Securities Litigation: Variations on a Chinese Theme

One of the most distinct securities litigation filing trends during the last twelve months has been the filing of securities class action law suits against U.S.-listed companies based or operating in China. With a phenomenon this well-established, it is only natural that the trend should begin to evolve, which seems to be what has happened in connection with a couple of new filings during this past week.

Yahoo: First, according to their June 6, 2011 press release (here), plaintiffs' attorneys have filed a securities class action lawsuit in the Northern District of California against Yahoo , its CEO Carol Bartz, and director and co-founder Jerry Yang. Yahoo is of course a well-established U.S.-based company. But the lawsuit relates to Yahoo's investment in its Chinese-based strategic partner, Alibaba Group Holdings Limited, which is China's largest e-commerce company. (Yahoo owns about 40% of Alibaba Group.)

The lawsuit arises out of the well-publicized dispute between Yahoo and Alibaba over the March 31, 2011 restructuring of a unit of Alibaba (Alipay) that resulted in Alibaba's CEO's ownership of 100% of Alipay. The complaint alleges that Alibaba and Yahoo received only about $45 million for Alipay, which allegedly is worth more than $5 billion. The complaint further alleges that Yahoo failed to disclose this information to investors until May 10, 2011. When Yahoo released the information in a periodic SEC filing, its share price declined. The complaint alleges that the delay in releasing the information misled investors.

The fact that the defendant in this case is a mainstream U.S. company makes this new lawsuit different from the many cases that have been filed recently against Chinese companies. But the case has certain features in common with those other suits, other than the obvious China connection. For example, both the alleged lack of transparency surrounding a critical corporate transaction and the allegations of self-dealing involving senior Chinese management are the kinds of allegations that have appeared in many of the prior suits against Chinese-linked companies. Alison Frankel's June 8, 2011 article on Thompson Reuters News & Insight has further comments on the Chinese litigation connection of the new Yahoo lawsuit.

Sino-Forest Corporation:  The second of the two recent lawsuits involves Sino-Forest Corporation. Sino-Forest's name has been in the news recently after the publication of analyst reports that the company has significantly overstated its forestry assets and revenues. The company's share price declined sharply and the company announced that is has formed a special committee to investigate the allegation.

Inevitably, a securities class action lawsuit filed. In certain respects, this new lawsuit filing is similar to many of the prior suits involving Chinese companies, based as it is on allegations of accounting and reporting misrepresentations. What makes this suit different is that it has been filed in Canada, by a Canadian law firm, as reflected in the law firm's June 8, 2011 press release (here). Sino-Forest's shares are listed on the Toronto stock exchange and the lawsuit has been filed in the Ontario Superior Court of Justice.

Sino-Forest, meanwhile, has struck back at the analyst, whom the company claims is a short-seller spreading misinformation about the company in order to profit by driving down the company's share price. Sino-Forest has threatened litigation. Indeed, several of the Chinese companies that have suffered share price declines (and securities class action lawsuits) following negative analysts' reports have taken a similar approach. A June 6, 2011 Bloomberg article (here) reports that several of these companies have even initiated litigation against the analysts.

So with the filing of these two new lawsuits, it appears that the securities litigation filing trend involving China-linked companies is developing. These latest filings involve, in the case of the Yahoo lawsuit, a company's whose connection to China is indirect and unrelated to the basic public identity of the company. In the case of the Sino-Forest filing, the trend has expanded to reach beyond just the Chinese companies whose shares are traded in the U.S.

There undoubtedly will be even further variations as this latest securities litigation filing trend continues to develop. Up until this point, I have been keeping a pretty careful tally of the filings against the Chinese and China-linked companies. Not counting the two lawsuits described above, there have been 24 lawsuits filed in 2011 against Chinese and China-linked companies, out of about 102 new lawsuit total so far this year. But as the types of lawsuits become increasingly diverse, it clearly is going to be increasingly challenging to maintain definitional clarity about exactly what I am counting. I suppose I will have to start deploying Roger Maris type asterisks in presenting my tallies.

Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.

For more information about LexisNexis products and solutions connect with us through our corporate site.