In re Longtop Financial Technologies Ltd. Securities Litigation
In re Longtop Financial Technologies Ltd. Securities Litigation
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Lead plaintiffs bring this action on behalf of themselves and others similarly
Plaintiffs brought claims against all of the defendants under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder. They additionally brought claims under Section 20(a) of the Exchange Act against the individual defendants, Lian and Palasehuk.
Palasehuk and DTT separately moved to dismiss. I denied Palaschuk’s motion on June 29, 2012,
Plaintiffs allege that Palasehuk made materially false and misleading statements during the Class Period regarding: 1) Longtop’s cash and loan balances, profit margins, revenue, and other key financial metrics, 2) the effectiveness of Longtop’s internal controls, and 3) the accounting irregularity of Longtop’s financial statements.
Palasehuk now moves for summary judgment. For the following reasons, his motion is DENIED.
II. BACKGROUND
Longtop was founded in 1996 to provide information technology services to the banking and financial industry in China.
Before Palaschuk joined the company, Longtop retained DTT as outside auditors.
On February 4, 2010, Wedge Partners, an equity analysis firm, issued a report identifying several “red flags” in Longtop’s financials: 1) an exodus of employees from Longtop’s accounting department, 2) Longtop’s use of a third party intermediary employer, and 3) Longtop’s rushed and overpriced acquisition of a company called Giantstone.
In February 2010, Palaschuk emailed Lian and Rúan Cijie, Longtop’s head' of business operations,
*468 Yingling [Li] is a wonderful and capable person but she cannot manage financial operations and financial accounting for a company with $300 million in revenue and 7,000 employees with international business. Same goes for Junwei ... I know there are many things that certain people are doing behind my back and I am not going to tolerate it anymore. If you want to put people in finance that only both of you “like” rather than based on them being trustworthy and competent, then you should start your new CFO search as soon as possible.25
At the end of August 2010, Palaschuk moved to Vancouver, Canada.
On October 14, 2010, Palaschuk received an email from Jonathan Maietta, an analyst at Needham & Company, LLC (“Needham”), an investment banking and asset management firm. Maietta expressed concern about Longtop’s reported revenues from its largest customer, China Construction Bank (“CCB”). He wrote:
I just had a meeting with one of CCB’s senior IT officials. This person ... disputed the CCB revenue contribution of $33 million that LFT has reported. While this official did not disclose an exact figure, said person implied that the “real” figure was substantially less and jokingly said “maybe 33 million RMB, not USD.” Please advise.27
When Maietta declined to give the name of his CCB contact, Palaschuk responded, “[i]t is impossible for us to rebut these absolutely untrue comments without knowing who said them and what is the persons [sic] position.”
On October 15, 2010, Needham issued a report downgrading Longtop’s status from “buy” to “hold” based on its belief that CCB revenue was likely to decrease significantly.
On November 2, 2010, Palaschuk attended a meeting between DTT and Longtop management, including Lian, Rúan, Yin-gling Li, and Philip Li. According to the meeting minutes, the discussion centered on market rumors that: 1) Longtop had reported inflated revenue from CCB, 2) Longtop’s margins were suspiciously higher than its competitors, 3) Longtop had paid unusually “high multiples to acquire companies,” and 4) Longtop was using a third party human resources company to employ the vast majority of its staff.
Although DTT indicated that it had seen no indicators of fraud or potential inaccuracy in the CCB revenues, it suggested that Longtop hire an independent third party to investigate.
On December 6, 2010, BMO Capital Markets, a financial services provider, issued a favorable financial report on Long-top.
On or before February 22, 2011, an investor forwarded Palaschuk an' anonymous report about Longtop from the Internet (the “Anonymous Report”). The author of the Report stated: “I have strong doubts about the accuracy of LFT’s reported fi-nancials. Revenues from top customers cannot be verified and the company’s industry leading margins do not seem possible. Therefore the earnings and the cash on the balance sheet could be vastly overstated.”
The Anonymous Report also identified several other red flags, including Long-top’s third party staffing model, questionable acquisitions like Giantstone, and suspicious management stock sales and gifts.
Between March 11, 2011 and March 21, 2011, Palaschuk exchanged emails with DTT manager Zuzu Zhu regarding DTT’s confirmations of Longtop’s cash balances. Palaschuk instructed Zhu to obtain bank statements directly from the banks, stating: “If we are committing fraud[,j which we are not, it would be useless for you to look at our accounting records because we make all the accounting records. The only document[s] that you can trust in the case of possible fraud must be documents directly from the bank.”
On April 2, 2011, DTT completed a draft due diligence report on Longtop’s cash balances from September 30, 2010 through February 28, 2011. After reviewing bank statements and certificates of deposit, DTT stated that it had succeeded in con
On April 26, 2011, Citron Research (“Citron”), an online stock commentary firm, issued a report on Longtop that echoed many of the concerns contained in the Anonymous Report. Citron was concerned with Longtop’s “spectacularly high margins,” unconventional staffing model, implausibly large stock gifts from Longtop management to employees and friends, and problems with revenue recognition from Longtop’s largest customers.
On April 27, 2011, Bronte Capital (“Bronte”), a global fund manager, published a report that questioned Longtop’s decision to “[go] to market to raise cash” when the company’s balance sheets indicated that it was “swimming in [cash].”
On April 28, 2011, Longtop held a conference call for investors to address the allegations in the Citron report and other market rumors.
From May 18 through May 20, 2011, Palaschuk had multiple phone conversations with Lian.
On May 19, 2011, the NYSE halted trading in Longtop’s ADS’s.
[Statements by bank staff that their bank had no record of certain transactions; confirmation replies previously received were said to be false; significant differences in deposit balances reported by the bank staff compared with the amounts identified in previously received confirmations (and in the books and records of the Group); and significant bank borrowings reported by bank staff not identified in previously received confirmations (and not recorded in the books and records of the Group).61
In attempting to follow up on these discrepancies, DTT encountered resistance from Longtop officials, including calls to banks asserting that Deloitte was not Longtop’s auditor; seizure of bank confirmation documents on bank premises; threats to stop DTT staff from leaving Longtop’s premises unless they turned over their audit files; and seizure of DTT’s working papers.
DTT’s resignation letter also states that Longtop’s Chairman, Jia Xiao Gong, informed a DTT Managing Partner that “there were fake revenue in the past so there were fake cash recorded on the books.”
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party’s favor, there is ‘no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.’ ”
“[T]he moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle him to judgment as a matter of
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
IV. APPLICABLE LAW
A. Section 10(b) of the Exchange Act and Rule 10b-5
Section 10(b) of the Exchange Act prohibits using or employing, “in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance....”
The required level of scienter under Section 10(b) is either “intent to deceive, manipulate, or defraud”
B. Section 20(a) of the Exchange Act
Section 20(a) of the Exchange Act creates a cause of action against “control persons” of the primary violator.
Y. DISCUSSION
Palaschuk moves for summary judgment on the Section 10(b) and 20(a) claims on the grounds that plaintiffs have raised no genuine issue of material fact regarding his scienter at the time the statements were made.
Palaschuk has presented a good deal of evidence in his favor. For example, independent auditors from DTT repeatedly approved the accuracy of Longtop’s financial statements, and even completed a due diligence report claiming to have confirmed eighty-five percent to ninety-three percent of Longtop’s stated bank balances.
Palaschuk also argues that plaintiffs have not identified specific steps that he could have taken to uncover the fraud. However, a reasonable jury could find that Palaschuk failed to adequately investigate cash balances and reported CCB revenues in light of multiple analyst reports challenging those metrics.
Similarly, Palaschuk was aware of multiple reports that CCB revenues were inflated, including a personal email from a Needham analyst who claimed to have spoken directly with multiple members of CCB management.
Even if Palaschuk presents a strong case, the question of his scienter is for the jury to decide.
Too often, judges substitute their own judgment for that of the jury. These judges decide that no reasonable juror could view the evidence in a manner different from the judge’s own conclusion. This cognitive illiberalism has been rightly condemned as a form of judicial arrogance.... Juries have not only the duty, but also the right to decide cases. Encroaching upon the province of juries to decide questions of fact, such as the determination of a defendant’s state of mind, violates not only the constitutional rights of the parties in a suit, but also the constitutional rights of the jurors themselves.96
Palaschuk relies heavily on his own sworn affidavit and the affidavits of two former employees, Christina Zhang and Philip Li, to explain the ways he allegedly investigated the analyst reports, including initiating internal audits and asking independent parties to complete due diligence.
Because a reasonable jury could find that Palaschuk was reckless in failing to properly investigate Longtop’s revenues, cash balances, and other financial metrics, the motion for summary judgment must be denied. While Palaschuk may very well prevail at trial, that decision is one for the fact-finder and not the court.
VI. CONCLUSION
For the foregoing reasons, Palaschuk’s motion for summary judgment is denied. The Clerk of Court is directed to close this motion (Docket No. 172). A conference is scheduled for July 7, 2014 at 4:30 pm.
SO ORDERED.
. See Complaint.
. See In re Longtop Fin. Tech. Ltd. Sec. Litig., No. 11 Civ. 3658, 2013 WL 3486990 (S.D.N.Y. July 11, 2013).
. See Complaint.
. See In re Longtop Fin. Tech. Ltd. Sec. Litig., No. 11 Civ. 3658, 2012 WL 2512280 (S.D.N.Y. June 29, 2012).
. See In re Longtop Fin. Tech. Ltd. Sec. Litig., 939 F.Supp.2d 360 (S.D.N.Y. 2013).
. See Order Entering Default Judgment, Dkt. No. 164.
. See Complaint ¶¶ 49, 162-234. The Complaint also alleged that Palasehuk made materially false statements regarding Longtop’s use of a third party entity to avoid paying social welfare benefits on behalf of its employees. However, plaintiffs have now withdrawn those allegations. See Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Report and Testimony of Alan D. Bell at 25 ("Plaintiffs will not pursue at trial claims against Palasehuk related to Longtop’s accounting for XLHRS or the adequacy of its social welfare payments.”).
. See In re Longtop, 2012 WL 2512280, at *9 (finding Palasehuk to be the "maker” of the signed press release commentary).
. See Defendant Derek Palaschuk's Local Civil Rule 56.1 Statement of Material Facts in Support of His Motion for Summary Judgment ("Def. 56.1”) ¶ 3. Unless otherwise stated, all citations to Def. 56.1 are admitted by plaintiffs.
. See id.
. See id. ¶ 8.
. See id. ¶ 7.
. See 4/20/09 to 4/22/09 email chain between Palaschuk, Li, and Wang ("4/20-22 Email Chain”), Ex. X to Declaration of Plaintiffs' Attorney Kimberly A. Justice in Support of Plaintiffs' Memorandum of Law in Opposition to Defendant Derek Palaschuk’s Motion for Summary Judgment (“Justice Decl.”).
. See id. at 4-5.
. Id. at 4.
. Id.
. See id. at 3.
. See id. at 1.
. See 2/4/10 Wedge Report, Ex. Q to Justice Deck, at 1.
. Id.
. See 3/23/10 Wedge Report, Ex. 4 to Affidavit of Derek Palaschuk in Support of Reply Memorandum of Law in Further Support of Motion for Summary Judgment.
. See id.
. SeeDef. 56.1 ¶ 6.
. See February 2010 .email from Palaschuk to Lian and Rúan, Ex. N to Justice Deck, at 1.
. Id.
. SeeDef. 56.1 ¶27.
. 10/14/10 email chain between Maietta and Palaschuk ("10/14/10 Email Chain”), Ex. R to Justice Decl., at 2.
. Id. at 1.
. See 10/15/10 Needham Report, Ex. 22 to Affidavit of Derek Palaschuk in Support of Motion for Summary Judgment ("Palaschuk Aff.”), at 1-2.
. 2/1/11 Needham Report, Ex. 23 to Palas-chuk Aff., at 1.
. 11/2/10 Minutes of meeting between Long-top and DTT, Ex. Y to Justice Deck, at 1.
. See id. at 2.
. Id. at 3. However, management agreed to ask Longtop’s counsel, Tim Bancroft, whether an independent investigation was necessary. See id.
. See id. at 3-4.
. See 12/6/10 BMO Report, Ex. 24 to Palas-chuk Aff.
. Id. at 1, 5.
. 2/22/11 email from Palaschuk to Kyle Weaver, Ex. S to Justice Deck, at 1.
. See id. at 2.
. Id.
. See id. at 3-4.
. See id. at 4-5.
. Id. at 1. .
. March 2011 email chain between Zhu and Palaschuk ("March 2011 Email Chain”), Ex. Z to Justice Deck, at 6.
. See id. at 1-2.
. See Def. 56.1 ¶ 57; DTT draft due diligence report on Longtop’s cash balances from September 30, 2010 to February 28, 2011 ("DTT Due Diligence Report”), Ex. 26 to Palaschuk Aff., at 4.
. 4/26/11 Citron Report, Ex. T to Justice Deck, at 2 (“Citron Report”).
. See id. at 3-4. Palaschuk claims that the lawsuit against Longtop's Chairman and CEO “contained no findings of fraud by the court, and the actual damages of approximately $80,000 were much less than the approximately $1.4 million in damages alleged by Citron.” Def. 56.1 ¶ 58. However, Palas-chuk has produced no court documents or other documentary evidence to validate those statements.
. Citron Report at 1.
. 4/27/11 Bronte Report, Ex. U to Justice Deck, at 1-2.
. See id. at 1.
. See Transcript of 4/28/11 conference call with investors, Ex. FF to Justice Decl.
. Id. at 3.
. See Palaschuk’s notes from 5/19/11 and 5/20/11 phone conversations with Lian ("5/19-20 Notes”), Ex. V to Justice Deck; Transcript of 5/18/11 call between Palaschuk and Lian, Ex. CC to Justice Deck
. 5/19-20 Notes at 1.
. See id.
. Id.
. See id.
. See 5/19/11 China Economic Review daily briefing, Ex. BB to Justice Decl.
. SeeDef. 56.1 ¶ 62.
. 5/23/11 Form 6-K, Ex. W to Justice Decl., at 5, 8.
. Id. at 7.
. See id. at 7-8.
. Id. at 8.
. Id.
. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d Cir. 2014) (quoting Fed.R.Civ.P. 56(c)) (some quotation marks omitted).
. Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff'd, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (quotations and alterations omitted).
. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations omitted).
. Gioia v. Forbes Media LLC, 501 Fed.Appx. 52, 54 (2d Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (some citations omitted).
. Robinson v. Allstate Ins. Co., 508 Fed.Appx. 7, 9 (2d Cir. 2013) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
. Cuff ex rel. B.C. v. Valley Cent. School Dist., 677 F.3d 109, 119 (2d Cir. 2012) (quotation marks and citations omitted).
. Barrows v. Seneca Foods Corp., 512 Fed.Appx. 115, 117 (2d Cir. 2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)).
. 15 U.S.C. § 78j(b) (2014).
. 17 C.F.R. § 240.10b-5 (2014).
. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008).
. Janus Capital Grp., Inc. v. First Derivative Traders, - U.S. --, 131 S.Ct. 2296, 2302, 180 L.Ed.2d 166 (2011).
. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).
. South Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 109 (2d Cir. 2009) (“By reckless disregard for the truth, we mean 'conscious recklessness — i.e., a state of mind approximating actual intent, and not merely a heightened form of negligence.' " (quoting Novak v. Kasaks, 216 F.3d 300, 312 (2d Cir. 2000)) (emphasis in original)).
. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007).
. City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 184 (2d Cir. 2014) (quoting Novak, 216 F.3d at 308, 312).
. In re Gildan Activewear, Inc. Secs. Litig., 636 F.Supp.2d 261, 272 (S.D.N.Y. 2009) (quotation marks and citation omitted). Accord Novak, 216 F.3d at 308, 311.
. Novak, 216 F.3d at 309.
. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Accord Sawabeh Info. Servs. Co. v. Brody, 832 F.Supp.2d 280, 295 (S.D.N.Y. 2011) (noting that "the tie ... goes to the plaintiff” (quotation marks and citations omitted)).
. See 15 U.S.C. § 78t(a).
. ATSI, 493 F.3d at 108.
. See id. See also In re eSpeed, Inc. Sec. Litig., 457 F.Supp.2d 266, 297-98 (S.D.N.Y. 2006).
. Palaschuk does not contest the materiality or falsity of the statements or his status as a "control person” of Longtop within the meaning of Section 20(a).
. At a court conference on October 21, 2013, plaintiffs represented that they would pursue a theory of recklessness rather than intent to defraud. See 10/21/13 Transcript 14:20-23, Ex. C to Justice Decl.
. See Def. 56. ¶ 57; DTT Due Diligence Report at 4.
. March 2011 Email Chain at 6.
. Palaschuk argues that his last allegedly false statement was made on January 31, 2011, and most of the analyst reports were published after that date. See Memorandum of Law in Support of Defendant Palaschuk's Motion for Summary Judgment at 20. However, plaintiffs have also presented evidence that Palaschuk made materially false statements to investors during a conference call on April 28, 2011. See Complaint ¶ 49; Plaintiffs’ Memorandum of Law in Opposition to Defendant Derek Palaschuk’s Motion for Summary Judgment at 6. Moreover, a jury could infer recklessness solely from the information available to Palaschuk prior to January 31, 2011.
. Relatedly, plaintiffs have presented evidence that Palaschuk resisted DTT’s proposed auditing procedures with respect to revenue contract confirmations. See 4/20-22 Email Chain.
. 10/14/10 Email Chain at 2.
. See id. at 1.
. Gildan Activewear, 636 F.Supp.2d at 272 (quotation marks and citation omitted). Accord Novak, 216 F.3d at 308, 311.
. See S.E.C. v. EagleEye Asset Mgmt., 975 F.Supp.2d 151, 159 (D.Mass. 2013) ("Few things seem more appropriately the province of a jury than the inference of a defendant’s mental state.”).
. See Def. 56.1 ¶¶ 56-57.
. Palaschuk's 56.1 statement cites almost exclusively to his own affidavit. See Def. 56.1.
Reference
- Full Case Name
- In re LONGTOP FINANCIAL TECHNOLOGIES LIMITED SECURITIES LITIGATION
- Status
- Published