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Note 15 - Contingencies
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3 Months Ended |
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Mar. 31, 2012
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| Legal Matters and Contingencies [Text Block] |
Note
15 – Contingencies
Acquisition
of Winder
On
April 1, 2008, Deer International acquired 100% of the
equity interest in Winder from 50HZ Electric Limited
(“50HZ”). At the time of such acquisition, Deer
International was an offshore enterprise controlled by some
of the Company’s shareholders who are PRC residents.
Certain of these shareholders also owned or controlled 50HZ
at the time of such acquisition, which made Winder an
affiliated PRC company of such shareholders. In October
2008, such shareholders transferred their ownership
interests in 50HZ to an unrelated third party, after which
50HZ was no longer a related party of the Company. The
transaction was approved by the Economic Development Bureau
of Yangjiang High-Tech Industry Development Zone (the
“Yangjiang High-Tech Zone”).
The
acquisition of 100% of Winder’s equity interests by
Deer International on April 1, 2008, was free of any
consideration and conditions. Under applicable PRC tax
rules, any transaction between related parties shall be
priced on an arm’s length basis. The tax authority
has the right to investigate any related party transaction
and to make adjustment if it finds the price not on an
arm’s length basis. The PRC tax authority would make
adjustment by applying a deemed arm’s length price to
the transaction. Given that 50HZ and Deer International had
certain related parties at the time of the Winder
acquisition, there is a possibility the consideration-free
transfer may be challenged and investigated by the PRC tax
authority. If the deemed arm’s length price
determined by the PRC tax authority during such
investigation is higher than the original cost that 50HZ
paid to get 100% equity interest of Winder, such excess
amount would be subject to additional PRC income tax.
Although the Company believes 50HZ would be responsible for
the possible PRC income tax, the Company understands it is
common practice for PRC tax authority to enforce the tax
collection on the entity at issue, which in this case would
be Winder, and the Company may be required to pay the
possible PRC income tax on behalf of 50HZ. According to the
M&A Regulations, the acquisition of Winder might
require the approval of Ministry of Commence People’s
Republic of China (“MOFCOM”). As the
interpretation and implementation of the M&A
Regulations are unclear, if the approval of MOFCOM is
required, the approval that 50HZ obtained from the
Yangjiang High-Tech Zone may be deemed incomplete and the
transferee, namely Deer International, may need to obtain
further approval from MOFCOM.
Pending
Litigation
On
March 28, 2011, the Company filed suit in the Supreme Court
of the State of New York, captioned Deer Consumer
Products, Inc. v. Alfred Little, et al., Index No.
650823/2011, against a certain blogger, “Alfred
Little,” the website SeekingAlpha.com and others. The
Company claims in this action allege the publishing of
false and defamatory statements by the defendants as part
of scheme to manipulate and depress the market for our
common stock. The Company is claiming compensatory and
punitive damages totaling at least $11 million, not
including claims for attorneys’ fees, and other
equitable remedies, including disgorgement of any illicit
trading profits received by the defendants in connection
with the alleged market manipulation scheme. On
August 29, 2011, the Company obtained a Court order
allowing us to effect service of the summons and complaint
upon defendant Alfred Little via email and related
notice. We effected service on Alfred Little
pursuant to that order and on September 29, 2011, Alfred
Little filed motions to dismiss the complaint for lack of
personal jurisdiction and for permission to appear
anonymously as a party in the litigation. In addition, on
August 31, 2011, the Court granted defendant
SeekingAlpha.com’s motion to dismiss our claim
against it on the ground that a Federal statute, the
Communications Decency Act, 47 U.S.C. § 230, precluded
the claim against SeekingAlpha.com. On September
29, 2011, the Company filed a notice of appeal of this
decision. If the Company decides to go through
with the appeal, it must file a brief
“perfecting” the appeal no later than June 29,
2012. On January 27, 2012, the Court denied in part Alfred
Little’s motion to dismiss the complaint for lack of
personal jurisdiction and permitted the Company to conduct
discovery on the issue of personal jurisdiction after a
confidentiality agreement was reached between the
parties. The court also requested that Alfred
Little submit to the Court evidence corroborating his
allegations of potential risks of physical harm for in
camera review. On February 17, 2012, the parties
reached a confidentiality agreement. On February
23, 2012, after an in camera review of the evidence
presented by Alfred Little, the Court permitted Alfred
Little to proceed anonymously until the Court decides the
jurisdictional issue and re-directed that the parties
proceed with jurisdictional discovery pursuant to the
previously ordered confidentiality
agreement. The Company has commenced discovery
on the jurisdictional issue.
On
April 29, 2011, a purported securities class action lawsuit
on behalf of the purchasers of the Company’s common
stock between March 31, 2009, and March 21,
2011, James Rose v.
Deer Consumer Products, Inc. et al, was filed
against the Company and certain of its current and former
officers and directors in the United States District Court
for the Central District of California. The court has not
yet certified the class action status. The complaint
alleges violations of Section 10(b) and Rule 10b-5 of the
Exchange Act, as well as, in the case of the individual
defendants, the Section 20(a) control person provisions of
the Exchange Act. The factual assertions in the complaint,
based expressly on the published statements at issue in
the Alfred
Little suit described above, consist primarily
of allegations that the defendants made materially false or
misleading public statements concerning the Company’s
financial condition in 2010 and 2009. The complaint seeks
unspecified damages and other relief relating to the
purported inflation in the price of the Company’s
common stock during the class period. A consolidated
amended complaint was filed on September 6, 2011, with
essentially the same allegations. The Company filed a
motion to dismiss the lawsuit, which motion is fully
briefed and has been taken under submission by the
Court. The Company strongly denies the
allegations in the complaint. The Company believes this
lawsuit is frivolous and without merit and will contest it
vigorously. The Company plans to pursue all legal remedies
available to it if the complaint is not withdrawn in its
entirety.
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