Class Actions Litigation

Wednesday, September 21 to Thursday, September 22, 2011

The Sutton Place Hotel, Toronto, Ontario

Day 1: Wednesday, September 21, 2011

7:30 Registration Opens and Continental Breakfast

Sponsored by:

8:15 Opening Remarks from the Co-Chairs

Norm Emblem
Partner
Fraser Milner Casgrain LLP

Paul J. Martin
Partner
Fasken Martineau DuMoulin LLP

8:30 CROSS CANADA CLASS ACTIONS ROUND-UP: Certification Statistics, New Areas of Litigation, Key Legislative and Case Law Developments

Moderator:

Norm Emblem
Partner
Fraser Milner Casgrain LLP (ON)

Panelists:

Daniel M. Boone
Regional Managing Partner, NL
Stewart McKelvey (Atlantic)

John J.L. Hunter, Q.C.
Senior Counsel
Hunter Litigation Chambers (BC)

Carsten Jensen, Q.C.
Partner
Jensen Shawa Solomon Duguid Hawkes LLP (AB)

Jason Mohrbutter
Partner
MacPherson Leslie & Tyerman LLP (SK)

Sylvie Rodrigue
Partner
Ogilvy Renault s.r.l. (QC)

Michael Schafler
Partner
Fraser Milner Casgrain LLP (ON)

Paul B. Vickery
Director General, Management of Class Actions
and Mass Litigation
Department of Justice Canada (Federal) (Tentative)

Certification rates across Canada are increasing, and the open questions are: How will this trend impact class action litigation strategies? What does this mean for jurisdiction shopping? Should defence counsel be focussing their efforts and resources elsewhere? Meanwhile, new areas of class action litigation activity are developing, and the National Class Actions Taskforce is preparing a draft proposal – expected to be released in Fall 2011. With an ever evolving class action environment acrossCanada, this newly-expanded session will provide you with the scopeand context for this complex area of litigation in Canada today.

Adapting Litigation Strategies to Rising Certification Rates

• Are courts relaxing certification requirements? Which provinces are less likely to certify actions?
• Allocating defence resources: Is it still appropriate to fight certification? When?
• Commencing class actions in Alberta:
  • Potential impacts of Alberta’s move from an opt-in to an opt-out jurisdiction
  • Key differences in Alberta from other opt-out jurisdictions
• Examining recent significant cost and fee awards: National Money Mart and other cases

Opposing Certification: Recent Summary Judgment Motions and Decertification Motions

• Where and in which actions has certification been fought successfully? On what grounds? Examining success in Suncor: Is this an option in non-franchising class actions?
• What strategies can you use to fight certification?
• What evidence may be filed to oppose certification?

Current Status of National Class Actions and Overcoming Ongoing Multijurisdictional Issues

• Solving the national class action conundrum:
  • Reviewing recent progress by the National Class Actions Taskforce
  • Key developments in interjurisdictional protocol: Implications for litigation strategy and management
• Advising appropriately on the national classes issue absent a substantive decision by the courts
• What possible solutions (if any) are being developed by the courts to rectify the national class action issue?
• Unique considerations in launching a national action in Quebec
• Key predicted outcomes arising from upcoming changes to Quebec’s Code of Civil Procedure

Key Developments in Privacy and Employment Class Action Litigation

• Preparing for new actions in the privacy sphere:
  • Assessing the implications of Quebec’s certifi cation of the Banque Nationale du Canada action
  • Exploring common issues raised in litigation against Facebook, Apple and in other actions
  • What are the damages and what is the appropriate form of relief for privacy actions? What are the implications for costs if no damages or loss has been suffered?
• Reviewing key developments in pensions and overtime cases:
  • Implications of seemingly contradictory developments in McCracken v. Canadian National Railway and Fulawka v. The Bank of Nova Scotia

10:30 Networking and Refreshment Break

Sponsored by:

10:45 KEY U.S. & CROSS-BORDER TRENDS: Northbound Impacts and Must Have Developments

Moderator and Panelist:

Laura Cooper
Partner
Fasken Martineau DuMoulin LLP

Panelists:

Hon. Ruben Castillo
U.S. District Judge
United States District Court Northern District of Illinois

Joel S. Feldman
Partner
Sidley Austin LLP (Chicago)

Steve E. Fineman
Managing Partner
Lieff Cabraser Heimann & Bernstein LLP (New York)

Forward-thinking Canadian litigators need to be able to anticipate which U.S. trends and developments will migrate north of the border. Meanwhile, U.S. and Canadian class actions players alike need to understand key distinctions in class action process in both jurisdictions in order to effectively coordinate actions, maximize litigation success, and efficiently use resources.

Canadian Implications of Key U.S. Class Action Trends and Developments

• What U.S. jurisprudence is being followed in Canada and where?
• Which new areas of U.S. class actions activity and trends might be diverted to Canada?
• In which areas of litigation are we seeing more cross-border and parallel actions?

Avoiding Misunderstandings: Key Distinctions in Litigating Class Actions in Canada vs. the U.S.

• Differences between mass tort and multi-district litigation and class actions in the U.S.
• Certification in the U.S. vs. Canada and the use of expert witnesses
• Fundamental differences in the approach to trials

Best Practices for Litigating and Managing Cross- Border Class Actions

• Addressing common Canadian and U.S. counsel cross-border litigation concerns
• Determining cross-border defence strategies
• Managing the cost of conducting investigations in multiple jurisdictions
• Coordinating process, damages, classes, and timing between U.S. and Canadian counsel
• Ensuring that actions taken in one jurisdiction do not jeopardize the action in the other jurisdiction
• Are you entitled to seek production of documents produced in one jurisdiction before you get to production in your own jurisdiction?

12:15 Networking Luncheon for Delegates and Speakers

1:30 SETTLEMENTS THINK TANK: Planning, Negotiating and Structuring Complex Class Action Settlements

Moderator:

Paul J. Martin
Partner
Fasken Martineau DuMoulin LLP

Panelists:

Hon. William J. Cahill (Ret.)
Mediator and Arbitrator
JAMS ADR (U.S.)

Catherine A. Coughlan
General Counsel, Aboriginal Law Service
Department of Justice Canada (Federal)

William G. Horton
Barrister, Arbitrator, Mediator
William G. Horton Professional Corporation

Eric Khan
National Director, Class Action Litigation
Deloitte & Touche LLP

Hon. Layn R. Phillips
Irell & Manella LLP (U.S.)

Charles M. Wright
Partner
Siskinds LLP (Plaintiffs’ Counsel)

Glenn M. Zakaib
Partner
Cassels Brock & Blackwell LLP (Defence Counsel)

In this session, leading Canadian and U.S. mediators, arbitrators, counsel and third party administrators discuss, in the context of theirdirect experience, key issues, strategies and negotiation tactics that work to reach a workable settlement in a complex class action scenario.

• When should settlements be considered – pre-certification or post? Key strategic considerations:
  • Examining the pros and cons of settling too early or too late
  • External complicating factors
  • Costs
  • Implications of lawyer-driven cases on settlement success
• Bringing the parties to the table and conducting class-wide negotiations
• Mediators’ views on which tactics work, which do not, and why
• Obtaining forensic evidence early to improve pre-trial settlement success
• Preparing for and approaching a mediator, arbitrator, or judge sitting in on the issue
• Determining an appropriate settlement structure for complex class actions: Creative examples and benefits
• Key considerations for settling multijurisdictional and cross-border class actions

3:00 Networking and Refreshment Break

Sponsored by:

BREAK-OUT STREAMS (please choose A or B)

STREAM A: CLASS ACTIONS AGAINST PROVINCIAL AND FEDERAL GOVERNMENTS 3:15 Snapshot of Cross-Canada Crown Class Actions Dennis W. Brown, Q.C General Counsel, Crown Law Offi ce – Civil Ministry of the Attorney General (ON) Dale Yurka General Counsel, Regulatory Law Department of Justice Canada (Federal) Recent developments and trends in class actions brought against governments across Canada: What causes of action are being seen and where? Overview of new and anticipated class actions Is there an upward or downward trend in class actions litigation against the Crown? Comparison of certification rates and take-up rates in Crown class actions across the country 4:00 Managing Class Actions Litigation Against the Crown Catherine A. Coughlan General Counsel, Aboriginal Law Service Department of Justice Canada (Federal) Malliha Wilson Assistant Deputy Attorney General, Legal Services Division Ministry of the Attorney General (ON) Does Class Action Litigation Against the Crown Differ From Class Action Litigation Against Other Entities? Are plaintiffs more or less likely to succeed against the Crown than against another entity? What additional defences, resources, and options can the Crown benefit from in conducting class actions litigation? How likely is it that an action will proceed against the Crown? Can the Crown “kill” a proposed class action through legislation? Developments in key causes of action against the Crown: Examining the Crown’s private law duty: The s.5.1(a) cause of action in Imperial Tobacco and other significant actions Regulatory and negligence claims against the Crown Institutional abuse claims Key litigation in respect of Aboriginal issues Environmental class action litigation against the Crown Key Crown Risk Management Considerations Prior to and in the Course of Class Action Litigation Managing communications in highly politicized scenarios Balancing the desire for litigation success with political expediency and public opinion Developing solutions and litigation outcomes that a future government will need to live with Best Practices for Crown Class Action Management Resolving key discovery issues Can new witnesses and information be brought post-certification? Defending multijurisdictional litigation against the Crown: Co-managing litigation between jurisdictions Working with co-defendants from other levels of government or across jurisdictions

STREAM B: SECURITIES AND FRANCHISINGCLASS ACTIONS            3:15 New Developments in Securities Class Actions Alan L.W. D’Silva Partner Stikeman Elliott LLP (Defence Counsel) A. Dimitri Lascaris Partner Siskinds LLP (Plaintiffs’ Counsel) R. Paul Steep Partner McCarthy Tétrault LLP (Defence Counsel) Examining key recent cases: IMAX, Arctic Glacier, Gammon Gold, Timminco Implications of IMAX and Arctic Glacier on the leave test: Standard of leave, standard of proof, defences; Strategic considerations; limitation periods; how the defences apply to individual issues When are limitation periods in Part XXIII.1 claims suspended? When is a global class appropriate in secondary market liability class actions? Effects of U.S. Supreme Court decisions on securities claims brought in Canada by foreign investors; the AIG jurisdiction issue How should common law misrepresentation claims be treated? Should defendants be fighting the leave application under s. 138? Managing issues in cross-border securities actions 4:30 Unique Circumstances in Litigating Franchising Class Actions Jennifer Dolman Partner Osler, Hoskin & Harcourt LLP (Defence Counsel) David Sterns Partner Sotos LLP (Plaintiffs’ Counsel) Assessing trends in franchising class actions across Canada: What are the leading causes of action? When are franchising actions likely to be certified? Where are the vulnerabilities for plaintiffs and defendants? Determining contractual hurdles: Examining the validity of class action waivers Mandatory releases: Implications of the Midas decision Impact of arbitration clauses on franchisees’ right of association Impact of governing law clauses in franchising agreements Key distinguishing elements of franchising class actions: Ongoing franchisee-franchisor relationship issues Opportunity to reform the franchising system going forward Impacts of a class action on day-to-day business Settlement issues in franchising class actions: Preserving brand and promoting peace in the system Restructuring the system through settlement: Who speaks for the franchisees at the settlement table? What is the role of settlement committees? Should franchisees have the right to opt out of a settlement?

5:30 Co-Chairs’ Plenary Remarks

5:45 Forum Adjourns

 

Day 2: Thursday, September 22, 2011

8:00 Coffee Served – Continental Breakfast

Sponsored by:

8:30 Co-Chairs’ Opening Remarks

8:45 MANAGING & CONDUCTING COMMON ISSUES TRIALS: Distinguishing Process and File Management Requirements from Regular Actions

Moderator and Panelist:

Gordon McKee
Partner
Blake, Cassels & Graydon LLP (Defence counsel)

Panelists:

Paul J. Bates
Lawyer
Bates Barristers Professional Corporation (Plaintiffs’ Counsel)

Kirk Baert
Partner
Partner, Koskie Minksy LLP (Plaintiffs’ Counsel)

Crawford G. Smith
Partner
Torys LLP (Defence Counsel)

With few common issues trials having been heard to date, practitioners on both sides of the bar and clients alike are wondering how common issues trials differ from regular actions, what key procedural issues might arise in the course of a trial, and how they can effectively manage the conduct – and expense – of the trial. In this session, seasoned veterans of commonissues trials provide their unique perspectives, insights, and advice.

• Key differences between common issues trials and regular trials
• Are the common issues set out upon certification carved in stone, or does the common issues judge have discretion to amend the issues?
• Key issues that might arise in the midst of a trial
• Management, use, and preparation of documentary evidence in common issues trials vs. regular trials, and between the common issues trial and the certification hearing
• Who assesses damages if liability is found?
• Contrasting common issues trial procedures in Quebec with those found in the rest of Canada
• Plaintiff and defence perspectives on managing common issues trials from a communications perspective
• Best practices for case management of common issues trials: Examples from the Inco litigation and other cases

10:15 Networking and Refreshment Break Sponsored by:

10:30 Improving Take-up Rates in Class Action Administration Through Notice Programs; Troubleshooting Administration Implementation Issues

Moderator and Panelist:

Randy Bennett
Partner
Rueter Scargall Bennett LLP

Panelists:

Anna Vetere
Managing Director
Collectiva Class Action Services, Inc. (QC)

Shannon Wheatman
Vice President
Kinsella Media, LLC (U.S.)

Michael Mooney
Vice President
Crawford Class Action Services

Jonathane Ricci
Trilogy Class Actions Services

C. Tim Rodenbush
President & CEO
International Genealogical Search Inc.

• Assessing take-up rates in Canada and overall success in tracking down class members:
  • Do Canadian notice providers keep statistics? How meaningful are they?
  • Extent to which take-up rates factor into fees applications
• Comparison of experiences in providing notice:
  • U.S. vs. Canadian standards for notice in class actions litigation
  • Coordinating an effective cross-border notice program
  • What can be done to streamline the system in Canada?
• How do major third party administrators and notice providers across Canada differ in terms of their administration of claims?
• What key factors must you have in place to arrive at an agreement on the administration of a settlement?
• Troubleshooting implementation problems:
  • To what extent does an administrator have discretion to interpret problems with the settlement? How beholden are administrators to the positions of counsel?
  • To what extent and how often does the Court get involved?
• Early considerations to avoid common problems associated with the implementation of settlements

11:45 Key Considerations in Litigating Class Actions under the Consumer Protection Acts

George J. Karayannides
Partner
Heenan Blaikie LLP

Julie-Martine Loranger
Partner
Gowling Lafleur Henderson LLP

• Contrasting class actions filed under the Quebec Consumer Protection Act with those filed in Ontario and other commonlaw jurisdictions in Canada
• Recent impacts on and future trends in litigation arising out of new additional warranty disclosure requirements and advertising pricing requirements in Quebec
• Recent Quebec decisions awarding punitive damages without proof of damages: The decision in Riendeau v. Brault & Martineau – is this being seen elsewhere across Canada?

12:45 Networking Luncheon for Delegates and Speakers

2:00 Managing Business and Litigation Risk in Product Liability Class Actions

Peter J. Pliszka
Partner
Fasken Martineau DuMoulin LLP

Mary M. Thomson
Partner
Gowling Lafleur Henderson LLP

• Examining recent substantive issues and developments in product liability actions
• Key developments in waiver of tort in product liability class actions:
  • Examining the implications of the settlement in the Lifescan case (Serhan Estate v. Johnson & Johnson) for the future of waiver of tort litigation: Has waiver of tort become a viable cause of action?
  • How is waiver of tort being considered in the St. Jude common issues trial?
• Determining the availability of damages for psychological harm: Analysis of key recent cases
• Determining potential impacts on class actions litigation in Canada stemming from the new Canada Consumer Product Safety Act (“CCPSA”)
  • Which entities fall within the ambit of the CCPSA and which are exempted? How does this impact the conduct of product liability class actions?
  • What are the new standards for conducting product recalls?
• How should recalls be conducted to minimize the risk and impact of class action litigation?
  • To what extent may practices used by Maple Leaf during the listeriosis crisis be applied elsewhere?
  • Key considerations and options depending on available resources and the individual circumstances of the case

3:00 Networking and Refreshment Break

Sponsored by:

3:15 Competition Class Action Litigation Strategies for an Increasingly Plaintiff-Friendly Environment

Katherine L. Kay
Partner
Stikeman Elliott LLP (Defence Counsel)

David W. Kent
Partner
McMillan LLP (Defence Counsel)

Michael Peerless
Partner
Siskinds LLP (Plaintiffs’ Counsel)

• Is certification a given in anti-trust class actions? Examining key Canadian anti-trust decisions in the last year
• To what extent are anti-trust class actions likely to migrate from the U.S. to Canada in light of new U.S. rules?
• Making sense of the direct vs. indirect purchaser conundrum in price-fixing actions:
  • Do indirect purchasers have a cause of action?
  • Is there a conflict between direct and indirect purchasers?
• Overcoming hurdles in calculating damages where market forces play a role rather than direct damages
• Unique considerations and challenges associated with settling anti-trust cases
• Mitigating the risk of class action litigation against clients that are the subject of anti-trust investigations in either the Canada or the U.S.:
  • How to protect your clients when presenting your case to the Competition Bureau
  • What positive steps can you take to ensure than an investigation does not lead to a class action?

4:15 IN-HOUSE COUNSEL PERSPECTIVES PANEL: Big-Picture Concerns for Managing Risk, Resources and Process in Class Actions Litigation

Sponsored by:

This program can be applied towards 9 of the 12 hours of annual Continuing Professional Development (CPD) required
Moderator:

Don Jack
Partner
Heenan Blaikie LLP

Panelists:

Mark G. Lichty
Partner
Blaney McMurtry LLP

Jonathan Daniel Shell
Assistant General Counsel
Carrier Corporation (U.S.)

Class actions litigation is increasing in volume and moving into new areas of corporate activity. The large-scale and very public nature of class actions litigation brings with it significant risk of damage to corporate reputations and personal liability of directors and officers. This session will draw on the personal experiences of leading U.S. and Canadian in-house counsel on the role of in-house counsel vis-a-vis external counsel, key class action litigation concerns and considerations, and advising the Board throughout the process. Find out how internal and external counsel alike can provide premium, informed advice to their respective clients, manage risk, and control costs.

• How do recent certification trends impact internal decision making at the client level?
• Principal in-house risk assessment and management considerations for existing or anticipated class actions litigation
• Developing and implementing effective communications strategies to handle crises in class action scenarios
• Defining in-house counsel’s big-picture issues:
  • Managing internal litigation resources and budgets
  • Understanding public relations and communications concerns
  • How to make decisions to retain external counsel
• In-house counsel’s expectations of external counsel:
  • How is the litigation managed? Role of in-house vs. external counsel
  • What key issues need to be identified for external counsel by in-house counsel?
  • What are in-house counsel’s cost expectations? How can costs be controlled?
• Managing document discovery, internal holds, and issues around privilege in the context of class actions
• Advising the Board on progress of class action litigation: When should the Board be advised? How much do they need to know?
• Examining insurers’ concerns from the perspective of outside coverage and monitoring counsel:
  • Identifying coverage concerns in the cross-border class action environment
  • Effective communication between policyholder defence and coverage counsel
  • Maintaining privilege while complying with reporting obligations
  • Avoiding insurance-related surprises at mediation and beyond

5:30 Co-Chairs’ Closing Remarks Forum Concludes

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Location:
The Sutton Place Hotel
Toronto, Ontario