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David Gadsden has deep experience in fraud and financial crime matters.  He is counsel on multijurisdictional fraud investigations, including related civil disputes and regulatory proceedings.  David acted as counsel for a primary defendant in the Sino-Forest litigation, the largest securities fraud class action in Canada.  He is known for his pragmatic advice on fraud prevention and investigations, and has extensive expertise in ‘Ponzi scheme’ litigation and asset recapture, including cross-border tracing, Anton Piller orders and Mareva injunctions.  David has been recognized as a “Litigator to Watch” in Lexpert’s annual Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada and has been ranked in Legal 500 for dispute resolution.

In a recent 2016 decision in Greenberg v. Nowack, Justice Perell of the Ontario Superior Court of Justice dismissed a contempt motion against a stubborn and non-compliant debtor in a judgment debtor examination gone awry. Although sympathetic to the Plaintiffs’ frustration at being unable to recover monies on their  judgement, the Court ruled that imprisoning the debtor would be harsh and ineffectual. Justice Perell made this observation about the contempt motion:
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On May 4, 2015, Justice A.D. Macleod of the Alberta Court of Queen’s Bench certified an omnibus class action in Starratt v. Mamdani, 2015 ABQB 280. The class action involves claims of investment fraud and misrepresentation by the defendants brought on behalf of class members in 21 subclasses. Certification was granted despite the case’s complexity, and the varying alleged harms to class members arising from the alleged fraud and misrepresentations of the defendants.
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The Ontario Securities Commission (“OSC”) has almost completed its case in the high-profile Sino-Forest Corporation (“SFC”) hearing that began on September 2, 2014.  SFC and certain of its former executives are alleged to have engaged in widespread fraud relating to its public financial disclosure.  Specific allegations involve the fabrication or overestimation of revenue and assets, falsified evidence of ownership, backdated contracts, and undisclosed control over particular customers and suppliers.  The hearing is presently on a brief hiatus, with the respondents expected to begin their defence in late March of this year.
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On September 2, 2014, the Ontario Securities Commission commenced its high-profile hearing in the case of the Sino-Forest Corporation (“SFC“). SFC is alleged to have engaged in widespread fraud relating to its public financial disclosure. The specific allegations involve the fabrication or overestimation of revenue and assets, falsified evidence of ownership, backdated contracts, and undisclosed control over particular customers and suppliers.
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In October 2011, the Ontario Securities Commission (“OSC“) raised the concept of offering no-contest settlements of the sort commonly employed by the US Securities and Exchange Commission (“SEC“). On March 11th of this year, after receiving some sharply divided feedback in months of public hearings, the OSC announced that it was moving forward with the introduction of a policy that would permit settlement of enforcement proceedings without requiring an admission by the respondent of misconduct (no-contest settlements). The OSC has emphasized that the deployment of this policy will only be available in a narrow set of circumstances. In the meantime, the debate over whether such a policy can achieve its objectives of expedience and efficient resource allocation while at the same time avoiding the risk of letting wrongdoers off the hook, has yet to be resolved.


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Our team has been monitoring some key developments that could soon impact US and Canadian companies that list shares on US exchanges. One of 2014’s most important legal developments is likely to flow from the US Supreme Court’s ruling on “fraud on the market” theory, to be rendered in Halliburton Co. v. Erica P. John Fund Inc. (“Haliburton”). Oral argument in Halliburton took place on March 5, 2014.

In Halliburton, the US Supreme Court has been asked whether “it should overrule or substantially modify the holding in Basic v. Levinson, 485 U.S. 224 (1988) … to the extent that it recognizes a presumption of class-wide reliance derived from the fraud on the market theory.”  The decision in Halliburton is expected to be of importance given that in Amgen Inc. v. Connecticut Retirement Plans, a case decided in early 2013, members of the Supreme Court expressed concern with respect to the fraud on the market theory. 
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Our team acted for one of the parties in Labourers’ Pension Fund of Central and Eastern Canada v. Sino-Forest Corporation, where Justice Morawetz of the Ontario Superior Court of Justice approved Ernst & Young LLP’s $117 million settlement relating to class action lawsuits commenced by jilted investors following the downfall of former stock market darling, Sino-Forest Corporation.  The $9.2B class action involves significant fraud allegations that call into question Sino-Forest’s structure, reporting and revenues, as well as the practices of its auditors and underwriters. In addition to garnering attention as the largest auditor settlement to date in a Canadian securities class action, this landmark decision is noteworthy for the Court’s approval of a comprehensive third-party release and a ‘no opt-out’ settlement feature granted in favour of Ernst & Young.   The Court also approved a controversial framework that would make similar settlements available for  future settling defendants – a feature some critics characterize as extraordinary relief in cases where there are underlying fraud allegations.
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Dividing up a shortfall from a Ponzi scheme was first posed before the United States Supreme Court in 1924. The infamous case of Cunningham v. Brown dealt with the original Ponzi scheme of Charles Ponzi and distributing remaining funds back to victims when his investment scheme was finally unravelled, but left victims with only a fraction of their original investments. Unraveling a Ponzi scheme to return a shortfall of money back among its victims is akin to untangling the noodles in a half-eaten bowl of spaghetti at a buffet and trying to determine who cooked each strand. Where multiple chefs (all using the same recipe) all had their spaghetti thrown in one giant pot, it would be a seemingly impossible task to untangle the half-eaten bowl to see which chefs’ spaghetti was still in that bowl.
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