UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Victor Marrero USDJ
A. BODISEN DEFENDANTS’ MOTION TO DISMISS
Bodisen Defendants move to dismiss the Complaint on the
grounds that, with regard to each claim, Plaintiffs failed to
adequately plead (1) a material misrepresentation or omission;
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(2) scienter; (3) loss causation; and (4) wrongdoing by the
Individual Defendants. The Court agrees that Plaintiffs have
failed to adequately plead a material misrepresentation or
omission in accordance with the heightened pleading standards
of Rule 9(b) and the PSLRA.
1. Relationship with NYGG
Bodisen Defendants argue that Bodisen did not have a duty
to disclose its relationship with NYGG because NYGG was not a
related party within the definition used by the SEC. Under
Rule 10b-5, silence absent a duty to disclose is not
misleading. Plaintiffs rely on SEC v. Enter. Solutions, Inc.,
142 F. Supp. 2d 561, 574 (S.D.N.Y. 2001) and 17 C.F.R. §
229.404(d), for the proposition that Bodisen had a duty to
disclose its relation with NYGG under the rule requiring the
disclosure of all transactions involving promoters. However,
the regulations define a “promoter” as:
(i) Any person who, acting alone or in conjunction with
one or more other persons, directly or indirectly takes
initiative in founding and organizing the business or
enterprise of an issuer; or
(ii) Any person who, in connection with the founding and
organizing of the business or enterprise of an issuer,
directly or indirectly receives ... 10 percent or more of
any class of securities of the issuer or 10 percent or
more of the proceeds from the sale of any class of such
securities.
17 C.F.R. § 240.12b-2. Plaintiffs do not allege that NYGG was
involved in founding or organizing Bodisen or that NYGG
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received the any payments in connection with the founding and
organizing of Bodisen necessary to place NYGG within the
regulatory definition of a promoter. Accordingly, the Court
finds that 17 C.F.R. § 229.404(d) did not impose a duty on
Bodisen to disclose its relationship with NYGG.
In the Complaint, Plaintiffs also note Financial
Accounting Standards Board (“FASB”) Statement of Financial of
Accounting Standard (“SFAS”) No. 57, which defines related
parties to include:
Affiliates of the enterprise ... principal owners of
the enterprise; its management; members of the immediate
families of principal owners of the enterprise and its
management; and other parties with which the enterprise
may deal if one party controls or can significantly
influence the management or operating policies of the
other to an extent that one of the transacting parties
might be prevented from fully pursuing its own separate
interests.
Plaintiffs do not allege that NYGG was an owner or manager of
Bodisen, or that NYGG controlled or significantly influenced
the management or operating procedures of Bodisen.
Accordingly, FASB SFAS No. 57 does not provide a basis for
imposing on Bodisen a duty to disclose its relationship or
transactions with NYGG.
Plaintiffs also claim that because Bodisen mentioned NYGG
in certain press releases and SEC filings, “[e]ach of these
disclosures triggered a duty for Bodisen to disclose all other
information regarding the NYGG/Bodisen relationship that would
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be material to investors.” (Lead Plaintiffs Opposition to
Motion of Bodisen Defendants to Dismiss for Failure to State
a Claim, dated Mar. 18, 2008 (“Pls.’ Opp. to Bodisen”) at 11.)
Bodisen Defendants argue that Plaintiffs offer no authority to
support this argument. However, the Court notes that “[a]
duty to disclose arises whenever secret information renders
prior public statements materially misleading ....” San
Leandro Emergency Med. Group Profit Sharing Plan v. Philip
Morris Companies, Inc., 75 F.3d 801, 810 (2d Cir. 1996)
(quoting In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 268
(2d Cir. 1993)); see also Gross v. Summa Four, Inc., 93 F.3d
987, 992 (1st Cir. 1996) (“When a corporation does make a
disclosure - whether it be voluntary or required - there is a
duty to make it complete and accurate.”).
Plaintiffs argue that Bodisen Defendants did not make
“meaningful disclosures about the Company’s close relationship
with NYGG or We and the material information about NYGG and
We’s troubling background that was concealed.” (Pls.’ Opp.
to Bodisen at 11.) Bodisen Defendants argue that they
disclosed the relationship in SEC filings and press releases
by stating that NYGG had acted as an advisor to Bodisen for
the purposes of, among other reasons, raising capital, and
assisting with brand recognition, fund raising, and stock
liquidity. Additionally, Bodisen Defendants assert that when
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Bodisen issued a press release stating that NYGS had provided
research coverage on Bodisen, it noted that NYGG was the
parent company of NYGS.
Plaintiffs specifically claim that Bodisen Defendants
should have disclosed information regarding Wei’s background.
However, Plaintiffs do not allege that Bodisen Defendants had
any knowledge of Wei’s prior disciplinary history. See Novak,
216 F.3d at 308 (“Corporate officials need not be clairvoyant;
they are only responsible for revealing those material facts
reasonably available to them.”) Plaintiffs have otherwise
failed to identify any specific information that Bodisen
Defendants should have disclosed in order to make their
statements regarding NYGG complete and not misleading.
Accordingly, the Court grants Bodisen Defendants’ motion
to dismiss Plaintiffs’ claims regarding Bodisen’s relationship
with NYGG.
2. Description of Products and Technology
Bodisen Defendants argue that Plaintiffs have failed to
allege that its statements regarding “proprietary technology”
and its descriptions of its products as “organic” and
“biotech” and were misleading.
Plaintiffs claim that Bodisen’s use of the term
“proprietary technology” was misleading because Bodisen held
no patents. Bodisen Defendants counter that Bodisen publicly
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acknowledged that it held no patents, that the legal
definition of proprietary technology is broader than simply
holding a patent, and that this definition encompasses its
confidential manufacturing process. The Court agrees. Legal
protections extend not just to patents, but also to trade
secrets, which may include: “any formula, pattern, device or
compilation of information which is used in one’s business,
and which gives [one] an opportunity to obtain an advantage
over competitors who do not know or use it.” Integrated Cash
Mgmt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d
171, 173 (2d Cir. 1990) (quoting Restatement of Torts § 757,
comment b). Because Plaintiffs rely solely on Bodisen’s lack
of patents, Plaintiffs have failed to allege that Bodisen
Defendants’ use of the term proprietary technology was false
or misleading. Accordingly, Plaintiffs’ claim based on
Bodisen Defendants’ use of the term “proprietary technology”
is dismissed.
Plaintiffs state that “Bodisen’s repeated use of the term
‘biotech’ was materially false and misleading.” (Pls.’ Opp.
to Bodisen at 13.) However, Plaintiffs’ only factual
allegation is that Bodisen used the term biotech in its name
and that a newspaper article stated “Bodisen isn’t biotech.”
(Compl. ¶ 26.) Plaintiffs fail to allege in any detail how
this use was false or misleading, but rather, rely on
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conclusory statements in the Complaint. Plaintiffs do not
define biotech nor demonstrate how Bodisen Defendants’ use of
the term was incorrect. Accordingly, Plaintiffs have failed
to satisfy their pleading burden of explaining why the
statements were fraudulent. See Cosmas, 886 F.2d at 11; see
also Rombach v. Chang, 355 F.3d 164, 174 (2d Cir. 2004)
(“[P]laintiffs must do more than say that the statements in
the press releases were false and misleading; they must
demonstrate with specificity why and how that is so.”).
Plaintiffs allege that Bodisen Defendants falsely
described their products as organic, when Wei admitted in a
the September 2006 Article that the products are not organic
as defined by United States and European standards.
Defendants respond that the products were used solely in
China, and therefore significance of the term “organic” to
investors was based on its use in China, not in the United
States.
Plaintiffs fail to articulate their definition of
organic, and do not make any specific statements as to how
Bodisen’s products fail to comply with any standard definition
of organic, but rather, rely solely on a statement attributed
to Wei that he did not believe the products were organic.
Plaintiffs have thus failed to satisfy their pleading burden
of demonstrating why the statements were fraudulent. Id.
Case 1:06-cv-13220-VM Document 88 Filed 09/18/2008 Page 31 of 40
2 Plaintiffs also claim that the internal controls and GAAP compliance
statements were false because Bodisen failed to disclose its relationship
with and payments to NYGG. Because the Court held above that Bodisen had
no duty to disclose this information, the Court will not address
Plaintiffs’ internal controls and GAAP compliance arguments relying on the
failure to disclose Bodisen’s relationship with NYGG.
32
3. Beneficial Ownership, Internal Controls and GAAP
Compliance
Plaintiffs’ claims regarding beneficial ownership,
internal controls, and GAAP compliance can be analyzed
together, as Plaintiffs’ allegations are that Bodisen
Defendants falsely reported Bodisen’s beneficial ownership,
and because of this, statements regarding adequate internal
controls and compliance with GAAP were also false and
misleading.2
Bodisen Defendants move to dismiss this claim arguing
that Plaintiffs have not alleged how the statements regarding
beneficial ownership were false, but rather, rely on the AMEX
letter, which stated that Bodisen’s beneficial ownership
records did not match that of its transfer agent. The Court
agrees.
Plaintiffs have not alleged exactly which statements
regarding beneficial ownership were false nor explained how
the statements were false, but instead rely on vague and
conclusory statements that are not supported by any specific
factual allegations. Plaintiffs use of large block quotes
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from SEC filings and press releases, followed by generalized
explanations of how the statements were false or misleading
are not sufficient to satisfy the heightened pleading
requirements. See In re Sina Corp. Sec. Litig., No. 05 Civ.
2514, 2006 WL 2742048, at *6 (S.D.N.Y. Sept. 26, 2006).
Additionally, Plaintiffs do not explain how the reported
beneficial ownership differs from that recorded by Bodisen’s
transfer agent, why such statements were false and misleading,
and how this circumstance renders false Bodisen Defendants’
statements regarding GAAP compliance and adequate internal
controls. See In re Scottish Re Group Sec. Litig., 524 F.
Supp. 2d 370, 378 (S.D.N.Y. 2007) (denying motion to dismiss
where four confidential witnesses, who were former employees
of the defendant, asserted precisely the controls the
defendant was lacking, and how that impacted the defendant’s
ability to function as an insurance company). The AMEX
letters upon which Plaintiffs rely are not sufficient, as they
lack the particularity required by Rule 9(b) and the PSLRA.
Such allegations are not sufficient to satisfy the pleading
standard, because “allegations of GAAP violations or
accounting irregularities, standing alone, are insufficient to
state a securities fraud claim.” Novak, 216 F.3d at 309.
Thus, Plaintiffs have failed to plead with particularity
their claims regarding beneficial ownership, internal
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controls, and GAAP compliance. Accordingly, Plaintiffs claims
on these bases are dismissed.
4. Plaintiffs’ Section 20(a) Claim
Because Plaintiffs failed to allege a primary violation
of Section 10(b), the Complaint does not satisfy the first
element of a prima facie Section 20(a) claim. Accordingly,
Plaintiffs’ Section 20(a) claim is dismissed.
B. KABANI’S MOTION TO DISMISS
Plaintiffs allege that Kabani falsely stated that
Bodisen’s financial reports were prepared in conformity with
GAAP, when they were not because of the failure to disclose
material related party transactions, the failure to review and
reconcile shareholder ownership records, and the failure to
maintain adequate internal accounting controls.
Kabani moves to dismiss on the grounds that (1) NYGG was
not a related party; and (2) the alleged misstatements
occurred in unaudited portions of the SEC filings for which
management, and not Kabani, were responsible. The Court
agrees.
1. Related Party Transactions
Because the Court held above that Bodisen was not
required to disclose its relationship with NYGG as a related
party transaction, Plaintiffs’ claim regarding Kabani’s
misstatements or omissions based on this argument must
Case 1:06-cv-13220-VM Document 88 Filed 09/18/2008 Page 34 of 40
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necessarily fail as well.
2. Beneficial Ownership and Internal Controls
As held above, Plaintiffs’ internal controls and
beneficial ownership claims against Bodisen Defendants fail to
satisfy the heightened pleading requirements of Rule 9(b) and
the PSLRA. Therefore, Plaintiffs’ claims against Kabani based
on these same allegations must necessarily fail as well.
However, even if Plaintiffs had sufficiently alleged that
Bodisen had misrepresented its beneficial ownership and
internal controls, Plaintiffs’ claim against Kabani would fail
because Plaintiffs failed to identify a material
misrepresentation of Bodisen’s financial condition in its
audited financial statements. See In re Ramp Corp. Sec.
Litig., No. 05 Civ. 6521, 2006 WL 2037913, at *8 (S.D.N.Y.
July 21, 2006). Without a materially false statement in the
company’s financial statements, the quality of the audit
performed by Kabani is immaterial. See id. “Compliance with
GAAP is relevant only insofar as it provides the investing
public with a level of assurance that the financial statements
accurately reflect the company’s financial position when
measured against [GAAP].” Id. (citing In re WorldCom Sec.
Litig., 352 F. Supp. 2d. 472, 495 (S.D.N.Y. 2005); In re
WorldCom Sec. Litig., 346 F. Supp. 2d. 628, 664 (S.D.N.Y.
2004)). If the financial statements accurately disclose the
Case 1:06-cv-13220-VM Document 88 Filed 09/18/2008 Page 35 of 40
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financial condition when measured against GAAP, then the
investing public has received all that it is entitled to
receive from the auditor certifying its audit of those
financial statements. See id.
Accordingly, Kabani’s motion to dismiss pursuant to Rule
12(b)(6) is granted.
C. DEFENDANTS’ MOTION TO STRIKE
Defendants’ move to strike Plaintiffs’ allegations based
on the AMEX delisting notices pursuant to Rule 12(f). Under
Rule 12(f) a court may strike from a pleading any redundant,
immaterial, impertinent, or scandalous matter. Generally,
motions to strike are viewed with disfavor and infrequently
granted. See In re Merrill Lynch & Co., Inc. Research Reports
Sec. Litig., 218 F.R.D. 76, 78 (S.D.N.Y. 2003) (citing Eskofot
A/S v. E.I. Du Pont De Nemours & Co., 872 F. Supp. 81, 93
(S.D.N.Y. 1995)).
Defendants rely on Lipsky v. Commonwealth United Corps.,
551 F.2d 887 (2d Cir. 1976), for the proposition that
Plaintiffs may not rely on the AMEX’s delisting letters
because the letters were not based on findings of fact
resulting in a final adjudication. Defendants’ reliance is
misplaced, as Lipsky referred to the use of a consent decree
as collateral estoppel, and Courts have found that such
evidence may be used as part of the factual background of a
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case. See ClearOne Commc’n, Inc. v. Lumbermens Mut. Cas. Co.,
No. 04 Civ. 119, 2005 WL 2716297, at *8 n.10 (D. Utah Oct. 21,
2005).
The Court finds that Plaintiffs’ use of Bodisen’s press
releases, which quote the AMEX letters, was not “redundant,
immaterial, impertinent, or scandalous.” Rule 12(f).
Accordingly, Defendants’ motion to strike allegations in the
Complaint pursuant to Rule 12(f) is denied.
D. LEAVE TO REPLEAD
When a cause of action is dismissed because of pleading
deficiencies, the usual remedy is to permit plaintiff to
replead his or her case. See Fed. R. Civ. P. 15(a) (“Rule
15(a)”). Whether to permit a plaintiff to amend his pleadings
is a matter committed to the Court’s “sound discretion.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.
2007). Rule 15(a) provides that leave to amend a complaint
“shall be freely given when justice so requires.” Fed. R.
Civ. P. 15(a). In particular, regarding claims of fraud,
“[p]laintiffs whose complaints are dismissed pursuant to Rule
9(b) are typically given an opportunity to amend their
complaint.” Olsen v. Pratt & Whitney Aircraft Div. of United
Techs. Corp., 136 F.3d 273, 276 (2d Cir. 1998) (citing Luce v.
Edelstein, 802 F.2d 49, 56 (2d Cir. 1986)); see also Lazard,
473 F. Supp. 2d at 590 (stating that leave to replead is
Case 1:06-cv-13220-VM Document 88 Filed 09/18/2008 Page 37 of 40
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“especially appropriate when claims are dismissed under Rule
9(b) because the law favors resolving disputes on their
merits”).
Bodisen Defendants argue that Plaintiffs should be denied
leave to replead. At this stage, the Court finds such a
course premature, especially where Plaintiffs’ claims are
dismissed for lack of particularity. Therefore, Bodisen
Defendants’ request to deny leave to replead is denied.
IV. ORDER
Accordingly, it is hereby
ORDERED that the motion of defendants Bodisen Biotech,
Inc., Bodisen, Bo Chen, Wang Chunsheng, Karen Quiong Wang, and
Yiliang Lai (Docket No. 46) to dismiss the Consolidated
Amended Class Action Complaint herein pursuant to Federal Rule
of Civil Procedure 12(b)(6) is GRANTED; and it is further
ORDERED that the motion of defendant Kabani (Docket No.
49) to dismiss the Consolidated Amended Class Action Complaint
herein pursuant to Federal Rule of Civil Procedure 12(b)(6) is
GRANTED; and it is further
ORDERED that the motion of defendant Kabani (Docket No.
49) to strike allegations from the Complaint pursuant to
Federal Rule of Civil Procedure 12(f) herein is DENIED; and it
is and it is finally
ORDERED that Plaintiffs are granted leave to file, by not more than 20 days from this order.
Victor Marrero USDJ
filed 9/18/08
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