TORONTO, Dec. 10, 2012 /CNW/ - Today, the Ontario Superior Court of Justice approved a plan of arrangement in the proceeding commenced in March 2012 by Sino-Forest Corporation ("Sino-Forest") under the Companies' Creditors Arrangement Act (the "Insolvency Proceeding").
The Court approved the plan of arrangement at the behest of numerous stakeholders. A group of institutional and individual Sino-Forest shareholders who are represented by the law firms of Koskie Minsky LLP and Siskinds LLP, and who collectively held in excess of 10% of Sino-Forest's outstanding shares (the "Koskie-Siskinds Group"), did not oppose approval of the plan.
As explained more fully below, the Koskie-Siskinds Group has prosecuted the class action and has participated extensively in the Insolvency Proceeding, at all times with the objective of ensuring that their interests and those of their fellow class members are protected. The Koskie-Siskinds Group includes the Labourers' Pension Fund of Central and Eastern Canada, the International Union of Operating Engineers, and Davis Selected Advisers LP, the second largest shareholder of Sino-Forest.
At the same time as it approved the plan of arrangement, the Court denied an adjournment request of three institutional shareholders of Sino-Forest who collectively held less than one-tenth of the shares held by the Koskie-Siskinds Group. These institutional investors are Comité Syndical National de Retraite Bâtirente Inc., Northwest & Ethical Investments L.P. and Trimark Investments, and they are represented by the law firm of Kim Orr LLP (the "Kim Orr Group").
Background to the Insolvency Proceeding
In December 2011, the Ontario Superior Court of Justice heard a motion for carriage of securities class actions that had been brought against Sino-Forest in the wake of a release by Muddy Water LLP of a research report alleging that Sino-Forest was a massive fraud. The defendants in the class actions include Sino-Forest's senior officers and directors, its then current and former auditors, Ernst & Young LLP and BDO LLP, and eleven financial institutions who collectively underwrote well over $1 billion in securities offerings of Sino-Forest, including Credit Suisse Securities (USA) LLC, Merrill Lynch Pierce Fenner & Smith Incorporated, TD Securities Inc. and RBC Dominion Securities Inc.
The carriage motion was fought by three contestants, including the Koskie-Siskinds Group and the Kim Orr Group. In January 2012, the Ontario Superior Court of Justice granted carriage of the class action to the Koskie-Siskinds Group and ranked the Kim Orr Group last of the three groups which had competed for carriage.
The Koskie-Siskinds Group is assisted by Siskinds, Desmeules, Siskinds's Québec-based affiliate.
In early March 2012, the Koskie-Siskinds Group served upon the defendants in the class action the plaintiffs' motions for certification under the Class Proceedings Act, 1992 (the "Certification Motion") and for leave to commence an action under Part XXIII.1 of the Ontario Securities Act (the "Leave Motion"). The Koskie-Siskinds' motion materials were based upon their extensive investigation into the affairs of Sino-Forest, and included the affidavits of Hong Kong-based investigators specializing in financial fraud, accounting experts, legal experts from China and Suriname, and a financial economist. More than $1.2 million have been spent to date in disbursements alone.
Shortly after the Koskie-Siskinds Group served their Certification and Leave Motions, they entered into an agreement with certain of the defendants in the class action, the purpose of which was to toll the claims of all class members, including the Kim Orr Group, under Part XXIII.1 of the Ontario Securities Act.
On March 26, 2012, the Ontario Superior Court of Justice issued a decision on a scheduling motion brought by the Koskie-Siskinds Group in the class action. Over the objections of the defendants in the class action, the Court expedited the schedule for the hearing of the Certification and Leave Motions to November 2012, and ordered those defendants who filed materials in opposition to the Leave Motion to file statements of defence prior to adjudication of the Certification and Leave Motions.
Several days later, on March 30, 2012, Sino-Forest commenced the Insolvency Proceeding.
On September 25, 2012, the Ontario Superior Court of Justice approved of a settlement with the defendant, Pöyry (Beijing) Consulting Company Limited, which gave the Koskie-Siskinds Group access to non-public information that was relevant to the claims asserted in the class action. The Québec Superior Court also approved that settlement on November 9, 2012.
The Insolvency Proceeding
Promptly following the commencement of the Insolvency Proceeding, the Koskie-Siskinds Group retained leading insolvency counsel from the law firm of Paliare Roland Rosenberg Rothstein LLP ("PRRR") to assist in the protection of the class members' interests in that proceeding.
Over the next eight months, the Koskie-Siskinds Group, aided by PRRR, took numerous steps to protect the interests of all class members, including the Kim Orr Group, in the Insolvency Proceeding.
Among other things, the Koskie-Siskinds Group:
|a)||attended the initial hearing on short notice, and made submissions (which were accepted by the court) that the sale process order should be subject to a comeback clause;|
|b)||attended at the comeback date, and returned a motion on that date that clearly set forth a number of issues with respect to the Insolvency Proceeding, and reserved all rights with respect to those issues throughout that proceeding;|
|c)||obtained an order increasing the powers of the Monitor to administer Sino-Forest, which took away powers from entrenched management and the then existing board, protecting the assets of the company for all stakeholders;|
|d)||negotiated tolling agreements to prevent the erosion of the class members' rights through the passage of time while the Insolvency Proceeding unfolded;|
|e)||obtained representative standing in the Insolvency Proceeding for the purpose of the claims procedure approved by the court, and filed a proof of claim on behalf of the Class to prevent the Class' claims from being barred;|
|f)||compelled production of non-public documents by Sino-Forest so as to permit the Class Action Plaintiffs to negotiate with other stakeholders in the Insolvency Proceeding on an informed basis;|
|g)||examined all applicable insurance policies and indemnity agreements and assessed the capacity to pay of various defendants, including Ernst & Young;|
|h)||compelled the attendance of Sino-Forest's CEO at a cross-examination and tested his evidence in the Insolvency Proceeding;|
|i)||engaged in multiple formal and informal, group and individual mediation and negotiation sessions with other stakeholders regarding the class members' claims, including a Court-ordered 2-day mediation in September presided over by the Honourable Justice Newbould;|
|j)||attended each and every hearing in the case to ensure that the class members' interests were properly represented; and,|
|k)||negotiated the terms of the plan of arrangement with Sino-Forest and with other stakeholders, brought a motion challenging various features of the plan, preserved the class members' right to seek the right to vote on the plan, and expressly reserved all of the Class Action Plaintiffs' rights in connection with that motion pending the presentation of the plan for sanction by the court to ensure that the plan was in the best interests of the Class.|
Although the Kim Orr Group has acknowledged that it monitored the Insolvency Proceeding closely, the Kim Orr Group took no steps within the Insolvency Proceeding to protect the interests of the class members.
The Settlement Agreement between Ernst & Young LLP and the Koskie-Siskinds Group
On December 3, 2012, the Koskie-Siskinds Group announced a settlement with Ernst & Young LLP on behalf of all class members. The proposed agreement provides for Ernst & Young to pay C$117 million in settlement of all claims arising from its dealings with Sino-Forest. As is the case with all class action settlements, the settlement is conditional upon Court approval.
Counsel to the Koskie-Siskinds Group believe that the proposed settlement with Ernst & Young is the largest auditor settlement in Canadian history, and that this settlement is more than twice as large as the next largest auditor settlement. The proposed settlement with Ernst & Young also constitutes the 5th largest settlement with an auditor in a securities class action, world-wide. On any reasonable basis, the agreement with Ernst & Young is a strong result for class members.
Accordingly, upon learning of the settlement, counsel to the Kim Orr Group congratulated counsel to the Koskie-Siskinds Group on the settlement, and at the hearing for an order approving of the plan of arrangement held on December 7, 2012, a lawyer from Kim Orr LLP described the settlement in open court as "a very big settlement."
The plan of arrangement approved today creates a framework for the implementation of the Ernst & Young settlement and possible future settlements with other defendants in the class action. No party has yet moved for approval of the Ernst & Young settlement and, prior to any motion for its approval being heard, notice will be issued to members of the putative class as to the terms of the settlement and the means whereby class members may oppose approval of the settlement, should they be inclined to do so. When the agreement is presented for approval, all parties, including the Kim Orr Group, will be able to present their views.
The proposed settlement is not only supported by the members of the Koskie-Siskinds Group, but also by Paulson & Co., which was the largest shareholder of Sino-Forest at the time that the Muddy Waters report was issued.
About Siskinds LLP and Koskie Minsky LLP
In both 2010 and 2011, Securities Class Action Services, a unit of Institutional Shareholder Services (ISS), named Siskinds LLP the top Canadian law firm in its annual global ranking of the world's 50 leading securities class action law firms. Siskinds was co-lead counsel in the Imax Securities Litigation, the first securities class action in which leave was granted to commence an action under Part XXIII.1 of the Ontario Securities Act, and Siskinds has been lead or co-lead counsel in all Ontario securities class actions in which such leave was granted. Siskinds was also the first law firm to secure certification of a class proceeding under the Class Proceedings Act, 1992.
Koskie Minsky LLP is a 45-lawyer firm in Toronto specializing in class actions, pension and benefits, trade union labour law, employment law, civil litigation and construction law. Its class action group consists of 10 lawyers who specialize in cases relating to institutional abuse, securities fraud, pension fund mismanagement, consumer protection and employment issues. It has been involved in many of the leading cases across Canada and has recovered more than 4 billion dollars for its class action clients.
SOURCE: Koskie Minsky LLP and Siskinds LLP
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Media contacts: A. Dimitri Lascaris