In June 2011, Siskinds LLP, Siskinds Desmeules and Koskie Minsky LLP filed proposed class actions in Ontario and Quebec against Sino-Forest Corp. (“Sino,” TSX: TRE), its senior officers and directors, auditors, underwriters, and certain others. The actions allege, among other things, that the defendants materially misstated Sino’s assets and results of operations, and thereby misrepresented that Sino’s financial statements had been compiled in accordance with generally accepted accounting principles.
Who is affected by the class action against Sino?
The Ontario class action seeks damages on behalf of the following persons and entities:
(i) all persons and entities, wherever they may reside, who acquired Sino-Forest Corporation’s securities during the period from and including March 19, 2007 to and including June 2, 2011 (the “Class Period”) on the Toronto Stock Exchange or other secondary market in Canada, which includes securities acquired over-the-counter, and all persons and entities who acquired Sino-Forest Corporation’s securities during the Class Period who are resident of Canada or were resident of Canada at the time of acquisition and who acquired Sino-Forest Corporation’s securities outside of Canada, except:
a. those persons resident or domiciled in the Province of Quebec at the time they acquired Sino-Forest Corporation’s Securities, and who are not precluded from participating in a class action by virtue of Article 999 of the Quebec Code of Civil Procedure, RSQ, c C-25, and
b. the Excluded Persons*
and who held some or all of such securities as of the end of the Class Period.; and
(ii) all persons and entities, wherever they may reside, who acquired Sino-Forest Corporation’s securities during the Class Period by distribution in Canada in an offering, or are resident of Canada or were resident of Canada at the time of acquisition and acquired Sino-Forest Corporation’s securities by offering outside of Canada, except the Excluded Persons*, and who held some or all of such securities as of the end of the Class Period.
The Quebec class action seeks damages on behalf of all persons and entities domiciled in Quebec (except Excluded Persons*) who purchased or otherwise acquired in the secondary market or under a prospectus or other offering document in the primary market, equity, debt, or other securities of or relating to Sino during the Class Period.
*Excluded Persons means, generally, the defendants, their past and present subsidiaries, affiliates, officer, directors, senior employees, partners, legal representatives, heirs, predecessors, successors and assigns, and any individual who is a member of the immediate family of one or more of the following persons: Allen T.Y. Chan, W. Judson Martin, Kit Kai Poon, William E. Ardell, James P. Bowland, James M.E. Hyde, Edmund Mak, Simon Murray, Peter Wang, and Garry J. West.
Developments
Claim Form for Settlements with Directors, BDO, Horsley and Underwriters
Class members who previously participated in the Ernst & Young settlement will receive a Decision Notice with a prepopulated data set listing their transactions and an opportunity to request a further review if they disagree with the decision that has been made.
A Notice regarding the settlements can be viewed here: English and French
Class members who did not participate in the E&Y settlement will be required to complete a new claim form which can be found here.
Settlement with the Directors
On November 16, 2016, the Court approved a settlement with certain directors of Sino Forest (“Directors Settlement”). The Court also approved the method for distributing the funds related to the Director Settlement (“Directors Plan of Allocation”).
The order approving the Directors Settlement and Director Plan of Allocation can be found here: ORDER and PLAN OF ALLOCATION
A copy of the Settlement Agreement can be viewed here.
The Court Approved Settlement, which includes a new group of class members, namely:
- all persons or entities who, from March 19, 2007 through August 26, 2011, purchased common stock of Sino-Forest Corporation on the over-the-counter market and who were damaged thereby; and
- all persons or entities who, from March 19, 2007 through August 26, 2011, purchased debt securities issued by Sino-Forest other than in Canada and who were damaged thereby; are now being given an opportunity to opt-out of the action.
A copy of the Opt-out Notice and Opt-Out form can be viewed here: Notice and Opt-Out Form
Settlement with BDO
On November 16, 2016, the Court approved the settlement with BDO Limited, Sino Forest’s former auditor (“BDO Settlement”). The Court also approved the method for distributing the funds related to the BDO Settlement (“BDO Plan of Allocation”).
The orders approving the BDO settlement and BDO Plan of Allocation can be found here: ORDER and PLAN OF ALLOCATION
A copy of the Settlement Agreement can be viewed here.
Settlement with the Independent Directors
The Plaintiffs have entered into a proposed settlement with the Independent Directors of Sino-Forest Corporation in the amount of CAD$250,000.00. The settlement is subject to court approval.
A Notice providing further information regarding the settlement approval hearing, class counsel’s fee request and how to object to the settlement can be viewed [here].
A copy of the Settlement Agreement can be viewed [here].
Notice of Settlement with the Dealers
The Plaintiffs have entered into a proposed settlement with Credit Suisse Securities (Canada) Inc., TD Securities Inc., Dundee Securities Corporation, RBC Dominion Securities Inc., Scotia Capital Inc., CIBC World Markets Inc., Merrill Lynch Canada Inc., Canaccord Financial Ltd., Maison Placements Canada Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (successor by merger to Banc of America Securities LLC) (collectively “the Dealers”). The Dealer Settlement is subject to court approval. A copy of the Settlement Agreement can be found [here]. The Notice concerning the proposed Dealer Settlement, class counsel fees, the claims and distribution protocol, and two motions regarding the Ernst & Young Settlement (to extend the claims filing deadline and to vary the Administrator’s fee) can be found here: [English] [French]. The proposed claims and distribution protocol can be found here: Claims and Distribution Protocol. The Notice of Objection form (to be used if you wanted to object to the Dealer Settlement) is attached to the Notice above, or can be found here: [English] [French]. The deadline to object to the Dealer Settlement was April 1, 2015 and has now passed. The court materials filed in support of settlement approval and the fee and disbursement request can be viewed here:
- Motion Record of the Plaintiffs Settlement Approval (Returnable May 11, 2015)
- Motion Record of the Plaintiffs Fee Approval (Returnable May 11, 2015)
- Motion Record (2nd Supp) to Vary Administrators Fee (Returnable May 11, 2015)
- Factum of the Plaintiff (Settlement Approval)
- Factum of the Plaintiff (Fee Approval)
- Reply Factum of the Plaintiff (Settlement Approval)
- Notice of Adjournment
The Dealer settlement was approved by the Court on October 30, 2015. A copy of the Settlement Approval Order can be reviewed here.
Settlement with David Horsley
The Plaintiffs entered in a settlement with David J. Horsley (“Horsley”). A copy of the settlement agreement can be viewed here: [Settlement Agreement]. On July 24, 2014, the court approved both the settlement agreement with Horsley as well as class counsel’s application for fees and disbursements. A plan for distributing the $4.2 million settlement amount will be presented to the court for approval at some time in the future.
Settlement with Ernst & Young LLP
The Plaintiffs entered into a settlement with Ernst & Young (the “Settlement Agreement”). A copy of the Settlement Agreement can be viewed here: [Settlement Agreement]. The motion to approve the settlement with Ernst & Young was heard on February 4, 2013. On March 20, 2013, the settlement was approved by Justice Morawetz. A copy of the settlement approval decision can be found here: [Decision]. On December 13, 2013, the court approved the method of distribution of the settlement funds (the “Claims and Distribution Protocol”) and fees to be paid to lawyers (“Class Counsel Fees”). On March 13, 2014, a group of objectors’ application for leave to appeal the Ernst & Young settlement to the Supreme Court of Canada was denied. The deadline to file a claim to participate in the Ernst & Young settlement has now passed.
Proposed and Concluded Settlements
Certification and Settlement with Pöyry (Beijing) Consulting Company Limited.
On March 20, 2012, the plaintiffs in the Ontario class action entered into a settlement agreement with Pöyry (Beijing) Consulting Company Limited. A copy of the settlement agreement can be viewed here: [Settlement Agreement]. The Pöyry settlement agreement was approved by the Ontario Superior Court of Justice and Quebec Superior Court by orders issued September 25 and November 9, 2012, respectively.
On May 17, 2012, Mr. Justice Perell granted an Order approving the terms of a litigation funding agreement. On January 20, 2015, Mr. Justice Perell granted leave to the plaintiffs to assert claims pursuant to Part XXIII.1 of the Ontario Securities Act and certified the class action as against all remaining defendants to the class action (i.e. defendants with whom the plaintiffs have not settled – see above). The deadline for class members to exclude themselves from the action was January 15, 2013 and has now expired.
Documents
SETTLEMENTS
Poyry (Beijing) Consulting Company Limited:
March 20, 2012 Poyry Settlement Agreement
May 17, 2012 Order of Perell, J. (Settlement Approval and Notice Plan)
May 17, 2012 Endorsement of Perell., J (Settlement Approval Hearing and Notice Plan)
June 27 2012 Notice of Tentative Settlement with Pöyry (Beijing) Consulting Company Limited
June 27 2012 Avis d'une entente de principe avec Pöyry (Beijing) Consulting Company Limited
Sept 25, 2012 Reasons of Perell, J. Poyry Settlement Approval
September 25 2012 Poyry Settlement Order
Ernst & Young Settlement:
Dec 13 2012 Endorsement Scheduling the Motion to Approve the Ernst & Young Settlement
Dec 21 2012 Order Regarding Notice Procedure
Dec 21 2012 Endorsement of Justice Morawetz (December 21, 2012)
Feb 4 2013 Motion Record for Settlement Approval (February 4, 2013)
March 20 2013 Endorsement of Morawetz J., dated March 20, 2013
Affidavit of Daniel Bach, sworn March 2, 2012 – Exhibit A Documents
April 9 2013 Notice of Motion for Leave to Appeal the Ernst & Young Settlement, dated April 9, 2013
June 26 2013 CCAA Endorsement – Leave to Appeal Denied, dated June 26, 2013
Sept 23 2013 Application for Leave to Appeal (Ernst &Young Settlement) (SCC)
Nov 4 2013 Short Form Notice re Distribution Protocol and Fee Hearing (Ernst & Young Settlement)
Nov 4 2013 Formulaire de reclamation – Francais
Nov 4 2013 Claim Form – English
Nov 4 2013 Avis d’opposition – Francais
Nov 4 2013 Notice of Objection - English
Nov 4 2013 Guide to understanding the Claims and Distribution Protocol
Nov 4 2013 Claims and Distribution Protocol
Nov 4 2013 L’avis d’audience du protocole de distribution et d’honoraire – Francais
Nov 4 2013 Notice of Distribution Protocol and Fee Hearing - English
Nov 4 2013 Affidavit of Charles M. Wright
Nov 26 2013 Order Granting Recognition and Enforcement of Order of Ontario Court Approving Ernst & Young Settlement
Dec 6 2013 Supplementary Book of Authorities re: fees
Dec 6 2013 Book of Authorities re: fees approval
Dec 6 2013 Factum re: counsel fees
Dec 6 2013 Supplementary Motion Record re: claims
Dec 27 2013 Endorsements re Fee Approval and Claims Distribution Protocol Approval
Jan 10 2014 - Order Awarding an Honorarium
Jan 10 2014 Order Approving Class Counsel Fees
March 4 2015, Notice concerning the proposed Dealer Settlement [English] [French]
Claims and Distribution Protocol
David Horsley Settlement:
June 13, 2014 - Notice of Proposed Settlement
Sino - Motion Record of the Plaintiffs (Settlement Approval - Horsley Settlement)
July 17, 2014 - Factum of the Plaintiffs
July 31, 2014 - Order of Justice Morawetz - Settlement Approval
Pleadings
June 20 2011 Notice of Action Issued
July 20 2011 Notice of Action Issued
Jan 26 2012 Amended Notice of Action
April 26 2012 Fresh As Amended Statement of Claim (Notice of Action issued July 20, 2011)
Funding Agreement
May 17 2012 Endorsement of Perell., J (Funding Agreement)
May 17 2012 Order of Perell, J. (Funding Agreement)
CCAA Motions/Order/Endorsements (Miscellaneous)
April 12 2012 Order of Morawetz, J
April 20 2012 Endorsement of Justice Morawetz (re Ad Hoc Committee of Purchasers Motion Record) - re funding motion
April 20 2012 Order of Justice Morawetz (re Applicants Motion Record)
April 20 2012 Order of Justice Morawetz (re Ad Hoc Committee of Purchasers Motion Record) – re funding motion.
April 26 2012 Motion Record (Motion Returnable May 8, 2012)
May 8 2012 Order (Third Party Stay)
May 8 2012 Order (Poyry Settlement Leave Motion)
May 1 2012 Motion Record (Motion Approving Claims Order, Returnable May 8, 2012)
Dec 3 2012 Plan of Compromise and Reorganization
Dec 10 2012 Plan Sanctioning Order
Dec 10 2012 Endorsement of the Motion Sanctioning the Plan of Compromise and Arrangement
May 14 2012 Endorsement of Justice Morawetz - Contrarian Motion
May 14 2012 Endorsement of Justice Morawetz - Applicant - Claims Procedure Order
May 14 2012 Claims Procedure Order
Certification and Part XXIII.1 OSA Leave
March 26 2012 Order of Perell, J
March 26, 2012 Reasons of Perell, J
May 9 2012 Supplemental Motion Record of the Plaintiffs (Returnable Nov. 21 to 30, 2012)