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Scott Kugler is a partner in Gowlings’ Toronto office, practising in the area of advocacy. His practice emphasizes complex commercial matters including class actions (securities and competition law / anti-trust), shareholder disputes, claims against directors/officers, broker/dealer disputes (civil and regulatory), franchise disputes, dealer/distributor disputes, and multi-faceted corporate litigation often involving the oppression remedy. He also practices in the area of product liability.
Scott has been very successful in obtaining excellent outcomes for his clients through litigation, negotiation, mediation, arbitration, or a combination of them depending on the nature of the dispute. He is trusted by his clients to provide clear, understandable and practical advice. Scott works closely with clients to ensure that they understand the strategies for achieving the desired outcome. Many of his clients have retained him on their most important matters.
Scott has considerable experience as a trial and appellate lawyer. He has appeared as counsel in the courts of Ontario, including the Ontario Court of Appeal, British Columbia and the Federal Court. He has also appeared as counsel in proceedings before the Ontario Securities Commission, the Mutual Fund Dealers’ Association, IIROC, and the Financial Services Commission of Ontario, and has also appeared as counsel in numerous arbitration tribunals in Canada and the United States.
Scott has worked with clients and other counsel in all Canadian provinces, the United States, Europe, Asia, and South America.
- Securities:
- Class Action – Defending a publicly traded infrastructure company in class actions commenced in Ontario and Quebec by primary and secondary market investors for approximately $100 million. The plaintiffs allege that the prospectus and certain public statements contained misrepresentations about the sustainability of the company’s dividend.
- Atlas Cold Storage Class Action – Defended the CFO of a publicly traded income trust in a class action commenced in Ontario by primary and secondary market investors for approximately $343 million. The plaintiffs alleged that the prospectus, as well as various financial statements and press releases, contained misrepresentations about the finances of the income trust. A settlement was reached through mediation.
- “Portus” Class Action – Defended four investment dealers in class actions commenced by investors for an unspecified amount that was expected to be close to $100 million. The plaintiffs alleged that the Portus hedge fund was a sham and that the investment dealers were complicit in the furtherance of the sham. The defendants were successful in striking out most of the claim on a preliminary motion, following which a settlement was reached.
- “YBM Magnex” Class Action – Defended the former auditor of YBM Magnex in two class actions commenced by primary and secondary market investors for approximately $360 million. The plaintiffs alleged that YBM Magnex was used to carry out a multi‑layered conspiracy and fraud for several purposes including obtaining improper gains by financial statement misrepresentation and manipulation. The actions were settled by all defendants prior to certification.
- Disclosure / Insider Trading – Represented a publicly traded company in a regulatory investigation in which the OSC alleged that the company’s disclosure was deficient and that some of its key executives traded while in possession of material undisclosed information. Ultimately, proceedings were not commenced.
- Insider Trading – Represented the president of a public company in proceedings commenced by the OSC in which it was alleged that he had traded while in possession of material undisclosed information. A settlement was approved by the OSC in a decision that is widely cited as setting out the applicable principles for a settlement approval hearing.
- Convertible Debenture Pricing – Represented a hedge fund in a dispute with the issuer of convertible debentures concerning the conversion price of the debentures. The court ordered the issuer to pay the conversion price that our client had sought.
- Broker Negligence – Represented a broker at an established securities dealer in regulatory proceedings relating to allegations that the broker had failed to properly advise certain clients and had entered into private dealings with those clients. The proceedings were settled.
- Dealer Liability – Represented a securities dealer in multiple civil proceedings by investors who lost considerable sums of money as a result of investing in an unapproved product that was brought to their attention by some of the dealer’s representatives. These actions were settled.
- Competition / Anti-Trust:
- “LCD” Class Actions – Representing a Taiwanese manufacturer of LCDs in class actions commenced in Ontario and B.C. on behalf of direct and indirect purchasers of LCDs. The plaintiffs allege that the defendants participated in a worldwide price-fixing conspiracy in relation to LCDs. The plaintiffs have claimed approximately $150 million in damages.
- “SRAM” Class Actions – Representing a U.S. manufacturer of SRAM in class actions commenced in Ontario, Quebec and B.C. on behalf of direct and indirect purchasers of SRAM. Plaintiffs allege that the defendants participated in a worldwide price-fixing conspiracy in relation to SRAM. Plaintiffs have claimed approximately $400 million in damages. In advance of the certification motion, the plaintiffs brought a motion for production by the defendants of unredacted materials in their possession from the parallel U.S. proceeding. The defendants successfully resisted this motion, as well as a similar motion in the U.S.
- “Fuel Surcharge” Class Actions – Representing a U.S. airline in class actions commenced in Ontario on behalf of all persons who purchased a ticket for trans-Atlantic or trans-Pacific air travel. The plaintiffs allege that the defendants participated in a worldwide price-fixing conspiracy in relation to fuel surcharges that were applied to airline tickets. The plaintiffs have claimed approximately $200 million in damages.
- Industry Associations – Provide advice to various industry associations regarding best practices and regarding specific issues that arise in the course of the association’s affairs.
- Shareholder / Partnership Disputes
- Private Health Care Company – Represented shareholders of a closely-held private health care company in a dispute with other shareholders who had joined the company as a result of a merger. The unanimous shareholders’ agreement did not contain a buy-sell provision or other contractual mechanism that would allow for the resolution of the shareholder dispute, but we obtained a court order forcing the other shareholders to sell their shares to our clients. The terms of sale were resolved out of court.
- Building Supply Company – Defending one of the partners of a partnership in a dispute with its former partner regarding the validity of a buy-sell offer and the conduct of the partners in relation to the buy-sell offer. The former partner applied to the court for an injunction to block the buy-sell offer from closing but we successfully resisted that motion and the transaction was completed. The former partner also asserted a claim for damages, which is currently before the court.
- Family-Owned Business – Defended three siblings in a dispute with their brother concerning their respective interests in the family business following the death of their father. The plaintiff asserted claims for breach of fiduciary duty and oppression, all of which were settled.
- Franchise Disputes
- Disclosure – Defending the franchisor in an established franchise business against the claims of a franchisee relating to alleged deficiencies in the disclosure document.
- Disclosure – Represented the first franchisee in a newly established franchise business in a rescission claim against the franchisor relating to alleged deficiencies in the disclosure document. A settlement was achieved.
- Disclosure / Misrepresentations – Defending an individual who is alleged to be a franchisor’s associate in a claim by a franchisee relating to alleged deficiencies in the disclosure document as well as alleged misrepresentations made prior to entering into the franchise agreement.
- Real Estate – Represented a franchisor in a dispute with a former franchisee concerning land control over the former franchise location. The court enforced our client’s rights under a land control agreement with the former franchisee and awarded our client control over the property. The decision was upheld by the Court of Appeal.
- Administrative Law
- Judicial Review – Represented the manufacturer of Chobani Greek yogurt in a high profile dispute regarding a test marketing permit that had been issued by the Minister of International Trade that allowed limited quantities of Chobani to be imported into Canada duty-free. The applicants contended that the import permit was unreasonable because the imports threatened Canada’s supply management system and argued to have the import permit struck down. The court dismissed the applications and ruled that the applicants all lacked standing.
Co-author, along with Deborah Templer and Barry Stork ,“Class Proceedings in Canada” from 2013 ABA Annual Review Chapter on Class Action Law”, an overview of Class Proceedings in Canada”, as part of the ABA’s chapter on Class Action Law
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