Norton Rose Fulbright recently led a successful court
application that illuminates the importance of public disclosure in
the context of a proxy battle. This precedent-setting decision is
relevant to all public companies, and it has far-reaching
implications in the context of shareholder activism.
On August 15, 2013, Justice Romaine of the Court of Queen's
Bench of Alberta ruled that an activist shareholder had breached
its obligations under Alberta securities law by failing to
disclose, in an early warning report filed on the eve of issuing a
dissident proxy circular, that it was working "jointly or in
concert" with other dissident shareholders.1
Disclosing the existence of joint actors is explicitly required
in early warning reports, regardless of whether or not the
shareholders are involved in a take-over bid. In this case, the
evidence revealed, and Justice Romaine found, that the respondent
shareholders had been working jointly or in concert in a plan
