We were very concerned that the Canadian
prospectus marketing rules might
make U.S. underwriters nervous because
the Canadian rules will require the road
show slides to be filed in Canada,
and the conventional wisdom in the
United States was that 
under no circumstances would you want
the contents of the road show
filed publicly and available
permanently for future review
potentially by class action litigation
plaintiffs.
Because the rules will require the
filing to be made in Canada,
the road show, and typically there's only
one for use in both Canada and the
United States,
is going to be publically available on
file in Canada
and that means that eventually U.S.
litigation lawyers will find out that
it's there
and realize that they can access it and
that may inspire more lawsuits
over the contents of the road show in
the United States.  Although,
traditionally, the road show has been
more of an
underwriter document and more of a marketing
exercise than a legal exercise, the fact
that the road show is going to have to
be filed with Canadian regulators
in most cases, unless the offering is
being made primarily in the United
States,
will probably mean that lawyers, both
Canadian and U.S. lawyers, will have to be
more involved than they ever were before
in preparing the road show contents,
reviewing it
and making sure that it doesn't create
any unintended liability risks.
--
We were very excited when we saw the
JOBS Act was proposing the elimination
of restrictions on general solicitation
and general advertising
in U.S. private placements because we
thought that that would
help us facilitate sales into the United
States by Canadian issuer clients
without having to worry about the
conventional prohibitions against
general solicitation and general
advertising.
The SEC's rule change amended Rule 144A
to allow offers to be made more
generally
than just a qualified institutional
buyers, which, on its face,
would seem to allow general solicitation
and general advertising
and mean that we would no longer have to
be as concerned
about whether press releases or the
contents of web sites
or other communications might be viewed
as a general solicitation in the United
States
and preclude the use of Rule 144A to
sell the securities.
Unfortunately, it's not clear
that that is going to be the result of
the rule change quite yet
because there is still a prohibition
against engaging in something called
directed selling efforts. Directed
selling efforts
are the promotion of the sale of
securities
in a foreign country to investors in the
United States.
And so, as a practical matter, we don't
really think that the SEC's rule change
will allow practice to change very much
in Canada
because the types of things that are
now permitted as general solicitation
would probably still be prohibited as
directed selling efforts,
and so for the time being we're going to
advise our clients
to keep doing things the way they did
before. 
It's going to be very interesting to be
a cross-border securities lawyer in 2014
and keep working through all of the changes
in practice that are going to be
resulting from the changes in the U.S.
rules on general solicitation and
general advertising,
the Canadian prospectus marketing rules
and how all of those pieces will fit
together.
There is not very much experience yet
in how to integrate the
pieces in a cross-border offering
following the adoption of the new
prospectus marketing roles in Canada,
and the best practices and market
practices are no doubt going to continue
to evolve through much a 2014.
