The pension plan relied on SEC Rule 10b-5 of the Securities
Exchange Act of 1934,4 which states:
Employment of Manipulative and Deceptive Tactics
It shall be unlawful for any person, directly or indirectly, by the use of any
means or instrumentality of interstate commerce, or of the mails or of any
facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state
a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not
(c) To engage in any act, practice, or course of business which operates
or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
 Meanwhile in Canada, in Ontario, on August 7, 2015, Mr.
Paniccia issued a statement of claim against MDC and Messrs.
Nadal, Sabatino and Doft. Mr. Paniccia’s claim was subsequently
amended three times, with the most recent amendment in April
 In August and September 2015, the SEC raised a new matter with MDC. The new matter was about how MDC grouped or
segmented its partner firms into reporting units. The SEC’s correspondence on this topic was publicly filed, and the discussions
about segmenting continued for two years.
 (Pausing here to foreshadow the discussion below, it may be
noted that Mr. Paniccia submits, as noted above, that the October
29, 2014, November 6, 2014 and March 2, 2015 statements (the
impugned statements) omitted reference to the segments matter
although it was not raised by the SEC until the summer of 2015.)
 In the U.S., on September 30, 2016, the U.S. action
brought by the pension plan was dismissed before certification
and with prejudice by Judge Richard J. Sullivan of the United
States District Court — Southern District of New York.5
 Under U.S. law, Judge Sullivan had to decide whether the
plaintiff, the pension plan, had pleaded facts that would allow the
court to draw the reasonable inference that the defendant was
liable for the misconduct alleged. The U.S. court was required to
accept as true all factual allegations in the complaint and draw all
4 15 U.S.C. 78aa.
5 North Collier Fire Control and Rescue District Firefighter Pension Plan v.
MDC Partners, Inc., 5-cv-6034 (RJS) (S.D.N. Y.).