January 10, 2018
Quebec courts have reaffirmed how challenging it can be for underwriters, issuers and other defendants to resist securities class actions for statutory primary market liability at the authorization or “certification” stage.
In 2017, the Superior Court of Quebec and the Quebec Court of Appeal gave the green light for a class action lawsuit involving Valeant Pharmaceuticals International Inc. (Valeant), a dual-listed company on the TSX and NYSE, to go to trial for statutory primary market liability and other causes of action because of the “low standard” of “appearance of right” at the authorization stage, thus illustrating how challenging it can be for defendants to obtain the early dismissal of such cases.
The Quebec action is asserted on behalf of an international class of plaintiffs, and advances Division I (statutory primary market liability) and Division II (statutory secondary market liability) claims under the Securities Act (Quebec) (QSA), as well as civil claims for misrepresentation under article 1457 of the Civil Code of Quebec.
The securities offerings at issue were comprised of: (i) four offerings of debt securities that were sold exclusively to accredited investors in Canada pursuant to a prospectus exemption under National Instrument 45-106 – Prospectus Exemptions (NI 45-106); and (ii) two offerings of common shares that were sold exclusively outside Canada under a U.S. registration statement. (Quebec regulates a distribution of securities from Quebec to persons established outside Quebec.) In each case, no prospectus was filed in Canada. Offering memoranda were provided voluntarily to accredited investors in the case of each of the debt offerings.
The defendants argued that statutory primary market liability could not attach to the offerings in question because section 221 of the QSA only creates a cause of action against, among others, the underwriters where an offering memorandum is “prescribed by regulation”. In the case of the debt offerings by Valeant, the purchasers received copies of the offering memorandum voluntarily, therefore, the defendants argued, Division I liability could not apply in this case.
On August 29, 2017, the Superior Court of Quebec authorized the commencement of the class action. In her decision, Justice Chatelain held that applying the “low standard” of “appearance of right”, Division I claims should be allowed to proceed to trial. She accepted that “prescribed by regulation” could mean something other than “required by regulation” and that, at the preliminary stage of authorization, the facts alleged were sufficient to sustain a cause of action for misrepresentation.
With respect to the debt offerings, she explained:
“Whether the Defendants are right to submit that section 221 QSA shows a clear intent to exclude offering memorand[a] provided voluntarily is a matter better left to the merits of the action…”
“Considering the low standard applicable at this stage, the Court is satisfied that there is at a minimum ‘some evidence’ to establish an appearance of right with respect to the [o]ffering memoranda.”
With respect to the March 2015 common share offering made exclusively outside Canada using a U.S registration statement, Justice Chatelain stated that “the question remains as to whether the prospectus which was in fact used in relation to the [common share offering] is a prospectus within the meaning of the QSA which can give rise to [a] cause of action…” She emphasized:
“The Defendants may be right in the final outcome, but, again, considering the low standard applicable at this stage, the Court is satisfied that there is at a minimum ‘some evidence’ to establish an appearance of right…”
The underwriters sought leave to appeal. On November 30, 2017, the Quebec Court of Appeal released its decision denying leave to appeal. Applications by the other defendants requesting leave to appeal were denied in concurrent decisions.
Justice Mainville found that the plaintiffs had made out a “prima facie case” that the debt offerings were subject to a Division I claim. He denied the application on the basis that if accepted, offerings made under a prospectus exemption would escape statutory liability for misrepresentation under the QSA:
“Consequently, an ‘accredited investor’ who acquires securities in the primary market would be left without any statutory recourse for misrepresentations made directly to him by the issuer, while that same ‘accredited investor’ would have the full range of Division II recourses if the securities are purchased by him in the secondary market without any direct misrepresentations to him. These are curious results. A full evidentiary record with full argument[s] [is] necessary to sort out these issues.”
The underwriters had also submitted that an amendment to section 221 of the QSA that would impose liability for offering memoranda provided voluntarily is not yet in force, meaning that the current regime does not impose offering memorandum liability in such circumstances. Justice Mainville again emphasized the need for “a hearing on the merits of all the claims allowing for a complete evidentiary record and full arguments”, but questioned whether the delay in passing the amendment might be because “the amendment is deemed no longer necessary at this time to allow ‘accredited investors’ to pursue Division I claims in the primary market”.
Ultimately, Justice Mainville concluded that the defendants had not “met the demanding test for authorizing an appeal of the Judge’s decision” and stated that “although the arguments of the Defendants are appealing, at the authorization stage, the Court must refrain from making a decision on the merits of the case, even more so when the argument is based in evidence.”
IMPLICATIONS FOR QUEBEC FINANCINGS
Potential for Quebec Prospectus Liability for Distributions Outside Canada
The Quebec courts’ refusal to deny authorization of the prospectus claims under section 217 of the QSA raises uncertainty as to whether a Quebec issuer making a prospectus distribution exclusively in a country outside Canada, or its underwriters, might still face prospectus liability in Quebec.
Scope of Offering Memorandum Liability
The Valeant cases also illustrate some striking inconsistencies in the way primary market (new issue) liability for private placements is dealt with in the various Canadian provinces.
Most provinces already impose statutory liability for misrepresentation when offering memoranda are provided voluntarily, although British Columbia and Quebec do not. In some cases, issuers in those latter jurisdictions may choose to offer equivalent contractual provisions in order to “level the field” when marketing across provinces.
Quebec May Become a Lead Jurisdiction for Securities Class Actions
As the Valeant decisions illustrate, the combination of a low threshold for authorization with a high threshold for appeals may make Quebec increasingly attractive to plaintiffs as a jurisdiction to commence securities class actions.
Provincial Jurisdiction Contests
While the jurisdiction of the Quebec courts over an international class of purchaser claimants was not contested in the Valeant cases, in the future, we can expect defendants to challenge the jurisdiction of Quebec courts over non-Quebec purchasers to limit the ruling’s impact.
For further information, please contact:
or any other member of our Capital Markets or Securities Litigation groups.
January 10, 2018 Quebec courts have reaffirmed how challenging it can be for underwriters, issuers and other defendants to resist securities class actions for statutory primary market liability
Catucci oil mohegan lake ny movie
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UNITED STATES v
UNITED STATES of America, Appellee, v. Giacomo D. CATUCCI, Defendant, Appellant.
After a jury returned guilty verdicts against defendant-appellant Giacom D. Catucci on four toxic-waste dumping charges, the district court imposed a twenty-seven month prison sentence and Catucci appealed. Finding no reversible error, we affirm.
The salient facts are recited in the light most favorable to the verdicts. United States v. Tuesta-Toro, 29 F.3d 771, 774 (1st Cir.1994). In 1987, Catucci, then the proprietor of Post Tron Systems, instructed the plant superintendent to obtain cost quotations for removing two PCB-laden electrical transformers from the firm’s business premises in Providence, Rhode Island. The cost estimates ranged between $8,000 and $10,000 per unit. Years later, in June 1991, Post Tron Systems’ lending bank conducted an environmental audit and specifically informed Catucci that the two transformers containing PCBs would have to be removed in accordance with Environmental Protection Agency (“EPA”) regulations. Shortly thereafter, Post Tron went out of business.
During the course of subsequent renovations to the business facilities, Catucci arranged for Manuel Almeida and Timothy Arcaro to remove a conveyor belt system. As compensation, Almeida and Arcaro were to retain the salvageable scrap metal-approximating $40 per day in value-recovered in the course of the renovations. Almeida and Arcaro later offered to remove all five transformers at the site, including the two PCB-laden ones, in return for the right to retain the salvage value of their copper coils. Although the plant superintendent reminded Catucci that scrapping the transformers would be against the law, Catucci nevertheless granted permission, stating to the superintendent: “If [Arcaro] wants them, he can have them all.”
A few months later, Almeida, Arcaro and a third individual-David Dellinger-removed two units, including one of the PCB-laden transformers, after loosening their lids and thereby causing oil to leak onto local streets and I-95 during transportation. At a secluded gravel pit, the remaining oil was dumped, the copper coils were removed and the transformers were abandoned. The next day, the men repeated the process with the three remaining units-one containing PCBs.
More than a year later, while investigating David Dellinger, the Rhode Island Department of Environment Management (“DEM”) discovered the PCB-laden oil that had been dumped from the Post Tron transformers. A few weeks later, the DEM executed a search warrant at the former Post Tron facility. On the following day, Catucci informed the Providence Police Department that the transformers had been stolen. Not until several months after Arcaro and Almeida were arrested for stealing the transformers did Catucci admit to having allowed them to remove the transformers. Even then he claimed that they had been told to dispose of the transformers lawfully.
Thereafter, Catucci was charged, in two counts, with causing unlawful disposal of PCBs in violation of 15 U.S.C. § 2615(b) and, in two additional counts, with failing to provide immediate notification of a release of hazardous materials, in violation of 42 U.S.C. § 9603(b). Following his conviction on all counts, Catucci was sentenced to twenty-seven months.
DISCUSSIONA. Sufficiency of the Evidence
On appeal, Catucci claims that there was insufficient evidence that he knew the two PCB-laden transformers would be disposed of illegally, an essential element in each offense charged. See 15 U.S.C. § 2615(b) (establishing criminal sanctions for knowingly or willfully violating EPA dumping regulations); 42 U.S.C. § 9603(b) (establishing criminal sanctions against any person for failing to notify appropriate government agency of release “as soon as he has knowledge of such release”); United States v. Buckley, 934 F.2d 84, 89 (6th Cir.1991); United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985) (Kennedy J.) (§ 2615); United States v. Ward, 676 F.2d 94, 97 (4th Cir.) (same), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982).
Under the established standard of review set out in the margin, 1 we find ample evidence to support the essential jury findings that Catucci knew Almeida and Arcaro would dump the PCBs unlawfully, and that he did not provide timely notice to governmental authorities.
B. Adjustment for Repetitive Discharge
Catucci assigns error in the net four-level upward adjustment the sentencing court made pursuant to U.S.S.G. § 2Q1.2(b)(1)(A), which states:
If the offense resulted in an ongoing, continuous, or repetitive discharge, release or emission of a hazardous or toxic substance or pesticide into the environment, increase by 6 levels.
Catucci argues that it was mere happenstance that the two PCB-laden transformers were dumped on different days. Consequently, he contends, absent evidence that he intended repetitive discharges the district court misapplied the repetitive discharge adjustment. We discern no error. 2 After adopting a six-level upward adjustment under U.S.S.G. § 2Q1.2(b)(1)(A), the district court invoked Application Note 5 as authority for a two-level downward departure, resulting in a net upward adjustment of four levels. Application Note 5 expressly states that the district court is invested with authority to make “a departure of up to two levels in either direction” depending upon the quantity and duration of the discharge and the nature of the harm caused by it. U.S.S.G. § 2Q1.2, comment. (n. 5).
U.S.S.G. § 2Q1.2(b)(1)(A) is triggered if the offense resulted in an ongoing, continuous or repetitive discharge. Catucci concedes that the two PCB-laden transformers were dumped on separate occasions. Nothing more need be shown to activate the repetitive discharge adjustment. See United States v. Liebman, 40 F.3d 544, 550 (2d Cir.1994) (repetitive discharge adjustment under § 2Q1.2(b)(1)(A) warranted where defendant had untrained workers remove hazardous material from factory, and workers unlawfully dumped material on several different days); United States v. Strandquist, 993 F.2d 395, 401 (4th Cir.1993) (analogous upward adjustment under § 2Q1.3(b)(1)(A) for repetitive discharge triggered by establishing second discharge).
C. Aberrant Behavior
Catucci urges a remand for resentencing because the district court allegedly misapprehended its authority to depart downward on the ground that these offenses constituted “aberrant behavior.” See United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (adverting to guideline relating to “aberrant behavior” departures).
At sentencing, the district court repeatedly indicated its readiness to allow a principled downward departure. Yet despite the district court’s specific invitation (“Do you see anything ? which would authorize my departure in this case in a justifiable and reasonable manner?”) and its apparent displeasure at having to impose a prison sentence on a person “who may have had an aberration,” no “aberrant behavior” claim was presented to the district court. In these stark circumstances, a finding of waiver is virtually compelled. Cf. United States v. Montoya, 967 F.2d 1, 2 (1st Cir.1992) (sentencing claim not presented to district court deemed waived), cert. denied, 506 U.S. 990, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992); United States v. Dietz, 950 F.2d 50, 55 (1st Cir.1991); United States v. Rosalez-Cortez, 19 F.3d 1210, 1220 (7th Cir.1994) (failure to raise “aberrant behavior” claim in district court results in waiver). 3
D. Criminal Rule 32
Catucci contends that resentencing is necessary because the district court failed to comply with Rule 32(c)(3)(D), which provides that, as to any alleged “factual inaccuracy in the presentence investigation report,” the district court is to “make (i) a finding as to the allegation or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” A “written record” of the sentencing court’s findings is required. United States v. Savoie, 985 F.2d 612, 620 (1st Cir.1993).
Catucci argues that the sentencing court failed to address the following claim that he be allowed a downward adjustment as a “minor or minimal” participant:
? you could make a downward departure based upon a role as a minor in the offense or ? a minimal role in that offense and in-in the whole case, if you believe the jury’s decision, they were told that I gave permission to take the transformers.
No one ever said that I told them to dispose of the transformers or I gave permission to dump the transformers. They said they allege that they asked me for permission to take the copper from the transformers and that’s the worst of the testimony from that perspective, so I just raise that issue.
Later in his allocution, after Catucci had asserted his innocence, the district court cautioned that it could not disregard the jury verdicts. 4 The district court ruling rejecting a downward adjustment under U.S.S.G. § 3B1.2 is not challenged on appeal.
Catucci’s claimed entitlement to a downward “departure” under U.S.S.G. § 3B1.2, notwithstanding the central jury finding that he knowingly allowed Arcaro and Almeida to dispose of the transformers, did not challenge any factual statement in the presentence report, but amounted instead to an attempt to dispute the legal import of the jury verdicts. Absent a claim of factual inaccuracy, the Rule 32(c)(3)(D) requirement simply is not implicated. United States v. Pellerito, 918 F.2d 999, 1003 (1st Cir.1990) ( Rule 32(c)(3)(D) not triggered by claim of legal error); United States v. Reese, 998 F.2d 1275, 1285 (5th Cir.1993) (Rule 32(c)(3)(D) not triggered by claim of error in assigning role in offense). 5
For the foregoing reasons, the judgment of conviction and sentence is affirmed.
1. We assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence; that is, the fact finder may decide among reasonable interpretations of the evidence.United States v. Hahn, 17 F.3d 502, 506 (1st Cir.1994).
2. Guideline interpretations are reviewed de novo, whereas relevant factual findings are reviewed for clear error and their application under the guideline is accorded due deference. See United States v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir.1994), cert. denied, 513 U.S. 1132, 115 S.Ct. 947, 130 L.Ed.2d 891, and cert. denied, 514 U.S. 1007, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995).
4. A role-in-the-offense determination presents a mixed question of law and fact, United States v. Carrozza, 4 F.3d 70, 89 (1st Cir.1993), cert. denied, 511 U.S. 1069, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994), which we review only for clear error, by reason of its fact-bound nature, United States v. Rodriguez Alvarado, 985 F.2d 15, 19 (1st Cir.1993).
5. United States v. Rosado-Ubiera, 947 F.2d 644, 645-46 (2d Cir.1991), is not to the contrary. There the district court had refused to resolve both a factual dispute, as to the defendant’s conduct, and the defendant’s role in the offense.
UNITED STATES v
Case opinion for US 1st Circuit UNITED STATES v. CATUCCI. Read the Court's full decision on FindLaw.
You Gotta Eat Here host resists urge to gorge
TORONTO — As he traversed Canada to profile diners and their dishes — from deep-fried eggs benedict to pizza pie to deep-fried mac and cheese — comic John Catucci came to the sad realization that he couldn’t gorge.
«I would die. It would be one season and then it would be like: ‘Sad news in Canadian television,»‘ said the host of «You Gotta Eat Here,» debuting Jan. 6 (at 9 p.m. ET) on Food Network Canada.
«There’s no doubt I’ve gained a few pounds, but I learned early on that I don’t have to eat the whole dish, I can do a couple of bites and talk about how delicious it is.
«But there are some times when it’s just so good, my elbows go up and people can’t get near me.»
Like the hit American series «Diners, Drive-ins and Dives,» «You Gotta Eat Here» seeks out greasy spoons and various eateries serving exceptional comfort food.
«Those are the best places, where the taste is familiar but they’re doing something new and they’re twisting it a bit,» said the Toronto-born Catucci, a founding member of the musical comedy duo The Doo Wops.
«I think there’s a lot of restaurants that are doing that now.»
The debut season visits bistros in British Columbia, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick and Newfoundland and Labrador.
Catucci also goes into the kitchens to learn how the cooks make their signature recipes.
«There are times when we’re plating stuff and my mouth is just watering,» the actor-singer said in a recent telephone interview from Calgary, where he was shooting new episodes.
«I know I’m about to eat it and I’m just like, ‘Oh my God, that’s fantastic.»‘
Even talking about the food gets Catucci worked up.
As he discussed the first episode, in which he visits a gourmet poutine place in Stratford, Ont., he declared: «It is killer.»
«Sweet potato fries and then she makes a marinara sauce and puts it on and it’s just, like, incredible,» Catucci added excitedly.
Then there’s the Toronto restaurant known for a hangover-cure dish named the Remedy: deep-fried poached eggs on top of pulled pork, beans, smoked cheese and potato hash.
«It’s just ridiculous,» said Catucci. «It’s so good!»
In Saint John, N.B., cameras went into a diner that serves a lobster roll with a homemade roe aioli.
«They used an entire lobster and then they had this fresh bread and then they make a lobster oil from the shells of the lobster and you’re almost, like, frying the bread in the oil — and the oil sucks into the bread,» Catucci said breathlessly.
«Jesus, it was killer.»
Catucci’s other favourite meals on the show include a lasagna at a family-run Italian restaurant in Huntsville, Ont.
«That’s still one of the best lasagnas I’ve ever had and when my aunt hears about that I think she’s going to be very upset,» said Catucci, who’s Italian.
And don’t get him started on the grill in Lunenburg, N.S., that serves a lobster linguini in a cream sauce.
«It had spice to it as well and fresh pieces of lobster and it was creamy with cheese and butter and it was just one of the best pasta dishes I’ve ever had.»
What’s more — the meals are made from scratch, largely with fresh ingredients.
«I think that’s one of the main pushes in the show is making sure that everything’s made in-house as much as possible,» said Catucci.
«You can see it in the pride that the owners and the chefs have in their food and you can taste it in the food.»
You Gotta Eat Here host resists urge to gorge
As he traversed Canada to profile diners and their dishes — from deep-fried eggs benedict to pizza pie to deep-fried mac and cheese — comic John Catucci came to the sad realization that he couldn’t gorge.