Twenty Years Later: What Are the Risks Faced By Plaintiffs’ Counsel, and How Have These Risks Changed?

• Author: Garth Myers and David Rosenfeld
• Pages: 101-117

ccar 10.indb 1001/19/2015 9:09:51 AM

101

TWENTY YEARS LATER: WHAT

ARE THE RISKS FACED BY

PLAINTIFFS’ COUNSEL, AND

HOW HAVE THESE RISKS

CHANGED?

Garth Myers and David Rosenfeld

Abstract: The Class Proceedings Act, 1992 was intended to

promote access to justice. To do so, it uses the availability of

premium fee awards to incentivize lawyers to undertake class

actions. Premium fee awards may be calculated as a percent-

age of the recovery or a base fee with a multiplier applied to

the base fee. This premium is designed to ref‌lect, inter alia, the

inherent risks associated with the conduct of class proceed-

ings on a contingency basis. However, the landscape of class

proceedings litigation has drastically changed since the in-

ception of the CPA over twenty years ago. Class proceedings

have become increasingly more protracted and considerably

more expensive to litigate. This sea change has necessitated

a re-evaluation of the risks confronted by class counsel in

prosecuting class proceedings in order to develop a modern

understanding of the context in which the goals of class ac-

tions are now pursued. This p aper explores the risks current ly

faced by class coun sel with a view to developing a new under-

standing of the context in which class actions are pursued.

ccar 10.indb 1011/19/2015 9:09:51 AM