Judge slams trend of ‘grossly overstated’ language in class actions: ‘I suppressed the urge to gag’

Prose was ‘tedious, whiningly-polemic, conceited, pompously preachy, wanting in objectivity,’ says judge

Judge slams trend of ‘grossly overstated’ language in class actions: ‘I suppressed the urge to gag’

In deciding which law firm will proceed with a class action lawsuit, an Ontario judge used the opportunity to scold the class action bar. 

Justice Paul Perell said that class action lawsuits are being written to please class members or “vilify the defendants in the media,” a tactic the Perell deemed unprofessional and “disappointing.”

“[In] reading the materials for the carriage motion, on more than one occasion I grimaced, and I suppressed the urge to gag,” wrote Perell in the decision, Del Giudice v. Thompson, 2020 ONSC 2676. 

“As unfortunately has become too common in class actions, the prose is prolix, tedious, whiningly-polemic, conceited, pompously preachy, wanting in objectivity, and grossly overstated. I could give examples, from this and other class actions but why make the reader retch.” 

Two sets of firms were competing for carriage of the dispute, which centred on an arrested hacker, and companies Capital One, GitHub and Amazon. These parties were allegedly involved in an incident that compromised personal information of an estimated 6 million Canadian Capital One customers

One set of firms, representing plaintiff Rina Del Giudice, included Cambridge LLP, Gardiner Roberts LLP, Hotz Lawyers and Scher Law Professional Corporation; the competing consortium, representing plaintiff David Slapinski, included Du Vernet Stewart, Landy Marr Kats LLP and McKenzie Lake Lawyers LLP.

Perell dinged both groups for breaking the rules in their pleadings, citing 35 paragraphs of the 105-paragraph statement of claim in the Slapinski action, and 120 paragraphs of the 227-paragraph amended statement of claim in the Del Giudice action.

Despite the criticism, Perell said that either law firm could serve the clients well enough in the class action, as both sides achieved “passing grades” in their efforts to win carriage of the case. 

“[It] was a close call as to which action should be granted carriage of the proposed class action,” wrote Perell in the case. 

“The claims and causes of action pleaded in both actions are not fanciful or frivolous and the competing litigation strategies are both reasonable and defensible . . . . although I repeat that neither action is a lock for certification.”

While the claims and causes of action were not that different between the two teams, there was one major difference, Perell said: The Del Giudice team included GitHub and Amazon as party defendants. Perell weighed the choice to include the two companies, noting the companies had “Mariana Trench deep pockets” and were arguably wrongdoers that should be held to account. But excluding them would make the action faster and more manageable, as the two technology companies posed “more extreme litigation risks,” Perell wrote.

“The duty of care in the relationship between a bank and its customers is developed legal territory. The duty of care of a remote Internet service provider or of an Internet chat room provider to a banker’s customer is undeveloped or underdeveloped legal territory,” said Perell in the decision.

Perell ultimately awarded carriage to the team representing Del Giudice, but said he will consider costs “against counsel personally” if the lawyers failed to comply with case management direction.

“Capital One, GitHub, and Amazon will each be formidable foes foe,” Perell wrote. “And there is something to Sun Tzu’s lesson in the The Art of War that ‘In all history, there is no instance of a country having benefited from prolonged warfare, which seems the ambition of the Del Giudice’s Counsel in its ambitious all-fronts, all theatres of war strategy.”

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