Updates

FLIGHT PS752 CLASS ACTION

Updates About This Class Action Lawsuit

  1. On January 20, 2020 we commenced the putative class action by filing a statement of claim against Iran, the Islamic Revolutionary Guard Corps and the Ukrainian Airline concerning the downing of Flight PS752. Subject to court approval, New York litigation funding company Galactic Litigation Partners LLC will fund the legal effort.
  2. On or about January 31, 2020 the Ukrainian Airline appointed counsel to defend the putative class action.
  3. The Statement of Claim has also been sent to Ottawa for service on the Iranian defendants.
  4. On February 19, 2020 the Court assigned the putative class action to a Judge for case management. An initial case management conference has been scheduled for March 2020.
  5. On February 28, 2020 the UIA served a Notice of Intention to Defend the Class Action.
  6. Link to Flight PS752 Class Action - March 2020 Updateفارسی
  7. On September 1, 2020, the Canadian Government served the Statement of Claim on the Iranian defendants. Certificate گواهی رسمی
  8. On September 21, 2020, the Court approved the the Funding Agreement. Decision حکم دادگاه
  9. Link to Flight PS752 Class Action - October 2020 Updateفارسی
  10. On November 9, 2020, the Court granted carriage to the class action. Decision and Order دستور
  11. On January 11, 2021, the Court noted the Iran Defendant in default for failing to file a Statement of Defence despite being served under the State Immunity Act. Document
  12. On January 29, 2021, the Court noted the Islamic Revolutionary Guard Corps (IRGC) Defendant in default for failing to file a Statement of Defence despite being served under the State Immunity Act. Document
  13. On February 16, 2021, the Court indicated that it will certify the Flight PS752 class action. Endorsement to follow.
  14. On February 22, 2021, the Court granted certification of the Flight PS752 class action. The Court’s order and Notice of Certification will be posted once they have been approved by the Court. We look forward to prosecuting this class action on behalf of the entire class to get justice for those who lost loved ones on Flight PS752.

Questions About the Class Action Lawsuit

Many people have questions about the class action lawsuit.
We will take steps to keep you informed as this lawsuit progresses.

1. What is a class action?

A class action is a special type of lawsuit that allows defined groups of people who share common claims to bring a single action against the same defendant(s). A single person (or several persons) is appointed by the court as a representative plaintiff and advances the lawsuit on behalf of the group (the “Class” or “Class Members”). The lawyers who represent the class are called Class Counsel.

2. What is the UIA Flight PS752 Class Action about?

This action arises from the January 8, 2020 airplane crash of Ukraine International Airlines Flight PS752 travelling from Tehran, Iran to Kiev, Ukraine, which resulted in the death of all 176 passengers and crew on board (“Passengers”), including 55 Canadian citizens and 30 permanent residents. A total of 138 individuals were travelling to Canada as their final destination. Iran has admitted to shooting down the airplane with surface-to-air missiles shortly after takeoff during a period of heighted tensions with the United States.

3. Why you have launched the UIA Flight PS752 Class Action?

We have launched this class action to bring justice and compensation to the families affected by this horrible tragedy. While no amount of money can replace the lives that have been lost, we aim to hold both Iran and Ukraine International Airlines accountable and assist the families left behind with the emotional and financial fallout from the loss of their loved ones.

Our hope is that, through this class action, the families can achieve a measure of peace and closure, and steps will be taken by the defendants to prevent a tragedy of this kind from ever happening again.

4. Who are the defendants?

This action has been commenced against Ukraine International Airlines PJSC, the Islamic Republic of Iran, the Islamic Revolutionary Guard Corps (the “Iran Defendants”), and John Doe Missile Operator. The Iran Defendants have been noted in default by the court. The allegations against them in the statement of claim are deemed to be true by the court.

5. Can you sue a country such as Iran?

Yes, Iran is a properly named defendant in this action. The Iran Defendants charge fees for use of the airport and airspace, that is a ‘commercial activity’. When a foreign state engages in commercial activity, they risk losing state immunity. In November 2020 the Ontario Superior Court of Justice agreed – the decision is here. In January 2021, the Ontario Superior Court of Justice noted the Iran Defendants in default. This means that the allegations against the Iran Defendants set out in the Statement of Claim have been deemed to be true.

6. What is a representative plaintiff?

A representative plaintiff is an individual who is appointed by the Court to represent the Class in a class action. Representative plaintiffs provide instructions to Class Counsel on how to proceed with the action, and also provide their own personal evidence in support of certification, and at the common issues trial. Representative plaintiffs are required to act in the best interests of the Class at all times.

7. Who are the representative plaintiffs in the UIA Flight PS752 Class Action?

The proposed representative plaintiffs for the Passenger Class are Omid Arsalani in his capacity as estate trustee for the estate of Hiva Molani, and Fatholla (Vahid) Hezarkhani, in his capacity as administrator of the estates of Naser Pourshaboshibi and Firouzeh Madani. The proposed representative plaintiff for the Family Claimant Class is Habib Haghjoo.

8. Who is included in the proposed Class?

The proposed class definition includes the estate of each Passenger (“Passenger Class”), and each Passenger’s family members, including spouse, parent, step-parent, grandparent, brother, sister, child, adopted child, step-child, grandchild, and any other person for whom the Passenger stood in the place of a parent (“Family Claimant Class”). You can contact us if you are unsure if you qualify to be a Class Member here.

9. What do I need to do to join or sign up for the UIA Flight PS752 Class Action?

If this action is certified as a class proceeding, everyone who is included in the class definition will automatically be part of the class action unless they choose to opt out and follow the specific opt out procedures set by the Court.

10. What are the advantages of participating in a class action instead of beginning my own lawsuit?

(a) Class actions are cost efficient for class members. Individual legal fees for class members are consistently far less than if a class member were to sue on their own. Class members do not pay any legal fees to be a part of the class action while it proceeds through the common issues stage. However, unlike in individual actions, all legal fees in a class action must be approved by the court. If a class action proceeds to individual issues, or a settlement, individual class members may be charged legal fees in the form of a percentage of their recovery.

(b) Class actions provide leverage and strength in numbers. The collective nature of a class action, and sheer number of claims, incentivizes a serious approach to the litigation by defendants, and, given the potential for high damage awards, can, at times, incentivize a faster end to the action through settlement.

(c) Class actions are often easier for individual class members, as they do not have to take on the stress or involvement of advancing their own action, or the financial and legal liability of suing on their own.

11. If the representative plaintiffs win the class action, how will class members receive compensation?

If found liable, we expect to recover payment from Ukrainian International Airlines and/or its insurer. Recovering payment from the Iran Defendants may be more complex. Our team includes lawyers that have successfully enforced court orders for payment of money against the Iran Defendants here in Canada and around the world. The costs of these ‘enforcement efforts’ are covered by the court approved Funding Agreement. It is also possible that state-to-state discussions will result in payment of the court order. There are historical precedents for this happening, for example the US$2.7 Billion payment Libya made for Pan Am Flight 103.

Amounts payable to the passenger’s estate are to be paid out under estate law (eg per the deceased’s will). Amounts payable to the family members under the Warsaw Convention and the Montreal Convention are paid out to those family members based on each person’s individual damages claim.

12. If you lose the case, do Class Members need to pay for legal fees?

No. Class counsel and the Representative Plaintiffs have entered into a court approved agreement with a litigation funder, Galactic Litigation Funders, (the “Funding Agreement”). Galactic has agreed to pay our legal fees on a ‘pay as you go’ basis and any costs to the defendants in the unlikely event we lose. The decision approving the Funding Agreement can be read here.

13. What is a certification motion?

The certification motion is typically the first procedural step after a class action has been started. Under Ontario law, class counsel must demonstrate to a judge that the proposed action meets the procedural requirements to continue as a class action, including that a class action is the preferable procedure for the claims advanced. Certification is not a substantive motion, and is not a decision on the merits of the underlying claims. If a class action is not certified, individual class members may still proceed with individual claims.

The certification motion is currently scheduled for February 16, 2021.

14. In case of a successful class action in the court and in view of the fact that the Iran Defendants have no assets to seize in Canada, what guarantee do we have that we will receive any compensation from the Iran Defendants?

We are confident we will be able to enforce the judgment against Iran. We are working with lawyers that have successfully received money from the Iran Defendants here in Canada and around the world. The costs of these ‘enforcement efforts’ are covered by the Funding Agreement.

15. Is it possible to join the class action lawsuit after it gets certified at the court? Are the terms and conditions the same as before certification?

If you meet the class definitions (above), you are automatically part of the action, and automatically a class member, and do not have to join or sign up. After certification, there will be a period of time during which class members may choose to remove themselves from the action by opting out. Class Counsel encourages class members to join our contact list, so that you can be updated on the status of the class action. Putting your name on our contact list does not require you to be part of the class action. To access our secure portal, please click  here.

16. Do Class Actions take longer than individual lawsuits to resolve?

Not necessarily. In fact, they can be quicker and more efficient. While there are some additional steps in a class action, the trade off is that a specialized judge is appointed to move the case to trial in an efficient manner. This class action is already one year along the process. Any lawsuit that starts now, will be a year behind and will need to take steps to catch up.

17. Is Tom Arndt working alone on the class action?

No. We have an expanding team of lawyers and experts working for you. They have significant expertise on the various issues raised by this litigation, including:

  • Tom Arndt has over 20 years experience as a class action lawyer, having argued class action matters for both plaintiffs and defendants against governments and major international corporations. His clients have received $billions. His cases have included mechanisms to protect the confidentiality (anonymous) of his clients in sensitive matters. You can read Tom’s bio here.
  • John Adair was lead lawyer winning against Iran and enforcing the judgments in Canada. The Tracey and Bennett cases are some of the few instances where Iran hired lawyers in Canada and fought the case in our courts. John Adair won. Iran lost. Read the decision here. He also has considerable class action experience.
  • Kim Spencer McPhee are market makers in class action litigation in Canada. Their class action practice involves local, national and cross-border files and ground breaking issues. Through their experience acting for both plaintiffs and defendants they are able to gain a unique and valuable perspective that bolsters their disciplined and strategic approach. Tom started his career with this firm, over 20 years later, they still work together on a variety of files. Learn more about KSM here.
  • HVS Aviation Consulting – Larry Vance has over 35 years of aircraft accident investigation experience. His first 24 years of investigation were with the Transportation Safety Board of Canada (TSB) and the next 12 years with HVS Aviation. While with the TSB, he was assigned as investigator-in-charge (IIC) of more than 200 aviation accidents. He was also named as Canadian Accredited Representative for numerous high-profile international investigations. Along with IIC duties, he also participated as a specialist investigator in hundreds of other investigations involving a wide range of aircraft. He was lead investigator and principal author of the public report in the crash of Swissair 111 – MD11 in 1998 at Peggy’s Cove, Nova Scotia. That crash involved 229 fatalities. He received the Government of Canada Certification of Recognition for his work on Swissair 111.
  • Galactic Litigation Funders – Galactic is an experienced litigation funder that pays the legal fees and costs for parties to pursue their claims. Galactic conducts a rigorous investigation into every case before agreeing to fund the case. Galactic utilizes its expanding network of lawyers and law firms across the world to secure the best cases and the most expert legal counsel. The client has absolutely no financial costs. Galactic does not recover its investment until a favorable judgment is granted. Our clients can rest assured they carry absolutely no financial burden. Galactic has committed to fund the litigation against the airline and the Iran defendants through appeals and to enforce court decisions both here in Canada and, if necessary, around the world. The Court has reviewed and approved the Galactic Funding Agreement. A link to the Court decision is here. Galactic’s fees must be approved by the court at the end, when the actual amounts of damages are known, to make sure that they are not disproportionately compensated for their role in seeking justice and compensation for you. An automatic protection, clients of individual lawyers do not have.
  • Leading Canadian and international aviation law lawyers – we continue to consult with leading aviation law practitioners known in the industry as ‘the gold standard’ in their areas of practice. They have received $billions in compensation for their clients from aviation disasters in Canada, USA, Europe and around the world, including the Air India disaster, Pan Am Flight 103.

We continue to grow our team to maximize the outcome for you while being respectful and sensitive to the unique nature of this litigation.  For more information contact us here and/or go to www.flightps752.ca.

We are here to serve you.

Disclaimer – this is provided for informational purposes only and does not constitute legal advice.

What Can We Do Now?

If you or someone you know was harmed by the tragic Flight PS752 crashclick here to learn more about the pending class action lawsuit.
Have you received a letter from the Defendants, including Iran, the IRGC, the Airline or their lawyers asking for information from you?