A private text exchange between an Aphria deal lawyer and a member of the board calls into question the accuracy of an regulatory filing with the Securities and Exchange Commission about a bid cannabis company Green Growth Brands made to takeover Aphria. The bid was deemed as ‘hostile’ by Aphria’s board early this year and drew press attention after Aphria’s stock had lost at least half its market share from a short seller report, published the first week of December 2018, questioning the value paid by Aphria for foreign cannabis assets that significantly benefited insiders, like Michael Serruya and Andy Defrancesco, without disclosing the true nature of the transaction. Aphria, who at the time was run by CEO Vic Neufeld, called Serruya an independent director and put him on a special committee to investigate the legitimacy of the Green Growth offer. New information shows Serruya could have used his position to cause the company to make a false and misleading SEC filing.
On February 7, 2019 Tim Kiladze reported for The Globe and Mail that based on a recent regulatory filing, then law firm partner Curtis Cusinato of Canadian-based Stikeman Elliott LLP, had been first to come up with the merger idea and brokered a meeting between the company CEOs and a board member in September 2018. Canadian multi-millionaire Michael Serruya swore in an SEC filing, on February 5 2019, that the timeline of how the Green Growth Brands bid to buy Aphria began was true. But the day The Globe and Mail story came out attorney Curtis Cusinato texted Michael Serruya from a burner phone he used saying the SEC filing didn’t tell the true story and as a result complained The Globe and Mail headline and story were “just plain wrong”.
The Globe and Mail headline read: Aphria’s former legal advisor brokered first meeting with hostile bidder
According to a text message reviewed by this reporter sent on February 7th at 9:45 am attorney Cusinato texted Serruya saying:
“You need to call me – article and your circular is just plain wrong and before that meeting I had never met CEO and CFO they didn’t even know who I was. SE did not broker meeting.”
The message was also reviewed by a person who worked with Serruya and Defrancesco to confirm their belief it was Cusinato sending the message from his burner phone. SE = Stikeman Elliott LLP. Cusinato wanted Serruya to change or clarify the filing because he felt Serruya had used his name and the name of his law firm inaccurately. This reporter confirmed with people that interacted with Cusinato that he was handing out his burner phone number to people on Bay St after the short seller report came out in December because he thought if the government or regulators were going to investigate they wouldn’t try to tap an attorney’s phone because of attorney client privilege.
“Cusinato was absolutely acting panicked at this time”, according to a Bay St source.
Assuming Cusinato is telling the truth, why would Serruya have Aphria lie about how the “hostile bid’ idea happen. Why say a big law firm and its partner lawyer came up with the bid idea? Maybe it was to hid the fact that this was really a backroom plan by insiders who didn’t have the best interest of shareholders in mind?
The Globe and Mail was first to report that Stikeman Elliott and Aphria were going to part ways after the short seller report came out because it found out that Cusinato was also the brother-in-law of Andy Defrancesco who benefited from Aphria over-paying for the foreign assets. Sources on Bay St confirmed Cusinato was actually asked to leave by the firm but allowed to resign publicly to save face. By the time Cusinato had sent the February 7th text he was no longer working for Stikeman. Then on March 6th a smaller Canadian law firm, Bennett Jones, announced they had hired Cusinato as a partner.
Aphria trades on the Canadian exchange TSX and U.S. exchange NYSE. As a result anyone who signs their SEC filings could be subject to SEC enforcement. The Securities and Exchange Act rules say you can not file misleading or untruthful public filings with the Commission especially if it is about a material event like a buy out offer. Serruya’s action could be a technical violation. Additionally it brings into question Serruya’s real independence. Regulators could examine if Serruya and Aphria made misleading statements about his independence that influenced investors decision to buy or sell the stock or vote for the Green Growth Brands bid.
I have previously reported that it was Serruya working with Aphria investor Andy Defrancesco in a backroom deal to engineer the Green Growth offer in a move to try and keep their secret control of the company, based on their own private text messages.
An additional private social media chat message, reviewed by this reporter, says that in early February Green Growth Brands director Adam Arviv was complaining to Andy Defrancesco about spending two hours on the phone with Serruya negotiating the Green Growth deal. It was odd that Arviv wasn’t complaining about negotiation with the Aphria CEO. The private messages are not totally clear what aspect of the deal Arviv was upset about but he did use threatening language when speaking with Defrancesco. The private chat is another example of how people involved in the Green Growth bid thought Serruya was in charge of the “not really hostile” bid. Arviv is the son of Harold Arviv who was accused blowing up his own disco club in the 80’s to get insurance money and also allegedly had ties to the mob. Harold Arviv went to jail in the late 80s.
Cusinato and his prior law firm Stikeman Elliott were contacted about the contents of the text message for comment and did not respond to emails. Michael Serruya has never responded to an email or phone call requesting comment or an interview.
Aphria Board Member Mike Serruya
Editor Note: Aphria’s descriptive timeline of the Green Growth Brands bid starts on page 22 of this SEC filing. Serruya’s signature swearing to the truth of the filing is on page 38. Aphria’s current CEO Irwin Simon also signed the statement.
It was written that adam arviv used threatening language,is he still a bookie operating out of yorkville?