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◎ Reporter Liu Liwen
The employee stock ownership plan consisting of senior executives and key employees of the subsidiary of the listed company purchases its own shares through structured financial products, and the listed company is punished for false statements. Then, can the collective asset management plan (hereinafter referred to as the "collective plan") established under the leadership of the employee stock ownership plan sue the company as the plaintiff to claim compensation? Recently, Shanghai Financial Court concluded a case for reference.
In this case, the plaintiff Guojin Securities Represent Collective Plan to sue the defendant in Shanghai Financial Court ST Zhong'an , claimed to bear the liability for infringement of securities misrepresentation, and the court rejected all the plaintiff's claims in the first instance; The Shanghai Higher People's Court upheld the original judgment after the second instance, and the case has come into force. It is reported that this case is the first case of liability dispute for securities misrepresentation involving asset management plans nested employee stock ownership plans in China.
Yang Lizhuan, a senior judge at the third level of the Case Filing Division of Shanghai Financial Court, believed that, although the case ultimately rejected the plaintiff's claims, for listed companies, the information disclosure standards should be further strengthened. In recent years, a "three-dimensional" accountability system has been formed by investigating civil liability for securities misrepresentation according to law, increasing administrative punishment for fraudulent issuance and information disclosure violations, and strengthening punishment for securities and futures crimes. In the context of strict supervision of the securities market, information disclosure violations will bear serious legal responsibility, even criminal responsibility. It is urgent to do a good job in information disclosure compliance.
Looking back on the case, in April 2015, ST Zhong An established an employee stock ownership plan, with a ceiling of 50 million yuan in total funds raised. After the establishment of the employee stock ownership plan, the plaintiff was entrusted to establish a collective plan for management, and the main investment scope was to purchase and hold the company's shares. There are 15 employees in the employee stock ownership plan, all of whom are senior executives or main responsible persons of subsidiaries and affiliated companies of listed companies. Among them, Zhou, Wu and Fu are members of the management committee, who exercise shareholder rights on behalf of all shareholders. Zhou and Wu are also the main contributors to the employee stock ownership plan. They are the legal representative and financial principal of ST China Security Capital subsidiary at that time. In 2019, they were also subject to administrative punishment by the CSRC for misrepresentation.
In May 2015, the Collective Plan was established. The collective plan consists of priority A share, intermediate B share and inferior C share. A. Share B enjoys fixed income, while share C refers to the distribution of all remaining assets and income after deducting the principal and expected income of share A and share B, management fees, custody fees and other expenses from the employee stock ownership plan. The actual controller of Share C and ST Zhongan shall be liable for compensation for the fixed income of Share A and Share B. The manager is fully responsible for the management and operation of this pool plan according to the methods, conditions, requirements and restrictions agreed in the pool plan and employee stock ownership plan.
After the establishment of the collective plan, buy ST Zhong An shares within the time agreed in the employee stock ownership plan. The post pool plan has been lower than the warning line or stop loss line for many times, and the actual controller of ST Zhong An made up positions to the pool plan five times from April 2016 to May 2017.
In May 2017, due to the situation that the pool plan was below the stop loss line again, the fifth replenishment was not made up in full. The plaintiff, on behalf of the pool plan, sent a notice of default to the employee stock ownership plan and the actual controller of the listed company, informing them of specific disposal measures such as compulsory closing positions, and then sold all shares of the listed company.
Prior to the trial of the case, the series of cases involving other investors suing ST Zhongan and other defendants for securities misrepresentation liability disputes have been recognized by the effective judgment as follows: the listed company has been subject to administrative punishment by the CSRC for misrepresentation, and after the court hearing, the listed company should be liable for compensation for the losses caused by the investors' misrepresentation.
The plaintiff in this case sued that the collective plan it established bought the shares of the listed company involved in the case in the secondary market after the implementation date of the false statement, and sold them after the disclosure date. It should be presumed that the transaction causal relationship between the investment decision and the false statement is established. ST Zhong An shall be liable for compensation for any loss caused to the collective plan due to its misrepresentation.
ST Zhong An argued that the transaction causal relationship in the case was not established, and did not agree with the plaintiff's claims: first, the employee stock ownership plan played a leading role in the investment decision of the collective plan involved in the case, and two of the three members of the employee stock ownership plan management committee, Zhou and Wu, had been punished for false statements, which should be deemed that the collective plan knew there was false statements; Second, the collective plan is based on the employee stock ownership plan, the asset management contract and other reasons to trade the shares of the listed company; Third, as a professional institutional investor, the plaintiff should bear a higher duty of care, and the plaintiff should bear the burden of proof.
After hearing, the Shanghai Financial Court determined that the establishment of the pool plan and the trading of shares of listed companies were to fulfill the employee stock ownership plan agreement, and the employee stock ownership plan should be informed of the false statement of securities, while the investment decision of the A and B share holders in the pool plan was mainly based on the trust in the difference compensation.
After comprehensive consideration, the court held that the transaction causal relationship between the investment decision of the pool plan managed by the plaintiff and the misrepresentation was not established, so it made a judgment of first instance and rejected all the plaintiff's claims. After the judgment of the first instance, the plaintiff refused to accept it and appealed to the Shanghai Higher People's Court. The second instance rejected the appeal and upheld the original judgment.
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