Canada: Managing Class Actions For Success Part 1: Blueprinting To Define And Achieve Success

Being named as a defendant in a class action is often one of the most significant (and traumatic) events an organization can face. Many defendants are quick to react, immediately deploying counsel to gear up for a hotly contested certification motion and issuing statements promising a vigorous defence. But is this the correct response? Perhaps, but how can one say a response is the right one if the company has not yet defined what it wants to achieve and how it plans to achieve it.

The defence of a class action is a project. It is a temporary endeavour to achieve a desired result. It has a beginning, it has an end, it has a scope, and it has resources. It has inputs and it has outputs. It will certainly involve people from different organizations and it may involve people in multiple locations. Applying project management principles can therefore help the defence of a class action by increasing predictability, managing costs and ultimately improving the chances of achieving success.

In the first of what will be a multi-part blog series discussing how principles of project management can be applied to the defence of a class action, we address the advantages of employing a clearly defined "blueprinting" phase at the outset of a class action to define and achieve success.

Defining Success

It is important at the outset of any class action to establish what success looks like. Is success receiving a vindicating judgment from the court? Protecting relationships with stakeholders in the class, such as customers, employees, franchisees or shareholders? Avoiding public findings of liability? Avoiding significant financial exposure? Minimizing impact on ongoing business activities? Success may have multiple dimensions: financial, reputational, organizational, to name but a few. Sophisticated parties know that "winning" is a possible definition of success, but it is not necessarily the only one.

Developing a Strategy

Once success is defined, a class action defendant should decide how best to achieve it by developing a strategy. It is self-evident that the defence of a class action is significantly different from other projects, such as building construction or software development, in that achieving success in class action litigation is at least in part contingent on the behaviour of at least two other independent parties: a decision-maker and an opponent. A strategy, then, is the chosen approach for achieving success, taking into account the potential behaviour of these other parties.

In the context of a class action, viable strategies for achieving success could include: attempting to settle, either before or after certification; attempting to defeat certification, in whole or in part; consenting to certification and seeking a favourable decision on the merits; or vigorously contesting certification and, even if certified (in whole or in part), defending the class action on the merits. These strategies are not necessarily mutually exclusive; a defendant could make a strong attempt to defeat certification while simultaneously pursuing settlement.

"Blueprinting" the Case

Success cannot be defined, and a strategy cannot be selected, in a vacuum. It is important to assess the case before defining success and developing a strategy.

To be clear, no sophisticated organization embarks on the defence of a class action without some preliminary assessment of its position. What we are describing is the combination of a number of different activities that may be undertaken at different times during a case and carrying them out at the outset of the case, as part of a single case assessment phase, which we call "blueprinting", with the goal of informing the definition of success and the selection of a strategy for the overall case. Without taking pause at the outset, it is easy for any organization to get caught up in the frenzy of the class action and find itself reacting to events as they happen, as opposed to controlling the litigation.

This blueprinting phase necessarily requires an investment of time, effort and money. Documents may need to be collected and reviewed, witnesses may need to be interviewed, experts may need to be consulted, legal issues may need to be researched, and legal fees and other costs may need to be estimated.

The assessment phase should therefore have clearly defined deliverables. These could include a formal legal opinion on the merits of the organization's position and/or the likelihood of defeating certification, witness statements from key witnesses, preliminary expert reports, a collection of key documents, a preliminary financial analysis of the company's potential exposure to damages, or an estimate of the legal and other costs of a certification motion and other steps in the litigation.

As they are being prepared at an early stage, these deliverables are likely to change or expand as the case evolves and new information becomes known. Sometimes the case to be met doesn't become clear until well after the class action has been commenced, and even then the case can change, amendments made, arguments recast. It is important to remember that the immediate purpose of these early stage deliverables is to help define success and develop a strategy. Keeping in mind this purpose, it is not necessary, and perhaps not advisable, to assess the case exhaustively. The scope of the deliverables should therefore be clearly defined at the outset so that any limitations or qualifications are understood and accepted by both counsel and client and there is alignment on the anticipated costs of meeting the deliverables.

Putting It Together

The deliverables created through the blueprinting phase are valuable inputs into the definition of success and development of a strategy. For example, the discovery of incautiously worded e-mails, a determination that defending the case will require the involvement of multiple executives, or the need to rely on evidence from an individual who is hostile or a poor witness, may all militate in favour of defining success as early resolution. Alternatively, the identification of compelling documents supporting the defence or favourable case law on an important point of law could be used to persuade class counsel to discontinue or settle at an early stage, thus helping with strategy selection.

Besides helping to define success and develop a strategy, the blueprinting phase may also serve a number of other important business purposes by:

  • facilitating reporting to senior executives and/or boards of directors;
  • aligning internal legal and business teams on their respective understandings of the case and the work required to defend it;
  • identifying cost-saving measures that can be implemented at the outset, such as allocating responsibilities for certain tasks to the internal legal group, and
  • facilitating more accurate and precise budgeting of future stages of the litigation, such as certification, discovery, and trial, thus creating opportunities for alternative fee arrangements or other value-based billing options.

The blueprinting phase serves legal purposes as well by:

  • helping the company comply with its obligation to preserve potentially relevant data;
  • facilitating identification of areas where expert evidence may be required;
  • capturing the evidence of key witnesses before memories fade or employees depart;
  • assisting in delivering a formal statement of defence prior to certification, which is increasingly required by case management judges, particularly in Ontario;
  • assessing co-defendant or third party responsibly/liability; and
  • helping with future discovery planning, which is a requirement in Ontario.

Blueprinting and Costs

Spending time and money on blueprinting a case is not necessarily an incremental cost; it largely shifts forward certain legal spend that would otherwise be incurred during the certification motion, pleadings, discovery or before trial. Case assessment is also very suitable for an alternative fee arrangement, such as a fixed fee or blended rate, because it has a clear scope, a clear budget and a clear deliverable.

Blueprinting may also help to avoid legal costs. For example, if it leads to the conclusion that the probability of certification is high, that may favour a strategy of negotiating certification on consent and avoiding the cost of vigorous but ultimately unsuccessful opposition to the certification motion. If it reveals a weak case or other costs to the business from ongoing litigation, that may favour a strategy of pursuing early settlement to avoid an adverse judgment or the other costs.

While an important first step, blueprinting should not end at the beginning of the case. Class counsel may change their theories, the legal landscape may evolve, key witnesses may leave the company, and new business exigencies may arise. Whatever happens, however, a well-executed assessment at the outset of a class action positions the defendant to be agile in response to future developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions