Dorsey & Whitney LLP (JD Supra Canada)

Two former employees of Cresco Labs have filed a collective and class action complaint in Illinois federal court, alleging that their employer failed to compensate its employees for time spent putting on and taking off personal protective equipment (“PPE”). Similarly, two employees of Walmart, Inc. filed a class and collective action complaint in California federal court alleging that the company

Canadian persons and entities owning a significant interest in a U.S. corporation or U.S. entity classified as a “disregarded entity” for U.S. federal income tax purposes should ensure they are compliant with IRS Form 5472 filing requirements to avoid substantial U.S. federal income tax penalties. IRS Form 5472, “Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign...

The Financial Industry Regulatory, Inc. (“FINRA”) has recently provided our firm with informal guidance that, in accordance with the principles of the multijurisdictional disclosure system (“MJDS”), a Canadian issuer that is undertaking a U.S. registered public offering may count its reporting history in Canada (along with any reporting history in the United States) toward the 36 month...

The United States Department of Labor (DOL) has issued a proposed rule addressing the definition of “independent contractor” in the context of the Fair Labor Standards Act (FLSA). Canadian companies with a presence in the United States should monitor the proposed rule and its impacts on their American operations.

The United States capital markets are among the world’s largest and most stable markets to access capital and liquidity for securityholders. In the past, many Canadian companies have elected not to access the United States capital markets due to high regulatory, accounting and compliance costs related to U.S. securities laws, including the Sarbanes-Oxley Act of 20021 (“Sarbanes-Oxley”). The...

During the current coronavirus crisis, the SEC has issued an Order providing filing extensions that apply to Canadian issuers. The following is a summary of the SEC’s new filing requirements.

As Covid-19 continues to spread, many countries, including the United States and Canada, are increasingly closing their borders in an attempt to slow the rate of infection. This precaution may, however, have unintended tax consequences for Canadians who find themselves stranded on the U.S. side of the border for the duration of the shutdown.

On September 17, 2019, the Financial Post reported that British Columbia Investment Management Corporation (BCIMC), one of Canada’s largest pension funds, inadvertently failed to report to the U.S. Securities and Exchange Commission (SEC) $2.46 billion of its holdings in 98 Canadian companies, accounting for more than 20 percent of the investments required to be reported to the SEC. The reason –...

On September 27, 2019, the Canada Energy Regulator (CER), formerly the National Energy Board (NEB), ordered Enbridge to terminate the open season process that had begun on August 2, 2019.  The order terminates a controversial attempt by Enbridge to convert approximately 90% of the existing crude oil transportation capacity on the Enbridge Mainline from common carriage to contract carriage through

Many of our Canadian clients have decided to list their stock in the United States on the NYSE American exchange, instead of Nasdaq. Why? Stock price flexibility is a big factor.

Employers sometimes include fixed terms of employment in their employment agreement. Sometimes a fixed term is meant to prompt the parties to renegotiate at the end of the term.

2018 Farm Bill: An Overview - The Agricultural Improvement Act of 2018, commonly known as the “2018 Farm Bill,” is an omnibus piece of legislation that Congress uses to set national agricultural, nutrition, conservation and forestry policy. The 2018 Farm Bill is particularly relevant to the burgeoning CBD product market because Congress removed hemp and its derivatives, including CBD, from...

Now that Canada allows using and producing marijuana and marijuana-related products, and bordering U.S. states like Washington, Maine, and Michigan have similarly relaxed marijuana-related laws, it seems natural that industries on both sides of the border will look for cross-border business opportunities. But cross-border transactions between the Canadian and U.S. marijuana industries face a...

The long awaited date for implementation of Canada’s amended Trademarks Act has been announced. The amendments will come into force on June 17, 2019, creating significant changes for trademark practice in Canada.

Two recent decisions of the Federal Court of Canada pave the way for U.S. and other non-Canadian businesses to secure and maintain trademark rights for their retail or hotel operations even where they do not have a bricks and mortar presence in Canada. In the first decision, Dollar General Corporation v. 2900319 Canada Inc., 2018 FC 788, which came out in July, the Federal Court of Canada...

With the listing on May 24th of Canopy Growth Corporation (Canopy) on the New York Stock Exchange (NYSE), both NASDAQ and the NYSE have permitted Canadian cannabis companies to trade on their respective exchanges. Canopy, the first Canadian cannabis company to list on the NYSE, follows Cronos Group Inc. (Cronos), which was the first Canadian cannabis company to list on a national stock exchange...

Canadian companies relying on Rule 701 under the Securities Act of 1933 to exempt their U.S. awards of stock options and other types of compensatory equity (such as RSUs and PSUs), need to track on an ongoing basis the amount of grants being made in the United States. If they anticipate that the aggregate dollar amount of the awards, calculated under Rule 701, will exceed US$5 million in any 12-mo

Increasing numbers of securities class actions have been filed in the U.S. in recent years. That trend contrasts sharply with Canada where the number of actions filed last year declined again, according to a new report prepared by NERA Economic Consulting.

Canadian companies should carefully structure and document loans and advances to their U.S. subsidiaries. If loans to U.S. subsidiaries are not properly structured and documented, such loans may be recharacterized as equity investments for U.S. federal income tax purposes, and important U.S. tax benefits will be lost.

Canadian companies and their outside counsel occasionally ask about the ability to grant early exercise incentive stock options (“ISOs”) to limit the impact of the U.S. alternative minimum tax (“AMT”) to their U.S. employees. However, due to fairly counterintuitive U.S. federal tax regulations, structuring options in this manner may expose optionees to negative tax consequences in the event of a...

Canadian employment law is, in many ways, far more employee favorable than U.S. employment law. With the exception of a few states, employment in the United States is “at-will.”

Many cross-border loan transactions involve subsidiaries that are organized in the United States and/or U.S. based collateral. To the extent that the underlying loan is made to a Canadian borrower by a Canadian lender, these transactions are typically documented with loan agreements governed by Canadian law (often under the law of the Province where the primary Canadian borrower is organized, but

The filing of securities class actions increased significantly last year in the U.S. In Canada the number of such actions filed also increased last year. Over the last two years in Canada however, the number of securities class actions filed has not matched that of earlier years.

Canadian miners and oil & gas companies should be aware that on February 14, 2017, President Trump approved a joint resolution of Congress that disapproved a recent SEC rule requiring specific disclosure by resource extraction issues. The obligation to report was imposed by Rule 13q-1 under the Exchange Act.

In December 2015, the Canadian Securities Administrators (CSA) announced an amended regime for a prospectus-exempt rights offering in Canada. This amended regime allows certain public companies in Canada to conduct a prospectus-exempt rights offering without prior CSA review of the rights offering circular, and using a greatly simplified rights offering circular that assumes, without...

In recent years, many Canadian companies have sought to create a U.S. market for their shares by listing on the OTCQX. Qualifying Canadian companies that have their primary listing on the Toronto Stock Exchange, the TSX Venture Exchange or the Canadian Securities Exchange may generally obtain a quotation on the OTCQX or the next lower tier of the OTC Markets, the OTCQB, without filing a...

A Canadian SEC reporting company that looks to acquire a company with outstanding equity grants in the United States will frequently need to address the question: What alternatives are available for the assumption of the target’s outstanding options or other equity-based compensatory awards? Under U.S. law, both the grant of the equity award and the exercise or conversion of the equity award

It is generally a good idea for companies not to disclose biographical information about their employees, such as marital status, religion, or age. Good HR professionals counsel managers not to ask for such information during interviews, for example, in order to avoid claims of discrimination in hiring.

We only want one thing for Christmas this year: clear and unambiguous terms for ownership of intellectual property. We know you’ll understand after the year you’ve been having.

Filings for new Canadian securities class actions have been essentially flat over the last three years, according to a recent report by NERA Economic consulting. That trend is consistent with the one for the filing of U.S. class actions. Last year there were 11 securities class actions filed in Canada, the same as in the prior year and one more than in 2010. The largest number of these cases...