关于最近的阿里巴巴证券集体诉讼案，咨询者甚众，为方便投资者了解案情以更好地保护自己的合法权益，现将我们律师撰写的本案诉状初稿发布如下。实际提交法院的诉状会随案情发展和我们根据掌握的最新证据进行修改。此稿不含任何投资者信息，亦非提交法院的正式文本文件，所涉内容多为公开信息和律师法律意见，属于可公开文件，仅供大家参考讨论，如果读者有不同意见或了解可能与本案有关的证据或详情或有任何观点建议，或发现其中错误疏忽等，敬请不吝赐教，与我们联系。后面附有本案征集的基本信息摘要和重要时间节点。
UNITED STATES DISTRICT COURT
southern District of new york
_______, Individually and On Behalf of All Others Similarly Situated,
Plaintiff,
v.
ALIBABA GROUP HOLDING LIMITED, DANIEL ZHANG, and MAGGIE WU,
Defendants.
CLASS ACTION COMPLAINT
Plaintiff ______ (“Plaintiff”),individually and on behalf of all other persons similarly situated, by Plaintiff’sundersigned attorneys, for Plaintiff’s complaint against Defendants, allegesthe following based upon personal knowledge as to Plaintiff and Plaintiff’s ownacts, and information and belief as to all other matters, based upon, inter alia, the investigation conductedby and through Plaintiff’s attorneys, which included, among other things, areview of the Defendants’ public documents, conference calls and announcementsmade by Defendants, United States (“U.S.”) Securities and Exchange Commission (“SEC”)filings, wire and press releases published by and regarding Alibaba GroupHolding Limited (“Alibaba” or the “Company”),analysts’ reports and advisories about the Company, and information readilyobtainable on the Internet. Plaintiffbelieves that substantial evidentiary support will exist for the allegationsset forth herein after a reasonable opportunity for discovery.
NATUREOF THE ACTION
1. This is a federal securitiesclass action on behalf of a class consisting of all persons other than Defendantswho purchased or otherwise acquired Alibaba securities between October 21, 2020and November 3, 2020, both dates inclusive (the “Class Period”), seeking torecover damages caused by Defendants’ violations of the federal securities lawsand to pursue remedies under Sections 10(b) and 20(a) of the SecuritiesExchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgatedthereunder, against the Company and certain of its top officials.
2. Alibabaa is an online and mobile commerce company. Alibaba owns a 33% equity interest in AntSmall and Micro Financial Services Group Co., Ltd. (“Ant Group”), a financialtechnology company that is best known for operates Alipay, one of the largestmobile and online payments platforms.
3. On July 20, 2020, Ant Groupannounced that it had begun the process of a concurrent initial public offering(“IPO”) on the Shanghai and Hong Kong stock exchanges. On October 26, 2020, Ant Group priced its IPOand was set to raise $34.5 billion, making it the largest public offering inhistory.
4. Throughout the Class Period, Defendantsmade materially false and misleading statements regarding the Company’sbusiness, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/orfailed to disclose: (i) that Ant Group did not meetlisting qualifications or disclosure requirements for certain material matters;(ii) that certain impending changes in the Fintech regulatory environment wouldimpact Ant Group’s business; (iii) that, as a result of the foregoing, AntGroup’s IPO was reasonably likely to be suspended; and (iv) that, as a resultof the foregoing, Defendants’ positive statements about the Company’s business,operations, and prospects were materially misleading and/or lacked a reasonablebasis.
5. On November 2, 2020, Financial Timesreported that Chinese regulators had met with Ant Group’s controller Jack Ma,executive chairman Eric Jing, Chief Executive Officer Simon Hu. The article stated that, though regulatorsdid not provide details, “the Chinese word used to describe the interview –yuetan – generally indicates a dressing down by authorities.” The article also included a statement fromAnt Group that it will “implement the meeting opinions in depth.”
6. On November 3, 2020, the IPOwas suspended because Ant Group “may not meet listing qualifications ordisclosure requirements due to material matters” related to the meeting withregulators the previous day and “the recent changes in the Fintech regulatoryenvironment.”
7. On this news, the Company’s share price fell $25.27, or 8%, toclose at $285.57 per share on November 3, 2020, on unusually heavy tradingvolume.
8. As a result of Defendants’wrongful acts and omissions, and the precipitous decline in the market value ofthe Company’s securities, Plaintiff and other Class members have sufferedsignificant losses and damages.
JURISDICTIONAND VENUE
9. The claims asserted hereinarise under and pursuant to Sections 10(b) and 20(a) of the Exchange Act (15U.S.C. §§ 78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by the SEC(17 C.F.R. § 240.10b-5).
10. This Court has jurisdictionover the subject matter of this action pursuant to 28 U.S.C. § 1331 and Section27 of the Exchange Act.
11. Venue is proper in thisJudicial District pursuant to Section 27 of the Exchange Act (15 U.S.C. § 78aa)and 28 U.S.C. § 1391(b). Substantial acts in furtherance of the alleged fraud or the effectsof the fraud have occurred in this Judicial District. Many of the acts charged herein, includingthe dissemination of materially false and/or misleading information, occurredin substantial part in this Judicial District.
12. In connection with the acts alleged in thiscomplaint, Defendants, directly or indirectly, used the means andinstrumentalities of interstate commerce, including, but not limited to, themails, interstate telephone communications, and the facilities of the nationalsecurities markets.
PARTIES
13. Plaintiff, as set forth in theattached Certification, acquired Alibaba securities at artificially inflatedprices during the Class Period and was damaged upon the revelation of thealleged corrective disclosures.
14. Defendant Alibaba isincorporated under the laws of Cayman Islands with its principal executiveoffices located in Hong Kong. Alibaba’sAmerican Depositary Shares (“ADSs” or “shares”) trades on the New York StockExchange (“NYSE”) under the symbol “BABA.”
15. Defendant Daniel Zhang(“Zhang”) was the Company’s Chief Executive Officer (“CEO”) at all relevanttimes.
16. Defendant Maggie Wu (“Wu”) wasthe Company’s Chief Financial Officer (“CFO”) at all relevant times.
17. Defendants Zhang and Wu aresometimes referred to herein as the “Individual Defendants.”
18. The Individual Defendantspossessed the power and authority to control the contents of Alibaba’s SECfilings, press releases, and other market communications. The Individual Defendants were provided withcopies of Alibaba’s SEC filings and press releases alleged herein to bemisleading prior to or shortly after their issuance and had the ability andopportunity to prevent their issuance or to cause them to be corrected. Because of their positions with Alibaba, andtheir access to material information available to them but not to the public,the Individual Defendants knew that the adverse facts specified herein had notbeen disclosed to and were being concealed from the public, and that thepositive representations being made were then materially false and misleading. The Individual Defendants are liable for thefalse statements and omissions pleaded herein.
19. Alibaba and the IndividualDefendants are collectively referred to herein as “Defendants.”
SUBSTANTIVEALLEGATIONS
Background
20. Alibaba is an online and mobilecommerce company. Alibaba owns a 33%equity interest in Ant Group, a financial technology company that is best knownfor operates Alipay, one of the largest mobile and online payments platforms.
21. On July 20, 2020, Ant Groupannounced that it had begun the process of a concurrent IPO on the Shanghai andHong Kong stock exchanges.
MateriallyFalse and Misleading Statements Issued During the Class Period
22. The Class Period begins on October21, 2020, when Alibaba filed a Form 6-K with the SEC. Attached as Exhibit 99.1 was a statemententitled “Ant Group has announced its arrangements for initial public offeringand listing,” stating in relevant part:
Ant Group Co., Ltd. (“AntGroup”), an unconsolidated related party of Alibaba Group Holding Limited (“Alibaba”),today published an announcement on the Shanghai Stock Exchange regarding thearrangements for its initial public offering and listing on the Shanghai StockExchange STAR board (the “A Share Offering”) and certain information regardingits concurrent initial public offering and listing on The Stock Exchange ofHong Kong Limited (the “H Share Offering” and together with the A ShareOffering, the “Offering”).
Alibaba currently holdsordinary shares of Ant Group and Class C shares of Ant International Co.,Limited (“Ant International”), a subsidiary of Ant Group, that togetherrepresent 33% of the equity interest in Ant Group, assuming the completion ofthe redemption and subscription arrangement described below.
The A Share Offering and HShare Offering will initially comprise 1,670,706,000 A shares and 1,670,706,000H shares, respectively. Pursuant to a redemption and subscription arrangement,Ant International will redeem all Class B and Class C shares of AntInternational and Ant Group will issue 3,256,446,324 H shares to holders ofClass B shares and Class C shares of Ant International (including 1,158,572,686H shares to Alibaba). In addition, for each of the A Share Offering and the HShare Offering, Ant Group expects to grant the underwriters an overallotmentoption to purchase additional shares representing no more than 15.00% of thenumber of shares initially offered.
Alibaba has agreed tosubscribe for 730 million A shares as part of the placement to strategicinvestors in the A Share Offering, subject to receipt of required regulatoryapprovals and fulfillment of other customary conditions precedent.
We understand that the finalstructure, price and timing of the Offering will be contingent upon marketconditions and other factors, and there can be no assurance as to if and whenthe Offering will be completed.
23. On October 26, 2020, Alibabafiled a Form 6-K with the SEC. Attachedas Exhibit 99.1 was a statement entitled “Ant Group has announced the launch ofits concurrent initial public offerings in Shanghai and Hong Kong,” stating inrelevant part:
Ant Group Co., Ltd. (“AntGroup”), an unconsolidated related party of Alibaba Group Holding Limited(“Alibaba”), today announced the launch of its concurrent initial publicofferings in Shanghai (the “A Share Offering”) and Hong Kong (the “H ShareOffering” and together with the A Share Offering, the “Offering”), in each casewith a fixed price. The offer prices for the A Share Offering and H ShareOffering have been set at RMB68.80 per share and HK$80.00 per share,respectively.
As previously announced onOctober 21, 2020, Alibaba has agreed to subscribe for 730 million A shares aspart of the placement to strategic investors in the A Share Offering (the“Subscription”). Based on the offer price of RMB68.80 per share, the totalconsideration for the Subscription would be approximately RMB50.2 billion. TheSubscription is subject to receipt of required regulatory approvals andfulfillment of other customary conditions precedent. Based on the subscriptionof 730 million A shares, Alibaba expects to hold approximately 31.8% of theequity interest in Ant Group following the Offering, or 31.2% of the equityinterest in Ant Group if the underwriters exercise in full their options topurchase additional shares in both the A Share Offering and H Share Offering.
24. The statements referenced in ¶¶22-23 were materially false and misleading because Defendants made false and/ormisleading statements, as well as failed to disclose material adverse factsabout the Company’s business, operational and compliance policies. Specifically, Defendantsmade false and/or misleading statements and/or failed to disclose that:(i) that Ant Group did not meet listing qualifications or disclosurerequirements for certain material matters; (ii) that certain impending changesin the Fintech regulatory environment would impact Ant Group’s business; (iii)that, as a result of the foregoing, Ant Group’s IPO was reasonably likely to besuspended; and (iv) that, as a result of the foregoing, Defendants’ positivestatements about the Company’s business, operations, and prospects werematerially misleading and/or lacked a reasonable basis.
TheTruth Begins to Emerge
25. On November 2, 2020, Financial Timesreported that Chinese regulators had met with Ant Group’s controller Jack Ma,executive chairman Eric Jing, Chief Executive Officer Simon Hu. The article stated that, though regulators didnot provide details, “the Chinese word used to describe the interview – yuetan– generally indicates a dressing down by authorities.” The article also included a statement fromAnt Group that it will “implement the meeting opinions in depth.”
26. On November 3, 2020, the IPOwas suspended because Ant Group “may not meet listing qualifications ordisclosure requirements due to material matters” related to the meeting withregulators the previous day and “the recent changes in the Fintech regulatoryenvironment.”
27. On this news, the Company’s shareprice fell $25.27, or 8%, to close at $285.57 per share on November 3, 2020, onunusually heavy trading volume.
28. As a result of Defendants’wrongful acts and omissions, and the precipitous decline in the market value ofthe Company’s securities, Plaintiff and other Class members have sufferedsignificant losses and damages.
PLAINTIFF’SCLASS ACTION ALLEGATIONS
29. Plaintiff brings this action asa class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) onbehalf of a Class, consisting of all those who purchased or otherwise acquired Alibabasecurities during the Class Period (the “Class”); and were damaged upon therevelation of the alleged corrective disclosures. Excluded from the Class are Defendants herein,the officers and directors of the Company, at all relevant times, members oftheir immediate families and their legal representatives, heirs, successors orassigns and any entity in which Defendants have or had a controlling interest.
30. The members of the Class are sonumerous that joinder of all members is impracticable. Throughout the Class Period, Alibaba securitieswere actively traded on the NASDAQ. While the exact number of Class members isunknown to Plaintiff at this time and can be ascertained only throughappropriate discovery, Plaintiff believes that there are hundreds or thousandsof members in the proposed Class. Recordowners and other members of the Class may be identified from records maintainedby Alibaba or its transfer agent and may be notified of the pendency of thisaction by mail, using the form of notice similar to that customarily used insecurities class actions.
31. Plaintiff’s claims are typicalof the claims of the members of the Class as all members of the Class aresimilarly affected by Defendants’ wrongful conduct in violation of federal lawthat is complained of herein.
32. Plaintiff will fairly andadequately protect the interests of the members of the Class and has retainedcounsel competent and experienced in class and securities litigation. Plaintiff has no interests antagonistic to orin conflict with those of the Class.
33. Common questions of law andfact exist as to all members of the Class and predominate over any questionssolely affecting individual members of the Class. Among the questions of law and fact common tothe Class are:
· whether the federal securitieslaws were violated by Defendants’ acts as alleged herein;
· whether statements made by Defendantsto the investing public during the Class Period misrepresented material factsabout the business, operations and management of Alibaba;
· whether the IndividualDefendants caused Alibaba to issue false and misleading financial statementsduring the Class Period;
· whether Defendants actedknowingly or recklessly in issuing false and misleading financial statements;
· whether the prices of Alibaba securitiesduring the Class Period were artificially inflated because of the Defendants’conduct complained of herein; and
· whether the members of theClass have sustained damages and, if so, what is the proper measure of damages.
34. A class action is superior toall other available methods for the fair and efficient adjudication of thiscontroversy since joinder of all members is impracticable. Furthermore, as the damages suffered byindividual Class members may be relatively small, the expense and burden ofindividual litigation make it impossible for members of the Class toindividually redress the wrongs done to them. There will be no difficulty in the management of this action as a classaction.
35. Plaintiff will rely, in part,upon the presumption of reliance established by the fraud-on-the-marketdoctrine in that:
· Defendants made publicmisrepresentations or failed to disclose material facts during the ClassPeriod;
· the omissions andmisrepresentations were material;
· Alibaba securities are tradedin an efficient market;
· the Company’s shares wereliquid and traded with moderate to heavy volume during the Class Period;
· the Company traded on the NASDAQ and was covered by multipleanalysts;
· the misrepresentations andomissions alleged would tend to induce a reasonable investor to misjudge thevalue of the Company’s securities; and
· Plaintiff and members of theClass purchased, acquired and/or sold Alibaba securities between the time the Defendantsfailed to disclose or misrepresented material facts and the time the true factswere disclosed, without knowledge of the omitted or misrepresented facts.
36. Based upon the foregoing,Plaintiff and the members of the Class are entitled to a presumption ofreliance upon the integrity of the market.
37. Alternatively, Plaintiff and the members of the Class areentitled to the presumption of reliance established by the Supreme Court in Affiliated Ute Citizens of the State of Utahv. United States, 406 U.S. 128, 92 S. Ct. 2430 (1972), as Defendantsomitted material information in their Class Period statements in violation of aduty to disclose such information, as detailed above.
COUNT I
(Violations ofSection 10(b) of the Exchange Act and Rule 10b-5 Promulgated Thereunder AgainstAll Defendants)
38. Plaintiff repeats and re-allegeseach and every allegation contained above as if fully set forth herein.
39. This Count is asserted against Defendantsand is based upon Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), andRule 10b-5 promulgated thereunder by the SEC.
40. During the Class Period, Defendantsengaged in a plan, scheme, conspiracy and course of conduct, pursuant to whichthey knowingly or recklessly engaged in acts, transactions, practices and coursesof business which operated as a fraud and deceit upon Plaintiff and the othermembers of the Class; made various untrue statements of material facts andomitted to state material facts necessary in order to make the statements made,in light of the circumstances under which they were made, not misleading; andemployed devices, schemes and artifices to defraud in connection with thepurchase and sale of securities. Suchscheme was intended to, and, throughout the Class Period, did: (i) deceive the investing public, includingPlaintiff and other Class members, as alleged herein; (ii) artificially inflateand maintain the market price of Alibaba securities; and (iii) cause Plaintiffand other members of the Class to purchase or otherwise acquire Alibaba securitiesand options at artificially inflated prices. In furtherance of this unlawful scheme, plan and course of conduct, Defendants,and each of them, took the actions set forth herein.
41. Pursuant to the above plan,scheme, conspiracy and course of conduct, each of the Defendants participateddirectly or indirectly in the preparation and/or issuance of the quarterly andannual reports, SEC filings, press releases and other statements and documentsdescribed above, including statements made to securities analysts and the mediathat were designed to influence the market for Alibaba securities. Such reports, filings, releases andstatements were materially false and misleading in that they failed to disclosematerial adverse information and misrepresented the truth about Alibaba’sfinances and business prospects.
42. By virtue of their positions at Alibaba, Defendantshad actual knowledge of the materially false and misleading statements andmaterial omissions alleged herein and intended thereby to deceive Plaintiff andthe other members of the Class, or, in the alternative, Defendants acted withreckless disregard for the truth in that they failed or refused to ascertainand disclose such facts as would reveal the materially false and misleadingnature of the statements made, although such facts were readily available to Defendants. Said acts and omissions of Defendants werecommitted willfully or with reckless disregard for the truth. In addition, each Defendant knew orrecklessly disregarded that material facts were being misrepresented or omittedas described above.
43. Information showing that Defendantsacted knowingly or with reckless disregard for the truth is peculiarly within Defendants’knowledge and control. As the seniormanagers and/or directors of Alibaba, the Individual Defendants had knowledgeof the details of Alibaba’s internal affairs.
44. The Individual Defendants areliable both directly and indirectly for the wrongs complained of herein. Because of their positions of control andauthority, the Individual Defendants were able to and did, directly orindirectly, control the content of the statements of Alibaba. As officers and/or directors of apublicly-held company, the Individual Defendants had a duty to disseminatetimely, accurate, and truthful information with respect to Alibaba’sbusinesses, operations, future financial condition and future prospects. As a result of the dissemination of theaforementioned false and misleading reports, releases and public statements,the market price of Alibaba securities was artificially inflated throughout theClass Period. In ignorance of theadverse facts concerning Alibaba’s business and financial condition which wereconcealed by Defendants, Plaintiff and the other members of the Class purchasedor otherwise acquired Alibaba securities at artificially inflated prices andrelied upon the price of the securities, the integrity of the market for thesecurities and/or upon statements disseminated by Defendants, and were damagedthereby.
45. During the Class Period, Alibabasecurities were traded on an active and efficient market. Plaintiff and the other members of the Class,relying on the materially false and misleading statements described herein,which the Defendants made, issued or caused to be disseminated, or relying uponthe integrity of the market, purchased or otherwise acquired shares of Alibaba securitiesat prices artificially inflated by Defendants’ wrongful conduct. Had Plaintiff and the other members of theClass known the truth, they would not have purchased or otherwise acquired saidsecurities, or would not have purchased or otherwise acquired them at theinflated prices that were paid. At thetime of the purchases and/or acquisitions by Plaintiff and the Class, the truevalue of Alibaba securities was substantially lower than the prices paid by Plaintiffand the other members of the Class. Themarket price of Alibaba securities declined sharply upon public disclosure ofthe facts alleged herein to the injury of Plaintiff and Class members.
46. By reason of the conductalleged herein, Defendants knowingly or recklessly, directly or indirectly,have violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgatedthereunder.
47. As a direct and proximateresult of Defendants’ wrongful conduct, Plaintiff and the other members of theClass suffered damages in connection with their respective purchases,acquisitions and sales of the Company’s securities during the Class Period,upon the disclosure that the Company had been disseminating misrepresentedfinancial statements to the investing public.
COUNT II
(Violations ofSection 20(a) of the Exchange Act Against The Individual Defendants)
48. Plaintiff repeats and re-allegeseach and every allegation contained in the foregoing paragraphs as if fully setforth herein.
49. During the Class Period, theIndividual Defendants participated in the operation and management of Alibaba,and conducted and participated, directly and indirectly, in the conduct of Alibaba’sbusiness affairs. Because of theirsenior positions, they knew the adverse non-public information about Alibaba’smisstatement of income and expenses and false financial statements.
50. As officers and/or directors ofa publicly owned company, the Individual Defendants had a duty to disseminateaccurate and truthful information with respect to Alibaba’s financial conditionand results of operations, and to correct promptly any public statements issuedby Alibaba which had become materially false or misleading.
51. Because of their positions ofcontrol and authority as senior officers, the Individual Defendants were ableto, and did, control the contents of the various reports, press releases andpublic filings which Alibaba disseminated in the marketplace during the ClassPeriod concerning Alibaba’s results of operations. Throughout the Class Period, the IndividualDefendants exercised their power and authority to cause Alibaba to engage inthe wrongful acts complained of herein. The Individual Defendants therefore,were “controlling persons” of Alibaba within the meaning of Section 20(a) ofthe Exchange Act. In this capacity, theyparticipated in the unlawful conduct alleged which artificially inflated themarket price of Alibaba securities.
52. Each of the IndividualDefendants, therefore, acted as a controlling person of Alibaba. By reason of their senior managementpositions and/or being directors of Alibaba, each of the Individual Defendantshad the power to direct the actions of, and exercised the same to cause, Alibabato engage in the unlawful acts and conduct complained of herein. Each of the Individual Defendants exercisedcontrol over the general operations of Alibaba and possessed the power tocontrol the specific activities which comprise the primary violations aboutwhich Plaintiff and the other members of the Class complain.
53. By reason of the above conduct,the Individual Defendants are liable pursuant to Section 20(a) of the ExchangeAct for the violations committed by Alibaba.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment against Defendants as follows:
A. Determining that the instantaction may be maintained as a class action under Rule 23 of the Federal Rulesof Civil Procedure, and certifying Plaintiff as the Class representative;
B. Requiring Defendants to paydamages sustained by Plaintiff and the Class by reason of the acts andtransactions alleged herein;
C. Awarding Plaintiff and theother members of the Class prejudgment and post-judgment interest, as well astheir reasonable attorneys’ fees, expert fees and other costs; and
D. Awarding such other and furtherrelief as this Court may deem just and proper.
DEMAND FOR TRIALBY JURY
Plaintiff hereby demands a trial by jury.
Dated: ________
阿里巴巴Alibaba Group Holding Limited (BABA)因证券欺诈案已经于近日被投资者诉至法院。在目前的诉讼中投资者指控阿里巴巴公司在2020年10月21日至2020年11月3日期间就公司的业务和运营状况及发展前景进行虚假陈述，未向投资者披露以下重大不利事实: (1) 蚂蚁集团不满足上市要求或就某些重大事项未进行充分披露; (2)即将到来的金融科技监管环境的重大变化将严重冲击蚂蚁集团的业务; (3) 因此蚂蚁集团的上市可能会被推迟; (4) 因此阿里关于其业务和运营状况及发展前景的陈述存在严重误导，缺乏事实依据，当事实真相暴露时，其股价下跌令投资者受损。
我们律师在此提醒投资者注意：如果在诉讼期间即2020年10月21日至2020年11月3日期间买入或取得其股票或期权等证券受到投资损失，可以在我们征集的截止日期2021年1月12日前联系我们免费了解本案详情及如何保护您的权益。参加美股诉讼维权程序非常简单，绝大多数案件中投资者足不出户，通过网络联系即可，无需花费太多的时间，亦无需支付任何费用，但详情需要您与律师联系了解。如果您了解到该公司或其他任何在美上市公司存在在华行贿支付回扣或其他严重损害投资者利益的行为，亦可委托律师向有关部门举报，举报由律师出面，为客户保密，举报成功可获得罚款金额10-30%的奖励。