FILE: CV-20-00645699-0000

COURTS OF JUSTICE ACT

ONTARIO
SUPERIOR COURT OF JUSTICE
PRE-TRIAL CONFERENCE MEMO

Between:
SYED MAMUN RAIHAN (Plaintiff)

and

UBS Inc USA (Defendant)

PRE-TRIAL CONFERENCE MEMO

Index:

Tab 1 Pre Trial Memo - Plaintiff - Syed

Mamun Raihan - 24 Jan 2024
Tab 2 Exhibit F - UBS ETRACS Website
from webarchive
Tab 1
PLAINTIFF CLAIMS THAT DEFENDANT KNOWINGLY AND
MALICOUSLY DID NOT PUBLISHED FULL PROSPECTUS ON
THEIR WEBSITE

1. Plaintiff have been invested in MORL for Several Years and Later MORL
was switched to MRRL directly with the bank with the help of Questrade as
brokerage agent.
2. UBS is the Issuer and manager of the ETN (MORL Series A/MRRL Series
B).
3. UBS has significant presence in Canada through Canadian Subsidiary.
4. UBS has significant presence in USA through US Subsidiaries.
5. UBS US Subsidiaries are the manager and issuer of the ETN traded in US
Stock exchanges (Along with UK and Switzerland branches).

6. Plaintiff claims that defendant before their product failed in the stock
market, for several months they have published only MORL Pricing
Supplements as “Prospectus and Supplements”, even though the main
prospectus was not included.

7. Plaintiff have been deceived that it was indeed a full prospectus with
complete information.

Under the Securities Act SECTION 56 (1) - The prospectuses must

have full, true and plain disclosure requirement, to wit:

A prospectus shall provide full, true and plain disclosure of all materials relating to the
securities issued or proposed to be distributed and shall comply with the requirements
of Ontario securities law. R.S.O. 1990, c. S.5, s. 56 (1); 1994, c. 11, s. 367.

And if there would be amendment to prospectus on material change, then the

Securities Act SECTION 57 must be complied with, under Subsection 3:
NOTICE OF AMENDMENT, to wit:
An amendment to a preliminary prospectus referred to in subsection (1) shall,
forthwith after it has been filed, be forwarded to each recipient of the preliminary
prospectus according to the record maintained under section 67. R.S.O. 1990, c. S.5,
s. 57 (3).

Here, there was no full, true and plain disclosure of the prospectus nor
any notice of amendment given to the recipient or public which is
tantamount to the violation of the Securities Act.

8. As a result, plaintiff kept all his money in the investment even on the onset
of COVID-19 pandemic. Lack of Full prospectus, he was thinking that the
call feature would be used in the onset of pandemic. This kind of pandemic
is very rare and happened only once in 100 years in which it could possibly
crash the market.

4. If the Plaintiff had the full prospectus, he could have redeemed his 50000+
units position directly with UBS and would understand the limitation of call
features, that would allow plaintiff to avoid the uncertainty with selling in the
exchange.

Section 130 (1) (entitled “Civil Liability for Secondary Market

Disclosure”) of the Ontario Securities Act provides aggrieved investors who
purchased or sold securities in the secondary trading market an avenue to sue
companies and others responsible, including directors and officers, for alleged
materially false or misleading statements. This established a statutory civil
liability regime for misrepresentation and omission in a public company’s
continuous disclosure, to wit:

Liability for misrepresentation in prospectus

Section 130 (1) Where a prospectus, together with any amendment to the prospectus,
contains a misrepresentation, a purchaser who purchases a security offered by the
prospectus during the period of distribution or during distribution to the public has,
without regard to whether the purchaser relied on the misrepresentation, a right of action
for damages against,

(a) the issuer or a selling security holder on whose behalf the distribution is made;
(b) each underwriter of the securities who is required to sign the certificate required by
section 59;
(c) every director of the issuer at the time the prospectus or the amendment to the
prospectus was filed;
(d) every person or company whose consent to disclosure of information in the
prospectus has been filed pursuant to a requirement of the regulations but only with
respect to reports, opinions or statements that have been made by them; and
(e) every person or company who signed the prospectus or the amendment to the
prospectus other than the persons or companies included in clauses (a) to (d),

or, where the purchaser purchased the security from a person or company referred to in
clause (a) or (b) or from another underwriter of the securities, the purchaser may elect to
exercise a right of rescission against such person, company or underwriter, in which case
the purchaser shall have no right of action for damages against such person, company or
underwriter. R.S.O. 1990, c. S.5, s. 130 (1); 2004, c. 31, Sched. 34, s. 6; 2006, c. 33,
Sched. Z.5, s. 13.

Companies that are reporting issuers in Ontario must regularly make certain
information about their activities available to the public. Thus, a violation of
continuous disclosure to the public would entail statutory civil liability against
the company. It is considered a statutory offense to make a misrepresentation
in any form of publication medium using prospectuses or in the prospectus
itself. Where an issuer discloses an information that is not accurate to a certain
degree, both the issuer and its managers (directors and officers) should be
liable to pay damages to investors who disposed of or who acquired shares of
the issuer during those dates when the inaccurate was made.

Ontario’s statutory scheme for secondary market liability is contained in

Part XXIII.1 of the Securities Act Section 138.3 --

(1) Where a responsible issuer or a person or company with actual, implied

or apparent authority to act on behalf of a responsible issuer releases a
document that contains a misrepresentation, a person or company who
acquires or disposes of the issuer’s security document was publicly corrected
has, without regard to whether the person or company relied on the
misrepresentation, a right of action for damages against,

(a) The responsible issuer;

(b) Each director of the responsible issuer at the time the document was
released;
(c) Each officer of the responsible issuer who authorized, permitted or
acquiesced in the release of the document;
(d) Each influential person, and each director and officer of an influential
person, who knowingly influenced,
(i) The responsible issuer or any person or company acting on behalf
of the responsible issuer to release the document, or
(ii) A director or officer of the responsible issuer to authorize, permit
or acquiesce in the release of the document; and
(e) Each expert where,
(i) The misrepresentation is also contained in a report, statement or
opinion made by the expert,
(ii) The document includes, summarizes or quotes from the report,
statement or opinion of the expert, and
(iii) If the document was released by a person or company other than
the expert, the expert consented in writing to the use of the report,
statement or opinion in the document. 2002, c. 22, s. 185; 2004,
c. 31, Sched. 34, s. 12 (1, 2)

This means that it applies to the securities of a “responsible issuer”, which

defined as:
✓ A reporting issuer (that is, an issuer that has offered shares to the public
and is subject to continuing disclosure obligations) in Ontario.
✓ Any other issuer that has a real and substantial connection to Ontario with
securities that are publicly traded.
In the case at bar, the claim that UBS did not market the Securities in Canada
holds no water. UBS in this case has a real and substantial connection to
Ontario with securities that are publicly traded. If there has been a
misrepresentation in a “core” document such as Prospectuses (or part of it
published as a full prospectus), then a claim for damages can be brought
against the responsible issuer by showing that there was a misrepresentation
in the document. Likewise, if the claim relates to an alleged failure to make
timely disclosure, then liability still attaches to the responsible issuer. The
claimant must show that one of the following applies:

✓ The defendant knew of the change and that the change was a material
change at the time that the failure to make timely disclosure first occurred;
✓ The defendant deliberately avoided acquiring knowledge of the change or
that the change was a material change at the time or before the failure to
make timely disclosure first occurred; or
✓ The defendant engaged in gross misconduct in connection with the failure
to make timely disclosure.

SECURITIES ACT SECTION 57 (1) provides that:

Where a material adverse change occurs after a receipt is obtained for a
preliminary prospectus filed in accordance with subsection 53 (1) and before
the receipt for the prospectus is obtained or, where a material change occurs
after the receipt for the prospectus is obtained but prior to the completion of
the distribution under such prospectus, an amendment to such preliminary
prospectus or prospectus, as the case may be, shall be filed as soon as
practicable and in any event within ten days after the change occurs. R.S.O.
1990, c. S.5, s. 57 (1); 2007, c. 7, Sched. 38, s. 3 (1).

During written discovery, UBS did not answer nor deny that they have been
publishing partial prospectus as shown in web archive sites (See Exhibit F)
compared to the linked file which is only for Pricing supplement MORL. It
only shows that there was misrepresentation in the said prospectus. Likewise,
in the request to admit and the request for documents related to partial
material publishing, UBS have not denied their failure either.

In the case of Kerr v. Danier Leather Inc., [2007]1, disclosure is a matter of

legal obligation, and there must be distinction between “material change” and
“material fact” which is deliberate and policy-based. If a material change arises
during the period of distribution, failure to disclose this change as required by
Section 57(1) could support an action under Section 130(1). The disclosure
requirements under the Act are not to be subordinated to the exercise of

1
3 S.C.R. 331, 2007 SCC 44
business judgment. It is for the legislature and the courts, not business
management, to set the legal disclosure requirements.

Here, the core document such as the prospectus with regard to partial
publishing in their website is considered a material change, and not a material
fact which is in violation of Section 130(1) of Securities Act. UBS has
continued to misrepresent the prospectus in their website as provided in the
Exhibit F.

Moreover, the Wayback machine presents all the saved web pages in a
timeline. In litigation, crafty people have sought to use the Wayback machine
to obtain a snapshot of how a website appeared at a specific point in time.
It is used to see how a website looked at a certain point in time to assess their
arguments. In the case of Flynn v. Health Advocate, Inc.2, the issue was a
trademark dispute: the plaintiff alleged that the defendant violated the
plaintiff's trademark rights. The defendant's lawyers, using the Wayback
Machine, were able to determine that the plaintiff's arguments were flawed.
Ultimately, the defendant was successful. In the case of Healthcare
Advocates, Inc. v. Harding, Earley, Follmer & Frailey 3, after the case was
decided, the plaintiff sued the defendant's lawyers for "hacking" the plaintiff's
website and (1) violating the plaintiff's copyright, (2) violating the Computer
Fraud and Abuse Act, and (3) committing the torts of Conversion and
Trespass to Chattels. The court rejected all the plaintiff's claims.

These two cases demonstrate that Wayback machine can be used as a tool for
assessing the strengths of another’s arguments. For instance, the Northern
District Court of California in Parziale v. HP, Inc.4, noted that "district
courts in this circuit have routinely taken judicial notice of content from the
Internet Archive's Wayback Machine." The court reasoned that "the contents
of web pages available through the Wayback Machine [are] facts that can be
accurately and readily determined from sources whose accuracy cannot
reasonable be questioned." Likewise, the court In re Facebook, Inc., 405 F.
Supp. 3d 809, 829 (N.D. Cal. 2019), took judicial notice of Facebook's 2013
Data Policy obtained through the Wayback Machine.

Hence, the partial publishing of the prospectus in their website is already in

violation to the mandatory disclosure of the prospectus.

2
No. 03-3764, 2005 U.S. Dist. LEXIS 1704 (E.D. Pa. Feb. 8, 2005
3
497 F. Supp. 2d 627, 630 (E.D. Pen. 2007)
4
No. 5:19-cv-05363-EJD, 2020 U.S. Dist. LEXIS 179738, at *5 (N.D. Cal.
Sep. 29, 2020)
Furthermore, the Consumer Protection Law in Ontario provides the Anti-
avoidance law, the mandatory disclosure of information, the ambiguities to
the benefit of the consumer and the prohibition against unfair practices, to
wit:

ANTI-AVOIDANCE LAW
Section 3 -- In determining whether this Act applies to an entity or
transaction, a court or other tribunal shall consider the real substance of the
entity or transaction and in so doing may disregard the outward form. 2002,
c. 30, Sched. A, s. 3; 2008, c. 9, s. 79 (2).

DISCLOSURE OF INFORMATION
Section 5 (1) If a supplier is required to disclose information under this Act,
the disclosure must be clear, comprehensible and prominent. 2002, c. 30,
Sched. A, s. 5 (1).

This most commonly used Consumer Protection Act that requires

suppliers to, prior or at the time of executing a consumer agreement -
and sometimes on an ongoing basis, provide clear, detailed and
specific information regarding the terms of the arrangement.

In the case at bar, there was no clear, comprehensible and prominent

disclosure of the prospectus which is in violation of the Consumer
Protection Law.

CONSUMER RIGHTS AND WARRANTIES

Rights reserved
Section 6 Nothing in this Act shall be interpreted to limit any right or remedy
that a consumer may have in law. 2002, c. 30, Sched. A, s. 6.

No waiver of substantive and procedural rights

Section 7 (1) The substantive and procedural rights given under this Act
apply despite any agreement or waiver to the contrary. 2002, c. 30, Sched. A,
s. 7 (1).
AMBIGUITIES TO BENEFIT CONSUMER

Section 11 Any ambiguity that allows for more than one reasonable
interpretation of a consumer agreement provided by the supplier to the
consumer or of any information that must be disclosed under this Act shall
be interpreted to the benefit of the consumer. 2002, c. 30, Sched. A, s. 11.
To emphasize again, any ambiguities must be in favor or for the benefit
of the consumer.

Section 13
Material change deemed unsolicited
(4) If a consumer is receiving goods or services on an ongoing or periodic
basis and there is a material change in such goods or services, the goods or
services shall be deemed to be unsolicited from the time of the material
change forward unless the supplier is able to establish that the consumer
consented to the material change. 2002, c. 30, Sched. A, s. 13 (4).

Form of consent
(5) A supplier may rely on a consumer’s consent to a material change that is
made orally, in writing or by other affirmative action but the supplier shall
bear the onus of proving the consumer’s consent. 2002, c. 30, Sched. A,
s. 13 (5).

Here, the change in the terms of the prospectus has NO CONSENT from
the consumer, thus, the responsible issuer which is the UBS has the burden
to prove the plaintiff’s consent towards the material change in the prospectus.

PART III
UNFAIR PRACTICES

False, misleading or deceptive representation

Section 14 (1) It is an unfair practice for a person to make a false, misleading

or deceptive representation. 2002, c. 30, Sched. A, s. 14 (1).

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or

deceptive representation, the following are included as false, misleading or
deceptive representations.

15. A representation that misrepresents the purpose or intent of any

solicitation of or any communication with a consumer.
16. A representation that misrepresents the purpose of any charge or
proposed charge.
17. A representation that misrepresents or exaggerates the benefits that
are likely to flow to a consumer if the consumer helps a person obtain
new or potential customers. 2002, c. 30, Sched. A, s. 14 (2).
The misrepresentation in the prospectus constitutes unfair practice which is
in violation under the Consumer Protection Law.
Tab 2
3/1/22, 2:08 PM
Exhibit F UBS ETRACS

The Wayback Machine - http://web.archive.org/web/20190119123042/https://etracs.ubs.com/

S & P 500 1.32% Dow Jones 1.38% NASDAQ 0.98% 10 Yr Bond 1.27% Gold -- Oil 2.97%

2,670.71 24,706.35 6,784.608 2.78 1,280.71 53.76

What are ETRACS ETNs?
Source Info

ETRACS Exchange Traded Notes are senior, unsecured, unsubordinated debt securities that are designe
the total return of a specific market index, less investor fees. An investment in ETRACS ETNs involves ris
including possible loss of principal, and may not be suitable for all investors. We urge you to read the mor
detailed explanation of these risks as described under “Risk Factors” in the prospectus and applicable
supplements thereto.

Prospectus and
Prospectus Supplements *

Series B ETRACS ETNs

AMUB BDCZ LBDC MLPB MLPQ

MLPZ MRRL OILX PFFL PYPE

SMHB UCIB WTID WTIU

AMU BDCL BDCS CEFL DJCI

DVHL DVYL FUD HDLV HOML

LMLP LRET MLPG MLPI MORL

SDYL SMHD UAG UBG UCI

USV

*The table above provides a hyperlink to the relevant

prospectus and supplements thereto for each of our
ETRACS ETNs, which are identified by their ticker

web.archive.org/web/20190119123042/https://etracs.ubs.com/ 1/2
3/1/22, 2:08 PM UBS ETRACS

Series A ETRACS ETNs **

symbols. For more information on each ETRACS ETN,

see List of ETNs

** On October 8, 2015, UBS announced the suspension

of new issuances in all Series A ETRACS. For
important information relating to this announcement,
see UBS Statement on Series A ETRACS ETNs

web.archive.org/web/20190119123042/https://etracs.ubs.com/ 2/2
Syed Mamun Raihan. And UBS Inc USA File:CV-20-00645699-
0000
Plaintiff Defendant

ONTARIO SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED AT Toronto, ON

PRE-TRIAL CONFERENCE MEMO

Plaintiff:

Syed Mamun Raihan

615-273 Pharmacy Ave, Toronto

ON M1L3E9
Syed_raihan@icloud.com
647.545.5705

Defendant:

UBS USA Inc

Stikeman Elliot LLP 5300 Commerce Court

West
199 Bay Street, Toronto, Canada, M5L 1B9
Daniel S Murdoch LSO# 53123L,
Ritika Rai LSO# 80197K