Cullinan v. Cemtrex, Inc.

287 F. Supp. 3d 277
CourtDistrict Court, E.D. New York
DecidedMarch 9, 2018
DocketNo 17–CV–1067 (JFB) (AYS)
StatusPublished
Cited by2 cases

This text of 287 F. Supp. 3d 277 (Cullinan v. Cemtrex, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cullinan v. Cemtrex, Inc., 287 F. Supp. 3d 277 (E.D.N.Y. 2018).

Opinion

Joseph F. Bianco, District Judge

Presently before the Court are two competing motions requesting that the Court (1) consolidate three related securities class actions,1 (2) appoint movant as lead plaintiff, and (3) approve movant's selection of lead counsel, pursuant to Section 21D of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"). The pending motions were filed in Cullinan , the first-filed action, one by Umang Khetarpal, Benjamin Webb, Gang Chen, Timothy Heath, and Minh Nguyen (collectively, the "Cemtrex Investor Group")2 (ECF No. 20),3 and the *280other by Zarrin Nelson ("Nelson," and together with the Cemtrex Investor Group, "movants") (ECF No. 23). The Cemtrex Investor Group and Nelson filed their motions on behalf of a putative class of purchasers of Cemtrex, Inc. ("Cemtrex" or the "Company") securities4 during the period of defendants' alleged Exchange Act violations.5 Defendants include Cemtrex, as well as Cemtrex's Chief Executive Officer, Saagar Govil, Executive Director, Aron Govil, and Vice President of Finance and Principal Financial Officer, Renato Dela Rama.

First, because the Court finds that the three class actions present common questions of law and fact, and consolidation would serve the interests of judicial economy, the Court grants the motions to consolidate. Second, based on its determination that the Cemtrex Investor Group has the largest financial interest, and that the presumption under the PSLRA that the Cemtrex Investor Group is "the most adequate plaintiff" to represent the class has not been rebutted, the Court appoints the Cemtrex Investor Group as lead plaintiff. Finally, the Court approves the Cemtrex Investor Group's selection of Levi & Korsinsky, LLP, as lead counsel. 15 U.S.C. § 78u-4(a)(3)(B)(v).

I. BACKGROUND

A. The Securities Class Actions

According to the complaints, Cemtrex is a technology company, or a self-described "world leading industrial and manufacturing company" that provides electronic manufacturing services for "advanced electric system assemblies, instruments & emission monitors for industrial processes, and industrial air filtration and environmental control systems." (ECF No. 1 ("Cullinan Compl.") ¶¶ 2, 19-20; Monteil , ECF No. 1 ("Monteil Compl.") ¶ 2; Guerrier , ECF No. 1 ("Guerrier Compl.") ¶¶ 7, 16.) Plaintiffs brought the instant actions on February 24, 2017, following the February 22, 2017 publication of a blog post entitled "Cemtrex: Documents And Photos, All Signs Point To Deception And Failure," on SeekingAlpha.com ("Seeking Alpha "), a popular investing website. (Cullinan Compl. ¶ 29; Monteil Compl. ¶ 28; Guerrier Compl. ¶ 20.) The Seeking Alpha post claimed that Cemtrex was involved in conduct that the U.S. Securities and Exchange Commission (the "SEC") had previously found, with regard to other companies, to be fraudulent. (Id. ) The post discussed problematic conduct and omissions including payments by "Cemtrex insiders" that were not disclosed to investors, and which had resulted in securities fraud suits in similar cases; the apparent failure to disclose insiders' sales of shares; and fraudulent conduct by Cemtrex's auditor. (Cullinan Compl. ¶ 29.) Plaintiffs allege that, "on this news" (or "in reaction to the shocking disclosures" in the Seeking Alpha post), the price of Cemtrex common stock fell $1.72 per share, or 33.5%, "on unusually heavy trading volume" that same day.6 (Id. ¶ 30; Monteil *281Compl. ¶ 31; Guerrier Compl. ¶ 21.)

Plaintiffs filed their complaints in the three related actions on February 24, 2017, claiming in each that defendants violated the Exchange Act through their materially false and/or misleading statements and failure to disclose material adverse facts about Cemtrex's "business, operations, and prospects" during the class period, in violation of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder. (Cullinan Compl. ¶¶ 26, 49-59; Monteil Compl. ¶¶ 23, 53-63; Guerrier Compl. ¶¶ 19, 32-41.) Plaintiffs name the same defendants in all three actions. (Cullinan Compl. ¶¶ 14-17; Monteil Compl. ¶¶ 15-18; Guerrier Compl. ¶¶ 7-10.) In addition to their Exchange Act claim against all defendants, plaintiffs in the three actions bring a separate claim against the individual defendants, whom they allege acted as controlling persons and are liable for violating Section 20(a) of the Exchange Act. (Cullinan Compl. ¶¶ 60-63; Monteil Compl. ¶¶ 64-67; Guerrier Compl. ¶¶ 42-47.) Plaintiffs in the three actions bring their claims on behalf of a putative class of investors (the "class") who had acquired Cemtrex securities during the class period and suffered damages as "a direct and proximate result of Defendants' wrongful conduct." (Cullinan Compl. ¶¶ 31, 56, 59; Monteil Compl. ¶¶ 32, 60, 63; Guerrier Compl. ¶¶ 23, 38, 40.)

Plaintiffs' factual allegations are largely similar. All three complaints describe the same alleged "scheme" to "deceive the investing public," through which defendants caused the class to purchase Cemtrex's common stock at artificially inflated prices. (Cullinan Compl. ¶ 50; Monteil Compl. ¶ 54; Guerrier Compl. ¶¶ 35, 38.) Among other overlapping allegations, the complaints all point to the same alleged failure to disclose:

(1) that Source Capital was at risk of having its registrations terminated for wrongdoing; (2) that the Company was utilizing paid stock promoters to artificially inflate the price of the Company's stock; (3) that Aron Govil, a member of the Company's Board of Directors, was secretly paying stock promoters via an undisclosed entity; (4) that Company insiders were selling their stock during the paid promotion, taking advantage of the artificially inflated stock price; (5) that the Company's purported audit firm claimed to operate at a location that was actually vacant; (6) that the controlling partner behind the Company's auditor was banned by the SEC and [the Public Company Accounting Oversight Board ("PCAOB") ] for conducting fraudulent audits or reviews of public companies while performing little or no work and without being licensed; (7) that the Company's auditor was signing off on the Company's financial disclosures without conducting a proper review; and (8) that, as a result of the foregoing, Defendants' statements about Cemtrex's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis.

(Cullinan Compl. ¶ 7; Monteil Compl. ¶ 3, 30; Guerrier Compl. ¶¶ 19, 20.)7

*282Though largely similar, the three complaints vary in certain respects. Most significantly, the complaints all use different class periods: Cullinan

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Bluebook (online)
287 F. Supp. 3d 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullinan-v-cemtrex-inc-nyed-2018.