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Laurence M. Rosen, Esq. (SBN 219683)
THE ROSEN LAW FIRM, P.A.
333 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
[Proposed] Lead Counsel for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
SUSAN HUFNAGLE,
INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY
SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, DEJUN ZOU,
JENNY LIU, BEN WANG, LI YU,
KENNITH C. JOHNSON, JIANPING
QIU, XIE QUAN, and ZEJIN LI,
Defendants.
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No. 2:10-cv-08695-VBF (VBKx)
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF MOTION OF
STREAM SICAV TO
CONSOLIDATE RELATED
ACTIONS, FOR
APPOINTMENT AS LEAD
PLAINTIFF AND APPROVAL
OF CHOICE OF COUNSEL
CLASS ACTION
JUDGE: HON. VALERIE BAKER
FAIRBANK
Hearing Date: February 14, 2011
Time: 1:30 p.m.
CTRM: 9, Spring Street
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ALAN STEVENS, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, ZOU DEJUN, QIU
JIANPING, JENNY LIU, BEN
WANG, YU LI, KENNITH C.
JOHNSON,
Defendants.
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No. 2:10-cv-09011-VBF (VBKx)
CLASS ACTION
BRENDA CHAU, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, JIANPING QIU,
DEJUN ZOU, KENNITH C.
JOHNSON, XIE QUAN, ZEJIN LI,
JENNY LIU, BRUCE RICHARDSON,
QUAN XIE, WEIGUO ZHANG,
Defendants.
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No. 2:10-cv-09517-VBF (VBKx)
CLASS ACTION
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ALI BAIG, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, DEJUN ZOU, BEN
WANG, YI LIU (A/K/A JENNY LIU),
YU LI,
Defendants.
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No. 8:10-cv-01754-VBF (VBKx)
CLASS ACTION
XI ZHANG, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, KENNITH C.
JOHNSON, ZEJIN LI, JENNY LIU,
JIANPING QIU, XIE QUAN, BEN
WANG, LI YU, WEIGUO ZHANG,
DEJUN ZOU ,
Defendants.
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No. 8:10-cv-01887-VBF (VBKx)
CLASS ACTION
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PAUL H. VU, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
vs.
RINO INTERNATIONAL
CORPORATION, ZOU DEJUN, BEN
WANG, YI LIU, BRUCE
RICHARDSON, YU LI, QIU
JIANPING, KENNITH C. JOHNSON,
QUAN XIE, ZEJIN LI, WEIGUO
ZHANG,
Defendants.
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No. 8:10-cv-01908-VBF (VBKx)
CLASS ACTION
MEMORANDUM OF POINTS AND AUTHORITIES
Movant Stream SICAV, a Luxembourg investment fund, (“Movant”)
respectfully submits this memorandum in support of its motion for an Order,
pursuant to Section 21D of the Securities Exchange Act of 1934 (the “Exchange
Act”), as amended by the Private Securities Litigation Reform Act of 1995 (the
“PSLRA”):
(1) consolidating the above-captioned related actions;
(2) appointing Stream SICAV as Lead Plaintiff for all persons other than
defendants who purchased the securities of RINO International, Inc. (the
“Company” or “RINO”) between March 31, 2009 and November 11, 2010,
inclusive (the “Class Period”), to recover damages caused by Defendants’
violations of the federal securities laws (the “Class”); and
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(3) appointing the Rosen Law Firm, P.A. as Lead Counsel for the Class.
I. PERTINENT BACKGROUND
On November 12, 2010, The Rosen Law Firm commenced this action
against Defendants1 for claims under Sections 10(b) and 20(a) of the Exchange
Act. On November 15, 2010, The Rosen Law Firm issued a PSLRA early notice
advising potential class members of, among other things, the claims alleged in this
case and the 60 day deadline for class members to move this Court to be appointed
as lead plaintiff. A copy of the early notice is attached as Exhibit 1 to the
Declaration of Laurence M. Rosen filed herewith (“Rosen Decl.”).
Following the filing of the instant action, which was the first-filed action in
this matter, five more related actions were filed in this District: Stevens v. RINO
International, Inc., et al., No. 2:10-cv-09011; Chau v. RINO International, Inc., et
al., 2:10-cv-09517; Baig v. RINO International, Inc., et al., No. 8:10-cv-01754;
Zhang v. RINO International, Inc., et al., No. 8:10-cv-01887; and Vu v. RINO
International, Inc., et al., No. 8:10-cv-01908. While certain of the related actions
name certain additional defendants, all of the actions allege the same or nearly
identical claims, class period, and nucleus of operative facts as this action.
The related complaints allege that RINO, a Nevada corporation
headquartered in China, and certain of its present and former officers and directors
violated the Exchange Act in connection with the Company’s issuance of
materially false and misleading statements about the Company’s true financial
condition; and the issuance of materially false and misleading financial statements
in its periodic reports filed with the Securities Exchange Commission (“SEC”).
1 “Defendants” refers to, collectively, RINO International, Inc., Dejun Zou, Ben
Wang, Li Yu, Jenny Liu, Kennith C. Johnson, Jianping Qiu, Xie Quan, and Zejin
Li.
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More specifically: On March 31, 2009, RINO filed its annual report for the
year ended December 31, 2008 on Form 10-K (“10-K”) with the SEC. On March
31, 2010, RINO filed its 10-K for the year ended December 31, 2009. In those
filings, RINO claimed revenues of $139.3 million and $192.6 million for fiscal
years 2008 and 2009, respectively. These figures were materially false and
misleading. According to the Company’s financial statements filed with the
China’s State Administration of Industry and Commerce, the Company only
generated $11 million of revenue for fiscal year 2009. In addition, the Complaint
alleges that most of RINO’s purported customers and contracts did not exist, and
that RINO’s management was funneling money away from the Company.
On November 10, 2010, a market research and trading firm by the name of
Muddy Waters issued an investigative report detailing this adverse information.
As this adverse information was disclosed to investors, the market price of RINO
shares dropped, damaging investors.
ARGUMENT
II. THE RELATED ACTIONS SHOULD BE CONSOLIDATED
Consolidation of related cases is proper where, as here, the actions involve
common questions of law and fact such that consolidation would prevent
unnecessary cost or delay in adjudication. When actions involving a common
question of law or fact are pending before the court, it may order a joint hearing or
trial of any or all of the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay. Fed. R. Civ. P. 42(a); see also
Richardson v. TVIA, 2007 WL 112344, at *2 (N.D. Cal. Apr. 16, 2007).
The PSLRA contemplates consolidation where “more than one action on
behalf of a class asserting substantially the same claim or claims arising under this
chapter has been filed.” 15 U.S.C. 78u-4(a)(3)(A)(ii). As such, the PSLRA does
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not displace the traditional legal standards for consolidation under Fed. R. Civ. P.
42(a).
Each of the above-captioned actions has been filed in this District alleging
similar factual and legal grounds to support allegations of violations of Sections
10(b) and 20(a) of the Exchange Act by the Defendants arising from the public
dissemination of false and misleading information to investors. Accordingly, the
above-referenced cases should be consolidated pursuant to Fed. R. Civ. P. 42(a)
for all purposes.
III. MOVANT SHOULD BE APPOINTED LEAD PLAINTIFF
The PSLRA sets forth procedures for the selection of Lead Plaintiff in class
actions brought under the Exchange Act. 15 U.S.C. § 78u-4(a)(3)(B). The
PSLRA directs courts to consider any motion to serve as Lead Plaintiff filed by
class members in response to a published notice of class action by the later of (i)
60 days after the date of publication, or (ii) as soon as practicable after the Court
decides any pending motion to consolidate. 15 U.S.C. § 78u-4(a)(3)(B)(i) and (ii).
The PSLRA provides a “rebuttable presumption” that the most “adequate
plaintiff” to serve as Lead Plaintiff is the “person or group of persons” that:
(aa) has either filed the complaint or made a motion in
response to a notice . . .;
(bb) in the determination of the Court, has the largest financial
interest in the relief sought by the class; and
(cc) 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); Richardson, 2007 WL 1129344, at * 2; (citing
In re Cavanaugh, 306 F.3d 726, 729-30 (9th Cir. 2002)).
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As set forth below, Movant satisfies the above criteria, has the largest
financial interest of any movant in this litigation, is therefore the most adequate
plaintiff and should be appointed as Lead Plaintiff.
A. Movant Is Willing to Serve as Class Representative
Stream SICAV, a sophisticated institutional investment fund, has made a
timely motion in response to a PSLRA early notice. See Rosen Decl., Ex. 1.
Additionally, as set forth in its PSLRA certification, filed herewith, Stream
SICAV attests that it has reviewed the complaint, adopts the allegations therein,
and is willing to serve as a representative of the class. See Rosen Decl. Ex. 2.
Accordingly, Stream SICAV satisfies the first requirement to serve as Lead
Plaintiff for the class.
B. Movant Has the Largest Financial Interest in the Action
The PSLRA requires a court to adopt a rebuttable presumption that “the
most adequate plaintiff . . . is the person … that . . . has the largest financial
interest in the relief sought by the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii);
Cavanaugh, 306 F.3d at 730. While the PSLRA does not specify precisely how to
calculate the “largest financial interest”, the movant’s approximate losses in the
subject securities is the best measure. Richardson, 2007 WL 1129344 at * 4
(citing cases).
Stream SICAV purchased 325,000 shares of RINO common stock during
the Class Period at a cost of $7,547,074.72; sold 200,000 of those shares for
$4,892,857.22; and retained the remaining 125,000 shares. Movant Stream
SICAV thereby suffered losses of $2,021,717.512. See Rosen Decl., Ex. 3.
2 In determining losses for held shares, the Movant uses the average daily closing
price of the Company’s stock after the end of the Class Period to January 10,
2011, $5.06. See In re MicroStrategy, Inc. Secs. Litig., 110 F. Supp.2d 427, 436
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With $2,021,717.51 in losses, Movant is not aware of any other movant that
has suffered greater losses in RINO stock during the Class Period. Accordingly,
Stream SICAV satisfies the largest financial interest requirement to be appointed
as Lead Plaintiff for the class.
C. The Movant Satisfies the Requirements of Rule 23 of the Federal
Rules of Civil Procedure
The PSLRA further provides that, in addition to possessing the largest
financial interest in the outcome of the litigation, the Lead Plaintiff must
“otherwise satisfy the requirements of Rule 23 of the Federal Rules of Civil
Procedure.” 15 U.S.C. §78u-4(a)(3)(B)(iii)(I)(cc). Federal Rule of Civil
Procedure Rule 23(a) provides that a party may serve as a class representative if
the following four requirements are satisfied:
(1) the class is so numerous that joinder of all members is
impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
In making its determination that a movant satisfies the requirements of Rule
23, the Court need not raise its inquiry to the level required in ruling on a motion
for class certification -- a prima facie showing that the Movant satisfies the
requirements of Rule 23 is sufficient. Cavanaugh, 306 F.3d at 730-31. At the
n. 22 (E.D. Va. 2000) (applying PSLRA look-back period price to held shares);
15 U.S.C. §78u-4(e)(1).
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lead plaintiff stage, “[t]he typicality and adequacy requirements of Rule 23 are the
main focus…” and “[e]xamination of the remaining requirements [of Rule 23] are
deferred until the lead plaintiff moves for class certification.” Richardson, 2007
WL 1129344, at * 4 (citing Cavanaugh, 306 F.3d at 730)).
Stream SICAV fulfills all of the pertinent requirements of Rule 23. It
shares substantially similar questions of law and fact with the members of the
class and its claims are typical of the members of the class. Stream SICAV and
the other members of the class allege that Defendants violated the Exchange Act
by publicly disseminating false and misleading financial statements about its
business. Stream SICAV, as did all of the members of the class, purchased RINO
stock at prices artificially inflated by Defendants’ misrepresentations and
omissions and were damaged thereby. These shared claims also satisfy the
requirement that the claims of the proposed lead plaintiff be typical of the claims
of the class.
Thus, the close alignment of interests between Stream SICAV and the other
class members, as well as its desire to prosecute this action on behalf of the class,
provides ample reason to appoint Stream SICAV as Lead Plaintiff.
D. The Movant Will Fairly and Adequately Represent the Interests
of the Class and Is Not Subject to Unique Defenses
The presumption in favor of appointing Stream SIVAC as Lead Plaintiff
may be rebutted only upon proof "by a purported member of the plaintiffs' class"
that the presumptively most adequate plaintiff:
(aa) will not fairly and adequately protect the interest of the class;
or
(bb) is subject to unique defenses that render such plaintiff incap-
able of adequately representing the class.
15 U.S.C. § 78u-4(a)(3)(B)(iii)(II).
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Movant’s ability and desire to fairly and adequately represent the class has
been discussed in Section C, above. Moreover, in furtherance of in protecting the
interests of the Class, Stream SICAV has independently negotiated a fee
agreement with The Rosen Law Firm, P.A. – further demonstrating it is
performing its fiduciary duties and protecting the interests of all Class members.
Stream SICAV is not aware of any unique defenses Defendants could raise against
it that would render it inadequate to represent the class. Accordingly, the Court
should appoint the Stream SICAV as Lead Plaintiff for the class.
E. Stream SICAV is Precisely the Type of Institutional Investor
Envisioned by the PSLRA
Stream SICAV, a sophisticated and professionally managed institutional
investment fund, is precisely the type of investor whose participation in securities
class actions Congress sought to encourage through the enactment of the PSLRA:
“Both the Conference Committee Report and the Senate Report state that the
purpose of the legislation was to encourage institutional investors to serve as lead
plaintiff, predicting that their involvement would significantly benefit absent class
members.” In re Cendant Corp. Litig., 264 F.3d 201, 273-74 (3d Cir. 2001)
(citing H.R. Conf. Rep. No. 104-369, at 34 (1995), reprinted in 1995
U.S.C.C.A.N. 730, 733); Tanne v. Autobytel, Inc., 226 F.R.D. 659, 670 (C.D. Cal.
2005) (“the PSLRA was enacted to encourage institutional investors to take a
more active role in securities litigation”). A copy of Stream SICAV’s information
sheet providing further information about Stream SICAV is attached as Exhibit 4
to the Rosen Declaration.
IV. MOVANT’S SELECTION OF COUNSEL SHOULD BE APPROVED
The PSLRA vests authority in the Lead Plaintiff to select and retain lead
counsel, subject to the approval of the Court. 15 U.S.C. § 78u-4(a)(3)(B)(v). The
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Court should only interfere with the Lead Plaintiff’s selection when necessary “to
protect the interests of the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)(aa).
Stream SICAV has selected The Rosen Law Firm as Lead Counsel. The
Rosen Law Firm filed the first of these related action and has been actively
researching the Class Plaintiffs’ claims - reviewing publicly available financial
and other documents and gathering information in support of the claims against
the defendants. Furthermore, the Rosen Law Firm is experienced in the area of
securities litigation and class actions, having been appointed as lead counsel in
securities class actions in this District and in other courts throughout the nation.
The firm has prosecuted securities fraud class actions and other complex litigation
and has obtained substantial recoveries on behalf of investors. The resume of the
Rosen Law Firm is attached as Exhibit 5 to the Rosen Declaration.
As a result of the firm’s experience in litigation involving issues similar to
those raised in this action, Movant’s counsel has the skill and knowledge that will
enable the firm to prosecute this action effectively and expeditiously. Thus, the
Court may be assured that by approving Stream SICAV’s selection of Lead
Counsel, the members of the class will receive the best legal representation
available.
V. CONCLUSION
For the foregoing reasons, Movant respectfully requests that the Court issue
an Order: (1) consolidating the above captioned related actions; (2) appointing
Stream SICAV as Lead Plaintiff of the class; (3) approving The Rosen Law Firm
P.A. as Lead Counsel; and (4) granting such other relief as the Court may deem to
be just and proper.
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Dated: January 14, 2011
Respectfully submitted,
THE ROSEN LAW FIRM, P.A.
/s/ Laurence Rosen, Esq.
Laurence M. Rosen, Esq. (SBN 219683)
THE ROSEN LAW FIRM, P.A.
333 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
[Proposed] Lead Counsel for Plaintiff
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CERTIFICATE OF SERVICE
I, Laurence M. Rosen, hereby declare under penalty of perjury as follows:
I am the managing attorney of the Rosen Law Firm, P.A., with offices at
333 South Grand Avenue, 25th Floor, Los Angeles, CA 90071. I am over the age
of eighteen.
On January 14, 2011, I electronically filed the following
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION OF STREAM SICAV TO CONSOLIDATE RELATED
ACTIONS, FOR APPOINTMENT AS LEAD PLAINTIFF AND
APPROVAL OF CHOICE OF COUNSEL with the Clerk of the Court using the
CM/ECF system which sent notification of such filing to counsel of record.
Executed on January 11, 2011
/s/ Laurence Rosen
Laurence M. Rosen
Case 2:10-cv-08695-VBF -VBK Document 36 Filed 01/14/11 Page 14 of 14 Page ID
#:811
