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David Gadsden

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David Gadsden represents global clients in complex commercial disputes. He is the Chair of Baker McKenzie's Canadian Class Actions Group and is known for his sound advice on commercial class actions, competition and antitrust matters, arbitration, fraud cases and product liability matters. Clients value David's pragmatic and determined approach to disputes and have described him as "absolutely terrific at bringing across the finish line the most complex and multidimensional issues". David has been recognized by Benchmark Litigation, Legal 500, Best Lawyers Canada, and Lexpert’s annual Guide to the Leading US/Canada Cross-border Litigation Lawyers. He has previously been recognized by Lexpert as a Rising Star. As Chair of Baker McKenzie's Canadian Class Actions Group, David draws on his extensive class action experience, having acted as counsel for defendants and plaintiffs in numerous national and global class action lawsuits involving allegations of anti-competitive conduct, professional service negligence, product liability and securities fraud. David's practice also comprises international and domestic business disputes of all manner, including competition and antitrust litigation, commercial arbitration, business tort and trade secrets claims and product liability matters. David also has deep experience in fraud and financial crime matters. He is trusted counsel on multijurisdictional fraud investigations, including related civil disputes and regulatory proceedings. David has appeared as counsel at all levels of court in Ontario and in international and domestic arbitrations. He has completed the Osgoode Intensive Trial Advocacy Program, as well as the Intensive Advocacy Training Program conducted by the National Institute of Trial Advocacy. David has also lectured in the Osgoode Hall Graduate (LL.M.) Programme.
In AI Washing

Recent SEC Actions Highlight Increased Regulatory Scrutiny over Artificial Intelligence and “AI Washing”

by , , , and 5 Mins Read

On March 18, 2024, the United States Securities and Exchange Commission (the “SEC”) announced that it settled charges against two investment advisers for making false and misleading statements about their purported use of artificial intelligence (AI). This SEC enforcement action marks the latest efforts by securities regulators to combat the adverse effects of “AI washing” and confirms that AI, and particularly “AI washing”, is at the forefront of securities regulators’ minds. What is “AI washing”?…

In Privacy

Ontario Court of Appeal halts “intrusion upon seclusion” claims against defendants whose databases are hacked by third-parties

by , and 3 Mins Read

Introduction On November 25, 2022 the Ontario Court of Appeal released three decisions clarifying the scope of the common law tort for invasion of privacy called “intrusion upon seclusion”. These cases are Owsianik v Equifax Canada Co., Obodo v Trans Union of Canada, Inc. and Winder v Marriott International, Inc. The issue before the Court was “whether a claim for intrusion upon seclusion can succeed against the collectors and custodians of private information (“Database…

In Class Actions

Alberta Court of Appeal contemplates enhanced gatekeeping in class action certification

by , , and 3 Mins Read

In Flesch v Apache Corporation, the Alberta Court of Appeal (“ABCA”) upheld the certification of an employee class action arising out of the cancellation of a long-term incentive compensation plan. This case is significant because the court discussed increasing its gatekeeping function in the certification of class actions, and it serves as a warning to employers who seek to amend or cancel incentive plans. Background In July 2017, the Apache Corporation (“Apache”), an American oil…

In Canada

Canadian Federal Court of Appeal Slams the Door on Buy-Side Conspiracy Claims

by , , and 4 Mins Read

Introduction In Mohr v National Hockey League, 2022 FCA 145, the Canadian Federal Court of Appeal (FCA) dismissed an appeal from a motion to strike a proposed class action claim. The proposed representative plaintiff alleged an anti-competitive conspiracy among professional and major junior hockey leagues. This decision is significant because the FCA confirmed that prohibitions under section 45 of the Canadian Competition Act apply to “supply side” agreements only. They do not apply to “buy…

In Class Actions

Canadian Court Denies Certification in Absence of Evidence of Compensable Loss or a Plausible Methodology for Measuring Class-wide Damages

by 3 Mins Read

Justice Belobaba recently refused to certify a class action arising from the “diesel-gate” auto emissions scandal. In 2015, regulatory authorities announced that certain manufacturers had been installing “defeat devices” in their diesel vehicles to cheat on emissions tests and violate clean air laws. Unlike other class proceedings related to the scandal, this proposed class consisted of owners and lessees of vehicles who sold or returned their vehicles before the scandal was revealed (pre-disclosure owners). At…

In Competition Litigation

Supreme Court of Canada Lowers Bar to Certifying Price-Fixing Class Actions

by , and 9 Mins Read

In Godfrey v Pioneer, 2019 SCC 42 (“Godfrey“), the Supreme Court of Canada has lowered the bar for certifying price-fixing class actions brought under the federal Competition Act, while also allowing new categories of claimants to participate as class members. The decision arose from a class action filed in British Columbia against a group of 42 foreign companies who manufactured optical disc drives and related products. The plaintiff alleged that the defendants conspired to fix…

In Canada

Supreme Court of Canada Lowers Bar to Certifying Price-Fixing Class Actions

by , and 9 Mins Read

CANADA – In Godfrey v Pioneer, 2019 SCC 42 (“Godfrey”), the Supreme Court of Canada has lowered the bar for certifying price-fixing class actions brought under the federal Competition Act, while also allowing new categories of claimants to participate as class members. The decision arose from a class action filed in British Columbia against a group of 42 foreign companies who manufactured optical disc drives and related products. The plaintiff alleged that the defendants conspired…

In Class Actions

UK Class Action Filings Set to Increase as £14.098bn Interchange Class Action Moves Toward Certification

by , and 3 Mins Read

UNITED KINGDOM – A significant development in UK class actions landed today – with the English Court of Appeal issuing a judgment that requires the UK Competition Appeal Tribunal (“CAT”) to reconsider certification of an opt out class action issued against Mastercard on behalf of approx 46.2m people and valued at £14.098bn.  The judgment is published in full here and provides strong guidance to the CAT, indicating that a collective proceedings order will now be…

In Canada

Drip Pricing Concerns Continue to Give Rise to Proceedings in Canada

by , and 3 Mins Read

CANADA – Allegations of “Add-on pricing”, or “drip pricing”, have become a hot topic in recent years as consumers have moved towards making more purchases online. Drip pricing can be thought of as the incremental disclosure of additional fees. Bit-by-bit, these add-ons can cause a discrepancy between the final price of an item and the original listed price. One common example is the addition of airline baggage fees, which can dramatically increase total airfare prices. Other examples of drip pricing include:

  • delivery fees for event tickets;
  • municipal taxes charged by hotels;
  • rental car insurance fees; and
  • bank withdrawal fees.

While the concept of drip pricing has existed for some time, the advent of e-commerce has given rise to increased litigation and regulatory risk for businesses selling online services and products. Website interface design allows businesses to be more flexible in how they display and structure their pricing, however, the same flexibility can lead to pitfalls, prompting consumers to respond with class proceedings based on allegations of deceptive marketing practices.

In Canada

OSC’s Adoption of No-contest Settlement Proceedings Poised to Impact Canadian Securities Class Actions

by and 3 Mins Read

In October 2011, the Ontario Securities Commission (“OSC“) raised the concept of offering no-contest settlements of the sort commonly employed by the US Securities and Exchange Commission (“SEC“). On March 11th of this year, after receiving some sharply divided feedback in months of public hearings, the OSC announced that it was moving forward with the introduction of a policy that would permit settlement of enforcement proceedings without requiring an admission by the respondent of misconduct…