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When defamation in hostile proceedings leads to serious consequences

It will come as no surprise to those who have participated in a proxy fight to learn that these disputes can be heated affairs.   Parties to a fight will routinely seek to discredit the other side to bolster their own narrative or otherwise gain a strategic advantage.  In such an atmosphere, it can be difficult to draw the line between behaviour that’s merely aggressive and behaviour that crosses into unethical or illegal territory.  A recent U.S. District Court case, Eshelman v. Auerbach et al, ­provides an example of the serious consequences that can ensue for those who cross this … Continue Reading

Privacy Breaches: The Question of When, Not If

In recent years, a spate of high-profile privacy breaches have made it increasingly clear to consumers and regulators that businesses must take stronger precautions in safeguarding user data and protecting privacy rights. These incidents have become so common that for many companies, the question of whether they will fall victim to cybercrimes has become a matter of when, not if.

The consequences of a privacy breach may be drastic. Companies such as Equifax, Yahoo, and Target – which have all suffered data breaches involving more than 100 million customer accounts – have borne significant reputational costs. Given the importance of … Continue Reading

Could a national securities regulator hinder shareholder activism in Canada?

Canada is the only G20 country without a national securities regulator. Despite coordination among the provinces and territories, the current regime is often thought to encourage shareholder activism – whether by permitting forum shopping for more favourable regulations or given the reality that decentralized efforts mean scarcer resources to combat unwelcome tactics. However, after decades of discussion and debate, the Supreme Court of Canada released a decision late last year which could lead to the adoption of a single regulator, dubbed the Capital Markets Regulatory Authority (CMRA).

While the Supreme Court judgement paves the way for a pan-Canadian … 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

Special Situations team publishes article on abusive short selling in Globe and Mail

Orestes Pasparakis and Walied Soliman, co-chairs of Norton Rose Fulbright’s Canadian special situations team, and Joe Bricker, associate, have published an article highlighting the growing problem of abusive short selling in Canada and calling for legislative reform. The article ran in the Globe and Mail on Saturday, January 19 and can be viewed here. Continue Reading

Walied Soliman interviewed in “Creating a Unified Vision — How Some Activists are Working with Boards and Management”

Walied Soliman, Global Chair of Norton Rose Fulbright and co-chair of the firm’s Canadian special situations team, was recently interviewed in a piece by Skytop Strategies (view here). The piece draws on recent experiences to discuss how shareholders activists and boards often work together to achieve shareholder value after reaching a settlement and averting a proxy contest.

 … 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

Aurora/CanniMed: Canadian securities regulators provide guidance on takeover bids in Canada – Expect to see more hard lock-ups and fewer tactical poison pills

The Ontario and Saskatchewan securities regulators (the Commissions) have released their reasons in connection with the unsolicited bid of Aurora for CanniMed (the Reasons). Below, members of our Special Situations team set out some of the key lessons of the decision.

Key Takeaways

  • expect to see an increased use of hard lock-ups (that is, lock-ups in which a shareholder agrees to tender shares even if a superior bid comes along), which will provide bidders with reduced risk during the new 105-day bid period
  • well-structured hard lock-ups do not necessarily result in target shareholders being joint actors with the
Continue Reading

Court dismisses petition for a court-ordered shareholders meeting with independent chair in lieu of a meeting requisitioned by shareholders

In a dispute between three petitioning directors (the Petitioners) and three requisitioning shareholders (two of whom were also directors) (the Requisitioning Shareholders) of Photon Control Inc. (Photon) (TSX-V: PHO), the Petitioners asked the British Columbia Supreme Court (the Court) to exercise its powers under the Business Corporations Act (British Columbia) (the Act) to intervene in the calling, holding and conduct of a shareholders’ meeting that the Requisitioning Shareholders had requisitioned under the Act. The Court dismissed the petition. In addition, the Court also ruled that the chair of the requisitioned meeting did not have … Continue Reading

Should companies expect an increase in short-selling activism in Canada?

Success breeds imitation. The persistence of that cliché is good evidence of its accuracy.  Its implications, however, may be a warning call with respect to shareholder activism in Canada.

The woes of Valeant Pharmaceuticals International Inc. (“Valeant”) and its share price have been well documented in the media. Following a report by Citron Research, who held a short position in Valeant, alleging improper revenue recognition, Valeant’s shares fell precipitously: on the day prior to the report, October 20, 2015, Valeant’s shares closed at $190.85 (CDN) on the TSX.  On October 22, 2015, Valeant’s shares closed at $144.05.  By now, Valeant’s … Continue Reading

“Dead hand proxy puts” under scrutiny in Delaware

A decision of the Delaware Chancery Court last fall has set off a wave of books and records inspection demands by stockholders, as well as threatened litigation, for Delaware corporations that have entered into credit agreements containing “dead hand proxy put” provisions.  A “dead hand proxy put” allows the lender to demand immediate repayment of the outstanding debt if a majority of the borrower’s incumbent directors are replaced within a specified time period.  In Pontiac General Employees Retirement System v. Healthways, Inc.,  C.A. No. 9789-VCL (Del. Ch. Oct. 14, 2014) (transcript ruling), the Court declined to dismiss a breach … Continue Reading

Moving away from a mechanistic evaluation of board term limits

Earlier this month, Robert Pozen, senior lecturer at Harvard Business School contended that a simple reliance on board term limits as an evaluation tool of corporate performance is based on “faulty logic”.[1]

Concerns around extended tenure of directors typically include anxieties over compromised director independence and the development of a friendliness with management.

According to Spencer Stuart, the average tenure of directors in Canada rose from eight years in 2009 to nine years in 2014.

Mr. Pozen, however, highlights the disconnect in assuming that “lengthy director service means cozy relationships with management”.  He notes the high rate of … Continue Reading

2015 Trends and Insights: Activism in Canada

In the latest issue of Ethical Boardroom, Walied Soliman and Orestes Pasparakis, co-chairs of Norton Rose Fulbright’s Special Situations Team, discuss activism in the Canadian corporate landscape and expectations for the 2015 proxy season in their article, “2015 Trends and Insights: Activism in Canada“.

Click here to access the article (at pages 96-97).

Stay connected with Special Situations Law and subscribe to the blog today.Continue Reading

Webinar: Shareholder activism – a year in review

On February 4, 2015, Walied Soliman and Orestes Pasparakis, co-chairs of Norton Rose Fulbright’s Special Situations Team, were joined by Wes Hall, CEO, Kingsdale Shareholder Services Inc. to host our annual video webinar “Shareholder Activism: A Year in Review – Cutting-edge Tactics in 2014 and a Look Ahead”.  In 60 minutes, our speakers update you on everything you need to know to be current on shareholder activism.

Click here to watch the video.… Continue Reading

A Changing Climate for Proxy Advisory Firms: Developments in the US and Canada

The role of proxy advisory firms in the marketplace has been a focal point on both sides of the border as recent guidance by the US Securities and Exchange Commission (SEC) and the Canadian Securities Administrators (CSA) highlights the powerful influence of proxy advisory firms and need for increased accountability and transparency.

In the US, the SEC Staff released a bulletin in June entitled Proxy Voting: Proxy Voting Responsibilities of Investment Advisers and Availability of Exemptions from the Proxy Rules for Proxy Advisory Firms (the Bulletin) which places some onus on the investment advisor, as … Continue Reading

The Rise of Policy Activists?

In a recent twist on activist investing, People for the Ethical Treatment of Animals (PETA) purchased shares in SeaWorld in an effort to address conduct it considers animal cruelty.  According to PETA, it bought “the smallest number of shares necessary” to give it “the right to attend and speak at annual meetings and to submit shareholder resolutions asking for policy changes”.

SeaWorld is not the only corporation PETA has claimed ownership in.  PETA is using this same strategy with companies such as General Electric, Schering-Plough and 3M, and with fast food restaurants like McDonald’s and Wendy’s.  Although … Continue Reading

Can Activist Shareholders Spur Innovation in the Technology Sector?

Activist shareholders have been accused of hindering innovation in companies they target. During a 2-3 year activist engagement in a company, activist shareholders focused on pursuing short-term goals may seek to cut costs in the target, maximize profits, then exit quickly, (possibly) with little care for the long-term prospects of the target company. In Hedge Fund Activism and Corporate Innovation (the Paper), He, Qui and Tang (the Authors) argue that is not necessarily the case, and that in fact activist shareholders can and do spur innovation, especially in the technology sector.

Innovation, the Authors explain, is a key … Continue Reading

Why Are Activist Investors Drawn to Canada?

Over the past decade, proxy contests have gone from a once rare phenomenon to a standard feature of the Canadian corporate world and as the number of contests have increased, so too have activists’ success rates. To some extent these trends have been driven by greater acceptance of activists’ efforts in the wider investment (and particularly institutional investment) community, but they are certainly also a result of the fact that – as Stephen Griggs, Chief Executive Officer of investment fund Smoothwater Capital Corporation,  has recently observed (see page 33) – Canadian corporate law rules make it one of the “most … Continue Reading

Is Shareholder Activism Hurting Bondholders?

A recently released research report by Moody’s Investors Service examines the credit impacts of activist shareholder activity, arguing that shareholder initiatives do not always benefit bondholders. In fact, the report suggests that the means by which shareholders drive change in capitalization and strategy, including through share repurchases, increased dividends and divestitures of cash-generating assets, often stresses credit metrics, increasing the risk of holding corporate bonds.

Moody’s argues the risk for bondholders is growing as activists increasingly identify opportunities in larger credit rated companies and as these companies take more proactive steps to avoid being targeted. The report found the industries … Continue Reading

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