Zhong Zheng v. Pingtan Marine Enter. Ltd.

379 F. Supp. 3d 164
CourtDistrict Court, E.D. New York
DecidedMarch 31, 2019
Docket17-CV-3807 (DLI) (VMS)
StatusPublished
Cited by13 cases

This text of 379 F. Supp. 3d 164 (Zhong Zheng v. Pingtan Marine Enter. Ltd.) 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
Zhong Zheng v. Pingtan Marine Enter. Ltd., 379 F. Supp. 3d 164 (E.D.N.Y. 2019).

Opinion

DORA L. IRIZARRY, Chief United States District Judge

Plaintiff Zhong Zheng ("Plaintiff") brings this proposed securities class action based on a May 10, 2017 article published on a website www.aureliusvalue.com entitled, "Pingtan Marine: A Fraud That Finances Human Trafficking and Poaching" (the "Aurelius Article"), which allegedly caused a twenty-eight percent drop in the stock price of Defendant Pingtan Marine Enterprises Ltd. ("Pingtan"). Plaintiff claims to have purchased Pingtan's securities during the putative class period and seeks certification of a purported class. Plaintiff now seeks relief under §§ 10(b) and 20(a) of the Exchange Act ( 15 U.S.C. §§ 78j(b) and § 78t(a) ) and Rule 10b-5 against Defendant Xinrong Zhuo, Pingtan's Founder, and Defendant Roy Yu, *170Pingtan's Chief Financial Officer (collectively, the "Individual Defendants") during the putative class period and Defendant Pingtan (collectively, "Defendants").

On May 29, 2018, Plaintiff filed an amended complaint. Amended Complaint ("Am. Compl."), Docket Entry No. 20. On July 20, 2018, Defendants filed a motion to dismiss pursuant to 12(b)(6) and accompanying memorandum of law. (Motion to Dismiss, Docket Entry No. 26 ; Memorandum of Law in Support ("Defs.' Mem."), Docket Entry No. 27.) Plaintiff opposed the motion. (Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl.'s Opp'n"), Docket Entry No. 31.) Defendants replied to Plaintiffs' opposition. (Reply to Plaintiffs' Opposition ("Defs.' Reply"), Docket Entry No. 32.)

For the following reasons set forth below, Defendants' motion is granted.

BACKGROUND

This proposed securities class action is based on the May 10, 2017 Aurelius Article, which Plaintiff alleges caused a 28% drop in Pingtan's stock price. (Am. Compl. ¶¶ 9-10.) Plaintiff claims to have purchased Pingtan's securities during the putative class period of March 9, 2016 through May 10, 2017 and seeks certification of the purported class. (Am. Compl. ¶¶ 1-10.)

Defendant Pingtan is a Cayman Islands exempted limited liability company with its principal business and material operations in the People's Republic of China and traded on the NASDAQ stock exchange. (Excerpts from Pingtan's 2016 Q3 Form 10-Q ("2016 Q3 10-Q"), Katze Decl. Ex. F, Docket Entry No. 30-6, at 5; See also , Am. Compl. ¶ 16.) Pingtan is a marine enterprises company that primarily engages in ocean fishing through its operating subsidiary, Fujian Provincial Pingtan County Ocean Fishing Group Co. ("Pingtan Fishing"). (2016 Q3 10-Q at 27; See also , Am. Compl. ¶ 16.) Defendant Xinrong Zhuo, Pingtan's Founder, was Chief Executive Officer and Chairman of the Board of Directors, and Defendant Roy Yu was Pingtan's Chief Financial Officer during the putative class period. (Am. Compl. ¶¶ 17-18).

I. The Alleged Securities Laws Violations

A. Alleged Fraudulent Statements and Omissions

Plaintiff alleges that Pingtan deceived investors by making materially false or misleading statements or omissions. Specifically, Plaintiff alleges that Pingtan made "misrepresentations about being licensed to fish in Indonesian waters" and "misrepresented that it had obtained fishing licenses from the government of Timor-Leste to fish in Timorese waters."1 (Am. Compl. ¶ 48.) According to Plaintiff, these statements were false and misleading because Pingtan and Pingtan's vessels never were licensed to fish in Indonesian waters. (Am. Compl. ¶¶ 49-51.)

The amended complaint identifies five public filings allegedly containing false and misleading statements concerning Pingtan's license to fish in Indonesian waters:

(1) Pingtan's 10-K for 2015 ("2015 10-K"):
*171Among [Pingtan's] 135 fishing vessels, 117 of these vessels are licensed to operate in the Arafura Sea in Indonesia but temporarily not operating due to [the Moratorium]" and "[w]e currently operate 135 fishing vessels and have a license to operate 117 of these vessels operate (sic) in the Arafura Sea of Indonesia.

(Am. Compl. ¶¶ 30-32; Excerpts from Pingtan's 2016 10-K ("2015 10-K"), Katze Decl., Ex. C, Docket Entry No. 34-3.)

(2) Pingtan's 10-Q for the first quarter of 2016 ("2016 Q1 10-Q"):
Among [Pingtan's] 135 fishing vessels, 117 of these vessels are licensed to operate in the Arafura Sea in Indonesia but temporarily not operating due to the [Moratorium].

(Am. Compl. ¶¶ 34-36; Excerpts from Pingtan's 2016 Q1 Form 10-Q ("2016 Q1 10-Q"), Katze Decl., Ex. D, Docket Entry No. 34-4.)

(3) Pingtan's 10-Q for the second quarter of 2016 ("2016 Q2 10-Q"): 2
As of June 30, 2016, we own 107 trawlers, 4 longline fishing vessels, 2 squid jigging vessels and 2 drifters and have exclusive operating license rights to 20 drifters.... These vessels are fully licensed to fish in Indonesian, Indian, or Western and Central Pacific Ocean of the International waters.

(Am. Compl. ¶¶ 37-39; Excerpts from Pingtan's 2016 Q2 Form 10-Q ("2016 Q2 10-Q"), Katze Decl., Ex. E, Docket Entry No. 34-5.)

(4) Pingtan's 10-Q for the third quarter of 2016 ("2016 Q3 10-Q"): 3
As of September 30, 2016, we own 107 trawlers, 4 longline fishing vessels, 2 squid jigging vessels and 2 drifters and have exclusive operating license rights to 20 drifters.... These vessels are fully licensed to fish in Indonesian, Indian, or Western and Central Pacific Ocean of the international waters

(Am. Compl. ¶¶ 40-42; Excerpts from Pingtan's 2016 Q3 Form 10-Q ("2016 Q3 10-Q"), Katze Decl., Ex. F, Docket Entry No. 34-6.)

(5) Pingtan's 10-K for 2016 ("2016 10-K"):
Among [Pingtan's] 135 fishing vessels, 13 are operating in Indo-Pacific waters; 12 are operating in the Bay of Bengal in India; 2 are operating in international waters of Southwest Atlantic and Southeast Pacific Oceans; 4 will be operating in international waters of Pacific Ocean upon completion of paperwork formalities, and the remaining vessels are licensed to operate in the Arafura Sea in Indonesia but temporarily not operating due to the moratorium discussed below.... [and that] [w]e currently operate 135 fishing vessels and have a license to operate 104 of these vessels operate (sic) in the Arafura Sea of Indonesia.

(Am. Compl. ¶¶ 43-46; Excerpts from Pingtan's 2016 Form 10-K ("2016 10-K"), Katze Decl., Ex. G, Docket Entry No. 34-7.)

Plaintiff also alleges Pingtan made misleading representations in a press release concerning Pingtan's licenses to fish in Timor-Leste. Specifically, Plaintiff alleges that, on August 4, 2016, Pingtan issued a press release "announc[ing] that thirteen of its vessels ha[d] obtained fishing licenses from the Ministry of Agriculture and *172Fisheries of Timor-Leste, allowing them to operate in the sea areas of Timor-Leste." (Am. Compl. ¶¶ 48-49.)

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379 F. Supp. 3d 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zhong-zheng-v-pingtan-marine-enter-ltd-nyed-2019.