to disclose or not to disclose – that is the question…

A good writeup on about the very, very unfortunate case of AiT and Deborah Weinstein, their lawyer. The (very) short version: AiT signs a non-binding letter of intent to get purchased by 3M. Apparently shortly thereafter there’s a leak of the deal (which causes a runup in its share price). AiT issues a press release, saying its exploring alternatives but doesn’t mention the deal. The deal is only disclosed two weeks after the leak, when a definitive agreement is signed (i.e. the deal is binding). Read more about it on the OSC site. Talk about being between a rock and a hard place. One of the partners of our firm is quoted on that point:

Gary Girvan, an M&A specialist with McCarthy Tétrault LLP, says “the stakes are very high” for directors to disclose merger negotiations early because civil liabilities legislation introduced by Ontario last year could cost board members personally if they fail to disclose material events in a timely fashion. The combination of the new legislation and the AiT case puts more pressure on boards to reveal potential deals earlier, Mr. Girvan said, but the consequences can be devastating for shareholders.

“The danger is that you end up with a lot of announcements that do not come to fruition and the stocks of the listed company become volatile. Investors will be reacting to news about a deal that hasn’t crystallized,” he said.

The company and its CEO have settled with the Ontario Securities Commission (the provincial equivalent here of the SEC) but Ms Weinstein has indicated she will vigorously defend herself. As, I think, IMHO, she should.

Pretexting, Ethics and Clients

Still catching up a bit – very quick post on the HP “pretexting” thing. As you may recall, HP asserted that its practice of pretexting – i.e. pretending to be someone else to get confidential telephone records – was legal. They were investigated leaks to the press by one of their board members and had resorted to this practice to try and find the leak. I had commented elsewhere long ago when this story first broke that even if it were illegal, very few (if anyone) could consider such actions the least bit ethical.

As most of you know apparently there was some disagreement as to legality and a few folks at HP were charged. Then I read this recent story about how HP was ending its special ties to Larry Sonsini, of the California powerhouse firm of Wilson Sonsini:

Sonsini – famous for decades in these parts – gained national fame in September during HP’s spy scandal hearings in front of Congress. Emails between the lawyer, HP executives and former director Tom Perkins raised serious questions about how sound Sonsini’s advice was around the practice of pretexting. He seemed to indicate that phone record fraud sounded like fair game, after being nudged in that direction by HP’s internal lawyers.

My emphasis. Its unfortunate to hear of something like this. I don’t doubt that he took the time and effort to research the law to come to a reasonable opinion on the matter before advising his client – obviously it was a very grey area of the law. In those circumstances its unfortunate that he didn’t perhaps suggest, notwithstanding the black letter of the law, that it would be unwise do take the course of action they were contemplating. That as good corporate citizens with a significant public profile, that such a practice is not something they should even consider. But then again, maybe he did and they didn’t listen (and of course he would surely have the good sense never to say that in public and embarrass a major client) or maybe he thought that such comments were not for legal counsel to make. Who knows.

The situation is not unfamiliar to many lawyers – particularly when it comes to giving opinions – lawyers are sometimes subjected to pressure to deliver the opinion that a client wants to hear rather than the one they should probably be delivering. By this I’m certainly not suggesting lawyers are delivering bad or incorrect opinions. What I am saying is that there are often grey areas of the law (which tend to be the areas on which legal expertise are sought) and in respect of which opinions can go one of two or more ways. And sometimes, the client will want to hear a certain outcome – for example, in the case of HP, I’m sure they would have liked the comfort to hear from their external counsel that their actions were legal – it would serve as some evidence that they took some degree of diligence and could serve to mitigate consequences if it turned out governmental authorities differed. If he, on the other hand, refused, or proffered a legal opinion that it was fine but qualified with a recommendation not to take such actions, HP likely would have not been very happy with him. And everyone knows what happens when clients aren’t happy.

Its an unfortunate situation to be in. Particuarly in this case, where, at the end of the day, HP still, obviously, isn’t happy with him.