BlackBerry Canadian Class Action to proceed to trial as Securities Class Action

A BlackBerry Canadian Class Action will now proceed to trial as a securities class action involving claims for damages for misrepresentation in BlackBerry’s disclosure documents.

Swisscanto Fondsleitung AG v BlackBerry Limited, Thorsten Heins and Brian Bidulka, the BlackBerry Canadian Class Action, will proceed in Toronto, Ontario.

Certification is a procedural matter that defines the form of the class action. The merits of the claims in the action, or the allegations of fact on which the claims are based, have not been finally determined by the Court. The Defendants dispute the claims asserted against them.

The BlackBerry Canadian Class Action arises from the unsuccessful launch of BlackBerry’s next-generation smartphones known as BlackBerry 10 in 2013. It asserts that certain of BlackBerry’s financial disclosures and other disclosure documents issued during the Class Period contained false or misleading representations regarding the sales of the BlackBerry 10 smartphones and the company’s revenues generated through the sales of those devices, and that those financial disclosures of BlackBerry violated the applicable accounting principles.

On launch, BlackBerry measured revenue from the sale of the Z10 using the “sell-in”¬ accounting method. Under this method, BlackBerry booked revenue when the phones were sold to distributors, rather than when the devices were purchased by consumers (an approach known as “sell-through”‚ accounting). Under GAAP, sell-in accounting is only appropriate where a business can make reasonable estimates of pricing adjustments that may be required to achieve consumer sales.

Consumer sales of the BlackBerry Z10 were poor; so much so that, on August 31, 2013, BlackBerry announced that it was writing off, by way of an inventory charge, approximately $1 billion of unsold BB10 Phones. In the same release, BlackBerry indicated that it was switching to sell-through accounting and that revenue from such sales would “not be recognised until those devices are sold through to end customers.

As a result of the alleged misrepresentations, it is alleged that Class Members paid too much when they acquired BlackBerry’s securities during the Class Period, and suffered damages after the alleged misrepresentations were publicly corrected on September 20, 2013.

On behalf of the Class, the BlackBerry Canadian Class Action asserts claims under Part XXIII.1 of the Ontario Securities Act (“OSA“) and, if necessary, the equivalent provisions of the Securities Legislation of the other Canadian Provinces and Territories (“Securities Legislation”). Additionally, the Class Action advances claims in common law negligent misrepresentation.

The Honourable Justice Belobaba of the Ontario Superior Court of Justice also granted leave to proceed with the statutory secondary market misrepresentation claims under Part XXIII.1 of the Ontario Securities Act and, if necessary, the equivalent provisions of the Securities Legislation.

The Defendants sought to appeal from the Court’s Order granting leave to proceed to the Ontario Divisional Court. By endorsement dated November 6, 2018, the Divisional Court rejected the Defendants’ request to bring an appeal with respect to the Order granting leave, which accordingly became final. Leave of the Court was a necessary precondition to the assertion of these claims.

The statutory claims asserted under the OSA and the Securities Legislation are subject to liability limits, which may cap the amount of damages that can be recovered from each Defendant by way of the BlackBerry Canadian Class Action or any other class or individual proceeding asserting claims under the OSA or the comparable provisions of the Securities Legislation in any other province or territory of Canada.

If the Class is successful at trial, it is possible that the damages may exceed the damages caps, if applicable. The common law negligent misrepresentation claims are not subject to liability limits.

If you wish to pursue other claims against the Defendants relating to the matters at issue in the BlackBerry Canadian Class Action, you should immediately seek independent legal advice.

Class Members who want to participate in the BlackBerry Canadian Class Action are automatically included and need not do anything at this time.

Each Class Member who does not validly opt out of the Class Action will be bound by the terms of any judgement or settlement, whether favourable or not, and will not be allowed to prosecute an independent action.

Class Members who do not want to be bound by the outcome of the BlackBerry Canadian Class Action must “opt out,” meaning that they must exclude themselves from the Class Action in accordance with the procedure described herein.