Posts Tagged ‘ Class Actions

Merry Christmas and a Happy Sue Year: Children Toys to Die For This Holiday Season

The holiday season has finally arrived! The snowflakes are falling, and the colourful glow of festivities emanates through the brisk winter air. The jingling bells of reindeers are not far off as Santa Clause makes his way to town…but with a major attitude problem this year. The question is why? Have his pet reindeers’ food supply been tainted again by another Menu Food contaminant? Have his corporate security investments plummeted in value in another frauding of the masses? Or are his little elves in the North Pole demanding compensation for overtime pay? Whatever is driving his temper, let one thing remain clear, the quality of his toys this year are cause for concern, and somebody’s going to need a good lawyer (preferably with class action experience).

Deceptive and dangerous toys are managing to make their way to a store shelf near you. It’s no surprise to most consumers that safety concerns associated with lead contaminated toy products have been quite serious given the great level of media attention the issue attracted in recent memory. However, according to the consumer watchdog group W.A.T.C.H., World Against Toys Causing Harm Inc., it is all too common for the same toy hazards to play out year after year.

Some of the common toy hazards consumers should be mindful of include those related to choking, electric shock, strangulation, falling/tripping hazards and flammability tendencies to name but a few.

The “10 Worst Toys of 2009” List has been released.  Making the list this year include the Disney Pixar Wall-E Foam Rocket Launcher. Inconsistent labeling and high air pressure release cause potential for eye and other impact injuries.

Also making the list was the Dark Knight Batman Figure, which stands at 30 inches tall, and includes two 1-inch ears made from pointed rigid plastic. This raises concern for potential blunt impact and penetration injuries. There are currently no warnings included on the package.

Another toy to die for this holiday season is the Pucci Pups Maltese. These mimic soft cute puppies as the name implies. However, the puppies come with a 35-inch leash, which poses potential for strangulation and aspiration. The warnings are only advisory in nature. It is also important to note that the industry standard in string length for cribs and playpens is 12-inches.

Speaking of cribs, they have also been a big cause for concern this year. Recently, Stork Craft Manufacturing, a baby crib manufacturer based in Canada recalled 2.1 million cribs in the United States, and nearly 1 million cribs in Canada. At least four infants have suffocated in the drop-side crib design, which consists of the crib side moving up and down to allow parents to carry the infant in and out of the crib easier. The problem arises when the drop-side malfunctions leaving extra space between the mattress and the drop-side where an infant can get caught.

A national class action in six jurisdictions on behalf of all U.S. and Canadian consumers who purchased Stork Craft Manufactured  cribs (sold under various brand names) has recently been launched.

As we enter 2010, stay tuned for more class action news on the toy and baby product front.

Outsourcing Legal Services In Class Proceedings Not “Inherently Wrong” Rules Ontario Court

As class proceedings in Canada continue to bloom from their relative infancy, the courts will play a key role in guiding the future directions of such proceedings. Now is the time for courts in Canada to lay the foundations for what is sure to become a class action packed future.  As part of this class action expansion into the Twenty First Century, I will focus on the development of the jurisdictional boundaries at play  on the issue of collaborating with foreign counsel when prosecuting a class action proceeding in Ontario.

In the recent Ontario carriage motion of Sharma v. Timminco Ltd., both Kim Orr and Siskinds, two prominent class action plaintiff firms were squaring off over which firm should have carriage of a class action involving similar subject matter,that being the misrepresentation by Timminco Ltd. about  its ability to produce solar grade silicon, causing its share value to plummet as a result. One of the issues under consideration was whether Kim Orr’s desire to collaborate with a foreign law firm if it were granted carriage would be appropriate.

In the words of Justice Perell, “there is nothing inherently wrong with Ontario class counsel who are acting for plaintiffs in obtaining services from foreign law firms so long as there is no interference with or usurpation of the lawyer and client relationship between the Ontario lawyer of record and his or her clients”. It was also held that so long as  foreign firms do not assume the “de facto” role of lawyer of record, obtaining such services are appropriate. However, Justice Perell also stated that the foreign firm cannot have a proprietary interest in the class proceeding.

On the facts of this case, the foreign firm obtained by Kim Orr  was merely hired as an advisor drawing from its own experience. It was not controlling the litigation, and only served an advisory role as well as providing investigative and documentary management services.  This decision is significant, as it may encourage Canadian plaintiff firms to retain the expertise of foreign firms when prosecuting class actions.

Many foreign firms may have useful insight to maters at play in Canadian class proceedings as they may have already litigated a parallel class action of a similar nature in their own jurisdiction. In addition, class actions in the United States for example have been around longer than in Canada so obtaining American law firms may add depth to Canadian plaintiff counsel’s approach.

It is not uncommon for defendant’s counsel in Canadian class actions from obtaining legal advice from foreign firms. However, the controversial distinction that arises when plaintiff’s counsel attempts to follow suit is that unlike in the case with corporate defendants who  can have a pre-existing solicitor client relationship with foreign law firms, plaintiffs’ situations tend to be different. This is because a lawyer representing a  large class of plaintiffs in Ontario who then assigns the lawsuit to foreign counsel with no connection to the case creates dilemmas with unfair fee splitting, and  is viewed with more caution on public policy grounds. However, this decision seems to clarify the balance of what degree of involvement foreign counsel may have going forward.

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