Tariffs-Free Regulatory Importing?
Asad Akhtar
the degree and timeliness of the self-reporting undertaken by the respondent in light of
the circumstances of the misconduct;
the degree of investor harm;
the remedial steps taken by the respondent to address the misconduct;
extent to which respondent provided prompt, detailed and candid cooperation during
Staff’s investigation; and
the deterrent effect of the settlement agreement on future conduct of the respondent and
others in the capital market.121
No-contest settlements are unavailable to a respondent if: 1) the respondent engaged in
abusive, fraudulent or criminal conduct; 2) the respondent’s misconduct resulted in investor
harm that will not be addressed in a satisfactory matter; and 3) the respondent misled or
obstructed Staff during its investigation.122
3. Transparency in Public Interest Determination
In Citigroup, Judge Rakoff was concerned about the Court becoming a “rubber stamp” in
performing its judicial review function in approving settlements and granting injunctions.
However, this is not an issue in the Canadian context as these issues fall exclusively within the
realm of regulatory concern.123 Further, the settlement process is more transparent to the
Commission approving the decision than to the District Court under the American framework.
Under existing procedures, settlement agreements between OSC Staff and respondents
must be approved by the Commission in a public hearing. A confidential settlement conference
121
Revised Credit for Cooperation Program, OSC Staff Notice 15-702, 37 OSCB 2583 (2014) at para 17.
Ibid at para 20.
123
Supra note 99 at 7.
122
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