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Yangtze River Port & Logistics Ltd. v. Hindenburg Research, 2020 N.Y. Slip Op. 30506
Yangtze River Port & Logistics Ltd. v. Hindenburg Research, 2020 N.Y. Slip Op. 30506
Yangtze River Port & Logistics Ltd. v. Hindenburg Research, 2020 N.Y. Slip Op. 30506
DIVISION PART 49
2020 N.Y. Slip Op. 30506 (N.Y. Sup. Ct. 2020) Copy Citation
02-25-2020
O. PETER SHERWOOD, J.
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O. PETER SHERWOOD, J. :
In this action, plaintiff Yangtze River Port and Logistics Limited (Yangtze,
Opinion Case details
YRIV, or plaintiff) brings causes of action for defamation, defamation per se,
conspiracy, common-law fraud, tortious interference with contract, and
tortious interference with prospective business relations against defendants
Hindenburg Research, LLC (Hindenburg), Nathan Z. Anderson (Anderson),
ClaritySpring Securities, LLC (ClaritySpring Securities) and ClaritySpring
Inc. (ClaritySpring).
Defendants now move, pursuant to CPLR 3211 (a) (7), for dismissal of the
amended complaint for failure to state a cause of action.
BACKGROUND
Yangtze is an international infrastructure company that engages in real
estate development via a port logistic project located in the middle reaches
of the Yangtze River in Wuhan, China (amended complaint, ¶ 17 [NYSCEF
Doc. No. 6]).
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(id. at 17-18 [italics in original]). The disclaimer also alerts readers that the
Report comprises the author's opinions:
"To the best of our ability and belief, all information contained
herein is accurate and reliable, and has been obtained from public
sources we believe to be accurate and reliable, and who are not
insiders or connected persons of the stock covered herein or who
may otherwise owe any fiduciary duty or duty of confidentiality to
the issuer. . . . All expressions of opinion are subject to change
without notice, and Hindenburg Research does not undertake to
update or supplement this report or any of the information
contained herein"
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Opinion CaseWebsite,
• Yangtze, details http:www.yerr.com.cn; and
4 (see id.). *4
Plaintiff alleges that the Report, combined with the online defamation that
defendants created, succeeded in damaging Yangtze'sDownload
reputation, as Treatment
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plaintiff's stock price has consistently dropped since its In Get a4,Demo
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$11.62 per share closing price (id., ¶ 54). According to plaintiff, between close
of market on December 6, 2018 and January 22, 2019, Yangtze lost $1.29
Opinion Case
billion of its details
market capitalization (id.).
The amended complaint present three "quotes" from the Report as the
5 purported basis for plaintiff's claims: *5
"We are of the strong opinion that Yangtze River Port & Logistics is
a scheme run by its Chairman and controlling shareholder to
siphon money away from U.S. public markets. . . . YRIV has
essentially one project called the Wuhan Yangtze River New Port
Logistics Center. The constructed part of the project is a cluster of
commercial buildings. The company claims that 4 of the buildings
in the complex are completed . . . [omitting citation of, and hyperlink
to, page F-12 of Yangtze's 10-Q for the period ended September 30, 2018]
yet they have failed to produce any revenue from them. . . . The
unconstructed part of the project is a planned 'Logistics Center'
that YRIV states it will build on 1.2 million square meters of land
leased from a local village. On YRIV's latest quarterly balance sheet,
the rights to the land are reported as having a value of $299 million,
comprising over 77% of the company's total assets [omitting citation
of, and hyperlink to, page F-13 of Yangtze's 10-Q for the period ended
September 30, 2018]"
"Money from YRIV's capital raises has been used to pay the
chairman/controlling shareholder rather than advance Company's
projects. . . . [omitting citation of and hyperlink to, pages F-15 and F-16
of Yangtze's 10-Q for the period ended September 30, 2018] So where
does all the new cash go? YRIV has consistently reported large
liability balances 'due to related parties' on its financial statements.
These in turn seem to accrue large interest rates which simply get
added to the 'advances' over time. When capital is raised, cash is
then used to pay back the supposed related-party 'advances,' rather
than being employed to further the company's projects. Download
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DISCUSSION
Although on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7),
"the pleading is to be afforded a liberal construction," and "the facts as
alleged in the complaint [are presumed] as true" (Leon v Martinez, 84 NY2d
83, 87 [1994]; see also Rovello v Orofino Realty Co., 40 NY2d 633 [1976]),
"'factual claims [that are] either inherently incredibleDownload
or flatly contradicted
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by documentary evidence are not entitled to such consideration'"
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Hampton, Inc. v Bergreen, 173 AD2d 220, 220 [1st Dept 1991] [citation
omitted]; see also Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d
Opinion Case
233 [1st Dept details
1994]).
Construing the claims in the generous matter to which they are entitled,
this court nevertheless concludes that defendants' motion to dismiss must
be granted, as each claim is legally deficient.
CPLR 3016 (a) requires that "the particular words complained of shall be set
forth in [a defamation] complaint'" (Lemieux v Fox, 135 AD3d 713, 714 [2d
Dept 2016] [citation omitted] [affirming dismissal of defamation case
because complaint did not set forth offending words]). The complaint must
also allege the time, place and manner of the false statement
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to
st
whom it was made (see Khan v Duane Reade, 7 AD3d 311, 312
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(Gross v New York Times Co., 82 NY2d 146, 153 [1993] [citation and internal
8 quotation marks omitted]). *8
The third factor of the above formula, context, is a significant part of the
analysis (see Brian, 87 NY2d at 51-53). Thus, with any statement challenged
as defamatory, the context must be examined to determine whether a
reasonable reader would have believed that the communication was fact, not
opinion (see Davis v Boeheim, 24 NY3d 262, 270 [2014]; see also Brian, 87 NY2d
at 51 ["in distinguishing between actionable factual assertions and
nonactionable opinion, the courts must consider the content of the
communication as a whole, as well as its tone and apparent purpose]). "In
addition to considering the immediate context in which the disputed words
appear, the courts are required to take into consideration the larger context
in which the statements were published, including the nature of the
particular forum" (Brian, 87 NY2d at 51). Download Treatment
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the author's opinion (see e.g. MiMedx Grp., Inc. v Sparrow Fund Mgt. LP, 2018
WL 847014, *8 [SD NY 2018] [determining that investment analysis
Opinion
presented in Case details
conversation between two investors constituted opinions and
predictions]; Matter of Nanoviricides, Inc. v Seeking Alpha, Inc., 2014 NY Slip
Op 31681[U], *5 [Sup Ct, NY County 2014] [ruling that investment analysis
posted on Seeking Alpha website was protected opinion]; Silvercorp Metals,
Inc. v Anthion Mgt. LLC, 36 Misc 3d 1231[A], 2012 NY Slip Op 51569[U], *11
[Sup Ct, NY County 2012] [deciding that investment analysis contained in
letter sent to Ontario Securities Commission, several financial journalists
and plaintiff's auditors qualified as protected opinion]). For instance, in Eros
Intl. PLC v Mangrove Partners (2019 NY Slip Op 30604[U] [Sup Ct, NY
County 2019]), Justice Joel M. Cohen dismissed a similar case filed against
the moving defendants here and other market commentators by another
foreign issuer traded on the New York Stock Exchange. The plaintiff claimed
that a group of short-seller investors (including ClaritySpring, ClaritySpring
Securities, Anderson and Hindenburg) conspired, over several years, to
spread false or misleading information about the company in order to
artificially depress its stock price. The plaintiff brought defamation,
defamation per se, and other related causes of action against the defendants.
Like here, the defendants argued that the statements at issue conveyed
constitutionally protected opinions, and therefore could not give rise to a
claim of defamation, or defamation per se. The court agreed, determining
that an analysis of the context surrounding the publication of Hindenburg's
report showed that the author was presenting an opinion on plaintiff. In
dismissing the defamation and defamation per se causes of action, the court
specifically found that the "articles and reports published by the Moving
Defendants expressed opinions 'accompanied by a recitation of the facts' on
which they were based, signaling to the reasonable reader through a mix of
key words and context that the statements were not 'based upon
10 undisclosed facts'" (id. at *7 [citation omitted]). *10
"To the best of our ability and belief, all information contained
herein is accurate and reliable, and has been obtained from public
sources we believe to be accurate and reliable, and who are not
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The other allegedly defamatory sections of the Report similarly point out to
the reader that its conclusions are merely expressions of the author's
opinion (see id. at 16 ["We can therefore infer that raised cash from these
convertible notes went to the Chairman, not to the business operation of
YRIV"]; id. at 17 ["Based on these observations, we believe that YRIV is
largely a shell which exists to raise more capital for personal use of its
controlling shareholder and chairman"]). Thus, any reasonable reader would
expect the Report to contain the author's negative opinion of the value of
Yangtze's stock, especially where, as here, the author has disclosed a
decision to short (see Report at 17; see also Silvercorp Metals, Inc., 36 Misc 3d
1231[U], 2012 NY Slip Op 51569[U] at *9 [finding that a defendant's
disclosure of his self-interest also "indicates to the reader that the author is
expressing his opinion," and determining that reader would understand that
author is expressing opinion when author reveals short position]; see also
Bellavia Blatt & Crossett, P.C. v Kel & Partners, LLC, 151 F Supp 3d 287, 296 [ED
11 NY 2015], affd 670 F Appx 731 [2d Cir 2016]). *11
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Given the supporting documents linked to the Report, it is clear that this is
"pure opinion" (see Steinhilber v Alphonse, 68 NY2d 283, 289 [1986] ["A 'pure
opinion' is a statement of opinion which is accompanied by a recitation of
the facts upon which it is based"]). Embedded within the allegedly
defamatory statements are electronic links to various publicly available
sources, most prominently Yangtze's SEC filings. Thus, the Report is
nothing more than a financial commentary based on the publicly available
information cited, and linked to, by the Report - in other words, textbook
opinion.
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Accordingly, the court concludes that the Report, considered within its
overall context as the research findings of a financial analysis shorting a
company's stock, is constitutionally protected opinion. As such, plaintiff's
claims for defamation and defamation per se must be dismissed.
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These allegations make clear that plaintiff's tortious interference claims are
based upon, and seek damages for, the same conduct that underlies the
failed defamation claims.
Plaintiff has failed to allege that Hindenburg made false statements with the
intent to have Yangtze rely on them. Plaintiff also fails to allege any action
that it took in reliance on defendants' alleged misrepresentations. In fact,
14 the amended complaint alleges the complete opposite - *14 claiming that
"Yangtze's shareholders did not reasonably rely on these misrepresentations
and omissions" (amended complaint, ¶ 112).
Although plaintiff alleges that the amended complaint contains a typo and
that the shareholders did, in fact, reasonably rely on defendants'
representations, plaintiff fails to allege any specific conduct to that effect.
Instead, plaintiff argues that its reliance is derived from the reliance of its
shareholders on defendants' statements, which caused them to "sell their
shares as a result" (see opposition memorandum at 20). The court rejects
this argument, as plaintiff has failed to allege any particular stock sales that
its shareholders made in reliance on defendants' statements (see Terra Sec.
Asa Konkursbo v Citigroup, Inc., 740 F Supp 2d 441, 448-451 [SD NY 2010]).
Indeed, some of Yangtze's main shareholders still own their shares, as
manifested by the Shareholders' Action filed against defendants.
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Accordingly, given that plaintiff has failed to state a valid Treatment
tort claim, its civil
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conspiracy claim must also be dismissed (see Antares Mgt. LLC vGet a Demo
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Even if plaintiff had alleged a viable tort claim, its civil conspiracy claim
Opinion Case details
would still fail because the amended complaint contains no factual
allegations concerning the existence of a conspiracy, and acts in furtherance
thereof. Rather, its allegations are completely conclusory, only suggesting
that defendants were acting "in concert" with numerous disparate parties,
including class action attorneys and online parties who "re-tweeted" or
15 posted online commentary related to *15 the Report (see amended complaint,
¶¶ 7, 23, 35, 42, 55-58). Such conclusory allegations are insufficient to sustain
a conspiracy claim under New York law.
The court has considered the remaining arguments, and finds them to be
without merit.
Accordingly, it is hereby
This constitutes the decision and order of the court. DATED: February 25,
2020
ENTER,
/s/ _________
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