Canada: The Facebook IPO: Danier Revisited

Last Updated: June 20 2012
Article by Gordon G. Raman and Colin Cameron-Vendrig

Most Read Contributor in Canada, September 2016

It was hailed as the most anticipated IPO of "recent history" but quickly became, over the course of mere weeks, the subject of class actions, regulatory interest and even preliminary inquiries by congress. Worse still, it appears to have tainted the company and could well add to the perception that in capital markets the deck is stacked in favour of select investors. It is, if nothing more, a cautionary tale for businesses of all types. What reminders can we take from the saga of this social network giant?

The Facebook IPO

Details are still emerging but we are beginning to get a clearer view of the allegations stemming from the IPO. On May 18, 2012 Facebook CEO Mark Zuckerberg rang the opening bell on the NASDAQ and, soon after, 421 million shares of Facebook common stock were sold to the public at a price of $38 per share. The pricing valued the company at more than $100 billion. The stock rose briefly above $40 but has since fallen to $27.

It was only a few days after the IPO that allegations of impropriety began to emerge. Accounts differ but the gist of the claim appears to be that while Facebook warned in its prospectus of the risk of increased use of mobile platforms – where its ability to sell advertisements "is unproven" – they did not detail the nature or extent to which these factors had already prompted a "severe and pronounced" reduction in revenue. This information was allegedly material and was claimed to have been selectively disclosed to underwriters who, in turn, are said to have conveyed the information to choice clients.

The result has been a wave of allegations by various investors against the company and the underwriters.

Reminders For Canadian 'Friends'

The Facebook IPO is quickly becoming a cautionary tale for both reporting issuers and companies contemplating the transition to public status. With such a glaring example of the fallout from allegations of improper disclosure it is worth reviewing what disclosure obligations companies have particularly during the lead up to an offering.

In Kerr v. Danier Leather Inc. the Supreme Court of Canada clarified much of the ambiguity in this area of the law and provided important practical direction for companies to follow during an offering:

  1. A prospectus must include full, true and plain disclosure of all material facts at the time of its filing and receipt. A material fact is defined as a fact that significantly affects, or would reasonably be expected to have a significant effect, on the market price or value of any securities of the issuer.
  2. Where a material adverse change occurs after a preliminary prospectus has been filed and receipted, or where a material change occurs after a final prospectus has been filed and receipted, an amended preliminary prospectus or a final prospectus, as the case may be, will need to be filed. A "material change" is defined as a change to the business, operations or capital of the issuer that would reasonably be expected to have a significant effect on the market price or value of any securities of the issuer.

Amending a Prospectus

In short, anytime a prospectus is filed it must accurately disclose all material facts. It need only be supplemented with further disclosure, however, in response to a material adverse change between the time of a preliminary prospectus and a final prospectus, and a material change between the time of a final prospectus and the completion of the distribution of securities under the prospectus. A change in a material fact alone does not trigger an amendment.

Hence the sixty-four thousand dollar question – or, as alleged in the case of Facebook and its underwriters, a potentially multi-million dollar question – under Canadian rules if the disclosure that's alleged to have been omitted consisted of new financial results that differ materially from what was reflected in a prospectus, do such results amount to a material fact or a material change?

The net effect of the commentary in the Danier case is that material financial results, although they may be material facts, may not in and of themselves amount to a material change. However, the material result could stem from a material change in the business, operations or capital of the issuer or as a consequence of the results, the company could decide to effect such a material change. The key point, though, is that a material change arises from the underlying change to the business, operations or capital and not the results themselves.

Continuous Disclosure Obligations

Outside of the context of a public offering, under securities laws a company is required to disclose all material changes through the issuance of a press release and the filing of a material change report.

Separate and apart from the securities law requirements, companies cannot lose sight of the requirements of The Toronto Stock Exchange (TSX). The TSX imposes its own criterion for disclosure, referred to as "material information", that encompasses both material fact and material change. It defines material information as any information relating to the business or affairs of a company that results in or would reasonably be expected to result in a change in the market price or value of any of the company's listed securities. The TSX requires immediate disclosure, by way of a press release, of all material information.

The humbling of this online giant reminds us all of the importance of exercising sound judgment in ensuring that all applicable disclosure obligations are met.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.