sec v. spencer pharmaceutical inc et al doc 125 filed 14 oct 14.pdf

8/10/2019 SEC v. Spencer Pharmaceutical Inc et al Doc 125 filed 14 Oct 14.pdf

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r

UNITED STATES DISTRICT COURT

FORTHE

DISTRICT

OF

MASSACHUSETS

t ' '

lfII40CT

r

P f: O

SECURITIES

AND

EXCHANGE

COMMISSION,

,

Plaintiff,

.

SPENCER PHARMACEUTICAL INC.

MAXIMILLIEN ARELLA

Civil Action No. 12cv-12334-IT

IAN MORRICE

JEAN-FRANCOIS AMYOT

HILBROY ADVISORY INC.

lAB MEDIA INC.

Defendant.

RESPONSE

TO PLAINTIFF'S OPPOSITION TO DEFENDANT

JEAN-FRANCOIS

AMYOT'S MOTION

TO COMPEL JOINDER OF DEFENDANTS

Defendant, Jean-Francois

Amyot

hereby files this response to the Plaintiff's opposition

to

the

Motion to Compel Joinder Defendants, Rami Ailabouni, Rod Zimmer, The Canadian

Government, Francis

Mailhot

RainMaker Venture Capital, RainMaker Global, Christian

Saunders, Tlllerrnan Securities, Cunningham-Adams Small Cap Fund, Cunningham-Adams Green

Fund, Strategema Capital, Sterling Stock Investment Ltd, Karol Schlosser, Alain Houle, Stephane

Goulet, Gous Inc., Anny Yamashita, Joseph Emas, the University of Quebec in Montreal, Dr.

Alexandruu Mateescu, Dian Dalmy, Mitch Segal, Alexey Nikitin, Lesco, Dr. Bandar AI-Dhafiri, and

L'Autorite des Marches Financiers du Quebec.

The Defendant understand

that

this

motion

was

time

sensitive since

it

is made less than

two month before the scheduled trial, but defendant has only learned of the possibility of said

motion days prior

to

filing it. I apologize

to

the court for not being fully versed as the Plainti ff in

manner

of

law and its procedures and we appreciate

the court

consideration of

our

limited

ability in fil ing such a

motion.

Case 1:12-cv-12334-IT Document 125 Filed 10/14/14 Page 1 of 6


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The Plaintiff's claims are based on the allegations that Spencer Pharmaceutical released false

and misleading press releases on its business, its technology as well as press releases on a

buyout

offer

from a company said

to

be located in the Middle East The alleged

False

and

Misleading press release are said to have had the effect

of

increasing

the

demand for the shares

of

Spencer Pharmaceutical, which has resulted in the increase in the price

of

the shares,

enabling some shareholders to sell their shares for a profit hence the so called pump and

dump .

In the Plaintiff's distorted view, I am a puppet master who orchestrated, controlled, and

directed several individuals, companies, and institutions to perpetrate the allege pump and

dump scheme. If

the

Plaintiff

truly

believed

that

I was the

puppet

master , it would not have

included Defendant Dr. Arella, Mr. Morr ice, Spencer Pharmaceutical, Hilbroy Advisory or lAB

Media, and the reason they included these individual is because according to the Plaintiff's

believe, these individuals and or entities have a part or all

of

the responsibilities as per their

claim. For this reason, individuals and or entit ies requested to be joined as defendant, are not

simply witnesses, but in the Plaintiff's own belief, they are also partly

or

completely responsible

for the alleged wrong doings.

In such, all discovery thus far, have proven to the Plaintiff's that certain individual such as Rami

Ailabouni are responsible

for

some

of

the claims made by

the

Plaintiff against the defendants.

In addition, through

their

own opinion expressed in the claims made on December 17, 2012,

The Plaintiff list many

of

the individuals and entities as being responsible for the allege wrong

doing and therefore, it is indispensable that they be joined as defendant.



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As per the Plaintiff's opposition to the motion of joinder defendant (page 3), - Congress

awareness

th t the

purpose of

SE

actions differs from

th t

of private action. That is, the

SE

seeks to protect the investing public, while private actions for damages seek

to

adjudicate a

private controversy against citizens .

It is therefore imperative

th t

Joinder Defendant be ordered in order for

the

SE action to fulfill

its mandate to protect the investing public against the joinder defendants' actions and

responsibilities towards the cited claims.

The Plaintiff makes an erroneous interpretation

of

Section 21(g)

of

the Securities Act since the

clause is meant to deny any

third

party claim, or joinder Plaintiff be ordered in order not to

lessen

or

limit

relief sought by

the

Plaintiff,

but

not

to

prevent

joinder

defendant, especially not

when the Plainti ff is provided evidence to dispute their own beliefs.

It is therefore indispensable

th t

Joinder Defendant be ordered because

the

Defendants will be

subject to substantial risk of

incurring double, multiple or otherwise inconsistent obligations

because

of

the interest.

The Plaintiff claims th t

the joinder

defendant is not indispensable because

the

district court

has wide latitude to order disgorgement amount and th t the Defendant can be heard at a post

tria l proceedings. However, again

the

Plaint iff fails to address

the

double, multiple or

otherwise inconsistent obligations arising from the numerous allegation of violations of the

Securities Act, namely violation of Section 17(a)(1) and (3) (b) and Section lO(b), Rule lOb

5(a)(c) etc. as well as permanent injunctions which will subject the Defendant to substantial risk

of incurring double, multiple or otherwise inconsistent obligations and therefore not only

monetary obligations if the jury believes the Plaintiff's claims against the Defendant.

As per the Autorite des Marches Financiers du Quebec, this court has ruled on forum non

convenient without prejudice unt il discovery is completed. We continue to believe th t this



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forum is

not

adequate and this

m tter

should be decided in Canadian courts. However, since

the AMF claims th t it was aware and was following every action by Spencer and or the

defendants and did not act, they should be joined as defendant. The AMF claims to have the

jurisdiction over this action as well as other United States issuers. The AMF did not make any

attempts to request from Spencer, Hilbroy, lAB Media, UQAM, or the Canadian Government

any information whatsoever to confirm, or otherwise deny the press releases by the company.

The AMF watched, took note of every action Spencer did without any ttempt to protect the

investing public and therefore are not just witnesses, but are responsible for their inaction. The

current case AMF v Amyot provides the basis for the AMF claiming jurisdiction over

US

Publicly

Traded companies and

US

Capital Markets and therefore the AMF provides for an exception to

the

FSIA

and should

not

be covered by the Foreign Sovereign Immunity Act

if

in fact the AMF is

considered a Foreign State as defined in the Act. It is therefore indispensable th t the AMF be

ordered by the court asJoinder Defendant.

As it concerns the defendant s failure to call any witness during the discovery period; this is only

due to the lack of financial resources to pay

for

the court reporter and conference room rental.

The defendant had planned to call 20 witnesses, but the Plaintiff s refused the Defendant s

request to have them pay for the court reporter and therefore the cost of said court reporter

created our inability to call witnesses. As far as providing notice

for

witnesses subpoena by the

Plaintiff, the Defendant only learned after the fact;

th t

it also had to provide notice in order to

have equal time during deposition. We therefore did not get much time questioning any

witnesses during

their

deposition.

The joinder defendants are indispensable to this case since the claims made by the Plaintiffs as

per the December 17, 2012 claims related to several individuals and entities th t are not mere

witnesses, but were directly responsible for the allege claims. In addition, the Plaint iff received

confirmation during deposition th t their claims made against the defendants were in fact

erroneous and said claims should be made against the listed Joinder Defendants.



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Notwithstanding that the Plaintiff imperative requirement

to

protect the investing public and

pursue individuals and or entities believed to be responsible, rejecting Joinder Defendants

would fundamentally deter from

its enforcement objective, therefore potentially challenging

Section 21 g) and if so, we would make a motion for Joinder Plaintiff since the actions of Mr.

Ailabouni, Rod Zimmer,

the

Canadian Government, the University,

the

AMF have cause

irreparable prejudice onto

the

defendants.

We thank you

for accepting our response

to

the Plaintiffs opposition on motion for joinder and

we request the court to order the otion for Joinder Defendant.

Respectfully,

October 8,2014



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CERTIFIC TE O SERVICE

I Jean-Francois Amyot hereby certify th t a

true

copy of

the

above document was sent

on October 8 2014 by electronic mail and overnight mail


sec v. spencer pharmaceutical inc et al doc 125 filed 14 oct 14.pdf

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