Assante Wealth Management Class Action
The Claims Administrator, NPT RicePoint (now RicePoint Administration Inc.), is currently in the process of distributing Decision Notices to each Class Member who submitted a timely claim form. The Decision Notices are being sent by regular mail. If you have not received a Decision Notice by August 1, 2016, please contact the Claims Administrator directly: Telephone: 1-866-432-5534; Email: email@example.com.
Loss Determination Methodology
In order to determine if a loss occurred, individual accounts within an investor’s portfolio (consisting of all accounts held by an individual or jointly held by more than one individual during the relevant time) were compared to a hypothetical market performance model (the “Model”) for the same relevant time period. The Model is composed of holdings that consist of 30% risk-free bonds and 70% equity. The Model’s assumption is that each investor portfolio was invested in a moderate performance portfolio.
The Model attempts to place each investor (or their investment portfolio) in the same financial position he/she/it would have been had their accounts been in a moderate performance portfolio. The Model simultaneously captures both capital investment damages (i.e. the sum of funds invested in the account minus the sum of funds taken out of the account, including closing and opening balances) and the investment opportunity damages from January 1, 2008 through December 31, 2013. The purpose of the Model was to create a “simulation”, which was the construction of a scenario where each of the accounts were invested in a standard benchmark portfolio, instead of the actual investments that occurred.
Calculations were based on the opening balance of an account and then adjusted, if necessary, to address further contributions or any withdrawals during the Class Period. Any balance in the account as of December 31, 2013 (or the date when the account was closed if the account closed prior to December 31, 2013) was also deducted in the calculation. Any losses incurred within accounts held individually, jointly or corporately by the same beneficial owner were netted against gains from any other account(s) within the same investor portfolio, if applicable. Where an account is held jointly by more than one individual or corporation, and it is determined that one or more of the joint account holders is a Class Member, any net losses will be allocated to Class Members on a pro-rata basis, based on the Class Member’s respective interest in an account.
Illustrative examples on how the Model operates
Assume the account has an opening January 1, 2008 balance of $100,000 and has an actual closing balance on December 31, 2013 in the amount of $90,000. Using a moderate benchmark portfolio in the Model, our simulated scenario would have $100,000 growing to $116,374 (at December 31, 2013). The Model damage amount would be the difference between the simulated closing balance and the actual balance, $116,374 - $90,000 = $26,374. The total damage is equal to a capital loss of $10,000 and $16,374 of opportunity cost (i.e the return that could have been earned had the account been invested in our standard benchmark). This investor portfolio would receive a loss summary.
Assume everything is the same as in Example 1, except the account had a closing balance of $105,000. This would show that the account made a capital gain of $5,000 during the relevant period. The Model would calculate a damage amount of $116,374 - $105,000 = $11,374. Note this is an example where an account had a moderate capital gain, yet still incurred damages. This investor portfolio would receive a loss summary.
Assume everything is the same as in Example 1, except the account had a closing balance of $120,000. In this case, Assante’s investment strategy outperformed the Model’s benchmark case. The Model calculates a negative damage, $116,374 - $120,000 = -$3,626. In this case, the account suffered no economic damages; Assante actual returns more than covered the opportunity cost. This investor portfolio would not receive a loss summary.
With respect to contributions and withdrawals, the simulation analysis tracks the intermediate account balance based on these inflows and outflows, in order to calculate the investment opportunity damages. The end result is the same: a simulation/benchmark December 31, 2013 account balance is derived and compared to the actual account balance. If the simulation balance is greater than the actual balance, the investor portfolio would receive a loss summary.
Welcome to the Assante Wealth Management Class Action website. This website is designed
to provide you with information about the progress of the action and access to the
pleadings filed in the action. Please login to receive the latest updates and obtain
access to our question and answer forum.
The Assante Wealth Management Class Action is a civil lawsuit commenced against
Assante Wealth Management (Canada) Ltd., Assante Capital Management Ltd., Brian
Malley and Christine Malley.
The Assante Class Action claim has been brought by the representative plaintiffs,
David Jamieson and Allan Rue, on behalf of all clients of Brian Malley who sought
to save and manage their earnings by utilizing the services of Assante. The claim
alleges that the class members, on whose behalf the claim has been brought, fell
victim to Brian Malley who disregarded the stated investment goals of the class
members, engaged in a one size fits all investment strategy for the class members
that was wholly unsuitable for the investors and who acted in his own best interests
which were in conflict with the interests of the class members. The claim further
alleges that Assante failed to supervise Brian Malley to ensure that he was acting
in accordance with applicable regulatory requirements as well as with Assante's
own policies, practices and procedures.
To view the Statement of Claim that has been filed on behalf of clients of Brian
Malley, please click here.
The Settlement was approved by Justice Rooke on November 30, 2015. Click here to view the Approval Order
Click here to view the Approval Notice, or scroll down.
If you believe you are a Class Member and wish to submit a Claim Form, please click here to access a copy of the Claim Form. You must print off the Claim Form, complete it and submit it to the Claims Administrator, at the address indicated on the Claim Form. Please note that Claim Forms must be submitted to the Claims Administrator by no later than March 8, 2016.
If you wish to exclude yourself from the Settlement, you can opt out by sending the Opt-Out Form to Class Counsel by email, regular mail or fax by no later than December 29, 2015.
ASSANTE WEALTH MANAGEMENT (CANADA) LTD. CLASS ACTION
NOTICE OF CERTIFICATION AND SETTLEMENT APPROVAL
This notice is to all persons who held investment account(s) with Assante Wealth Management (Canada) Ltd. or Assante Capital Management Ltd., which were under the administration and direction of Brian Malley, during the time period of January 1, 2008 through to and including December 31, 2013
READ THIS NOTICE CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS.
COURT APPROVAL OF THE SETTLEMENT OF CLASS ACTION
In 2012, a class action was commenced against Assante Wealth Management (Canada) Ltd. and Assante Capital Management Ltd. (collectively, "Assante"), Brian Malley and Christine Malley (the "Class Action"). The Class (as defined below) includes those who were clients of Assante and whose investment accounts were under the administration and direction of Brian Malley. This Notice applies to clients of Brian Malley, Assante Wealth Management (Canada) Ltd., and Assante Capital Management Ltd. between January 1, 2008 and December 31, 2013.
The parties to the Class Action reached a settlement that has now been approved by the Alberta Court of Queen's Bench (the "Court") (the "Settlement Agreement"). The Settlement Agreement provides that the Defendants will pay $10,000,000.00 (the "Settlement Amount") in full and final settlement of all claims of the Class Members. The Settlement Amount includes all legal fees, disbursements, taxes and administration expenses. In return for the Settlement Amount, the Defendants will receive releases and a dismissal of the Class Action.
The settlement is a compromise of disputed claims and is not an admission of liability, wrongdoing or fault on the part of any of the Defendants, which have disputed, and continue to dispute, the allegations advanced in the Class Action.
By an Order dated November 30, 2015, the Court certified the action as a class proceeding pursuant to section 5(1) of the Class Proceedings Act, SA 2003, c C-16.5 ("CPA"), and certified the class as a settlement class, as defined in section 4 of the CPA, as follows:
all persons, corporations, partnerships or other entities who held a beneficial interest in one or more investment account with Assante Wealth Management (Canada) Ltd. or Assante Capital Management Ltd., which were under the administration and direction of Brian Malley during the time period of January 1, 2008 through to and including December 31, 2013, excluding Opt-Out Parties and the named Defendants in Court of Queen's Bench Action No. 1210-01029, being Brian Malley, Christine Malley, Assante Wealth Management (Canada) Ltd. and Assante Capital Management Ltd. ("Class" or "Class Members").
The Court also approved the Settlement Agreement and declared that it is fair, reasonable and in the best interests of the Class Members. The Court also awarded Jensen Shawa Solomon Duguid Hawkes LLP ("Class Counsel") legal fees, expenses and applicable taxes in the total amount of $3,335,123.27 ("Class Counsel Fees"). As is customary in such cases, Class Counsel conducted the class action on a contingent fee basis. Class Counsel was not paid as the matter proceeded and funded the expenses of conducting the litigation. The amount awarded for Class Counsel Fees includes $270,252.94 for the reimbursement of amounts spent by Class Counsel in the conduct of the class action. The remainder, net of applicable taxes, will be Class Counsel's only compensation for conducting the class action. Class Counsel Fees will be deducted from the Settlement Amount before it is distributed to Class Members.
Expenses incurred or payable relating to approval, notification, implementation and administration of the Settlement ("Administration Expenses") will also be paid from the Settlement Amount before it is distributed to Class Members.
The Court has appointed NPT RicePoint (now RicePoint Administration Inc.) as the Claims Administrator of the Settlement. The Claims Administrator will, among other things: (i) receive and process the Claim Forms; (ii) make determinations of each Class Member's eligibility for compensation pursuant to the Distribution Plan; (iii) communicate with Class Members regarding their eligibility for compensation; and (iv) manage and distribute the Settlement Amount. The Claims Administrator can be contacted at:
Mailing Address: RicePoint Administration Inc.
P.O. Box 3355
London, ON N6A 4K3
CLASS MEMBERS' ENTITLEMENT TO COMPENSATION
Class Members will be eligible for compensation pursuant to the settlement if they timely submit a completed Claim Form, including any supporting documentation, to the Claims Administrator.
To be eligible for compensation under the settlement, Class Members must submit their Claim Form and required documentation postmarked no later than March 8, 2016 (the "Claims Deadline"). Click here to download the Claim Form. Claim Forms are also available at http://www.jssbarristers.ca/pages/class-actions/class-actions.cfm.
Only Class Members are permitted to participate in the settlement. In particular, the following persons are not permitted to participate in the settlement: (1) "Excluded Persons", which are defined as the named Defendants; and (ii) persons who opt out of the Class Action.
The Net Settlement Amount, after deduction of Class Counsel Fees, and Administration Expenses (the "Net Settlement Amount"), will be distributed to Class Members in accordance with the Distribution Plan.
Each Authorized Class Member's actual compensation from the Net Settlement Amount will be his/her/its pro rata share of the Net Settlement Amount calculated as set out in paragraphs 18 through 21 of Schedule "F" to the Settlement Agreement. Entitlements of less than $5.00 will not be paid.
If a Class Member disputes the Claims Administrator's decision, whether in whole or in part, the Class Member may appeal the decision by bringing an Application, on notice to the Plaintiffs, Class Counsel and the Claims Administrator, in the Court. The notice must be served within 10 days after the Claims Administrator renders its final decision. The Class Member must use its/his/her best efforts to ensure that the motion is scheduled and heard within 120 days after the notice has been served. A decision of the Court shall be binding and no further appeal shall lie therefrom.
If there is a positive balance after one hundred and eighty (180) days from the date of distribution of the Net Settlement Amount to Class Members, the Claims Administrator shall, if feasible, allocate such balance among Class Members in an equitable and economic fashion. Any balance below $25,000.00 which still remains thereafter shall be donated to the Alberta Securities Commission to be used solely for the purpose of educating investors and promoting or otherwise enhancing knowledge and information of persons regarding the operation of the securities and financial markets. The Claims Administrator shall make all reasonable efforts to minimize amounts donated to the Alberta Securities Commission pursuant to the Distribution Plan.
OPTING OUT OF THE PROCEEDINGS
If you would like to exclude yourself from the settlement agreements, you can opt out by sending the Opt Out Form to Class Counsel by email, regular mail or fax by no later than December 29, 2015 to:
Carsten Jensen, Q.C. / Gavin Price
Jensen Shawa Solomon Duguid Hawkes LLP
800, 304 - 8 Avenue SW
Calgary, AB T2P 1C2
Email: firstname.lastname@example.org or email@example.com
If you do not opt out of the settlement agreements in the manner required by this notice, you will be bound by the terms of the proposed settlement agreements and will be barred from instituting or continuing any legal action against the Defendants in relation to the subject matter of the action.
COPIES OF THE SETTLEMENT DOCUMENTS
Click here to download a copy of the Settlement Agreement and Distribution Plan.
Copies of the Settlement Agreement and the Distribution Plan may also be found on the website of Class Counsel at: http://www.jssbarristers.ca/pages/class-actions/class-actions.cfm or by contacting Class Counsel at the contact information provided below.
CLAIM DEADLINE: MARCH 8, 2016
Claim Forms will not be accepted after the Claim Deadline. As a result, it is necessary that you act without delay.
Jensen Shawa Solomon Duguid Hawkes LLP are counsel to the Plaintiffs in the class proceeding, and can be reached by telephone at 403.571.1520.
NPT RicePoint (now RicePoint Administration Inc.) has been appointed by the Court to be the Claims Administrator and is responsible for the distribution of the Net Settlement Amount. They can be reached by telephone at 1-866-432-5534 or email at firstname.lastname@example.org.
If there is a conflict between the provisions of this notice and the Settlement Agreement, the terms of the Settlement Agreement will prevail.
DISTRIBUTION OF THIS NOTICE HAS BEEN AUTHORIZED
BY THE ALBERTA COURT OF QUEEN'S BENCH
Settlement (Subject to Court Approval)
The parties to the class action proceedings recently entered into a Settlement Agreement. The Settlement is for the all-inclusive sum of $10 million. The Settlement is subject to Court approval.
The proposed settlement Class includes all persons, corporations, partnerships or other entities who held a beneficial interest in one or more investment account with Assante Wealth Management (Canada) Ltd. or Assante Capital Management Ltd., which were under the administration and direction of Brian Malley during the time period of January 1, 2008 through to and including December 31, 2013, excluding parties who opt-out of the settlement and the named Defendants in Court of Queen's Bench Action No. 1210-01029, being Brian Malley, Christine Malley, Assante Wealth Management (Canada) Ltd. and Assante Capital Management Ltd.
View a copy of the Settlement Agreement
On October 9, 2015, Justice Rooke granted a Consent Order which, amongst other things, approved the Notice of Certification and Settlement, which is the formal notice of the Settlement. In addition to making it available on this website, the Notice of Certification and Settlement will be provided to Class Members by mail and email, and through publications in the Red Deer Advocate and the Rocky Mountain House Mountaineer.
View a copy of the Order of Rooke A.C.J.Q.B
View a copy of the Notice of Certification and Settlement
The Settlement approval hearing will take place on November 30, 2015, before Justice Rooke, at 1:30 pm, in the Red Deer Court House. On that date, the Court will be asked to approve the Settlement. If the Settlement is approved, the claims process will start shortly thereafter.
Frequently Asked Questions - Settlement (Subject to Court Approval)
Q: What do I need to do now?
A: You don't need to do anything now if you want the settlement to proceed. The Court will be asked to approve the settlement on November 30, 2015. Assuming the Court grants its approval, claim forms will be distributed in early December, 2015. The claim forms will be short and straightforward, and will contain all the instructions that Class Members need to participate in the settlement.
Q: What is the timeline going forward?
A: There are a number of important dates in the Settlement Agreement. A few of the key dates are:
a. The Court will be asked to approve the settlement on November 30, 2015.
b. Assuming approval is granted, an approval notice will be published, and claim forms will be distributed in early December.
c. Each Class Member will need to complete a Claim Form and submit it by the Claims Deadline, which is 90 days after the publication of the approval notice.
d. Once the Claims Deadline has passed, the Net Settlement Amount will be allocated to Class Members in accordance with the Distribution Plan at Schedule F of the Settlement Agreement. We expect that to be finalized in the spring of 2016.
Q: Am I a Class Member?
A: Class Members are: all persons, corporations, partnerships or other entities who held a beneficial interest in one or more investment account with Assante Wealth Management (Canada) Ltd. Or Assante Capital Management Ltd., which were under the administration and direction of Brian Malley during the time period of January 1, 2008 through to and including December 31, 2013. Some people are excluded from the Class: The defendants (Brian and Christine Malley, and Assante), and those who opt-out of the settlement.
Q: What if I don't like the settlement?
A: Class counsel are available to discuss the settlement with you, and to help you understand the factors that went into the settlement. You have the option of commenting on or objecting to the settlement, in writing to Class counsel, no later than November 5, 2015. All such submissions will be provided to the Court. You may attend at the settlement approval hearing in Red Deer on November 30, 2015. If the settlement is approved by the Court, you can choose to opt-out of the settlement, in which case you will not be entitled to any of the benefit of the settlement agreement and will have to pursue your own claim if you wish to seek compensation.
Q: How much will I get?
A: Class Members who make claims will have their claims evaluated in accordance with the Distribution Plan which is Schedule F to the Settlement Agreement. Claimants' accounts will be reviewed, with a start date of January 1, 2008, and an end date of December 31, 2013, taking into account deposits and withdrawals, and comparing investment performance to a hypothetical market performance model developed by experts retained by Class Counsel. The Net Settlement Amount will then be allocated to Claimants on a pro rata basis, taking into account those losses. Some accounts may not have suffered losses. It will not be possible to determine exactly how much each Claimant will receive until all Claims have been received, and all calculations have been performed in accordance with Schedule F to the Settlement Agreement.
Q: Does JSS Barristers recommend the settlement to the class members?
A: There are two representative plaintiffs - David Jamieson and Allan Rue - who advanced the claim on behalf of the class. They were involved with the negotiation of the settlement, and they recommend it to the Class. We are class counsel - our role is to advise the representative plaintiffs and the Class. We also recommend the settlement to the class.
Every settlement involves some compromise - and that is true here, for all sides (including Assante). We fought hard to get the best possible deal for the Class, and we are confident that we have achieved that. If you want to discuss in person or by telephone, we would be happy to set up a time.
Q: What is the hypothetical market performance model?
A: The hypothetical market performance model is a formula developed by experts retained by Class Counsel. It allows us, by entering certain figures such as opening balance, closing balance, withdrawals and deposits, to determine how a portfolio should have performed over the relevant period. We can then compare the actual performance of an account to its expected performance, to determine losses.
For example, under the hypothetical market performance model, a hypothetical portfolio with a balance of $100,000 on January 1, 2008 - where there are absolutely no withdrawals or deposits - would have a closing balance on December 31, 2013 of $116,374.
If you were a client of Brian Malley's and you have questions about the action or
your legal rights, please contact:
Carsten Jensen at 403-571-1526 or email@example.com
Gavin Price at 403-571-0747 or firstname.lastname@example.org
Simon McCleary at 403.571.1051 or email@example.com
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