Ontario Superior Court of Justice, Court File No: CV-12-00467836-00CP
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This Action relates to BP, a Responsible Issuer until January 12, 2009, publishing, on a global scale including directly to Canadian resident shareholders, a misrepresentation and omission in its core documents concerning its IEP, OMS, and OSRP. The primary Corrective Disclosures occurred after the stock exchanges closed on May 28, 2010, when there was a failure with BP’s OSRP and resulting oil spill and clean-up efforts, which could have happened at any of BP’s oil exploration facilities around the world. This time the failure of BP’s IEP and OMS resulted in the April 20, 2010 Deepwater Horizon explosion, which occurred in the Gulf of Mexico. Plaintiff acquired equity securities of BP prior to and after when BP disseminated these documents containing the misrepresentation and omission. The value of Plaintiff’s securities lost material value after the misrepresentation and omission were corrected.
On October 9, 2013, the Ontario Superior Court of Justice denied, in full, BP plc’s Jurisdiction Motion allowing the action to proceed forward on behalf of all Canadian investors that purchased BP’s securities listed on the London, New York, and Toronto Stock Exchanges between May 9, 2009 and May 28, 2010. The opinion can be read at Kaynes v BP plc, 2013 ONSC 5802 (Oct 9, 2013). On November 9, 2013, BP plc filed a notice of appeal. Plaintiff has retained Groia & Co. to assist with the appeal.
On June 24, 2014, the Court of Appeal for Ontario heard BP’s appeal of the October 9, 2013 Jurisdiction Motion. Morganti Legal and Groia & Co. represented Respondent Plaintiff Kaynes and the proposed Class of all Canadians that purchased BP’s securities listed on the German, London, Toronto and New York Stock Exchanges between May 9, 2007 and May 28, 2010.
The opinion can be read at Kaynes v BP plc, 2014 ONCA 580 (June 24, 2014). Although the Court of Appeal upheld that the anti-manipulation clauses of the Ontario Securities Act do apply to securities purchased on foreign stock exchanges (Ibid, at para. 32), the Court stayed the action pursuant to forum non conveniens.
The shareholders appealed the Court of Appeal’s decision to to the Supreme Court of Canada.The application to the Supreme Court can be read here. On March 26, 2015, the Supreme Court dismissed the Plaintiff’s application for leave to appeal.
Accordingly on the basis of the Court of Appeal’s ruling, on March 27, 2015 the Plaintiff filed a complaint with the United States District Court for the Southern District of Texas in Houston. On September 25, 2015, the United States Federal Court for the Southern District of Texas granted BP’s motion to dismiss. The dismissal of the action was based upon an incorrect analysis of the Ontario Securities Act, s. 138.14, see Green v Canadian Imperial Bank of Commerce, 2015 SCC 60 at paragraphs 15, 20, and 31.
On July 29, 2016, the Court of Appeal granted the Plaintiff’s request to lift the stay of the proceedings. The opinion can be read at Kaynes v BP plc, 2016 ONCA 601 (June 22, 2016).
Claim Issued: April 19, 2012 (Alberta) and November 15, 2012 (Ontario)
Class Period: May 9, 2007 to and including April 20, 2010
Leave to Proceed Record Served: November 27, 2012
Shareholders’ Canadian Counsel: Andrew Morganti and Matthew Stroh, Morganti Legal; and Joseph Groia and Bonnie Roberts Jones, Groia & Co, LLP
Shareholders’ U.S. Counsel: Cohen Milstein Sellers & Toll, PLLC; Berman DeValerio; and Block & Leviton LLP
Shareholders’ European Counsel: Flip Wijers, Lemstra Van de Korst NV
Shareholders’ Economist: Frank Torchio, Forensic Economics
Defendant’s Canadian Counsel: Osler, Hoskin & Harcourt LLP
Defendant’s U.S. Counsel: Sullivan & Cromwell LLP