|
Note 15 - Contingencies
|
6 Months Ended |
|---|---|
|
Jun. 30, 2012
|
|
| 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 that time Deer International was
an offshore that enterprise controlled by some of the
Company’s shareholders who are PRC residents. Certain
of these shareholders also owned or controlled 50HZ , 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,” a website SeekingAlpha.com (where some of
the blogs appeared) and Does #1-10, who were phantom
authors and distributors of negative false articles about
the Company. The Company alleged that the
defendants published false and defamatory statements as
part of scheme to manipulate and depress the market for the
Company’s common stock enabling defendants to realize
unnatural profits on short positions they had
taken. On August 29, 2011, the Company obtained
a Court order allowing the Company to serve the summons and
complaint upon anonymous defendant Alfred Little via
email. The Company effected service on Alfred
Little pursuant to that order. On September 29, 2011,
Alfred Little filed motions to dismiss the complaint
claiming lack of New York jurisdiction and for permission
to appear anonymously as a party in the litigation.
SeekingAlpha.com certified that it was neither involved in
the authoring or revision of the allegedly defamatory
statements and, as such, on August 31, 2011, the Court
granted defendant SeekingAlpha.com’s motion to
dismiss the Company’s claim against it. On
September 29, 2011, the Company filed a notice of appeal of
this decision. On May 21, 2012, the Company
advised the Court that it had decided not to
“perfect” the appeal. 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. On February 17,
2012, the parties reached a confidentiality agreement and
the Company then commenced discovery on the jurisdictional
issue. 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 decided the jurisdictional issue. On March 30,
2012, Alfred Little filed a second motion to dismiss all
claims. This motion was rejected and denied by
the Court on May 9, 2012. On this same date, the Court
found Alfred Little to be in violation of discovery and
compelled Alfred Little to comply under pain of sanctions.
The Company informed the Court that there was more than one
Alfred Little and that additional defamation attacks were
taking place in explicit retaliation for the Company
seeking assistance from the New York Court. The
Court granted the Company the right to amend its complaint
to plead the case against all individuals and entities
acting in concert to publish and distribute the allegedly
false statements about the Company. On May 10, 2012, the
Court so ordered a subpoena for the in person deposition of
Xiaofu (Jeff) Huang at New York Supreme Court to take place
on May 16, 2012. Xiaofu (Jeff) Huang failed to
appear on May 16, prompting the Court to inform the parties
that it planned to vacate the February 23, 2012 Order of
Anonymity. The Court reasoned that Xiaofu (Jeff) Huang had
information material as to whether Alfred Little should
proceed anonymously, and, without such information, Alfred
Little should not be allowed to proceed
anonymously. The next day Jon Carnes claimed
that he was Alfred Little. Carnes retained the
same law firm as Alfred Little. On May 17, 2012,
the Court vacated its February 23 Order of Anonymity on
consent. All confidentiality protections were
specifically lifted by an order dated May 21, 2012, which
Order also unsealed all documents making them available to
the public. The Company filed its amended
complaint on June 6, 2012, naming the individuals and
entities that were part of the group that the Company
claims authored and distributed false statements about the
Company. The Company is seeking: (1) $11 million
dollars in compensatory and punitive damages against each
defendant for its participation in the scheme as well as
other damages, (2) an Order requiring the defendants to
retract the false statements about the Company and (3) an
Order forbidding the defendants from future false attacks
on the Company. On June 22, 2012, the Court permitted the
Company and Carnes to engage in supplemental briefing on
the issue of whether the jurisdictional discovery of Carnes
extends up to the filing date of the amended
complaint. In its July 31, 2012 Order, the Court
ruled that Jon Carnes and Alfred Little are one and the
same and that the time limit for Carnes’s
jurisdictional discovery ended at the filing of the
original complaint, but that jurisdictional discovery as to
all other defendants other than Jon Carnes may very well
extend to June 6, 2012. On August 1, 2012, the Court
granted service of the amended complaint upon defendant
Andrew Wong via email. The Company effected
service upon that defendant the same day. Thus
far the Company has served five of the ten known defendants
and has filed a motion to serve three more defendants
without addresses: Joseph Ramelli, Xiaofu (Jeff) Huang, and
International Financial Research & Analysis
Group. Defendant EOS Holdings LLC has filed a
motion to dismiss which the Company must file papers in
opposition to by August 22, 2012. Defendant Simon Moore,
also represented by the same law firm representing Carnes,
has until August 17, 2012 to file its answer or
motion.
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.
|