Inter-jurisdictional class action co-operation moving ahead

Inter-jurisdictional co-operation is likely to result as class action reforms take place in many countries

The class action diaspora gained momentum this past summer as France and Belgium, following the lead of other EU countries such as the Netherlands, both enacted enabling legislation.

Mexico and Chile have also put such legislation in place fairly recently, while the UK and Australia have had legislation that emulates class action regimes for a while.

To be sure, not all class action regimes are of the same ilk. The Belgium legislation, for example, which at press time was expected to come into force this month, provides only for consumer class actions. The dispute must relate to the company's breach of contractual obligations or transgression of consumer protection rules. The causes of action are further limited to cases involving intellectual property, market practices, competition, defect or damages products, insurance and a few others.

To qualify, the damages claimed must result from a common cause and raise related factual and legal issues. The Belgian law also requires plaintiffs show that a class proceeding must be more appropriate than an individual case.

The law is not retroactive and the class can only be represented by certain government-recognized consumer organizations or accredited organizations that have existed for three years and are closely linked to the circumstances of the case.

The French law, known as the Hamon law, has similarities to the Belgium law. As in Belgium, the proceedings are confined to consumer cases and individuals cannot initiate proceedings: only some 16 nationally accredited consumer organizations have that right. In the French scheme, financial or economic damages are compensable, but not pain or suffering.

“EU countries are likely trying to avoid the excesses of the US system,” says Preet Bell in Bennett Jones LLP's Toronto office.

As well, the Hamon Law is an opt-in regime. But because the law contains a unique provision which provides that courts will rule on whether a case qualifies as a class action (what we know as certification) and the merits of the case at the same hearing, class members will know what their entitlement will be before choosing whether to opt-in or not.

“In most of these cases, especially in the civil law regimes, the class action legislation represents incremental change, grafting the regime onto the existing legal structure,” says Michael Eizenga, also in Bennett Jones Toronto office. “The US system has not been so much exported as quarantined and the various reforms fit into various points on the spectrum, depending on the extent to which a country believes private regulatory enforcement should play a role in the justice system.”

Despite the differences among national regimes, there's little doubt that the spread of class actions portends inter-jurisdictional co-operation.

“The fact that products travel across borders and across oceans could well promote broader international cooperation,” Eizenga says. “While you might have legal systems that work differently, the factual matrix is going to be the same. For example, antitrust class actions, which are fairly common today, frequently deal with worldwide conspiracies.”

Michael Peerless of McKenzie Lake Lawyers LLP in London, ON, believes that the proliferation of class action regimes will help level the playing field between plaintiffs and defendants.

“Defendants have always had the benefit of cooperative inter-jurisdictional efforts, and now we'll have a better chance to put our heads together too,” he says.

By way of example, Peerless cites the case of a Scottish counsel who called for help in the Celebrex litigation.

“He told me the defense lawyer refused to turn over any documents, claiming they were under protective order from US courts,” Peerless says. “I helped him find a US website that shows what documents have actually been filed, which allowed him to at least make a case for production of those documents.”

Michael Eizenga also believes that courts will be able to manage international classes and proceedings.

“In Canada, we've found a way to make it work in the national context and even in the cross-border context, so there's no reason why that can't happen on a broader worldwide scale,” he says. “It's all about incremental progress: there was a time when we thought doing an interjurisdictional settlement in two provinces was a big deal.”