sec v. recycle tech, inc. et al doc 52
DESCRIPTION
Fung and Thompson, motion to dismissTRANSCRIPT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:12-cv-21656-JAL
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.
RECYLE TECH, INC., KEVIN SEPE,
RONNY J. HALPERIN, RYAN GONZALEZ,
OTC SOLUTIONS LLC, ANTHONY
THOMPSON, PUDONG LLC, JAY FUNG,
and DAVID REES,
Defendants,
and
CHARTER CONSULTING GROUP, INC.
/
DEFENDANTS PUDONG LLC’S AND JAY FUNG’S
MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT WITH SUPPORTING
MEMORANDUM OF LAW
Defendants, Pudong LLC (“Pudong”) and Jay Fung (“Mr. Fung”) (collectively,
“Defendants”), by and through their undersigned counsel, hereby respectfully move this Court to
dismiss Plaintiff Securities and Exchange Commission’s (“Commission” or “Plaintiff”)
Amended Complaint pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure
on the ground that the Complaint fails to state a claim upon which relief may, or should, be
granted. The grounds for this Motion are set forth below in the accompanying Memorandum of
Law.1
1 In the event the Court permits a complaint against Pudong and Mr. Fung to stand with the
same named, but wholly unrelated, co-defendants, Pudong and Mr. Fung intend to file a motion
for a separate trial under Fed. R. Civ. P. 20 and/or Fed. R. Civ. P. 42 from the unrelated co-
defendants in this matter. By filing the instant Motion, neither Pudong nor Mr. Fung concede
that the Commission’s Amended Complaint should stand without being severed in the event that
it is not dismissed. Defendants expressly reserve their right to move for severance or for a
separate trial in the future.
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DEFENDANTS PUDONG’S AND MR. FUNG’S
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
I. INTRODUCTION
The Commission’s Amended Complaint alleges that Defendants violated Sections 5(a),
5(c), 17(a), and 17(b) of the Securities Act of 1933 (“Securities Act”), and Section 10(b) of the
Securities Exchange Act of 1934 (“Exchange Act”), and Rule 10b-5 thereunder. It appears from
the Amended Complaint’s introduction that the Commission’s position is that Defendants
engaged in a scheme to promote stock issued by Recycle Tech, Inc. (“Recycle Tech” or the
“Company”) by issuing e-mail newsletters without adequately disclosing their compensation or
stock sales. However, turning to the few factual allegations of the Amended Complaint, which
are the culmination of several years of an exhaustive regulatory investigation, it becomes obvious
that the sparse and confusing allegations raise more questions than they provide guidance about
what the Commission believes were Pudong’s and Mr. Fung’s purported transgressions. In
places, the Amended Complaint conveniently lumps together the conduct of unrelated defendants
in such a way that makes it impossible for Pudong or Mr. Fung to delineate what conduct is
being ascribed to the them from that attributable to others. Moreover, the Amended Complaint
evidences a total lack of understanding of the plain language of Section 17(b) of the Securities
Act, and the jurisprudence interpreting the same.
As set forth below, the Amended Complaint is fatally vague and unspecific, not only
failing to meet the heightened pleading requirement mandated by Rule 9(b) of the Federal Rules
of Civil Procedure (“Rule 9(b)”), but also the requirements of Rule 12(b)(6).
II. THE COMMISSION’S ALLEGATIONS
The Commission’s Amended Complaint alleges the following:
Jay Fung is thirty-seven years old and has lived the majority of his adult life in South
Florida. Amended Complaint, ¶13. During the relevant time period, Mr. Fung owned Pudong
which generated a “Penny pic” newsletter that, in turn, for compensation, published information
on the Internet via www.Pennypic.com concerning public companies. Amended Complaint,
¶¶12-13. In February 2010, Pudong received 2.325 million shares of Recycle Tech stock from a
third-party, which, according to legal opinions that it received, was not an affiliate of the
Company. Amended Complaint, ¶66. Pudong issued at least one Penny Pic newsletter
concerning Recycle Tech that contained information that was gathered from publicly-available
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sources. Amended Complaint, ¶¶67, 74. For its services, Mr. Fung received 2.325 free trading
shares of Recycle Tech stock that had been issued as the result of the conversion of
approximately $25 million of debt, and such conversion was completed by Defendant Rees, who
also provided an opinion letter verifying the free-trading nature of the shares. Amended
Complaint, ¶¶3, 26, 66. Indeed, Pudong’s Penny Pic newsletter specifically stated:
When Pennypic.com receives free trading shares as compensation for a
profiled company, Pennypic.com may sell part or all of any such
shares during the period in which Pennypic.com is performing such
services.
Amended Complaint, ¶75.
The Pennypic.com newsletter also fully disclosed that it had received “2.325 million free
trading shares of [Recycle Tech] for advertising and marketing.” Amended Complaint, ¶76.
Pennypic.com did not disclose the identity of the third party that provided the free trading shares.
Id. The Complaint also alleges that the newsletter failed to disclose Mr. Fung’s Recycle Tech
stock sales. Id. On February 23, 2010, Pudong liquidated its 2.325 million Recycle Tech shares.
Amended Complaint, ¶84.
While paragraphs 65 through 68 and paragraphs 73 through 76 of the Amended
Complaint contain allegations concerning Pudong and Mr. Fung, none of the allegations asserts
that they knew or should have known that (1) the press releases issued by the company were false
or inaccurate, (2) that the opinion letter(s) provided to Pudong and Mr. Fung reflecting that the
shares were free trading were incorrect and/or legally flawed, and (3) Defendants Sepe or
Halperin were affiliated with, or control persons of, the Company. Moreover, the incessant
hyperbole utilized by the Commission in labeling the newsetters as “touting” or “promoting” or
“hyping,” does not mean that they were violative of the federal securities laws.
III. ARGUMENT
The Commission’s sparse factual allegations lodged against Defendants Pudong and Mr.
Fung do not support the “scalping” claims brought pursuant to Section 17(a) of the Securities Act
or Section 10(b) of the Exchange Act, which are both fraud claims. Moreover, the allegations in
the Commission’s Amended Complaint actually undermine its Section 17(b) claim, which is
commonly referred to as the “anti-touting” statute. After nearly two years of invasive and
exhaustive investigative discovery, the Commission’s failure to plead its case with specificity is
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no mere technicality, but rather an effort to mask insurmountable flaws in its case against Pudong
and Mr. Fung. For the following reasons, the Amended Complaint against Pudong and Mr. Fung
should be dismissed insofar as it alleges violations of Sections 17(a) and (b) of the Securities Act,
and Section 10(b) of the Exchange Act, and Rule 10b-5 thereunder.2
A. THE SEC IS AN ORDINARY LITIGANT WHEN IT INVOKES THE PROCESSES OF THE
COURTS
As a preliminary matter, and at the risk of stating the obvious, although the Commission
is a governmental agency, once it becomes a litigant and seeks redress from the court, it is
subject to the same pleading and discovery standards as any other litigant. See SEC v. Collins &
Aikman Corp., 256 F.R.D. 403, 414 (S.D.N.Y. Jan. 13, 2009). This requirement applies to both
procedural matters as well as substantive pleading requirements, such as the heightened standards
for alleging fraud.
The Supreme Court has held that the text of a securities law controls and that violations of
the antifraud provisions should be interpreted consistent with the statute, whether the plaintiff
invoking the statute as a private litigant or the Commission. Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 173 (1994). In interpreting the securities laws, the
Supreme Court has instructed that the plain language of a statute must be adhered to and is the
starting point in constructing a statute. Id. at 172. “Thus, if language of a provision of the
securities laws is sufficiently clear in its context . . . it is unnecessary to ‘examine the additional
considerations of the “policy” that may have influenced lawmakers in their formulation of the
statute.’” Aaron v. SEC, 446 U.S. 680 (1980), quoting Ernst & Ernst v. Hochfelder, 425 U.S.
185, 214 n. 33 (1976). Therefore, in construing the securities laws, it is appropriate that the
Commission be judged by the same standards for pleadings as any other litigant.
B. STANDARD OF REVIEW – MOTIONS TO DISMISS UNDER
RULE 12(B)(6) AND RULE 9(B)
In 2007, rules governing a motion to dismiss changed substantially. No longer can a
plaintiff avoid dismissal by relying upon the oft-quoted line from the Supreme Court’s decision
in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which provided that “[a] Complaint should not
be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which may entitle him to relief.” In 2007, the
2 Defendants are not moving to dismiss the Section 5 of the Securties Act (Count I).
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Supreme Court made it clear that the Conley Court’s use of this “phrase is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969 (2007). Besides
finding the Conley Court’s statement as supplussage, the Supreme Court rejected the Conley
standard because under Conley, “[a] wholly conclusory statement of claim would survive a
Motion to Dismiss whenever pleadings left open the possibility that a plaintiff might later
establish some ‘set of [undisclosed] facts’ to support recovery.” Id. at 1965.
Instead, the Supreme Court provided that
a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact). . . .
Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65 (addition in original) (internal citations
omitted). See also In re Managed Care Litig., 2009 U.S. Dist. LEXIS 25427 at *22 (S.D. Fla.
Mar. 26, 2009); City of Winter Haven v. Cleveland Indians Baseball Co., LP, No. 809-CV-
00190-T-17EAJ, 2009 U.S. Dist. LEXIS 38708 at *2-3 (M.D. Fla. Apr. 22, 2009) (both
following Twombly and dismissing the matters under 12(b)(6)).
Pursuant to Rule 12(b)(6), a court must dismiss a complaint if the complaint fails to state
a cognizable claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). In ruling on a
motion to dismiss pursuant to Rule 12(b)(6), the court must accept the well-pleaded factual
allegations in the complaint as true, but will not accept unsupported conclusions, unwarranted
inferences, or sweeping conclusions cast in the form of factual allegation. See Miree v. DeKalb
County, Ga., 433 U.S. 25, 27 n.2 (1977); Oxford Asset Mgmt. Ltd. v. Jaharis, 297 F3d 1182,
1188 (11th Cir. 2002). If a complaint does not plead facts that state a claim as a matter of law, it
must be dismissed. See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1253
(11th Cir. 2005) (commending district court “for remembering that some minimal pleading
standard does still exist . . .” and finding that “bald assertions” and “unwarranted deductions of
facts” are not accepted as true and will not survive a Rule 12(b)(6) motion to dismiss).
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A complaint that alleges fraud must also meet the heightened pleading requirements of
Rule 9(b), which provides that, “[i]n all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity.” See Fed. R. Civ. P. 9(b). The
provisions of Rule 9(b) apply both to the scienter-based and to the negligence-based anti-fraud
provisions of the federal securities laws. See MeterLogjc, Inc. v. Copier Solutions, Inc., 126 F.
Supp. 2d 1346, 1360 n.10 (S.D. Fla. Sept. 27, 2000); Rhodes v. Omega Research, Inc., 38 F.
Supp. 2d 1353, 1359-60 (S.D. Fla. March 1, 1999).
As touched on above, complaints filed by the Commission are not exempt from the
heightened pleading requirements of Rule 9(b), and must plead sufficient detail to alert the
defendant as to the precise misconduct with which he is charged. See SEC v. Dunlap, 2002 U.S.
Dist. LEXIS 10769, at *6 (S.D. Fla. Mar. 27, 2002); SEC v. Gold, 2006 U.S. Dist. LEXIS 87042,
at *5 (E.D.N.Y. Aug. 18, 2006); SEC v. Blackman, 2000 U.S. Dist. LEXIS 22358, at *13 (M. D.
Tenn., May 26, 2000). Dismissal of the Commission’s complaint is appropriate when the
Commission fails to meet Rule 9(b)’s requirements. See SEC v. Tambone, 417 F. Supp. 2d 127,
131 (D. Mass. Jan. 27, 2006) (applying Rule 9(b) particularity requirements to SEC fraud
complaint and granting motions to dismiss complaint); SEC v. Yuen, 221 F.R.D. 631, 634-36
(C.D. Cal. June 10, 2004) (dismissing Commission’s complaint based on Rules 12(b)(6) and 9(b)
where Commission failed to plead elements of fraud with requisite particularity). This heightened
standard is particularly fitting because the Commission has mandatory investigative, pre-suit
subpoena power.
Accordingly, in order to satisfy the particularity requirement under Rule 9(b), the
Commission must “(1) specify the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state when and where the statements were made, and (4) explain why the
statements were fraudulent.” SEC v. Apolant, 411 F. Supp. 2d 271, 276 (E.D.N.Y. Jan. 31, 2006)
(internal citation omitted). Stated differently, Rule 9(b) mandates that the Commission’s
Amended Complaint must “answer the familiar questions of ‘who, where, when, why, and
how.’” SEC v. Digital Lightwave, 196 F.R.D. 698, 700 (M.D. Fla. Sept. 7, 2000) (internal
citation omitted). Conclusory allegations do not satisfy Rule 9(b)’s heightened pleading
standards. Miller v. Lazard, Ltd., 473 F. Supp. 2d 571, 588 (S.D.N.Y. Feb. 7, 2007). Simply put,
“in the context of securities fraud claims,” conclusory allegations, such as those that defendants
“knew or were reckless in not knowing,” are “so broad and conclusory to be meaningless.”
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Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1129 (2d Cir. 1994). As described more fully
below, the Commission has failed to meet the standards articulated by Rules 12(b)(6) and 9(b)
and, as a result, dismissal of its Amended Complaint in its entirety is appropriate.
C. THE FRAUD CLAIMS (COUNTS III AND XI) AGAINST DEFENDANTS SHOULD BE
DISMISSED FOR FAILURE TO MEET RULE 12(B)(6) STANDARDS AS WELL AS THE
HEIGHTENED PLEADINGS STANDARDS OF RULE OF 9(B)
A violation occurs under Section 17(a)(1) of the Securities Act, Section 10(b) of the
Exchange Act, and Rule 10b-5 thereunder when there is (1) a misrepresentation or omission, (2)
that is material, (3) which is made in the offer or sale of a security [Section 17(a)(1)] or in
connection with the purchase or sale of a security [Section 10(b) or Rule 10b-5], (4) with
scienter, and (5) involves interstate commercial, the mails, or a national securities exchange. See
SEC v. Gane, 2005 U.S. Dist. LEXIS 607, at *29; See also SEC v. Corporate Relations Group,
Inc., 2003 U.S. Dist. LEXIS 24925, at *24; SEC v. Monarch Funding Corp., 192 F.3d 295, 308
(2d Cir. 1999) (noting that essentially the same elements are required under Section 17(a) and
Rule 10b-5). Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act, and Rule
10b-5 thereunder, are commonly referred to as the “antifraud provisions” of the federal securities
laws.
Liability under the antifraud provisions of the federal securities laws arises not only from
affirmative misrepresentations, but from failures to disclose material information. SEC v. GLT
Dain Rauscher, 254 F.3d 852, 855-856 (9th
Cir. 2001). Rule 10b-5, by its plain language, makes
it unlawful “to omit to state a material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not misleading.” Nevertheless, fraud
liability does not attach for failure to disclose material information unless a party is under a duty
to so disclose. See Chiarella v. U.S., 445 U.S. 222, 228 (1980) (emphasis added). A duty to
disclose exists when one party possesses information ‘that the other [party] is entitled to know
because of a fiduciary duty or other similar relation of trust and confidence between them.” Id.
In the instant case, the Commission’s fraud claim against Pudong and Mr. Fung is
explicitly cast as “scalping” claims. Scalping, which in certain circumstances is a violation of the
antifraud provisions, is “the practice of, without disclosure, recommending a stock while and
after selling one’s shares.” SEC v. Gane, 2005 U.S. Dist. LEXIS 607, at *23. The fraud “lies not
in [the] practice of selling stocks contrary to [the newsletter’s] recommendations, but in the
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failure to disclose that practice to potential investors and readers.” Id., citing SEC v. Huttoe,
1998 U.S. Dist. LEXIS 23211, at *29. “The practice reflects on the objectiveness [or lack
thereof] of the investment advice and is therefore material.” Id.
As explained in more detail below, the Commission’s Amended Complaint fails to state a
claim against Pudong and Mr. Fung for violations of the antifraud provisions of the federal
securities laws for several reasons. First, the Commission fails to allege the existence of a
relationship, fiduciary or otherwise, which would give rise to the existence of a duty. Second, the
Commission’s Amended Complaint admits that Pudong and Mr. Fung did, in fact, disclose that
Pennypic.com “may sell part or all of any shares during the period in which Pennypic.com is
performing [advertising and marketing] services,” which eviscerates any “scalping” claim that
the Commission could advance based upon a material omission. Amended Complaint, ¶75.
Third, the manner in which Counts II and IX are pled, wholly fail to comply with the Eleventh
Circuit’s holding in Wagner v. First Horizon Pharm. Corp., which stated that a plaintiff
advancing a cause of action for securities fraud fails to comply with Rule 9(b) where he or she
simply realleges and incorporates by reference the complaint’s factual allegations into the
substantive counts. 464 F.3d 1273, 1279 (11th
Cir. 2006).
1. THE COMMISSION HAS FAILED TO ALLEGE FACTS GIVING RISE TO THE EXISTENCE
OF A DUTY
Scalping, which is the purported basis for the Commission’s fraud action against
Defendants Pudong and Mr. Fung, is a practice whereby the owner of a stock recommends the
purchase of that stock and, at the same time, sells it without adequate disclosure. SEC v. Capital
Gains Research Bureau, Inc., 375 U.S. 180, 181 (1963). The defendant’s ownership and intent
to sell such securities places his or her objectivity, and thus the objectivity of such
recommendations, at issue. However, as stated above, fraud liability does not attach for failure to
disclose material information unless a party has a duty to do so. Chiarella, 445 U.S. 222, at 228;
See also, Santa Fe Industries v. Green , 430 U.S. 462, 474-75 (1977).
Here, the Commission has failed to allege that Pudong or Mr. Fung owed anyone a duty.
It has also failed to allege specific facts that would give rise to a duty by virtue of a fiduciary or
other type of special relationship. The Court should contrast the instant Amended Complaint to
the one filed in the oft-cited scalping case, SEC v. Park, 99 F. Supp.2d 889 (N.D. Ill. May 5,
2000). In Park, the court denied the defendant’s motion to dismiss based on the extensive steps
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that the Commission took to establish a relationship between the defendant and those to whom he
recommended securities and, unlike here, to whom he failed to disclose that he owned shares of
stock. Among other things, the Commission’s complaint in Park contained allegations that: (1)
the defendant had an ongoing relationship with his website’s subscribers; (2) the defendant
communicated with his subscribers on a daily basis; (3) the defendant answered subscriber’s
questions via chat rooms; and (4) subscribers paid defendant a “not-insubstantial fee for
information and services that they could have acquired practically for free through other web
sites, cable t.v. programs, and newspapers.” Id. at 899. Indeed, Park’s relationship with his
subscribers was so extensive that the Commission alleged his conduct was tantamount to acting
as an “investment advisor,” a role which by its very nature involves a fiduciary relationship. Id.
at 893-896.
In contrast to the facts in Park, the Commission’s Amended Complaint here is wholly
devoid of anything that would suggest a fiduciary or other special relationship that gives rise to a
duty to disclose. Indeed, the Commission’s Amended Complaint states that in “January and
February 2010, OTC Solutions [an unrelated co-defendant] and Pudong…collectively issued five
e-mails newsletters touting Recycle Tech stock.” See Amended Complaint, ¶4 (emphasis added).
This is hardly the detail that the court in Park found “may” give rise to a duty to disclose.
Indeed, rather than the daily contact present in Park, the allegations in the instant Amended
Complaint simply mean that Pudong issued one (1) or possibly as many as four (4) newsletters
over a two month period. Pudong and Mr. Fung are left guessing as to what the Commission is
asserting against them because the Amended Complaint does not even bother to break out,
consistent with the strictures of Fed. R. Civ. P. 9(b), which of the alleged five (5) newletters are
attributable to them versus those that may be attributable to an unrelated co-defendant. There is
simply nothing in the instant Amended Complaint to suggest Pudong and Mr. Fung, on the one
hand, and the subscribers to Pennypic.com, on the other, had any relationship that would give
rise to a duty to disclose.
The Commission may attempt to argue that Defendants “assumed a duty to disclose”
based on their relationship with the Pennypic subscribers. In denying the defendants’ motion to
dismiss in Park, the court stated that:
[B]ecause the alleged facts may show that Defendants enjoyed a
relationship of trust and confidence with their subscribers or may have
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assumed a duty to disclose their scalping, the SEC has properly alleged
its claims based on Defendants omission.
Park , 99 F. Supp. 2d at 990. However, the “assumption of a duty” standard, which is premised
on a close relationship between the defendant and subscribers that has not been alleged here, is
based on the Ninth Circuit decision in Zweig v. Hearst Corp., 594 F.2d 1261 (9th
Cir. 1979). In
Zweig, the court held that a newspaper’s financial columnist violated Section 10(b) and Rule
10b-5 by failing to disclose his personal ownership interest in stock issued by the corporations
detailed in his column, as well as his intention to sell the stock upon the rise in the price of the
stock resulting from his column. Id. at 1266-67. Zweig’s vitality is questionable, however,
because it is based upon the “duty” analysis that that the Supreme Court later rejected in
Chiarella v. United States, 445 U.S. 222, 235 (1980) (in the case of omissions, “there can be no
fraud absent a duty to speak.”).
Indeed, even the Ninth Circuit Court of Appeals, which drafted the Zweig opinion, later
retreated from its own analysis and questioned the vitality of Zweig in light of the holding in
Chiarella, which post-dated Zweig. See Feldman v. Simkins Indus., 679 F.2d 1299, 1304 (9th
Cir.
1982). In Feldman, the Ninth Circuit stated that “Zweig may be distilled thusly: Where a
financial adviser gives advice with regard to a stock he has or intends to purchase or sell, he has
a conflict of interest. Where such a conflict is not apparent to other investors, he is under a duty
to disclose the conflict.” Id. (emphasis added). The Feldman court also stated that where a
defendant’s “holdings of stock was public knowledge as was his desire to liquidate them[, . . .]
any conlfict of interest which [defendant’s] statements may have raised [would have been]
apparent to investors.” Id.
Here, Pudong and Mr. Fung, who are not alleged to have been acting as financial
advisors, fully disclosed their stock holdings. Again, there was no issue as to their objectivity
vis-à-vis Recycle Tech stock. Further, Pudong and Mr. Fung fully disclosed that they may
liquidate all or a portion of such stock in the future. They did not suggest that they “may buy”
more or otherwise “buy and sell” the stock. Rather, the possibility that they might liquidate their
postion was clear from the disclosure; this sharply contrasts to any of the scalping cases where
defendants have been found liable under the federal securities laws.
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2. NOTWITHSTANDING THE ABSENCE OF A DUTY TO DISCLOSE, DEFENDANTS DID
DISCLOSE THAT THEY OWNED RECYCLE TECH STOCK
The practice of scalping, as explained by several district courts in this circuit, places at
issue the “objectiveness” of an investment recommendation in light of the fact that the person
making the recommendation owns and, more importantly, intends to sell the stock her or she is
recommending, i.e., the person has a financial incentive in the success of the stock being touted.
Gane, 2005 U.S. Dist. LEXIS 607, at *33; Corporate Relations Group, Inc., 2003 U.S. 24925, at
*29-30. Accordingly, whether the scalping is fraudulent depends, in part, upon the disclosure, or
lack thereof.
In the instant case, Pudong and Mr. Fung affirmatively disclosed that they received
“2.325 million free trading shares of [Recycle Tech] for advertising and marketing.” Amended
Complaint, ¶¶75,76. Hence, as far as any reader of Pennypic.com is concerned, there is no
suggestion by Pudong or Mr. Fung that they were “objective” or disinterested in the Company.
Rather, any reasonable reader of the Pennypic.com website or newsletter was on notice that
Pudong and Mr. Fung had a financial stake in Recycle Tech by virtue of their stock ownership.
Moreover, the Pennypic.com website also disclosed that it “may sell part or all of any
such shares” during the period that Pennypic.com is providing advertising and marketing
services. Amended Complaint, ¶76. Accordingly, Pudong and Mr. Fung, through a public
website, disclosed that they might sell Recycle Tech stock while they were providing
“advertising and marketing” services for the Company. And, ultimately, they did just that – they
sold all Pudong’s shares into the market while providing marketing and advertising services
through their website. Frankly, Pudong and Mr. Fung are at a loss as to what more they should
have disclosed, or what the Commission believes was fraudulent, and the Amended Complaint
provides them little guidance. They were neither silent concerning their future conduct nor were
they vague, stating that they “might buy or sell” Recycle Tech. Pudong and Mr. Fung disclosed
that they owned the security and might sell all or a portion of it.
The Commission will likely argue that courts have frowned on the “may” type of
disclosures that some scalpers have utilized because such a disclosure does not adequately fulfill
the duty to disclose. See Corporate Relations Group, 2003 U.S. Dist. LEXIS 24925 at *27.
However, in those cases, the defendants disclosed that they “may” buy or sell stock that they are
recommending, when they actually owned undisclosed shares. Hence, the statement would be
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materially false because it does not affirmatively disclose that defendants owned and sold the
shares. Id.; See also Gane, 2005 U.S. Dist. LEXIS 607, at *45 (defendant, who owned stock in
the recommended company, failed to provide adequate disclosure by only disclosing that
affiliates, officers, directors, or employees may buy or sell recommended stock); SEC v. Huttoe,
1998 U.S. Dist. LEXIS 23211, at *32-33 (only disclosure was that employees “may from time to
time have a postion” in the featured securities was insufficient where promoter consistently, over
a two-year period, sold such securities immediately after promoting such companies as “strong”
or “aggressive” buys or as “long term” investments).
To the contrary, Pudong and Mr. Fung, through their website, affirmatively disclosed that
they received 2.325 million shares. There is nothing vague or ambiguous about such a
disclosure. Pudong’s and Mr. Fung’s “objectiveness” or lack thereof was not at issue; they had a
stake in the game. The only disclosure that included the word “may,” is Pudong’s and Mr.
Fung’s statement that they may sell part or all of their shares. This is not, by any means a
material omission, notwithstanding the fact that the Pudong and Mr. Fung ultimately sold their
shares. Rather, as the Amended Complaint clearly states, Defendants dislosed that they (1)
owned 2.325 shares of Recycle Tech and (2) may sell all or a portion of their shares. The
Commission has not alleged that either of these statements is false.
As an analogy, imagine someone making the statement, “I may go to the store later
today.” If the maker of the statement has the intention of going to the store, dependent on a
variety of conditions, and, in fact, later goes to the store later that day, his or her earlier statement
is neither false nor misleading. Indeed, at the time of the statement, the speaker may not have
known with certainty whether he or she would be able go to the store later that day.
Ironically, the Commission alleges that between February 3, 2010, and February 16,
2010, no Recycle Tech shares traded in the market. See Amended Complaint, ¶79. This
allegation, if true, would make it impossible for Pudong and Mr. Fung, or anyone for that matter,
to predict how many shares of Pudong’s and Mr. Fung’s 2.325 million shares, if any portion at
all, could be sold into an otherwise illiquid market. Under the Commission’s logic, if Pudong
and Mr. Fung disclosed that they “will sell” their shares, and market forces prevent them from
doing so, they would have made a false or misleading statement. Accordingly, Defendants
statement that they “may sell” all or a portion of the Recycle Tech shares, absent some
allegations of clarvoiyance of the part of the Commission, provided full and accurate disclosure.
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3. THE COMMISSION’S AMENDED COMPLAINT DOES NOT SATISFY FED. R. CIV. P. 9(B)
INSOFAR AS COUNTS III AND XI SIMPLY REALLEGE AND INCORPORATE BY
REFERENCE
In addition to the foregoing, the Commission’s claims against Defendants for violations
of the antifraud provisions contained in Counts III (Section 17(a)(1)) and XI (Section 10(b) and
Rule 10b-5) do not state with particularity which specific allegations apply to which specific
count. The Eleventh Circuit has held that this represents a “shotgun pleading” in the context of
securities cases where fraud is alleged. In Wagner v. First Horizen Pharm. Corp., the plaintiff
did not weave the specific allegations against the defendant into the fraud counts, but rather
simply realleged and incorporated by reference the factual allegations into the substantive counts.
The Wagner court was troubled that the defendants were “left to wonder which prior paragraphs
support the elements of the fraud claim.” 464 F.3d at 1279. The court further stated that while
the allegations were very extensive and specific, structurally there was a “lack of connection
between the substantive count and the factual predicates [and]…plaintiffs ha[d] not connected
their facts to their claims in a manner sufficient to satisfy Rule 9(b).” Id.
Courts in this district have dismissed Commission complaints for failing to comply with
the Wagner mandates. In SEC v. Solow, the Commission filed a lengthy, very detailed complaint
against a single defendant. The Honorable Donald M. Middlebrooks dismissed the
Commission’s complaint because the Commission had simply realleged and reincorporated the
factual allegations of the complaint, but failed to “state with particularity which specific
allegations apply to which specific count, thereby impeding [d]efendant’s ability to discern the
exact nature of the complaint against him.” SEC v. Solow, No. 06-81041, slip op. at 4-5 (S.D.
Fla. March 22, 2007) (a true and correct copy is attached as Exhibit A). Hence, notwithstanding
the fact that Solow was the only defendant in the referenced case, the court still determined that
simply realleging and reincorporating dozens and dozens of factual allegations in insufficient to
meet the strictures of Rule 9(b).
Here, the Commission’s Amended Complaint has totally ignored the Eleventh Circuit’s
holding in Wagner and the guidance it received from Judge Middlebrooks. The only facts
alleged in Counts III and XI, are that the “Commission repeats and realleges” the paragraphs of
its complaint concerning Pudong and Mr. Fung, as well as others. The summary paragraphs of
Counts III and XI are identical to the language the Commission utilized in the Solow complaint,
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which was dismissed for its failure to adhere to the Rule 9(b) and the Wagner mandates.
Moreover, unlike Solow, which involved only one defendant, there are multiple co-defendants in
the instant matter, making the “shotgun pleading” even more problematic for Pudong and Mr.
Fung.
In light of the foregoing, the Counts III and XI of the Commission’s Amended Complaint
should be dismissed.
D. THE ANTI-TOUTING CLAIMS (COUNTS VII) AGAINST PUDONG AND MR. FUNG
SHOULD BE DISMISSED FOR FAILURE TO MEET RULE 12(B)(6) STANDARDS, AS
WELL AS THE HEIGHTENED PLEADINGS STANDARDS OF RULE OF 9(B)
1. THE COMMISSION’S ANTI-TOUTING CLAIMS FAIL TO STATE A CAUSE OF ACTION
The Commission has failed to state a cause of action in Count VII of its Amended
Complaint under Rule 12(b)(6), Fed. R. Civ. P., because there is no requirement to identify the
source of consideration received for publishing a newsletter or to update previously-published
newsletters to reflect sales of stock received as consideration for publishing the newsletter.
Section 17(b) of the Securities Act makes it unlawful for any person to tout a stock for
compensation without fully disclosing the receipt, either past or prospective, of compensation.
SEC v. Gane, 2005 U.S. Dist. LEXIS 607, 45-46. Specifically, Section 17(b) makes it unlawful
for any person to:
[p]ublish, give publicity to, or circulate any notice, circular,
advertisement…or communication which, though not purporting to
offer a security for sale, describes such security for a consideration
received or to be received, directly or indirectly, from an issuer,
underwriter or dealer, without fully disclosing the receipt, whether past
or prospective, of such consideration and the amount thereof.
In the instant case, Pudong and Mr. Fung fully disclosed their compensation – 2.325
million shares of Recycle Tech common stock. See Amended Complaint, ¶76. The Commission
has not suggested that they received any additional compensation or otherwise failed to
adequately disclose the amount of it.3
3 Indeed, in Gane, Judge Gonzalez found that the touting defendants violated Rule 17(b)
because they did not fully disclose the entire amount of their compensation. However, because,
among other things, such defendants actually disclosed a “significant portion of the
compensation,” the court denied the Commission’s request for an injunction.
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The Commission seems to base its Section 17(b) claims on the fact that Defendants failed
to disclose the identify of the third party from who they received the stock. Amended Complaint,
¶76. However, there is nothing to suggest that Pudong and Mr. Fung knew or should have
known the identify of the third party. Indeed, there is nothing whatsoever in the language of
Section 17(b) or the relevant jurisprudence interpreting it that remotely suggest that one who
receives compensation for publishing information concerning the issuer of security needs to
disclose or state the identity or ultimate “source” of such compensation. Rather, “Section 17(b)
calls for the disclosure of the receipt of compensation and the amount.” SEC v. Gorsek, 222 F.
Supp. 2d 1099 (C.D. Ill. Apr. 20, 2001) (emphasis in original). That is it. Indeed, in Gane, the
Honorable Jose A. Gonzalez denied the Commission’s request for an injunction against
defendants in Section 17(b) case because, in part, the defendants had updated their disclosure to
state, during the relevant time period, that they “ha[d] been compensated by third party
shareholders….” 2005 Dist. Ct. LEXIS at *27. Pudong and Mr. Fung utilized essentially
identicial language (a third-party) to identify the source of compensation.
To the extent that the Commission argues that Pudong and Mr. Fung should have
disclosed the identity of the third party who compensated them for their services, there is no
requirement to do so. Indeed, there is no statutory requirement that a recipient must disclose
anything about its compensation if the compensation is received from a source other than the
“issuer, underwriter, or dealer.” See Section 17(b) of the Securities Act of 1933. The
Commission’s position would read a requirement into the Rule that simply does not exist.
Here, the Amended Complaint alleges that Pudong and Mr. Fung received free trading
shares as an assignment from a third party who converted approximately $25 million in debt to
shares of Recycle Tech common stock, and that Defendant Halperin, a lawyer, physically
provided them with such shares. Amended Complaint ¶¶3, 27-29, and 47. It is axiomatic that
the shares were ultimately “issued” by the company, as that is how of shares of stock are created,
whether it be for Recycle Tech or IBM. However, the operative language in 17(b) relates to the
disclosure of compensation and not to the identity of the provider or source of such
compensation, regardless of what or who it is.
Based on the foregoing, Count IV should be dismissed insofar as it concerns Pudong and
Mr. Fung.
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2. THE COMMISSION HAS FAILED TO PLEAD THE ANTI-TOUTING CLAIM WITH
PARTICULARITY
The Commission’s Anti-Touting claim is premised on Pudong’s and Mr. Fung’s failure to
disclose information fully. See Amended Complaint at ¶¶76, 111. See Fed. R. Civ. P. 9(b);
MeterLogjc, Inc., 126 F. Supp. 2d at 1360 n.10; Rhodes, 38 F. Supp. 2d at 1359-60. Even
assuming that Pudong and Mr. Fung were required to disclose the identity of the person or entity
providing them with consideration under Section 17(b), the Commission has failed to allege
“who” actually provided the consideration to Pudong and Mr. Fung and “why” that omission
would constitute a volation. In other words, the Commission has failed to “answer the familiar
questions of ‘who, where, when, why, and how.’” Digital Lightwave, 196 F.R.D. at 700 (internal
citation omitted) (emphasis added).
Additionally, the Commission has claimed under Count VII that Pudong and Mr. Fung
“received consideration for [publishing a news letter] from or on behalf of the issuer of these
securities and did not fully disclose the receipt of such consideration and the amounts.”
Amended Complaint, ¶111. In light of the Commission’s admission that Pudong and Mr. Fung
disclosed the receipt of 2.325 million shares of Recycle Tech common stock from a third-party
non-affiliate, the Commission has failed, under Count VII, to state with particularity what
information would be required to comply with Section 17(b)’s requirement to disclose fully the
receipt of consideration and the amount of such consideration. Instead, in the absence of any
clarity from the plain text of Section 17(b), Pudong and Mr. Fung are left guessing as to what
omission constituted their purported violation, because the Commission has failed to “explain
why the statements were fraudulent.” Apolant, 411 F. Supp. 2d at 276.
IV. CONCLUSION
For all of the foregoing reasons, Defendants Pudong, LLC, and Jay Fung, respectfully
request that this Court grant their motion, pursuant to Rules 12(b)(6) and 9(b) of the Federal
Rules of Civil Procedure, to dismiss the Amened Complaint for failure to state a cause of action
and for failure to plead fraud with particularity.
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Respectfully submitted,
SALLAH & COX, LLC
Boca Corporate Center
2101 NW Corporate Blvd., Ste. 218
Boca Raton, FL 33486
561-989-9080 (Tele.)
561-989-9020 (Fax)
___s/Joshua A. Katz____
James D. Sallah, Esq. (Lead Counsel)
Fla. Bar. No. 0092584
Jeffrey L. Cox, Esq.
Fla. Bar. No. 0173479
Joshua A. Katz, Esq.
Fla. Bar No. 0848301
Case 1:12-cv-21656-JAL Document 52 Entered on FLSD Docket 08/31/2012 Page 17 of 18
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 31, 2012, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing is being
served this day upon all counsel of record identified on the attached Service List in the manner
specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in
some other authorized manner for those counsel or parties who are not authorized to receive
electronically Notice of Electronic Filing.
/s/ Joshua A. Katz
Joshua A. Katz
Reycle Tech, Inc.
2039 NW 1st Place
Miami, FL 33127
Jeffrey A. Neiman, Esq.
100 Southeast Third Avenue
Suite 2612
Fort Lauderdale, FL 33394
Telephone: (954) 462-1200
Counsel for Anthony Thompson and OTC
Solutions
Brian Lam
Lam Law Offices, LLC
1901 W. Lettleton Blvd.
Littleton, CO 80120
Counsel for Recycle Tech, Inc.
Mark Hunter
Tiffany J. Brown
Hunter Taubman Weiss, LLP
255 University Drive
Coral Gables, FL 33134
Counsel for Ryan Gonzalez
Brent R. Baker
E Loren Washburn
Clyde Snow & Session
201 S. Main St., 13th
Floor
Salt Lake City, UT 84111
Counsel for Anthony Thompson and OTC
Solutions
Case 1:12-cv-21656-JAL Document 52 Entered on FLSD Docket 08/31/2012 Page 18 of 18