Topic: Class actions

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Managing Securities Litigation Risks in the Age of Uncertainty

Linda FuerstDharshini SinnaduraiBy Linda Fuerst and Dharshini Sinnadurai on Posted in Civil claims, Class actions, Legislation, rules and policies, Other developments
The price at which securities of many Canadian issuers are trading has been significantly affected by the global coronavirus pandemic. This will almost certainly impact their risk of litigation arising from the accuracy their public disclosures. For companies that are dual listed in the United States, the risks are likely enhanced. These risks appear to … Continue reading

Directors and officers face increased liability risk due to climate change

Gerard G. PechtSeth M. KruglakLisa SchapiraBy Gerard G. Pecht, Seth M. Kruglak and Lisa Schapira on Posted in Civil claims, Class actions, Cross border issues, Securities regulatory decisions
Climate change has been a focus in the United States for quite some time now, and the US Securities and Exchange Commission (SEC) published interpretive guidance on climate change disclosures a decade ago. However, the times are changing—and the potential liability for directors and officers has never been higher. Climate change disclosures have been debated … Continue reading

Proposed Changes to the Ontario Class Proceedings Act, 1992 Would Benefit Defendants and Their Insurers in Securities Class Actions

Linda FuerstBy Linda Fuerst on Posted in Class actions, Cross border issues, Other developments
The Ontario government’s recent announcement of proposed changes to Ontario’s class proceedings legislation bodes well for defendants and their insurers. If the amendments become law, they would provide greater latitude to defendants seeking to narrow or dismiss claims prior to certification, make certification a somewhat steeper hill for class counsel to climb, and provide mechanisms … Continue reading

Clearing the Way: “Ice Breaker” Settlements in Class Actions

Linda FuerstBy Linda Fuerst on Posted in Class actions, Other developments
In a recent class action settlement approval hearing, Justice Belobaba of the Ontario Superior Court affirmed the value of early “ice breaker” settlements in complex class actions involving multiple defendants. In such a settlement, one defendant settles ahead of the rest for what may be viewed as a “token” amount, along with a pledge to … Continue reading

US Second Circuit rules Issuer’s statements concerning regulatory compliance too generic to constitute material misstatements

Geoff MensBy Geoff Mens on Posted in Class actions, Cross border issues
On March 5, 2019, the United States Court of Appeal for the Second Circuit affirmed the dismissal of a class action claim alleging securities fraud based on purportedly misleading statements made by an Issuer regarding its regulatory compliance efforts. The Second Circuit concluded that the Issuer’s statements were too generic to cause a reasonable investor … Continue reading

Alberta Securities Commission Declines to Stay Enforcement Proceedings In Face of Parallel Class Actions

Steven LeitlBy Steven Leitl on Posted in Class actions, Securities regulatory decisions
In February 2019, the Alberta Securities Commission (ASC) declined to stay the hearing of pending ASC enforcement proceedings on the basis of the existence of parallel, pending class action proceedings. Background In June 2018, Staff of the ASC issued a notice of hearing against Alberta divisions of the Lutheran Church-Canada and several of their former … Continue reading

Motion Judge Erred in Law by Approving Class Counsel’s Fees

Fahad SiddiquiBy Fahad Siddiqui on Posted in Class actions, Other developments
The Court of Appeal for Ontario recently set aside a decision approving the legal fees of class counsel on the condition that counsel would donate 40% of the approved fees to charity. The appeal provides useful guidance for practitioners on fee approval motions in class actions. The Settlement Agreement Welsh v. Ontario, 2019 ONCA 41 … Continue reading

A tough break for third party litigation funding in Ontario? Not so fast.

Linda FuerstSaam Pousht-MashhadBy Linda Fuerst and Saam Pousht-Mashhad on Posted in Class actions, Other developments
The Ontario Superior Court (ONSC) issued two back-to-back decisions on acceptable litigation financing agreements, both involving the same third party funder.  While the ONSC continues to approve classic litigation financing arrangements, uncertainty remains as to whether third party financiers may profitably fund counsel fees in the context of class actions. Classic funding schemes continue to … Continue reading

Take Note: Class Action Defendants May be Ordered to Bear the Costs of Notice to Class Members

Securities litigation and enforcementBy Danny Urquhart on Posted in Class actions
Justice Perell’s decision in Fantl v. ivari, teaches class action defendants an important lesson in being careful what they wish for.  In a rare decision, he ordered that a defendant contribute the majority of the costs of providing potential class members with notice of certification. Background When a class action is certified by a court, … Continue reading

The Importance of Materiality in Secondary Market Misrepresentation Claims: Paniccia v. MDC Partners Inc. Securities Class Action

Linda FuerstBy Linda Fuerst and Danny Urquhart on Posted in Civil claims, Class actions, Cross border issues
In the recent decision of Paniccia v MDC Partners Inc., Perell J. refused to grant leave to proceed with a putative secondary market securities class action under Part XXIII.1 of the Ontario Securities Act (OSA) against MDC Partners Inc and certain of its officers on the basis that the alleged misrepresentations were not material.  The … Continue reading

US Supreme Court puts an end to untimely piggyback class actions

Darryl Anderson (US)Dan McClureGeraldine YoungLauren BrogdonBy Darryl Anderson (US), Dan McClure, Geraldine Young and Lauren Brogdon on Posted in Class actions, Cross border issues, Other developments
Companies confronting serial class actions won much needed relief from the US Supreme Court yesterday, in a decision that held that a class action tolls statutes of limitations only for putative class members’ individual claims, and not for later-filed class actions. A second class action must be filed within the limitations period, or it is … Continue reading

UPDATE: No Room for Double Talk: The Ontario Court of Appeal Addresses Restatements, the Reasonable Investigation Defence and the Test for Leave in Rahimi v. SouthGobi Resources Ltd.

Linda FuerstBy Linda Fuerst on Posted in Class actions, Other developments
On May 31, 2018, the Supreme Court of Canada denied SouthGobi Resources Ltd.’s application for leave to appeal the decision of the Ontario Court of Appeal, which I provided an update on October 7, 2018.  The Court of Appeal decision provides guidance concerning the availability of the defence of reasonable investigation to a claim under Part … Continue reading

Reforming Class Actions in Ontario – Your Input Please!

Randy SuttonBy Randy Sutton and Danny Urquhart on Posted in Class actions, Other developments
On March 9, 2018, the Law Commission of Ontario (LCO) released its Consultation Paper entitled “Class Actions: Objectives, Experiences and Reforms”. The Consultation Paper is the next phase of the LCO’s Class Actions Project which is set to conduct a general review of the class action landscape in Ontario, with a view to providing a … Continue reading

CBA Proposal for a Framework to Facilitate Court to Court Communication and Coordination of Overlapping Class Actions Clears the First Hurdle

Linda FuerstBy Linda Fuerst on Posted in Class actions, Cross border issues, Other developments
(The author was a member of the CBA National Class Actions Task Force 2016-2017) At the CBA Annual Meeting on February 15, 2018, a resolution to approve, as best practices, a revised Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions was approved.  The resolution also urges Canadian courts that administer class actions to … Continue reading

Class actions come to the cryptocurrency markets

Linda FuerstBy Linda Fuerst and Danny Urquhart on Posted in Class actions, Other developments
In the U.S. there has been an notable uptick in class action lawsuits launched against companies in the cryptocurrency market in late 2017. As public attention turned to the roller-coaster ride of cryptocurrency markets over the past year, it is not surprising that ambitious class counsel have jumped on the ride by issuing their first … Continue reading

Ontario Court confirms jurisdiction over claims of all Canadians who purchased shares on NASDAQ and TSX: Paniccia v. MDC Partners Inc. et al, 2017 ONSC 7298

Kaitlin SmileyBy Kaitlin Smiley on Posted in Class actions, Cross border issues
Plaintiffs in class action claims for misrepresentation in the secondary market recently scored a victory when the Ontario Superior Court of Justice determined[1] that not only does it have jurisdiction over these claims brought by Canadians who purchased shares of a company registered in Canada on a foreign stock exchange, but that Canadian securities and … Continue reading

Leave to Appeal Denied in Wong v Pretium Resources

Linda FuerstBy Linda Fuerst on Posted in Class actions
In a previous post, You Get it Right and it’s Still a Misrepresentation: the Paradox in Pretium, we reported on the decision of Justice Belobaba in Wong v Pretium Resources Inc. granting leave to the plaintiff to commence an action for secondary market misrepresentation under Part XXIII.1 of the Ontario Securities Act. On December 1, … Continue reading

Ontario Superior Court Grants Costs Exceeding $1 million to Successful Defendants in “Entrepreneurial” Class Action

Linda FuerstBy Linda Fuerst on Posted in Class actions
The Yip v. HSBC Holdings plc[1] saga continues with the granting of a costs award in the amount to $1,000,455.22 to the successful defendants following a successful motion by the corporate defendant to stay the action on jurisdictional grounds and an unsuccessful cross-motion by the plaintiff for a declaration that the corporate defendant was a … Continue reading

No Common Law Duty of Care Owed by Underwriters to Investors in a Bought Deal: LBP Holdings Ltd. v. Hycroft Mining Corporation, 2017 ONSC 6342

Linda FuerstBy Linda Fuerst on Posted in Class actions
No Common Law Duty of Care Owed by Underwriters to Investors in a Bought Deal: LBP Holdings Ltd. v. Hycroft Mining Corporation, 2017 ONSC 6342 On October 24, 2017, Justice Perell of the Ontario Superior Court of Justice dismissed a motion to certify claims for negligent misrepresentation and negligence against two underwriters primarily on the … Continue reading

Mitigating Securities Litigation Risk From Software Problems

Gerard G. PechtPeter A. StokesBy Gerard G. Pecht and Peter A. Stokes on Posted in Class actions, Other developments
Public companies can face significant securities litigation risk over defective algorithms, data errors and software glitches. As securities class action filings continue to increase across the board, plaintiffs lawyers have attacked numerous companies over stock price declines that occur after software problems are revealed. Recent court decisions denying dismissal in securities class actions against Fitbit … Continue reading

No Room for Double Talk: The Ontario Court of Appeal Addresses Restatements, the Reasonable Investigation Defence and the Test for Leave in Rahimi v. SouthGobi Resources Ltd.

Linda FuerstBy Linda Fuerst on Posted in Class actions, Other developments
The recent decision of the Ontario Court of Appeal in Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719 provides further guidance concerning the role of the judge on a motion for leave to commence a secondary market class action pursuant to s. 138.8(1) of the Securities Act (the Act) and the application of the defence … Continue reading

The Horror Show Continues: Application of the Limitation Period in s. 138.14 of the Ontario Securities Act in Kaynes v BP, PLC

Linda FuerstBy Linda Fuerst on Posted in Class actions, Other developments
In Kaynes v. BP, P.L.C. [2017] ONSC 5172, Justice Perell characterizes his decision about the operation of the limitation period set out in s. 138.14 of Part XXIII.1 of the Ontario Securities Act (the Act) as “the latest sequel or prequel in what has turned out to be the case law equivalent of a horror-movie … Continue reading

Third party litigation funding of class actions in Ontario: “A work in progress”

Linda FuerstBy Linda Fuerst on Posted in Class actions, Other developments
In the most recent Ontario decision on third-party litigation financing, Justice Perell provides further guidance concerning the circumstances in which such funding arrangements will receive court approval. In Houle v. St. Jude Medical Inc., 2017 ONSC 5129, Bentham IMF Capital Inc. (Bentham), an Australian-based litigation financing firm, entered into a financing agreement with Mr. and … Continue reading
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