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Driving this increase in filings are so called “Bill 198” cases, which are those involving claims in respect of an issuer’s continuous disclosure obligations pursuant to PartXXIII.1 of the Ontario Securities Act (OSA) and analogous sections of the other provincial securities acts. Nine of the 15 cases filed in 2011 were Bill 198 cases, compared to the seven filed in 2010. A total of 35 Bill 198 cases have been filed since the new provisions came into force in 2005. Of these, 24 remain unresolved, 10 have settled, and one has been dismissed.
“The uptick in securities class actions filings observed since 2008 is clearly not a transient phenomenon,” said NERA Senior Vice President and Trends co-author Mark Berenblut. “This trend has been driven by filings of Bill 198 cases, which account for more than two-thirds of the cases filed between 2008 and 2011.”
“This upward trend seems likely to continue at least through 2012. Several factors may influence the number of filings and the size of settlements in the future, including future rulings in leave applications, certification motions, and any trial judgments, as well as the evolving landscape of US class actions involving foreign companies and investors following the US Supreme Court decision in Morrison,” added NERA Vice President and Trends co-author Brad Heys.
Filings against Chinese Companies
Three of the new filings during 2011 were made against Chinese companies whose shares trade on the TSX or TSX Venture Exchange. These filings are a reflection of one of the major trends driving class action filings in the United States last year. The filings in Canada include the case against Sino-Forest—one of the highest-profile suits brought against Chinese companies on either side of the border.
NERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For nearly half a century, NERA's economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world's leading law firms and corporations. We bring academic rigor, objectivity, and real world industry experience to bear on issues arising from competition, regulation, public policy, strategy, finance, and litigation.
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