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LEGAL REPORT/M&A can say sometimes due to appropri- ate disclosure rules, and so may have a harder time responding to negative comments on strategy from a dissident," explains Chris Makuch, vice president of national sales and marketing with Georgeson Inc., a proxy solicitation firm in Toronto. The strategy, while somewhat dubi- ous, does have one likely outcome, he adds. More litigation. "My sense is that litigation lawyers are now becoming part of the deal team in a battle from the very beginning. That implies that people expect to have litigation as part of the process and even if it does not happen, documentation and informa- tion retention and planning are part of the process now." "In my world," notes Tim McCafferty, a partner with McCarthy Tétrault LLP in Vancouver, "litigation was always part of the mix. The law is somewhat murky in this area, and litigation is always a tactical strategy." Litigation is a double-edged sword, says Brad Allen, senior vice president with the Laurel Hill Advisory Group Co., another proxy solicitation firm. "It is a valuable tool to have ready to be employed selectively both offensively and defensively." Offensively, he notes, it can be used to keep dissidents' "feet to the fire" with respect to the process and regulations surrounding proxy solicitation as well as providing guidance on press release concerns. Defensively it can minimize risk of procedural error. The pace and the pressure of a proxy battle requires a flexible plan and the experts to implement that plan success- fully, says Koval. "Proxy contests are often won by very narrow margins. You need to think strategically all the time, and you need a well-organized team with clearly defined roles." A critical step, she adds, is acquiring information. "Find out as much as you can about your shareholders. It's finding out who has the vote, knowing where the shares are, and where they've moved to. In the background, be thinking about settle- ment strategies." This new battlefield comes with an increasing number of white flags. "Boards are more willing to settle," says Soliman. "That's in everyone's interest. They reach an accord that recognizes the rights of the dissidents to participate in some way at the board level." That accord may be hindered or enhanced by media attention. "The trick is to use the media within the rules. Both sides are hiring publicists at this point," says Orestes Pasparakis, another partner with Norton Rose in Toronto. "Media is still a big part of the pro- cess in terms of newspaper ads and articles, but social media is really the next opportunity to increase participa- tion in proxy battles," notes Makuch. "Taking the fight directly to the share- holder is key, and the ability to mobilize shareholders over the Internet could be a game changer in some cases." The 40 JUNE 2011 www. CANADIAN Lawyermag.com eorgeson_CL_June_11.indd 1 5/16/11 10:37:00 AM