52.

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The G20 Class Action http://lawiscool.com/2010/08/09/the-g20-class-action/ http://lawiscool.com/2010/08/09/the-g20-class-action/#comments Mon, 09 Aug 2010 10:46:25 +0000 http://lawiscool.com/?p=2841 via CBC news:

A woman who says she was in a crowd detained by police for hours at a Toronto intersection during a G20 protest has launched a $45-million class-action lawsuit against the Toronto Police Services Board and the federal attorney general.

Sherry Good is acting as the representative plaintiff for more than 800 people who claim they were wrongfully arrested during the G20 summit in late June.

She is among about 500 people who were hemmed in by hundreds of riot police at the intersection of Queen Street West and Spadina Avenue for several hours in the rain on June 27.

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Motion for Certification on York Class Action http://lawiscool.com/2010/07/21/motion-for-certification-on-york-class-action/ Wed, 21 Jul 2010 22:57:15 +0000 http://lawiscool.com/?p=2801 via CNW Group:

Important notice regarding the Class Action against York University

TORONTO, July 21 /CNW/ – Juroviesky and Ricci LLP would like to inform all those who are interested in and/or have registered for the York Class Action for the damages resulting from the 2008-2009 Strike/York’s Cancellation of Classes that the Motion for Certification is scheduled to be heard by the court for three consecutive days from July 21-23, 2010 from 10 am – 5 pm at Courtroom No. 4, Osgoode Hall, 130 Queen St. W., Toronto, Ontario. Assistive signs and individuals from our offices will be located around Osgoode Hall to help you find your way to the appropriate courtroom.

Counsel for both sides will be present and make oral submissions to the court in support of their respective positions. The motion is open to the public, therefore if you are able to, we encourage all registered or interested parties to attend these proceedings to show support for our position that York compensate the 50,000 students, including yourself, for the damages resulting from the strike of 2008-2009.

If you are interested in attending this proceeding, please email us at info@jruslaw.com and indicate which day(s) you would be interested in being present. As this motion is critical to the progression of this litigation as a class action on behalf of all affected students, your attendance and support would be appreciated and beneficial to the students’ position.

Juroviesky and Ricci LLP

Henry Juroviesky

For further information: Eli Karp, Barrister and Solicitor, Juroviesky and Ricci LLP Barristers and Solicitors, 4950 Yonge Street, Suite 904, Toronto, Ontario M2N 6K1, Canada, 416.481.0718 (Reception), 416.646.7879(Direct), 416.893.9322 (Cell), ekarp@jruslaw.com

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From epidemic to epidemic http://lawiscool.com/2009/08/07/from-epidemic-to-epidemic/ Fri, 07 Aug 2009 14:55:31 +0000 http://lawiscool.com/?p=1873 Ontario nurses seek to revive SARS lawsuit

It says the May ruling leaves nurses at risk as they care for patients during the current swine flu pandemic, as well as other outbreaks of potentially deadly diseases.

AdviceScene

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Mau Mau to sue the British Government http://lawiscool.com/2009/06/29/mau-mau-to-sue-the-british-government/ http://lawiscool.com/2009/06/29/mau-mau-to-sue-the-british-government/#comments Mon, 29 Jun 2009 12:05:40 +0000 http://lawiscool.com/?p=1710 First Posted on Commercial Law International on June 24, 2009.

Concentration Camps

Concentration Camps

By Charles Wanguhu

The above move by the Kenyan freedom fighters to sue the British government has elicited some very interesting responses from some readers of the times online paper:

This is all about money and bashing the UK. Africa does not want to take responsibility for its current problems
Also if this happened in the 50’s so why have they waited till now?

Lawyers and Money again: A poisonous mix. Why after so long drag up these horrors. The Mau Mau allegedly used to drink the blood of the white farmers they killed. The British allegedly tortured Mau Mau. What good can come of this knowledge now? Time to put these things back in the box of history

While the above sentiments may be of a few it may be worth placing their arguments in a context. Firstly during the emergency in Kenya loads of kikuyu men were rounded up and accused of being Mau Mau based on accusations by guards who were collaboratoring with the british. We can therefore not claim that all those held in prison camps tortured and killed were indeed Mau Mau fighters.

Secondly what is more at stake is the recognition by the UK government that it was official colonial policy to run concentration camps and that it was sanctioned at the top.

In the article :

Professor Anderson states that is doubtful the lawsuit in its current form — targeting the state rather than those surviving individuals who allegedly carried out the abuse — will succeed.

“There can be no doubt that torture was used by British Forces . . . but the question remains ‘who is responsible?’,” he said.

Whoever this notion is flawed in that when a criminal offence occurs it is not the role of the victim to seek evidence against the offender and then bring in criminal charges against them. When a state decides to open up institutions of incarceration it is the states responsibility to ensure that the inmates are treated in a humane way and not subjected to torture. In this instance the British colonial state failed in their duty and they should therefore be brought to account for their inaction when it was clear what is happening. The Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya by Caroline Elkins is an account of the atrocities carried out on the Kikuyu population in Kenya and is worth a read for any individual prior to defending the british actions.

The Mau Mau atrocities cannot be denied and were definitely atrocious. It is however pretentious to claim that they were on a similar scale as the colonial state with their better equipped and organised forces. In addition the fact that they used Machetes and not guns is akin to declaring that the British killings were undertaken in a humane way.

The question is should it be placed in history and forgotten about? Well while seeming to take a leaf from its predecessors the Kenyan Government extra judicially killed up to 400 Kikuyu young men accusing them of being Mungiki (a group not too dissimilar to the Mau Mau if not claiming their inspiration from the Mau Mau) should we forget about them as well.

While it is in the interest of majority of British people to be forward looking, the victims of atrocities still seek justice. History appears to be relative as the World Cup win in 1966 is considered fresh enough to be brought up at every opportunity but atrocities committed six years earlier than the win are too far to be worth remembering.

The issue is not so much monetary compensation but recognition that it was official British Gvt policy to carry out such atrocities and that indeed the victims of these actions were in some instances innocent people who happened to be members of the wrong ethnic community at the time.

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The Cozy Bank-Law Firm Relationship May Not Be So Cozy After All…These days Anyway, Part II. http://lawiscool.com/2009/06/18/the-cozy-bank-law-firm-relationship-may-not-be-so-cozy-after-all%e2%80%a6these-days-anyway-part-ii/ Thu, 18 Jun 2009 15:35:30 +0000 http://lawiscool.com/?p=1668 First posted on Commercial Law International on June 17, 2009.

McKenna v. Gammon Gold Inc.

This is case that has the potential to redefine the very cozy relationship law firms have with their banker clients. No longer will bankers be given blanket coverage under conflict of interest rules to prevent law firms from being representatives in claims brought against them.

The operative word here being potential, as you shall will see.

The relevant facts of the case in brief are as follows: the defendants in the case included the underwriting syndicate of Gammon Gold´s public share offering. Two member of the syndicate included BMO Nesbitt Burns Inc. and TD Securities Inc., both subsidiaries of BMO and TD respectively. It just so happens that Siskinds, who represented the representative plaintiff, McKenna, in the class action, was concurrently retained by BMO and TD to undertake debt enforcement and personal bankruptcy matters. As a result the defendants raised the issue of conflict of interest, seeking to get Siskinds removed from the case.

The judge in the case, Madame Justice Lax, was having none of it; holding that there was no conflict. In her ruling Justice Lax made it clear that ¨the underwriters and banks are separate and sophisticated business and legal entities that are individually governed and autonomous. She went on to say further that ¨the banks had no reasonable expectation that their subsidiaries would be treated as clients.¨

And rightly so. While I fully agree with the judgment, it still remains unclear how it will be received by banks but more importantly, law firms. This is why I said it has the potential to redefine the bank-law firm relationship. It will all depends on how it is read. If the case is read very narrowly and confined to the particular facts of the case, that is where there is a parent and subsidiary relationship and they are separate, sophisticated business and legal entities, individually governed and autonomous, then there is no conflict. This is the extreme and I don’t believe that it will be this narrowly read. However, I do believe that there is the strong potential for it to be read narrowly enough as to preserve largely if not totally the existing regime. It will all depend on the mood (i.e. economic conditions) of the law firms I guess.

On the other hand, if the decision is read more globally, it could usher in a new era of freedom to act o the part of law firms. I hope it is the latter; however, I would not be surprised if it is some form of the former.

In a passing note in Part I of this post I referred to lawyers as attack dogs, this was meant as no offence – I even referred to myself as an attack dog in training. However it was said to provoke some self examination and self evaluation on the part of myself and those more senior in the profession. All too often clients see us in that role and we sometimes do little or nothing to disprove this perception. While I know that I have a long way to go in the profession, I am after all only an articling student, for me; a lawyer is an advocate, a professional that aggressively safeguards the interest s of their clients, however, this dusty must be balance against other professional and personal considerations.

Am I wrong or just being naive?

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The Cozy Bank-Law Firm Relationship May Not Be So Cozy After All…These Days Anyway, Part I http://lawiscool.com/2009/06/17/the-cozy-bank-law-firm-relationship-may-not-be-so-cozy-after-allthese-days-anyway-part-i/ Wed, 17 Jun 2009 12:25:28 +0000 http://lawiscool.com/?p=1661 First posted on Commercial Law International on Jun 5, 2009.

In Canada an Ontario Superior Court of Justice ruling (McKenna v. Gammon Gold Inc.) has the potential to go viral like the latest YouTube sensation and challenge what can only be called one of the most incestuous relationships in the commercial world.

What am I talking about?

Well I am referring to the relationship, the very close relationship, between banks and law firms.

Ever wonder why, if and when, a bank or other financial institution is being sued it is very rare to find a big name law firm representing the plaintiff but they are very much present to represent the defendant bank? This my friends is no coincidence, it is a deliberate strategy on the part of the banks and other financial institutions. They set out to exploit the conflict of interest rules that lawyers are bound by – a lawyer may not generally represent two clients on opposite sides on the same matter – and they do a very good job of it. This is evidenced by the fact that banks and other financial instructions will spread the legal work they have around to as many international, national, regional and local based (powerhouse) law firms as they can in any market they operate.

The strategy is simple but effective: tie up the biggest, the brightest, the best and if need be the most belligerent legal talent out there. The benefits of this strategy accrue to banks in two significant and interconnect ways. The first is that they have the best legal talent working for them on ordinary transactions while at the same time having them in reserve ready to be unleashed like a pack of attack dogs. The second, which flows from the first, is that having such well trained and impressive attack dogs – oh sorry, I mean lawyers – at the ready will and does inspire fear in not only prospective claimants but other lawyers as well (though most would not admit it).

The law firms are not entirely innocent here, in fact not at all. They are willing subjects or is that objects of the strategy to exploit the conflict of interest rules. They enter this relationship; in fact they actively seek to forge these links, with their eyes, arms and billable hour’s dockets´ all wide open. Law firms know that the work from the banks is not only constant but very lucrative as well, so they are more than happy to be attack dogs for hire.

However, we now live in different times, as this once cozy relationship is being undone or at least it has hit a rocky patch called the current global recession. Whoever first said: it´s all about the money was so right. It is indeed all about the money for both banks and law firms. The former having less work to spread around now is also lacking a commercial rational that would satisfy shareholder costs´ accountability of having such high paid attack dogs in reserve. Consequently, the banks are now looking to cut costs and have aggressively gone after external legal costs reducing the number of attack dogs – sorry, I mean lawyers – it holds in reserve and how much it pays them.

The law firms for their part, seeing the writing on the wall have, have begun to seek out other clients. In fact this has resulted in the once impossible, law firms, well at least in this case, have begun to represent claimants against the banks.

The conflict of interest rules once untested and applied broadly, I would say too broadly, to the bank-law firm relationship is now set for realignment. No longer will law firms simply refuse or not actively seek out work, simply because a suit might be brought against one of their clients. I know I am only an attack dog in training- pardon me, I should say student at law – but my reading of the conflicts section of the Ontario Rules of Professional Conduct does not support such a broad application. Provided the issues are not related, the clients’ information in possession of the lawyer bares no relevance to each other and the lawyers that handle each client´s matter are different, it is difficult to see where a conflict of interest would be created.

Thankfully I don’t have to stand alone in my opinion. I now have Justice Lax in McKenna v. Gammon Gold Inc. to back me up when she ruled that Siskinds should not be disqualified for a conflict of interest from prosecuting a class action against an underwriting subsidiary of a client bank that it acts for in separate matters.

And how so? Well you are just going to have to stay tuned for part two.

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Lawyer’s Fee: $125,000 In Gift Cards http://lawiscool.com/2009/02/07/lawyers-fee-125000-in-gift-cards/ Sun, 08 Feb 2009 00:08:20 +0000 http://lawiscool.com/?p=1327 California attorney Neil B. Fineman brought a class action lawsuit against apparel store Windsor Fashions. The store had been collecting personal information from credit card purchases in violation of California’s Civil Code §1747.08(a)(2).

The store settled: Fineman would receive $125,000 in fees, but aggrieved customers would get a $10 gift card, not cash. So Los Angeles Superior Court Judge Brett Klein issued an order stating that Fineman would receive his fee in the form of 12,500 $10 gift cards.

The settlement was not likely to deter Windsor Fashions – after all even their affordable dresses are well above the $10 gift card’s value.  Maybe this might herald a shift to cash and away from glorified coupons.

(h/t Megan McArdle)

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Employment Lawsuits Will Rise in Recession http://lawiscool.com/2009/01/29/employment-lawsuits-will-rise-in-recession/ Thu, 29 Jan 2009 14:49:12 +0000 http://lawiscool.com/?p=1307 In the current economic climate, companies big and small are feeling the stress of financial insecurity and reduced profits. As a result, more and more Canadians are finding themselves unemployed. This will likely lead to an increase in employment-related lawsuits.

To quote a recent article by CFO Publishing, “layoffs mean lawsuits.” In the United States, employment litigation has risen correspondingly to the decline of the country’s economic health.

In a case of being fired without just cause, a former employee can make a claim of wrongful dismissal; thus age-discrimination lawsuits and so forth have been on the rise recently.

But a business may collapse suddenly, still owing its employees wages and/or benefits. Take for example the case of a Saskatoon company that built trailers for the oilpatch. A slowdown in the tar sands led to its laying off all 270 employees, many of whom are owed outstanding wages. A group of the former employees is now considering a class-action suit.

The number of employment-related class-action suits has been on the rise, according to Toronto-based employment lawyer Daniel Lublin. This has led to what he calls “workplace law’s newest, and biggest, phenomenon: lawyers specializing in class action lawsuits.”

As companies like IBM and Air Canada let employees go, they will have to be careful to avoid class-action suits – especially since employees are becoming informed and asserting their rights.

Finally, even without firing employees, a company can become the target of a class-action suit. In the current case of CIBC, the bank is fighting employee claims of unpaid overtime. Since the ramifications of this case “could spill over into workrooms across the nation,” companies that scrimp and save in the face of economic uncertaintly may find themselves in the courtroom if they choose to do so at the expense of employee entitlements.

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UPDATE, 26 Feb 2009:  Today as part of a series looking at the recession’s effects on people in Toronto, the Globe & Mail published an article about booming business at one employment law firm. The article references this survey of litigation trends, in which “Labour/employment” is by far the top type of legal dispute currently worrying Canadian firms.

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Maple Leaf Foods Sued Over Tainted Meat http://lawiscool.com/2008/08/27/maple-leaf-foods-sued-over-tainted-meat/ http://lawiscool.com/2008/08/27/maple-leaf-foods-sued-over-tainted-meat/#comments Wed, 27 Aug 2008 22:15:49 +0000 http://lawiscool.com/?p=727 Four separate class-action lawsuits were filed today in Ontario, Quebec, Saskatchewan, and British Columbia against Maple Leaf Foods.  The suits were filed on behalf of Merchant Law Group LLP.

Up to 15 people in Canada have died from the tainted meat so far, and at least 12 were in Ontario.  The Ontario suit seeks $350 million in damages, while the other suits did not specify any amounts.

The National Post states,

…a link was confirmed between deli meats processed at [Maple Leaf’s] Toronto plant and a food-borne bacterium connected to the deaths.

Merchant claims they have been contacted by over 500 affected parties.

Two local firms have also entered the action, Falconer-Charney LLP of Toronto and Sutts-Strosberg LLP of Windsor, Ontario.

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