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 t ' ' lfII40CT r   P f: O SECURITIES AND EXCHANGE COMMISSION, ,   Plaintiff, ã . 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 Plaintiff in manner of law and its procedures and we appreciate the court consideration of our limited ability in filing such a motion. Case 1:12-cv-12334-IT Document 125 Filed 10/14/14 Page 1 of 6  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. Morrice, 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 entities 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. Case 1:12-cv-12334-IT Document 125 Filed 10/14/14 Page 2 of 6  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 Plaintiff 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 trial proceedings. However, again the Plaintiff 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 until discovery is completed. We continue to believe th t this Case 1:12-cv-12334-IT Document 125 Filed 10/14/14 Page 3 of 6  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 Plaintiff 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. Case 1:12-cv-12334-IT Document 125 Filed 10/14/14 Page 4 of 6
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