WWW.LEXPERT.CA
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2016
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LEXPERT 17
still have to make sure you have the right privacy
terms, the right signups, the right anti-spam mea-
sures and indemnifications. It's not like it was 20
years ago. It's really, really important regardless of
the size of the company."
Weinstein, an M&A lawyer, has advised start-
up clients who later sold their companies to giants
such as Cisco, Ericsson, Microso, RIM, PMC-
Sierra and Alcatel-Lucent. She says waiting until
you're thinking of selling the company to start
paying attention to data-management practices is
"very foolhardy," no matter what industry you're
operating in.
"You don't learn this stuff in business school but
as your company builds, it's very important to be
mindful of it. If you don't have counsel advising
you, talk to people at other companies, talk to as-
sociations in your industry – whatever you can do
– to make sure you start educating yourself so you
understand the things that can bite you."
A data breach may top that list.
Ashley Madison, known as an online site for
adulterous hook-ups, is now much better known
for having its 33 million accounts hacked and us-
ers' names published.
"People need to pay a lot of attention to this,"
says Shahir Guindi, managing partner at Osler,
Hoskin & Harcourt LLP in Montréal.
Potential buyers certainly do. Companies plan-
ning to merge or put themselves up for sale should
expect their data-management practices to be put
under a microscope, he says.
"For sure investors are diligencing that aspect
of things more than ever before. We're much more
aware of it now whether it be privacy compliance,
data protection, cybersecurity — we're looking at
those issues with greater severity than we would
have a few years ago.
"We've started to bring specialists in these fields
to comment on agreements to be sure we've been
appropriately covered off on the risks that apply.
What are the practices that need to be considered,
what are the laws? Have we mitigated risks? Is
there a particular compliance issue we should be
aware of, a way to mitigate? Should we be build-
ing an escrow or specific indemnity around some
failure around data protection or privacy or cyber-
security? ese are the types of questions we ask.
So there's greater vigilance."
Guindi, who focuses on M&A, corporate fi-
nance and private equity, says a financing will raise
exactly the same issues, with buyers also going be-
yond the balance sheet to look into data manage-
ment issues.
"If we were advising on a financing and the com-
pany had a history of data breaches or a history of
privacy leaks or a history of complaints from their
customers, that would reflect badly on manage-
ment. And who's going to finance or buy a com-
Fraiberg, Jeremy D. Osler, Hoskin & Harcourt LLP
(416) 862-6505 jfraiberg@osler.com
Mr. Fraiberg, Co-Chair of the M&A Group, practises corporate and securities
law with an emphasis on M&A and corporate finance. He acts for public and
private companies, private-equity funds and investment banks on a range
of transactions.
Finlay, QC, David G. Bennett Jones LLP
(780) 917-5236 finlayd@bennettjones.com
Mr. Finlay acts in the acquisition, development, leasing and financing
of commercial and industrial real estate developments. He also advises
on corporate and governance issues, and counsels public and private clients
in the health sector.
Findlay, Norman F. Bennett Jones LLP
(416) 777-6077 findlayn@bennettjones.com
Mr. Findlay is primarily engaged in securities law with an emphasis on public
offerings, M&A and take-overs with a focus on the mining industry. His practice
also involves private placements, proxy contests and corporate governance.
Ferland, Denis Davies Ward Phillips & Vineberg LLP
(514) 841-6423 dferland@dwpv.com
Mr. Ferland is a partner in financial restructuring & insolvency and litigation
practices. He advises many multinational companies, financial institutions,
creditors and court officers (including trustees, monitors, receivers) in
complex domestic and cross-border restructurings and insolvencies. Has
received many recognitions as a leading lawyer and is a member of the
Insolvency Institute of Canada.
Feldberg, Peter D. Fasken Martineau DuMoulin LLP
(403) 261-5364 pfeldberg@fasken.com
Mr. Feldberg is a leading energy law practitioner who acts on all aspects
of utility regulation, energy project development and First Nations matters.
He acts for applicants before regulatory tribunals and at all court levels.
Mr. Feldberg is the Firm Managing Partner of Fasken Martineau.
Ezekiel, Ron Fasken Martineau DuMoulin LLP
(604) 631-4708 rezekiel@fasken.com
Mr. Ezekiel advises utilities, pipeline companies, independent power
producers, retailers and other energy and resource industry clients with their
business needs, including project permits and environmental assessment;
agreements and negotiations with First Nations; project finance; mergers
and acquisitions; divestitures; joint ventures; and energy and carbon market-
related activities.
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