Topping v. Deloitte Touche Tohmatsu CPA, Ltd.

95 F. Supp. 3d 607, 2015 WL 1427317
CourtDistrict Court, S.D. New York
DecidedMarch 27, 2015
DocketNo. 14 Civ. 2814(ER)
StatusPublished
Cited by32 cases

This text of 95 F. Supp. 3d 607 (Topping v. Deloitte Touche Tohmatsu CPA, 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
Topping v. Deloitte Touche Tohmatsu CPA, Ltd., 95 F. Supp. 3d 607, 2015 WL 1427317 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

RAMOS, District Judge:

This case, one of two related actions before this Court,1 arises from allegations of an independent auditor’s failure to detect fraud at ChinaCast Education Corporation, Inc. (“ChinaCast” or the “Company”), an educational services company in the People’s Republic of China (“PRC”), whose stock was traded on the NASDAQ for several years. Compl. (Doc. 2) ¶¶ 2-3, 44-50, 55-58. In 2012, the Company disclosed that certain of its employees, led by its former Chairman and CEO, Ron Chan Tze Ngon (“Chan”), had engaged in wide-ranging fraudulent activities, including, inter alia, misappropriating ChinaCast’s assets, misrepresenting its ownership interests, and making substantial undisclosed loans to cover the debts of third parties lacking any legitimate business relationship to the Company. Id. ¶¶ 19-23. - After' a series of public announcements revealing the fraud, ChinaCast’s stock price plummeted. Id. ¶ 24.

In this action, Christopher Topping (“Topping”) brings suit against China-Cast’s Shanghai-based independent auditor, Deloitte Touche Tohmatsu CPA Ltd. (“DTTC”), and its U.S. affiliate, Deloitte & Touche LLP (“Deloitte U.S.” and, collectively, “Defendants”), on behalf of a class of persons who purchased or otherwise acquired shares of ChinaCast common stock between April 18, 2009 and April 19, 2012 (the “Class Period”) and sustained losses in connection with their respective purchases and sales. Id. ¶¶ 1, 3, 5. The Complaint alleges that Defendants violated provisions of the Securities Exchange Act of 1934 (the “Exchange Act”) by issuing and approving false statements in China-Cast’s public filings with the U.S. Securities and Exchange Commission (“SEC”). [612]*612Id. ¶¶ 11-15. Topping asserts causes of action against DTTC for violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and against Deloitte U.S. for violations of Section 20(a) of the Exchange Act. Id. ¶¶ 43-59.

Before the Court are three competing motions for the appointment of lead plaintiffs and lead counsel, filed by Jayhawk Private Equity Fund II, LP (“Jayhawk”), Ronald D. Ordway (“Ordway”), and Christopher Hong (“Hong”).2 For the reasons set forth below, Ordway’s motion for appointment as lead plaintiff and for appointment of Cohen Milstein Sellers & Toll PLLC (“Cohen Milstein”) as lead counsel is hereby GRANTED. Accordingly, the motions filed by Jayhawk and Hong are hereby DENIED.

1. Background

ChinaCast is a Delaware company whose operations take place entirely through its subsidiaries, which operate various post-secondary and e-Learning businesses in the PRC. Id. ¶ 2. DTTC was ChinaCast’s registered independent auditor between September 2006 and March 2013 and conducted audits of each of ChinaCast’s financial 'statements from fiscal years 2003 to 2011. Id. ¶ 3. In each audit, DTTC stated that ChinaCast’s financial statements comported with Generally Accepted Accounting Principles (“GAAP”) and that its own audit complied with the applicable standards promulgated by the United States Public Company Accounting Oversight Board (“PCAOB Standards”). Id. These statements were included in the Forms 10-K that ChinaCast filed with the SEC. Id. ¶¶ 3-4. The Complaint further alleges that Deloitte U.S., as the U.S. operator of the “global Deloitte network,” had ultimate authority over DTTC’s conduct during the ChinaCast audits. Id. ¶¶ 5, 54-59.

The original Complaint, filed on April 18, 2014, describes how the fraudulent activity at ChinaCast was revealed through a series of public disclosures beginning in the spring of 2012:

• On March ■ 26, 2012, ChinaCast announced that CEO Chan had been removed from his position by the Board of Directors (“Board”). Id. ¶ 17.
• On April 2, 2012, the Board sent an open letter to shareholders indicating that they had “uncovered questionable activities and transactions” by Chan and others. Id. ¶ 19.
• On April 17, 2012, the Company announced that, effective April 11, the Company’s Chief Accounting Officer (“CAO”), Jim Ma, had also been removed. Id. ¶ 20.
• On April 19, 2012, ChinaCast revealed that the Company had been the “subject of a financial fraud” and outlined a series of issues that it was continuing to investigate, including: “the unauthorized transfer of subsidiary holding in[613]*613terests in two [colleges owned by ChinaCast] ... to unauthorized persons outside of the Company group structure,” “[pjossible undisclosed related party transactions involving the use of Company assets,” and “[pjossible undisclosed loans to third parties secured by Company assets and without the [Bjoard’s knowledge.” Id. ¶ 21.
On May 14, 2012, ChinaCast announced additional investigations into issues including the “withdrawal of over Rmb760 million (approximately US$120 million) in cash from the bank accounts of [subsidiaries] CCT Shanghai ánd YPSH from July 2011 through April 2012 without the prior knowledge of the ... Board.” Id. ¶ 22.
In filings issued in June and July 2012, ChinaCast stated that “it suspected that two of its private colleges had been transferred, without authorization, to third parties.” Id. ¶ 28.
On July 30, 2012, the Company disclosed that certain ChinaCast subsidiaries had pledged “a total of US$37 million in cash deposits on separate occasions to secure bank borrowings by unrelated parties” and that the Company was “involved in litigation in the PRC related to loan guarantees to “Wu Caiyu, an unidentified third party.’ ” Id. ¶ 25.
On December 21, 2012, ChinaCast revealed its discovery of problems in its previously issued audited financial statements and of numerous demonstrations of fraudulent activities and misrepresentations by ChinaCast leadership and employees beginning in 2009. Id. ¶¶ 26(a)-(m).

Trading in ChinaCast’s stock was halted on Monday, April 2, 2012 and did not reopen until June 25, 2012.3 Id. ¶¶ 19, 24. ChinaCast’s stock price dropped dramatically after the 2012 disclosures: In early 2012, the stock traded at a price well over $6.00 per share; on April 2, 2012, its halt price was $4.24; and when trading resumed on June 25, 2012, the stock closed at a price of $0.82 per share. Id. ¶¶ 16,19, 24.

Topping filed this action on April 18, 2014. Id. at 27. That same day, the Rosen Law Firm, P.A. (the “Rosen Law Firm”) published a notice on GlobeNewswire (the “Class Action Notice”),4 which advised that Topping, via counsel at the firm, had filed a securities class action on behalf of ChinaCast investors, and that purchasers of ChinaCast could move for appointment as lead plaintiff until June 17, 2014, the close of the 60-day window provided for by the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Jay-hawk’s Mem. L. (Doc. 6), Ex. 1. On June 17, 2014, Jayhawk filed its motion for appointment as lead plaintiff, approval of the ■ Rosen Law Firm as lead counsel, and approval of Pomerantz LLP as co-lead counsel. Jayhawk’s Mot. (Doc. 5).

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95 F. Supp. 3d 607, 2015 WL 1427317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/topping-v-deloitte-touche-tohmatsu-cpa-ltd-nysd-2015.