Rauch v. Vale S.A.

378 F. Supp. 3d 198
CourtDistrict Court, E.D. New York
DecidedMay 13, 2019
Docket19-CV-526-RJD-SJB
StatusPublished
Cited by28 cases

This text of 378 F. Supp. 3d 198 (Rauch v. Vale S.A.) 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
Rauch v. Vale S.A., 378 F. Supp. 3d 198 (E.D.N.Y. 2019).

Opinion

BULSARA, United States Magistrate Judge:

This case, Rauch v. Vale S.A. ("Vale I "), is a putative class action filed on January 28, 2019 by Bryan Rauch ("Rauch") on behalf of investors who purchased publicly traded securities of Vale S.A. ("Vale") from April 13, 2018 to January 28, 2019. (Compl. dated Jan. 28, 2019, Dkt. No. 1 ("Original Vale I Compl.")). On March 27, 2019, Rauch amended his Complaint to expand the class period to June 7, 2016 to February 6, 2019 and to add an additional defendant. (Am. Compl. dated Mar. 27, 2019, Dkt. No. 5 ("Vale I Compl.")). The Amended Complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("the Exchange Act") and Securities and Exchange Commission ("SEC") Rule 10b-5 by Vale, its Chief Executive Officers Murilo Ferreira ("Ferreira") and Fabio Schvartsman ("Schvartsman"), and its Chief Financial Officer Luciano Siani Pires ("Pires"). (Id. ¶¶ 8-10). In a separate action commenced on February 8, 2019, Epstein v. Vale S.A.

*202("Vale II "), Plaintiff Richard Epstein brought the same Exchange Act and Rule 10b-5 claims against Vale, Schvartsman, and Pires on behalf of investors who purchased Vale stock from April 13, 2018 to January 28, 2019. (Compl. dated Feb. 8, 2019, No. 19-CV-793, Dkt. No. 1 ("Vale II Compl.")).1

Pending before the Court is an unopposed motion by the Colleges of Applied Arts and Technology Pension Plan ("CAAT") for consolidation of the two cases, appointment as Lead Plaintiff, and appointment of Class Counsel. (See Mot. to Consolidate by CAAT dated Mar. 29, 2019, Dkt. No. 6 ("CAAT Mot.")). Four other motions for consolidation, appointment as Lead Plaintiff, and appointment of Class Counsel were filed by Mostaco Corp. ("Mostaco"), the Firemen's Retirement System of St. Louis ("St. Louis Retirement"), the Boston Retirement System ("Boston Retirement"), and Romica Mihaescu ("Mihaescu"); the motions by Mostaco and St. Louis Retirement were withdrawn and the motions by Boston Retirement and Mihaescu were supplemented with notices of non-opposition. (See Mot. to Consolidate by Mostaco dated Mar. 29, 2019, Dkt. No. 12 ("Mostaco Mot.") (withdrawn by Notice dated Apr. 30, 2019, Dkt. No. 33 ("Mostaco Withdrawal")); Mot. to Consolidate by St. Louis Retirement dated Mar. 29, 2019, Dkt. No. 9 ("St. Louis Retirement Mot.") (withdrawn by Notice dated Apr. 4, 2019, Dkt. No. 22 ("St. Louis Retirement Withdrawal")); Mot. to Consolidate by Boston Retirement dated Mar. 29, 2019, Dkt. No. 14 ("Boston Retirement Mot.") (supplemented by Notice dated Apr. 8, 2019, Dkt. No. 26 ("Boston Retirement Non-Opposition")); Mot. to Consolidate by Mihaescu dated Mar. 29, 2019, Dkt. No. 17 ("Mihaescu Mot.") (supplemented by Notice dated Apr. 9, 2019, Dkt. No. 27 ("Mihaescu Non-Opposition"))).

For the reasons stated below, CAAT's motion to consolidate, for appointment as Lead Plaintiff, and for appointment of Kaplan Fox & Kilsheimer LLP ("Kaplan Fox") as Class Counsel is granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Vale, formerly known as Companhia Vale do Rio Doce, is a Brazilian corporation that "produces and sells iron ore and iron ore pellets for use as raw materials in steelmaking." (Vale I Compl. ¶ 7; Vale II Compl. ¶ 6). It is traded on the New York Stock Exchange under the ticker symbol "VALE." (Vale I Compl. ¶ 7). Vale owns Samarco Mineração SA jointly with another Brazilian company, BHP Billiton Brasil Ltda. ("BHP"); together they operated the Fundão tailings dam.2 (Id. ¶ 16; Vale II Compl. ¶ 11). On November 5, 2015, the dam burst, killing 19 people. (Vale I Compl. ¶ 16; Vale II Compl. ¶ 11). As a result, Vale and BHP settled a civil suit with Brazilian authorities for $ 5.3 billion dollars and were required to participate in remediation and compliance programs. (Vale II Compl. ¶ 12). On January 25, 2019, another tailings dam owned by Vale, at Feijão, collapsed, killing hundreds of *203people. (Vale I Compl. ¶ 17; Vale II Compl. ¶ 13).

Ferreira served as Vale's CEO from 2011 to May of 2017, and Schvartsman has served as CEO since May 2017. (Vale I Compl. ¶¶ 8-9; Vale II Compl. ¶ 7). Pires has served as Vale's CFO since August 2012. (Vale I Compl. ¶ 10; Vale II Compl. ¶ 8). According to both Complaints, these individuals allegedly made false representations to the public through several documents submitted to the SEC, as described below. (Vale I Compl. ¶¶ 12, 28; Vale II Compl. ¶¶ 9, 22).3

Vale made several filings with the SEC from 2015 to 2017 pertaining to the company's commitment to safety, each either approved or certified by one of the individual Defendants. (Vale I Compl. ¶¶ 18-19, 22-25, 27; Vale II Compl. ¶¶ 18-19, 21).4 For example, Vale's 2015 Form 6-K contained a sustainability report describing the corporation's value of "[l]ife matters most" and stating that "all dams ... are monitored, audited and maintained usually under the same criteria and safety standards [as described earlier in the report]." (Vale I Compl. ¶¶ 18-21). Vale's 2017 Form 20-F, which provided the company's financial results, also stated Vale was "committed to improving the health and safety of [its] workers" and described the regulation and safety reviews required by the Brazilian government. (Vale I Compl. ¶¶ 24-26; Vale II Compl. ¶¶ 18-20). Vale's 2017 Form 6-K also described similar commitments including periodic safety reviews of the dam. (Vale I Compl. ¶ 27; Vale II Compl. ¶ 21). These statements were allegedly false and misleading because they failed to disclose that Vale did not adequately assess the potential risk of breach at the Feijão tailings dam, failed to provide or invest in adequate programs to protect workers and the community, and failed to adequately monitor its dams. (Vale I Compl. ¶ 28; Vale II Compl. ¶ 22).5

On January 25, 2019, Reuters reported the Feijão tailings dam burst and that hundreds of people were missing; Vale stock fell over 8% the same day. (Vale I Compl. ¶¶ 29-30; Vale II Compl. ¶ 23). The next day, BBC News and Reuters reported the dam's alarm system had failed, that operations at the dam had been suspended, and that Vale would be fined for various violations related to the dam. (Vale I Compl. ¶¶ 31-33; Vale II Compl. ¶¶ 24-25). On January 28, 2019, Reuters reported that Vale would be facing criminal prosecution and that investigations would be launched into the company; Vale stock fell 18% the same day. (Vale I Compl. ¶¶ 34-36; Vale II Compl. ¶¶ 26-28).6 On February 6, 2019, the Wall Street Journal reported that Vale had been warned by inspectors about the risk of failure at the Feijão dam; Vale stock fell more than 6% that day.

*204(Vale I Compl. ¶¶ 39-40; Vale II Compl. ¶ 30).7 The drops in market value of Vale stock allegedly caused significant damage to class members. (Vale I Compl. ¶ 41; Vale II Compl. ¶ 29).

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378 F. Supp. 3d 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rauch-v-vale-sa-nyed-2019.