Topic: Securities

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ESG & Shareholder Activism: Ready or Not, Here it Comes

Hands passing around business document at table“ESG” stands for Environment, Social and Governance and describes a handful of criteria used by both issuers and investors to focus on a corporation’s impact and activity regarding topics like environmental protection, climate change, support for the local and global community, diversity in hiring and advancement, and employee compensation.

This investment methodology, once considered novel, has moved into the mainstream. Institutional investors in particular have been vocal in expressing their belief that maximizing returns to shareholders can no longer be a corporation’s only goal, and are increasingly focused on evaluating company performance against ESG key performance indicators in order to … Continue Reading

Social Media and the Retail Investor: A Regulator’s Dilemma

Cellphone in hands with fingerprint ID lock screenWith the growing accessibility of “do-it-yourself” investment technology, it should come as no surprise that retail investing has been on the rise. In fact, the Ontario Securities Commission (OSC) recently published a study (the Study) which reveals that there has been a sharp increase in retail investing since 2015, and especially since the onset of the COVID-19 pandemic. The Study also reveals that a significant number of retail investors rely on information that they find on social media to inform their investment decisions.

Retail investors’ decisions can have major impacts on capital markets. In early 2021, for … Continue Reading

A Recap of the OSC Decision on the Minimum Tender Requirement under the New Canadian Takeover Bid Regime

Two people discussing a contract, one person signing itOn February 23, 2021, the Ontario Securities Commission (OSC) released its reasons in ESW Capital, LLC, 2021 ONSEC 7 (the ESW Decision), in which the OSC considered the availability of an exemption from the minimum tender requirement for takeover bids. The ESW Decision dismissed the proposed bidder’s application for exemptive relief, but provided important clarifications on the analytical framework applicable to this type of application.

The 2016 Changes to the Canadian Takeover Bid Regime

In 2016, the Canadian Securities Administrators (CSA) made sweeping changes to the takeover bid process which are reflected in National … Continue Reading

Climate Change and the Need for Sound Corporate Governance

People sitting around meeting table, papers and laptop on tableThe United Nations’ Intergovernmental Panel on Climate Change recently released a troubling report, highlighting the irreversible consequences of climate change on humanity. This study is simply adding to the pressures set forth by governments and other entities such as the Task Force on Climate Change-Related Financial Disclosure (TFCD) and BlackRock to hold corporations more responsible for their ecological footprint. Public issuers must be attentive to such environmental concerns as sound environmental practices, strong corporate governance relating to environmental matters, and accountability regarding environmental footprints are each well-recognized trends becoming more prevalent for companies and their respective shareholders. These … Continue Reading

SPACtivism: A New Trend Looming in Shareholder Activism

Finger pointing to bar graph on screen

The past 18 months have seen a number of developments in North American capital markets, with trends such as the rise of meme stocks and the self-proclaimed retail investor revolution dominating many headlines. Another interesting, if less novel, trend that emerged in 2020 was a resurgence of special purpose acquisition corporations (“SPACs”). In 2020, more than half of all initial public offerings (“IPOs”) in the U.S. were SPACs, and the pace of U.S. SPAC IPOs doesn’t seem to be slowing down in 2021; as of this writing, there have been a reported 412 SPAC IPOs … Continue Reading

A Dive into the Surge of Cannabis-Related Securities Class Actions

Indoor growing room of cannabis plantsAfter nearly two years since the recreational cannabis industry has been in operation, we are seeing a rise in securities class actions and regulatory activity relating to cannabis companies. Since legalization, the growth of the sector has been fast and furious. The initial excitement and high investor interest has been recently overshadowed by compliance breaches at Canadian cannabis issuers coupled with market volatility fueling event-based securities litigation.

A surge of securities class actions were filed on behalf of disgruntled investors in 2019 against a number of Canadian cannabis issuers for prospectus and secondary market misrepresentation. NERA Economic Consulting released a … Continue Reading

Dialing In: Adapting to Virtual Shareholder Meetings

Close-up of hand scrolling on tablet
The Shift to a Virtual World

The COVID-19 pandemic has altered and changed many familiar corporate operational and governance practices and norms, including how issuers host their annual general meetings (AGMs). Broadridge Financial Solutions reported hosting 300 virtual meetings in 2019 and approximately 1500 virtual meetings this year thus far.

In place of in-person only AGMs, issuers have two options: (1) hybrid AGMs that provide both virtual and physical meeting platform options and (2) virtual-only AGMs implemented through electronic means such as the use of live webcasts and teleconference lines. Virtual-only AGMs have proven to be the most … Continue Reading

Share Buybacks & Executive Compensation: Aligning Management’s Incentives

As we previously discussed, the use of share buybacks has accelerated in recent years, both in Canada and the United States. This has sparked anxious debate over the extent to which buybacks can form part of an effective long-term growth strategy. Particularly in the United States—where buybacks hit a record of more than $1 trillion USD in 2018 following tax reforms—commentators have blamed buybacks for various ills, including wage stagnation, income inequality, and underinvestment in R&D. In response, some U.S. legislators have sought to curb their use, such as by tying buybacks to conditions including paying employees a certain … Continue Reading

Webinar – Corporate governance, shareholder activism, and hostile M&A: Key developments in 2018 and a look ahead

Walied Soliman and Orestes Pasparakis, co-chairs of Norton Rose Fulbright’s Canadian Special Situations team, will host a 60-minute webinar on corporate governance, shareholder activism, and hostile M&A on Tuesday, February 12, 2019 at 12 p.m. EST. To sign up, please click here.

Our Special Situations team played a leading role in some of the most complex and high-profile corporate governance, shareholder activism and hostile M&A matters of 2018. The webinar will highlight some of the key trends and developments in 2018 and trends taking shape in 2019.

This will be essential viewing for directors and executives at public companies, … Continue Reading

The Digital Dilemma: Cybersecurity and Boardroom Best Practices in the Technological Age

Earlier this year, Commissioner Robert Jackson Jr. of the US Securities and Exchange Commission declared that cybersecurity is “the most pressing issue in corporate governance today.” Indeed, widespread digitization has fundamentally transformed the way that people do business, ushering in new heights of efficiency and connectivity. It has also created significant risk management issues for public companies in all sectors, from securing consumer information to responding to data breaches.

However, despite the growth of digitization and its concomitant risks for public companies, it appears that many board members still rely on outdated and unsafe software to protect sensitive materials and … Continue Reading

Digitizing Board Meetings

In the day and age of virtual reality and delivery dinner at the click of a button, it seems almost comical to think that we use sliced bread to explain an invention’s usefulness.

Given today’s unprecedented surge in technology, it is perhaps unsurprising that the EY Center for Board Matters (“EY”) reported digital transformation as one of the most important priorities for boards. However, while it may be tempting for boards to focus on emerging competitors, tech-savvy employees, and the onset of new risks, this transformation can – and maybe should – include digitizing board meetings. Implementing board portals, digital … Continue Reading

Kingsdale Releases 2018 Proxy Season Review

Kingsdale Advisors has released its annual Proxy Season Review for 2018. The Review examines trends observed in 2018, predicts issues on the horizon, and provides advice to both issuers and activists in the marketplace.

In what follows, we pick out just a few of the important trends that emerge from Kingsdale’s analysis. The complete report can be viewed here.

Public activist activity remains healthy

Kingsdale counts 29 public proxy contests for the year to date. Though not reaching the high-water mark set in 2015 (55), the 29 public fights so far this year are up by 38%, as compared … Continue Reading

The Buyback Bonanza Makes a Return

Recently, there has been a trend among both Canadian and United States companies to buy back their shares in order to boost stock prices. In the past – most notably during the “Buyback Bonanza” of 2007 – this strategy has been employed by companies as a mechanism to decrease the amount of outstanding shares, thereby increasing the value of the stock.

For years some have criticized share buybacks, asserting that focusing on short term increases in stock prices and profits is detrimental to long term economic growth. They argue that as individuals invest more in the short term, there … Continue Reading

“The Great White Short?” Canada Is the World’s #3 Destination for Activist Short Selling


Recently, Activist Insight released a report on activist short selling. Activist short selling is when investors publicly bet on a stock going down in value. Among other interesting trends, the report shows that Canada ranks number 3 in the world for activist short campaigns. The data suggest that Canadian companies should be on high alert about the possibility of an activist short play.

The global number of activist short campaigns is trending downward

2015 represented a high water mark for activist short selling, with 274 campaigns globally. Since 2015, numbers have trended downward, with 263 campaigns in 2016, 186 in … Continue Reading

Activist Shareholders Trading on the Blockchain: Is the Prized Secrecy Compromised?

Background: Registered Shareholders and Beneficial Shareholders

While a registered shareholder holds its shares directly with a company and can be contacted through its transfer agent, a beneficial shareholder does not have the shares registered in its name. Instead, a securities depository is the registered shareholder. There are two types of beneficial shareholders, a Non-Objecting Beneficial Owner (NOBO) and an Objecting Bene­ficial Owner (OBO). A NOBO has authorized a financial intermediary to disclose its identity and share position. An OBO has taken affirmative steps to object to such disclosure. Therefore, while a NOBO can be contacted directly, … Continue Reading

Trends in Environmental Social Governance

Corporations are facing increasing pressure to offer more transparency and disclosure with respect to their governance practices that promote environmental and social sustainability. This year’s trends in Environment Social Governance (ESG) in the context of Canadian corporate governance indicate that more and more corporations are including ESG as part of their core mandates and that investors are looking and asking for more ESG-related disclosures in making investment decisions.

What is ESG?

ESG is a general term used in the capital markets referring to non-financial performance indicators including sustainability, ethics and corporate governance factors, which measure the sustainability and … Continue Reading

Proxy access: wrong for Canadian companies, wrong for Canada

In our latest memo, members of Norton Rose Fulbright’s Canadian Special Situations team weigh in on proxy access. The memo is written by Walied Soliman and Orestes Pasparakis, Partners and Co-Chairs of our Canadian Special Situations team, and Joe Bricker, Associate. The memo is reproduced below:

Recently, two prominent Canadian companies became the first major issuers to adopt proxy access policies.

These policies allow shareholders to nominate directors to serve on a company’s board and have their nominees featured in management’s circular and form of proxy. Typically, they afford nomination rights to one or more shareholders (up to 20) who … Continue Reading

Environmental, social and governance (ESG) practices are paving their way into the mainstream

As discussed in our earlier blog post, the Kingsdale Advisors’ (Kingsdale) annual Proxy Season Review for 2017 identified ESG trends as one of several issues on the horizon for public companies. Kingsdale noted that heightened scrutiny from investors could translate into a demand for enhanced disclosure on the part of issuers.

The three factors that form ESG are integrated into investment analyses to determine the sustainability and future financial performance of companies. These factors are also used as tools by companies to analyze, evaluate and to better understand the overall risks and opportunities that their businesses are … Continue Reading

Regulators weigh in on ICOs

Issuers contemplating initial coin offerings (ICOs) would be wise to consider the recent decision of impak Finance Inc. (Impak) by the Autorité des marchés financiers’ and the Ontario Securities Commission. 

Background and Decision

Impak launched an ICO for impak Coin (MPK Tokens), which Impak describes as a cryptocurrency with a social purpose. The proceeds of the ICO are intended to fund the development of impak.eco, an online social network 100% dedicated to the “impact economy”.

Prior to the launch of its ICO, Impak submitted its proposed business model to the Canadian Securities Administrators regulatory … Continue Reading

Making your vote count II: CSA finalizes proxy voting protocols

The Canadian Securities Administrators (CSA) have recently released finalized guidance and protocols for meeting vote reconciliation under CSA Staff-Notice 54-305 Meeting Vote Reconciliation Protocols (the Protocols) which are implemented on a voluntary basis. The Protocols mark the latest step in a systemic review that began in 2013 to bring greater transparency and simplicity in vote tabulation specifically for shares held through intermediaries.

As discussed in our previous update, the Protocols are primarily intended to address the issue that all votes of beneficial holders are properly tabulated to ensure that true beneficial holders can exercise their right … Continue Reading

Re Hemostemix Inc: Alberta Securities Commission upholds decision of TSXV in contested private placement

Following recent amendments to Canada’s takeover bid rules, private placements in the face of hostile bids have become newly controversial. Private placements in the context of proxy contests have received less attention. Yet this is somewhat surprising, because they are another facet of the same underlying question: whether regulators should allow a financing that may significantly affect the voting power of hostile shareholders in an ongoing shareholder persuasion campaign.

The Alberta Securities Commission (ASC) has just released its reasons for upholding the TSXV’s allowance of a private placement in the context of a proxy contest, without requiring shareholder … Continue Reading

Universal proxies: SEC proposal moving forward

In a move that may encourage shareholder activism and increase the potential for proxy contests, the Securities and Exchange Commission (SEC) has voted to propose amendments to the U.S. federal proxy rules (the Proposed Rules). As discussed in a previous post, the Proposed Rules will require parties in all “non-exempt” solicitations in a contested director election to use universal proxy cards that include the name of all board of director nominees (i.e., both dissident and management nominees). As such, shareholders voting by proxy would be able to vote for a combination of management and dissident candidates.  … Continue Reading

Evolving tactical defenses by target issuers: Private placements in response to a hostile bid

The Ontario and British Columbia Securities Commissions (the Commissions) issued orders on July 22, 2016 allowing junior B.C.-based miner, Dolly Varden Silver Corp. (Dolly Varden), the target of a hostile takeover bid from Idaho-based Hecla Mining Co. (Hecla), to proceed with a proposed private placement, which was announced shortly after Hecla launched its hostile bid. While the Commissions have not yet published written reasons for the orders, their decision is notable in Canada’s new takeover bid regime.

As discussed in a previous post, Canadian securities regulators enacted harmonized amendments to Canada’s takeover bid regime … Continue Reading

Non-standard accounting measures: The media, regulators, and shareholders zero in

Non-standard accounting practices have been gaining in popularity among Canadian publicly traded companies. Issuers that rely solely on standard accounting metrics now make up a small minority of the companies listed in the S&P 500 and S&P/TSX 60.

Many issuers believe that non-standard measures are a better reflection of performance than Generally Accepted Accounting Principles (“GAAP”), which for Canadian issuers typically conform to International Financial Reporting Standards (“IFRS”). Yet there are growing concerns that non-GAAP measures are being used to inflate earnings and present a more positive picture of financial performance. These concerns have been expressed in the media, including … Continue Reading

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