First Reference company logo

Inside Internal Controls

News and discussion on implementing risk management

machine cogs image

Sales, Marketing and Operations

What constitutes a MAC in an M&A deal?

On October 1, 2018, the Delaware Court of Chancery released its decision in Akorn, Inc. v. Fresenius Kabi AG, finding for the first time that a buyer had properly terminated a public company merger agreement based on the occurrence of a “material adverse effect” (sometimes also referred to as a “material adverse change,” “MAC” or “MAE”).

 

, , ,

Contractual terms by convention: When parties fail to explicitly set contractual terms

One of the frequent issues encountered in contractual litigation is parties failing to negotiate and set to writing the contractual obligations that exist between them. So long as the parties are getting along and no questions are raised about anyone’s obligations, the lack of written contractual terms may not be an issue and convention will general dictate the parties’ interactions.

 

, , ,

Robust information about purchasers/assignees may be required before contracts will be assigned under the CCAA

In Dundee Oil and Gas Limited (Re), 2018 ONSC 3678, Justice Dunphy provided some important guidance on information that should be provided to the court in support of a motion for an order assigning contracts pursuant to section 11.3 of the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36.

 

, , ,

Contracts of purchase and sale: Removing subjects

Most people familiar with the purchase and sale of real property are familiar with subject to clauses, the full legal significance of such clauses can be a source of confusion. The misunderstanding of the legal meaning of subject to clauses was at the heart of the litigation in Dhaliwal v Binepal.

 

, , , ,

Ontario court declines to enjoin termination of franchise agreement

In the recent decision Azmoon Trading Inc. v. Caffe Demetre Franchising Corp., 2018 ONSC 2868 (“Azmoon”), the Ontario Superior Court of Justice dismissed a Franchisee’s motion for injunctive relief prohibiting the Franchisor from terminating the franchise agreement (the “Agreement”).

 

, ,

Learn from British Airways’ security breach reporting and notification

British Airways’ experience described in this article underscores that cybersecurity is important, and Canadian entities preparing for mandatory security breach reporting and notification coming into force soon can take lessons from British Airways’ response to a security breach.

 

, , , , , , , , , , ,

Cannabis regulations: Health Canada’s solution to support the Cannabis Act

The Cannabis Act will provide a comprehensive national framework for restricted access to regulated cannabis and control its production, distribution, sale, importation, exportation and possession. Within that framework, new sets of regulations were published on July 11, 2018, that spell out the rules and standards for authorized cannabis production, distribution, sale, importation and exportation among other things.

 

, , , , , , ,

So what if the risk is high?

Most organizations cannot afford to reduce every single risk to what some practitioners would deem acceptable. Providing actionable information about all the things that might happen, not by using terms like High, Medium, or Low, but in specific business terms will help evaluate which risks to take.

 

, , , , ,

B.C. Supreme Court approves wind-up of Richmond Strata, issues guidance on ensuring a fair sale process

In this case, the Court concluded that it was in the best interests of the owners that the Resolution be confirmed and that it would probably cause greater unfairness, confusion, and uncertainty if the Resolution were not confirmed.

 

, ,

Québec Superior Court reaffirms importance of franchisors keeping their invoices

The judgment in this case demonstrates that franchisors have to properly document the sales they make to their franchisees, by keeping the sales-related invoices, for example. Franchisors that follow that practice will not find themselves unable to prove their claims, thereby incurring serious financial losses.

 

, ,

New COSO ERM Guidance for ESG

It is essential to provide leaders with actionable information. Simply rating a risk as high or valuing it at $250,000 is meaningless. Leaders need to be able to make decisions between addressing one risk vs another, and going forward with a project given all the uncertainties related to its success. For that they need clear, detailed information, not a simple risk rating.

 

, , ,

Department of Finance Canada issues consultation paper on review of the Canadian Payments Act

A recent Consultation Paper sought comments on whether the 2015 Amendments had been successful in better enabling Payments Canada to meet its mandate to promote the efficiency, safety, and soundness of its systems while taking into account the interests of users.

 

, , , , ,

Online advisors: Stand-alone investment managers or tools for portfolio managers?

While the use of technology can lower the cost of investment advisory services, the introduction of algorithmic technology or other forms of artificial intelligence into the investment advice process introduces new risks to investors which raises questions.

 

, , , ,

What is your consolidated risk exposure?

This article discusses consolidated risk exposure and different risk management tools.

 

, , , ,

Peace of mind may not be priceless: Québec Court of Appeal authorizes extended warranty class action claiming exploitation of the consumer

In this case, by selling extended warranties to consumers on the premise that such warranties allow consumers to avoid having to pay repair costs once the manufacturer’s warranty expires, the proposed class actions alleged that retailers were misleading consumers because under the CPA they would probably still be covered by the legal warranty.

 

, , , ,

Previous Posts Next posts