Financial Investigator, Forensic Investment Analysis, Investment Malpractice Expert Witness, Author
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Civil or Criminal Actions against companies or regulators
Danier suit overturned
by Donald » Thu Dec 15, 2005 3:39 pm
In a major setback for disgruntled shareholders, the Ontario Court of Appeal has overturned a landmark shareholder class-action lawsuit against Danier Leather Inc., concluding the Toronto-based clothier does not deserve to be penalized for making misleading sales projections as it went public seven years ago.
- Donald
- Posts: 18
- Joined: Sun Dec 04, 2005 1:46 pm
by jim » Thu Dec 01, 2005 11:01 am
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NORTHERN EXPOSURE:THE LAW OF CLASS ACTIONS IN CANADA– AN OVERVIEW
By: Peter J. PliszkaPartner, Fasken Martineau Fasken Martineau DuMoulin LLP Barristers & Solicitors 66 Wellington Street West Suite 4200, Toronto Dominion Bank Tower Box 20, Toronto-Dominion Centre Toronto, Ontario, Canada M5K 1N6
Phone: 416 868 3336
Fax: 416 364 7813 Email: ppliszka@tor.fasken.com
October 26-28, 2005 ---- Editted to fit - with contact information so as not to violate coyright concerns (if any).
--------------------------------------------------------------------------------
NORTHERN EXPOSURE: THE LAW OF CLASS ACTIONS IN CANADA – AN OVERVIEW
By: Peter J. Pliszka*
INTRODUCTION “Disasters spawn litigation. Trains collide or derail, planes crash, ships sink,lakes and rivers become polluted, chemical factories explode, ordinary people eat, drink, wear or use unhealthy or defective products. People – sometimeshundreds, even thousands – are injured or killed by these events. When the crisis subsides, some of the victims turn to the courts for redress and compensation. One of the modern mechanisms for dealing with the litigation fallout from majordisasters is the class action.1In Canada, you say? Indeed, these opening comments in a Ontario Court of Appeal decision fiveyears ago accurately reflect the wave, or some might call it the “tsunami”, of class actions which has swept the country over the past decade. Entire books have been written about the rapidly developing law of class actions in Canada. This paper is not intended to be an exhaustive treatise on the law of class actions in Canada.Rather, this paper will provide an overview of some of the legal principles and jurisprudential developments in Canadian class action law.
LEGAL FRAMEWORK FOR CLASS ACTIONS As a result of the federal-provincial division of powers in the Canadian constitution, Canada does not have a national equivalent to Federal Rule 23 of the U.S. Federal Rules of Civil Procedure. Rather, the law of class actions in Canada is provincially-regulated. Prior to the 1990s, only one of Canada’s ten provinces (Quebec) had class action legislation. Since 1992, however, eight of the remaining nine provinces have enacted class action legislation. Further,the Supreme Court of Canada has filled the void in the remaining province with “judge-made” class action law. In Western Canadian Shopping Centres v. Bennett Jones Verchere, theSupreme Court of Canada held that courts in provinces, which have not enacted class action statutes, have residual inherent jurisdiction to design ad hoc processes for permitting a given lawsuit to proceed as a class action.
CLASS ACTIONS – GUIDING OBJECTIVES: The three general objectives which class action legislation in Canada intends to achieve are: •Judicial economy•Access to justice •Behaviour modification
The Supreme Court of Canada recently reaffirmed that these three objectives underlie class action legislation, and the S.C.C. signalled that these three objectives should inform theinterpretation and application of class action legislation, as follows:
First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding andlegal analysis.
Second, by distributing fixed litigation costs amongst a largenumber of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.
Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.
– – –In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.
CERTIFICATION Similar to class action regimes in the U.S., a legal action in Canada may not progress as a class proceeding without approval – i.e. certification – of the court. The test for certification of a class action is generally consistent across the various provincial regimes, and requires the representative plaintiff to establish the following five elements:
1. The pleading discloses a cause of action;
2. There is an identifiable class of two or more persons;
3. The claims (or defences) of the class members raise common issues; 4. The class proceeding would be the preferable procedure for the resolution of the common issues; and
5. There is a representative plaintiff who (a) would fairly and adequately represent the interests of the class, (b) has produced a workable plan for advancing the proceeding as a class action and (c) does not have an interest which might conflict with that of other class members.
With respect to numerosity, the Canadian test for certification does not require that the class be a large number of individuals, nor does it require the representative plaintiff to determine the number of the proposed class members at certification. This criterion requires only that there bean identifiable class of “two or more” persons.
With respect to typicality, the representative plaintiff is not required to be “typical” of the class members in respect of all issues. However, Canadian courts have held that there must be a representative plaintiff who has a valid cause of action against each defendant named in thepleading.
With respect to predominance, the Canadian test for certification does not require that the common issues “predominate” over the individual issues. The certification test in Canada contemplates that there will likely be a mixture of common issues and individual issues, and the test simply requires that the claim raises one or more common issues. In analyzing the common issue requirement, generally the court will consider “whether allowing the suit to proceed as arepresentative one will avoid duplication of fact finding or legal analysis.”
An issue will be “common” where its resolution is necessary to the resolution of each class member’s claim, but it is not essential that the class members be identically situated vis-à-vis the defendant or that resolution of the common issue would be dispositive of each class member’s claim. Essentially, if the resolution of the common issue would advance the litigation to a legally material extent, this requirement will likely be met (even if it leaves individual issues to be litigated insubsequent separate proceedings).
PREFERABLE PROCEDURE: Frequently, the ultimate battleground on a certification motion in Canada revolves around the preferable procedure criterion. The question is whether a class proceeding is the preferable procedure for resolving the common issues. The Ontario Superior Court in Carom v. Bre-X summarized the approach to be taken by the court in considering this criterion as follows:
The proper approach to be taken in considering whether a class proceeding is the preferable procedure for resolving the common issues is to have regard to all ofthe individual and common issues arising from the claims in the context of a factual matrix. A class proceeding is the preferable procedure where it presents a fair, efficient and manageable method of determining common issues which arise from the claims of multiple plaintiffs and where such determination will advance the proceeding in accordance with the goals of judicial economy, access to justice and the modification of the behaviour of wrongdoers.
In practice, there is a de facto onus on the party opposing certification on this ground to present a concrete alternative procedure to a class proceeding for resolving the common issues of the class members. Defendants often seek to identify alternative dispute resolution procedures that may apply to the claims (e.g. procedures prescribed by an applicable statute). Moreover, in some recent mass tort cases, defendants have sought to develop their own compensation systems or procedures in response to a given tortious event, and have urged the court to reject certification of the class action on the basis that their own proposed procedures for resolving the claimants’ claims is preferable to a class action. Such efforts have met with varying degrees of success.
CROSS-BORDER CLASS ACTIONS: The recent years have seen a flurry of Canada-U.S. “cross-border” class actions. Generally, cross-border class actions take one of two forms: (1) “copy cat” class actions, and (2) international classes.
QUEBEC – PLAINTIFFS’ NIRVANA? Of all the provinces of Canada, “la belle province” has the longest history with class action legislation. Quebec enacted class action legislation in 1978, 14 years before the next province(Ontario) enacted its Class Proceedings Act. January, 2003 marked a significant turning point for class actions in Quebec, and by extensionfor Canada as a whole. In 2003, the Quebec government enacted certain amendments to the rules governing class actions in Quebec which tilted the playing field distinctly in favour ofplaintiffs on certification motions.
Briefly, the major changes are: •Defendants no longer have the right to cross-examine the representative plaintiff on a certification motion. •Defendants no longer have the right to file written evidence on the certification motion. • Allegations contained in the originating pleading are to be accepted by the court as true for the purpose of a certification motion, with the consequence that now there usually is no deponent for the plaintiff class whom the defendant may seek to cross-examine to test the veracity of the allegations. The rules prohibit the defendants from filing written material. Instead, the defendant is limited to contesting the certification motionorally at the hearing of the certification motion.
However, the defendant does not have an absolute right to adduce oral evidence at the hearing of the certification motion. Rather, the new rules provide that the judge “may allow evidence to be submitted”. As a result, the defendant may not know until the actual hearing of the certification motion whether it will be granted leave to call witnesses to provide oral evidence in support ofthe defendant’s opposition to certification.
As such, the certification motion is only a preliminary step towards the formulation of the class action.
IMPLICATIONS OF THE PIRO DECISION The Piro decision has created a “brave new world” for defendants in Quebec. The new certification rules have turned Quebec into the most plaintiff-friendly class action regime in Canada. Unlike the certification process in most provinces, Quebec’s certification process now deprives defendants of fundamental procedural safeguards, and does not allow for substantial evidentiary discovery or substantive adjudication of issues.
Consequently, the plaintiffs’ bar in Canada is beginning to commence initially in Quebec more and more class actions which are ultimately intended to become national in nature.
CONCLUSION: Canada is awash in class actions. Given Canada’s still-relatively short history with class actions, the law is in a dynamic state of development. This provides ongoing challenges for corporations and their counsel. By the same token, however,the fluid nature of our law presents opportunities for defendant corporations, whose in counsel and outside litigation counsel are limited only by the extent of their creativity in devisingeffective counter-arguments and defences to stem the class action tide.
NORTHERN EXPOSURE:THE LAW OF CLASS ACTIONS IN CANADA– AN OVERVIEW
By: Peter J. PliszkaPartner, Fasken Martineau Fasken Martineau DuMoulin LLP Barristers & Solicitors 66 Wellington Street West Suite 4200, Toronto Dominion Bank Tower Box 20, Toronto-Dominion Centre Toronto, Ontario, Canada M5K 1N6
Phone: 416 868 3336
Fax: 416 364 7813 Email: ppliszka@tor.fasken.com
October 26-28, 2005 ---- Editted to fit - with contact information so as not to violate coyright concerns (if any).
--------------------------------------------------------------------------------
NORTHERN EXPOSURE: THE LAW OF CLASS ACTIONS IN CANADA – AN OVERVIEW
By: Peter J. Pliszka*
INTRODUCTION “Disasters spawn litigation. Trains collide or derail, planes crash, ships sink,lakes and rivers become polluted, chemical factories explode, ordinary people eat, drink, wear or use unhealthy or defective products. People – sometimeshundreds, even thousands – are injured or killed by these events. When the crisis subsides, some of the victims turn to the courts for redress and compensation. One of the modern mechanisms for dealing with the litigation fallout from majordisasters is the class action.1In Canada, you say? Indeed, these opening comments in a Ontario Court of Appeal decision fiveyears ago accurately reflect the wave, or some might call it the “tsunami”, of class actions which has swept the country over the past decade. Entire books have been written about the rapidly developing law of class actions in Canada. This paper is not intended to be an exhaustive treatise on the law of class actions in Canada.Rather, this paper will provide an overview of some of the legal principles and jurisprudential developments in Canadian class action law.
LEGAL FRAMEWORK FOR CLASS ACTIONS As a result of the federal-provincial division of powers in the Canadian constitution, Canada does not have a national equivalent to Federal Rule 23 of the U.S. Federal Rules of Civil Procedure. Rather, the law of class actions in Canada is provincially-regulated. Prior to the 1990s, only one of Canada’s ten provinces (Quebec) had class action legislation. Since 1992, however, eight of the remaining nine provinces have enacted class action legislation. Further,the Supreme Court of Canada has filled the void in the remaining province with “judge-made” class action law. In Western Canadian Shopping Centres v. Bennett Jones Verchere, theSupreme Court of Canada held that courts in provinces, which have not enacted class action statutes, have residual inherent jurisdiction to design ad hoc processes for permitting a given lawsuit to proceed as a class action.
CLASS ACTIONS – GUIDING OBJECTIVES: The three general objectives which class action legislation in Canada intends to achieve are: •Judicial economy•Access to justice •Behaviour modification
The Supreme Court of Canada recently reaffirmed that these three objectives underlie class action legislation, and the S.C.C. signalled that these three objectives should inform theinterpretation and application of class action legislation, as follows:
First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding andlegal analysis.
Second, by distributing fixed litigation costs amongst a largenumber of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.
Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.
– – –In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.
CERTIFICATION Similar to class action regimes in the U.S., a legal action in Canada may not progress as a class proceeding without approval – i.e. certification – of the court. The test for certification of a class action is generally consistent across the various provincial regimes, and requires the representative plaintiff to establish the following five elements:
1. The pleading discloses a cause of action;
2. There is an identifiable class of two or more persons;
3. The claims (or defences) of the class members raise common issues; 4. The class proceeding would be the preferable procedure for the resolution of the common issues; and
5. There is a representative plaintiff who (a) would fairly and adequately represent the interests of the class, (b) has produced a workable plan for advancing the proceeding as a class action and (c) does not have an interest which might conflict with that of other class members.
With respect to numerosity, the Canadian test for certification does not require that the class be a large number of individuals, nor does it require the representative plaintiff to determine the number of the proposed class members at certification. This criterion requires only that there bean identifiable class of “two or more” persons.
With respect to typicality, the representative plaintiff is not required to be “typical” of the class members in respect of all issues. However, Canadian courts have held that there must be a representative plaintiff who has a valid cause of action against each defendant named in thepleading.
With respect to predominance, the Canadian test for certification does not require that the common issues “predominate” over the individual issues. The certification test in Canada contemplates that there will likely be a mixture of common issues and individual issues, and the test simply requires that the claim raises one or more common issues. In analyzing the common issue requirement, generally the court will consider “whether allowing the suit to proceed as arepresentative one will avoid duplication of fact finding or legal analysis.”
An issue will be “common” where its resolution is necessary to the resolution of each class member’s claim, but it is not essential that the class members be identically situated vis-à-vis the defendant or that resolution of the common issue would be dispositive of each class member’s claim. Essentially, if the resolution of the common issue would advance the litigation to a legally material extent, this requirement will likely be met (even if it leaves individual issues to be litigated insubsequent separate proceedings).
PREFERABLE PROCEDURE: Frequently, the ultimate battleground on a certification motion in Canada revolves around the preferable procedure criterion. The question is whether a class proceeding is the preferable procedure for resolving the common issues. The Ontario Superior Court in Carom v. Bre-X summarized the approach to be taken by the court in considering this criterion as follows:
The proper approach to be taken in considering whether a class proceeding is the preferable procedure for resolving the common issues is to have regard to all ofthe individual and common issues arising from the claims in the context of a factual matrix. A class proceeding is the preferable procedure where it presents a fair, efficient and manageable method of determining common issues which arise from the claims of multiple plaintiffs and where such determination will advance the proceeding in accordance with the goals of judicial economy, access to justice and the modification of the behaviour of wrongdoers.
In practice, there is a de facto onus on the party opposing certification on this ground to present a concrete alternative procedure to a class proceeding for resolving the common issues of the class members. Defendants often seek to identify alternative dispute resolution procedures that may apply to the claims (e.g. procedures prescribed by an applicable statute). Moreover, in some recent mass tort cases, defendants have sought to develop their own compensation systems or procedures in response to a given tortious event, and have urged the court to reject certification of the class action on the basis that their own proposed procedures for resolving the claimants’ claims is preferable to a class action. Such efforts have met with varying degrees of success.
CROSS-BORDER CLASS ACTIONS: The recent years have seen a flurry of Canada-U.S. “cross-border” class actions. Generally, cross-border class actions take one of two forms: (1) “copy cat” class actions, and (2) international classes.
QUEBEC – PLAINTIFFS’ NIRVANA? Of all the provinces of Canada, “la belle province” has the longest history with class action legislation. Quebec enacted class action legislation in 1978, 14 years before the next province(Ontario) enacted its Class Proceedings Act. January, 2003 marked a significant turning point for class actions in Quebec, and by extensionfor Canada as a whole. In 2003, the Quebec government enacted certain amendments to the rules governing class actions in Quebec which tilted the playing field distinctly in favour ofplaintiffs on certification motions.
Briefly, the major changes are: •Defendants no longer have the right to cross-examine the representative plaintiff on a certification motion. •Defendants no longer have the right to file written evidence on the certification motion. • Allegations contained in the originating pleading are to be accepted by the court as true for the purpose of a certification motion, with the consequence that now there usually is no deponent for the plaintiff class whom the defendant may seek to cross-examine to test the veracity of the allegations. The rules prohibit the defendants from filing written material. Instead, the defendant is limited to contesting the certification motionorally at the hearing of the certification motion.
However, the defendant does not have an absolute right to adduce oral evidence at the hearing of the certification motion. Rather, the new rules provide that the judge “may allow evidence to be submitted”. As a result, the defendant may not know until the actual hearing of the certification motion whether it will be granted leave to call witnesses to provide oral evidence in support ofthe defendant’s opposition to certification.
As such, the certification motion is only a preliminary step towards the formulation of the class action.
IMPLICATIONS OF THE PIRO DECISION The Piro decision has created a “brave new world” for defendants in Quebec. The new certification rules have turned Quebec into the most plaintiff-friendly class action regime in Canada. Unlike the certification process in most provinces, Quebec’s certification process now deprives defendants of fundamental procedural safeguards, and does not allow for substantial evidentiary discovery or substantive adjudication of issues.
Consequently, the plaintiffs’ bar in Canada is beginning to commence initially in Quebec more and more class actions which are ultimately intended to become national in nature.
CONCLUSION: Canada is awash in class actions. Given Canada’s still-relatively short history with class actions, the law is in a dynamic state of development. This provides ongoing challenges for corporations and their counsel. By the same token, however,the fluid nature of our law presents opportunities for defendant corporations, whose in counsel and outside litigation counsel are limited only by the extent of their creativity in devisingeffective counter-arguments and defences to stem the class action tide.
- jim
- Posts: 2
- Joined: Wed Nov 30, 2005 2:41 pm
by Guest » Fri Nov 11, 2005 11:38 pm
http://www.milbergweiss.com/files/tbl_s ... locked.pdf
go to this web site to see pdf file of the class action filed in the states
pages one and two of the intro are almost a line by line description of what I have been hearing as "standard industry practice" here in Canada.
this will be dually posted in whistleblower forum in case it pertains
go to this web site to see pdf file of the class action filed in the states
pages one and two of the intro are almost a line by line description of what I have been hearing as "standard industry practice" here in Canada.
this will be dually posted in whistleblower forum in case it pertains
- Guest
dually posted in whistleblower and class action forums
by Guest » Fri Nov 11, 2005 11:31 pm
Sent: Saturday, November 12, 2005 12:57 AM
Subject: Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds
Interesting U.S. case
Assante and a few others in Canada may have similar profiles.
Ken K
http://finanzen.net/news/news_detail.asp?NewsNr=350560
http://www.milbergweiss.com/caseinfo/ca ... aseid=2339
Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds
11.11.2005 23:17:00
NEW YORK, Nov. 11 /PRNewswire/ -- The law firm of Milberg Weiss Bershad & Schulman LLP ("Milberg Weiss") announces that a class action lawsuit was filed on November 4, 2005 against Wells Fargo & Company , and certain of its affiliates, on behalf of all persons who purchased from Wells Fargo Investments, LLC ("Wells Fargo Investments") or H.D. Vest Investment Services, LLC ("H.D. Vest") one or more of the Wells Fargo proprietary funds ("Wells Fargo Funds," as defined below) or non-proprietary funds participating in the Revenue Sharing Program (the "Wells Fargo Preferred Funds" and "H.D. Vest Preferred Funds," as defined below), from June 30, 2000 through June 8, 2005, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Act of 1993 (the "Securities Act"), the Securities Exchange Act of 1934 (the "Exchange Act"), the Investment Company Act of 1940 (the "Investment Company Act"), and state law.
If you purchased any of the Wells Fargo Funds, or Wells Fargo or H.D. Vest Preferred Funds, through a Wells Fargo Investments or H.D. Vest broker between June 30, 2000 and June 8, 2005, inclusive, and sustained damages, you may, no later than January 10, 2006, request that the Court appoint you as lead plaintiff. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Milberg Weiss or other counsel of your choice to serve as your counsel in this action.
The action is pending in the United States District Court for the Northern District of California against defendant Wells Fargo and its affiliated entities. A copy of the complaint filed in this action is retrievable from the Court using the case number C-05-4518WHA, or can be viewed on Milberg Weiss's website at: http://www.milbergweiss.com/ .
The "Wells Fargo Preferred Funds" includes mutual funds in the following mutual fund families: Franklin Templeton Investments, Putnam Investments, MFS Investment Management, Fidelity Investments, Evergreen Investments, Alliance Bernstein Investment Research and Management, Van Kampen Investments, AIM Distributors, Inc., Oppenheimer Funds, Inc., Eaton Vance Managed Investments, ING Funds Distributors, LLC, Allianz Global Investors Distributors , LLC, Federated, The Hartford Mutual Funds, Dreyfus Service Corporation, Delaware Investments, Pioneer Investment Management, Inc., Scudder Investments, and Wells Fargo Mutual Funds.
The "H.D. Vest Preferred Funds" includes mutual funds in the following families: Oppenheimer Funds, Putnam Investments, Scudder Investments, MFS Investment Management, Van Kampen Investments, Lincoln Financial Distributors, AIM Investments, Phoenix Investment Partners, John Hancock Funds, Wells Fargo Funds, American Funds, and Franklin Templeton Investments.
The complaint alleges that during the Class Period, defendants served as financial advisors who purportedly provided unbiased and honest investment advice to their clients. Unbeknownst to investors, defendants, in clear contravention of their disclosure obligations and fiduciary responsibilities, failed to properly disclose that they had engaged in a scheme to aggressively push Wells Fargo Investments and H.D. Vest sales personnel to steer clients into purchasing certain Wells Fargo Funds and Wells Fargo and H.D. Vest Preferred Funds (collectively, "Shelf Space Funds") that provided financial incentives and rewards to Wells Fargo and H.D. Vest and their personnel based on sales. The complaint alleges that defendants' undisclosed sales practices created an insurmountable conflict of interest by providing substantial monetary incentives to sell Shelf-Space Funds to their clients, even though such investments were not in the clients' best interest. Wells Fargo Investments and H.D. Vest's failure to disclose the incentives constituted violations of federal securities laws.
The action also includes a subclass of persons who held any shares of Wells Fargo Mutual Funds. The complaint additionally alleges that the investment advisor subsidiary of Wells Fargo, Wells Fargo Funds Management, created further undisclosed material conflicts of interest by entering into revenue sharing agreements with brokers at Wells Fargo Investments and H.D. Vest to push investors into Wells Fargo Funds, regardless of whether such investments were in the investors' best interests. The investment advisors financed these arrangements by illegally charging excessive and improper fees to the fund that should have been invested in the underlying portfolio. In doing so they breached their fiduciary duties to investors under the Investment Company Act and state law and decreased shareholders' investment returns.
The action includes a second subclass of persons who purchased a Wells Fargo Financial Plan that held Wells Fargo Funds. The Wells Fargo Financial Plans include, but are not limited to Full Service Brokerage Accounts, Wells Asset Management accounts, WellsChoice account, and WellsSelect account.
Milberg Weiss (http://www.milbergweiss.com/ ) is a law firm with over 100 lawyers with offices in New York City, Los Angeles, Boca Raton, Delaware, and Washington, D.C. and is active in major litigations pending in federal and state courts throughout the United States. Milberg Weiss has taken a leading role in many important actions on behalf of defrauded investors, consumers, and others for nearly 40 years.
Subject: Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds
Interesting U.S. case
Assante and a few others in Canada may have similar profiles.
Ken K
http://finanzen.net/news/news_detail.asp?NewsNr=350560
http://www.milbergweiss.com/caseinfo/ca ... aseid=2339
Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds
11.11.2005 23:17:00
NEW YORK, Nov. 11 /PRNewswire/ -- The law firm of Milberg Weiss Bershad & Schulman LLP ("Milberg Weiss") announces that a class action lawsuit was filed on November 4, 2005 against Wells Fargo & Company , and certain of its affiliates, on behalf of all persons who purchased from Wells Fargo Investments, LLC ("Wells Fargo Investments") or H.D. Vest Investment Services, LLC ("H.D. Vest") one or more of the Wells Fargo proprietary funds ("Wells Fargo Funds," as defined below) or non-proprietary funds participating in the Revenue Sharing Program (the "Wells Fargo Preferred Funds" and "H.D. Vest Preferred Funds," as defined below), from June 30, 2000 through June 8, 2005, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Act of 1993 (the "Securities Act"), the Securities Exchange Act of 1934 (the "Exchange Act"), the Investment Company Act of 1940 (the "Investment Company Act"), and state law.
If you purchased any of the Wells Fargo Funds, or Wells Fargo or H.D. Vest Preferred Funds, through a Wells Fargo Investments or H.D. Vest broker between June 30, 2000 and June 8, 2005, inclusive, and sustained damages, you may, no later than January 10, 2006, request that the Court appoint you as lead plaintiff. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Milberg Weiss or other counsel of your choice to serve as your counsel in this action.
The action is pending in the United States District Court for the Northern District of California against defendant Wells Fargo and its affiliated entities. A copy of the complaint filed in this action is retrievable from the Court using the case number C-05-4518WHA, or can be viewed on Milberg Weiss's website at: http://www.milbergweiss.com/ .
The "Wells Fargo Preferred Funds" includes mutual funds in the following mutual fund families: Franklin Templeton Investments, Putnam Investments, MFS Investment Management, Fidelity Investments, Evergreen Investments, Alliance Bernstein Investment Research and Management, Van Kampen Investments, AIM Distributors, Inc., Oppenheimer Funds, Inc., Eaton Vance Managed Investments, ING Funds Distributors, LLC, Allianz Global Investors Distributors , LLC, Federated, The Hartford Mutual Funds, Dreyfus Service Corporation, Delaware Investments, Pioneer Investment Management, Inc., Scudder Investments, and Wells Fargo Mutual Funds.
The "H.D. Vest Preferred Funds" includes mutual funds in the following families: Oppenheimer Funds, Putnam Investments, Scudder Investments, MFS Investment Management, Van Kampen Investments, Lincoln Financial Distributors, AIM Investments, Phoenix Investment Partners, John Hancock Funds, Wells Fargo Funds, American Funds, and Franklin Templeton Investments.
The complaint alleges that during the Class Period, defendants served as financial advisors who purportedly provided unbiased and honest investment advice to their clients. Unbeknownst to investors, defendants, in clear contravention of their disclosure obligations and fiduciary responsibilities, failed to properly disclose that they had engaged in a scheme to aggressively push Wells Fargo Investments and H.D. Vest sales personnel to steer clients into purchasing certain Wells Fargo Funds and Wells Fargo and H.D. Vest Preferred Funds (collectively, "Shelf Space Funds") that provided financial incentives and rewards to Wells Fargo and H.D. Vest and their personnel based on sales. The complaint alleges that defendants' undisclosed sales practices created an insurmountable conflict of interest by providing substantial monetary incentives to sell Shelf-Space Funds to their clients, even though such investments were not in the clients' best interest. Wells Fargo Investments and H.D. Vest's failure to disclose the incentives constituted violations of federal securities laws.
The action also includes a subclass of persons who held any shares of Wells Fargo Mutual Funds. The complaint additionally alleges that the investment advisor subsidiary of Wells Fargo, Wells Fargo Funds Management, created further undisclosed material conflicts of interest by entering into revenue sharing agreements with brokers at Wells Fargo Investments and H.D. Vest to push investors into Wells Fargo Funds, regardless of whether such investments were in the investors' best interests. The investment advisors financed these arrangements by illegally charging excessive and improper fees to the fund that should have been invested in the underlying portfolio. In doing so they breached their fiduciary duties to investors under the Investment Company Act and state law and decreased shareholders' investment returns.
The action includes a second subclass of persons who purchased a Wells Fargo Financial Plan that held Wells Fargo Funds. The Wells Fargo Financial Plans include, but are not limited to Full Service Brokerage Accounts, Wells Asset Management accounts, WellsChoice account, and WellsSelect account.
Milberg Weiss (http://www.milbergweiss.com/ ) is a law firm with over 100 lawyers with offices in New York City, Los Angeles, Boca Raton, Delaware, and Washington, D.C. and is active in major litigations pending in federal and state courts throughout the United States. Milberg Weiss has taken a leading role in many important actions on behalf of defrauded investors, consumers, and others for nearly 40 years.
- Guest
by Guest » Sat Oct 29, 2005 3:03 pm
it looks like the audit of the ASC has allowed a potential class action to be considered by all those people who made complaints to this agency, only to have them not handled properly. At the very least, each file could then be opened as the rightfully should, and examined by qualified experts this time. I myself know of several people whose complaint to the ASC was mishandled.
- Guest
by Guest » Sat Oct 29, 2005 2:57 pm
A new world of class actions is dawning
Expect more litigation against Canadian public companies
Garth M. Girvan
Financial Post
Wednesday, October 19, 2005
CREDIT: Jeff Kowalsky, AF:, Getty Images
The Ambassador Bridge that connects Detroit and Windsor. U.S. firms are already eyeing Canada, looking to co-operate in cross-border class-action lawsuits.
We are on the cusp of the most significant change in securities law of this generation, and Corporate Canada had better be prepared because at the precise moment Canadians are ringing in the new year, companies, their officers and directors, experts and others will become liable to compensate investors for misrepresentations in disclosure documents and even oral statements.
The potent combination of new remedies and the increasing acceptance of class actions in Canada sets the stage for confrontation, pitting the management and boards of public companies against shareholders whose securities drop in value when companies release bad news into the marketplace.
Will the new regime result in more litigation against public companies in Canada? Bet on it.
All the signs are there. Aggrieved Canadian investors, frustrated with the inability to effectively pursue miscreant Canadian companies on their own turf have begun turning to U.S. courts for redress.
Ontario Teachers' Pension Plan, for example, is co-lead plaintiff in a major class action against Nortel Networks Inc. in the United States. It's not difficult to see why some Canadian shareholders turned their eyes south.
The shortcomings of the state of the law were never more apparent than in the Bre-X litigation in the late 1990s. Attempts to bring class actions in Canada against company insiders, investment banks and an engineering firm were dismissed, because of the inability to establish common reliance on the disclosure made by the company, its bankers and other consultants.
The United States, of course, has had a statutory regime in place for many years. SEC Rule 10b-5 has spawned significant litigation, and many supporters of the new Canadian rules would say that the deterrence effect has raised awareness of the need for public companies to get their disclosure right -- with the result that disclosure standards in the United States are higher than those in Canada.
The U.S. system also has its dark side - strike suits brought by entrepreneurial lawyers on behalf of nominal clients whenever a stock price falls on the announcement of unfavourable events. Such suits are alleged to have but one objective: to force companies to settle quickly for an amount that provides a significant return to the plaintiffs' lawyers, and an insignificant amount to the shareholders who lost their money.
On Jan. 1, Canada moves a little closer to the U.S. system, and investors will be able to pursue their remedies more easily at home. But opening the door to securities class actions invites a perhaps unwelcome actor: U.S. plaintiff firms. They are already eyeing this country looking to co-operate in cross-border class action lawsuits involving interlisted companies, and maybe even play a role in domestic securities class actions in Canada.
Lief, Cabraser, Heiman & Bernstein, an active plaintiff firm in the U.S., has established an association with Rochon Genova in Toronto for these purposes.
Should Corporate Canada be worried? Well, the Ontario government, which has spent some time gestating the new regime, says not unduly. It thinks its new rules will allow public companies to escape the strike-suit phenomenon in Canada.
People point to several safeguards not present in the United States. First, any action brought under the new regime is subject to leave of the court. A plaintiff must satisfy a judge that the action is brought in good faith and has a "reasonable possibility" of success at trial.
Second, Ontario will apply its "loser pay" principle to these actions. So the entrepreneurial plaintiff's lawyer will face an initial hurdle of getting leave of the court to start the action, and then will face the prospect that if the case is not settled and is ultimately unsuccessful at trial, there will be a significant cost penalty.
Ontario also points to arguably the most significant difference between the Canadian and U.S. regimes in this area, the fact that liability in Canada will be capped unless the misrepresentation is made knowingly. That may prove cold comfort. Canadian plaintiffs' lawyers are creative, and many people believe they'll routinely allege in their pleadings that misrepresentations were made knowingly in order to avoid the caps, and increase the settlement value.
At the end of the day, only time will tell whether the new initiatives are successful in achieving their stated purpose of improving the standard of public company disclosure in Canada while avoiding the descent into the undesirable muck of the U.S. strike suit environment.
But just as governments are being prodded to plan for the impending flu pandemic, directors and officers of public companies should prepare to put themselves in the best position to avoid or defend against the inevitable claims that will arise under the new regime.
Boards and managements should implement disclosure policies and procedures to ensure that material information is identified and released on a timely basis. The provision of forward-looking information should be reassessed. In fact, some companies are giving serious consideration to getting out of the earnings-guidance business altogether. CEOs and CFOs should prepare to more carefully script oral presentations and tread more cautiously, if at all, into free-flowing discussions with investors and analysts.
Addressing the shortcomings in Canadian law was necessary and is to be applauded. At the same time, the old adage applies -- be careful what you wish for.
Garth M. Girvan is a senior corporate partner in McCarthy Tetrault's Toronto office.
© National Post 2005
Expect more litigation against Canadian public companies
Garth M. Girvan
Financial Post
Wednesday, October 19, 2005
CREDIT: Jeff Kowalsky, AF:, Getty Images
The Ambassador Bridge that connects Detroit and Windsor. U.S. firms are already eyeing Canada, looking to co-operate in cross-border class-action lawsuits.
We are on the cusp of the most significant change in securities law of this generation, and Corporate Canada had better be prepared because at the precise moment Canadians are ringing in the new year, companies, their officers and directors, experts and others will become liable to compensate investors for misrepresentations in disclosure documents and even oral statements.
The potent combination of new remedies and the increasing acceptance of class actions in Canada sets the stage for confrontation, pitting the management and boards of public companies against shareholders whose securities drop in value when companies release bad news into the marketplace.
Will the new regime result in more litigation against public companies in Canada? Bet on it.
All the signs are there. Aggrieved Canadian investors, frustrated with the inability to effectively pursue miscreant Canadian companies on their own turf have begun turning to U.S. courts for redress.
Ontario Teachers' Pension Plan, for example, is co-lead plaintiff in a major class action against Nortel Networks Inc. in the United States. It's not difficult to see why some Canadian shareholders turned their eyes south.
The shortcomings of the state of the law were never more apparent than in the Bre-X litigation in the late 1990s. Attempts to bring class actions in Canada against company insiders, investment banks and an engineering firm were dismissed, because of the inability to establish common reliance on the disclosure made by the company, its bankers and other consultants.
The United States, of course, has had a statutory regime in place for many years. SEC Rule 10b-5 has spawned significant litigation, and many supporters of the new Canadian rules would say that the deterrence effect has raised awareness of the need for public companies to get their disclosure right -- with the result that disclosure standards in the United States are higher than those in Canada.
The U.S. system also has its dark side - strike suits brought by entrepreneurial lawyers on behalf of nominal clients whenever a stock price falls on the announcement of unfavourable events. Such suits are alleged to have but one objective: to force companies to settle quickly for an amount that provides a significant return to the plaintiffs' lawyers, and an insignificant amount to the shareholders who lost their money.
On Jan. 1, Canada moves a little closer to the U.S. system, and investors will be able to pursue their remedies more easily at home. But opening the door to securities class actions invites a perhaps unwelcome actor: U.S. plaintiff firms. They are already eyeing this country looking to co-operate in cross-border class action lawsuits involving interlisted companies, and maybe even play a role in domestic securities class actions in Canada.
Lief, Cabraser, Heiman & Bernstein, an active plaintiff firm in the U.S., has established an association with Rochon Genova in Toronto for these purposes.
Should Corporate Canada be worried? Well, the Ontario government, which has spent some time gestating the new regime, says not unduly. It thinks its new rules will allow public companies to escape the strike-suit phenomenon in Canada.
People point to several safeguards not present in the United States. First, any action brought under the new regime is subject to leave of the court. A plaintiff must satisfy a judge that the action is brought in good faith and has a "reasonable possibility" of success at trial.
Second, Ontario will apply its "loser pay" principle to these actions. So the entrepreneurial plaintiff's lawyer will face an initial hurdle of getting leave of the court to start the action, and then will face the prospect that if the case is not settled and is ultimately unsuccessful at trial, there will be a significant cost penalty.
Ontario also points to arguably the most significant difference between the Canadian and U.S. regimes in this area, the fact that liability in Canada will be capped unless the misrepresentation is made knowingly. That may prove cold comfort. Canadian plaintiffs' lawyers are creative, and many people believe they'll routinely allege in their pleadings that misrepresentations were made knowingly in order to avoid the caps, and increase the settlement value.
At the end of the day, only time will tell whether the new initiatives are successful in achieving their stated purpose of improving the standard of public company disclosure in Canada while avoiding the descent into the undesirable muck of the U.S. strike suit environment.
But just as governments are being prodded to plan for the impending flu pandemic, directors and officers of public companies should prepare to put themselves in the best position to avoid or defend against the inevitable claims that will arise under the new regime.
Boards and managements should implement disclosure policies and procedures to ensure that material information is identified and released on a timely basis. The provision of forward-looking information should be reassessed. In fact, some companies are giving serious consideration to getting out of the earnings-guidance business altogether. CEOs and CFOs should prepare to more carefully script oral presentations and tread more cautiously, if at all, into free-flowing discussions with investors and analysts.
Addressing the shortcomings in Canadian law was necessary and is to be applauded. At the same time, the old adage applies -- be careful what you wish for.
Garth M. Girvan is a senior corporate partner in McCarthy Tetrault's Toronto office.
© National Post 2005
- Guest
by Guest » Fri Sep 30, 2005 9:58 pm
I believe yesterday's Supreme Court ruling re: tobacco has clear and severe
implications for money management, too. My last three columns in the
National Post (in May and June) illustrate this point.
My view is that Disclosure and Transparency are set to become major
considerations (as opposed to mere buzzwords) for financial services going
forward. I also believe these matters will soon be highly politicized,
given that the Gomery Commission's reports will be coming out later in the
fourth quarter and in early 2006 and will deal with similar subject mater.
The reports will likely focus on disclosure, transparency and the protection
of the "little guy" against corporate agendas. As a result, I personally
believe that tranparency, disclosure of risks and the consumers' right to
know are likely to be major subplots in the forthcoming federal election
campaign. The only thing that hasn't happened yet is that the media still
hasn't made the "integrity linkage" required to pull everything together.
Finally, and perhaps most important, I believe there will soon be a huge
amount of media coverage about regulatory acquiesence regarding certain
previous business practices within the industry- again, with clear
implications for the consumers' right to know and the undisclosed existence
of ulterior motives. Again, when these stories come to light, will linkages
be made? I believe the answer ought to be a resounding "YES"!
John J. De Goey
MPA, CIM, FCSI, TEP, CFP
Senior Financial Advisor
implications for money management, too. My last three columns in the
National Post (in May and June) illustrate this point.
My view is that Disclosure and Transparency are set to become major
considerations (as opposed to mere buzzwords) for financial services going
forward. I also believe these matters will soon be highly politicized,
given that the Gomery Commission's reports will be coming out later in the
fourth quarter and in early 2006 and will deal with similar subject mater.
The reports will likely focus on disclosure, transparency and the protection
of the "little guy" against corporate agendas. As a result, I personally
believe that tranparency, disclosure of risks and the consumers' right to
know are likely to be major subplots in the forthcoming federal election
campaign. The only thing that hasn't happened yet is that the media still
hasn't made the "integrity linkage" required to pull everything together.
Finally, and perhaps most important, I believe there will soon be a huge
amount of media coverage about regulatory acquiesence regarding certain
previous business practices within the industry- again, with clear
implications for the consumers' right to know and the undisclosed existence
of ulterior motives. Again, when these stories come to light, will linkages
be made? I believe the answer ought to be a resounding "YES"!
John J. De Goey
MPA, CIM, FCSI, TEP, CFP
Senior Financial Advisor
- Guest
by admin » Thu Sep 29, 2005 8:45 pm
BC supreme court allows government to sue tobacco companies for damages to the public interest.
Will investment abuses towards the public be another area where similar actions take place?
Will investment abuses towards the public be another area where similar actions take place?
- admin
- Site Admin
- Posts: 3033
- Joined: Fri May 06, 2005 9:05 am
- Location: Canada
by admin » Wed Sep 28, 2005 3:54 pm
From Wed, Sept, 28, 2005 Globe and Mail article titled, "Ontario ruling clears path for police-misconduct suits".
This article suggests that residents of Ontario can sue agencies for misconduct when substandard performance of important (police) duties. The ruling may have impact on various government agencies that have regulatory rules to follow, and have been accused of ignoring them in the name of convenience or other reasons.
Names that come to mind include the ASC, OSC, IDA, the Competition Bureau and I am sure others will come up over time. Any agency that has a mandate of protection of the public interest and following the rule of law, may be accused of regulatory failure if it is found that they did not follow their own process, or if they followed them arbitrarily and selectively.
This article suggests that residents of Ontario can sue agencies for misconduct when substandard performance of important (police) duties. The ruling may have impact on various government agencies that have regulatory rules to follow, and have been accused of ignoring them in the name of convenience or other reasons.
Names that come to mind include the ASC, OSC, IDA, the Competition Bureau and I am sure others will come up over time. Any agency that has a mandate of protection of the public interest and following the rule of law, may be accused of regulatory failure if it is found that they did not follow their own process, or if they followed them arbitrarily and selectively.
- admin
- Site Admin
- Posts: 3033
- Joined: Fri May 06, 2005 9:05 am
- Location: Canada
by admin » Sat Sep 10, 2005 6:14 pm
http://www.the10b-5daily.com/archives/000478.html
Canada Braces For Securities Class Actions
Continuing The 10b-5 Daily's international theme, the Toronto Globe and Mail has a feature article on recent amendments to the Ontario Securities Act that are expected to generate "a wave of shareholder class action lawsuits." Until now, Canadian investors who purchase shares in the secondary market have been limited to common law fraud claims, which require a showing of individual reliance. The recent amendments will create a presumption of reliance (i.e., the fraud-on-the-market theory) and will allow investors to "sue for two types of misconduct: a misrepresentation made in disclosure documents or public oral statements; and a failure to make timely disclosure of a material change."
The article notes that some commentators are concerned the amendments will create an incentive to bring U.S.-style strike suits, but there will be certain safeguards in the new laws that do not exist here. Notably, a company's liability will "be limited to either 5 percent of its market capitalization or $1 million, whichever is greater." There will also be penalty limits for individuals.
Quote of note: "The legislation also is notable for the broad scope of potential defendants it will expose to liability. Not only does it pertain to the company and its directors and officers, but also to investment fund managers, spokespersons, experts (such as accountants, lawyers, financial analysts, engineers and geologists) and so-called influential persons (such as stock promoters or a majority shareholders with a significant influence on the company)."
Posted by Lyle Roberts at December 28, 2004 05:52 PM | TrackBack
Canada Braces For Securities Class Actions
Continuing The 10b-5 Daily's international theme, the Toronto Globe and Mail has a feature article on recent amendments to the Ontario Securities Act that are expected to generate "a wave of shareholder class action lawsuits." Until now, Canadian investors who purchase shares in the secondary market have been limited to common law fraud claims, which require a showing of individual reliance. The recent amendments will create a presumption of reliance (i.e., the fraud-on-the-market theory) and will allow investors to "sue for two types of misconduct: a misrepresentation made in disclosure documents or public oral statements; and a failure to make timely disclosure of a material change."
The article notes that some commentators are concerned the amendments will create an incentive to bring U.S.-style strike suits, but there will be certain safeguards in the new laws that do not exist here. Notably, a company's liability will "be limited to either 5 percent of its market capitalization or $1 million, whichever is greater." There will also be penalty limits for individuals.
Quote of note: "The legislation also is notable for the broad scope of potential defendants it will expose to liability. Not only does it pertain to the company and its directors and officers, but also to investment fund managers, spokespersons, experts (such as accountants, lawyers, financial analysts, engineers and geologists) and so-called influential persons (such as stock promoters or a majority shareholders with a significant influence on the company)."
Posted by Lyle Roberts at December 28, 2004 05:52 PM | TrackBack
- admin
- Site Admin
- Posts: 3033
- Joined: Fri May 06, 2005 9:05 am
- Location: Canada
by Guest » Tue Aug 02, 2005 9:36 pm
Ontario Improves Investor Protection
Legislation Proclaimed Implementing Civil Liability For Secondary Market
Disclosure
QUEEN'S PARK, ON, Aug. 2 /CNW/ - The McGuinty government is strengthening
protection for people who invest in the stock market.
Beginning December 31, 2005, secondary market investors will have a
statutory right to sue public companies that operate in Ontario's capital
markets for misleading disclosure and failure to make timely disclosure.
"Implementing civil liability for secondary market investors - where over
90 per cent of shares are bought and sold - is the right thing to do," said
Gerry Phillips, Minister of Government Services and Minister responsible for
securities regulation. "I'm proud that Ontario is the first Canadian
jurisdiction to move forward on this."
In the primary market - where shares are made available to the public,
for example, as part of an initial public offering (IPO) - investors buy
shares based on information contained in a formal disclosure document, such as
a prospectus. Under the Ontario Securities Act, primary market investors
already have a statutory right to sue if this information is false or
misleading.
"Public companies will have even stronger incentives to disclose accurate
and complete information, and investors will have broader remedies to hold
them accountable if that information is false, misleading or untimely," said
Tom Allen, former chair of the Toronto Stock Exchange Committee on Corporate
Disclosure. "This is a landmark in ensuring confidence in Ontario's capital
markets. That's a good thing for investors and it's a good thing for public
companies too."
"The people of Ontario have a vested interest in improved investor
protection," said Phillips. "Just about every person in Ontario has a stake in
our capital markets through the Canada Pension Plan, RRSPs, other pension
plans or personal investments. Those investors want - and deserve - to be
protected."
Implementing civil liability is one of the recommendations from the
Ontario legislature's all-party Standing Committee on Finance and Economic
Affairs (SCFEA), which tabled its report on the Five Year Review of the
Securities Act in the legislature October 18, 2004.
"We are ensuring Ontario benefits from a modern securities regulatory
system, with strong investor confidence and protection," Phillips said.
"Maintaining investor confidence in the integrity of our capital markets is
vital for Ontario's competitiveness and a strong economy."
Backgrounder
-------------------------------------------------------------------------
CIVIL LIABILITY FOR SECONDARY MARKET DISCLOSURE
Civil liability for secondary market disclosure means that more investors
will be able to hold companies legally responsible for the accuracy and
completeness of information they provide. As well, companies' responsibilities
would extend to more of the information on which investors rely, for example,
the financial statements and press releases that companies make public on an
ongoing basis. Although the Securities Act currently makes it an offence for
companies to provide inaccurate disclosure in required documents, the new
provisions give investors broader rights to bring civil actions for damages
suffered from relying on inaccurate information.
Amendments were recently made to Regulation 1015 of the Securities Act to
create definitions that are necessary for calculating damages under the new
legislative provisions and also specify acquisitions and dispositions of
securities that will be subject to the new secondary market civil liability
provisions. Finalizing these changes has allowed the government to proclaim
broader rights for secondary market investors to sue for misleading
disclosure, the failure to make timely disclosure ("civil liability"), as well
as specific prohibitions of misrepresentations, fraud and market manipulation.
The legislative provisions and the regulation amendments that relate to
civil liability for secondary market disclosure will take effect on
December 31, 2005.
The government has also made a number of housekeeping changes to update
the regulation to reflect previous changes to the Securities Act and to
Ontario Securities Commission (OSC) rules and policies. These changes will
take effect on filing of the regulation.
Definitions
Civil Liability for Secondary Market Disclosure: A statutory right to sue
public companies and other key parties (officers, directors and experts) when
there is false or misleading information (or when required information is not
disclosed) in materials that public companies disclose to investors on an
ongoing basis. These materials include the company's annual and quarterly
financial statements and the press releases that are issued by the company.
Primary market: Where investors buy shares that are being sold to the
public based on information contained in a formal disclosure document, for
example as part of an initial public offering (IPO).
- In the primary market investors generally buy shares from public
companies.
- Primary market investors rely on the information in formal disclosure
documents such as a 'prospectus' in making their investment decisions.
- These investors have a statutory right to sue for false or misleading
information included in a prospectus or similar offering document, or
if that document omits important information that was required.
Secondary market: Everyday trading by investors in the shares of a public
company - trading that is not part of a sale of shares to the public described
in a formal disclosure document such as a prospectus.
- In the secondary market investors generally buy shares from other
investors.
- Example: after a company's IPO, investors buy and sell the company's
shares by placing orders with their brokers. Typically, the purchases
and sales among investors are processed through stock exchanges.
- Over 90 per cent of all equity trading in Canada occurs in the
secondary market.
- In making investment decisions, secondary market investors rely on
information that public companies disclose on an ongoing basis
(e.g. financial statements and press releases).
- These investors now also have a statutory right to sue for false or
misleading information companies disclose on an ongoing basis.
- The government has now added specific prohibitions of
misrepresentation, fraud and market manipulation.
Prospectus: A formal document that offers to sell securities to investors
and includes information that investors need to make an informed decision
about whether or not to buy those securities.
- Among other information, the prospectus includes the company's
financial information and a description of its business, history,
officers, operations, plans (including the use of the money being
raised by the share sale) and the risks related to its financial
projections.
- Typically, a prospectus must be filed with securities regulators and
given to prospective buyers of the offering.
Disponible en français
www.mgs.gov.on.ca
For further information: Contact: Ciaran Ganley, Minister's Office,
(416) 212-3547; Scott Blodgett, Ministry of Finance, (416) 325-0324
Legislation Proclaimed Implementing Civil Liability For Secondary Market
Disclosure
QUEEN'S PARK, ON, Aug. 2 /CNW/ - The McGuinty government is strengthening
protection for people who invest in the stock market.
Beginning December 31, 2005, secondary market investors will have a
statutory right to sue public companies that operate in Ontario's capital
markets for misleading disclosure and failure to make timely disclosure.
"Implementing civil liability for secondary market investors - where over
90 per cent of shares are bought and sold - is the right thing to do," said
Gerry Phillips, Minister of Government Services and Minister responsible for
securities regulation. "I'm proud that Ontario is the first Canadian
jurisdiction to move forward on this."
In the primary market - where shares are made available to the public,
for example, as part of an initial public offering (IPO) - investors buy
shares based on information contained in a formal disclosure document, such as
a prospectus. Under the Ontario Securities Act, primary market investors
already have a statutory right to sue if this information is false or
misleading.
"Public companies will have even stronger incentives to disclose accurate
and complete information, and investors will have broader remedies to hold
them accountable if that information is false, misleading or untimely," said
Tom Allen, former chair of the Toronto Stock Exchange Committee on Corporate
Disclosure. "This is a landmark in ensuring confidence in Ontario's capital
markets. That's a good thing for investors and it's a good thing for public
companies too."
"The people of Ontario have a vested interest in improved investor
protection," said Phillips. "Just about every person in Ontario has a stake in
our capital markets through the Canada Pension Plan, RRSPs, other pension
plans or personal investments. Those investors want - and deserve - to be
protected."
Implementing civil liability is one of the recommendations from the
Ontario legislature's all-party Standing Committee on Finance and Economic
Affairs (SCFEA), which tabled its report on the Five Year Review of the
Securities Act in the legislature October 18, 2004.
"We are ensuring Ontario benefits from a modern securities regulatory
system, with strong investor confidence and protection," Phillips said.
"Maintaining investor confidence in the integrity of our capital markets is
vital for Ontario's competitiveness and a strong economy."
Backgrounder
-------------------------------------------------------------------------
CIVIL LIABILITY FOR SECONDARY MARKET DISCLOSURE
Civil liability for secondary market disclosure means that more investors
will be able to hold companies legally responsible for the accuracy and
completeness of information they provide. As well, companies' responsibilities
would extend to more of the information on which investors rely, for example,
the financial statements and press releases that companies make public on an
ongoing basis. Although the Securities Act currently makes it an offence for
companies to provide inaccurate disclosure in required documents, the new
provisions give investors broader rights to bring civil actions for damages
suffered from relying on inaccurate information.
Amendments were recently made to Regulation 1015 of the Securities Act to
create definitions that are necessary for calculating damages under the new
legislative provisions and also specify acquisitions and dispositions of
securities that will be subject to the new secondary market civil liability
provisions. Finalizing these changes has allowed the government to proclaim
broader rights for secondary market investors to sue for misleading
disclosure, the failure to make timely disclosure ("civil liability"), as well
as specific prohibitions of misrepresentations, fraud and market manipulation.
The legislative provisions and the regulation amendments that relate to
civil liability for secondary market disclosure will take effect on
December 31, 2005.
The government has also made a number of housekeeping changes to update
the regulation to reflect previous changes to the Securities Act and to
Ontario Securities Commission (OSC) rules and policies. These changes will
take effect on filing of the regulation.
Definitions
Civil Liability for Secondary Market Disclosure: A statutory right to sue
public companies and other key parties (officers, directors and experts) when
there is false or misleading information (or when required information is not
disclosed) in materials that public companies disclose to investors on an
ongoing basis. These materials include the company's annual and quarterly
financial statements and the press releases that are issued by the company.
Primary market: Where investors buy shares that are being sold to the
public based on information contained in a formal disclosure document, for
example as part of an initial public offering (IPO).
- In the primary market investors generally buy shares from public
companies.
- Primary market investors rely on the information in formal disclosure
documents such as a 'prospectus' in making their investment decisions.
- These investors have a statutory right to sue for false or misleading
information included in a prospectus or similar offering document, or
if that document omits important information that was required.
Secondary market: Everyday trading by investors in the shares of a public
company - trading that is not part of a sale of shares to the public described
in a formal disclosure document such as a prospectus.
- In the secondary market investors generally buy shares from other
investors.
- Example: after a company's IPO, investors buy and sell the company's
shares by placing orders with their brokers. Typically, the purchases
and sales among investors are processed through stock exchanges.
- Over 90 per cent of all equity trading in Canada occurs in the
secondary market.
- In making investment decisions, secondary market investors rely on
information that public companies disclose on an ongoing basis
(e.g. financial statements and press releases).
- These investors now also have a statutory right to sue for false or
misleading information companies disclose on an ongoing basis.
- The government has now added specific prohibitions of
misrepresentation, fraud and market manipulation.
Prospectus: A formal document that offers to sell securities to investors
and includes information that investors need to make an informed decision
about whether or not to buy those securities.
- Among other information, the prospectus includes the company's
financial information and a description of its business, history,
officers, operations, plans (including the use of the money being
raised by the share sale) and the risks related to its financial
projections.
- Typically, a prospectus must be filed with securities regulators and
given to prospective buyers of the offering.
Disponible en français
www.mgs.gov.on.ca
For further information: Contact: Ciaran Ganley, Minister's Office,
(416) 212-3547; Scott Blodgett, Ministry of Finance, (416) 325-0324
- Guest
by Guest » Fri Jul 08, 2005 7:42 pm
the national post states that in the US last year $6.2 billion dollars were awarded to class action shareholders
Nortel is a $3 bil class action in Canada
Crocus fund is $100 mil
The dreaded A company might be next
The banks are on the list as large corporate abusers of ethics
Who else?
Nortel is a $3 bil class action in Canada
Crocus fund is $100 mil
The dreaded A company might be next
The banks are on the list as large corporate abusers of ethics
Who else?
- Guest
Civil or Criminal Actions against companies or regulators
by admin » Wed Jun 22, 2005 11:34 pm
Posted: 21 Jun 2005 01:19 pm Post subject:
--------------------------------------------------------------------------------
Im in. Except I have no damages nor reason to be in, except for having worked in the industry for twenty years, and been well beaten and bruised for not "looking the other way, shutting up over abuse, and simply making more money"
I have evidence to support some of the allegations made in the above post, and wish there were twenty like-minded folks who would trigger this and have the courage to follow it through. win, lose or draw, it would gain attention to the situtaion
--------------------------------------------------------------------------------
Im in. Except I have no damages nor reason to be in, except for having worked in the industry for twenty years, and been well beaten and bruised for not "looking the other way, shutting up over abuse, and simply making more money"
I have evidence to support some of the allegations made in the above post, and wish there were twenty like-minded folks who would trigger this and have the courage to follow it through. win, lose or draw, it would gain attention to the situtaion
- admin
- Site Admin
- Posts: 3033
- Joined: Fri May 06, 2005 9:05 am
- Location: Canada
by admin » Wed Jun 22, 2005 11:33 pm
Posted: 21 Jun 2005 12:55 pm Post subject: $500billion+ class action
--------------------------------------------------------------------------------
The gross negligence and damages caused by investment houses, their corporate clients and lawyers representing them not to mention government institutions that exempt them is worse than Asbestos and Tobacco combined. If you think about it, Nortel, Bre-X and Enron are only a spit in the bucket and between them alone they cost investors hundreds of billions of dollars in market value. I estimate the true cost to investors in the trillions of dollars. That is why I'd like to see a multi-billion dollar class action lawsuit against those institutions and thousands of individuals who wronged us. The goal would be to change the balance of power in favour of investors. Damages won could be given back to investors and used to fund a stronger protection agency.
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The gross negligence and damages caused by investment houses, their corporate clients and lawyers representing them not to mention government institutions that exempt them is worse than Asbestos and Tobacco combined. If you think about it, Nortel, Bre-X and Enron are only a spit in the bucket and between them alone they cost investors hundreds of billions of dollars in market value. I estimate the true cost to investors in the trillions of dollars. That is why I'd like to see a multi-billion dollar class action lawsuit against those institutions and thousands of individuals who wronged us. The goal would be to change the balance of power in favour of investors. Damages won could be given back to investors and used to fund a stronger protection agency.
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