NASIN v. HONGLI CLEAN ENERGY TECHNOLOGIES CORP. et al

Filing 23

OPINION. Signed by Judge William J. Martini on 11/21/17. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JARROD NASIN, individually and on behalf
of all others similarly situated,

Civ. No. 2:17-3244 (WJM)

Plaintiffs,
OPINION

v.
HONGLI CLEAN ENERGY TECHS. CORP.,
et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Before the Court are two competing motions from Plaintiffs Glenn Ellis and
Marcel Lecours Jr. (collectively, “Ellis Movants”) and Yajun Zhai, William
Dubois, Adrian Parker, Joe Traylor, and Anthony Sallustro (collectively, “Zhai
Movants”), under the Private Securities Litigation Reform Act of 1995
(“PSLRA”), requesting appointment as lead plaintiffs and approval of their
selection of counsel.1 15 U.S.C. § 78u-4(a)(3)(B). This Court has jurisdiction
under 28 U.S.C. § 1331 and Section 27 of the Securities Exchange Act of 1934
(the “Exchange Act”). The matter was taken on submission without oral argument.
FED. R. CIV. P. 78(b). For the reasons stated below, the Zhai Movants’ motion is
GRANTED and the Ellis Movants’ motion is DENIED.
I.

BACKGROUND

This is a federal securities action on behalf of purchasers of Hongli Clean
Energy Technologies Corporation (“Hongli”) securities between the proposed
class periods. The class seeks to recover damages and pursue remedies under
Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated
thereunder against Hongli, a Florida corporation that is a vertically integrated coal
and coke producer based in the People’s Republic of China.
The facts relevant to the present motions are taken from two Complaints filed
against Hongli and its chief executive and financial officers (jointly,
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The parties also moved for consolidating this case with Glenn Ellis, et al. v. Hongli Clean Energy Techs.
Corp., et al., Civ. No. 17-4762. On September 8th, the Court granted that motion, and the cases have been
consolidated under the caption stated above. ECF No. 16. Apart from the consolidation matter, the Zhai
Movants’ motion for lead plaintiff and selection of counsel stems from the Complaint filed in this case,
Jarrod Nasin, et al. v. Hongli Clean Energy Techs. Corp., et al., Civ No. 17-3244.

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“Defendants”). Civ. No. 17-3244, ECF No. 1 (“Nasin Complaint”); Civ. No. 174762, ECF No. 1 (“Ellis Complaint”). The Complaints, both filed in this District
against the Defendants, make similar factual and legal allegations but differ on the
class period. The Ellis Complaint contends to use an expanded class period—the
furthest date allowed under the statute of limitations—while the Nasin Complaint
argues its shorter class period is “far more realistic.”
The Complaints allege, essentially, that Defendants issued materially false and
misleading public statements as to Hongli’s business and financial condition that
deceived investors, artificially inflated the price of Hongli publicly traded
securities, and caused Plaintiffs and other members of the public to purchase stock
at artificially inflated prices. Nasin Compl. ¶¶ 15-22, 45-47. Specifically, in a
disagreement that ended with Defendants dismissing its independent auditor,
Defendants failed to disclose an improper recording of an impairment expense on
its assets. Id. at 23. As a result, Hongli’s public statements were materially false
and misleading. Id. at ¶¶ 23, 25. With trading suspended on Hongli’s shares, its
securities are now illiquid and rendered worthless. Id. at ¶ 28.
II.

MOTION FOR LEAD PLAINTIFF

The Court will first determine whether the Zhai or Ellis Movants should serve
as lead plaintiff and then address the selection of lead counsel. Although the Court
concludes the Ellis Movants are the presumptive lead plaintiff because they
suffered the largest financial loss and made a prima facie showing of adequacy
and typicality, the Zhai Movants have successfully rebutted the presumption by
showing the Ellis Movants are subject to a unique defense and otherwise qualify
as the most adequate plaintiff.
A. The PSLRA
With the purpose of identifying a party who can vigorously prosecute the class
members’ interest, the PSLRA outlines how to select a lead plaintiff. See, e.g., In
re Cendant Corp. Sec. Litig., 404 F.3d 173, 192 (3d Cir. 2005). The procedure
involves two steps in that “the court first identifies the presumptive lead plaintiff,
and then determines whether any member of the putative class has rebutted the
presumption.” In re Cendant Corp. Litig., 264 F.3d 201, 262 (3d Cir. 2001) (citing
15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)-(II)).
The Court must adopt a presumption that the most adequate plaintiff “is the
person or group or persons that . . . has the largest financial interest in the relief
sought by the class; and otherwise satisfies the requirements of Rule 23 of the
Federal Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). To do so, the
Court must conclude whether the movant with the largest financial interest has
made a prima facie showing of Rule 23’s typicality and adequacy requirements. In
re Cendant Corp. Litig., 264 F.3d at 263. If contested, the Court must find whether
a movant has rebutted the presumption. A movant may rebut the presumption with
proof that the presumptively most adequate plaintiff “will not fairly and
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adequately protect the interests of the class; or is subject to unique defenses that
render such plaintiff incapable of adequately representing the class.” 15 U.S.C. §
78u-4(a)(3)(B)(iii)(II). The Third Circuit has identified unique defenses to a class
representative such as misaligned interests with the class “and the representative
might devote time and effort to the defense at the expense of issues that are
common and controlling for the class.” Beck v. Maximus, Inc., 457 F.3d 291, 297
(3d Cir. 2006) (citations omitted). “A proposed class representative is neither
typical nor adequate if the representative is subject to a unique defense that is
likely to become a major focus of the litigation.” Beck, 457 F.3d at 301.
B. Largest Financial Interest, Adequacy, Typicality, and the “Most
Adequate Plaintiff” Rebuttable Presumption
Courts in this Circuit evaluate the following three factors to determine which
movant has the largest financial interest: (1) the number of shares the movants
purchased during the putative class period; (2) the total net funds the movants
expended during the same period; and (3) the approximate loss the movants
suffered. In re Cendant Corp. Litig., 264 F.3d at 262 (citations omitted). In this
Circuit, courts have attributed the third element as the most significant factor. See
In re Vonage Initial Pub. Offering (IPO) Sec. Litig., Civ. No. 17-177 (FLW), 2007
WL 2683636, at *4 (D.N.J. Sept. 7, 2007) (citing cases).
With its expanded class period, the Ellis Movants suffered losses of
$677,606.40, with the largest individual movant having a loss of $465,144.71.
Lifshitz Decl., Ex’s E-F; ECF No. 7. Whereas the Zhai Movants, in its proposed
class period, suffered total losses of $458,201.75, with the individual movant
having the largest loss of $229,343.58. Rosen Decl., Ex. 3; ECF No. 10.
As to whether the movant has made a prima facie showing of typicality and
adequacy, the “most adequate plaintiff” must (1) “have claims or defenses that are
typical of the claims or defenses of the class,” (the “typicality requirement”) and
(2) “be able to fairly and adequately protect the interests of the class (the
“adequacy requirement”). Id.; FED R. CIV. P. 23(a). With typicality, the Court
“should consider whether the circumstances of the movant with the largest losses
are markedly different or the legal theory upon which the claims [of that movant]
are based differ” from the basis for other class members’ claims.” In re Cendant
Corp. Litig., 264 F.3d at 265 (internal quotation marks and citation omitted). As to
adequacy, the Court should determine whether the movant “has the ability and
incentive to represent the claims of the class vigorously, [whether it] has obtained
adequate counsel, and [whether] there is [a] conflict between [the movant’s]
claims and those asserted on behalf of the class.” Id. (citation omitted) (alteration
in original).
Here, the Ellis and Zhai Movants’ claims and injuries suffered are typical of
those of the class members because the claims share substantially similar
questions of law and fact. Like the class members, the injuries arise out of the
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same events alleged in the Complaints. That is, because of Defendants’
misstatements and omissions, plaintiffs purchased Hongli securities at allegedly
inflated prices and suffered damages. Next, both Movant groups meet the
adequacy requirement because they will prosecute the action, obtain adequate
counsel, and there lacks a conflict of interest with the class members. Id. Although
the Ellis Movants argue the competing Movants are unrelated and were “cobbled
together” to gain control of the litigation which lessens their qualification for lead
plaintiff status, the PSLRA provides no bar to preventing a group of unrelated
persons from serving as lead plaintiff. See In re Cendant Corp. Litig., 264 F.3d at
266. Thus, the Zhai and Ellis Movants’ interests appear to align with the class
members.
Although the Ellis Movants suffered the largest financial loss and made a
prima facie showing of adequacy and typicality, the Zhai Movants have
successfully rebutted the presumption by showing the Ellis Movants are subject to
unique defenses. A movant must move the court to be appointed lead plaintiff of
the purported class “not later than 60 days after the date on which the notice is
published.” 15 U.S.C. § 78u-4(a)(3)(A)(i)(II). In doing so, the PSLRA requires
each movant to submit a sworn certification attesting to the required six
declarations. Id. § 78u-4(a)(2)(A). Upon initially filing its lead plaintiff motion,
the Ellis Movants provided unsworn PSLRA declarations that lacked the required
“under penalty of perjury” language as federal law requires. Lifshitz Decl., Ex’s
E-F; See 28 U.S.C. § 1746. Only after having the benefit of the Zhai Movants’
opposition papers, did the Ellis Movants file amended, compliant certifications.
Lifshitz Decl.; ECF No. 13. But the Ellis Movants hit a snag. This amended filing
took place 18 days after the 60-day lead plaintiff filing deadline.
The Ellis Movants gloss over the missing language in the PSLRA certifications
as a technicality that was cured with its amended filing, but it still stands that such
filing was late and “courts have rejected groups [for lead plaintiff] due to untimely
filing of either the certification of alleged losses or the complaint.” See In re Able
Labs. Sec. Litig., 425 F. Supp. 2d 562, 570 (D.N.J. 2006) (citing cases). And
unlike in instances where the PSLRA certifications’ validity is “fairly debatable,”
see Steamfitters Local 449 Pension Fund v. Cent. European Dist. Corp., Nos. 116247, 11-7085, 2012 WL 3638629, at *12 (D.N.J., Aug. 22, 2012)
(“Steamfitters”), that is not the case here. Absent the required language in its
initial certification and the amended certifications being filed after the 60-day
deadline, the Ellis Movants’ deficient certifications will subject it to a unique
defense that renders them “incapable of adequately representing the class” and, as
a result, they are not the presumptively most adequate lead plaintiff. 15 U.S.C.
78u-4(a)(3)(B)(iii)(II)(bb).
The Court concludes the Ellis Movants are the presumptive lead plaintiff
because they suffered the largest financial loss and made a prima facie showing of
adequacy and typicality, but the Zhai Movants have successfully rebutted the
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presumption by showing the Ellis Movants are subject to a unique defense that
could become a major focus of the litigation. The Court also finds the Zhai
Movants are entitled to the PSLRA’s rebuttable presumption and the Ellis
Movants have failed to rebut it. The Zhai Movants’ claims are typical of the class
and, despite the Ellis Movants’ arguments saying otherwise, such group of persons
would adequately represent the class. Further, the competing movants identify no
unique defense to the Zhai Movants that would render them inadequate to serve as
lead plaintiffs. Given the Zhai Movants’ selection of experienced counsel
discussed below, they are the most adequate plaintiffs.
III.

MOTION FOR SELECTION OF LEAD COUNSEL

The lead plaintiff, once appointed and subject to the court’s approval, is
entitled to select lead counsel to represent the class. 15 U.S.C. § 78u-4(a)(3)(B)(v).
Absent it being “necessary to protect the interests of the class,” a court will leave
undisturbed the lead plaintiff’s choice of counsel. Id. § 78u-4(a)(3)(B)(iii)(II)(aa);
In re Cendant Corp. Litig., 264 F.3d at 273. As to choice of counsel, the Zhai
Movants submitted materials on The Rosen Law Firm which included attorney
profiles and lists of cases dealing its relevant securities litigation experience. See
Rosen Decl., Ex. 4. Based on the information provided, the Court finds the firm is
capable of pursuing the litigation.
IV. CONCLUSION
For the foregoing reasons, the Zhai Movants’ motion to appoint lead plaintiff
and select lead counsel is GRANTED. The Ellis Movants’ motion is thus
DENIED. An appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 21, 2017

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