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Globalization Aids Plaintiffs In Cross-Border Litigation

Soon after Air France Flight 358 crashed at Toronto's Pearson International Airport in August, Mary Sciavo of Motley Rice, the U.S. firm that made its reputation representing plaintiffs in asbestos litigation, showed up in Toronto making a considerable splash on local television with her comments on the airline's liability.

Within three days of the crash, Toronto's Will Barristers had filed suit against Air France in Ontario Superior Court. The Motley Rice Web site has "Motley Rice and co-counsel Will Barristers" as the plaintiffs' lawyers.

Other American plaintiffs' firms also are establishing their presence in Canada. Indeed, one top U.S. plaintiffs' firm, Lieff Cabraser Heimann & Bernstein, already has secured an "affiliate counsel" relationship with Toronto's Rochon Genova, a move that led to multibillion dollar parallel securities class actions against Nortel Networks.

"The number one trend in Ontario is an attempt to leverage U.S. class action lawsuits using the same factual and expert evidence upon which an American action is based," says Robert L. Armstrong, a litigation partner at Ogilvy Renault's Toronto office who practices regularly in the cross-border litigation arena.

Much of the reason for this lies in the fact that nine out of 10 Canadian provinces now have class action legislation, as opposed to the situation in 1992, when only Quebec allowed class actions. More significantly, class action legislation in Ontario, which is home to 90 percent of Canada's capital markets, has now had time to mature since its enactment in 1993.

Inevitably, Canadian plaintiffs' lawyers have drawn on the American experience. "The percentage of class proceedings that are copycat actions is going up," says Deborah Glendinning, a partner at Osler Hoskin & Harcourt.

But it's not just the Americans that are crossing the border. The traffic goes both ways, and it's creating quite a jam. Just ask those involved in the Enron and Hollinger debacles, where the Canadian and American presences and legal systems have become inextricably intertwined.

CBIC Pays Up

When the University of California and a host of American pension funds sued some of the nation's most prominent financial services firms in the wake of the Enron debacle, the presence of the Canadian Imperial Bank of Commerce (CBIC) among the defendants was barely a footnote in the proceedings.

Although CIBC is Canada's fifth largest bank, its size and assets pale beside the likes of J.P. Morgan Chase & Co. and Citigroup Inc. So when J.P. Morgan Chase paid

$2.2 billion in June as its contribution to a settlement, followed quickly by a $2 billion payout from Citigroup, the action in the litigation appeared to have climaxed.

But there was bigger news to come.

In early August, CIBC kicked in an astonishing $2.47 billion, the largest payment so far in the litigation. The settlement was equal to the entirety of the bank's profits in 2004 and 10 times the reserve the bank had set aside. The bank's press releases suggested that the alternative--a jury trial in Houston--was the greater of the two evils.

Although trading between the U.S. and Canada has been a significant feature of both economies, globalization has forced Canadian companies to move beyond their domestic roots to establish themselves internationally--with a large number expanding to the U.S. As they do so, these companies are becoming targets in American litigation.

"Globalization means that corporations' malfeasance transcend national borders," says Joel Rochon, a name partner at Rochon Genova. "It's time for the plaintiffs' bar to address this."

By all accounts, that's just what it is doing, producing an ever-more complex jurisdictional and procedural legal maze around U.S.?? 1/2 Canada economic integration--one that makes it difficult and costly for defendants on both sides of the border to resolve litigation with any finality.

Nowhere is this more apparent than in the proceedings surrounding the fall of Conrad Black's multi-jurisdictional empire.

A Royal Mess

From the outset, the Hollinger litigation was destined to be the mother of cross-border complexity.

A Canadian who gave up his citizenship to accept a British peerage in 2001, Conrad Black controls Ravelston Corp., a privately held Canadian company that owns a controlling stake in Hollinger Inc. That company is the Canadian parent of U.S.-based Hollinger International, publisher of the Chicago Sun-Times. Before Black's fortunes changed, the directorships and management of all three companies were interrelated.

So when Black lost control of Hollinger International in early 2004, it wasn't long before his Canadian companies came under the microscope. In October 2004, Justice Colin Campbell of the Ontario Superior Court appointed Ernst & Young to investigate whether anyone benefited improperly from "related party" transactions between Hollinger Inc., Ravelston and their directors and officers, including Black and David Radler. From that point on, conflicts between the legal systems have permeated the proceedings.

To begin with, Black and Radler have resisted Canadian subpoenas on the grounds that Canadian laws against self-incrimination wouldn't protect them against use of their testimony by American prosecutors. Following a hearing in early September, the Ontario Court of Appeal reserved its decision on whether to force them to testify.

Meanwhile, American prosecutors and plaintiffs in the class actions can only sit and wait to see whether Black will have to take his turn on the hot seat in Canada, possibly providing information to support their investigation. Any testimony from Black in Canada would create quite an uproar because he already has invoked his Fifth Amendment Rights in the U.S.

Similarly, after U.S. prosecutors charged Ravelston with five counts of mail fraud and two counts of wire fraud in August 2005, RSM Richter Inc., the receiver appointed by the Ontario Superior Court of Justice when Ravelston filed for bankruptcy in April 2005, refused to accept service of the indictment on behalf of the company.

In early October, Ravelston finally agreed to plead not guilty, but not before Eric Sussman, an assistant U.S. attorney involved in the case, accused Ravelston of acting like a "fugitive from justice." That prompted Jim Dube of Blake Cassels & Graydon, a Canadian insolvency lawyer involved in the case, to lambaste "some overzealous assistant U.S.

Attorney in Chicago" for failing to show "proper respect" for Richter, the court's appointee.

As if that wasn't fractious enough, even Hollinger's insurers got caught in the cross-border shenanigans.

More To Come

American Home Assurance and Chubb Corp. were unfortunate enough to have extended $100 million of D&O insurance to the Hollinger companies and their directors. The insurers tried to cap their liability by agreeing to a $50 million settlement with Cardinal Capital, which led a class action in the Delaware courts.

The difficulty was that there was a parallel class action north of the border. "The Hollinger class action in Canada is a dead-to-rights copy of the American action," says J.L. McDougall, a senior litigation partner at Fraser Milner Casgrain's Toronto office.

If the Delaware court approved the settlement, then American Home Assurance and Chubb Corp. would be off the hook--but only in the U.S. Despite the $50 million payment, it might still be liable for the entire $100 million in the Canadian lawsuit--especially since the companies purchased their policies in Canada.

"All the D&O insurance was arranged in Canada under one umbrella for all the companies," says Don Jack, a litigation partner at Lerners, who represents former Hollinger director John Boultbee.

After protracted negotiations, the parties agreed to let Justice Colin Campbell of the Ontario Superior Court, who is overseeing the Canadian class action, decide the issue. But the proceedings continue to be mired in procedural wrangling--cross-border and otherwise--that shows no signs of ending.

"If this keeps up, legal fees will eat up the whole $100 million in coverage in no time at all," Jack says.

If the growing co-operation among plaintiffs' firms on both sides of the border is any indication, however, cross-border litigation will devour a whole lot more than that as corporations incur exponential legal costs ensuring that the settlements they achieve cap their exposure with finality.

Unfortunately, there's no sign that the cross-border litigation treadmill is slowing. Indeed, U.S. plaintiffs' attorneys swarmed the American Trial Lawyers' Association conference held in Toronto in July.

"There was a whole contingent intent on pinning down the Canadian players," says Won Kim of Toronto's Roy Elliott Kim O'Connor.

You can bet they weren't there to talk about hockey or C?? 1/2 line Dion.

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Julius Melnitzer

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