Canada: Recent Cases

ONTARIO

Superior court green-lights IMAX secondary market securities class action; accepts relatively low thresholds for granting leave and certification

Silver v. IMAX Corporation et al., [2009] O.J. Nos. 5573 and 5585
Ontario Superior Court of Justice | Justice van Rensburg | December 14, 2009

Background

Securities class actions are relatively new to Canada. Governed by provincial rather than federal law, they were difficult, if not impossible, to bring prior to the adoption of modern class actions legislation (which occurred in the 1990s in most provinces) and even then were difficult to pursue in the "secondary market" context. This changed on December 31, 2005 with the adoption of the liberalized secondary market liability provisions of Part XXIII.1 of Ontario's Securities Act (OSA) (since replicated in nearly all other Canadian jurisdictions). Nevertheless, in contrast with the extensive U.S. jurisprudence in this area, the ground rules of Canadian secondary market class actions remain a work in progress.

The issues

Two December 2009 rulings in a class action against IMAX Corp. (the TSX and NASDAQ-listed entertainment technology company) address important procedural issues surrounding secondary market liability claims under Part XXIII.1 and its counterparts in other provinces. The plaintiff shareholders are suing with respect to a decline in share value that they argue was rooted in alleged misrepresentations in IMAX's 2005 Form 10-K, in its 2005 Annual Report and in press releases issued in early 2006. Justice Katherine van Rensburg of the Ontario Superior Court of Justice ruled on two threshold issues: the plaintiff shareholders' application for leave to proceed with their secondary market liability claim and their concurrent application for the certification of their class action. "Leave" and "certification" are statutory hurdles - in the first case under the Part XXIII.1 secondary market liability provisions and in the second case under class actions legislation, known in Ontario as the Class Proceedings Act, 1992.

As detailed below, Justice van Rensburg granted both certification and leave in these two concurrent rulings, interpreting the various threshold requirements of each - e.g. duty of care, reliance, good faith and "reasonable possibility of success" - in a manner that will generally be well received by potential securities class action plaintiffs. Among other things, these rulings are significant because - pending appeal - they appear to mark at least a small step in the evolution of Canadian business and shareholder disputes toward the historically more litigious U.S. model. Multinationals based in the U.S. and other foreign jurisdictions should be aware that it is possible that they may be subject to Canadian secondary market class actions even if they do not trade publicly in Canada.

Certification ruling

While both the common law claim and the statutory secondary market liability claim required certification to proceed to the class action stage, the defendants chose to focus their opposition to the Part XXIII.1 secondary market claim on the concurrent leave application, agreeing to accept certification in the event that leave were granted. Thus the certification hearing was largely confined to the common law aspect of the claim, which focused mainly on misrepresentation, the dominant issue being whether that cause of action was properly asserted under the Canadian common law test, i.e. whether a duty of care had been established (by showing a "special relationship") and whether the plaintiff had reasonably relied on the misrepresentation. The plaintiffs argued (i) that IMAX and the individual defendants owed a duty of care to the investing public in releasing its disclosure documents and (ii) that the "efficient market" theory could be used to establish that by the act of purchasing or acquiring IMAX securities the plaintiffs relied on the misrepresentation.

Duty of care

Justice van Rensburg found that a duty of care may have been owed in the circumstances, as the intended recipients of the documents containing the misrepresentation were the investing public, including the plaintiffs and proposed class members, and that IMAX issued the documents for the purpose of attracting and informing shareholders. Importantly, Justice van Rensburg refused to limit or restrict the alleged duty of care based on public policy concerns or concerns of indeterminate liability.

Reliance

With respect to reliance, the defendants argued that the plaintiffs' assertion that reliance was established by the act of purchasing or acquiring IMAX securities was insufficient as there was no pleading that the proposed class members individually relied on the misrepresentations in making their investment decisions. The defendants maintained that the "efficient market" theory put forward by the plaintiffs was akin to the American "fraud on the market" theory, which is not recognized in Canada.

Justice van Rensburg acknowledged that no case asserting the "efficient market theory" has gone to trial. However, she held that there was a conceivable claim in this case, based on the plaintiffs' pleading of the "efficient market theory" to establish reliance. In other words, instead of alleging individual reliance (in the traditional sense) on the part of each class member, it would conceivably be sufficient that the plaintiffs were alleging that the market for IMAX's shares was efficient (i.e. that the share price reflected all public information) and that they therefore relied on the misrepresentations in virtue of having acquired their shares during the period that the misrepresentations remained public and uncorrected. In so holding, Justice van Rensburg appears to have accepted that the "efficient market" theory can be applied in Ontario, at least at the pleading or certification stage. (Exactly how "efficient market" theory relates to the U.S. "fraud on the market" doctrine is something that may be further clarified on appeal.)

Size of the class

In certifying a global class (consisting of all persons who acquired securities of IMAX during the proposed Class Period and who held some or all of those shares at the end of trading on August 9, 2006 when IMAX released its press release announcing an SEC investigation), Justice van Rensburg ruled that the fact that a similar proceeding had been commenced (although not certified) in the United States was inconsequential to the Ontario action. She added that any conflict of laws concerns would be premature until a statement of defence had been filed alleging reliance on laws of other jurisdictions.

Leave ruling

The second of Justice van Rensburg's two concurrent rulings focused on whether the plaintiffs should be granted leave to proceed with the misrepresentation claim under the secondary market liability provisions of Part XXIII.1 of the OSA. Section 138.8 of the OSA requires that the Court grant leave where the plaintiffs are acting in good faith and there is a reasonable possibility of success at trial. As this case was the first to consider these leave requirements, Justice van Rensburg's ruling marked an important first step - given the high likelihood of an appeal in this case and further refinements in subsequent litigation - in clarifying both branches of the test.

Good faith

The defendants maintained that the plaintiffs bore the burden of establishing good faith, arguing that this required them to establish (i) that the action has been brought for the benefit of the corporation and not for the plaintiffs' benefit and (ii) that they hold a reasonable belief in the merits of their claim. Justice van Rensburg rejected this characterization of "good faith" in favour of the alternative view that the plaintiffs are required only to establish that they brought the action in the honest belief that they have an arguable claim and for reasons that are consistent with the purpose of the statutory cause of action and not for an "oblique or collateral purpose."

Justice van Rensburg found that the plaintiffs brought the action to permit shareholders to recover damages and to hold the defendants accountable for the company's alleged misrepresentations (while deterring others from doing the same). In her opinion, this was consistent with the statutory scheme of Part XXIII.1. Therefore, the good faith requirement was satisfied.

Reasonable possibility

With respect to the "reasonable possibility" requirement, both sides agreed that a preliminary consideration of the merits of the case would be required. Needless to say, they did not agree about the applicable threshold. The plaintiffs contended that it was sufficient to show that there is at least some evidence that, if accepted by the court, would be consistent with the allegation of misrepresentation, while the defendants argued that, given that the purpose of the leave requirement is to deter unmeritorious claims and "strike suits", the threshold should be high and (among other things) would require the plaintiffs to show that they could overcome the statutory defences raised by the defendants - "reasonable investigation" and "expert reliance".

Justice van Rensburg held that the plaintiffs must submit evidence with respect both to the alleged misrepresentation and to the conduct of IMAX's officers or directors in relation to it. However, in her opinion, "reasonable possibility" requires only "something more than a de minimis possibility or chance that the plaintiff will succeed at trial", reflecting the view that the leave requirement was intended only to prevent abuses of process and purely speculative claims. In reviewing the evidence, Justice van Rensburg found that the plaintiffs had satisfied this "low threshold", other than with respect to two defendants who had been outside directors of IMAX. While the statutory defences could be considered, Justice van Rensburg found that they could affect the result of a leave application only if they would demonstrably foreclose the reasonable possibility of success at trial for the plaintiffs. In this case, neither of the Part XXIII.1 statutory defences raised by the defendants - the due diligence defence and the expert reliance defence - met the test.

Appeal

As leave to appeal Justice van Rensburg's ruling has been sought, it is unlikely that these rulings will be the final word on these issues.

DELAWARE

Earn-out providing for return of assets if targets not met, rather than expressly requiring purchaser "effort", will not be rewritten just because the weak economy and other factors have made an asset return unpalatable to the seller

Airborne Health, Inc. v. Squid Soap, LP, C.A. No. 4410 VCL
Delaware Court of Chancery | Vice Chancellor Laster | November 23, 2009

This ruling by Vice Chancellor Laster of the Delaware Court of Chancery reminds us that in a commercial relationship, the contract reigns supreme. Even though it had a sympathetic story to tell, and despite some creative appeals to tort and equitable doctrines, Squid Soap couldn't get around the fact that the Asset Purchase Agreement (APA) it had negotiated with acquiror Airborne Health - with payment heavily weighted toward the earn-out - had not adequately protected it against certain unanticipated post-closing events that occurred, most notably the economic downturn.

Background

Squid Soap had developed a child-friendly hand washing product. A hit with U.S. TV morning shows and major magazines, "Squid Soap" was soon picked up by Wal-Mart and other mass retailers. As the brainchild of a single entrepreneur, the Squid Soap business was ripe for a buyout. Despite interest from Procter & Gamble and a major hedge fund, Squid Soap selected Airborne Health, Inc., a larger entrepreneurial company, as its acquiror. Airborne had made its name with a highly successful vitamin and herb supplement that was marketed as effective against coughs and colds.

The deal

Small up-front payment, big earn-out

In 2007, Squid Soap and Airborne signed the APA. The deal - covering Squid Soap's brand name, goodwill, patents and other assets - paid only $1 million on closing but provided for earn-out payments of up to $26.5 million.

Assets to be returned if targets not met

The APA contained an Asset Return Provision (ARP), under which Airborne was required to return the assets to Squid Soap if certain marketing and sales targets weren't met. Squid Soap's idea was to give Airborne a shot while reserving the right to take its product back and try again with someone else if the specified marketing and sales targets were not met.

No specific "effort" requirements

Although the ARP specified service levels below which the assets would revert to Squid Soap, the APA did not include a standalone commitment from Airborne to invest a certain level of effort and money in the product. In other words, Squid Soap negotiated a mechanism for getting its assets back, but not (or at least not obviously) one that would require Airborne to put its muscle behind the product (and, by extension, protect the potential value of Squid Soap's earn-out).

How it all went wrong

Problems arose when Airborne's cold remedy claims came under scrutiny - first by ABC News and then by the Federal Trade Commission and various state authorities. There was also a class action in California that was eventually settled for $23.5 million plus a consumer rebate program. By this time, Squid Soap had been rebranded as "Squid Soap by Airborne" and the ensuing negative publicity, coupled with Airborne's failure to put its now strained resources behind the product, damaged the product's viability.

Product return rebuffed

In accordance with its interpretation of the APA, Airborne duly offered to return the assets to Squid Soap. But the company was not interested - possibly because it feared the loss of its potentially valuable earn-out in a changed economy where alternative investors were scarce (the value of the earn-out being especially significant in a potential litigation context). Instead, it claimed that Airborne had known full well about the problems, including the California litigation, when the deal was being negotiated.

The court proceeding

Rebuffed in its effort to apply the ARP, Airborne brought an action for specific performance and other equitable remedies, including a declaration that Squid Soap could not assert a claim against it. Squid Soap issued a defence and counterclaim, in response to which Airborne moved for summary judgment. Vice Chancellor Laster accordingly focused on Squid Soap's claims and whether - on a best-case scenario - any were potentially strong enough to preclude the issuance of the declaratory judgment requested by Airborne. The principal claims fell under the following headings:

  • Fraud and fraudulent inducement;
  • Extra-contractual misrepresentations;
  • Breach of contract; and
  • Breach of implied covenant of good faith and fair dealing.


In each case, as set out below, the court found that Squid Soap's arguments could not overcome the clear language of the APA.

Fraud and fraudulent inducement

Squid Soap's first claim was that Airborne's "no pending litigation" representation in the APA was fraudulent or a fraudulent inducement to enter into the contract. Under Abry Partners V, L.P. v. F&W Acquisition LLP, 891 A.2d 1032 (Del. Ch. 2006), a knowingly false contractual representation can ground an action in fraud. The problem for Squid Soap was that Airborne had represented only that:

There are no Legal Proceedings pending or, to the Knowledge of the Purchaser, threatened that are reasonably likely to prohibit or restrain the ability of Purchaser to enter into this Agreement or consummate the transactions contemplated hereby.

What made things worse was that Squid Soap's own "no pending litigation" representation in the APA was far stronger. Unlike the Airborne representation, it was not limited to proceedings that would interfere with closing. The court held that, given the wording, Squid Soap was out of luck: whatever proceedings might have been pending or likely at the time of the agreement clearly had not interfered with closing, "which appears to have gone off without a hitch". Nor did the court accept Squid Soap's arguments that "consummating the transactions" encompassed all the post-closing events contemplated by the parties, including earn-out payments. Not only did this contradict the ordinary understanding of "consummating the transactions" but it ignored the fact that the APA did not actually require Airborne to make any efforts or to pay out any earn-out payments (unless certain conditions were met).

To put it another way, the court essentially declined to write a MAE provision into the APA.

Extra-contractual misrepresentations

Squid Soap also alleged fraud with respect to extra-contractual misrepresentations. Airborne argued that the APA's integration (entire agreement) clause disclaimed reliance on extra-contractual representations. Vice Chancellor Laster rejected this argument because a standard integration clause does not suffice under Delaware law as a disclaimer of reliance. Moreover, the APA's exclusive remedy clause excepted "claims involving fraud or intentional misrepresentation" with no suggestion that the right being preserved was limited to claims founded on written representations in the contract - one of many drafting points to come out of the ruling.

Despite this small victory, Squid Soap's argument quickly foundered on its failure to plead any specific instance in which an actual misrepresentation had been made. Instead, it generalized about Airborne's alleged misrepresentations, concealments etc. The court commented:

[B]ecause the implications of a fraud claim are so significant, including its power to set aside contractual relationships that otherwise would be governed by the negotiated agreements between sophisticated parties, public policy requires a specific articulation of the statement that would have these effects.

The court would not permit the claim, or even permit Squid Soap's counsel to re-plead. A claim in "equitable fraud" also failed because no fiduciary relationship (or other "special equities") existed in what was a commercial relationship between sophisticated parties who were advised by well-known law firms.

Breach of contract

Squid Soap was no more successful with breach of contract. Among other things, it argued that Airborne had breached the APA by failing to market and promote Squid Soap. But, as already noted, the contract contained no such obligation. All that happened if Airborne didn't market the product was that it had to be returned to Squid Soap. Nor did the court accept Squid Soap's argument that Airborne had breached the APA by failing to return the assets as soon as the thresholds for retention were breached. Again, the contract provided only that "the Purchaser shall transfer the Purchased Assets existing as of such date (other than inventory) back to the Seller." - not that they had to be transferred on or by such date. The wording of this clause also scuppered Squid Soap's claim that Airborne had breached the agreement by (allegedly) dumping Squid Soap inventory into "mega-discount stores".

Good faith and fair dealing

Under Delaware law, a covenant of good faith and fair dealing is implied into all contracts. On this point, the key thing to remember, as Laster V.C. noted, quoting a previous ruling, is the following:

[T]he implied covenant only applies where a contract lacks specific language governing an issue and the obligation the court is asked to imply advances, and does not contradict, the purposes reflected in the express language of the contract. (Alliance Data Sys. Corp. v. Blackstone Capital Partners V L.P., 963 A.2d 746, 770 (Del. Ch. 2009), aff'd 976 A.2d 170 (Del. 2009))

It must be clear that the parties "would have agreed" to the covenant had they thought to address the issue in question. Laster V.C. observed that Delaware courts have tended to imply good faith and fair dealing cautiously.

In light of this interpretive background, Squid Soap's counsel characterized the absent "efforts" requirement as something that had simply not been addressed in the contract. As such, it would arguably be subject to the implication of a good faith/fair dealing covenant. Given the general purpose of the APA, counsel argued, it would surely have had to be understood as including some obligation on the part of the purchaser to "make an honest go of it." However, while Laster V.C. agreed that "Airborne.could not have refused arbitrarily or in bad faith to pursue the Squid Soap business", he pointed out that this wasn't actually what Squid Soap was alleging throughout the rest of its claim, where it had repeatedly insisted that Airborne had failed to promote the Squid Soap product not on an arbitrary basis but because of the corporate crisis caused by the California lawsuit and the FTC investigation.

Squid Soap's argument was further undercut, in the court's opinion, by the "ease with which [it] could have insisted on specific contractual commitments from Airborne regarding the expenditure of resources, or some form of 'efforts' obligation for Airborne." Squid Soap had instead contented itself with highly conditional earn-out terms. Laster V.C. noted, in concluding, that there was nothing necessarily "irrational" or "unreasonable" about this bargain: the APA simply loaded all of Squid Soap's downside protection into the ARP, presumably (i) because the quid pro quo of doing it this way was an enormous potential earn-out and (ii) because Squid Soap believed that it had a great product that could easily be shopped around again if, for whatever reason, things did not work out with Airborne.

Conclusion

Squid Soap may not have anticipated that problems with the acquiror's other business lines could affect the reputation of its soap product or (more significantly) that an asset return might occur under economic conditions that would make it difficult to find new financing for any product, even a good one. But, in the view of the court, none of this allows "Squid Soap to rewrite the deal it cut in more optimistic days." Laster V.C. accordingly issued declarations barring Squid Soap from litigating against Airborne anywhere other than in Delaware and stating that Airborne had fully complied with the APA. The court stopped short of issuing a decree of specific performance compelling Squid Soap to accept the return of the assets, apparently only because it appeared unlikely that Squid Soap would fail to do so.

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.

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