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Supreme Court Releases its decision in the "Free the Beer Case"http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=336Supreme Court Releases its decision in the "Free the Beer Case"336BLG Blog PostChristopher D. Bredt;Ewa Krajewskacbredt@blg.com | Christopher D. Bredt | 693A30232E777C626C6763616E6164615C636272656474 i:0#.w|blgcanada\cbredt;ekrajewska@blg.com | Ewa Krajewska | 693A30232E777C626C6763616E6164615C656B72616A6577736B61 i:0#.w|blgcanada\ekrajewska ​The Supreme Court has revised the interpretation of s. 121 of the Constitution Act to hold that any laws that in their purpose impede the passage of goods are unconstutitional <p>​The Supreme Court has revised the interpretation of s. 121 of the Constitution Act to hold that any laws that in their purpose impede the passage of goods are unconstutitional <br></p>A man's quest for cheaper beer has led the Supreme Court to revise the interpretation of s. 121 of the Constitution Act. Unfortunately, it will not bring him cheaper beer! Up until today, s. 121 of the Constitution Act was narrowly interpreted to prohibit only the imposition of tariffs on interprovincial trade. The Supreme Court applied a modern interpretation to s. 121 of the Constitution Act, that s. 121 prohibits governments from levying tariffs and tariff-like measures.The Supreme Court held that s. 121 prohibits laws that in essence and purpose impede the passage of goods across provincial borders, but does not prohibit laws that yield only incidental effects on interprovincial trade. The Supreme Court's decision can be distilled in the following two points The purpose of s. 121 is to prohibit laws that in essence and purpose restrict or limit the free flow of goods across the country. Second, laws that only have the incidental effect of restricting trade across provincial boundaries because they part of broader schemes not aimed at impeding trade do not offend s. 121 if the purpose of such laws is to support the relevant scheme, not to restrict interprovincial trade. In so doing the Supreme Court rejected Mr. Comeau's broad interpretation that s. 121 is a "free trade" provision that bars any impediment to interprovincial commerce. The Supreme Court rejected Mr. Comeau's submission that the principle of federalism supports full economic integration. Such full economic integration would curtail the freedom of action, and the Court writes, the sovereignty, of governments, especially at the provincial level. In coming to this conclusion the Supreme Court wanted to ensure that both the federal government and the provincial governments be able to legislate in ways that may impose incidental burdens on the passage of goods between provinces.The Supreme Court was concerned that an expansive interpretation of s. 121 would impinge on the legislative powers of the federal government and the provincial government under ss. 91 and 92 of the Constitution Act, 1867. The Supreme Court cited the example of the Northwest Territories and Nunavut who have adopted laws governing the consumption of alcohol, which includes controls on liquor coming across the border. The primary objective of the laws is public health. But they have incidental effect of curtailment of cross-border trade in liquor. The Supreme Court held s. 121 cannot be interpreted in a way that renders such laws invalid despite their non-trade related objectives. To do so, would be to misunderstand the import of the federalism principle. In other words, s. 121 allows schemes that incidentally burden the passage of goods across provincial boundaries, but does not allow them to impose such impediments only because they cross a provincial boundary. The Supreme Court set out the following test. A party alleging that a law violates s. 121 must establish that the law in essence and purpose restricts trade across provincial border The first question is whether the essence or character of the law is to prohibit trade across a provincial border. If the law does not in essence restrict trade of goods, the inquiry is over. If the law in essence restricts the trade of goods, the claimant must also establish that the primary purpose of the law is to restrict trade. Impeding trade must be its primary purpose. This inquiry is objective based on the wording of the legislation and its context. The Supreme Court added a caveat that s. 121 may operate differently when reviewing a federal law. Therefore the above test applies to provincial legislation. The Canadian Chamber of Commerce (the "Chamber") and the Canadian Federation of Independent Businesses ("CFIB"), retained Borden Ladner Gervais LLP, to represent them as an intervenor before the Supreme Court of Canada in the matter of R v Comeau. The Chamber and the CFIB argued that the provision guaranteeing "free trade among the Provinces" in the Constitution deserves a modern interpretation which would significantly reduce existing interprovincial trade barriers. In particular, the Chamber and the CFIB pointed to other federations, including the United States, Australia and the European Union, to show how similar free trade provisions have been given a far broader interpretation than the current Canadian interpretation. In those jurisdictions, the courts consider whether a law has as its essence and purpose to restrict trade. Such laws are found to be unconstitutional. If the law only has an incidental effect on trade, then the courts will conduct a balancing exercise between the salutary effects of the goal of the law that has incidental effects on trade and the deleterious effects of the law on interprovincial trade.In the United States, for example, the courts determine the constitutionality of rules imposing inter-state trade barriers by determining whether they, in their purpose or in their effects, interfere with free trade. This will catch a wide range of trade barriers, from state regulations that expressly block imports of certain goods from other states, to rules applying equally to all producers but impacting out-of-state producers disproportionately compared to local producers. Depending on the type of trade barrier involved, the courts will evaluate if the barriers can be justified in relation to the state government's interests. The Supreme Court has in essence adopted the first parts of that jurisprudence. The Canadian Chamber of Commerce and the Canadian Federation of Business were represented by Christopher Bredt and Ewa Krajewska. <p style="text-align:justify;">A man's quest for cheaper beer has led the Supreme Court to revise the interpretation of s. 121 of the <em>Constitution Act</em>. Unfortunately, it will not bring him cheaper beer!<br></p><p style="text-align:justify;">Up until today, s. 121 of the <em>Constitution Act</em> was narrowly interpreted to prohibit only the imposition of tariffs on interprovincial trade. The Supreme Court applied a modern interpretation to s. 121 of the <em>Constitution Act</em>, that s. 121 prohibits governments from levying tariffs and <strong>tariff-like </strong>measures.</p><p style="text-align:justify;">The Supreme Court held that s. 121 prohibits laws that <strong>in essence and purpose</strong> impede the passage of goods across provincial borders, but does not prohibit laws that yield only <strong>incidental effects </strong> on interprovincial trade.  </p><p style="text-align:justify;">The Supreme Court's decision can be distilled in the following two points: </p><ol><li>The purpose of s. 121 is to prohibit laws that in essence and purpose restrict or limit the free flow of goods across the country.<br></li><li>Second, laws that only have the incidental effect of restricting trade across provincial boundaries because they part of broader schemes not aimed at impeding trade do not offend s. 121 if the purpose of such laws is to support the relevant scheme, not to restrict interprovincial trade.<br></li></ol><p style="text-align:justify;">In so doing the Supreme Court rejected Mr. Comeau's broad interpretation that s. 121 is a "free trade" provision that bars <span style="text-decoration:underline;">any</span> impediment to interprovincial commerce. The Supreme Court rejected Mr. Comeau's submission that the principle of federalism supports full economic integration. Such full economic integration would curtail the freedom of action, and the Court writes, the sovereignty, of governments, especially at the provincial level. </p><p style="text-align:justify;">In coming to this conclusion the Supreme Court wanted to ensure that both the federal government and the provincial governments be able to legislate in ways that may impose incidental burdens on the passage of goods between provinces.</p><p style="text-align:justify;">The Supreme Court was concerned that an expansive interpretation of s. 121 would impinge on the legislative powers of the federal government and the provincial government under ss. 91 and 92 of the <em>Constitution Act, 1867</em>. The Supreme Court cited the example of the Northwest Territories and Nunavut who have adopted laws governing the consumption of alcohol, which includes controls on liquor coming across the border. The primary objective of the laws is public health. But they have incidental effect of curtailment of cross-border trade in liquor. The Supreme Court held s. 121 cannot be interpreted in a way that renders such laws invalid despite their non-trade related objectives. To do so, would be to misunderstand the import of the federalism principle. </p><p style="text-align:justify;">In other  words, s. 121 allows schemes that incidentally burden the passage of goods across provincial boundaries, but does not allow them to impose such impediments only because they cross a provincial boundary. </p><p style="text-align:justify;">The Supreme Court set out the following <strong>test</strong>. A party alleging that a law violates s. 121 must establish that the law in essence and purpose restricts trade across provincial border: </p><ol><li>The first question is whether the essence or character of the law is to prohibit trade across a provincial border. If the law does not in essence restrict trade of goods, the inquiry is over.<br></li><li>If the law in essence restricts the trade of goods, the claimant must also establish that the primary purpose of the law is to restrict trade. Impeding trade must be its <span lang="EN-CA" style="text-decoration:underline;"><strong>primary</strong></span> purpose. This inquiry is objective based on the wording of the legislation and its context. </li></ol><p style="text-align:justify;">The Supreme Court added a caveat that s. 121 may operate differently when reviewing a federal law. Therefore the above test applies to provincial legislation. </p><p style="text-align:justify;">The Canadian Chamber of Commerce (the "Chamber") and the Canadian Federation of Independent Businesses ("CFIB"), retained Borden Ladner Gervais LLP, to represent them as an intervenor before the Supreme Court of Canada in the matter of <em>R v Comeau</em>. </p><p style="text-align:justify;">The Chamber and the CFIB argued that the provision guaranteeing "free trade among the Provinces" in the Constitution deserves a modern interpretation which would significantly reduce existing interprovincial trade barriers.  In particular, the Chamber and the CFIB pointed to other federations, including the United States, Australia and the European Union, to show how similar free trade provisions have been given a far broader interpretation than the current Canadian interpretation. </p><p style="text-align:justify;">In those jurisdictions, the courts consider whether a law has as its essence and purpose to restrict trade. Such laws are found to be unconstitutional. If the law only has an incidental effect on trade, then the courts will conduct a balancing exercise between the salutary effects of the goal of the law that has incidental effects on trade and the deleterious effects of the law on interprovincial trade.</p><p style="text-align:justify;">In the United States, for example, the courts determine the constitutionality of rules imposing inter-state trade barriers by determining whether they, in their purpose or in their effects, interfere with free trade. This will catch a wide range of trade barriers, from state regulations that expressly block imports of certain goods from other states, to rules applying equally to all producers but impacting out-of-state producers disproportionately compared to local producers. Depending on the type of trade barrier involved, the courts will evaluate if the barriers can be justified in relation to the state government's interests. </p><p>The Supreme Court has in essence adopted the first parts of that jurisprudence. <br></p><p>The Canadian Chamber of Commerce and the Canadian Federation of Business were represented by <a href="http://blg.com/en/Our-People/Bredt-Christopher">Christopher Bredt</a> and <a href="http://blg.com/en/Our-People/krajewska-ewa" target="_blank">Ewa Krajewska</a>.<br></p><p><br></p>4/19/2018 4:00:00 AM2018-04-19T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#83d31cc8-2281-46b1-bd03-ad81b15c38ff;L0|#083d31cc8-2281-46b1-bd03-ad81b15c38ff|Banking Regulatory;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation Strategy;GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and ComplianceBanking Regulatory;Litigation Strategy;Securities: Litigation Regulatory and Compliance
Ontario Court of Appeal Rejects Insurer’s Interpretation of Exclusion Clause in Mortgage Insurance Policy http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=335Ontario Court of Appeal Rejects Insurer’s Interpretation of Exclusion Clause in Mortgage Insurance Policy 335BLG Blog PostAshley Thomassenathomassen@blg.com | Ashley Thomassen | 693A30232E777C626C6763616E6164615C6174686F6D617373656E i:0#.w|blgcanada\athomassen ​Using the well-established principles of contractual interpretation, a majority of the Court of Appeal upheld the finding that an exclusion clause did not apply to deny the claim of a private mortgage lender, who was a victim of fraud.<p>​Using the well-established principles of contractual interpretation, a majority of the Court of Appeal upheld the finding that an exclusion clause did not apply to deny the claim of a private mortgage lender, who was a victim of fraud.</p> In Nodel v. Stewart Title Guaranty Company, 2018 ONCA 341, a private mortgage lender ("Mr. Nodel") was the victim of a mortgage fraud. He made a claim for his loss under a mortgage insurance policy which he purchased from Stewart Title Guaranty Company (the "Insurer"). The Insurer denied the claim by relying on a coverage exception in the policy, which provided that the Insurer could deny coverage in the event the proceeds of the mortgage "were paid to" any person other than the "registered title holder." Because Mr. Nodel's lawyer had paid the mortgage proceeds to the borrower's lawyer in trust, rather than directly to the borrower, the Insurer argued the exception applied. This argument was rejected by a majority of the Court of Appeal. The Court found that the clause was ambiguous, because the ordinary meaning of "paid", which at law amounts to a payment which satisfies an obligation, did not apply. Properly interpreted, the exception in the policy was triggered if the proceeds of the mortgage were transferred beneficially to any person or entity other than the borrower in the insured mortgage transaction. Accordingly, the exception did not apply because Delivery to a trustee (in this case, the lawyer) is a mode of paying the beneficiary; Payment of mortgage money to a borrower's lawyer in trust is a routine practice and commercially reasonable; If the borrower has counsel, the lender's lawyer actually cannot deal directly with the borrower and must deal with the lawyer; If the Insurer's interpretation were accepted, even a direct deposit into a bank account in the name of the borrower would be insufficient, because a depositor does not own the money in the account – the bank does, subject to a simple debtor's obligation to pay the amount of the deposit to the depositor as its creditor; and If the clause did purport to negate coverage where mortgage proceeds are not transmitted into the hands of the actual registered title holder, the clause would be a nullity. Justice Nordheimer in dissent found the clause was not ambiguous, and that the majority's conclusion that the plain meaning would result in the "policy insuring nothing" would suggest that the funds had to be received by the actual registered title holder, otherwise the clause would apply. However, in Nordheimer J,'s view, "registered title holder" included an imposter registered title holder. Because the mortgage funds were not handed over or transferred to the registered title holder, or the person everyone assumed was the registered title holder, the funds were not paid in accordance with the terms of the insurance contract.<p>In <a href="http://www.ontariocourts.ca/decisions/2018/2018ONCA0341.pdf" target="_blank"> <em>Nodel v. Stewart Title Guaranty Company</em>, 2018 ONCA 341</a>, a private mortgage lender ("Mr. Nodel") was the victim of a mortgage fraud. He made a claim for his loss under a mortgage insurance policy which he purchased from Stewart Title Guaranty Company (the "Insurer"). The Insurer denied the claim by relying on a coverage exception in the policy, which provided that the Insurer could deny coverage in the event the proceeds of the mortgage "were paid to" any person other than the "registered title holder." Because Mr. Nodel's lawyer had paid the mortgage proceeds to the borrower's lawyer in trust, rather than directly to the borrower, the Insurer argued the exception applied. </p><p>This argument was rejected by a majority of the Court of Appeal. The Court found that the clause was ambiguous, because the ordinary meaning of "paid", which at law amounts to a payment which satisfies an obligation, did not apply. Properly interpreted, the exception in the policy was triggered if the proceeds of the mortgage were transferred <strong>beneficially</strong> to any person or entity other than the borrower in the insured mortgage transaction. Accordingly, the exception did not apply because:</p><ul><li>Delivery to a trustee (in this case, the lawyer) is a mode of paying the beneficiary;</li><li>Payment of mortgage money to a borrower's lawyer in trust is a routine practice and commercially reasonable;</li><li>If the borrower has counsel, the lender's lawyer actually cannot deal directly with the borrower and <span lang="EN-CA" style="text-decoration:underline;">must</span> deal with the lawyer;</li><li>If the Insurer's interpretation were accepted, even a direct deposit into a bank account in the name of the borrower would be insufficient, because a depositor does not own the money in the account – the bank does, subject to a simple debtor's obligation to pay the amount of the deposit to the depositor as its creditor; and</li><li>If the clause did purport to negate coverage where mortgage proceeds are not transmitted into the hands of the actual registered title holder, the clause would be a nullity.</li></ul><p>Justice Nordheimer in dissent found the clause was not ambiguous, and that the majority's conclusion that the plain meaning would result in the "policy insuring nothing" would suggest that the funds had to be received by the <em>actual</em> registered title holder, otherwise the clause would apply. However, in Nordheimer J,'s view, "registered title holder" included an imposter registered title holder. Because the mortgage funds were not handed over or transferred to the registered title holder, or the person everyone assumed was the registered title holder, the funds were not paid in accordance with the terms of the insurance contract.</p>4/16/2018 4:00:00 AM2018-04-16T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#11984f46-19e7-4b16-acce-db2c31f12bae;L0|#011984f46-19e7-4b16-acce-db2c31f12bae|Fraud and White Collar Crime;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebFraud and White Collar Crime
Canadian Investment Industry Regulator Proposes Mandatory Cybersecurity Incident Reportinghttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=334Canadian Investment Industry Regulator Proposes Mandatory Cybersecurity Incident Reporting334BLG Blog PostBradley J. Freedmanbfreedman@blg.com | Bradley J. Freedman | 693A30232E777C626C6763616E6164615C626A66 i:0#.w|blgcanada\bjf ​IIROC's dealer members should assess their readiness to comply with the reporting obligations. <p>​IIROC's dealer members should assess their readiness to comply with the reporting obligations. </p> The Investment Industry Regulatory Organization of Canada ("IIROC"), the national self-regulatory organization that oversees investment dealers and their trading activity in Canadian markets, published on April 5, 2018 a notice of proposed amendments to IIROC rules to require IIROC dealer members to report cybersecurity incidents. The reporting obligations apply in a wider range of circumstances than similar reporting obligations under Canadian personal information protection laws. IIROC dealer members should assess their readiness to comply with the reporting obligations, and make appropriate changes to their systems, policies and procedures. Previous Cybersecurity Guidance Over the past few years, Canadian investment industry regulators have emphasized the importance of cybersecurity, and have issued guidance to help investment industry participants improve their cybersecurity maturity and manage cyber risks. For example IIROC In December 2015, IIROC published a Cybersecurity Best Practices Guide and a Cyber Incident Management Planning Guide to help investment dealers manage cybersecurity risks and respond to cyber incidents. In March 2018, IIROC published a notice warning investment dealers of the increasing frequency and sophistication of cybersecurity incidents, and asking dealers to voluntarily report cybersecurity incidents to IIROC. MFDA In May 2016, the Mutual Fund Dealers Association of Canada published Compliance Bulletin No. 0690-C-Cybersecurity to help its member dealers manage cybersecurity risks. CSA In October 2017, the Canadian Securities Administrators ("CSA") published Staff Notice 33-321 Cyber Security and Social Media to report on a survey of cybersecurity and social media practices by firms registered to trade securities or to advise clients regarding securities, and to provide guidance regarding cybersecurity and social media practices. The Staff Notice supplemented the CSA's 2016 Staff Notice 11-332 Cyber Security. For more information, see BLG bulletins Cybersecurity Guidance from Investment Industry Organization (January 2016), Cybersecurity Guidance from Investment Industry Organization (May 2016), and Cybersecurity Guidance from Canadian Securities Administrators.IIROC's Proposed Amendments Details The proposed amendments broadly define "cybersecurity incident", and require IIROC dealer members to deliver promptly both an initial report and a subsequent detailed investigation report for each cybersecurity incident. Cybersecurity Incident The proposed amendments define "cybersecurity incident" as including any act to gain unauthorized access to, disrupt or misuse a dealer's information system, or information stored on an information system, that has resulted in, or has a reasonable likelihood of resulting in (i) substantial harm or inconvenience to any person (which includes a natural person or legal entity), (ii) a material impact on any part of the dealer's normal operations, (iii) invoking the dealer's business continuity plan or disaster recovery plan, or (iv) the dealer being required by any applicable law to provide notice to any government body, securities regulatory authority or other self-regulatory organization. Initial Report The proposed amendments require a dealer to provide a written incident report to IIROC within three calendar days after the dealer discovers a cybersecurity incident. The report must include (i) a description of the cybersecurity incident, (ii) the date or period during which the cybersecurity incident occurred and the date it was discovered by the dealer, (iii) a preliminary assessment of the cybersecurity incident, including the risk of harm or inconvenience to any person and impact on the operations of the dealer, (iv) a description of immediate incident response steps the dealer has taken to mitigate the risk of harm or inconvenience to persons and the impact on the dealer's operations, and (v) the name of and contact information for an individual who can answer IIROC's follow-up questions. Comprehensive Investigation Report The proposed amendments require a dealer to provide a comprehensive, written incident investigation report to IIROC within 30 days, or a longer period agreed to by IIROC, after the dealer discovers a cybersecurity incident. The report must include (i) a description of the cause of the cybersecurity incident, (ii) an assessment of the scope of the cybersecurity incident, including the number of persons harmed or inconvenienced and the impact on the dealer's operations, (iii) details of the steps the dealer took to mitigate the risk of harm or inconvenience to persons and impact on the dealer's operations, (iv) details of the steps the dealer took to remediate any harm or inconvenience to any persons, and (v) actions the dealer has or will take to improve its cybersecurity incident preparedness. A dealer's failure to comply with the proposed cybersecurity incident reporting obligations could result in IIROC imposing potentially significant financial penalties or other sanctions on the dealer. The proposed amendments are open for public comment until May 22, 2018.IIROC's Explanatory Comments IIROC's notice provides the following explanatory comments about the proposed amendments Cybersecurity incidents are increasing in frequency and sophistication resulting in increased risk of harm to investors, market participants and dealers. The active management of cyber risk is critical to the stability of dealers, the integrity of capital markets and the protection of investors. Information sharing is an essential tool for mitigating cyber threats, particularly in a rapidly evolving threat landscape. The purpose of the amendments is to "foster fair, equitable and ethical business standards and practices", "promote the protection of investors" and "mitigate a substantial risk of material harm to investors, market participants and [dealers]". Prompt cybersecurity incident reporting will help IIROC provide support to a dealer responding to a cybersecurity incident, alert other dealers of threats and share best practices for incident preparedness, evaluate trends and develop comprehensive insight regarding cybersecurity, and promote confidence in the dealer and the integrity of the market. A 30-day period after an incident is discovered should provide adequate time for a dealer to complete an incident investigation. The proposed amendments are consistent with similar reporting obligations under Canada's Personal Information Protection and Electronic Documents Act ("PIPEDA"), Alberta's Personal Information Protection Act, and the New York State Department of Financial Services Cybersecurity Regulation.Uncertainties and Compliance Challenges IIROC's proposed amendments present some uncertainties and compliance challenges. For example Substantial Harm/Inconvenience When and how should a dealer assess whether a cybersecurity incident has resulted in, or has "a reasonable likelihood" of resulting in, "substantial harm or inconvenience" to an individual or legal entity? What is the intended difference between IIROC's proposed "reasonable likelihood … of substantial harm or inconvenience" test and the "real risk of significant harm" test that applies to PIPEDA's data security incident reporting obligations? Incident Discovery When will a dealer be considered to have "discovered" a cybersecurity incident? Reporting In what circumstances may a dealer delay reporting a cybersecurity incident, or omit information from a report? For example, may a dealer submit a delayed or modified report to avoid compromising an incident investigation, at the request of law enforcement, to protect commercially sensitive information or to comply with confidentiality obligations? Extensions In what circumstances will IIROC agree to extend the 30-day period for delivery of an investigation report? The notice does not indicate whether IIROC will issue any guidance for compliance with the reporting obligations.Preparing for Compliance IIROC's proposed amendments are generally consistent with breach reporting obligations under Canadian personal information protection laws, but would apply in a wider range of circumstances due to the proposed definition of "cybersecurity incident", which is much broader than the kinds of incidents that require reporting under personal information protection laws. For example, IIROC's proposed amendments would appear to require a dealer to report a cybersecurity incident that was effectively mitigated by the dealer's business continuity plan and did not present any risk of harm to the dealer or any other person. IIROC's proposed amendments do not indicate when they will come into force, and there is no indication that there will be any delay period to allow dealers to prepare for compliance. Accordingly, dealers should now begin assessing and improving their systems, policies and procedures, and designating and training required personnel (both internal employees and external advisors), so that dealers are able to timely submit initial incident reports and comprehensive investigation reports. Following are some suggestions Policies/Procedures — Assessment and Response A dealer should have written policies and procedures so that each potential cybersecurity incident is immediately escalated to designated and properly trained personnel for investigation, assessment and response in accordance with a written incident response plan that is consistent with applicable legal requirements, regulatory guidance and relevant best practices. For more information, see BLG bulletins Cyber Incident Response Plans — Test, Train and Exercise and Data Security Incident Response Plans — Some Practical Suggestions. Policies/Procedures — Reporting to IIROC A dealer should have written policies and procedures so that designated and trained personnel make and document informed decisions about reporting cybersecurity incidents to IIROC. Legal Privilege A dealer should have an appropriate legal privilege strategy to help avoid inadvertent and unnecessary disclosure of privileged legal advice regarding cybersecurity incidents or inadvertent waiver of legal privilege. For more information, see BLG bulletins Cyber Risk Management — Legal Privilege Strategy (Part 1), Cyber Risk Management — Legal Privilege Strategy (Part 2) and Legal Privilege for Data Security Incident Investigation Reports. Contracts with Data Processors A dealer should ensure that its contracts with information technology and data processing service providers (including cloud service providers) contain appropriate provisions so that the dealer is able to comply with its cybersecurity incident reporting obligations. Other Breach Reporting Obligations A dealer should be mindful of its other legal obligations to report, notify and disclose cybersecurity incidents and data security incidents imposed by statute (including personal information protection laws), contract and common law and civil law. For more information, see BLG bulletins Cyber-Risk Management — Data Incident Notification Obligations, Cyber Risk Management — Regulatory Guidance for Reporting Issuers' Continuous Disclosure of Cybersecurity Risks and Incidents, and Preparing for Compliance with Canadian Personal Information Security Breach Obligations.<p>The <a href="http://www.iiroc.ca/" target="_blank">Investment Industry Regulatory Organization of Canada</a> ("IIROC"), the national self-regulatory organization that oversees investment dealers and their trading activity in Canadian markets, published on April 5, 2018 a <a href="http://www.iiroc.ca/Documents/2018/d2bca7f7-f219-4b80-905f-d030f505e29d_en.pdf" target="_blank">notice of proposed amendments</a> to IIROC rules to require IIROC dealer members to report cybersecurity incidents. The reporting obligations apply in a wider range of circumstances than similar reporting obligations under Canadian personal information protection laws. IIROC dealer members should assess their readiness to comply with the reporting obligations, and make appropriate changes to their systems, policies and procedures. </p><h4>Previous Cybersecurity Guidance</h4><p>Over the past few years, Canadian investment industry regulators have emphasized the importance of cybersecurity, and have issued guidance to help investment industry participants improve their cybersecurity maturity and manage cyber risks. For example:</p><ul><li> <strong>IIROC:</strong> In December 2015, IIROC published a <a href="http://www.iiroc.ca/industry/Documents/CybersecurityBestPracticesGuide_en.pdf" target="_blank"> <em>Cybersecurity Best Practices Guide</em></a> and a <a href="http://www.iiroc.ca/industry/Documents/CyberIncidentManagementPlanningGuide_en.pdf" target="_blank"> <em>Cyber Incident Management Planning Guide</em></a> to help investment dealers manage cybersecurity risks and respond to cyber incidents. In March 2018, IIROC <a href="http://www.iiroc.ca/Documents/2018/3b7be3c5-962f-492f-96bd-57e0bcf075af_en.pdf" target="_blank">published a notice </a>warning investment dealers of the increasing frequency and sophistication of cybersecurity incidents, and asking dealers to voluntarily report cybersecurity incidents to IIROC.</li><li> <strong>MFDA:</strong> In May 2016, the Mutual Fund Dealers Association of Canada published <a href="http://mfda.ca/bulletin/bulletin0690-c/" target="_blank"> <em>Compliance Bulletin No. 0690-C-Cybersecurity</em></a> to help its member dealers manage cybersecurity risks. </li><li> <strong>CSA:</strong> In October 2017, the Canadian Securities Administrators ("CSA") published <a href="http://www.osc.gov.on.ca/en/SecuritiesLaw_csa_20171019_33-321_cyber-security-and-social-media.htm" target="_blank"> <em>Staff Notice 33-321 Cyber Security and Social Media</em></a> to report on a survey of cybersecurity and social media practices by firms registered to trade securities or to advise clients regarding securities, and to provide guidance regarding cybersecurity and social media practices. The Staff Notice supplemented the CSA's 2016 <a href="http://www.osc.gov.on.ca/en/SecuritiesLaw_csa_sn_20160927_11-332-cyber-security.htm" target="_blank"> <em>Staff Notice 11-332 Cyber Security</em></a>. </li></ul><p>For more information, see BLG bulletins <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4364.pdf"> <em>Cybersecurity Guidance from Investment Industry Organization</em></a> (January 2016), <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4531.pdf"> <em>Cybersecurity Guidance from Investment Industry Organization</em></a> (May 2016), and <a href="http://blg.com/en/News-And-Publications/Documents/Publication_5109.pdf"> <em>Cybersecurity Guidance from Canadian Securities Administrators</em></a>.</p><h4>IIROC's Proposed Amendments</h4><p> <strong>Details</strong></p><p>The proposed amendments broadly define "cybersecurity incident", and require IIROC dealer members to deliver promptly both an initial report and a subsequent detailed investigation report for each cybersecurity incident.<strong> </strong></p><ul><li> <strong>Cybersecurity Incident:</strong> The proposed amendments define "cybersecurity incident" as including any act to gain unauthorized access to, disrupt or misuse a dealer's information system, or information stored on an information system, that has resulted in, or has a reasonable likelihood of resulting in: (i) substantial harm or inconvenience to any person (which includes a natural person or legal entity), (ii) a material impact on any part of the dealer's normal operations, (iii) invoking the dealer's business continuity plan or disaster recovery plan, or (iv) the dealer being required by any applicable law to provide notice to any government body, securities regulatory authority or other self-regulatory organization.</li><li> <strong>Initial Report:</strong> The proposed amendments require a dealer to provide a written incident report to IIROC within three calendar days after the dealer discovers a cybersecurity incident. The report must include: (i) a description of the cybersecurity incident, (ii) the date or period during which the cybersecurity incident occurred and the date it was discovered by the dealer, (iii) a preliminary assessment of the cybersecurity incident, including the risk of harm or inconvenience to any person and impact on the operations of the dealer, (iv) a description of immediate incident response steps the dealer has taken to mitigate the risk of harm or inconvenience to persons and the impact on the dealer's operations, and (v) the name of and contact information for an individual who can answer IIROC's follow-up questions.</li><li> <strong>Comprehensive Investigation Report:</strong> The proposed amendments require a dealer to provide a comprehensive, written incident investigation report to IIROC within 30 days, or a longer period agreed to by IIROC, after the dealer discovers a cybersecurity incident. The report must include: (i) a description of the cause of the cybersecurity incident, (ii) an assessment of the scope of the cybersecurity incident, including the number of persons harmed or inconvenienced and the impact on the dealer's operations, (iii) details of the steps the dealer took to mitigate the risk of harm or inconvenience to persons and impact on the dealer's operations, (iv) details of the steps the dealer took to remediate any harm or inconvenience to any persons, and (v) actions the dealer has or will take to improve its cybersecurity incident preparedness.</li></ul><p>A dealer's failure to comply with the proposed cybersecurity incident reporting obligations could result in IIROC imposing potentially significant financial penalties or other sanctions on the dealer.</p><p>The proposed amendments are open for public comment until May 22, 2018.</p><h4>IIROC's Explanatory Comments</h4><p>IIROC's notice provides the following explanatory comments about the proposed amendments:</p><ul><li>Cybersecurity incidents are increasing in frequency and sophistication resulting in increased risk of harm to investors, market participants and dealers.</li><li>The active management of cyber risk is critical to the stability of dealers, the integrity of capital markets and the protection of investors.</li><li>Information sharing is an essential tool for mitigating cyber threats, particularly in a rapidly evolving threat landscape.</li><li>The purpose of the amendments is to "foster fair, equitable and ethical business standards and practices", "promote the protection of investors" and "mitigate a substantial risk of material harm to investors, market participants and [dealers]".</li><li>Prompt cybersecurity incident reporting will help IIROC provide support to a dealer responding to a cybersecurity incident, alert other dealers of threats and share best practices for incident preparedness, evaluate trends and develop comprehensive insight regarding cybersecurity, and promote confidence in the dealer and the integrity of the market.</li><li>A 30-day period after an incident is discovered should provide adequate time for a dealer to complete an incident investigation.</li><li>The proposed amendments are consistent with similar reporting obligations under Canada's <em>Personal Information Protection and Electronic Documents Act </em>("PIPEDA"), Alberta's <em>Personal Information Protection Act</em>, and the New York State Department of Financial Services <em>Cybersecurity Regulation</em>.</li></ul><h4>Uncertainties and Compliance Challenges</h4><p>IIROC's proposed amendments present some uncertainties and compliance challenges. For example:</p><ul><li> <strong>Substantial Harm/Inconvenience:</strong> When and how should a dealer assess whether a cybersecurity incident has resulted in, or has "a reasonable likelihood" of resulting in, "substantial harm or inconvenience" to an individual or legal entity? What is the intended difference between IIROC's proposed "reasonable likelihood … of substantial harm or inconvenience" test and the "real risk of significant harm" test that applies to PIPEDA's data security incident reporting obligations?</li><li> <strong>Incident Discovery:</strong> When will a dealer be considered to have "discovered" a cybersecurity incident?</li><li> <strong>Reporting:</strong> In what circumstances may a dealer delay reporting a cybersecurity incident, or omit information from a report? For example, may a dealer submit a delayed or modified report to avoid compromising an incident investigation, at the request of law enforcement, to protect commercially sensitive information or to comply with confidentiality obligations?</li><li> <strong>Extensions:</strong> In what circumstances will IIROC agree to extend the 30-day period for delivery of an investigation report?</li></ul><p>The notice does not indicate whether IIROC will issue any guidance for compliance with the reporting obligations.</p><h4>Preparing for Compliance</h4><p>IIROC's proposed amendments are generally consistent with breach reporting obligations under Canadian personal information protection laws, but would apply in a wider range of circumstances due to the proposed definition of "cybersecurity incident", which is much broader than the kinds of incidents that require reporting under personal information protection laws. For example, IIROC's proposed amendments would appear to require a dealer to report a cybersecurity incident that was effectively mitigated by the dealer's business continuity plan and did not present any risk of harm to the dealer or any other person.</p><p>IIROC's proposed amendments do not indicate when they will come into force, and there is no indication that there will be any delay period to allow dealers to prepare for compliance. Accordingly, dealers should now begin assessing and improving their systems, policies and procedures, and designating and training required personnel (both internal employees and external advisors), so that dealers are able to timely submit initial incident reports and comprehensive investigation reports. Following are some suggestions:</p><ul><li> <strong>Policies/Procedures — Assessment and Response:</strong> A dealer should have written policies and procedures so that each potential cybersecurity incident is immediately escalated to designated and properly trained personnel for investigation, assessment and response in accordance with a written incident response plan that is consistent with applicable legal requirements, regulatory guidance and relevant best practices. For more information, see BLG bulletins <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4516.pdf"> <em>Cyber Incident Response Plans — Test, Train and Exercise</em></a> and <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4757.pdf"> <em>Data Security Incident Response Plans — Some Practical Suggestions</em></a>.</li><li> <strong>Policies/Procedures — Reporting to IIROC:</strong> A dealer should have written policies and procedures so that designated and trained personnel make and document informed decisions about reporting cybersecurity incidents to IIROC.</li><li> <strong>Legal Privilege:</strong> A dealer should have an appropriate legal privilege strategy to help avoid inadvertent and unnecessary disclosure of privileged legal advice regarding cybersecurity incidents or inadvertent waiver of legal privilege. For more information, see BLG bulletins <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4602.pdf"> <em>Cyber Risk Management — Legal Privilege Strategy (Part 1)</em></a>, <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4603.pdf"> <em>Cyber Risk Management — Legal Privilege Strategy (Part 2)</em></a> and <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4963.pdf"> <em>Legal Privilege for Data Security Incident Investigation Reports</em></a>.</li><li> <strong>Contracts with Data Processors:</strong> A dealer should ensure that its contracts with information technology and data processing service providers (including cloud service providers) contain appropriate provisions so that the dealer is able to comply with its cybersecurity incident reporting obligations.</li><li> <strong>Other Breach Reporting Obligations:</strong> A dealer should be mindful of its other legal obligations to report, notify and disclose cybersecurity incidents and data security incidents imposed by statute (including personal information protection laws), contract and common law and civil law. For more information, see BLG bulletins <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4294.pdf"> <em>Cyber-Risk Management — Data Incident Notification Obligations</em></a>, <a href="http://blg.com/en/News-And-Publications/Documents/Publication_4806.pdf"> <em>Cyber Risk Management — Regulatory Guidance for Reporting Issuers' Continuous Disclosure of Cybersecurity Risks and Incidents</em></a>, and <a href="http://blg.com/en/News-And-Publications/Documents/Publication_5133.pdf"> <em>Preparing for Compliance with Canadian Personal Information Security Breach Obligations</em></a>.</li></ul>4/12/2018 4:00:00 AM2018-04-12T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#da989fe7-de9b-44ca-9a7c-ade6643bc163;L0|#0da989fe7-de9b-44ca-9a7c-ade6643bc163|Cybersecurity;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebCybersecurity
Trailing Fees Class Action Commencedhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=333Trailing Fees Class Action Commenced333BLG Blog PostDavid Di Paolo;Graham Splawskiddipaolo@blg.com | David Di Paolo | 693A30232E777C626C6763616E6164615C64646970616F6C6F i:0#.w|blgcanada\ddipaolo;gsplawski@blg.com | Graham Splawski | 693A30232E777C626C6763616E6164615C6773706C6177736B69 i:0#.w|blgcanada\gsplawski A plaintiff has commenced a class action for over $200,000,000, claiming that a mutual fund manager should not have paid trailing fees to discount brokers. <p>A plaintiff has commenced a class action for over $200,000,000, claiming that a mutual fund manager should not have paid trailing fees to discount brokers.<br></p> On April 9, 2018, a prominent plaintiff-side class action law firm in Toronto issued a proposed class action against TD Asset Management Inc. ("TD") claiming over $200,000,000 in damages. The representative plaintiff, Gary Stenzler, is a unitholder of mutual funds for which TD is the trustee (the "TD Funds"). Mr. Stenzler holds the relevant units in the TD Funds through a discount broker. The proposed class includes all persons who held or hold units in TD Funds through a discount broker. The claim alleges that, according to the TD Funds' Fund Facts documents, TD pays trailing commission fees from the assets of the TD Funds to brokers as compensation for "services and advice" provided to unitholders. The claim further alleges that since discount brokers are precluded by IIROC rules from providing any advice to unitholders, and since discount brokers provide effectively no service to unitholders, there is no basis for TD, as trustee, to pay the discount brokers any commissions on this basis. The claim pleads two primary causes of action. First, the claim alleges that by paying trailing fees to discount brokers who did nothing to earn them, TD as the trustee of the TD Funds breached the fiduciary duties that the plaintiff alleges TD owes to the unitholders of the TD Funds. The plaintiff alleges TD owes these fiduciary duties pursuant to the TD Funds' declarations of trust (the claim alleges that all of the relevant funds are organized as trusts), and pursuant to section 116 of the Ontario Securities Act. In both cases, the plaintiff alleges that TD owes a duty to the unitholders to act honestly, in good faith, and in the unitholders' best interest. The allegation is that by paying the trailing fees even though the plaintiff alleges there was no basis to do so, TD impermissibly dissipated the trust property, in breach of trust. The claim further alleges that because some of the impugned trailing fees were paid to TD's own discount brokerage, TD Direct Investing, TD was in a conflict of interest and further breached its fiduciary duties by paying those fees. Second, the claim alleges an actionable misrepresentation in the TD Funds' Fund Facts documents, which are incorporated in the TD Funds' Simplified Prospectuses. The plaintiff alleges that the documents represent that trailing commissions would be paid to brokers in respect of "services and advice". The plaintiff alleges that the discount brokers were not actually paid in respect of "services and advice" (as it alleges that the discount brokers provided neither) and, therefore, the Simplified Prospectus and Fund Facts contained a misrepresentation. The plaintiff claims this constitutes an actionable misrepresentation pursuant to section 130 of the Ontario Securities Act. Finally, the plaintiff alleges that since certain TD funds offer Series D units, designed with no trailing fees related to service or advice and meant to be sold through discount brokers, TD breached its duties to the unitholders of units in other series by allowing them to hold those units through discount brokers. The plaintiff alleges that TD should have only allowed Series D units to be held through discount brokers. <p>On April 9, 2018, a prominent plaintiff-side class action law firm in Toronto issued a proposed class action against TD Asset Management Inc. ("TD") claiming over $200,000,000 in damages. The representative plaintiff, Gary Stenzler, is a unitholder of mutual funds for which TD is the trustee (the "TD Funds"). Mr. Stenzler holds the relevant units in the TD Funds through a discount broker. The proposed class includes all persons who held or hold units in TD Funds through a discount broker.</p><p>The claim alleges that, according to the TD Funds' Fund Facts documents, TD pays trailing commission fees from the assets of the TD Funds to brokers as compensation for "services and advice" provided to unitholders. The claim further alleges that since discount brokers are precluded by IIROC rules from providing any advice to unitholders, and since discount brokers provide effectively no service to unitholders, there is no basis for TD, as trustee, to pay the discount brokers any commissions on this basis.</p><p>The claim pleads two primary causes of action. First, the claim alleges that by paying trailing fees to discount brokers who did nothing to earn them, TD as the trustee of the TD Funds breached the fiduciary duties that the plaintiff alleges TD owes to the unitholders of the TD Funds. The plaintiff alleges TD owes these fiduciary duties pursuant to the TD Funds' declarations of trust (the claim alleges that all of the relevant funds are organized as trusts), and pursuant to section 116 of the Ontario <em>Securities Act</em>. In both cases, the plaintiff alleges that TD owes a duty to the unitholders to act honestly, in good faith, and in the unitholders' best interest. The allegation is that by paying the trailing fees even though the plaintiff alleges there was no basis to do so, TD impermissibly dissipated the trust property, in breach of trust. The claim further alleges that because some of the impugned trailing fees were paid to TD's own discount brokerage, TD Direct Investing, TD was in a conflict of interest and further breached its fiduciary duties by paying those fees.</p><p>Second, the claim alleges an actionable misrepresentation in the TD Funds' Fund Facts documents, which are incorporated in the TD Funds' Simplified Prospectuses. The plaintiff alleges that the documents represent that trailing commissions would be paid to brokers in respect of "services and advice". The plaintiff alleges that the discount brokers were not actually paid in respect of "services and advice" (as it alleges that the discount brokers provided neither) and, therefore, the Simplified Prospectus and Fund Facts contained a misrepresentation. The plaintiff claims this constitutes an actionable misrepresentation pursuant to section 130 of the Ontario <em>Securities Act</em>.</p><p>Finally, the plaintiff alleges that since certain TD funds offer Series D units, designed with no trailing fees related to service or advice and meant to be sold through discount brokers, TD breached its duties to the unitholders of units in other series by allowing them to hold those units through discount brokers. The plaintiff alleges that TD should have only allowed Series D units to be held through discount brokers.<br></p><p><br></p>4/10/2018 4:00:00 AM2018-04-10T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class ActionsSecurities: Litigation Regulatory and Compliance;Class Actions
The OSC’s Seniors Strategy – Protecting Investorshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=330The OSC’s Seniors Strategy – Protecting Investors330BLG Blog PostZiad Yehiazyehia@blg.com | Ziad Yehia | 693A30232E777C626C6763616E6164615C7A7965686961 i:0#.w|blgcanada\zyehia The Ontario Securities Commission (“OSC”) published a Seniors Strategy in March, 2018 that focuses on investor protection for the aging population in Ontario. The Strategy includes many interesting elements, including education and outreach initiatives for investors and protecting against confusing and misleading marketing.<p><span lang="EN-CA" style="line-height:107%;font-family:calibri, sans-serif;font-size:11pt;"><span lang="EN-CA" style="color:#444444;font-family:calibri, sans-serif;font-size:11pt;">The Ontario Securities Commission (“OSC”) published a Seniors Strategy in March, 2018 that focuses on investor protection for the aging population in Ontario.  The Strategy includes many interesting elements, including education and outreach initiatives for investors and protecting against confusing and misleading marketing.</span></span></p>The Ontario Securities Commission ("OSC") published a Seniors Strategy in March, 2018 focused on investor protection for the aging population (an estimated 1 in 4 Ontarians will be aged 65 or older by 2041). The financial lives of individuals aged 65 and older are becoming more complex, with incomes coming from more potentially volatile sources, higher debt levels, and a greater share of assets in less liquid assets, such as real estate, than was the case 20 years ago. For many people, aging can also be accompanied by health changes, which makes them susceptible to fraud. These trends indicate that Ontarians will be called upon to make complex financial judgments later in life, with higher stakes and more challenges, than may have been the case for previous generations. The Seniors Strategy developed by the OSC is meant to be inclusive, social, and responsive. These three guiding principles in turn are to inform the OSC's policy-making, operations, research, education, and outreach initiatives with respect to older Ontarians.The key elements of the Seniors Strategy include Developing a flexible and responsive framework to address issues of financial exploitation and cognitive impairment among older investors; Empowering registered firms and representatives to better protect older clients; Addressing registered firms' and representatives' use of confusing and misleading marketing; Strengthening Ombudsman for Banking Services and Investments (OBSI) dispute resolution process; Breaking down the silos between different regulators and organizations toward a common goal of designing policies and programs that serve the interests of older individuals in areas such as powers of attorney and privacy laws; Building capacity among OSC staff to continually improve the ways in which they work with older investors; Further research on the challenges and issues faced by different segments of older investors; and Enhancing the education and outreach activities to provide tools and resources for older investors, their families and caregivers who support them, as well as their registered firms and representatives, and educating older investors regarding those tools and resources. The Seniors Strategy can be found here http//www.osc.gov.on.ca/documents/en/Securities-Category1/sn_20180320_11-779_seniors-strategy.pdf<p style="text-align:justify;">The Ontario Securities Commission ("OSC") published a <a href="http://www.osc.gov.on.ca/documents/en/Securities-Category1/sn_20180320_11-779_seniors-strategy.pdf" target="_blank">Seniors Strategy</a> in March, 2018 focused on investor protection for the aging population (an estimated 1 in 4 Ontarians will be aged 65 or older by 2041).  The financial lives of individuals aged 65 and older are becoming more complex, with incomes coming from more potentially volatile sources, higher debt levels, and a greater share of assets in less liquid assets, such as real estate, than was the case 20 years ago.  For many people, aging can also be accompanied by health changes, which makes them susceptible to fraud.  These trends indicate that Ontarians will be called upon to make complex financial judgments later in life, with higher stakes and more challenges, than may have been the case for previous generations. </p><p style="text-align:justify;">The Seniors Strategy developed by the OSC is meant to be inclusive, social, and responsive.  These three guiding principles in turn are to inform the OSC's policy-making, operations, research, education, and outreach initiatives with respect to older Ontarians.</p><p style="text-align:justify;">The key elements of the Seniors Strategy include: </p><ul><li>Developing a flexible and responsive framework to address issues of financial exploitation and cognitive impairment among older investors;</li></ul><ul><li>Empowering registered firms and representatives to better protect older clients;<br></li><li>Addressing registered firms' and representatives' use of confusing and misleading marketing;<br></li><li>Strengthening Ombudsman for Banking Services and Investments (OBSI) dispute resolution process;<br></li><li>Breaking down the silos between different regulators and organizations toward a common goal of designing policies and programs that serve the interests of older individuals in areas such as powers of attorney and privacy laws; <br></li><li>Building capacity among OSC staff to continually improve the ways in which they work with older investors;<br></li><li>Further research on the challenges and issues faced by different segments of older investors; and<br></li><li>Enhancing the education and outreach activities to provide tools and resources for older investors, their families and caregivers who support them, as well as their registered firms and representatives, and educating older investors regarding those tools and resources. </li></ul><p>The Seniors Strategy can be found here: <a href="http://www.osc.gov.on.ca/documents/en/Securities-Category1/sn_20180320_11-779_seniors-strategy.pdf" target="_blank">http://www.osc.gov.on.ca/documents/en/Securities-Category1/sn_20180320_11-779_seniors-strategy.pdf</a></p>4/6/2018 4:00:00 AM2018-04-06T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#fbfdfcb9-adbc-49cd-a509-671cc2c30fac;L0|#0fbfdfcb9-adbc-49cd-a509-671cc2c30fac|Estates and TrustsSecurities: Litigation Regulatory and Compliance;Estates and Trusts
Supreme Court to Hear Appeal on Interaction between Arbitration Clauses and Class Proceedings: TELUS Communications Inc. v. Avraham Wellmanhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=329Supreme Court to Hear Appeal on Interaction between Arbitration Clauses and Class Proceedings: TELUS Communications Inc. v. Avraham Wellman329BLG Blog PostVeronica Sjolinvsjolin@blg.com | Veronica Sjolin | 693A30232E777C626C6763616E6164615C76736A6F6C696E i:0#.w|blgcanada\vsjolin ​The Supreme Court’s decision to grant leave to appeal provides an opportunity for the Court to clarify the interplay between arbitration and litigation, and provide guidance on the application of s. 7(5) of the Ontario Arbitration Act in the consumer/non-consumer context. <p>​The Supreme Court’s decision to grant leave to appeal provides an opportunity for the Court to clarify the interplay between arbitration and litigation, and provide guidance on the application of s. 7(5) of the Ontario <a target="_blank" href="https://www.ontario.ca/laws/statute/91a17"><em>Arbitration Act</em></a> in the consumer/non-consumer context.<br></p> ​TELUS Communications Inc. ("TELUS") has been granted leave to appeal the Ontario Court of Appeal's decision in TELUS Communications Inc. v. Avraham Wellman, 2017 ONCA 433. For a summary of the Court of Appeal's decision see our previous post. Section 7(5) of the Arbitration Act provides that a court may stay a proceeding with respect to matters dealt with in an arbitration agreement and allow the court proceeding to continue with respect to other matters where it finds that (1) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and (2) it is reasonable to separate the matters dealt with in the agreement from the other matters. Put simply, s. 7(5) aims to avoid the bifurcation of litigation and arbitration, and empowers a court to take jurisdiction over all disputed matters, rather than hearing only part of the dispute and sending other matters to arbitration. Practically speaking, however, there is much needed clarification of the words "other matters" in s. 7(5) in consumer/non-consumer cases. More specifically, can the "matters" between a business and its consumers determine the "matters" between the same business and its non-consumers when those consumer and non-consumer claims are subject to different arbitration agreements? Or do "other matters" refer to other matters arising only between the same contracting parties but that are not covered by their arbitration agreement? An additional question for the Supreme Court will be whether litigants should be entitled to circumvent what are otherwise statutory impediments to proceeding in court with an arbitral claims simply by adding a consumer claim which cannot be stayed by virtue of the Consumer Protection Act. As Justice Blair put it in his concurring reasons, should the Class Proceedings Act be used to override the Arbitration Act? We will continue to monitor for any developments on these issues. TELUS' Application for Leave to Appeal to the Supreme Court In its Application for Leave, TELUS states that the Court of Appeal "permitted the procedural mechanism of a mass consumer class action to override the lawful choice of arbitration by business customers…". TELUS submits that in this case, the arbitration agreement covers all disputes between TELUS and its business customers (i.e. non-consumers) and that there are no "matters" between the parties that are not subject to the arbitration clause. Consequently, TELUS argues, the Court of Appeal incorrectly concluded that section 7(5) of the Ontario Arbitration Act provides a legislative override of an otherwise enforceable arbitration agreement and the Court had no proper grounds to reject the instructions given by the Supreme Court in Seidel v. TELUS Communications Inc., 2011 SCC 15 ("Seidel"). Further, TELUS submits that the Court of Appeal's decision leads to inconsistent results across the country. Courts in British Columbia, Saskatchewan and Quebec have correctly separated consumer claims from business claims in proposed class actions involving an arbitration agreement. It argues that these decisions "recognize that courts may not adjudicate claims within a class action where they would not have jurisdiction if the claims were brought individually." The result in Ontario, however, means that the enforceability of an arbitration agreement as against business consumers now depends on the form of the action in which the claim is brought. Businesses will no longer be able to rely on their freedom of contract and the selection of a particular mode of dispute resolution. Finally, TELUS says there is good reason to doubt the correctness of the Court of Appeal's decision and points to the Saskatchewan Court of Appeal's decision in Saskatchewan Power Corporation v. Alberici Western Constructors, Ltd., 2016 SKCA 46 which rejected the interpretation of the partial stay power adopted in Ontario. Response to TELUS' Application for Leave to Appeal to the Supreme Court In response to TELUS, Avraham Wellman ("Wellman") takes the position that there is no conflict in appellate jurisprudence regarding the interpretation and application of section 7(5) of the Arbitration Act and equivalent provincial statutes. Wellman submits that in reality, TELUS seeks a stay of proceedings for business customers, not because they seek to have those claims resolved through arbitration, but because a stay of those claims would effectively defeat their resolution. Thus, the exercise of discretion pursuant to s. 7(5) is important to remedy this unfairness and mitigate against "arbitrator bias in favour of the dominant and repeat-player corporate client" as was noted in Seidel. Contrary to TELUS' assertions, Wellman argues that the present case and past jurisprudence, like Griffin v. Dell Canada Inc., 2010 ONCA 29 ("Griffin"), do not stand for the proposition that arbitration agreements are de facto unenforceable in class proceedings that involve consumer and non-consumer claims. Further, these cases do not contradict the general principle that contractual arbitration clauses are presumptively enforceable. Rather, the Court of Appeal's decision at issue demonstrates that the "determinative factor to consider in exercising the broad discretion conferred by s. 7(5) is the reasonableness of granting, or refusing to grant, a partial stay of the proceeding in respect of matters that are subject to an arbitration agreement, when the proceeding continues with respect to similar or, in this case, virtually identical matters that are not governed by an arbitration agreement." Wellman, echoing the Court of Appeal's interpretive approach, goes on to say that in the same way that Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 and Rogers Wireless v. Muroff, 2007 SCC 35 were decided based on the "intricacies of the Civil Code of Quebec", Seidel reflects the interpretation of the relevant British Columbia legislation. In the same vein, the decision in Griffin was limited to the interpretation of the Ontario legislation. "Statutory consistency or difference is a matter of legislative policy for each provinces, not a matter of national importance. It cannot be as the Applicants would have it, that every intersection of an arbitration agreement with litigation admits of an issue of national importance." <p>​TELUS Communications Inc. ("TELUS") has been granted leave to appeal the Ontario Court of Appeal's decision in <a href="https://www.canlii.org/en/on/onca/doc/2017/2017onca433/2017onca433.html?autocompleteStr=2017%20ONCA%20433&autocompletePos=1" target="_blank"><em>TELUS Communications Inc. v. Avraham Wellman</em>, 2017 ONCA 433</a>.</p><p>For a summary of the Court of Appeal's decision see our <a href="/theexchange/Pages/Post.aspx?PID=244">previous post</a>.</p><p> </p><p>Section 7(5) of the <a href="https://www.ontario.ca/laws/statute/91a17"><em>Arbitration Act</em></a> provides that a court may stay a proceeding with respect to matters dealt with in an arbitration agreement and allow the court proceeding to continue with respect to other matters where it finds that: (1) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and (2) it is reasonable to separate the matters dealt with in the agreement from the other matters. </p><p>Put simply, s. 7(5) aims to avoid the bifurcation of litigation and arbitration, and empowers a court to take jurisdiction over all disputed matters, rather than hearing only part of the dispute and sending other matters to arbitration. </p><p>Practically speaking, however, there is much needed clarification of the words "other matters" in s. 7(5) in consumer/non-consumer cases. More specifically, can the "matters" between a business and its consumers determine the "matters" between the same business and its non-consumers when those consumer and non-consumer claims are subject to different arbitration agreements? Or do "other matters" refer to other matters arising only between the same contracting parties but that are not covered by their arbitration agreement?</p><p>An additional question for the Supreme Court will be whether litigants should be entitled to circumvent what are otherwise statutory impediments to proceeding in court with an arbitral claims simply by adding a consumer claim which cannot be stayed by virtue of the <a href="https://www.ontario.ca/laws/statute/02c30" target="_blank"><em>Consumer Protection Act</em></a>. As Justice Blair put it in his concurring reasons, should the <a href="https://www.ontario.ca/laws/statute/92c06" target="_blank"><em>Class Proceedings Act</em></a> be used to override the <a href="https://www.ontario.ca/laws/statute/91a17#BK10" target="_blank"><em>Arbitration Act</em></a>?</p><p>We will continue to monitor for any developments on these issues.</p><p><a href="https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37722/FM010_Appellant_Telus-Communication-Compagny-et-al.-Memorandum.pdf" target="_blank"><strong><em>TELUS' Application for Leave to Appeal to the Supreme Court</em></strong></a></p><p>In its Application for Leave, TELUS states that the Court of Appeal "permitted the procedural mechanism of a mass consumer class action to override the lawful choice of arbitration by business customers…". TELUS submits that in this case, the arbitration agreement covers <em>all</em> disputes between TELUS and its business customers (<em>i.e.</em> non-consumers) and that there are no "matters" between the parties that are not subject to the arbitration clause. Consequently, TELUS argues, the Court of Appeal incorrectly concluded that section 7(5) of the Ontario <a href="https://www.ontario.ca/laws/statute/91a17" target="_blank"><em>Arbitration Act</em></a> provides a legislative override of an otherwise enforceable arbitration agreement and the Court had no proper grounds to reject the instructions given by the Supreme Court in <a href="https://www.canlii.org/en/ca/scc/doc/2011/2011scc15/2011scc15.html?autocompleteStr=2011%20SCC%2015%20&autocompletePos=1" target="_blank"><em>Seidel v. TELUS Communications Inc., </em>2011 SCC 15</a> ("<em>Seidel</em>")<em>.</em></p><p>Further, TELUS submits that the Court of Appeal's decision leads to inconsistent results across the country. Courts in British Columbia, Saskatchewan and Quebec have correctly separated consumer claims from business claims in proposed class actions involving an arbitration agreement. It argues that these decisions "recognize that courts may not adjudicate claims within a class action where they would not have jurisdiction if the claims were brought individually." The result in Ontario, however, means that the enforceability of an arbitration agreement as against business consumers now depends on the form of the action in which the claim is brought. Businesses will no longer be able to rely on their freedom of contract and the selection of a particular mode of dispute resolution.</p><p>Finally, TELUS says there is good reason to doubt the correctness of the Court of Appeal's decision and points to the Saskatchewan Court of Appeal's decision in <a href="https://www.canlii.org/en/sk/skca/doc/2016/2016skca46/2016skca46.html?autocompleteStr=2016%20SKCA%2046%20&autocompletePos=1" target="_blank"><em>Saskatchewan Power Corporation v. Alberici Western Constructors, Ltd.</em>, 2016 SKCA 46</a> which rejected the interpretation of the partial stay power adopted in Ontario.</p><p><a href="https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37722/FM020_Respondent_Avraham-Wellman_Response.pdf" target="_blank"><strong><em>Response to TELUS' Application for Leave to Appeal to the Supreme Court</em></strong></a></p><p>In response to TELUS, Avraham Wellman ("Wellman") takes the position that there is no conflict in appellate jurisprudence regarding the interpretation and application of section 7(5) of the <a href="https://www.ontario.ca/laws/statute/91a17#BK10" target="_blank"><em>Arbitration Act</em></a> and equivalent provincial statutes.</p><p>Wellman submits that in reality, TELUS seeks a stay of proceedings for business customers, not because they seek to have those claims resolved through arbitration, but because a stay of those claims would effectively defeat their resolution. Thus, the exercise of discretion pursuant to s. 7(5) is important to remedy this unfairness and mitigate against "arbitrator bias in favour of the dominant and repeat-player corporate client" as was noted in <em>Seidel</em>.</p><p>Contrary to TELUS' assertions, Wellman argues that the present case and past jurisprudence, like <a href="https://www.canlii.org/en/on/onca/doc/2010/2010onca29/2010onca29.html?autocompleteStr=2010%20ONCA%2029%20&autocompletePos=1" target="_blank"><em>Griffin v. Dell Canada Inc.</em>, 2010 ONCA 29</a> ("<em>Griffin</em>"), do not stand for the proposition that arbitration agreements are <em>de facto</em> unenforceable in class proceedings that involve consumer and non-consumer claims. Further, these cases do not contradict the general principle that contractual arbitration clauses are presumptively enforceable. Rather, the Court of Appeal's decision at issue demonstrates that the "determinative factor to consider in exercising the broad discretion conferred by s. 7(5) is the reasonableness of granting, or refusing to grant, a partial stay of the proceeding in respect of matters that are subject to an arbitration agreement, when the proceeding continues with respect to similar or, in this case, virtually identical matters that are not governed by an arbitration agreement."</p><p>Wellman, echoing the Court of Appeal's interpretive approach, goes on to say that in the same way that <a href="https://www.canlii.org/en/ca/scc/doc/2007/2007scc34/2007scc34.html?autocompleteStr=2007%20SCC%2034%20&autocompletePos=1" target="_blank"><em>Dell Computer Corp. v. Union des consommateurs</em>, 2007 SCC 34</a> and <a href="https://www.canlii.org/en/ca/scc/doc/2007/2007scc35/2007scc35.html?autocompleteStr=2007%20SCC%2035%20&autocompletePos=1" target="_blank"><em>Rogers Wireless v. Muroff</em>, 2007 SCC 35</a> were decided based on the "intricacies of the <em>Civil Code of Quebec</em>", <em>Seidel</em> reflects the interpretation of the relevant British Columbia legislation. In the same vein, the decision in <em>Griffin</em> was limited to the interpretation of the Ontario legislation. "Statutory consistency or difference is a matter of legislative policy for each provinces, not a matter of national importance. It cannot be as the Applicants would have it, that every intersection of an arbitration agreement with litigation admits of an issue of national importance."</p><br>4/3/2018 4:00:00 AM2018-04-03T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebClass Actions
Regulators Turn Eye to AI, Data Analytics and Robo-Advice http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=328Regulators Turn Eye to AI, Data Analytics and Robo-Advice 328BLG Blog PostMichelle Maniagommaniago@blg.com | Michelle Maniago | 693A30232E777C626C6763616E6164615C6D6D616E6961676F i:0#.w|blgcanada\mmaniago ​Regulators of banking and securities law in Canada and around the world are developing guidelines and policies to deal with a range of new technologies, including artificial intelligence, data analytics, computer algorithms, and cryptocurrency. They seek input from industry. <p>​Regulators of banking and securities law in Canada and around the world are developing guidelines and policies to deal with a range of new technologies, including artificial intelligence, data analytics, computer algorithms, and cryptocurrency. They seek input from industry.<br></p> On 2 April 2018, the Monetary Authority of Singapore, the Central Bank of Singapore ("MAS"), announced that it was working with the financial industry to develop a guide on responsible use of data analytics and artificial intelligence. The goal of the guide will be to set out key principles and best practices, helping financial institutions to strengthen internal governance and reduce risks of data misuse. Industry will be invited to comment on the draft in Q2 2018. The guide is expected to be complete at the end of 2018 and will cover all segments of the financial sector, including FinTech firms. The Hong Kong Securities and Futures Commission released their report on 28 March 2018 detailing the comments they have received about their proposed guidelines (issued in 2017) for the design and operation of online distribution and advisory platforms, including comments about the provision of "robo-advice" (using computer algorithms) for investments. The Commission decided to adopt the proposed guidelines with certain modifications, as explained in the report, which will become effective 12 months from the gazettal of the guidelines. Canadian regulators have also begun to consider similar issues and their guidance and comment can be expected in the near term. The British Columbia Securities Commission, for example, issued a notice in January 2018 that it is seeking comment on the securities law framework for FinTech firms, including crowdfunding, "robo-advice" for investments, and cryptocurrency. The deadline for comments is today (3 April 2018). <p>On 2 April 2018, the Monetary Authority of Singapore, the Central Bank of Singapore ("MAS"), <a href="http://www.mas.gov.sg/News-and-Publications/Media-Releases/2018/MAS-and-financial-industry-to-develop-guidance-on-responsible-use-of-data-analytics.aspx" target="_blank">announced</a> that it was working with the financial industry to develop a guide on responsible use of data analytics and artificial intelligence. The goal of the guide will be to set out key principles and best practices, helping financial institutions to strengthen internal governance and reduce risks of data misuse. Industry will be invited to comment on the draft in Q2 2018. The guide is expected to be complete at the end of 2018 and will cover all segments of the financial sector, including FinTech firms. </p><p>The Hong Kong Securities and Futures Commission released their <a href="http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/conclusion?refNo=17CP3" target="_blank">report</a> on 28 March 2018 detailing the comments they have received about their proposed guidelines (issued in 2017) for the design and operation of online distribution and advisory platforms, including comments about the provision of "robo-advice" (using computer algorithms) for investments. The Commission decided to adopt the proposed guidelines with certain modifications, as explained in the report, which will become effective 12 months from the gazettal of the guidelines.</p><p>Canadian regulators have also begun to consider similar issues and their guidance and comment can be expected in the near term. The British Columbia Securities Commission, for example, issued a <a href="https://www.bcsc.bc.ca/Securities_Law/Policies/PolicyBCN/PDF/BCN_2018-01__February_14__2018/" target="_blank">notice in January 2018</a> that it is seeking comment on the securities law framework for FinTech firms, including crowdfunding, "robo-advice" for investments, and cryptocurrency. The deadline for comments is today (3 April 2018).<br></p><p><br></p>4/3/2018 4:00:00 AM2018-04-03T04:00:00ZTrue1float;#4.00000000000000float;#2018.00000000000string;#Aprilfloat;#201804.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance
The Regulated Conduct Doctrine Brews a Defence for Competition Class Action Against the Beer Storehttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=326The Regulated Conduct Doctrine Brews a Defence for Competition Class Action Against the Beer Store326BLG Blog PostDenes Rothschild;Danielle Ridoutdrothschild@blg.com | Denes Rothschild | 693A30232E777C626C6763616E6164615C64726F7468736368696C64 i:0#.w|blgcanada\drothschild;dridout@blg.com | Danielle Ridout | 693A30232E777C626C6763616E6164615C647269646F7574 i:0#.w|blgcanada\dridout ​The Ontario Superior Court of Justice recently granted summary judgment dismissing a $1.4 billion competition class action against the Beer Store, its owners and the LCBO, holding that the regulated conduct defence to otherwise criminal violations of the cartel provisions of the Competition Act applied. The decision reaffirms the strength and breadth of this defence, which allows for conduct to be exempt from application of the federal Competition Act when it is permitted, authorized or mandated by a validly enacted provincial law, including confirming that it can apply to civil competition damages claims.<p>​The Ontario Superior Court of Justice recently granted summary judgment dismissing a $1.4 billion competition class action against the Beer Store, its owners and the LCBO, holding that the regulated conduct defence to otherwise criminal violations of the cartel provisions of the <em>Competition Act</em> applied. The decision reaffirms the strength and breadth of this defence, which allows for conduct to be exempt from application of the federal <em>Competition Act</em> when it is permitted, authorized or mandated by a validly enacted provincial law, including confirming that it can apply to civil competition damages claims.</p> In a decision using metaphors ranging from the sinking of the Bismarck to a baseball game and a tennis match, the Ontario Superior Court of Justice recently granted summary judgment to the defendants in a $1.4 billion competition class action lawsuit against Ontario's privately-held but government-authorized beer store monopoly, Brewers Retail Inc. ("Beer Store"), its multi-national beer company owners, and the province's government-owned liquor store monopoly, the Liquor Control Board of Ontario ("LCBO") (collectively, the "Defendants").1 The decision is important because it reaffirms the strength and breadth of the Regulated Conduct Defence ("RCD") to the criminal conspiracy provisions of the Competition Act, and confirmed that the RCD can be relied on by defendants in defence of civil claims for damages alleged to result from conduct that violates these criminal conspiracy provisions. The RCD provides that conduct will be exempt from application of the criminal conspiracy provisions under the Competition Act when it is permitted, authorized or mandated by another validly enacted federal or provincial law. It has long existed at common law, and was explicitly codified in the Competition Act in 2010. The plaintiffs claimed that the Defendants conspired to "fix, raise, maintain or stabilize prices of beer in Ontario," contrary to section 45 of the Competition Act. The action stemmed from the 2014 public revelation of a "Beer Framework Agreement" between the LCBO and the Beer Store (the "Agreement"), signed in 2000, under which the LCBO, ordered by the provincial Cabinet minister with responsibility for its affairs under provincial law, agreed not to sell various beer products, including packages of more than six bottles or cans of beer. The Defendants brought a motion for summary judgment, arguing that the RCD applied because the Agreement was an authorized activity of a regulated industry, and that it thereby could not violate section 45 of the Competition Act. The plaintiffs argued that the RCD did not apply, both because the Competition Act does not specifically provide that the RCD applies to civil claims for damages resulting from violations of the criminal conspiracy provisions, and because the Agreement was a commercial contract that was not entered under the authority of a provincial law. Justice Paul Perell noted in his judgment that in order for the RCD to be available, the impugned conduct must be required, directed or authorized by the claimed provincial or federal legislation. In addition, Justice Perell stated that the person relying on the RCD must identify in the legislation governing its industry or profession a specific provision that expressly or by necessary implication directs or authorizes the person to engage in the impugned conduct. On this basis, Justice Perell ruled for the Defendants, finding that although the Agreement was a contract, because it was entered directly under the authority conferred on the LCBO and Beer Store under the provincial Liquor Control Act, it was fell squarely "in the wheelhouse" of the RCD. Furthermore, the Ontario government had made amendments to the Liquor Control Act in 2015 specifically authorizing the Agreement, with retroactive effect. Justice Perell found that such retroactive authorization was sufficient to ground reliance on the RCD, and that therefore if he was wrong in finding that the initial Agreement was saved from the criminal conspiracy provisions by the RCD, the retroactive amendment to the Liquor Control Act would lead to the same result. Also significantly, Justice Perell confirmed that the RCD equally applies in defence of civil claims that rely on apparent violations of the criminal conspiracy provisions of the Competition Act, stating that allowing the defence to apply only in criminal actions and not civil would lead "to the absurd result that Crown agencies and private entities authorized by both provincial law and the applicable regulator to act would be protected from criminal sanctions but be civilly liable for conduct expressly authorized, or even required, by valid provincial law." Therefore, if a business is operating under express provincial legislation which authorizes their conduct, they would be able to rely on the RCD to defend against both criminal penalties, as well as any potential class actions filed against their conduct. 1 Hughes v Liquor Control Board of Ontario, 2018 ONSC 1723.<p>In a decision using metaphors ranging from the sinking of the Bismarck to a baseball game and a tennis match, the Ontario Superior Court of Justice recently granted summary judgment to the defendants in a $1.4 billion competition class action lawsuit against Ontario's privately-held but government-authorized beer store monopoly, Brewers Retail Inc. ("Beer Store"), its multi-national beer company owners, and the province's government-owned liquor store monopoly, the Liquor Control Board of Ontario ("LCBO") (collectively, the "Defendants").<sup>1</sup></p><p>The decision is important because it reaffirms the strength and breadth of the Regulated Conduct Defence ("RCD") to the criminal conspiracy provisions of the <em>Competition Act</em>, and confirmed that the RCD can be relied on by defendants in defence of civil claims for damages alleged to result from conduct that violates these criminal conspiracy provisions. The RCD provides that conduct will be exempt from application of the criminal conspiracy provisions under the <em>Competition Act</em> when it is permitted, authorized or mandated by another validly enacted federal or provincial law. It has long existed at common law, and was explicitly codified in the <em>Competition Act</em> in 2010.</p><p>The plaintiffs claimed that the Defendants conspired to "fix, raise, maintain or stabilize prices of beer in Ontario," contrary to section 45 of the <em>Competition Act</em>. The action stemmed from the 2014 public revelation of a "Beer Framework Agreement" between the LCBO and the Beer Store (the "Agreement"), signed in 2000, under which the LCBO, ordered by the provincial Cabinet minister with responsibility for its affairs under provincial law, agreed not to sell various beer products, including packages of more than six bottles or cans of beer. </p><p>The Defendants brought a motion for summary judgment, arguing that the RCD applied because the Agreement was an authorized activity of a regulated industry, and that it thereby could not violate section 45 of the <em>Competition Act</em>. The plaintiffs argued that the RCD did not apply, both because the <em>Competition Act</em> does not specifically provide that the RCD applies to civil claims for damages resulting from violations of the criminal conspiracy provisions, and because the Agreement was a commercial contract that was not entered under the authority of a provincial law.</p><p>Justice Paul Perell noted in his judgment that in order for the RCD to be available, the impugned conduct must be required, directed or authorized by the claimed provincial or federal legislation. In addition, Justice Perell stated that the person relying on the RCD must identify in the legislation governing its industry or profession a specific provision that expressly or by necessary implication directs or authorizes the person to engage in the impugned conduct. </p><p>On this basis, Justice Perell ruled for the Defendants, finding that although the Agreement was a contract, because it was entered directly under the authority conferred on the LCBO and Beer Store under the provincial <em>Liquor Control Act</em>, it was fell squarely "in the wheelhouse" of the RCD. Furthermore, the Ontario government had made amendments to the <em>Liquor Control Act </em>in 2015 specifically authorizing the Agreement, with retroactive effect. Justice Perell found that such retroactive authorization was sufficient to ground reliance on the RCD, and that therefore if he was wrong in finding that the initial Agreement was saved from the criminal conspiracy provisions by the RCD, the retroactive amendment to the <em>Liquor Control Act </em>would lead to the same result.</p><p>Also significantly, Justice Perell confirmed that the RCD equally applies in defence of civil claims that rely on apparent violations of the criminal conspiracy provisions of the <em>Competition Act</em>, stating that allowing the defence to apply only in criminal actions and not civil would lead "to the absurd result that Crown agencies and private entities authorized by both provincial law and the applicable regulator to act would be protected from criminal sanctions but be civilly liable for conduct expressly authorized, or even required, by valid provincial law."  Therefore, if a business is operating under express provincial legislation which authorizes their conduct, they would be able to rely on the RCD to defend against both criminal penalties, as well as any potential class actions filed against their conduct. </p><p> </p><hr /><p> </p><p><sup>1</sup> <a href="https://www.canlii.org/en/on/onsc/doc/2018/2018onsc1723/2018onsc1723.html" target="_blank"><em>Hughes v Liquor Control Board of Ontario</em>, 2018 ONSC 1723.</a></p>3/22/2018 4:00:00 AM2018-03-22T04:00:00ZTrue1float;#3.00000000000000float;#2018.00000000000string;#Marchfloat;#201803.000000000GP0|#11984f46-19e7-4b16-acce-db2c31f12bae;L0|#011984f46-19e7-4b16-acce-db2c31f12bae|Fraud and White Collar Crime;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and ComplianceFraud and White Collar Crime;Securities: Litigation Regulatory and Compliance
Grey Market Candy, Restraint of Trade and Settlement Agreementshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=324Grey Market Candy, Restraint of Trade and Settlement Agreements324BLG Blog PostNicolas Busingernbusinger@blg.com | Nicolas Businger | 693A30232E777C626C6763616E6164615C6E627573696E676572 i:0#.w|blgcanada\nbusinger ​The Ontario Court of Appeal refuses to set aside settlement agreements on the basis of the common law doctrine of restraint of trade. <p>​<span style="font-size:11pt;line-height:115%;font-family:calibri, sans-serif;">The Ontario Court of Appeal refuses to set aside settlement agreements on the basis of the common law doctrine of restraint of trade.</span><br></p>In Mars Canada Inc. v. Bemco Cash & Carry Inc., the Ontario Court of Appeal upheld a finding granted on summary judgment that the appellants had breached their settlement agreements and rejected their argument that the agreements were invalid for being an improper restraint of trade.The appellants were involved in "grey market" trade of Mars trade-marked products, buying genuine branded products such as Mars, Snickers and M&Ms in the United States and then importing them for sale in Canada at retail prices below those offered by the respondent's local distributors.Instead of advancing a defence of the lawfulness of their activities, the appellants entered into settlement agreements agreeing not to import or sell Mars products in Canada without the respondent's consent. After they were found violating these settlement agreements, the appellants argued that the agreements were void for being an improper restraint of trade.The Court of Appeal rejected the argument and upheld the analysis of the Superior Court judge, who noted that settlement agreements are strongly favoured and supported by the law. The Court of Appeal further found that the settlement was unquestionably reasonable when considering the interests of the parties since it resolved their dispute and defined the scope of their trading rights.The Court of Appeal further upheld the judge's decisions to direct a reference to determine the respondent's damages and to award costs against the appellants on a substantial indemnity basis. In hearing the motion for summary judgment, the judge had the jurisdiction to decide the issue of liability and then order a reference as to damages. The Court of Appeal similarly deferred on the question of costs, where the judge had found the appellants had engaged in "hardball tactics" and that they ought to have reasonably anticipated that their conduct would run up substantial legal fees.The Court of Appeal's decision emphasizes the regard the courts have with respect to settlement agreements, especially where the parties are sophisticated business people represented by top-flight legal counsel and in the midst of serious litigation. <p style="text-align:justify;">In <a href="https://www.canlii.org/en/on/onca/doc/2018/2018onca239/2018onca239.html" target="_blank">Mars Canada Inc. v. Bemco Cash & Carry Inc.,</a> the Ontario Court of Appeal upheld a finding granted on summary judgment that the appellants had breached their settlement agreements and rejected their argument that the agreements were invalid for being an improper restraint of trade.</p><p style="text-align:justify;">The appellants were involved in "grey market" trade of Mars trade-marked products, buying genuine branded products such as Mars, Snickers and M&Ms in the United States and then importing them for sale in Canada at retail prices below those offered by the respondent's local distributors.</p><p style="text-align:justify;">Instead of advancing a defence of the lawfulness of their activities, the appellants entered into settlement agreements agreeing not to import or sell Mars products in Canada without the respondent's consent.  After they were found violating these settlement agreements, the appellants argued that the agreements were void for being an improper restraint of trade.</p><p style="text-align:justify;">The Court of Appeal rejected the argument and upheld the analysis of the Superior Court judge, who noted that settlement agreements are strongly favoured and supported by the law.  The Court of Appeal further found that the settlement was unquestionably reasonable when considering the interests of the parties since it resolved their dispute and defined the scope of their trading rights.</p><p style="text-align:justify;">The Court of Appeal further upheld the judge's decisions to direct a reference to determine the respondent's damages and to award costs against the appellants on a substantial indemnity basis.  In hearing the motion for summary judgment, the judge had the jurisdiction to decide the issue of liability and then order a reference as to damages.  The Court of Appeal similarly deferred on the question of costs, where the judge had found the appellants had engaged in "hardball tactics" and that they ought to have reasonably anticipated that their conduct would run up substantial legal fees.</p><p style="text-align:justify;">The Court of Appeal's decision emphasizes the regard the courts have with respect to settlement agreements, especially where the parties are sophisticated business people represented by top-flight legal counsel and in the midst of serious litigation.<br></p><p><br></p>3/21/2018 4:00:00 AM2018-03-21T04:00:00ZTrue1float;#3.00000000000000float;#2018.00000000000string;#Marchfloat;#201803.000000000GP0|#11984f46-19e7-4b16-acce-db2c31f12bae;L0|#011984f46-19e7-4b16-acce-db2c31f12bae|Fraud and White Collar Crime;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategyFraud and White Collar Crime;Litigation Strategy
Securities Commissions Provide Guidance on New Take­–Over Bid Regime http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=325Securities Commissions Provide Guidance on New Take­–Over Bid Regime 325BLG Blog PostPhilippe Tardif;Jason Saltzman;Mark Wheeler;Graham Splawski;Ashley Thomassenptardif@blg.com | Philippe Tardif | 693A30232E777C626C6763616E6164615C70746172646966 i:0#.w|blgcanada\ptardif;jsaltzman@blg.com | Jason Saltzman | 693A30232E777C626C6763616E6164615C6A73616C747A6D616E i:0#.w|blgcanada\jsaltzman;mwheeler@blg.com | Mark Wheeler | 693A30232E777C626C6763616E6164615C6D776865656C6572 i:0#.w|blgcanada\mwheeler;gsplawski@blg.com | Graham Splawski | 693A30232E777C626C6763616E6164615C6773706C6177736B69 i:0#.w|blgcanada\gsplawski;athomassen@blg.com | Ashley Thomassen | 693A30232E777C626C6763616E6164615C6174686F6D617373656E i:0#.w|blgcanada\athomassen In Aurora Cannabis Inc. (Re), 2018 ONSEC 10, the Ontario Securities Commission and the Saskatchewan Financial and Consumer Affairs Authority (the “Commissions”) recently, and for the first time, provided guidance on the conduct of hostile take-over bids under the new Canadian regulatory regime, which came into force in early 2016. The Commissions held that, in essence, the take-over bid regime is a nearly complete code. Notably, the Commissions held that tactical shareholder rights plans will rarely be allowed; the minimum bid period will seldom be abridged beyond the enumerated exceptions; and, the bidder’s ability to purchase up to 5 per cent of shares of the target on the open market will rarely be negated.<p>In <em>Aurora Cannabis Inc. (Re)</em>, 2018 ONSEC 10, the Ontario Securities Commission and the Saskatchewan Financial and Consumer Affairs Authority (the “Commissions”) recently, and for the first time, provided guidance on the conduct of hostile take-over bids under the new Canadian regulatory regime, which came into force in early 2016. The Commissions held that, in essence, the take-over bid regime is a nearly complete code. Notably, the Commissions held that: tactical shareholder rights plans will rarely be allowed; the minimum bid period will seldom be abridged beyond the enumerated exceptions; and, the bidder’s ability to purchase up to 5 per cent of shares of the target on the open market will rarely be negated.</p>Background In November 2017, Aurora Cannabis Inc. (“Aurora”) launched a hostile take-over bid for all of the issued and outstanding common shares of CanniMed Therapeutics Inc. (“CanniMed”). In the months prior to the bid, CanniMed had been in exclusive negotiations with Newstrike Resources Ltd. (“Newstrike”) related to a potential acquisition of Newstrike by CanniMed. Two nominee directors on the CanniMed board of directors ("CanniMed Board") and one of CanniMed’s large institutional shareholders, Vantage Asset Management (“Vantage”), opposed the Newstrike transaction and insisted that CanniMed would be better to pursue a strategic sale process. Unhappy with CanniMed’s pursuit of the Newstrike transaction which was nearing an agreement between the parties, and unbeknownst to the CanniMed Board, Vantage approached Aurora to suggest it pursue a business combination with CanniMed. Aurora subsequently entered into “hard” lock-up agreements with Vantage and other CanniMed shareholders representing approximately 38 per cent of CanniMed’s then issued and outstanding shares. Just days before CanniMed announced it had entered into a binding agreement with Newstrike, Aurora submitted a non-binding proposal to acquire CanniMed. After further deliberations, the CanniMed Board determined to proceed with the transaction with Newstrike and on November 17, 2017, entered into a binding agreement that provided for the purchase of all of Newstrike’s common shares by CanniMed pursuant to a plan of arrangement. On November 24, 2017, Aurora commenced its hostile bid with one of the conditions being the termination of the Newstrike arrangement agreement. In response to the bid, and on the recommendation of a special committee of independent directors of the CanniMed Board (the “Special Committee”), CanniMed adopted a shareholder rights plan (the “Plan”). The Plan precluded Aurora from acquiring any CanniMed shares (at the time it did not own any) or from entering into any additional lock-up agreements in respect of the bid. In November and December 2017, Aurora, CanniMed, and the Special Committee all brought applications to the Commissions, and the applications were heard on an urgent basis. On December 22, 2017, following a simultaneous hearing with the FCAA (Saskatchewan) and the OSC, the Commissions issued orders (1) denying Aurora’s application to shorten the 105-day minimum deposit period; (2) denying CanniMed’s cross-application to prohibit Aurora from acquiring 5 per cent of CanniMed common shares; (3) finding there was insufficient evidence to establish the locked-up shareholders were acting jointly or in concert with Aurora; (4) requiring Aurora to issue amended new releases and an amended take-over bid circular to disclose certain information that could reasonably affect CanniMed shareholders’ decision to accept or reject the offer; and (5) cease trading the Plan. Key Points in Commissions' Guidance The Commissions took this opportunity to make clear that the amendments to the take-over bid regime that were made in 2016 are largely meant to ensure predictability of the regime. Alternative Transaction Determination With respect to Aurora’s application to shorten the minimum deposit period, the Commissions found the policy rationale for the “alternative transaction exception” did not exist in this case. Aurora’s decision to include, as a condition of its bid, that the Newstrike transaction not be completed could not transform the Newstrike transaction into an "alternative transaction." Interestingly, however, by indicating that the developed strategic rationale and the history and timing of the Newstrike transaction “convinced [the Commissions] that the acquisition was not intended as a defensive tactic” against the bid, the Commissions’ statement could possibly be interpreted as suggesting that if the Newstrike transaction was found to be an impermissible defensive tactic, it may have been characterized as an alternative transaction for the purposes of the exception. Shareholder Rights Plan Further, the Commissions made clear that, except in rare circumstances, tactical shareholder rights plans will not be permitted. The Commissions stated that a plan that simply reiterates the requirements of the current take-over bid regime would serve no purpose and potentially confuse investors whereas given the protections of the new take-over bid regime, there rarely would be a need to provide for any further protections. The Commissions found that the rebalancing of the take-over bid regime by mandating the 105-day deposit period, the minimum 50 per cent tender condition and the mandatory 10-day extension following satisfaction of conditions, provided sufficient protections in this case, and likely in most cases, to facilitate shareholder choice. Moreover, the Commissions found that the Plan “could not primarily be said to be giving the Board time to conduct an auction to allow time for higher bids to emerge.” It appears that only in rare and unique circumstances will the Commissions permit a target of a hostile bid to keep a tactical rights plan in place. Lock-Up Agreements and Joint Actors Finally, despite the Commissions’ finding of fact that Aurora’s bid was commenced based on material non-public information (“MNPI”) from Vantage, the Commissions concluded there was insufficient evidence for a finding that the locked-up shareholder were acting jointly or in concert with Aurora. Relying in part on the language in the regulation (subsection 1.9(3) of NI 62-104), the Commissions clarified that lock-up agreements are acceptable business tools and not necessarily indicative of joint actor status. The Commissions noted that the presumption that an agreement to exercise voting rights leads to a joint actor status can be rebutted, where the voting rights are tailored to be consistent with and to support otherwise permissible commitments to tender a party’s securities to the bid. Further, despite ordering Aurora to amend its news releases and takeover bid circular, the Commissions found that once CanniMed announced that it had entered into the Newstrike arrangement agreement, the receipt of the MNPI was, for Aurora, cleansed by such disclosure. These findings signal that the Commissions will likely be reluctant to make a finding of joint actor status without clear and substantive evidence of coordination, such as economic sharing or transferring voting rights or entitlements.BLG Team BLG represented CanniMed in all aspects of the transactions with Newstrike and Aurora, including at the hearings before the Commissions. The BLG securities team was led by Philippe Tardif with support from Jason Saltzman, Andrew Powers, Mark Wheeler, Colin Cameron-Vendrig, Rocky Swanson, and Joseph DiPonio. The BLG litigation team was led by James D. G. Douglas and Caitlin Sainsbury with support from Graham Splawski and Ashley Thomassen. <h4>Background</h4><p>In November 2017, Aurora Cannabis Inc. (“Aurora”) launched a hostile take-over bid for all of the issued and outstanding common shares of CanniMed Therapeutics Inc. (“CanniMed”). In the months prior to the bid, CanniMed had been in exclusive negotiations with Newstrike Resources Ltd. (“Newstrike”) related to a potential acquisition of Newstrike by CanniMed. Two nominee directors on the CanniMed board of directors ("CanniMed Board") and one of CanniMed’s large institutional shareholders, Vantage Asset Management (“Vantage”), opposed the Newstrike transaction and insisted that CanniMed would be better to pursue a strategic sale process. </p><p>Unhappy with CanniMed’s pursuit of the Newstrike transaction which was nearing an agreement between the parties, and unbeknownst to the CanniMed Board, Vantage approached Aurora to suggest it pursue a business combination with CanniMed. Aurora subsequently entered into “hard” lock-up agreements with Vantage and other CanniMed shareholders representing approximately 38 per cent of CanniMed’s then issued and outstanding shares. Just days before CanniMed announced it had entered into a binding agreement with Newstrike, Aurora submitted a non-binding proposal to acquire CanniMed. After further deliberations, the CanniMed Board determined to proceed with the transaction with Newstrike and on November 17, 2017, entered into a binding agreement that provided for the purchase of all of Newstrike’s common shares by CanniMed pursuant to a plan of arrangement. On November 24, 2017, Aurora commenced its hostile bid with one of the conditions being the termination of the Newstrike arrangement agreement. </p><p>In response to the bid, and on the recommendation of a special committee of independent directors of the CanniMed Board (the “Special Committee”), CanniMed adopted a shareholder rights plan (the “Plan”). The Plan precluded Aurora from acquiring any CanniMed shares (at the time it did not own any) or from entering into any additional lock-up agreements in respect of the bid.</p><p>In November and December 2017, Aurora, CanniMed, and the Special Committee all brought applications to the Commissions, and the applications were heard on an urgent basis. </p><p> On December 22, 2017, following a simultaneous hearing with the FCAA (Saskatchewan) and the OSC, the Commissions issued orders (1) denying Aurora’s application to shorten the 105-day minimum deposit period; (2) denying CanniMed’s cross-application to prohibit Aurora from acquiring 5 per cent of CanniMed common shares; (3) finding there was insufficient evidence to establish the locked-up shareholders were acting jointly or in concert with Aurora; (4) requiring Aurora to issue amended new releases and an amended take-over bid circular to disclose certain information that could reasonably affect CanniMed shareholders’ decision to accept or reject the offer; and (5) cease trading the Plan.</p><h4> Key Points in Commissions' Guidance </h4><p>The Commissions took this opportunity to make clear that the amendments to the take-over bid regime that were made in 2016 are largely meant to ensure predictability of the regime.<strong></strong></p><p> <strong>Alternative Transaction Determination</strong></p><p>With respect to Aurora’s application to shorten the minimum deposit period, the Commissions found the policy rationale for the “alternative transaction exception” did not exist in this case. Aurora’s decision to include, as a condition of its bid, that the Newstrike transaction not be completed could not transform the Newstrike transaction into an "alternative transaction." Interestingly, however, by indicating that the developed strategic rationale and the history and timing of the Newstrike transaction “convinced [the Commissions] that the acquisition was not intended as a defensive tactic” against the bid, the Commissions’ statement could possibly be interpreted as suggesting that if the Newstrike transaction was found to be an impermissible defensive tactic, it may have been characterized as an alternative transaction for the purposes of the exception. </p><p> <strong>Shareholder Rights Plan</strong></p><p>Further, the Commissions made clear that, except in rare circumstances, tactical shareholder rights plans will not be permitted. The Commissions stated that a plan that simply reiterates the requirements of the current take-over bid regime would serve no purpose and potentially confuse investors whereas given the protections of the new take-over bid regime, there rarely would be a need to provide for any further protections. The Commissions found that the rebalancing of the take-over bid regime by mandating the 105-day deposit period, the minimum 50 per cent tender condition and the mandatory 10-day extension following satisfaction of conditions, provided sufficient protections in this case, and likely in most cases, to facilitate shareholder choice. Moreover, the Commissions found that the Plan “could not primarily be said to be giving the Board time to conduct an auction to allow time for higher bids to emerge.” It appears that only in rare and unique circumstances will the Commissions permit a target of a hostile bid to keep a tactical rights plan in place.</p><p> <strong>Lock-Up Agreements and Joint Actors</strong></p><p>Finally, despite the Commissions’ finding of fact that Aurora’s bid was commenced based on material non-public information (“MNPI”) from Vantage, the Commissions concluded there was insufficient evidence for a finding that the locked-up shareholder were acting jointly or in concert with Aurora. Relying in part on the language in the regulation (subsection 1.9(3) of NI 62-104), the Commissions clarified that lock-up agreements are acceptable business tools and not necessarily indicative of joint actor status. The Commissions noted that the presumption that an agreement to exercise voting rights leads to a joint actor status can be rebutted, where the voting rights are tailored to be consistent with and to support otherwise permissible commitments to tender a party’s securities to the bid. Further, despite ordering Aurora to amend its news releases and takeover bid circular, the Commissions found that once CanniMed announced that it had entered into the Newstrike arrangement agreement, the receipt of the MNPI was, for Aurora, cleansed by such disclosure. These findings signal that the Commissions will likely be reluctant to make a finding of joint actor status without clear and substantive evidence of coordination, such as economic sharing or transferring voting rights or entitlements.</p><h4>BLG Team </h4><p>BLG represented CanniMed in all aspects of the transactions with Newstrike and Aurora, including at the hearings before the Commissions. </p><p>The <a href="http://blg.com/en/Expertise/Pages/SecuritiesCapitalMarketsAndPublicCompanies.aspx" target="_blank">BLG securities team</a> was led by <a href="http://blg.com/en/Our-People/Pages/Tardif-Philippe.aspx" target="_blank">Philippe Tardif</a> with support from <a href="http://blg.com/en/Our-People/Pages/Saltzman-Jason.aspx" target="_blank">Jason Saltzman</a>, <a href="http://blg.com/en/Our-People/Pages/Powers-Andrew.aspx" target="_blank">Andrew Powers</a>, <a href="http://blg.com/en/Our-People/Pages/Wheeler-Mark.aspx" target="_blank">Mark Wheeler</a>, <a href="http://blg.com/en/Our-People/Pages/CameronVendrig-Colin.aspx" target="_blank">Colin Cameron-Vendrig</a>, <a href="http://blg.com/en/Our-People/Pages/Swanson-Rocky.aspx" target="_blank">Rocky Swanson</a>, and <a href="http://blg.com/en/Our-People/Pages/DiPonio-Joseph.aspx" target="_blank">Joseph DiPonio</a>.</p><p>The <a href="http://blg.com/en/Expertise/Pages/LitigationAndArbitration.aspx" target="_blank">BLG litigation team</a> was led by <a href="http://blg.com/en/Our-People/Pages/Douglas-James.aspx" target="_blank">James D. G. Douglas</a> and <a href="http://blg.com/en/Our-People/Pages/Sainsbury-Cait.aspx" target="_blank">Caitlin Sainsbury</a> with support from <a href="http://blg.com/en/Our-People/Pages/Splawski-Graham.aspx" target="_blank">Graham Splawski</a> and <a href="http://blg.com/en/Our-People/Pages/Thomassen-Ashley.aspx" target="_blank">Ashley Thomassen</a>. </p>3/20/2018 4:00:00 AM2018-03-20T04:00:00ZTrue1float;#3.00000000000000float;#2018.00000000000string;#Marchfloat;#201803.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategySecurities: Litigation Regulatory and Compliance;Litigation Strategy