Global Strategies and Techniques for Defending Class Action Trials: Defending the Global Company in Multinational Litigation

CLASS ACTIONS and mass claims have been part of the litigation landscape in the United States for many years. While class actions have become the subject of widespread criticism in their country of origin, they have been embraced by some other countries, in which the experience with class legislation continues to develop, and where this mechanism has been viewed by some as a positive means of collective redress. As a result, mass drug and device cases commenced in the United States have led to multinational class action litigation. The absence of any international regime like the Multi-District Litigation (MDL) system in the United States means that the burden of coordinating such litigation falls on the shoulders of the defense team as class actions become more commonplace as an outgrowth of mass litigation in the United States. Recent experiences in Canada and Australia confirm the increase in class action activity. Recent appellate decisions in some common law provinces of Canada, particularly in Ontario, have encouraged Canadian judges to more readily certify class actions in those provinces, particularly in cases involving personal injury. Similarly, recent trial level and appellate court decisions in competition law cases threaten to erode the distinction between direct and indirect purchasers by suggesting the use of class proceedings legislation to provide a mechanism to calculate damages on a class-wide basis and assess damages on an aggregate basis. These developments, together with the tendency in some provinces of Canada, particularly Ontario, to certify, without first determining whether or not it exists, an undefined and uncertain alleged cause of action named waiver of tort as a common issue in many products liability cases, highlights the propensity, at least in some of the common law provinces, towards recognizing the possibility of liability based on a cursory review of the plaintiffs' allegations as a basis for certification. (3) The increase in class action activity in Australia can be linked to the fact that there is no certification requirement or certification hearing. All that is required to commence and maintain class proceedings is that the lead plaintiff assert there are seven or more plaintiffs who have claims against the same defendant, that the claims arise out of similar or related circumstances, and that the claims give rise to substantial common issues of law or fact. These assertions are then incorporated into the originating process which is then filed and served, and a class action is underway. It is then open to the defendant to move to strike the class action, but Australian judges have so far been loathe to consider such motions early in a proceeding before the issues and relevant points of evidence have been clarified. If a personal injury claim is denied certification in the United States, it should not be assumed that class proceedings will not be certified elsewhere. The absence of any certification requirement in Australia means that procedural matters like document production and discovery may have to be addressed earlier in a class action there than would be the case in a class action in the United States. In Canada, where broad document production and discovery are generally postponed until after a class action has been certified, there are commonly extensive depositions, including expert depositions, as part of the certification process. The court may also order early discovery and document production on matters related to certification as part of the certification process. Multinational litigation also needs to accommodate matters such as forum non conveniens applications in different countries, the possibility of simultaneous depositions of company witnesses in different countries, expert depositions and different evidentiary rules, procedure and substantive law. It is not possible in this paper to consider all of the issues likely to arise in hearings and trials in multinational litigation. …

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