By Anjali C. Das, Esq.
These days, nearly everything to do with China has grabbed the spotlight – not least of all the country’s extraordinary and seemingly unstoppable economic growth. Not surprisingly, many U.S. investors have been pouring millions of dollars into Chinese companies with the hopes of gaining super-sized returns. However, naysayers have long predicted a bursting of the China bubble. At least for investors in China-based issuers, perhaps that time is now. Not unlike the bursting of the Internet bubble in the 1990s fueled by explosive growth and investment in “dot.com” companies, investors and regulators may now have reason to fear the rapid rise and fall of Chinese companies that have accessed U.S. capital markets through reverse mergers. While short-sellers are publicly denouncing the purported fraud at these companies (and making big bucks shorting the stock), U.S. regulators are investigating the rash of accounting scandals at these companies, which have caused some auditors to abruptly resign. Meanwhile, directors and officers (D&O) insurers have to contend with the collateral damage resulting from the multitude of claims against China-based issuers and their directors and officers.
This article highlights the following topics involving Chinese reverse merger companies:
- Public Company Accounting Oversight Board (PCAOB) Research Note on Chinese reverse mergers
- Securities and Exchange Commission (SEC) investigation of China-based issuers and their auditors
- NASDAQ’s proposed new listing requirements for reverse merger companies
- SEC Investor Bulletin on reverse merger companies
- Moody’s “Red Flags” report on China-based companies
- D&O insurance coverage issues for claims against China-based issuers
PCAOB Issues a Report on China Reverse Mergers
On March 14, 2011, the PCAOB issued a report examining the audit implications for reverse mergers involving China-based companies. As explained in the PCAOB report, a reverse merger is an acquisition of a private operating company by a public shell company (a non-trading firm often listed on a stock exchange). While the public shell company is the surviving entity, the private company’s shareholders typically control the surviving company or hold publicly traded shares in the company. A perceived benefit of a reverse merger is that it enables a company to become an SEC reporting company with registered securities without having to file a registration statement under U.S. federal securities laws.
The PCAOB report identified 159 companies from China that accessed the U.S. capital markets in a reverse merger transaction from 2007 through March 2010, representing 26 percent of all reverse mergers during the period. Reportedly, the market capitalization of these companies was $12.8 billion as compared with a $27.2 billion market cap of the 56 Chinese companies that completed initial public offerings in the United States during that same period.
Reverse merger entities listed on U.S. exchanges are required to file audited financial statements with the SEC, and the auditors of the financial statements are required to be registered with the PCAOB. According to the PCAOB, U.S. firms audited 116 or 74 percent of the China-based reverse merger companies, while Chinese registered accounting firms audited 38 or 25 percent of these companies. The PCAOB report raises concerns that some U.S. firms are not conducting proper audits of China-based companies, including handing off the audit work to a local Chinese accounting firm without verifying the accuracy of the results. The PCAOB has identified various “key considerations” to determine the appropriate level of oversight of firms that perform audits of foreign companies with the aid of assistants outside the firm, including (1) the ability to supervise outside assistants, (2) whether the outside assistants have appropriate language skills and (3) whether the auditor would have the ability to comply with the PCAOB’s documentation requirements.
SEC Launches Investigation of China-Based Issuers and Auditors
In response to a congressional inquiry by House Representative Patrick T. McHenry, chairman of the Committee on Oversight and Government Reform, SEC Chairman Mary L. Schapiro issued a letter on April 27, 2011, seeking to assure Congress and the public that the SEC “has moved aggressively to protect investors from the risks that may be posed by certain foreign-based companies listed on U.S. exchanges” – particularly those companies based in China. As SEC Chairman Schapiro noted in her letter, there has been a recent marked increase in China-based companies listed on U.S. exchanges through the process of a reverse merger.
Last summer, the SEC reportedly launched a “proactive risk-based inquiry into U.S. audit firms” that have a significant number of issuer clients based outside the United States. Among other things, the SEC has requested that auditors provide information concerning the firms’ compliance with U.S. audit standards for foreign-based reverse merger companies based in China. Since the SEC launched its investigation, dozens of China-based companies have disclosed auditor resignations and accounting problems. Since February 2011, Big Four accounting firms have resigned or been dismissed from at least seven Chinese companies listed in the United States. These auditors have reportedly experienced difficulty obtaining independent bank confirmations of a company’s bank accounts, balances and transactions. In at least one case, the auditor purportedly received false information directly from the bank, prompting the auditor to resign.
In an effort to protect U.S. investors, the SEC has reportedly suspended trading in several China-based reverse merger entities. In addition, the SEC has revoked the securities registration of many other China-based reverse merger companies. In some instances, the SEC is also pursuing these companies’ auditors for improper audits. As the SEC Chairman observed, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has enhanced the SEC’s ability to obtain audit documentation in connection with its investigations of issuers based in China and other countries.
NASDAQ Proposes New Listing Requirements for Reverse Mergers
On June 8, 2011, the NASDAQ filed proposed rules with the SEC to adopt additional listing requirements for companies that become public through a reverse merger. Under the proposed rules, a company that is formed by a reverse merger shall be eligible to submit an application for initial listing only if the combined entity can satisfy the following conditions:
- Traded for at least six months in the U.S. over-the-counter market, on another national securities exchange or on a foreign exchange following the filing of all audited financial statements.
- Maintained a bid price of $4 or more per share for at least 30 of the most recent 60 trading days.
- In the case of a U.S. domestic issuer, the company has timely filed its two most recent financial statements (i.e., Form 10-Q or 10-K).
- In the case of a foreign-based issuer, the company timely files a comparable financial statement (i.e., Form 6-K, 20-F or 40-F) that includes an interim balance sheet and an income statement presented “in English.”
In support of its proposed enhanced listing requirements, the NASDAQ cited the “extraordinary level of public attention to listed companies that went public via a reverse merger” and “allegations of widespread fraudulent behavior by these companies, leading to concerns that their financial statements cannot be relied upon.” The NASDAQ believes that these new listing requirements will protect investors and “discourage inappropriate behavior” by companies.
SEC Issues an Investor Bulletin on Reverse Mergers
On June 9, 2011, the SEC issued a bulletin cautioning investors of the potential pitfalls of investing in reverse merger companies. Among other things, the SEC observed that many reverse merger companies (RMCs) “either fail or struggle to remain viable following a reverse merger”; there have been instances of fraud and other abuses involving RMCs; and some RMCs have been using smaller U.S. auditing firms that may not have sufficient resources to conduct adequate overseas audits. The SEC bulletin also cited recent examples where it suspended trading of RMCs due to accounting irregularities and/or revoked the securities registrations of RMCs due to the companies’ failure to timely file required periodic financial statements.
Moody's Issues its "Red Flags" Report on China-Based Companies
To address investors’ increasing concerns with the quality of financial reporting from publicly listed Chinese companies, on July 11, 2011, Moody’s credit rating agency issued a “Red Flags” report for China-based companies. The report examines 20 red flags grouped into five categories that identify possible governance or accounting risks for China-based companies, including:
- Weaknesses in corporate governance: short track record of operations and listing history, murky shareholders’ background, large and frequent related-party transactions.
- Riskier or more opaque business models: unusually high margins compared with peers,concentration of customers, complicated business structures.
- Fast-growing-business strategies: very rapid expansion, big capital investments resulting in large negative free cash flow and intangible assets.
- Poorer quality of earnings or cash flow: discrepancy between cash flows and accounting profits, disjointed relationship between growth in assets and revenues, large swings in working capital, insufficient tax paid compared with reported profits.
- Concerns over auditors and quality of financial statements: a switch in auditing firm or legal jurisdiction of auditor’s office, delay in reporting, adverse comments from auditors.
Moody’s applied its red flags analytical framework to 61 rated Chinese companies. According to Moody’s report, due to the rapid growth of Chinese companies, nearly all Chinese high-yield issuers tripped red flags related to aggressive business and financial strategies and quality of earnings. Moody’s observed that fast-growing companies put pressure on managerial and financial resources. Additionally, these companies may make large capital investments that could negatively impact cash flow for a prolonged period of time. Also, due to the prevalence of strong founding families, many Chinese companies tripped the red flag for concentration of family ownership, which may reflect weaknesses in corporate governance. Moody’s also noted the so-called arm’s-length related-party transactions were not always transparent. Interestingly, according to Moody’s report, concerns over auditors arose less frequently compared with other red flags.
Short-Sellers Creating Havoc
Meanwhile, short-sellers are wreaking havoc on China-based issuers’ stock and publicly accusing these companies of fraud. In several instances, detailed reports issued by short-sellers have triggered a wave of internal investigations, investigations by regulators and shareholder litigation against companies. While some companies have gone to lengths to deny the often unsubstantiated accusations by short-sellers, the damage is done when the investors get spooked and the company’s stock price spirals downward.
All of the negative publicity has impacted Chinese companies across the board, regardless of whether specific allegations of fraud have been asserted. Where investors were once rushing to dump huge sums of money into any business with ties to China, they are now rushing to liquidate their stock holdings at the slightest sign of trouble. The fallout has had a devastating impact on the number of reverse merger transactions of Chinese companies. Not surprisingly, some Chinese companies have postponed plans to sell shares in the United States, either through reverse mergers or initial public offerings. Compared with 47 reverse merger transactions in the first half of 2010, there have been only 29 for the first half of 2011. At least for now, Chinese companies are no longer the darlings of Wall Street.
The Rise of Shareholder Litigation
Approximately 30 shareholder suits were filed in the first half of 2011 against China-based companies listed on U.S. exchanges and the companies’ directors and officers. On the surface, many of these suits are classic securities class actions alleging securities fraud and violations of section 10(b) of the Securities Exchange Act of 1934 for materially false and misleading financial statements and related derivative actions. However, suits against China-based companies may pose unique hurdles and added expense for the defense of shareholder claims in the United States. For one thing, many or most of the individual defendants, corporate documents and key witnesses may reside in China. Moreover, testimony and documents may need to be translated from Chinese to English. These circumstances can cause defense costs to escalate rapidly. Also, given the current regulatory climate and increased suspicion of China-based issuers, a company may also be the subject of parallel proceedings or investigations by the SEC and other regulators. In some situations, a company’s board may simultaneously launch an internal investigation – particularly if the company’s outside auditor abruptly resigns without issuing a clean audit opinion. That could trigger a wave of management departures, putting added strain on the company’s already stretched resources.
Directors and Officers Insurance Coverage Issues
Claims against China-based issuers and their directors and officers may raise a host of coverage issues under traditional D&O liability insurance policies, including, but not limited to:
- Reasonable and necessary defense costs
- Coverage for parallel proceedings and investigations
- Known claim exclusion
- Fraud and personal profit exclusions
- Severability of the policy exclusions and application.
D&O policy limits for public companies are typically eroded by defense costs. This may occur more rapidly in suits against Chinese companies in light of the complexities of transnational discovery. Therefore, it is in the interests of D&O insurers and insureds alike to make certain that these claims are being defended with maximum efficiency to minimize the possibility that the D&O insurance is significantly impaired or even exhausted by defense costs alone. While many large defense firms now have outposts in China, it is still imperative to gain an understanding of the anticipated division of labor between the U.S.-based lead defense attorneys and their colleagues in China with respect to discovery, document collection, witness interviews and other matters. Additionally, there should be an objective assessment to determine whether it is cheaper and more efficient to outsource certain discovery-related tasks such as collection and translation of documents.
Shareholder litigation against Chinese companies may spawn multiple parallel proceedings and investigations by the government, regulators, the board, a special litigation committee and others. A key issue is whether such investigations constitute covered claims or securities claims under the D&O policy. Historically, many D&O policies narrowly limited the availability of coverage for investigations, such as formal investigations by the SEC commenced by service of a subpoena on a director or officer. However, in the past few years, some D&O policies began to offer enhanced coverage, including coverage for both formal and informal investigations by regulators. Now, the definition of a securities claim is less standard and may contain many subtle, yet critical nuances impacting coverage. Not surprisingly, there has been a significant amount of litigation and reported decisions with respect to coverage for investigations under D&O policies. However, many of these decisions are fact-specific and driven by now-obsolete D&O policy language and definitions that continue to evolve.
On July 1, 2011, the Second Circuit Court of Appeals issued an opinion in MBIA, Inc. v. Federal Ins. Co., 2011 U.S. App. LEXIS 13402 (Second Cir.) that sets forth a comprehensive analysis of coverage for various investigations under a D&O policy. In that case, the policy definition of a covered securities claim included “a formal or informal administrative or regulatory proceeding or inquiry commenced by the filing of a notice of charges, formal or informal investigative order or similar document.”
First, the Second Circuit held that investigations commenced by the SEC and the New York Attorney General (NYAG) were covered under the policy definition of a securities claim. The Court observed that the issuance of a subpoena by the NYAG was, at a minimum, a “similar document” related to a “formal or informal investigative order.” The court also opined that requests for information by the SEC pursuant to oral requests and subpoenas were covered because they were connected to the SEC’s formal order of investigation. The court also concluded that fees incurred by an independent consultant retained by MBIA in the context of negotiating a settlement with the SEC and NYAG were also covered.
Second, the Second Circuit concluded that legal fees incurred by MBIA’s special litigation committee (SLC) to determine whether to pursue or terminate pending shareholder derivative actions were covered and did not clearly fall within the policy’s sub-limit of liability for shareholder derivative demands. Prior to the filing of the derivative actions, a shareholder demand on MBIA’s board had been made and ultimately rejected. After the shareholder derivative suits were filed, the SLC sought and obtained dismissal of the lawsuits. The Second Circuit determined that the legal fees incurred by the SLC arguably fell within the policy’s coverage for “costs ‘incurred in…investigating’ ‘Claims’ or ‘Securities Claims,’ respectively, each of which is defined to expressly include lawsuits.” The Second Circuit also determined that the insurer had failed to carry its burden of proving that the SLC’s legal fees were not covered under the policy definition of loss, which excluded “any amount incurred by [MBIA] (including its board of directors or any committee of the board of directors) in connection with the investigation or evaluation of any Claim or potential Claim by or on behalf of [MBIA].”
To the extent claims against China-based issuers and their directors and officers allege accounting improprieties and false and misleading financial statements, D&O insurers might have a potential rescission argument if the policy were issued in reliance on these false financials. In some instances, D&O policies and/or applications contain a known-claim exclusion, which might serve as a basis for denying coverage if an insured knew and/or failed to disclose a fact, circumstance, act, error or omission that might give rise to a claim under the policy. Also, standard D&O policies contain fraud and personal profit exclusions that might apply; however, these exclusions are usually restricted to a finding “in fact” or “final adjudication” that the insured committed fraud or unlawfully profited. In addition, both the application and the exclusions might be “severable,” such that the knowledge or wrongful acts of one insured cannot automatically be imputed to other insureds except in limited situations.
Some might conclude that the spotlight on China-based reverse merger companies is merely a tempest in a teapot, as compared to the global financial crisis precipitated by the subprime market meltdown and collapse of numerous financial institutions at home and abroad. Nonetheless, the reality is that many China-based issuers have been targeted by regulators and investors alike for purported securities and accounting fraud that could ultimately cost D&O insurers millions in losses. At least for now, this trend seems to be gaining traction. Until the pot is done brewing and the tea leaves are read, D&O insurers should tread carefully in handling claims against their China-based issuers.
About the Author: ANJALI C. DAS - email@example.com is a partner in the Wilson Elser’s Chicago office. She has more than 15 years of concentrated experience in handling professional liability insurance coverage matters, including representing the interests of domestic and foreign primary and excess insurers in connection with high exposure claims and class actions against public companies and their directors and officers, including financial institutions, investment banks, insurance companies, and ERISA plan fiduciaries. She is a member of the Insurance Coverage and Reinsurance practice and its Directors and Officers Liability team. She has mediated, arbitrated, and litigated insurance coverage disputes in various state and federal courts. Ms. Das frequently speaks and writes on topics related to D&O insurance coverage and liability.