False Statements Of Listed Companies: A Shares' Blood And Rivers

After two and a half years, the green earth (13.94, -0.31, -2.18%) (002200.SZ) Counterfeiting The mist is about to uncover the veil.

In August 17, 2011, the green land received the indictment of the procuratorial organ of Kunming. The 5 listed companies, including the former chairman of the school, and Mr. ho Xue ye, will be jointly prosecuted for issuing shares and issuing important information illegally.

Tao Yusheng, a senior partner of Dacheng Law Firm in Beijing, seems to be saying that the days of investors to prosecute green earth false statements have been gradually approaching.

"As long as the court finds that the crime of Greenland and He Xuekui and others did not appeal, it means that the judgment comes into effect. After obtaining the effective legal judgment document, the shareholders can sue the green earth false statement. " Tao Yusheng said.

In terms of fraud, the green land is not isolated. A shares are similar to listed companies. This reporter statistics, from January 1, 2009 to date, the A share market has Wuliangye (39.60,0.40,1.02%) (000858.SZ), CLP Guang Tong (7.47, -0.17, -2.23%) (600764.SH), nitidine (7.17, -0.17, -2.32%) (600249.SH) and other 49 listed companies because of false statement Chen was punished by the SFC. The situation is grim. As of now, there are 31 companies on A shares, namely, Heng Heng Railway (3.31, -0.03, -0.90%) (000549.SZ), Jiangsu three friends (12.98, -0.02, -0.15%) (002044.SZ) and so on, which are being investigated by the SFC.

When these listed companies are making unscrupulous fraud, shareholders who suffer losses due to false statements are not sitting on their feet. They angrily take up arms of the law to defend their interests -- claiming compensation from listed companies.

But the premise of the claim is that the investors must wait until the court enters into force or the administrative organ (especially the SFC). What makes the investors suffer is that on the long road of prosecution, there are still a series of complex problems waiting for them, such as the confirmation of false statements, the determination of investors' investment losses and so on.

Disputes over the date of disclosure of false statements

After receiving the materials handed down by the shareholders, almost every lawyer has to do the same thing. That is to confirm the two key points in the false statement: the implementation date of the false statement and the disclosure date of the false statement.

In short, the implementation of false statements is the beginning of the fraud of listed companies. false The day of disclosure is the time when the act of counterfeiting was published in the world.

ST de cotton (002072.SZ)'s counterfeiting began in March 16, 2007, when it accumulated 435 million yuan to its controlling shareholders in two months, but all this information, ST de cotton did not disclose to the public in time. After all, the paper could not hold the fire. In June 5, 2008, ST German cotton issued a late release of the announcement about the illegal occupation of funds by Shandong de cotton Group Co., Ltd., disclosing the situation of providing funds for the above violations.

The lawyer quickly analyzed a conclusion that the implementation date of ST de cotton false statement compensation was March 16, 2007, and the date of the false statement compensation was June 5, 2008.

In accordance with the provisions of the Supreme Court on the trial of the conditions for civil compensation arising from false statements in the securities market, investors will only be able to meet the conditions of prosecution only if they buy the stock between the date of implementation of the false statement (March 16, 2007) to the date of the false statement (June 5, 2008, note: excluding the day) and sell or keep the stock in the day after the false statement is disclosed, and the loss of investment margin exists.

However, sometimes the confirmation of false statement is controversial.

Liu Guohua, a lawyer at Ben Ben law office in Guangdong, said: "in the actual operation of false statements, the implementation date of false statements is generally fairly good, but the confirmation of false statements will often be controversial."

This is perfectly reflected in the green earth. In March 18, 2010, the green earth announcement was filed by the securities and Futures Commission. The stock price fell by 4.73%. In March 18, 2011, He Xuekui, the former chairman of the green land announcement, was arrested. After the announcement, the first day of the sale of the green land was thrown out, and the share price had been firmly sealed down.

Whether it is March 18, 2010 or March 18, 2011 is the day of disclosure of false statements of the green earth, which is highly controversial in the legal profession.

Song Yixin, a lawyer of Shanghai new Wang Da Da law firm, believes that March 18, 2010 should be the disclosure date of the false statement of the green land. But Tao Yusheng's lawyer said that the "volume rise or fall" is an important criterion for judging the disclosure date of the false statement. In the case of the false statement of the green earth, the first trading day after the announcement in March 18, 2011 is significantly stronger than that in March 18, 2010, and the content of March 18, 2011 green earth announcement is more specific and clear, that is, the specific violations committed by the green land are identified, so it is more appropriate to make March 18, 2011 as the disclosure date of the false statement.

This reporter noted that in the false statements of Datang Telecom (11.23, -0.26, -2.26%) (600198.SH) and ST Tianyi (000908.SZ), the main dispute point between the listed company and the shareholders during the trial was the confirmation of the date of the false statement. Above 。

Usually, there is only one disclosure day for the above company's false statement, but *ST 600065.SH is a special case. It has been found by the court that there are two false statements infringement, that is, the fraud listing and the 1997 annual report's inflated profits. Therefore, it has been identified two exposure days respectively, that is, April 21, 1999 should be the disclosure date of the false statement in 1997 annual report, and the disclosure of the false statement in the prospectus should be April 27, 2000.

When the date of disclosure of a false statement is settled, it is often the last word of the court. Liu Guohua lawyers said that the date of false statement was affirmed by the court's final recognition.

Accounting for investment losses

It is easy for lawyers to find out that the time of stock trading is in line with the requirement of determining the date of implementation of false statements and the disclosure date of false statements. After that, they will calculate whether there is any loss for the shareholders, which is the most complex and crucial part of the false statement. Because only when investors lose investment, can they have the conditions for prosecution.

At this time, an important point of time appears, that is, the base date, usually from the date of the disclosure of false statements to the 100% of the stock's total turnover.

When accepting the entrustment of shareholders to prosecute 600991.SH, Liu Guohua lawyers approved investors' losses.

GAC Changfeng false statement was implemented on June 14, 2004, and the date of false statement was January 7, 2009. From January 7, 2009 to March 9, 2009, the total volume of GAC Changfeng was 2 million 13 thousand and 657 hands, just exceeding the 100% of the total number of shares of GAC Changfeng. Therefore, Liu Guohua lawyers will be identified in March 9, 2009 as GAC Changfeng false.

The benchmark day of the compensation case is stated, and the average price of the benchmark price, the arithmetic average of the closing price between the false statement exposure date and the base date, is calculated, that is, 6.77 yuan.

At this point, if an investor buys 100 shares at the price of 7.5 yuan / share on the day of the execution of the false statement and the date of the false statement, he sells the 100 shares at the price of 5.5 yuan / share between the day of the false statement and the base date, and the investment loss of the investor is the actual loss, that is, 200 yuan. If the investor is selling or holding after the base date, the amount of compensation is the difference between the average price of the buying stock and the base price, multiplied by the number of investors holding the securities. In such a case, the claim amount of the shareholder is changed to 78 yuan.

In fact, there are a group of investors who are very easy to ignore that they have the qualification to prosecute. Although these shareholders are not losing money or even making profits on the books, they have a judicial presumption of investment losses based on the benchmark price.

Similarly, in the false statement of GAC Changfeng, if an investor bought 100 shares at the price of 7.5 yuan / share on the day of the false statement and the day of the disclosure of the false statement, he chose to hold it until the base date after the disclosure of the false statement, because the benchmark price is 6.77 yuan / share, and the closing price of the benchmark day is 8.11 yuan / share. In such a case, although the investor has no loss on the basis of the loss of the book, instead of making a profit, he still has a deficit of 78 yuan in the judicial sense, so he can still propose to the listed company. Claim demage 。

Warrant prosecution suspect

Compared with the confirmation of investors' investment losses, whether the warrants holders have the qualification to prosecute is undoubtedly a difficult problem.

In April 29, 2011, Wuliangye (000858.SZ) received the administrative penalty document of the China Securities Regulatory Commission, which means that the door for shareholders to prosecute Wuliangye has been slowly pushed away. At this time, some lawyers came up with a huge question: is Wuliangye's warrant involved in litigation?

In the Wuliangye's false statements, the lawyers generally regarded November 30, 2007 as the implementation date of the false statement, and regarded September 9, 2009 as the disclosure date of the false statement. During the period from November 30, 2007 to March 26, 2008, the Wuliangye subscription warrant "five grain YGC1" and the warrant card "five grain YGP1" existed and traded normally.

"Wuliangye's warrant litigation involves the blank of the legal level in the false statement." Zang Xiaoli, lawyer of Beijing Ying Ke law firm, said. {page_break}

Song Yixin lawyer also thought about this problem. In his view, the warrant can buy the corresponding amount of Wuliangye stock through the right of execution, and the warrant will sell the corresponding number of Wuliangye shares through the right of execution. Because in the case of Wuliangye, its false statement is induced by multi type misrepresentation, so the warrant holder of Wuliangye warrant is likely to participate in safeguarding rights, while the warrant holder of Wuliangye's warrant is not.

However, the timing of sale and purchase is conditional, that is, the holder of the five grain YGC1 must buy from November 30, 2007 to March 26, 2008 and apply for the exercise after the end of the transaction in March 26, 2008. After that, Wuliangye shares must be sold or continued to be held and lost after September 9, 2009. Only those holders of warrants who meet these conditions may have the conditions of prosecution.

False statement: A shares are bloody.

"I have simulated and calculated that a considerable number of warrants holders can participate in claims." Liu Guohua lawyer said.

After November 30, 2007, five grain YGC1 was raised from 38.688 yuan to 51 yuan, then slowly dropped to 27.749 yuan in March 26, 2008. Because of the failure to do so, it would bring huge losses. So in April 2, 2008, there were 297 million 870 thousand 297 million 870 thousand grain YGC1 rights, and the translated version was 34.62 yuan / share.

In the false statements of Wuliangye, if September 9, 2009 is a false disclosure day, the volume of the transaction reaches or exceeds 100% is January 13, 2010. The average price of the closing price is 26.23 yuan / share. At the same time, in September 9, 2009 January 13, 2010, Wuliangye's stock price is only 32.62 yuan / share, which means that if the holder of the YGC1 of five grain is retained after the exercise of the right to sell or continue to hold in September 9, 2009, it may theoretically participate in the claim group.

A strange phenomenon is that institutional investors are too quiet for investors to vigorously defer the false statements of listed companies.

The only way to get angry is the Dacheng Fund. In February 28, 2007, the Dacheng Fund once announced that the company represented the fund Jinghong (1.078, -0.00, -0.37%) and the fund Jingfu (1.041, -0.01, -1.05%) to the Yinchuan intermediate people's court to lodge the false statement damage compensation lawsuit to the *ST Guangxia (000557.SZ), the claim number is a sky high price - 246 million yuan.

In February 26, 2007, the Dacheng Fund received the notification from the intermediate people's Court of the Ningxia Hui Autonomous Region, Yinchuan, that the case was accepted by the intermediate people's Court of the Ningxia Hui Autonomous Region, the Ningxia Hui Autonomous Region. Unfortunately, the Dacheng Fund's lawsuit was rejected in the first instance, and the Dacheng Fund appealed again in March 2008, but the court of second instance upheld the verdict of the first instance.

In fact, in the false statements of listed companies, institutional investors with funds as the main body will inevitably lose money just like ordinary investors, but the reality is that institutional investors have not actively proposed to prosecute and recover losses.

Bank of China (2.94, -0.02, -0.68%) - the China stock open fund of AIA Huatai flourishing, is likely to encounter Waterloo in Nanjing 000421.SZ. The implementation date of Nanjing hundred false statements is March 18, 2004, and the date of false statement is April 8, 2010. Therefore, it is easy to calculate that June 7, 2010 should be the base day, and the benchmark price should be 6.62 yuan.

In the first quarter of 2010, the Bank of China, AIA Huatai heyday China stock open fund, entered the top ten tradable shareholders in Nanjing, accumulating 2 million 623 thousand and 900 shares, while the price range of Nanjing in the first quarter of 2010 was 6.02 yuan to 7.67 yuan / share, and the weighted average price should be 6.88 yuan / share. However, after a hundred false statements in Nanjing, its share price rose from 7.54 yuan / share to a 4.65 yuan / share at the end of 2010, which means that the Bank of China, the Bank of China, withdraws from the two quarter of 2010, has a very high risk of loss.

"Institutional investors do not prosecute, may be for a variety of considerations." Zheng Mingwei, lawyer of Guangdong Jing Tian law firm, said.

But in Liu Guohua's lawyer's opinion, if the fund is lost in the false statement, fund managers should actively sue the listed companies, because the loss of the fund will eventually be borne by the basic people. If the fund does not sue, the fund can prosecute fund managers.

The evolution of litigation

In the early cases of false litigation of listed companies, Dong Jiangao, brokerage firms, accounting firms and other intermediary agencies were often taken as defendants. For this reason, after losing the lawsuit, Dong Jiangao and intermediaries of the listed companies also paid for their shareholders.

In 2002, in the case of Jiabao industrial misrepresentation in the case of "the first compensation for shareholders", Chen Boxing, a director of Jiabao Industrial Co., once compensated the investors for 800 yuan, and then returned to the shareholders for withdrawal. In the *ST friendship false statement, which was decided in 2006, the Shenyin Wanguo Securities, as the lead underwriter, was jointly and severally liable for the false statement, which compensated the shareholders for up to 6 million 80 thousand yuan.

But as time goes on, in recent years, the defendants in fraudulent statements usually do not see Tung Chung Gao as well as the agency.

Zheng Mingwei, a lawyer from Guangdong Tian Tian law firm, told our reporter that in the actual operation of the false statements, Dong Jiangao usually needs to provide the court with high personal identification information to the court, so the time of litigation is often prolonged in the operation. Moreover, the solvency of the listed company is much stronger than that of Dong Jiangao, so it will basically give up the director as a defendant.

In addition, according to the provisions on the conditions for civil compensation arising from false statements in the securities market, Dong Jian Gao will be liable for joint liability if he has any fault in the false statement. The actual controller manipulates the listed company to make false statements, and the listed company can recover the compensation from the actual controller after assuming the liability of compensation.

"In reality, it is hard for you to see that the listed company is seeking compensation from Tung Chung Gao or the actual controller." Zheng Mingwei lawyer said, the reason is that Dong Gao's high fault is a duty behavior. If a listed company recourse to them, they often leave a sense of "down the drain" and the actual controller controls the listed company, and the listed company is more likely to recover from him.

However, what is worth noting is that in order to avoid the mistakes made by the senior supervisor, the listed company is deeply involved in the risk of compensation for misrepresentation. Vanke A (8.14,0.00,0.00%) (000002.SZ) purchased the "director and Senior Officer Liability Insurance" policy for Dong Jian in January 23, 2002, which accumulated a total compensation limit of 5 million yuan, while the Shenzhen Development A (16.60, -0.13, -0.78%) (000001.SZ) also adopted the motion on the purchase of directors and senior officers liability insurance at the annual general meeting of shareholders in 2010, with an insurance amount of 50 million dollars.

"Obviously, the insurance purchased by Vanke A and Shenzhen Development A can circumvent the risk of compensation brought by the false statement to a certain extent." Zheng Mingwei lawyer said.