Faculty of Liberal Arts and Professional Studies (LAPS)

School of Administrative Studies (SAS)

York University

Winter 2017

AK/ADMS 3620M 3.0

ELEMENTS OF LAW: PART II

Instructor: Jack J. Bensimon, B.A. (Hon.), LL.M. (Sec), LL.M. (Gen), LL.M. (Bus), CIMA, CAMS

Office Hours: Friday’s, 6 p.m.—7p.m. (* or another day by appointment only)

Atkinson College, Room 242

Email: jackllm@yorku.ca

Date: Friday’s - Jan 6, 2017 – March 31, 2017

Time: 7-10 pm

Location: ACE 009

Introduction: What You Can Expect

This advanced business law course has been redesigned, building on the foundation

established in ADMS 2610, with the intent of being among one of the most important and

useful courses you will take in your undergraduate career, and beyond. Your instructor

has been carefully selected to teach this comprehensive advanced business law

curriculum.

This course will place emphasis on securities law, a subset of corporate law. There is a

distinct and important relationship between corporate law and securities law. Many

theoretical constructs of securities law have foundational elements from corporate law

that have existed and evolved through jurisprudence and advances in capital markets.

Workload Expectations

This is a demanding course. Readings will average 80-90 pages per week. You should

plan to spend 10-12 hours a week on this course. You will quickly be required to

familiarize yourself with reading and analyzing leading business law cases and legal

analysis in the beginning few lectures, which will remain essential when engaging in

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debate in subsequent lectures and understanding of the practical consequences which

follow. Advance preparation is therefore essential in order to contribute effectively and

achieve full value from the course.

Required Textbooks/Materials

Mary Condon, Anita Anand, Janis Sarra, Securities Law in Canada: Cases and

Commentary, 2nd ed. (2010) – $110 + HST. This is referred to as “Securities Law”.

Jan Weir, Fran Smyth, Critical Concepts of Canadian Business Law, 6th ed. (2015) -

$102 + HST. This is referred to as “Corporate Law”.

Course Description

This course examines more advanced topics of corporate law with emphasis on areas

related to the organization and management of business relations.

Against this legal background, various legal principles and theories are examined to equip

the student with the ability to analyze and define legal issues. Lectures and discussions

will be used to illustrate the legal concepts discussed.

Course Content – Scope of Coverage

There are 12 Sessions of lectures to cover during the twelve (12) week term. The pace

will be rapid. Please do not fall behind. It is expected that the students will complete the

lecture units and the weekly case readings as described below.

Course Evaluation

Your final course grade will be calculated as follows:

Item Weight Date

Class Participation 15% [Throughout]

Weekly Case Summaries (top 8/10) 10% [Throughout]

Mid-Term Exam: 30% Feb 17, 2017

Group Assignment 5% March 17, 2017

Final Exam: 40% Exam Period – TBD

TOTAL: 100%

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Learning Objectives

There are eight (8) fundamental learning objectives for this course:

(1) To be able to, as a businessperson or manager, read, understand, interpret

and apply relevant statutes and case law to factual circumstances;

(2) To understand the work product provided by, and instruct, outside or

internal counsel, as a reasonably sophisticated buyer of legal services, on

behalf of the organization employing you, or yourself;

(3) To distinguish among fundamental areas of securities law relating to

public companies on leading Canadian (TSX/TSX-V), US exchanges

(NYSE/NASDAQ/AMEX), and capital market alternatives (ATS –

Alternate Trading Systems);

(4) To appreciate and understand the evolution of global capital markets on

domestic capital markets and its pervasive effect on securities law and

corporate law developments;

(5) To distinguish between securities law and corporate law issues,

circumstances, and risks within their respective statutes;

(6) To distinguish between legal issues (i.e., securities law and corporate law)

and business issues to ensure their separation;

(7) To develop your analytical skills in communicating balanced, clear and

succinct legal analysis; and

(8) To develop cogent and succinct case summaries to enable learning of case

principles and case-law.

Objectives and Purpose

This course is specifically designed to equip you with the tools and conceptual

frameworks needed to understand the legal roles, responsibilities and liabilities of

multiple parties within a business setting. It will be integrated with your other functional

courses in business ethics, strategy, finance, organizational behaviour, marketing, etc. and

it is expected that you will integrate this knowledge within the course.

Students will be expected to demonstrate an ability to think critically, analyze legal

problems and communicate their thoughts at a reasonably sophisticated level of

effectiveness and logic, orally and in writing.

Students will also be expected to engage in the practical application of legal concepts in

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order to develop skills that will aid them in their business or managerial environment

and/or their chosen career.

Instruction Method

The focus of the course will be on the readings provided in both textbooks, lectures and

class discussions. Ideas and concepts in business law – many of which simply are not

confined to any one particular text – will be introduced via leading business case

decisions and during the lectures. Lecture attendance is crucial. The lectures and slide

decks are aimed at supplementing the readings, while not serving as a substitute.

Weekly Case Brief Participation:

This course will be taught mainly through theoretical constructs, case analysis, and

practical industry experience in managing a public company reporting to the OSC and

SEC. Each section will contain a number of cases, legal principles, and statutory

interpretation to highlight legal analysis, decisions, and jurisprudence.

Weekly Class Participation and Expectations (15%)

The focus is on quality and not quantity of participation. Your participation grade will

depend on contribution and demonstration of the following attributes:

1. Judgment - Regular, consistent, and sustained participation demonstrating insights

and sound judgment;

2. Attendance - for each entire class;

3. Insights - Communicate insights on cases, commentaries, and theoretical

constructs;

4. Application - Relate concepts and cases to current business examples and

environment;

5. Opposition - Challenge the views of peers and instructor while providing a logical

and defensible position to support opposing views;

6. Oral Discourse - Attention to detail in analytical rigor and sophistication of oral

discourse;

7. Synthesis and Brevity - Ability to synthesize complex concepts and explain to

peers and instructor in brief, plain language; and

8. Theory to Practice - Ability to apply theoretical constructs to everyday business

situations and career decisions.

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Participation Grading Scheme:

It is important to have your name card placed on your desk for all classes to ensure you

are properly credited for the participation component.

There are four categories of mark allocation in the participation component: Poor, Fair,

Good, and Excellent.

Poor: 0-4 The student attends some but not all classes but rarely provides meaningful or

insightful participation.

Fair: 5-8 The student attends some but not all classes and occasionally provides

meaningful or insightful participation.

Good: 9-12 The student attends all classes and regularly provides meaningful or

insightful participation.

Excellent: 13-15 The student attends all classes and regularly provides exceptional

insights, thereby raising the level of analysis for both the class and instructor.

Weekly Case Summaries (10%)

You are required to submit weekly case summaries of a single case highlighted for each

class. The best eight (8) of ten (10) will count towards your allocation of 10% for this

component.

Case outlines must follow the following format in 12 font, standard 8.5 x 11” margins,

and must include the following headers, not exceeding one page in length:

I. Facts;

II. Legal Issues;

III. Statutory Application;

IV. Analysis; and

V. Conclusion

Case summaries will be allocated one of four grades: 0, 1, 2 or 3.

Poor: 0 The student failed to demonstrate any key aspects of the required headers;

Fair: 1 The student showed some but not all elements of the headers to provide

meaningful or insightful case summary;

Good: 2 The student demonstrated clear application of concepts and class lessons to

provide meaningful or insightful case summary.

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Excellent: 3 The student demonstrated exceptional insights, thereby raising the level of

analysis for the case summary.

Group Case Analysis (5%) – March 17, 2017

You are required to organize into a group between 3-5 students to analyze a case not

exceeding more than two (2) pages in length, following the outline of weekly case

summaries. Grading will be accorded the same as the weekly case summaries.

Each group will be given a different case study to examine. A group leader is required to

present its case in five (5) minutes or less to the class.

Mid-Term Exam (30%) – February 17, 2017 – 7-9:30 pm

A written closed book 2.5-hour Mid-Term Exam, which will comprise 30% of your

overall course grade, will be completed during Session 6 (February 17, 2017 – 7-9:30

pm).

The Mid-Term Exam will consist of a combination of multiple-choice, short answer, and

case analysis. For those who have previously enrolled in ADMS 2610 Elements of Law:

Part I (3.0), co-taught with Jack Furman, you are familiar with the style and content of

such exams.

The Mid-Term Exam will require you to parse a fact scenario and identify issues from the

perspective of a person in an affected company receiving advice from counsel. For

example, you may be provided with a fact scenario that evokes a case you may have

studied, a sketch of what outside counsel is advising under the circumstances, and you

will be required to respond to the advice based on your understanding of the case and the

issues arising from it.

The purpose of the mid-term exam is to assess whether you understand the relevant

case(s), legal principles, issues and can critique the advice you are given.

Final Exam (40%) – During Final Exam Period - TBD

A written closed book 3-hour Final Exam, which will comprise 50% of your overall

course grade, will be completed during the final examination period. The final exam is

cumulative of the entire course. The estimated distribution for the final exam is 25%

term work, 75% from post mid-term exam.

The Final Exam will consist of a combination of multiple-choice, short answer, and case

analysis. For those who have previously enrolled in ADMS 2610 (3.0)- Elements of Law

I, co-taught with Jack Furman, you are familiar with the style and content of such exams.

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The Final Exam will require you to parse a fact scenario and identify issues from the

perspective of a person in an affected company receiving advice from counsel. For

example, you may be provided with a fact scenario that evokes a case you may have

studied, a sketch of what outside counsel is advising under the circumstances, and you

will be required to respond to the advice based on your understanding of the case and the

issues arising from it.

The purpose of the final exam is to assess whether you understand the relevant case(s)

and issues and can think critically about the advice you are given.

Instructor Role for Case Discussions

Your instructor will be available to discuss any questions you may have in connection

with any cases, concepts, or principles.

The role of your instructor during the analysis of cases would be to facilitate the

discussion and troubleshoot students’ understanding of the case(s) and area of law,

explaining and answering questions about the case as required.

Your instructor will devote the remainder of the Session, after the conclusion of the Case

Analysis, via PowerPoint slides and other instructional aids, to a primer on the area of

law and statutory / regulatory framework for the following Session’s topic and case(s),

with a view to ensuring that students have some legal context for understanding and

interpreting the case(s) they have to read next.

The Role of Selected Guest Speakers – Bridging Theory and Practice

For selected topics, guest speakers have been carefully chosen to add depth, breadth,

experience, and to bring a practical component to the various theoretical constructs.

Securities law, like any other branch of law, cannot be fully understood and appreciated

without real-life examples brought to bear by seasoned professionals. The guest speakers

have extensive experience by working in various verticals of the securities

industry/capital markets. These “on-the-ground” professionals will be instrumental in

bringing to life the various principles and theories in the course. The theoretical

constructs discussed in the course have real and important application and implications in

the real world.

Guest Speaker Roster:

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Medical Documentation

If the Mid-term Exam and/or Final Exam is missed due to illness, appropriate

documentation must be provided to your course instructor within five (5) business days of

the respective Examination.

The only acceptable documentation that can be used to support an absence due to illness

is an Attending Physician’s Statement dated within two days of the missed examination.

A soft copy of this form is available from the Registrar’s website at:

http://www.atkinson.yorku.ca/Council/Students/physicianStatement.pdf

Please note that a “doctor’s note”, typically written on a prescription pad, is not

acceptable.

All medical documentation must be submitted to Atkinson College, 2nd floor, reception.

For your privacy protection, the instructor is prohibited from reviewing or accepting such

documentation.

Policy on Missed Evaluations (Mid-Term, and/or Final Exam)

If a mid-term is written and the course is not dropped by the drop date, then the mid-term

mark will count towards the final grade. If the student does not write the mid-term and is

accompanied by a proper doctor’s note submitted and approved by administration, the

mid-term exam weight (30%) will be transferred to the final exam. There is no make-up

mid-term exam.

It is my experience that, as a general rule, students who miss either forms of evaluation,

generally don’t perform as well as students who write both evaluations. A final exam

weighting of 70% imposes significant pressure for most students to perform at least

satisfactory. The exercise of writing these exams should improve your performance in

this course.

It is prohibited under faculty guidelines for students to write a 100% final exam. Under

no circumstances will this be allowed. If you miss BOTH the mid-term and final exam,

you may be required to appeal for special considerations to be made. No guarantees or

assurances are provided. This can be a lengthy process.

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AK/ADMS 3620M (3.0) Course Outline Est Wt

PART ONE: INTRODUCTION – LEGAL FRAMEWORK OF ANALYSIS 10%

Session 1 Jan 6, 2017 LEGAL ANALYSIS: Frameworks and Problem-Solving

FOUNDATIONS OF SECURITIES REGULATION

PART TWO: DUTIES AND OBLIGATIONS OF CORPORATIONS (Jan 13-Feb 10) 75%

Session 2 Jan 13, 2017 ADVANCED CORPORATE GOVERNANCE: COMPETING STAKEHOLDER 15%

Session 3 Jan 20, 2017 OFFICERS’ AND DIRECTORS’ LIABILITY 15%

Session 4 Jan 27,, 2017 THE PROSPECTUS PROCESS: PART I 10%

Session 5 Feb 3, 2017 THE PROSPECTUS PROCESS: PART II 10%

Session 6 Feb 10, 2017 CONTINUOUS DISCLOSURE OBLIGATIONS 25%

Session 7 Feb 17, 2017 Mid-Term Exam (30%, 2.5 hours, multiple-choice, short answer, case

analysis)

PART THREE: ENFORCEMENT REMEDIES – Corporate Law/Securities Law

(Mar 3 – Mar. 24) 65%

Session 8 Mar 3, 2017 PUBLIC ENFORCEMENT; Mid-term Exam Review 20%

Session 9 Mar 10, 2017 INSIDER TRADING 20%

Session 10 Mar 17, 2017 THE OPPRESSION REMEDY 10%

Session 11 Mar 24, 2017 CLASS ACTION LITIGATION 10%

10%

Session 12 Mar 31, 2017 INTERNATIONAL SECURITIES REGULATION 10%

Term Work 25%

The Term Work is decomposed with the following estimates:

The Prospectus Process 10%

Advanced Corporate Governance 5%

Officers’ & Directors’ Liability 5%

Continuous Disclosure Obligations 5%

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AK/ADMS 3620 (3.0) – Elements of Law: Part II

Sessions, Topics, Readings and Cases

PART ONE: INTRODUCTION

Session 1 LEGAL ANALYSIS: Frameworks and Problem-Solving

Jan 6 INTRO TO ADVANCED CORPORATE LAW

INTRO TO SECURITIES LAW

Legal Problem Solving: Frameworks and Problem-Solving

What problems are we aiming to solve in securities law issues/cases? What is

the scope of stakeholders?

What is the relationship between corporate law and securities law? Why is it

important for understanding the business environment?

What is a security and its definitional scope? How do regulations vary for

different types of securities?

What are some key cross-border differences in securities rules and

regulations when comparing the Canadian and US securities regulatory

regimes? Where and how are securities law precedents established?

How do the broad policy objectives of securities regulation impact court

decisions and enforcement outcomes?

Why should we care about securities law developments and their impact on

capital market activity and behavior?

What problems are we aiming to solve in securities law issues/cases? What is

the scope of stakeholders?

What are the limitations of securities regulation? What are recent trends in

international securities regulation?

What role do regulators serve in guiding securities legislation? Should other

constituent bodies participate in enforcing securities regulation?

Why is securities regulation consumer protection oriented while banking

legislation is prudential (i.e., safety and soundness) oriented?

How is finance and securities law integrated in understanding the policy

rationale of securities legislation?

How do the broad public policy objectives of corporate law differ from or

intersect with the public policy objectives of securities law?

What role does SEDI play in preserving insider trading reporting and

integrity?

How does corporate law interfere with the objects of securities law? How is

this reconciled (if at all)?

Who is responsible for enforcing securities laws – governments, securities

regulators, law enforcement, courts, or a hybrid of these?

Securities Law: Introduction (pp. 1-28); Chapter 1: Foundational Concepts (p. 29-77)

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Corporate Law: Chapter 2: The Canadian Court System (pp. 43-73)

Supplement: TBD

PART TWO: STATUTORY DUTIES AND OBLIGATIONS OF ISSUERS

Session 2 ADVANCED CORPORATE GOVERNANCE - COMPETING

STAKEHOLDERS AND CONTINUOUS DISCLOSURE

Jan 13 Guest Speaker: Glenn Keeling, Managing Director, CST Trust

Company

Securities Law: Chapter 7: Securities Regulators and Corporate Governance (pp. 427-

478)

Corporate Law: Chapter 10: Corporate Law and White Collar Crime (pp. 375-388)

Supplement: TBD

Cases: Re Pacifica Papers Inc.(2001), US Gold Corp v. Atlanta Gold Corp (1989),

Kripps v. Touche Ross & Co. (1997), BCE v. 1976 Debentureholders (2009)

Session 3 OFFICERS’ AND DIRECTORS’ LIABILITY

Jan 20

Securities Law: NA

Corporate Law: Chapter 10: Corporate Law and White Collar Crime (pp. 389-421)

Cases: Re Magna International, Re: Deloitte & Touche

Session 4 THE PROSPECTUS PROCESS – PART I

Jan 27

Securities Law: Chapter 4: The Prospectus Process (pp. 219-306); Chapter 5: Exempt

Market Transactions (pp. 315-354)

Corporate Law: NA

Supplement: TBD

Cases: Kerr et al v. Danier Leather Inc., Silver v. IMAX Corp (2009)

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Session 5 THE PROSPECTUS PROCESS – PART II

Feb 3

Securities Law: Chapter 6: Continuous Disclosure (pp. 355-426)

Corporate Law: NA

Supplement:

Cases: In the Matter of Research in Motion et al, Pezim v. British Columbia

(Superintendant of Brokers), Kerr v. Danier Leather Inc., Re AiT Advanced

Information Technologies Corp, YBM Magnex International

Session 6 CONTINUOUS DISCLOSURE OBLIGATIONS

Feb 10

Securities Law: Chapter 9: Takeover Bids (pp. 525-595)

Corporate Law: NA

Cases: Neo Materials Technologies Corp (Re) (2009), Pulse Data (Re) (2007), Magna

International (Re) (2010), CW Shareholdings v. CIW Western International

Communications Ltd., Re Canfor Corp, BCE v. 1976 Debentureholders (2009),

TMX Group (2011),

Session 7 Mid-Term Exam (30%, 2.5 hours, multiple-choice, short answer, case

Feb 17 analysis)

PART THREE: ENFORCEMENT REMEDIES – Corporate Law / Securities Law

Session 8 PUBLIC ENFORCEMENT; Mid-Term Exam Review

Mar 3

Securities Law: Chapter 11: Enforcement (pp. 641-726)

Corporate Law: NA

Supplement: Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates, SEC Finalizes

Rules Implementing Whistleblower Bounty Program, June 14, 2011

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Cases: Deloitte & Touche LLP v. OSC, R v. Drabinsky, R v. Harper, R v. Landen,

Wilder v. OSC, Re Canadian Tire Corp, Donnini v. OSC

Session 9 INSIDER TRADING

Mar 10

Securities Law: Chapter 10: Civil Liability (pp. 597-639); Chapter 8: Insider Trading

(pp. 479-523)

Corporate Law: NA

Supplement: Arturo Bris, “Do Insider Trading Laws Work?”, European Financial

Management Vol. 11(3) 2005,

Cases: Re Donnini, Re Harold Connor, Lewis v. Fingold, R v. Harper; Re Donald; Re

Moore; Re Finkelstein; R. v. Landen, 2008 ONCJ 561; Re Suman. 1; Re

Hariharan; R. v. Pezim;

Session 10 THE OPPRESSION REMEDY

Mar 17

Securities Law:

Corporate Law: NA

Cases: Kerr v. Danier Leather Inc. (2007), Escott et al v. BarChris Construction Corp et

al

Session 11 CLASS ACTION LITIGATION

Mar 24

Securities Law: NA Whistleblower Protection Programs – SEC/OSC

Corporate Law: Chapter 10: Corporate Law and White Collar Crime (pp. 382-383, 391-

392)

Supplement: TBD

Cases: BCE v. 1976 Debentureholders Inc. (2009), Brant Investments Inc. v. Keeprite Inc.

(1999), SinoForest, Carom et al v. Bre-X Minerals Corp (1998), Kerr et al v.

Danier Leather Inc.

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Session 12 INTERNATIONAL SECURITIES REGULATION

Mar 31

We examine securities regulation from an international perspective across various

regulatory regimes spanning US (SEC - Securities & Exchange Commission), UK (FSA –

Financial Services Authority), European Union (ESMA – European Securities & Market

Authority), Australia (ASIC - Australian Securities & Investments Commission). The

purpose of this session is to draw a comparative analysis of the similarities and

differences among the regimes within the context of the Canadian provincial securities

regime.

Securities Law:

Corporate Law:

Supplement: [Portal]

Cases: TSC Industries, Inc. v. Northway, Inc. (“Northway”), 426 U.S. 438 (1976); SEC

v. Joseph Schiltz Brewing Co. (“Schiltz”), 452 F. Supp. 824 (E.D. Wis. 1978)