Spending and accounting practices

Livent became known for its lavish and ambitious productions. Their 1994 revival of Show Boat was speculated to be, at the time, the most expensive production ever on Broadway, with an investment of over US$10 million and ongoing costs of $600,000 per week (a more typical cost for a Broadway revival at the time was around $3 million).^[4] Show Boat also became the most expensive show to see on Broadway, with standard orchestra tickets priced at $75 (a price point that other shows eventually followed).^[7] Livent was noted for "unprecedented ad blitzes",^[8] including frequent full-page ads in the New York Times.^[9] The company was also known for paying its actors high salaries, a practice which made it unpopular with other theatre producers (who, unlike Livent, typically negotiated actors' compensation through the League of American Theaters and Producers).^[7]

As early as 1994, commentators noted Livent's unusual accounting practices. Livent amortized the pre-production costs of its musicals over a five-year period (as long as the production continued to run), rather than reporting them immediately. This was a legal accounting practice, but aroused suspicion from insiders because it was "unheard of" in the theatre industry.^[7] In 1994, Livent kept its Broadway production of Kiss of the Spider Woman open for several months after it had ceased to cover its weekly operating costs. It was widely believed that this was done in order to delay reporting the production's loss on the company's balance sheet, though Drabinsky disputed this.^[4]

Industry insiders also noted that Livent did not include advertising costs when reporting the cost of a show, and that they included group sales when reporting ticket sales figures. Both practices were out of step with the norm among Broadway producers.^[7]

Insolvency proceedings

In November 1998, Livent sought bankruptcy protection in the US and Canada, claiming a debt of $334 million.^[13][14]

In April 2014, Livent's special receiver obtained judgment against Deloitte & Touche LLP for $84,750,000 in the Ontario Superior Court of Justice, in relation to Deloitte's failure to exercise its duty of care with respect to the audit of Livent's financial statements during 1993–1998.^[15] The ruling was upheld by the Ontario Court of Appeal in January 2016,^[16][17][18] but in December 2017, the Supreme Court of Canada in Deloitte & Touche v Livent Inc (Receiver of) allowed an appeal in part, declaring that liability existed only in respect of Deloitte's negligence in conducting the audit for Livent's 1997 fiscal year, and accordingly reduced the amount of damages awarded to $40,425,000.^[19]

Criminal proceedings

In January, 1999, Livent's former chairman Garth Drabinsky and president Myron Gottlieb were indicted in the United States District Court for the Southern District of New York on charges they personally misappropriated $4.6 million in company funds and "cooked the books" to hide enormous losses from investors. Arrest warrants are outstanding with respect to the US criminal proceedings,^[20][21][22] but double jeopardy rules prevent US extradition proceedings from taking place, because of the conviction in Canadian courts.^[23]

On March 25, 2009, Drabinsky and Gottlieb were found guilty of fraud and forgery in Ontario Superior Court for misstating the company's financial statements between 1993 and 1998.^[24][25] On August 5, 2009, Drabinsky and Gottlieb were sentenced to jail terms of seven and six years, respectively.^[26]

Drabinsky filed an appeal in the Ontario Court of Appeal with respect to his sentence on September 3, 2009.^[27] During that appeal, he remained free on bail.^[28] On September 13, 2011, the Court of Appeal, while upholding the convictions, reduced Drabinsky's sentence to 5 years. Drabinsky appealed to the Supreme Court of Canada, and the application was dismissed without costs on March 29, 2012.^[29][30] Drabinsky was originally held at Millhaven Institution for assessment. In December 2011, he was transferred to serve out his sentence at Beaver Creek Institution, a minimum security prison, located in Gravenhurst, Ontario,^[31] and was released on day parole in February 2013. Drabinsky was granted full parole on January 20, 2014, and completed his sentence in September 2016.^[32]

Civil proceedings

In 2005, former investors in Livent corporate bonds won a $23.3 million settlement against Drabinsky and Gottlieb in the United States District Court for the Southern District of New York,^[33] for which enforcement of the judgment was upheld by the Ontario Court of Appeal in 2008,^[34] but the judgment was still unpaid in 2012.^[35]

Regulatory proceedings

In January 1999, Livent reached an administrative settlement with the U.S. Securities and Exchange Commission,^[36] while civil and criminal proceedings were simultaneously pursued against Drabinsky, Gottlieb and certain other former Livent employees.^[37]

Administrative proceedings were initiated against Livent, Drabinsky and others by the Ontario Securities Commission in 2001,^[38] and they were suspended in 2002 until all outstanding criminal proceedings had been completed.^[39] In February 2013, the OSC announced that proceedings were to be withdrawn against Livent and another party,^[40] and that hearings would take place on March 19, 2013, in the remainder of the matter.^[41] Myron Gottlieb and Gordon Eckstein, who were other parties in the proceedings, subsequently entered into settlement agreements with the OSC in September 2014 and May 2015 respectively.^[42][43]

in 2017, the Ontario Securities Commission permanently banned Drabinsky from becoming a director or officer of any public company in Ontario. The OSC also prohibited him from acting as an investment promoter, and banned him from trading securities (other than as a retail investor, for trades within his RRSP or through a registered dealer for accounts in his name only).^[44][45][46]