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Tag Archives: fiduciary duty

Corporate Democracy vs. Directors’ Powers: lessons from Marquee/Smoothwater

Posted in Private Equity, Private Transactions, Public M&A, Shareholders, Strategy

Alberta’s Court of Appeal recently overturned a controversial interlocutory decision involving a proposed acquisition by Alberta Oil Sands Inc. (“AOS”) of Marquee Energy Ltd. (“Marquee”) pursuant to a plan of arrangement under s. 193 of Alberta’s Business Corporations Act (“ABCA”). Even though only Marquee was being arranged, thus necessitating a vote by its shareholders, the underlying decision of the Court of Queen’s Bench required that AOS also seek the approval of its shareholders to implement the transaction. The Court of Appeal set aside the lower Court’s order requiring AOS shareholders to vote on the … Continue Reading

What’s so “Special” about a “Special Committee”?

The importance of context when evaluating the need to establish a special committee

Posted in Private Equity, Private Transactions, Public M&A, Shareholders, Strategy

In a recent bench ruling in Re Plains Exploration, the Delaware Court held that a special committee was not required to take the lead in merger negotiations in circumstances where almost all of the members of the board were independent and free from conflict in connection with the transaction.

In Re Plains Exploration, the Delaware Court denied the plaintiff shareholders’ request to enjoin a merger between Plains Exploration & Production Company and Freeport-McMoRan Copper & Gold even though the Plains’ board (a) did not shop Plains before agreeing to merge with Freeport, (b) did not conduct a “pre” and … Continue Reading

Don’t be a “Dummy Director”

Delaware ruling on the obligations of directors of companies operating in emerging markets

Posted in Public M&A, Shareholders, Strategy





“Independent directors who step into these situations involving essentially the fiduciary oversight of assets in other parts of the world have a duty not to be dummy directors.” p. 21 of transcript, In re Puda Coal Stockholders Litigation, Del. Ch. C.A. 6476-CS (February 6, 2013).

A recent Delaware bench ruling considers some of the issues highlighted by fraud allegations against emerging market issuers like Sino-Forest Corporation and Zungui Haixi Corporation, and the Ontario Securities Commission’s recently issued Staff Notice 51-720 – Issuer Guide for Companies Operating in Emerging Markets.

In re Puda, shareholders … Continue Reading