At 9:10 am on July 9th, in the trial court of the No. 31 court of the Guangzhou Intermediate People's Court, with the voice of the presiding judge Zhao Mingqi, the false statement of the high-profile Foshan lighting securities market was officially opened for trial.
Due to the large number of plaintiffs, the case was only awarded for trial and approval. The trial on the 9th was only a trial of some of the 1,303 shareholders who filed a lawsuit against Foshan Lighting. Among them, lawyer Wu Lijun of Shanghai Oriental Cambridge Law Firm represented 163 shareholders' claims, and Wang Zhibin of Shanghai Jiesai Law Firm represented 352 shareholders' claims, with a total of 515 shareholders and a litigation amount of 62 million yuan.
According to the reporter, due to the limited number of seats, there are not many shareholders attending the meeting. The 20 auditorium seats were packed, the media attended more, and some of the late listeners only stood and listened to the court. The plaintiff’s lawyer, Wang Zhibin, told the reporter: “The plaintiffs’ shareholders we represented were not present.†As the defendant, Foshan Lighting had a legal commissioner and an office director attending the audit.
One party is the two lawyers who represent the plaintiff's 515 shareholders, and the other is the lawyer of Guangdong Green Law Firm, who represented the defendant Foshan Lighting. The two sides sitting at the trial site "tit-for-tat" debated on four aspects: whether it constitutes a false statement of securities; second, whether the plaintiff has a loss; and third, if it constitutes a false statement and loss, its loss Whether it is related to a false statement; Fourth, how does the loss be calculated if it constitutes a loss? The original defendants elaborated on their respective views and questioned the evidence provided by the other party.
The entire trial lasted for three hours. Finally, when the presiding judge asked the parties to mediate their intentions, both the original defendants expressed their intention to mediate. However, the defendant’s attorney said: “The premise of mediation is to see what mediation plan the plaintiff proposed.†From the current attitude of the lawyers of both parties, it is more difficult to reach a settlement.
False statement or not?
During the trial on the 9th, the two sides debated whether Foshan Lighting constituted a false statement. According to Article 17 of the Judicial Interpretation of the Supreme People's Court: "The disclosure of illegal acts against major events can constitute a false statement. It includes four aspects, including major omissions, false statements, false records, misleading statements and improper disclosure. ."
On July 5, 2012, Foshan Lighting received the “Decision on the Supervision Measures of Guangdong Securities Regulatory Bureauâ€, which was ordered to make a public explanation because it did not disclose the relationship with the five companies. As of the time of the incident, it was found that Foshan Lighting's failure to disclose related relationships or related transactions in a timely manner increased to 16.
Does the amount of connected transactions of 16 affiliated companies meet the civil liability standard for false statements in securities? In this regard, the two sides launched a heated debate. The plaintiff’s attorneys unanimously held that “the amount involved is sufficient to constitute a false statement.†The defendant’s attorney has discussed his “significance or notâ€.
The defendant’s lawyer said: “Foshan Lighting has jointly disclosed the Qinghai Foshao Lithium Energy Development Co., Ltd., and Foshan Lighting has disclosed it in the daily announcement, but it has not been listed in the annual report. This behavior is a missing disclosure. The project related transaction amount is 8.765 million yuan, accounting for only 1.9% of the total net investment. In addition, the largest transaction in the connected transaction is the 4000 provided by Foshan Lighting for the related company Qinghai Salt Lake Fossil Lanke Lithium Co., Ltd. Ten thousand yuan guarantee, the ratio of the related party transactions to net assets is 1.33%." Therefore, Guangdong Green Law Firm does not consider it to constitute a major event, and therefore does not constitute a false statement of securities as stipulated in the judicial interpretation, and clearly indicates that it should not Reimbursement.
According to the statistics of the plaintiff's lawyers, the total amount of related transactions of all 15 affiliated companies was more than 60 million yuan, and the amount of external guarantees of one affiliated company reached 40 million yuan. The defendant’s attorney said: “All transactions have been disclosed in the audit report, but there is no disclosure on whether or not the transaction relationship, and the content of the sub-transaction is very small compared with similar businesses.â€
Does it constitute a false statement? In the respective debates of Shuangfa lawyers, no conclusion has been drawn.
How to determine the implementation date?
On July 6, 2012, it was identified as the disclosure date. For this, the original defendant basically had no objection. Only Wu Lijun said: "There should be two disclosure days, because Foshan Lighting received the punishment of the China Securities Regulatory Commission, it is divided into two stages. First, on July 6, 2012, the China Securities Regulatory Commission and Foshan Lighting and Five of the companies were penalized for the relationship and the omission of the transaction, and the other stage was the November 5, 2012, and the remaining 11 affiliates had a concealed decision on the relationship."
The most controversial issue is the identification of the implementation date. Lawyer Wu Lijun and Mr. Wang Zhibin unanimously determined that July 15, 2010 is the implementation date, which is the date of the connected transaction. Guangdong Green Law Firm, who represented the defendant Fang Foshan Lighting, said: "On July 13, 2010, Foshan Lighting and Hong Kong Sky jointly funded the establishment of Qinghai Fo Zhaoli Energy. The investment amount of RMB 87,739,000 has not yet reached the required disclosure. The standard of the project. On November 5, 2010, Foshan Lighting provided a guarantee of 40 million yuan for the affiliated company Qinghai Salt Lake Foshang Lanke Lithium Co., Ltd., which triggered the announcement conditions. It should be November 8, 2010, It is recognized as the implementation date."
Due to the determination of the disclosure date and the implementation date, it is of great significance for the determination of the amount of losses suffered by investors. In the case of being recognized as a false statement, the loss amount of the investor shall be calculated as the loss caused to the investor from the implementation date to the base date, and the disclosure date becomes one of the important criteria for the plaintiff to have the qualification of the compensation entity.
At present, the original defendant still has major differences, which also means that there is great uncertainty in the calculation and quantification of investor losses.
Direct causality?
With reference to the past Eastern Electronics case and the Shandong Demian case, in the discussion of whether the false statement has a direct causal relationship to the investor's loss, the systemic risk is indispensable.
What is system risk? The impact of China's and even international financial markets on China's stock market, the impact of economic fluctuations on China's capital market, the stock price fluctuations caused by the company's operating risks, etc., have all become the factors affecting the stock price fluctuations of listed companies. In the course of yesterday's trial, the defendant's attorneys believed that the market trend of China's capital market between 2010 and 2013, the trend of Shenwan Electronics and the trend of companies in the same industry were compared with the stock price fluctuations of Foshan Lighting. It was found that its trend has convergence. Among the factors affecting the decline in Foshan Lighting's share price, the impact of systemic risk is greater.
The plaintiff's lawyers believe that Foshan Lighting's false statement behavior is the most direct cause of its stock price decline. Therefore, the losses incurred during the period of the purchase of the company's stock after the disclosure date should be borne by Foshan Lighting.
However, there are also existing shareholders of Foshan Lighting’s appeal that litigation against listed companies, regardless of the final outcome, is unfavourable to existing investors because the interests of the company are closely linked to the interests of investors. A large part of the good or bad is determined by the company's performance and future development prospects. The company's efficiency and capital financing ability caused by the lawsuit will cause harm to the interests of current investors.
Since its listing in 1993, Foshan Lighting has achieved three financings, with a total financing of 890 million yuan. In the past 20 years, it has completed cash dividends of nearly 3.6 billion yuan. Wu Shunyong, the attorney of the defendant, told the reporter: "The administrative punishment imposed by Foshan Lighting by the China Securities Regulatory Commission has indeed confirmed that Foshan Lighting has violated regulations in information disclosure, but it does not mean that as long as it is subject to administrative punishment, it will inevitably constitute the establishment of false statements of securities. In turn, it takes full responsibility for the loss of investors."
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