Law Times

PAGE 2 NEWS January 10, 2011 • Law Times cle of Delphi. Unlike most of us, however, Shareholder rights key legal issue for business in 2011 I BY JULIUS MELNITZER For Law Times t's the time of year when law fi rms, like most of us, are prone to emulating the Ora- law fi rms tend to put pen to pa- per and publish their views on anticipated trends for the com- ing year. But not all law fi rms are cre- ated equal. And that shows, not merely in their predictions but also in their approach to them in a marketing context. Stikeman Elliott LLP, for ex- ample, maintains the traditional approach of giving its forecasts an economic bent. "In the M&A sector, there is every indication that the rebound experienced in 2010 will con- tinue in 2011 as market players continue to adjust and adapt," write Richard Clark and Cur- tis Cusinato in the fi rm's list of mergers-and-acquisitions trends for 2011. "We believe that each of the trends identifi ed below will play a part in shaping the market — whether it's creative methods of fi nancing, more realistic valua- tion methods, adjustment to deal terms or regulatory development in the areas of foreign investment, taxation, and securities." Clark tells Law Times the fi rm's confi dence in the Canadian economy stems from the profes- sional experience of its lawyers. "Our view of the economy comes from what we're seeing as a fi rm," he says. "It's slow and steady, not booming like in 2006, and it's not right across every sector, although some sec- tors like the resource and oil- and-gas sectors are evidencing signifi cant activity." Still, Clark believes the Cana- dian economy is six months to a year from being truly resurgent. "Canada is the fl avour of the month, and we hope that will continue, but things will re- ally start to boom when the U.S. economy picks up," he says. Here, then, are Stikeman demand. 4. Financing and valuation: techniques for bridging the gaps. 5. Hedge funds, pension funds, and other pools of capital: in- creasing M&A involvement. 6. Growth of a domestic high- yield debt market. 7. Going with the cash fl ow in valuations. 8. Income tax: positive develop- ments for M&A. 9. Structuring investments in M&A: bilateral investment treaties. 'We decided it was time to freshen up the publication,' says Patrice Walch-Watson. Elliott's predictions for the year: 1. Investment in Canada: busi- ness as usual for foreign inves- tors. 2. Canadian poison pills gain strength: just saying no may be getting easier. 3. Th e commodities sector: no end in sight to foreign 10. Infrastructure: a hot M&A ticket for 2011. 11. Deal terms in Canada and the United States: similarities and diff erences. For its part, Torys LLP's an- nual update eschews economic forecasts as a framework for its predictions. Rather, the fi rm acknowledges the 2010 uptick in M&A activity and positions its views as a caveat to clients about the "rising concerns — some old, some new," about the deal process. "What are the appropri- ate limits (if any) on foreign investment?" the authors ask. "Who should ultimately decide whether to sell a company or al- low it to be transformed? And if shareholders decide, how do you know that their votes are cast and captured correctly?" Patrice Walch-Watson of To- rys says the move away from an economic overview and non- legal business issues was deliber- ate. "We decided it was time to freshen up the publication, so we focused on what we know best, which are the legal issues that we see as most germane to M&A ac- tivity in Canada and the U.S. in 2011," she says. Torys also decided to limit its list to fi ve items, preferring to ex- plore fewer issues than it had in the past but in more depth. Here they are: 1. Politics matter when foreign investors are involved. 2. Alternative transaction struc- tures will maintain popularity with investors from emerging markets. 3. "Let the shareholders decide" will continue to gain mo- mentum. 4. Target boards will be more aggressive in the face of hos- tile bids. 5. Shareholder voting processes will move further into the spotlight. By contrast, Borden Ladner Inside you will find: • an up-to-date alphabetical listing of more than 57,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. More than a phone book Hardbound • Published February each year • On subscription $146 • P/C 0600140999 One-time purchase $162 • P/C 0600010999 • ISSN 0084-8573 Gervais LLP's publication is the most overtly legal of the three fi rms. "Economics are not our business," says Sean Weir, the fi rm's national managing partner. "What we've tried to stick to are the areas in which we have some real expertise and experience." In other words, the BLG piece has a broader purview than those of Stikeman and To- rys. Th e result is a publication that allows the fi rm to showcase several practice areas. BLG has also opted for a dis- tinctly populist approach. For example, one of the items on the list deals with aboriginal consul- tation and is entitled, "Th ere's gold in them hills and people, too. How much do you talk be- fore you dig?" Th e tone is the same in the fi rm's discussion of the rise of class actions: "From America with love — the rise of the class action lawsuit." Here, paraphrased, is BLG's list in its entirety: 1. Th e collision of public com- panies and social media. 2. Balancing the rights of min- ing companies and Aborigi- nal Peoples. 3. Th e rise of the class action lawsuit. 4. A national securities regulator (or not). 5. Uncertain capital markets. 6. Business-method patents. 7. Public-private partnership in the infrastructure sector. For a 30-day, no risk evaluation call 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping and handling. www.lawtimesnews.com CLL ad - new.indd 1 1/7/11 9:41:55 AM 8. Arbitration and mediation on the rise. 9. Energy demands will grow. 10. Insolvencies and restructur- ings aren't going away. LT

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