UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
___________________________________________
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. ) Case No. 1:12-cv-12334-IT
)
SPENCER PHARMACEUTICAL INC., )
J EAN-FRANOIS AMYOT, )
MAXIMILIEN ARELLA, )
IAN MORRICE, )
IAB MEDIA INC. and )
HILBROY ADVISORY INC., )
)
Defendants. )
___________________________________________ )

JOINT PRETRIAL MEMORANDUM
Pursuant to the Courts Procedural Order dated September 25, 2014, plaintiff
Securities and Exchange Commission (the Commission) and defendant J ean-Franois
Amyot (Amyot) (together, the Parties) hereby submit the following J oint Pretrial
Memorandum setting forth the following items:
I. Disputed factual issues to be resolved at trial and a brief summary of each
partys position on those issues;
II. Disputed legal issues that must be resolved in connection with the trial;
III. Issues of law or fact as to which the parties are in substantial agreement; and
IV. An informed estimate of the probable length of the trial, based on a trial
schedule of 9:00 a.m. to 1:00 p.m.
As the Court is aware, this matter is presently scheduled to begin trial on Monday,
November 17, 2014.

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I. DISPUTED FACTUAL ISSUES
A. Plaintiffs Statement of Disputed Factual Issues
At its core, the factual dispute in this matter to be resolved at trial is whether Amyot, in
2010 and early 2011, orchestrated a scheme to pump up the share price of Spencer
Pharmaceutical Inc. (Spencer) through false and misleading press releases and promotional
materials, and then reaped millions of dollars in unjust gains in two funds he controlled by
dumping Spencer shares at inflated prices. A more detailed discussion of the underlying
factual disputes and a summary of the Commissions position are below.
The Commission alleges, and expects to introduce evidence at trial establishing, that
Amyot led a scheme to falsely promote Spencers business activities and a fake buyout offer in
order to benefit from selling Spencers shares at inflated prices. Amyot initiated the scheme by
orchestrating a reverse merger to create Spencer in 2009. While Spencer claimed it was a US-
based pharmaceutical company based in Boston, Massachusetts, its Boston office was nothing
more than a virtual office and its officers Amyot, and then later, Maximilien Arella and Ian
Morrice were located in Canada.
1
Spencer issued hundreds of millions of shares in November
2009, of which approximately half went to entities and funds Amyot controlled.
After creating Spencer, which had large debts and no revenue or legitimate assets, Amyot
directed a two-stage promotional scheme. Amyot continued to exert control over Spencer
notwithstanding that he was no longer formally an officer of Spencer. Amyot also controlled
two companies Hilbroy Advisory Inc. (Hilbroy) and IAB Media Inc. (IAB) which he
used to fund and promote Spencer during this period. First, between March and November 2010,
Amyot by and through Spencer, Hilbroy, and IAB
2
misled investors about Spencers business

1
The Court entered Final J udgments against Messrs. Arella and Morrice on September 25,
2014. [Dkts. #109, 110].
2
The Commission moved for default judgment against Spencer, Hilbroy, and IAB on October
8, 2014. [Dkt. #120].
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activities through false and misleading press releases, disclosures, and third-party internet
promotions funded by Hilbroy. Then, in early November 2010, Amyots scheme began a new,
more aggressive phase when Spencer announced that it had received an unsolicited $245 million
buyout offer from a purported Kuwaiti company called Al-Dora Holdings. Over the next several
months, Spencer proceeded to issue nearly twenty press releases at Amyots direction concerning
the offers progression, leading the public to believe that the extraordinary buyout would be
complete in March 2011. Amyot, by and through Hilbroy and IAB, directed a promotional
campaign to simultaneously tout these press releases. But then, two days before the purported
closing date, Spencer abruptly announced that it had secured a mutual extension agreement
with Al-Dora and its purported subsidiary, Hail First Pharma (Hail First), so that Spencer
could finalize certain scientific studies. Spencer next announced, in September 2011, that
negotiations had ceased.
In truth, the Commissions evidence will show, the transaction never took place because
the offer was nothing more than a fiction created to pump up Spencers stock price. The offer
was concocted by Amyot and he knew, or was reckless in not knowing, that it was not legitimate.
Amyot orchestrated all aspects of the offer, including the steps taken by Al-Dora and Hail First.
As a result of the false and misleading promotional efforts Amyot directed and funded, Amyot
profited handsomely when he dumped approximately 36 million shares of Spencer for gross
proceeds in excess of $5 million through two funds he controlled (the Cunningham-Adams Small
Cap Fund I and the Cunningham Adams Green Fund). Amyot was able to have so many shares
available to him in part because, at an earlier date, he had orchestrated the illegal sale of 12
million purportedly unrestricted Spencer shares to through two unrelated entities he controlled
and then eventually into one of the Cunningham-Adams funds he controlled.


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The specific factual issues in dispute include:
1. Whether the press releases issued by Spencer and Hail First between J une 2010
and March 2011 were false and misleading because, inter alia, they publicized a $245 million
buyout offer for Spencer that was not legitimate;
2. Whether Amyot directed and orchestrated a scheme involving Spencer (including
its officers and directors), Hilbroy, IAB, Al-Dora, Hail First, and several additional third parties
to mislead investors about whether Spencer had received a legitimate $245 million buyout offer;
3. Whether the information alleged by the Commission to be false and misleading
was material, or in other words, whether the information was substantially likely to be
considered important to a reasonable investor in deciding whether to invest in Spencer;
4. Whether Amyot controlled Spencer, Hilbroy, IAB, the Cunningham-Adams Small
Cap Fund I, and the Cunningham-Adams Green Fund during the relevant time period;
5. Whether Amyot had ultimate authority over the press releases issued by Spencer
and Hail First alleged by the Commission to be false and misleading;
6. Whether Amyot acted with scienter;
7. Whether Spencer ever registered any shares with the Commission;
8. Whether any Spencer shares owned or controlled by Amyot met the factual
predicate to establish an exception to the registration requirements of the Securities Act of 1933;
9. Whether Amyot orchestrated the movement and sale of Spencer shares from
Spencer to an entity called Finkelstein Capital, then to an entity called Swissquote Bank, and
ultimately to the Cunningham-Adams Small Cap Fund I, which sold them into the market; and
10. The quantity of shares sold by the Cunningham-Adams funds during the relevant
time period and the proceeds from such sales.
B. Defendants Statement of Disputed Factual Issues
At its core, the factual disputes in this matter to be resolved at trial are:
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1. The defendant was not a control person of Spencer.
2. Spencer is a Delaware corporate, a separate legal entity, with its own
management, bank account, research agreement with prominent universities, and had
significant technology and assets. Spencer was a company quoted on the OTC Pinksheets.
3. The defendant did not manage the day to day operations of Spencer, nor the
overall direction of Spencer.
4. The defendant as the President and employee of Hilbroy Advisory provided
consulting services to Spencer and its management, namely to assist in drafting press releases.
The defendant did not approve the press releases, or force in any way the dissemination of
said press releases.
5. Spencer and its management, Dr. Arella and Mr. Morrice provided the press
releases to their SEC corporate counsel for verification prior to providing final authorizations,
and disseminating the press release to Marketwire for public release.
6. All Spencer press releases include quotations from either Dr. Arella and or Mr.
Morrice, but none of the Defendant.
7. Hilbroy Advisory is a Canadian corporation, a separate legal entity, with staff,
website, bank account, brokerage accounts, a going concern with many clients and suppliers
including but not limited to Spencer. Hilbroy Advisory was a publicly traded company, listed
on the Frankfurt Stock Exchange.
8. IAB Media Inc. is a Canadian corporation, a separate legal entity, with staff,
website, bank account, a going concern with many clients and suppliers including but not
limited to Spencer.
9. The defendant did not manage the day to day operations of IAB Media Inc. and
had no input into the securities awareness campaign messages sent to the public.
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10. Cunningham-Adams Small Cap Fund I S.A. and Cunningham-Adams Green
Fund S.A. are both Panamanian Funds, separate legal entities, with its own bank accounts,
brokerage accounts and produced monthly fund performance reports.
11. The defendant did not direct trades and or enter trades on behalf of
Cunningham-Adams Small Cap Fund and or Cunningham-Adams Green Fund, and two
professional traders managed the day to day business affairs of the funds.
12. Cunningham-Adams Small Cap Fund I and or Cunningham-Adams Green
Fund did not obtain gross proceeds of $5.8 million from selling Spencer shares.
13. The defendant did not owned shares of Spencer.
14. The defendant did not obtained proceeds from the sale of Spencer shares.
15. The defendant did not control Finkelstein Capital Inc.
16. Spencer entered into a share exchange agreement in J une 2009, and all shares
said to be issued as per the share exchange agreement and settlement of debt were deemed
issued at that time.
17. Rami Ailabouni acted on his own to perpetrate the allege buyout with Al-Dorra
and provided any and all documents, signature, and information on the company named Al-
Dorra.
18. The defendant acted with good faith in dealing with an overwhelming situation,
that could result in significant financial and reputational gains.
II. DISPUTED LEGAL ISSUES
A. Plaintiffs Statement of Disputed Legal Issues
(1) Personal Jurisdiction
On J uly 15, 2013, J udge William G. Young, then assigned to this civil action, denied
Defendant Amyots motions to dismiss for lack of personal jurisdiction, for failure to state a
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claim and for forum non conveniens. See Docket No. 47 (clerks notes for motion hearing).
Nonetheless, the Commission anticipates that Amyot will continue to argue that this Court
does not have personal jurisdiction over him. The Commission submits that there can be no
real dispute that Amyot is properly subject to this Courts jurisdiction. In addition to all of the
facts on which J udge Young based his decision, the evidence obtained during discovery
including but not limited to Amyots sworn deposition testimony further supports the
assertion of personal jurisdiction over Amyot. Among other things, Amyot has now testified
under oath that he set up, paid for, and directed the creation and maintenance of Spencers
Boston office, and that he instructed that all mail to Spencer be directed to his offices for
Hilbroy. The evidence also shows that Hilbroy the company for which Amyot was
President, over which he asserted control, and which funded Spencer and all of the third-party
promotional efforts concerning Spencer had an office in New York that Amyot paid for with
his personal credit card.
Finally, it remains that Amyots pump-and-dump scheme was aimed at the United
States over-the-counter securities market, which itself establishes the Courts personal
jurisdiction over Amyot. See Pls. Substituted Combined Oppn to Motions to Dismiss [Dkt.
#34] at 5-12 (citing SEC v. Dunn, 587 F. Supp. 2d 486, 509-10 (S.D.N.Y. 2008) (personal
jurisdiction over Canadian defendant who prepared false financial data for inclusion in
financial statements of Canadian public company traded in the United States); SEC v. Ficeto,
2013 WL 1196356, at *5 (C.D. Cal. Feb. 7, 2013) (Ficeto II) (injecting false information into
the domestic over-the-counter securities market through a market manipulation scheme
establishes personal jurisdiction); SEC v. Prime Time Group, Inc., 2010 WL 780198, at *3-4
(S.D. Fla. Mar. 2, 2010) (personal jurisdiction over Canadian resident who helped draft and
disseminate allegedly misleading press releases for American corporation based in Florida)).

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(2) Scheme Liability (Counts 1 and 2)
Sections 17(a)(1) and (3) of the Securities Act of 1933 (Securities Act) make it
unlawful to employ any device, scheme, or artifice to defraud, or to engage in any transaction,
practice, or course of business which operates or would operate as a fraud or deceit upon any
person in the offer or sale of securities. See, e.g., SEC v. Forman, 2008 WL 2704554, *1-2
(D. Mass. 2008). Section 10(b) of the Exchange Act and Rules 10b-5(a) and 10b-5(c) make it
similarly unlawful to employ any device, scheme, or artifice to defraud, or 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 securities. See Swack v. Credit Suisse
First Boston, 383 F. Supp. 2d 223, 238-39 (D. Mass. 2004) (describing conduct necessary for
scheme liability, including a scheme to artificially inflate or deflate stock prices); see also
SEC v. Durgarian, 477 F. Supp. 2d 342, 350-51 (D. Mass. 2007).
Violations of Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange
Act, and Rules 10b-5(a) and (c) thereunder, require a showing of scienter, while Section
17(a)(3) of the Securities Act does not. Aaron v. SEC, 446 U.S. 680, 701-02 (1980). In the
First Circuit, recklessness satisfies the scienter requirement, although it must be much more
than mere negligence. See, e.g., Geffon v. Micrion Corp, 249 F.3d 29, 35-36 (1st Cir. 2001);
Hoffman v. Estabrook & Co., Inc., 587 F.2d 509, 517 (1st Cir. 1978).
As discussed in Section I above, the Commission expects to adduce evidence at trial to
prove that Amyot engaged in a scheme to fraudulently pump up Spencers stock price by
creating, disseminating, and touting false news about the company, including the fictional
buyout offer by Al-Dora, so that Amyot could then dump millions of Spencer shares that he
controlled. Amyot orchestrated Spencers creation, funded Spencer, and then developed and
led the plan to tout Spencer in multiple public arenas in order to raise its share price. Amyot
then orchestrated all aspects of the false buyout offer from both Spencers and Al-Doras
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sides, including the critical promotional campaign. Amyot then took advantage of the fruits of
his labor by selling large numbers of the Spencer shares, often close in time to the (false and
misleading) press releases. The Commission contends that these facts sufficiently allege
scheme liability against Amyot. Cf. Swack, 383 F. Supp. 2d at 239 (issuance of misleading
reports and other efforts deliberately aimed at artificially boosting share price constituted a
scheme); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1471-72 (2d Cir. 1996) (CEO
orchestrated and was engaged in the purposeful planning of a scheme to defraud
customers through excessive markups).
The Commission presently expects Amyot to dispute at trial all of the elements
necessary to establish that he engaged in a scheme to violate the securities laws, including that
he acted with scienter and/or negligently (for purposes of 17(a)(3) liability) in connection with
the alleged conduct. The Parties have engaged in preliminary discussions as to whether
agreement can be reached as to the discrete elements of the charges concerning (i) the use of
means or instrumentalities of interstate commerce or of the mails and (ii) the requirement that
the conduct be in connection with the purchase or sale of securities. Those discussions remain
ongoing.
(3) Misrepresentation Liability (Counts 3 and 4)
Under Section 17(a)(2) of the Securities Act, it is unlawful for any person, in the offer
or sale of securities, to obtain money or property by means of any untrue statement of a
material fact or omission to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not misleading. See Aaron,
446 U.S. at 696. Section 10(b) of the Exchange Act and Rule 10b-5(b) make it similarly
unlawful, in connection with the purchase or sale of securities, 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 light of the circumstances under which they were made, not misleading. See SEC v.
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Druffner, 517 F. Supp. 2d 502, 508 (D. Mass. 2007) (citing SEC v. Fife, 311 F.3d 1, 9-10 (1st
Cir. 2002)).
The Commission expects to adduce evidence at trial showing that Amyot violated
these provisions by misrepresenting material facts in Spencers press releases concerning,
among other things, the purported buyout offer. A fact is material if there is a substantial
likelihood that a reasonable [investor] would consider it important in deciding how to
[invest]. SEC v. Binette, 679 F. Supp. 2d 153, 156 (D. Mass. 2010) (quoting Basic Inc. v.
Levinson, 485 U.S. 224, 231 (1988)). There can be no doubt that a reasonable investor would
consider an unsolicited $245 million buyout offer for a penny-stock company, which had no
revenue or legitimate assets, to be important. See, e.g., Binette, 679 F. Supp. 2d at 155-56
(reasonable investor would consider important the misappropriated information about a
potential business acquisition by his employer).
The Spencer press releases were issued in connection with the purchase or sale of
securities because they were disseminated publically through services such as Marketwire.
See SEC v. Goldsworthy, 2008 WL 8901272, *9-10 (D. Mass. J une 11, 2008) (press releases
are unquestionably the type of documents upon which an investor would have relied)
(internal citation omitted). Amyot also directly obtained money or property from the
misrepresentations through his sale of shares of Spencer stock after the price had been
inflated, thereby satisfying the elements of Section 17(a)(2) of the Securities Act.
The Commission presently expects Amyot to dispute at trial all of the elements
necessary to establish that he made material misrepresentations in violation of the securities
laws, including that he acted with scienter in connection with the alleged conduct. The Parties
have engaged in preliminary discussions as to whether agreement can be reached as to the
discrete elements of the charges concerning (i) the use of means or instrumentalities of
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interstate commerce or of the mails and (ii) the requirement that the conduct be in connection
with the purchase or sale of securities. Those discussions remain ongoing.
(4) Control Person Liability (Count 7)
Based on Amyots sworn testimony and his statements in recent pleadings submitted
to the Court, the Commission anticipates that Amyot will strenuously deny that he exercised
control over the public statements and other activities of Spencer that resulted in its
violations of Section 10(b) of the Exchange Act and Rule 10b-5, and argue that he is not liable
as a control person for misrepresentations and/or omissions by Spencer. The Parties have
engaged in preliminary discussions as to whether agreement can be reached as to the discrete
elements of the charges concerning (i) the use of means or instrumentalities of interstate
commerce or of the mails and (i) the requirement that the conduct be in connection with the
purchase or sale of securities. Those discussions remain ongoing.
(5) Violation of Section 5(a) and (c) of the Securities Act (Count 8)
Sections 5(a) and 5(c) of the Securities Act generally prohibit the use of the mails or
interstate means to sell or offer to sell any security unless a registration statement is in effect
or has been filed with the Commission, or an exemption from the registration provisions, or a
safe harbor, applies. See 15 U.S.C. 77e(a), (c). To establish a prima facie case for a
violation of Section 5, the Commission must prove that: (1) the defendant offered to sell or
sold a security; (2) the defendant used the mails or interstate means to sell or offer to sell the
security; and (3) no registration statement was filed or in effect as to the security. SEC v.
Opulentica. LLC., 479 F. Supp. 2d 319, 328-29 (S.D.N.Y. 2007) (citing SEC v. Cavanaugh,
445 F3d 105,111 n.13 (2d Cir. 2006)). The Commission is not required to prove scienter.
Aaron, 446 U.S. at 714, n.5 (citations omitted). After the Commission has established a prima
facie case, the burden of proof shifts to the defendant to show that an exemption, or safe
harbor, from registration was available. See SEC v. Ralston Purina Co., 346 U.S. 119, 124-26
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(1953). Notably, Amyot did not move to dismiss the Section 5 claim when he sought
dismissal of all other counts, and the Commission is not aware of any evidence that the
defendant could present as to an exemption or safe harbor from registration.
The Commission expects to adduce evidence at trial that establishes a prima facie case
that Amyot violated Section 5 by orchestrating the sale of 12 million unrestricted Spencer
shares from Spencer through another company he controlled, called Finkelstein Capital. The
shares were then later transferred into a fund controlled by Amyot and was used to dump
shares as part of the scheme. The evidence will show that mails or interstate means were used
to effect these sales, and no registration statement was in effect for the 12 million Spencer
shares.
The Parties have engaged in preliminary discussions as to whether agreement can be
reached as to the discrete elements of the charges regarding whether (i) the defendant used the
mails or interstate means to sell or offer to sell the security, and (ii) no registration statement
was filed or in effect as to the security. In addition, the Parties are continuing to discuss
whether Amyot anticipates adducing any proof that there was an applicable exemption or safe
harbor from registration with respect to the 12 million shares. Those discussions remain
ongoing.
B. Defendants Statement of Disputed Legal Issues
(1) Personal Jurisdiction
On J uly 15, 2013, J udge William G. Younge, the assigned to this civil action, denied
Defendant Amyots motions to dismiss for lack of personal jurisdiction, for failure to state a
claim and for forum non convenience without prejudice, pending the completion of discovery.
The discovery is now complete, and the evidence for lack of personal jurisdiction, for
forum non convenience is present, and for failing to make a claim is black and white and
should be revised.
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The Plaintiff is trying to have its cake in to eat it as well when claiming US jurisdiction
because Spencer had an office in Boston, and then pleads Spencer did not have an office in
Boston because it was a virtual office.
All defendants are Canadians, all witnesses are Canadians, all allege trading of
Spencer shares occurred outside of the United States of America and Spencer stock does not
trade on a National Exchange and it is merely quoted on the OTC Pinksheets, which is not an
exchange.
At the very least, the Defendant has no connection to Boston, the United States and
none of the alleged wrong doing occurred in the United States and further to the Autorite des
Marchees Financiers du Quebec claiming jurisdiction over the Spencer affairs and several
other US public entities, it is clear that a more appropriate forum exist and that is the Canadian
jurisdiction.
(2) Lifting of the Corporate Veil
The Plaintiff fails to state a claim on the Defendant. Instead, it makes claims against
the Defendant through the allege acts of several corporations including Spencer, Hilbroy
Advisory, IAB Media, the Cunningham-Adams Small Cap Fund I, Cunningham-Adams Green
Fund, Finkelstein Capital, Tillerman Securities, Al-Dorra, Hail First Pharma to name a few.
The Defendant may have been at one point in time or at the time of the allege claims, the
president of some of the entities, but unilaterally and arbitrarily lifting the corporate veil is
unconstitutional.
The corporations all have their own bank accounts, brokerage accounts, websites, staff,
internal procedures, clients, assets, liabilities, and have standard corporate formalities,
procedures including in most cases audited financial statements.
The Defendant was an employee, with the title of President, was a minority
shareholder of Hilbroy Advisory, but was not a shareholder of IAB Media, Cunningham-
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Adams Small Cap Fund I, Cunningham-Adams Green Fund, Finkelstein Capital, Al-Dorra,
and or Spencer.
III. ISSUES OF LAW OR FACT AS TO
WHICH THE PARTIES ARE IN AGREEMENT
The factual issues as to which the Parties currently believe they are in substantial
agreement, and for which the Parties intend to confer in good faith about including in a
stipulation, are:
1. The corporate history of Spencer, including Amyots orchestrating the reverse
merger that created Spencer and Amyots initial positions as an officer and director of Spencer;
2. Hilbroys setting up Spencers virtual office in Boston, Massachusetts, including
directing that Spencers mail be forwarded to Hilbroy;
3. Spencers contractual relationship with the Universit du Qubec Montral
regarding research that Spencer would fund;
4. Amyots formal position as President of Hilbroy, IAB, and the Cunningham-
Adams funds;
5. Amyot, as the President of the Cunningham-Adams funds, directing wire transfers
from the Cunningham-Adams funds to various third party stock promoters to carry reports and
other publicity about Spencer; and
6. Hilbroys payment of $500,000 to Spencer, which payment was publicized by
Spencer as a deposit on Al-Doras behalf in connection with the $245 million buyout offer.
The Parties are not currently in substantial agreement about any of the issues of law in
this matter, but intend to continue to confer in good faith about reaching agreement as to one
or more of the elements of the charges at issue.
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IV. PROBABLE LENGTH OF TRIAL
The Parties currently anticipate that the trial will take approximately seven trial days,
starting Monday, November 17, 2014 and concluding approximately Tuesday, November 25,
2014. The Parties intend to make every effort to conclude the trial prior to the Thanksgiving
holiday.

Respectfully submitted,

SECURITIES AND EXCHANGE
COMMISSION,

By its attorneys,

/s/ Rua M. Kelly
Rua M. Kelly (Mass. Bar No. 643351)
J ames R. Drabick (Mass. Bar No. 667460)
33 Arch Street, 23
rd
Floor
Boston, MA 02110
(617) 573-8941 (Kelly direct)
(617) 573-4590 (fax)
Kellyru@sec.gov (Kelly email)

DATED: October 10, 2014
JEAN-FRANOIS AMYOT

/s/ J ean-Franois Amyot







CERTIFICATE OF SERVICE
I, Rua M. Kelly, certify that on October 10, 2014, the foregoing J oint Pretrial
Memorandum was filed electronically with the Court and was served upon J ean-Franois
Amyot, the remaining individual defendant who is appearing pro se, by electronic means.
/s/ Rua M. Kelly
Rua M. Kelly
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