Like cyber regulations, corporate data breach incidents tend to affect people across multiple jurisdictions. For multinational companies, this means the prospect of class action lawsuits across numerous countries. Counsel engaged in such wide-ranging class action data breach cases often need to navigate the nuances of each country's legal culture. And it's no easy task.

At the Baker & Hostetler's “Cross-Border Data Breach Litigation Settlements” webinar, legal and class action professionals highlighted the challenges of multinational data class actions, and offered advice on how best to approach, and prepare for, such cases.

Here are three considerations counsel needs to be mindful of when engaging in multinational data breach class actions:

1. Settlement strategies don't travel well.

For defense counsel in data breach class actions, the goal oftentimes is to get to a settlement for their client. And in the United States, there are some tried-and-true strategies to achieve this. “We've been partially winning on dispositive motions,” said Casie Collignon, partner at Baker & Hostetler.

If a judge allows such motions, which essentially seek to dismiss the claims of a certain “group of the plaintiffs,” she said, “this can be a trigger for settlement.”

But if that does not work, “another pressure point can be discovery,” Collignon added. Through discovery, defense can “really go after injury allegations” to see how a data security incident, such as a breach of health care data, specifically led to some injury, such an identity theft or financial loss.

Making those connections, she said, can be burdensome and complex, and motivate the opposing side to settle.

But while such strategies may prove successful in the United States, defense counsel shouldn't expect their strategies to work in other international jurisdictions where a data breach affected additional consumers.

In Canada, for example, “dispositive motions are relatively rare. If they happen at all, they are certainly not routine,” said W. Michael Osborne, partner at Toronto-based Affleck Greene McMurtry.

For the most part, such motions are not needed in the country, where damage amounts in class action suits are far more conservative than in the United States. “Class actions in Canada almost uniformly settle,” he said. “The settlement rate here is close to 100 percent.”

2. Coordinated cases are still separate actions.

Since data breaches in multinational corporations can affect consumers around the world, class action lawsuits happening in different countries sometimes need to be coordinated. But this doesn't mean the suits are necessarily connected. In fact, oftentimes, they are completely separate.

Collignon, for example, noted that there were data breach class action suits against Home Depot in both the United States and Canada. The suits, which were triggered by a 2014 cyber incident at the company, eventually settled out of court.

But while both the U.S. and Canadian class actions “required coordination of the settlement because the Canadian settlement trailed the U.S. settlement,” they had different settlement terms, and defense counsel in both countries had to send out separate notices to potential victims, she said.

What's more, “neither settlement referenced the other even though there was behind-the-scenes coordination,” Collignon added.

Osborne explained that there was a simple reason for that: “They didn't need to coordinate. It's a separate settlement. There is no need to link it to approvals in the U.S., but that's not to say it couldn't ever happen that way.”

He added that while “there is coordination at the court level in some areas,” between the United States and Canada, it does not generally extend to class actions.

3. Notice requirements aren't always standardized.  

In the United States, the Federal Rules of Civil Procedure (FRCP) Rule 23 mandates when and how to issue notices to potential plaintiffs in a federal class action. Specifically, the rule describes the types of information that need be included in notices, such as the nature of the action, and the claims and issues at play, and requires that potential plaintiffs should be notified through a “reasonable effort.”

Patrick Ivie, senior executive vice president of class action services at Kurtzman Carson Consultants, explained that the standard of “reasonable effort” was clarified in U.S. case law to include “adequate reach, adequate notice—which concerns the design and content of the notice—and adequate time and ease of response.”

But while such requirements for class action notices are well established in the United States, they may be more ad hoc and circumstantial in other countries.

David Weir, senior vice president of Business Development at RicePoint Administration, explained that in Canada, courts set down notice requirements on a case-by-case basis. Among other factors “notice plans are approved based on the facts, the cost of giving the notice, the size of the claim, and the size of the individual claims,” he said.

Plaintiffs counsel, therefore, need to be familiar with the differences in notice requirements in different jurisdictions, which extend not just to what legal requirements such notices have, but oftentimes what languages they need to be written in as well.

Because Canada is bilingual country, Weir said, the notices and legal services in his country need to be able to serve the French-speaking local population at any given time.