PrefBlog

I have previously reported an OSC hearing held into the David Berry contractual dispute.

Regulation Services has acknowledged receipt of the resultant OSC order:

1. Subject to clause 3 below, RS shall provide Berry’s counsel access to the Settlement Materials and, if requested, copies thereof for purposes relating to Berry’s defence in the RS Proceeding.

2. Disclosure and use of the Settlement Materials will be on the basis that:
(a) Berry and his counsel will not use the Settlement Materials other than in connection with Berry making full answer and defence to the allegations against him in the RS Proceeding;

(b) any use of the Settlement Materials other than in connection with Berry making full answer and defence to the allegations against him in the RS Proceeding will constitute a violation of this Order;

(c) RS shall maintain custody and control over the Settlement Materials so that copies of the Settlement Materials are not disseminated for any purpose other than as contemplated in clause 1 above;

(d) the Settlement Materials shall not be used for any collateral or ulterior purpose; and

(e) Berry and his counsel shall, promptly after the completion of the RS Proceeding and any appeals, return all copies of the Settlement Materials to RS or confirm that they have been destroyed.
3. The foregoing Order is subject to any claim by RS of solicitor-client privilege, or litigation “work product” privilege, and if asserted, the particulars of such a claim shall be set out by RS in a written list and provided to Berry’s counsel with the Settlement Materials.

As may be seen from all the restrictions, the regulatory authorities are required to maintain the pretense that the affair has something to do with regulation; Berry is forbidden to use the materials in his unjust dismissal lawsuit.

However, it is Berry’s position, summarized in the OSC order that:

Berry takes the position that:

(1) his conduct did not result in Scotia contravening UMIR, but that if breaches of UMIR did occur, they were the result of Scotia’s own compliance failures (the “Scotia Defence”); and

(2) Scotia:
(i) was responsible for supervising his trading and educating him about securities regulatory requirements;

(ii) was directly aware of Berry’s trading practices in general, and of the very trades in issue; and

(iii) expressly advised Berry that the impugned trading was not considered improper;

Scotia excused its conduct in firing Berry with the Barings/SocGen principle: we are shocked – shocked! – to suddenly learn how you made us so much money while employed and supervised by us.

This entry was posted on Friday, April 4th, 2008 at 3:34 pm and is filed under Miscellaneous News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.