Fila v. Pingtan Marine Enterprise Ltd.

195 F. Supp. 3d 489, 2016 WL 3962015
CourtDistrict Court, S.D. New York
DecidedJuly 19, 2016
Docket15-cv-267 (AJN)
StatusPublished
Cited by6 cases

This text of 195 F. Supp. 3d 489 (Fila v. Pingtan Marine Enterprise Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fila v. Pingtan Marine Enterprise Ltd., 195 F. Supp. 3d 489, 2016 WL 3962015 (S.D.N.Y. 2016).

Opinion

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge

Plaintiffs bring this securities fraud action on behalf of a putative class of those who acquired stock in Pingtan Marine Enterprise Ltd. (“Pingtan Marine”) between June 17, 2013, and November 10, 2014. During that period, Plaintiffs claim Pingtan Marine falsely represented that it received profits from a Chinese fishing company, when in reality those profits remained in the fishing company’s hands. The complaint alleges (1) securities fraud against Pingtan Marine and several of its officers and directors under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), and its implementing regulation Rule 10b-5, 17 C.F.R. § 240.10b-5; and (2) control person liability against the officer and director defendants, pursuant to Section 20(a) of the Exchange Act, 15 U.S.C. § 78t. Defendants have moved to dismiss the complaint pursuant to Federal Rule of [492]*492Civil Procedure 12(b)(6). For the reasons below, Defendants’ motion to dismiss is GRANTED.

I. Background

The following facts are taken from the complaint and other documents the Court is permitted to consider in evaluating a motion to dismiss. See DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010). Allegations in the complaint are assumed to be true for purposes of resolving the motion to dismiss. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir.2007).

Pingtan Marine is a Cayman Islands company headquartered in China. Am. Compl. ¶24. Its securities are traded on the NASDAQ stock exchange. Id. ¶ 19. Defendant Xinrong Zhuo is Pingtan Marine’s founder, CEO, chairman of the board, and controlling shareholder. Id. ¶ 25. Defendant Roy Yu is Pingtan Marine’s CFO. Id. ¶ 26. Defendants Lin Bao, Yeliang Zhou, Zengbiao Zhu, Xuesong Song, and Jin Shi were directors of Ping-tan Marine during the relevant period alleged in the complaint. Id. ¶¶ 27-32.

Pingtan Marine is a shell company created to give American investors access to Chinese companies (and vice versa). Chinese law prevents wholly foreign-owned companies from having direct ownership of Chinese' companies in certain “strategic” industries. Id. ¶¶ 52. To work around this law, Chinese companies can contract to delegate all management decisions and remit all net profits to a foreign-owned holding company. Id. ¶ 51-52. The Chinese-owned company that actually generates the revenue and carries out the business operations is called a “variable interest entity” or “VIE.” Id. ¶ 51. Pingtan Marine employs this corporate structure. Id. During the relevant period, Pingtan Marine had no business of its own. Id. ¶ 50. Instead, it was the sole owner (through several layers of subsidiaries in various countries) of Pingtan Guansheng Ocean Fishing Co. Ltd. (“Guansheng”), a holding company incorporated under Chinese law. Id. ¶¶ 45-48. Until February 9, 2015, Guan-sheng (and thus Pingtan Marine) had the right to manage and receive net profits from Fujian Provincial County Ocean Fishing Group, Ltd. (“Pingtan Fishing”), a Chinese-owned fishing business. Id. ¶ 49. Xinrong Zhou, Pingtan Marine’s CEO, chairman, and controlling shareholder, was also the beneficial owner and exclusive controller of Pingtan Fishing. Id. ¶ 79. Until December 2013, Pingtan Marine also had the right (through a similar structure of subsidiaries and contracts) to manage and receive net profits from a Chinese-owned dredging corporation. Id. ¶¶ 55-57. Pingtan Marine had no other sources of revenue during this period. See id. ¶¶ 43, 53, 56.

Although Guansheng (and thus Pingtan Marine) was entitled to all net profits from Pingtan Fishing, it did not receive them. Id. ¶¶ 120-21. Instead, all the money remained with Pingtan Fishing. See id. ¶¶ 115-41. Pingtan Fishing made over $45 million in net profit in 2013, and over $85 million in 2014. Id. ¶¶ 85, 87. These unpaid profits account for almost 50% of the income Pingtan Marine reported to the SEC in 2013, and 100% of the income it reported in 2014. Id. ¶ 84. Plaintiffs allege that Pingtan Marine concealed this state of affairs through misleading statements in its SEC filings indicating that Pingtan Fishing was paying its net profits to Guan-sheng. Id. ¶¶ 95-114.

On June 12, 2014, an amateur securities analyst named Michael Sacerdote published an article on the website Seeking Alpha entitled “Fishy Business at Pingtan Marine Enterprise” (the “Sacerdote article”). Id. ¶ 71; see Defs.’ Ex. 5 (“Fishy Business”). The piece was publicly disseminat[493]*493ed the next day. Am. Compl. ¶ 71. Sacer-dote analyzed Pingtan Marine’s public SEC filings and voiced numerous concerns about the company’s books and management. Specifically, Sacerdote identified the following issues: (1) Pingtan Marine’s “particularly cumbersome” VIE structure, which Sacerdote suggested was designed “so that money will never move from [Pingtan Fishing] to [Pingtan Marine]”; (2) a large number of related-party transactions (many involving the CEO’s relatives); (3) the company’s purchase of 46 fishing vessels from the CEO’s wife at between eight to ten times the market price; (4) the company’s legal problems in China; (5) the company’s formation through a reverse merger; (6) the lack of a reliable auditor; and (7) the lack of employees qualified to follow SEC rules and proper accounting practices. Fishy Business at 12-13, 15; see Am. Compl. ¶¶ 71-72, 188-90.

In the wake of the Sacerdote article, Pingtan Marine’s share price tumbled. At the start of June 13, 2014, the day the piece became public, Pingtan Marine shares traded for $3.12. Am. Compl. ¶ 196. By the end of the day, the price had dropped 25% to $2.47 per share. Id. ¶ 191. On November 6, 2014, Pingtan Marine announced that it would restate its financial statements for 2012 and 2013, and provide additional disclosures regarding the purchase of vessels from the CEO’s wife. Id. ¶ 192. The company filed its restated financial státements with the SEC on November 10, 2014. Id. ¶ 94. The stock price continued to fall in response to these announcements. Id. ¶¶ 193, 195. At the close of business on November 10, 2014, Pingtan Marine’s stock traded at $1.19 per share, a more than 60% decline from the beginning of June 13, 2014. Id. ¶ 196. On February 29, 2015, Pingtan Marine assumed direct ownership of Pingtan Fishing, ending the VIE relationship. Id. ¶ 182.

Plaintiffs brought this suit against Ping-tan Marine and the individual Defendants on January 14, 2015. Defendants' moved to dismiss the Amended Complaint on September 11,2015.

II. Legal Standard

When a party moves to dismiss under Rule 12(b)(6), the pleading will withstand the motion so long as it alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

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Cite This Page — Counsel Stack

Bluebook (online)
195 F. Supp. 3d 489, 2016 WL 3962015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fila-v-pingtan-marine-enterprise-ltd-nysd-2016.