In the News

Three Dykema Litigators Co-Author Article on Class Action Risks in U.S. and Canada

Fred Fresard, John Thomas, Krista Lenart Discuss Class Action Issues Facing Companies Doing Business in Neighboring Countries

November 21, 2013

Fred Fresard, John Thomas and Krista Lenart—members of Dykema’s Litigation Group whose practices focus on class action, product liability and other complex litigation matters—co-authored an article, “Doing Business in the U.S. and Canada,” that appears in the November 2014 issue of For the Defense, a monthly publication of Defense Research Institute (DRI), the voice of the defense bar.

In the article, Fresard, Thomas and Lenart note that while global corporations have historically considered the U.S. to present the only significant exposure from class action lawsuits, companies are wise not to underestimate the risks associated with class action litigation north of the border.  The number of class action filings in Canada are steadily increasing due to a variety of factors.  Class certification is generally easier to obtain in Canada, Canadian damages law may require companies to disgorge the profits they made on a product or service, and some provinces have the “loser pays” system.  The combination of these factors, say the authors, means that companies’ financial exposure can be just as great—if not greater—in Canada.

In this comprehensive and scholarly analysis, Fresard, Thomas and Lenart describe the differences and similarities between U.S. and Canadian law as they relate to jurisdiction, pleadings, preliminary motions, limitations periods, discovery, class certification, recoverable damages and settlement. The three note that “despite U.S. class action legal reform, companies can still incur enormous costs from defending cases on a classwide basis.”

The three authors conclude that because Canadian class actions present their own set of “significant risks” to corporate defendants, corporate counsel need to have “a plan in place to defend companies from these claims effectively in both the United States and Canada.”

Fresard is the first and only Dykema attorney licensed to practice law in both Canada and the United States. As a Canadian barrister and solicitor, and a U.S. attorney at law, Fresard is actively involved in helping his clients manage cross-border litigation in the U.S. and Canada.  John Thomas is a nationally recognized class action and appellate practitioner who is routinely called upon by Fortune 500 companies to handle their highest exposure matters.  Krista Lenart is an experienced civil litigator with an emphasis on class action defense, complex litigation and product liability litigation and appeals.