Canadian Lawyer InHouse

SEPTEMBER 2016 52 INHOUSE forthcoming, a regulator may be willing to agree to com- pel certain documents. That would afford more protection under the relevant statutes against the information being ob- tained by third parties. Jason, at Norton Rose, agrees that any action that might prevent or reduce the chance of success of other litigation is es- sential. "Sometimes, the sanction you most fear is the class action. That is another ten- sion," notes Jason. That view is shared by Alan Gardner, head of the securities litigation practice at Bennett Jones LLP in Toronto. When deciding to co-operate with a regulator and agreeing to turn over any information that could be subject to privilege, "part of the calculus is whether this document is going to get into the hands of a class action lawyer," says Gardner. As well, to ensure that there is no suggestion of an implied "subject matter waiver" of privilege during an investigation, Gardner says companies can seek to enter into a "common interest agreement" with a regulator. These agreements are negotiated with staff and help defi ne which documents are provided and the "theory" of what the information shows, he explains. Two years ago, the Ontario Securities Commission revised its credit for co-oper- ation program, which, among other things, requires offi cers and directors to be avail- able for interviews and for companies to take action against employees engaged in wrongdoing. The OSC was also the fi rst regulator in the country to introduce the possibility of "no contest" agreements as part of the changes to this program. There have been some concerns raised in legal commentary about the revised credit program in areas such as its potential impact on privilege and how the wording of the document will be interpreted in investiga- tions by the regulator. The OSC declined a request for an in- terview about the program but provided a written statement: "The goal of the credit for co-operation program is so that mar- ket participants and others participating in the capital markets are encouraged to self- police, self-report and self-correct matters that may involve breaches of Ontario securi- ties law. The program sets out guidelines for market participants to follow in terms of in- ternal control of reporting misconduct and asks that market participants promptly and fully self-report to the appropriate regula- tory or law enforcement agency." There have been four no-contest agree- ments since the policy was implemented and The overarching rule is to be transparent. Don't lie in the weeds. JOHN FABELLO, Torys LLP AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 New Edition Brand Management in Canadian Law, 4th Edition John S. McKeown Brand Management in Canadian Law, 4th Edition is the only publication in Canada that brings together the legal and business issues you need to understand when helping clients reach their business objectives through branding. Now in its fourth edition, Brand Management in Canadian Law is written in easy-to-understand language by a specialist in intellectual property and marketing matters. Current case law, expert analysis, summaries and checklists make this unique publication an exceptional and thoughtful guide for gaining a clear understanding and overview of the branding process and the legal issues associated with it. New in this edition • An update of the branding principles • An update of relevant case law since the previous edition • A review of the amendments to the Trade-marks Act currently passed but not brought into force • A new section on the new gTLDs • A new section on the Uniform Rapid Suspension System • A new section on the Federal Anti-Spam legislation, CASL • New section on branding and social media • A new section on the New Border Enforcement Regime Implemented by the Combatting Counterfeit Products Act Order # 987254-65203 $155 Softcover approx. 450 pages 978-0-7798-7254-1 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get a legal perspective on brand management © 2016 Thomson Reuters Canada Limited 00237WZ-60163-CE

• Cover