Heather Gardiner

Watch for more mergers in 2012
Posted Date: January 05, 2012

The number of law firm mergers increased drastically in 2011 and more are expected in 2012, according to a Hildebrandt Institute report released yesterday.

Photo: Shutterstock

There was a 67-per-cent surge in law firm mergers in the United States in 2011, said the report, which cited 45 mergers involving U.S. firms compared to 27 mergers in 2010. Merger activity seems to be reverting back to levels before the recession where there were typically 55 or more mergers per year.

Law firm mergers in Canada also jumped in 2011. On June 1, Ogilvy Renault LLP sent shockwaves through the legal industry when it became the first Canadian firm to join the Norton Rose Group, with Macleod Dixon LLP following suit on Jan. 1 this year to create Norton Rose Canada. With the addition of the Canadian firms, Norton Rose now has more than 2,900 lawyers in offices around the globe.

McMillan LLP and Lang Michener LLP also combined on Jan. 1, 2011, now operating under the name McMillan. In addition, shortly before McMillan’s merger, Saskatchewan’s Balfour Moss LLP merged with Miller Thomson LLP on Dec. 7, 2010.

Eleven mergers have already been announced in the U.S. in the past two weeks, which is almost twice as many at this time last year. These include Faegre & Benson LLP in Minneapolis and Baker & Daniels LLP in Indianapolis to become Faegre Baker Daniels LLP; Greenebaum Doll & McDonald PLLC in Kentucky and Bingham McHale LLP in Indianapolis to become Bingham Greenebaum Doll LLP; Schottenstein Zox & Dunn Co. in Columbus, Ohio combined with Ice Miller LLP in Indianapolis; and Holme Roberts & Owen LLP in Denver combined with Bryan Cave LLP in St. Louis.

There were also some large mergers in the United Kingdom in 2011 with more expected in 2012, including Australian law firm Blake Dawson’s plans to combine its business with the U.K.’s Ashurst LLP in March 2012 and a full merger by 2014.

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Securities ruling not a total blow to national regulator: lawyer
Posted Date: December 22, 2011

The Supreme Court of Canada has rejected the federal government’s bid to create a national securities regulator.

The top court ruled that the government’s proposed securities act is unconstitutional under s. 91(2) of the Constitution Act.

“Canada has shown that aspects of the securities market are national in scope and affect the country as a whole. However, considered in its entirety, the proposed act is chiefly directed at protecting investors and ensuring the fairness of capital markets through the day-to-day regulation of issuers and other participants in the securities market,” the court stated in its ruling.

“These matters have long been considered local concerns subject to provincial legislative competence over property and civil rights within the province. Canada has not shown that the securities market has so changed that the regulation of all aspects of securities now falls within the general branch of Parliament’s power over trade and commerce under s. 91(2).”

But Jeremy Fraiberg, a partner at Osler Hoskin & Harcourt LLP, says the ruling wasn’t a total blow to the federal government as the court made it clear that a co-operative approach between the federal government and the provinces can still be achieved.

“This decision isn’t necessarily a huge setback because if provinces were going to co-operate under the old scheme, they could co-operate under a new scheme that would pass constitutional muster,” Fraiberg tells Legal Feeds. “I think the difference is that under what was proposed, the federal government would’ve had the endorsement of the Supreme Court that it alone had the power to do this. But now it’s clear that to do something along these lines, you actually need the collaboration.”

But collaboration from all provinces and territories could be tricky as the appeal courts in Alberta and Quebec previously rejected the idea of a national securities regulator.

However, without the top court’s support, the federal government can’t impose a national regulator on the rest of Canada. “The original scheme, basically — had it been blessed — would have said, ‘Look, the feds have the power to do this. Who wants to come on board?’ Now what the Supreme Court is saying is, well, the feds actually don’t have the power to do this as currently drafted,” says Fraiberg.

The ruling stated: “The provisions of the proposed act, viewed as a whole, compel a negative response. The act chiefly regulates contracts and property matters within each of the provinces and territories, overlain by some measures directed at the control of the Canadian securities market as a whole that may transcend intraprovincial regulation of property and civil rights. A federal scheme adopted from the latter, distinctly federal, perspective would fall within the circumscribed scope of the general trade and commerce power. But the provisions of the act that relate to these concerns, although perhaps valid on their own, cannot lend constitutional validity to the full extent of the proposed act. Based on the record before us, the day-to-day regulation of all aspects of trading in securities and the conduct of those engaged in this field of activity that the act would sweep into the federal sphere simply cannot be described as a matter that is truly national in importance and scope making it qualitatively different from provincial concerns.”

The court added: “The need to prevent and respond to systemic risk may support federal legislation pertaining to the national problem raised by this phenomenon, but it does not alter the basic nature of securities regulation which, as shown, remains primarily focused on local concerns of protecting investors and ensuring the fairness of the markets through regulation of participants. Viewing the act as a whole, as we must, these local concerns remain the main thrust of the legislation — its pith and substance.”

News roundup — December 22, 2011
Posted Date: December 22, 2011

Canada

8 Israelis plead guilty to working illegally in Halifax, MetroNews

Teen convicted in Rengel's murder seeks to avoid adult prison, CBC News

Estranged spouses to pay alimony unless finances change: SCC, National Post

United States

Chinese man jailed for stealing U.S. trade secrets, Reuters

Court dismisses challenge to N.Y. campaign finance laws, Reuters

International

Thai flood victims sue gov't for alleged mishandling, Reuters

European air fares expected to raise due to carbon law, Reuters

News roundup — December 19, 2011
Posted Date: December 19, 2011

Canada

Que. man faces murder charges after 2 die in fire. The Gazette

Sask. judge orders demolition of apartment building, CBC News

B.C. judge rejects father's bid to return abducted son to Zimbabwe, The Vancouver Sun

United States

Iraqi admits he tried to kill U.S. troops, Reuters

Rejection of Plan B pill could be challenged by N.Y. lawsuit, Reuters

International

End of road for Saab after owner files for bankruptcy, Reuters

Congo Supreme Court declares Kabila president-elect, Reuters

News roundup — December 16, 2011
Posted Date: December 16, 2011

Canada

3 youths charged in Sask. robbery, stand-off, CBC News

Crown seeks to broadcast B.C. riot proceedings, The Vancouver Sun

Court rules government's prisoner refusal unreasonable, The Gazette

United States

SEC appeals rejection of Citigroup settlement, Reuters

'Barefoot Bandit' faces sentencing for 33 charges, Reuters

International

Chinese human rights lawyer sent back to jail, Reuters

Sudanese officials continue to commit genocide: ICC, Reuters

SCC again gives nod to arbitrator in vacation ruling
Posted Date: December 15, 2011

In another case involving a dispute over employees’ vacation entitlement, the Supreme Court of Canada has once again ruled in favour of the arbitrator.

In Newfoundland and Labrador Nurses’ Union v. R., the Supreme Court dismissed the union’s appeal of an arbitrator’s decision not to include the time served as a casual employee when calculating vacation benefits. The arbitrator concluded that according to their collective agreement, the nurses could not count their time as casual employees in determining vacation time once they became permanent employees.

Upon judicial review, the arbitrator’s reasons were deemed insufficient and therefore unreasonable, and so the decision was set aside. The Court of Appeal overturned that decision, stating that the arbitrator had met the test of reasonableness. It was then taken to the Supreme Court to determine the reasonableness of the arbitrator’s decision.

In the Dec. 15 decision, Justice Rosalie Abella referenced the SCC’s 2008 ruling in Dunsmuir v. New Brunswick, which stated that in order to determine the reasonableness of a decision, the judicial review needs to assess “justification, transparency and intelligibility.”

Abella agreed with the arbitrator’s interpretation of the nurses’ collective agreement. “The arbitrator in this case was called upon to engage in a simple interpretive exercise: Were casual employees entitled, under the collective agreement, to accumulate time towards vacation entitlements?” Abella wrote. “This is classic fare for labour arbitrators. They are not writing for the courts, they are writing for the parties who have to live together for the duration of the agreement. Though not always easily realizable, the goal is to be as expeditious as possible.”

She added that it would be detrimental for arbitrators to address every argument. “Arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review, but of negotiating a new collective agreement with different terms at the end of two or three years,” she wrote. “This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis.”

“In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes,” Abella concluded.

On Dec. 2, the Supreme Court also supported the arbitrator’s decision in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, which also involved a dispute over vacation time for casual employees.

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