Scott Kugler Partner National Lead - Class Action Defence Group (Canada)

Securities

• SNC-Lavalin Class Actions - Defending the former CEO of SNC-Lavalin in class actions in Ontario and Quebec. Investors sued the company and its officers and directors for approximately $1 billion in under secondary market liability legislation. They allege damages caused by misrepresentations in various SNC-Lavalin public documents. The action has been certified as a class action, but with a much narrower scope than the plaintiff's sought in the Statement of Claim. The defendants were successful in defeating a motion by plaintiffs to amend the Statement of Claim and defeating a motion for leave to appeal from that decision.
• Poseidon Class Actions - Defending Poseidon and its directors and officers against class actions and multiple other actions in which shareholders assert both primary and secondary market claims arising from the company's announcement that approximately $100 million in revenue was improperly recognized. Class actions were commenced in Alberta, Ontario, Quebec and New York. The Poseidon litigation also involves CCAA proceedings and regulatory proceedings.
• Greenstar Class Action - Defending four former officers and directors of Greenstar against a class action in Ontario alleging misrepresentation in its offering documents. The company's operations were located in China.
• Barkerville Class Action - Defending Barkerville and two of its former directors and officers against a securities class action relating to alleged misrepresentations concerning geological report issues surrounding one of the company's mining properties.
• Colt Class Action - Defending Colt Resources against a class action in Ontario alleging misrepresentation in its quarterly filings and a failure to make timely disclosure.
• Penn West Class Actions - Defended Penn West Petroleum and a number of current and former directors and officers of the company against multiple shareholder class actions in Canada. A parallel class action was commenced in the United States. Shareholders claimed to have suffered damages as a result of a drop in the stock price that occurred after the company announced, among other things, that it would be restating some of its financial statements. The actions were settled following a mediation attended by parties in all actions, including the U.S. action.
• Armtec Class Actions - Defended a publicly traded infrastructure company and its directors and officers in class actions commenced in Ontario and Quebec by primary and secondary market investors for approximately $100 million. The plaintiffs alleged that the prospectus and certain public statements contained misrepresentations about the sustainability of the company's dividend. A settlement was reached through mediation.
• Atlas Cold Storage Class Action - Defended the CFO of a publicly traded income trust in a class action commenced in Ontario by primary and secondary market investors for approximately $343 million. The plaintiffs alleged that the prospectus, as well as various financial statements and press releases, contained misrepresentations about the finances of the income trust. A settlement was reached through mediation.
• Portus Class Action - Defended four investment dealers in class actions commenced by investors for an unspecified amount that was expected to be close to $100 million. The plaintiffs alleged that the Portus hedge fund was a sham and that the investment dealers were complicit in the furtherance of the sham. The defendants were successful in striking out most of the claim on a preliminary motion, following which a settlement was reached.
• YBM Magnex Class Action - Defended the former auditor of YBM Magnex in two class actions commenced by primary and secondary market investors for approximately $360 million. The plaintiffs alleged that YBM Magnex was used to carry out a multi-layered conspiracy and fraud for several purposes including obtaining improper gains by financial statement misrepresentation and manipulation. The actions were settled by all defendants prior to certification.
• M&A Advisory - Advisory work for a leading underwriter with respect to its domestic obligations to clients and third parties for the purposes of an international arbitration.
• Disclosure / Insider Trading - Represented a publicly traded company in a regulatory investigation in which the OSC alleged that the company's disclosure was deficient and that some of its key executives traded while in possession of material undisclosed information. Ultimately, proceedings were not commenced.
• Insider Trading - Represented the president of a public company in proceedings commenced by the OSC in which it was alleged that he had traded while in possession of material undisclosed information. A settlement was approved by the OSC in a decision that is widely cited as setting out the applicable principles for a settlement approval hearing.
• Convertible Debenture Pricing - Represented a hedge fund in a dispute with the issuer of convertible debentures concerning the conversion price of the debentures. The court ordered the issuer to pay the conversion price that our client had sought.
• Broker Negligence - Frequently represent dealers and advisors in regulatory proceedings relating to allegations of failure to abide by KYC obligations, suitability obligations, and failures to supervise. Clients include major banks and independent dealers.
• Dealer Liability - Represented a securities dealer in multiple civil proceedings by investors who lost considerable sums of money as a result of investing in an unapproved product that was brought to their attention by some of the dealer's representatives. These actions were settled.

Competition / Anti-Trust

• Airline "Capacity" Class Actions - Representing a major airline in class actions across Canada involving allegations of a conspiracy to restrict overall supply of seating to increase pricing on existing seats.
• "LCD" Class Actions - Represented a Taiwanese manufacturer of LCDs in class actions commenced in Ontario and B.C. on behalf of direct and indirect purchasers of LCDs. The plaintiffs alleged that the defendants participated in a worldwide price-fixing conspiracy in relation to LCDs. The plaintiffs have claimed approximately $150 million in damages. The claim was settled while an application for leave to appeal to the Supreme Court of Canada was pending on two pivotal issues in competition law.
• "Fuel Surcharge" Class Actions - Representing a U.S. airline in class actions commenced in Ontario on behalf of all persons who purchased a ticket for trans-Atlantic or trans-Pacific air travel. The plaintiffs allege that the defendants participated in a worldwide price-fixing conspiracy in relation to fuel surcharges that were applied to airline tickets. The plaintiffs have claimed approximately $200 million in damages.
• "Drywall" Class Actions - Defending a leading US drywall manufacturer against class actions in Ontario and Quebec relating to an alleged conspiracy to increase the price of drywall throughout North America.
• "Resistors" Class Actions - Defending a Japanese based resistor manufacturer against a class action in Ontario relating to an alleged conspiracy to increase the price of resistors throughout the world.
• "Consumer Product Engines" Class Actions - Represented an international manufacturer and distributor of consumer product engines in class actions commenced in Ontario and Quebec on behalf of all persons who purchased engines or products containing the engines. The plaintiffs alleged that the manufacturer falsely advertised the attributes of the engines.
• "SRAM" Class Actions - Represented a U.S. manufacturer of SRAM in class actions commenced in Ontario, Quebec and B.C. on behalf of direct and indirect purchasers of SRAM. Plaintiffs alleged that the defendants participated in a worldwide price-fixing conspiracy in relation to SRAM and claimed approximately $400 million in damages. In advance of the certification motion, the plaintiffs brought a motion for production by the defendants of unredacted materials in their possession from the parallel U.S. proceeding. The defendants successfully resisted this motion, as well as a similar motion in the U.S.
• "Automotive Cross Border Pricing Disparity" Class Actions - Represented an international automotive manufacturer in a class action commenced in Ontario on behalf of all persons who purchased automobiles in Canada at prices higher than were available in the US. The action was settled resulting in a dismissal of the action against our client.
• Industry Associations - Provide advice to various industry associations regarding best practices and regarding specific issues that arise in the course of the association's affairs.

Shareholder / Partnership Disputes & Non-Class Director and Officer Claims

• Director and Officer of a Bankrupt Company - Defending an individual who was a director and officer of a leading media firm with respect to obligations to third parties resulting from a failure of the company.
• Directors and Officers of a Hostile Takeover Bid Target - Defending three former officers and directors of a large Ontario public company that was the target of a hostile takeover bid against allegations of wrongdoing during the course of the bid.
• Director and Officer of an Engineering Firm - Defending the former CEO of a large domestic engineering firm with respect to the operation of its internal share trading system.
• Director and Officer of a Defence Industry Manufacturer - Defence of a defence contractor and multiple directors and officers against claims of oppression from a large shareholder who was the former CEO of the company. Claims relate to the conversion of debt to equity, and then to another class of equity.
• Recreational Facility - Defended a prominent recreational facility in Ontario and its key officers and directors against claims by a member for wrongful suspension of his privileges.
• Tier 1 Automotive Supplier - Representing a shareholder of a Tier 1 automotive supplier in an action on the Commercial List involving claims of wrongful dismissal and oppression.
• Real Estate Company - Defending multiple shareholders of a leading real estate and development company in a shareholder dispute involving the oppression remedy.
• Private Health Care Company - Represented a key shareholder of a private health care company in a dispute with its other key shareholder over the management and control of the company. The dispute was resolved prior to court proceedings being commenced.
• Private Health Care Company - Represented shareholders of a closely-held private health care company in a dispute with other shareholders who had joined the company as a result of a merger. The unanimous shareholders' agreement did not contain a buy-sell provision or other contractual mechanism that would allow for the resolution of the shareholder dispute, but we obtained a court order forcing the other shareholders to sell their shares to our clients. The terms of sale were resolved out of court.
• Building Supply Company - Defending one of the partners of a partnership in a dispute with its former partner regarding the validity of a buy-sell offer and the conduct of the partners in relation to the buy-sell offer. The former partner applied to the court for an injunction to block the buy-sell offer from closing but we successfully resisted that motion and the transaction was completed. The former partner also asserted a claim for damages, which is currently before the court.

Franchise Disputes

• Disclosure / Support - Defending a franchisor and franchisor's associates against a rescission claim with respect to a family style restaurant in Ontario.
• Misrepresentation - Defending a franchisor and franchisor's associates against a misrepresentation claim with respect to an eatery in Toronto.
• Contract Enforceability - Representing a franchisor with respect to enforceability of minimum payments due under the franchise agreement.
• Disclosure - Defended multiple claims against franchisors alleging misrepresentations and deficiencies in the disclosure documents. A settlement was achieved.
• Disclosure / Misrepresentation - Defended an alleged franchisor's associate in a claim by a franchisee relating to alleged deficiencies in the disclosure document as well as alleged misrepresentations made prior to entering into the franchise agreement. A settlement was achieved.
• Land Control - Represented a franchisor and affiliated company in a dispute with a former franchisee concerning land control over the former franchise location. The court enforced our client's rights under a land control agreement and awarded our client control over the property. The decision was upheld by the Court of Appeal.
• Class Action - Defended a franchisor in a franchise class action. The court refused to certify a significant portion of the claim.

Arbitrations

• Domestic - Represented commercial entities, including oil and gas companies, landlords, and franchisors, in domestic arbitrations on a multitude of commercial disputes.
• International - Represented leading international companies, including specialized manufacturers, in disputes with customers involving contractual interpretation and performance of products.

Administrative Law

• Judicial Review - Represented the manufacturer of Chobani Greek yogurt in a high profile dispute regarding a test marketing permit that had been issued by the Minister of International Trade that allowed limited quantities of Chobani to be imported into Canada duty-free. The applicants contended that the import permit was unreasonable because the imports threatened Canada's supply management system and argued to have the import permit struck down. The court dismissed the applications and ruled that the applicants all lacked standing.