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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: [email protected]
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)