David W. Kent 

Co-Chair, Class Action Defence, Dispute Resolution, Intellectual Property

Toronto  t: 416.865.7143 david.kent@mcmillan.ca

David W. Kent

Toronto
Brookfield Place, Suite 4400
181 Bay Street
Toronto, Ontario M5J 2T3

t: 416.865.7143
e: david.kent@mcmillan.ca

overview

David is a partner in the firm's Litigation, Competition/Antitrust and Intellectual Property Groups. He is the National Co-Chair of the firm's Dispute Resolution and Class Action practices.

David's practice emphasizes complex litigation involving competition, intellectual property, commercial, regulatory and securities and governance disputes in a wide variety of industries. He has extensive experience in domestic, international and cross-border cartels, conspiracies and class actions. David has been defence counsel in two of the largest Canadian criminal cartel prosecutions and in many of the major Canadian civil cartel cases (including Vitamins, Linerboard, Copper Futures, Rubber Chemicals, Travel Agents, Computer Components (including DRAM, SRAM, Flash, and LCD and CRT Monitors), E-Books and Credit Cards. His class action experience includes precedent setting decisions on a wide range of issues including securities law, cartel jurisdiction, cross-border discovery and class action certification and settlement. David has also advised Canadian and US broadcasters and cable networks and online music services on copyright issues for over 25 years, including issues arising from the use of music on the Internet. David regularly appears before federal and provincial trial and appellate courts and administrative tribunals across the country.

David served as Law Clerk to the Chief Justice of Ontario before rejoining the firm in 1984.


Representative Matters

  • Competition Commissioner v. Visa et al (RPM proceeding before Competition Tribunal – for MasterCard)
  • Credit Card conspiracy class actions (for MasterCard)
  • E-Books conspiracy class actions (for Penguin)
  • Computer Memory conspiracy class actions (DRAM/SRAM/Flash) (for Micron)
  • Gmail privacy class action (for Google)
  • Children's medicines consumer deception class actions (for Novartis) 
  • Cross-border vehicle manufacturers conspiracy class action (for Honda)
  • Cross-border import restriction conspiracy class action (for Mercedes Benz)
  • Copper Futures conspiracy class actions (for JP Morgan/UBS)
  • Rubber Chemicals conspiracy class actions (for Crompton)
  • Vitamins conspiracy class actions (for BASF)
  • Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (for MPTAC) 
  • Copyright Royalty Rate Proceedings (for Canadian Association of Broadcasters, CBC, MPA-Canada, Motion Picture Theatre Associations of Canada, YouTube, Microsoft, Netflix, Pandora)

Publications

Competition Class Actions: The Pendulum Swings Back
BC's Court of Appeal Decertifies "Children's Cough and Cold" Class Action and Confirms that the Business Practices and Consumer Protection Act is an "Exhaustive Code" for the Regulation of Consumer Transactions in British Columbia
Supreme Court of Canada trilogy holds that indirect purchasers may advance class action for recovery of unlawful price-fixing
Canada Chapter in Getting The Deal Through - Private Litigation 2012
the Canadian approach to 'passing on' and indirect purchaser claims
Gatekeepers or Ticket Takers: Canadian and US Courts Diverge on the Role of Evidence in Antitrust Class Action Certification
Gatekeepers or Ticket Takers: Canadian and US Courts Diverge on the Role of Evidence in Antitrust Class Action Certification
Canada Chapter in: Getting the Deal Through - Private Antitrust Litigation 2011
Gatekeepers or Ticket Takers?
Canadian and American courts diverge on the role of evidence in antitrust class action certification
Globalization of Class Actions
Conspiracy Class Action Certification: Canada and U.S. Diverge
Canada
Canada: Private Antitrust Litigation
Canada Chapter in: Getting the Deal Through - Private Antitrust Litigation 2010
Private Antitrust Litigation in Canada
Canada Chapter in: Getting the Deal Through – Private Antitrust Litigation 2008
Getting the Deal Through – Private Antitrust Litigation 2007
Private Antitrust Litigation in Canada
Cross-Border Class Action Settlements: Unwilling Litigants in the U.S. Courts
Conspiracy Class Actions: Evidence on the Motion for Certification
Prospectus Disclosure and the Business Judgement Rule: Lessons from Danier
Private Antitrust Litigation In Canada
Kerr v. Danier Leather ups the ante for class action defendants
Costly Class Action Costs Awards: 'Legal Premiums' Raise The Bar In Ontario
Canada Chapter in Getting the Deal Through - Dispute Resolution 2005
Excerpt from 'Placing a Premium on Prevention'
Cross-Border Class Action Settlements - Can US Courts Bind Canadians?
Canada Chapter in Arbitration World (ed. J.William Rowley QC)
Indirect Purchaser Claims - A Canadian Approach
Indirect Purchaser Price Fixing Claims- A Canadian Approach
Certification of class actions in Canada - has the tide turned for product liability class actions?
Class Actions Canadian Style
Canada chapter in Cartel Regulation 2003: Getting the Deal Through
British Columbia Court of Appeal Rules on Purchasers Entitled to Statutory Cause of Action for Prospectus Misrepresentation

Education

  • University of Toronto, LLB (Hons, Dean's Key) - 1981
  • Carleton University, BA (with distinction) - 1976

Year Of Call

  • Called to the Ontario bar - 1983

Practices

litigation
competition and antitrust
class actions
cartels
copyright
securities litigation
appellate advocacy
administrative law

Industries

media
pharmaceuticals
automotive manufacturers and distributors
information technology
telecommunications

Directorships and Professional Associations

  • Canadian Bar Association
  • Intellectual Property Institute of Canada
  • American Bar Association (Section on Antitrust)

Teaching Engagements

  • Osgoode Hall Law School – Alternate Dispute Resolution (2005-07)
  • Queen's University Law School – Alternate Dispute Resolution (1999-2004)
  • Assistant Program Director – Copyright Master Class – McGill (August 2013)

Community Involvement

  • Casey House – "The 100"

Awards & Rankings

  • LEXPERT and American Lawyer - Guide to the Leading 500 Lawyers in Canada
  • LEXPERT - "Consistently Recommended" for Class Actions, Competition Law, Litigation - Corporate Commercial and Litigation - Directors' & Officers' Liability 
  • The Best Lawyers in Canada - Antitrust/Competition law and Class Actions 
  • Who's Who Legal - Competition Law
  • Benchmark Canada - Competition Litigation and General Litigation
  • Chambers Global - Competition/Antitrust: Litigation, Dispute Resolution: Class Actions (Defence) and Dispute Resolution: Ontario 
  • PLC - "Recommended" for each of Competition/Antitrust and Media and Communications
  • Euromoney - Guide to the World's Leading Competition and Antitrust Lawyers 
  • Martindale and Hubbell - AV

Media Mentions

  • " Judges are unmoved on pre-certification challenges" by Drew Hasselback, National Post, June 2013
  • "B.C. Court of Appeal approves DRAM memory class action", National Post, November 2011
  • "Managing Global Class Actions", Canadian Lawyer InHouse Magazine, September 2011
  • "Copyright bill may spark battle over who owns what", CBC Online, May 2011
  • "Copyright reform", CBC Radio One Business Report, May 2011 
  • "Made in the U.S.A" by Robert Todd, Canadian Lawyer InHouse Magazine, December 2010
  • "Unsettled law" by Kelly Harris, Canadian Lawyer InHouse Magazine, April 2010
  • "The price is right", National Post, December 2009 
vcard
David is a partner in the firm's Litigation, Competition/Antitrust and Intellectual Property Groups. He is the National Co-Chair of the firm's Dispute Resolution and Class Action practices.

David's practice emphasizes complex litigation involving competition, intellectual property, commercial, regulatory and securities and governance disputes in a wide variety of industries. He has extensive experience in domestic, international and cross-border cartels, conspiracies and class actions. David has been defence counsel in two of the largest Canadian criminal cartel prosecutions and in many of the major Canadian civil cartel cases (including Vitamins, Linerboard, Copper Futures, Rubber Chemicals, Travel Agents, Computer Components (including DRAM, SRAM, Flash, and LCD and CRT Monitors), E-Books and Credit Cards. His class action experience includes precedent setting decisions on a wide range of issues including securities law, cartel jurisdiction, cross-border discovery and class action certification and settlement. David has also advised Canadian and US broadcasters and cable networks and online music services on copyright issues for over 25 years, including issues arising from the use of music on the Internet. David regularly appears before federal and provincial trial and appellate courts and administrative tribunals across the country.

David served as Law Clerk to the Chief Justice of Ontario before rejoining the firm in 1984.


  • Competition Commissioner v. Visa et al (RPM proceeding before Competition Tribunal – for MasterCard)
  • Credit Card conspiracy class actions (for MasterCard)
  • E-Books conspiracy class actions (for Penguin)
  • Computer Memory conspiracy class actions (DRAM/SRAM/Flash) (for Micron)
  • Gmail privacy class action (for Google)
  • Children's medicines consumer deception class actions (for Novartis) 
  • Cross-border vehicle manufacturers conspiracy class action (for Honda)
  • Cross-border import restriction conspiracy class action (for Mercedes Benz)
  • Copper Futures conspiracy class actions (for JP Morgan/UBS)
  • Rubber Chemicals conspiracy class actions (for Crompton)
  • Vitamins conspiracy class actions (for BASF)
  • Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (for MPTAC) 
  • Copyright Royalty Rate Proceedings (for Canadian Association of Broadcasters, CBC, MPA-Canada, Motion Picture Theatre Associations of Canada, YouTube, Microsoft, Netflix, Pandora)
publications
April 2014
Competition Class Actions: The Pendulum Swings Back
Competition Bulletin
January 2011
Gatekeepers or Ticket Takers: Canadian and US Courts Diverge on the Role of Evidence in Antitrust Class Action Certification
The 2011 Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada
2011
Canada Chapter in: Getting the Deal Through - Private Antitrust Litigation 2011
Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Private Antitrust Litigation 2011, (published in October 2010; contributing editor Samantha Mobley). For further information please visit www.GettingTheDealThrough.com.
November 2010
Gatekeepers or Ticket Takers?
Canadian and American courts diverge on the role of evidence in antitrust class action certification
Lexpert 2010 Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada
October 2010
Globalization of Class Actions
Association of Corporate Counsel annual conference – October 2010
April 2010
Conspiracy Class Action Certification: Canada and U.S. Diverge
ABA Section on Antitrust - International Antitrust Bulletin
2010
Canada
Arbitration World
2010
Canada: Private Antitrust Litigation
An extract from the 2010 Antitrust Review of the Americas - a www.GlobalCompetitionReview.com special report.
October 2009
Canada Chapter in: Getting the Deal Through - Private Antitrust Litigation 2010
Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Private Antitrust Litigation 2010 (published in October 2009).
October 2007
Private Antitrust Litigation in Canada
The Antitrust Review of the Americas 2008
A Global Competition Review Special Report
October 2007
Canada Chapter in: Getting the Deal Through – Private Antitrust Litigation 2008
Global Competition Review, October 2007
October 2006
Getting the Deal Through – Private Antitrust Litigation 2007
Global Competition Review
October 1, 2006
Private Antitrust Litigation in Canada
The Antitrust Review of the Americas 2007
A Global Competition Review Special Report
Spring 2006
Cross-Border Class Action Settlements: Unwilling Litigants in the U.S. Courts
Article: International Antitrust Bulletin - ABA Section of Antitrust Law
February 2006
Prospectus Disclosure and the Business Judgement Rule: Lessons from Danier
Securities & Public Markets Bulletin
November 2005
Private Antitrust Litigation In Canada
The Antitrust Review of the Americas 2006
A Global Competition Review Special Report
June 24, 2005
Kerr v. Danier Leather ups the ante for class action defendants
The Lawyers Weekly, June 24, 2005
May 2005
Canada Chapter in Getting the Deal Through - Dispute Resolution 2005
Published by Global Competition Review in association with McMillan
January 2005
Excerpt from 'Placing a Premium on Prevention'
Counsel to Counsel - Brief Advice, January 2005
May 2004
Cross-Border Class Action Settlements - Can US Courts Bind Canadians?
"Points North" Column in For the Defense Magazine
March 2004
Canada Chapter in Arbitration World (ed. J.William Rowley QC)
November 2003
Indirect Purchaser Claims - A Canadian Approach
American Bar Association Canadian Law Newsletter, Volume XXXIX No.2
May 2003
Indirect Purchaser Price Fixing Claims- A Canadian Approach
International Bar Association Business Law International
May 2003
Certification of class actions in Canada - has the tide turned for product liability class actions?
Australian Product Liability Reporter, Volume 14 Number 3
February 2003
Class Actions Canadian Style
Corporate Counsel
January 2003
Canada chapter in Cartel Regulation 2003: Getting the Deal Through
London: Global Competition Review, 2002