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Posts Tagged ‘canadian class action law’

According to this article from The Canadian Press and this one from the Ottawa Citizen, a lawyer in St. Johns, Newfoundland is considering suing the Province of Newfoundland and Labrador on behalf of a would-be class of people injured in collisions with moose.  The theory would apparently be that the government was negligent in introducing moose into the nearly area a century ago, and that it was foreseeable that the introduction of the animals would lead to collisions with Hummers and Silverados.  The human-to-moose ratio in the province is just over 4 to 1.

Not being an expert on the finer points of Newfoundlandian (Newfoundlandish?) law, I cannot comment on the strengths or weaknesses of this case if it does go forward.  However, if the obvious defense strategies, like sovereign immunity, lack of proximate cause, or “come on Judge, you’ve got to be kidding me” don’t work, here’s a more radical possible defense: blame the moose.  After all, if they would just stop procreating, stick to the marshes, or use the crosswalks, then none of this would be happening.

For a more serious comparative discussion of the differences between Canadian and U.S. law regarding governmental liability for tort claims, see this CAB entry dated October 6, 2008.

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Julie Treadman of the American Lawyer published this intriguing article today summarizing her interview with former Milberg attorney Andrew Morganti, who has been working as a consultant for a plaintiff’s class action firm in Ontario, Canada.  Morganti provides his perspectives on the fast-developing areas of securities and antitrust class action law in Canada, opportunities for U.S. class action lawyers to assist or consult with Canadian firms, and cooperative efforts between plaintiffs’ firms in the U.S. and Canada to pursue parallel litigation in both countries.

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While we here in the U.S. continue to litigate class actions over snake oil products and 75 cent charges on our cell phone bills, Canadian class action lawyers have been finding ingenious ways to use class actions to effectuate real social change.  The latest example, according to FP Legal Post,  is a class action filed in B.C. against the University of Victoria on behalf of people who got parking fines after getting booted or towed on university grounds.  The complaint alleges that the University had no legal authority to impose the fines.  This latest suit comes on the heels of a class action filed on behalf of Manitoba drivers who got speeding tickets near construction zones.

 

http://network.nationalpost.com/np/blogs/legalpost/archive/2009/05/28/parking-tickets-challenged-in-class-action.aspx

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Class action suits against governmental agencies in the U.S. and Canada for alleged negligence saw mixed results in a pair of recent rulings this past week, with a favorable ruling for the plaintiffs from a federal trial court in Louisiana and a ruling for the government by an appellate court in Ontario.

As the AP reported on Friday, a federal judge in New Orleans refused to dismiss, on governmental immunity grounds, a class action brought against the Federal Emergency Management Agency (FEMA).  The case has been brought on behalf of a would-be class of Hurricane Katrina victims, who were allegedly harmed as a result of the agency’s inaction and negligence in discovering that trailers that were brought in to provide emergency housing after storm were contaminated with formaldehyde.  According to the AP story, the portion of the court’s order declining to recognize immunity relied on evidence that FEMA officials put “their heads in the sand” rather than conduct testing to find the contamination, for fear that affirmative steps by the agency to determine the existence and extent of the problem would lead to liability for the agency.  The court did agree that the agency’s conduct in making the trailers available to hurricane victims in the first place was an exercise of discretion that should be protected from “judicial second-guessing.”

By contrast, according to a story by The Canadian Press last week (thanks to the blog Beauty and the Breast for the link), the Ontario Court of Appeal recently upheld the dismissal of a would-be class action claim against the Canadian agency Health Canada, alleging negligence in the agency’s regulation of manufacturers of silicone breast implants.  The Court of Appeal reportedly based its decision in part on the reasoning that to allow the imposition of liability for negligence for an agency’s actions in performing regulatory functions within its mandate could have the effect of causing “decreased vigilance” by the regulated industry in ensuring the safety of its own products.

The two decisions must be understood in the context of the different statutes that allow for tort actions against the government in the U.S. and Canada, but the standards under the two laws appear to be similar.  In the U.S., negligence claims against the federal government are governed by the Federal Tort Claims Act, or FTCA.  For a good summary of the FTCA and several of its key exceptions, including the “discretionary function” exception that appears to have been the issue in the FEMA case, see this report to Congress from the Congressional Research Service.  Vancouver attorney Brad M. Caldwell has written this introductory overview of the Canadian counterpart to the FTCA, the Crown Liability Act.  It appears that the recent Ontario Court of Appeal decision turned in part on a special element for evaluating the existence of a duty of care in evaluating negligence claims against the government, which looks to “whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.” 

The two cases may also be distinguished based on the function being undertaken by the agency in committing the alleged negligence.  In contrast to the clearly regulatory function at issue in the Health Canada case, FEMA was carrying out an executive function in providing emergency housing to hurricane victims.

Neither decision appears to have addressed the issue of whether the claims were appropriate for class certification.  Individual fact questions regarding causation and damages would appear to provide a possible barrier to class treatment in the FEMA case, but the court has yet to rule on class certification.

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Here are some blog entries from the week that was that might be of interest to class action practitioners:

Class Action Decisions

Law and Insurance discusses a recent Texas Supreme Court decision holding that a duty to defend was triggered in the context of class actions in which the plaintiffs argued that an alleged product defect in cell phones allegedly could cause brain injury, even though the plaintiffs only sought to recover the cost of a headset as damages on behalf of class members and did not seek damages for actual bodily injuries…

http://lawandinsurance.typepad.com/law_and_insurance/2008/09/cost-of-cellpho.html

… and Point of Law discusses a Pennsylvania federal court decision dismissing a putative class action involving similar claims that cell phones cause brain damage on federal preemption grounds:

http://www.pointoflaw.com/archives/2008/09/angelos-strikes.php

CAFA Law Blog discusses a Rhode Island federal court decision rejecting the “legal certainty” standard for meeting the $5 million amount in controversy requirement under CAFA:

http://www.cafalawblog.com/-case-summaries-short-case-from-small-state-rhode-island-handles-cafa-amount-in-controversy-standard.html

Alaska Employment Law discusses a 9th Circuit Court of Appeals decision upholding sanctions in an FLSA/state wage hybrid class action for the failure to provide Rule 26 damages disclosures for all plaintiffs who opted in to the suit:

http://www.akemplaw.com/wiki/2008/09/04/9th-cir-sanctions-in-hybrid-flsa-opt-in-class-action/

How Appealing and Securities Docket discuss and provide links to a Third Circuit Court of Appeals decision reversing a lower court’s dismissal of a securities fraud case involving statements about the commercial marketability of the drug Vioxx:

http://howappealing.law.com/090908.html#030206

http://www.securitiesdocket.com/2008/09/09/third-circuit-reverses-dismissal-by-lower-court-in-merck-securities-class-action/

Plan Adviser summarizes and provides a link to a recent Iowa federal district court decision denying class certification in an ERISA case filed against a retirement plan service provider on behalf of a would-be class of tens of thousands of 401K plans:

http://www.planadviser.com/article.php/2778

Class Action Defense Blog summarizes an Eleventh Circuit Court of Appeals Decision upholding decertification of a class based on the individualized nature of the damages claimed in a case alleging federal Truth in Leasing regulations:

http://classactiondefense.jmbm.com/2008/09/class_action_defense_casesowne.html

Class Action News

The Complex Litigator reports that a petition for review has been filed in the highly publicized wage and hour class action decision by the California Court of Appeal in Brinker Restaurant Corp. v. Superior Court:

http://www.thecomplexlitigator.com/2008/09/petition-for-re.html

The D&O Diary discusses a securities class action filing against mortgage giant Fannie Mae in the wake of the federal government’s takeover this past weekend:

http://www.dandodiary.com/2008/09/articles/subprime-litigation/first-the-government-takeover-then-the-lawsuit/

Classified provides a summary of recent class action news from the Southeastern U.S.:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=236

THR Esq. reports on the upcoming trial date in a class action filed by former NFL players against the NFL Player’s Association:

http://reporter.blogs.com/thresq/2008/09/class-action-ag.html

PogoWasRight.org discusses reports on a trend in Korea on class action filings resulting from alleged acts of illegal downloading of customer information from publicly available broadband wireless connections:

http://www.pogowasright.org/article.php?story=20080908063543355

Class Action (and related) Commentary

The Race to the Bottom offers more installments of its response to securities class action reforms proposed by the U.S. Chamber of Commerce Institute for Litigation Reform:

http://www.theracetothebottom.org/home/the-chamber-of-commerce-and-excessive-litigation-be-careful-5.html

Drug and Device Law Blog provides a follow up to last week’s discussion of the Multidistrict Litigation (MDL) process:

http://druganddevicelaw.blogspot.com/2008/09/how-long-does-mdl-process-take.html

Class Action Settlements

Overlawyered and The AmLaw Daily report on the $688 million fee award approved for imprisoned lawyer William Lerach’s former firm in a class action settlement arising out of the Enron scandal:

http://overlawyered.com/2008/09/enron-class-action-lawyers-set-to-get-688-million/

http://amlawdaily.typepad.com/amlawdaily/2008/09/coughlin-stoia.html

Life of Brad asks lawyers for help in assessing whether any negative repercussions might come of his decision to do nothing and remain part of a class action settlement:

http://lifeofbrad.wordpress.com/2008/09/03/symantec-corporation-class-action-lawsuit-vs-a-lot-of-people/

Canadian Class Action Law

Morton’s Musings reports on a ruling by an Ontario court allowing a class action to proceed against the Canadian federal government for alleged negligence in allowing “Mad Cow” disease to spread into the Canadian market from England:

http://jmortonmusings.blogspot.com/2008/09/mad-cow-class-action-gets-judges.html

Dipper Chick discusses the use of class actions as a tool by minority party candidates in Canada for seeking ballot and media access in elections:

http://dipperchick.blogspot.com/2008/09/dion-doesnt-get-to-bring-his-personal.html

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Canadian attorney Howard Levitt has an interesting article published today on FinancialPost.com about trends in Canadian employment class action law.  The article offers some practical preventative tips for employers, but also makes a few keen observations about the dynamics surrounding a recent increase in employment class actions in Canada, including this gem: 

It’s a new phenomenon: Roving groups of lawyers searching for corporate conduct deleteriously affecting large groups of employees quickly move to find one employee willing to start a class action on behalf of all.

Many of these lawyers have little or no expertise in employment law.

Levitt’s description conjures images of Canada as the wild frontier of employment class action law.  Certainly, there are many examples of young lawyers who have hit it big in class action lawsuits in the U.S.   But the inexperienced class action lawyers roaming the country in search of class actions like 49ers speculating for gold have long since settled down to cultivate the fertile class action ground south of the border. 

The roving bands have settled into established firms and consortiums of trial lawyers with the expertise, resources, and influence to edge out even the most enterprising of young lawyers.  This often occurs behind the scenes through a process called “private ordering,” politely described in the Federal Judicial Center’s class action Pocket Guide for judges as when counsel competing for the role of lead counsel in a case agree amongst themselves to divide up responsibilities and fees.  Sometimes, however, the struggle becomes more public, as it did when several different groups of firms competed for the role of lead counsel in this recent case.  “Auctioning,” or competitive bidding for the role of class counsel, has also been used in some cases.

So, if you’re a young enterprising class action lawyer in the U.S., you may have to pay your dues a bit before you earn your first private jet.  And for those would-be prospectors thinking about heading north to stake your claims, in addition to a quality gold pan and a sturdy mule, you’ll need to submit an application to the National Committee on Accreditation.

For some online articles discussing the phenomenon of “entrepreneurial litigation” try these links:

http://www.austlii.edu.au/au/journals/MULR/2006/14.html#Heading131

http://www.rand.org/pubs/monograph_reports/MR969/MR969.ch10.pdf

http://www.law.harvard.edu/programs/olin_center/corporate_governance/papers/04.Halfteck.class-action.pdf

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