212-805 6326 1

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1 UNITED STATES DISTRICT COURT

1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
3 CARL BRAUN, et al.,
3
4 Plaintiffs, New York, N.Y.
4
5 v. 11 Civ. 4383(CM)
5
6 ZHI GUO FU, et al.,
6
7 Defendants.
7
8 ------------------------------x
8
9 December 13, 2013
9 10:25 a.m.
10
10 Before:
11
11 HON. COLLEEN MCMAHON,
12
12 District Judge
13
14
15
16 APPEARANCES
16
17
17 SHANNON HOPKINS
18 Attorney for Plaintiffs
18
19
19 LEE S. SHALOV
20 Attorney for Defendants
20
21
22 ALSO PRESENT:
23 JOEL CAPLAN
24
25
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1 (Case called; all parties present)

2 THE COURT: This matter is on for a fairness hearing.
3 We are going to be able to begin the fairness hearing today.
4 We cannot conclude the fairness hearing because the court was
5 notified by counsel earlier in the week that, due to some kind
6 of technical glitch, the notice that should have appeared on
7 the ABAT Web site in China did not actually go up until about a
8 week ago, so we are going to have to extend the notice period.
9 Counsel, you had sent a letter, it is in here
10 somewhere, but rather than find it, why don't you tell me what
11 you all have worked out, because you had worked out a tentative
12 schedule.
13 MS. HOPKINS: Yes, your Honor.
14 We agreed that 30 days, we thought, would be
15 sufficient under the law and due process, so we request that
16 your Honor would keep the objection period open for an
17 additional 30 days. And I guess we would provide notice to
18 shareholders that the objection period was open for filing with
19 the SEC.
20 THE COURT: How are you going to provide the notice to
21 the shareholders?
22 MR. SHALOV: We could issue a new notice, your Honor,
23 and just alert shareholders on the Web site that there is an
24 additional 30 days if they wish to file an objection.
25 I might recommend, your Honor, if you think it would
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1 be worthwhile that, to the extent somebody did in fact have an

2 objection and wished to appear, that we could advise them that
3 they could appear on the date of the fairness hearing in
4 connection with the settlement of the securities class action,
5 which I believe has a date in late February.
6 THE COURT: That was going to be my suggestion, can I
7 conclude this fairness hearing on the same day that we have the
8 shareholder hearings.
9 MR. SHALOV: You can, your Honor.
10 MS. HOPKINS: Yes, your Honor.
11 THE COURT: Do we have that date? I want to put that
12 on the record today.
13 That is what we will do. How quickly do you think you
14 can get the notice up?
15 MR. SHALOV: Within a couple of days, your Honor.
16 THE COURT: Here is what I am going to do. I am going
17 to extend the period for objections to the derivative
18 settlement. Have any objections been filed, by the way?
19 I know we have a gentleman here who has been my
20 frequent correspondent who is not an objector but wants to say
21 something, and I want to listen to him. But have there been
22 actually any formal objections about the settlement?
23 MR. SHALOV: No, your Honor.
24 THE COURT: Here is what we are going to do. We are
25 going to reopen the period for filing objections, and we are
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1 going to keep it open until January 24. The notice should

2 include information that the adjourned date for the
3 continuation of this fairness hearing is February 21, 2014, at
4 9:30 a.m., and that anyone who wishes to be heard on an
5 objection in connection with the shareholder derivative
6 settlement should attend that hearing, okay? We will do both
7 that hearing and the shareholder hearing at the same time,
8 which is actually a very good idea.
9 So can you give me a report? Since this is
10 technically a fairness hearing and we are open for business,
11 can you give me a report on where things stand right now,
12 counsel.
13 MS. HOPKINS: As far as the status of the case, your
14 Honor?
15 THE COURT: As far as the status of the settlement of
16 the derivatives.
17 MS. HOPKINS: Okay. Yes, your Honor.
18 The settlement, we have conducted negotiations at
19 arm's length -- to take a step back, your Honor, when the
20 securities fraud case was first announced, we looked at that
21 and we believed there is some fundamental problems with the
22 management and the way the company was being governed, which
23 prompted our lawsuit here, and we think we have achieve a very
24 good result for the shareholders here and for the company, your
25 Honor, by way of additional corporate governance to enhance the
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1 company's internal controls, reporting practices. The

2 defendant also set up a separate call line so whistle-blowers
3 can report things that they are seeing without fear of
4 retaliation. So we feel like we have gotten a really great
5 result here for the shareholders. At this point we are ready
6 to present the settlement to the court for final approval.
7 That's the status of where we are.
8 THE COURT: Okay, fine.
9 Anything that we want from defense counsel, and then I
10 wish to hear from the gentleman who is here to speak. The main
11 reason we did not adjourn the hearing is that I knew that
12 someone was coming here who wanted to speak, and I did not wish
13 him to be inconvenienced.
14 MR. SHALOV: Your Honor, we also endorse the
15 settlement. The company has agreed to implement a number of
16 mechanisms and procedures with regard to overseeing
17 transactions between insiders and the company itself. To the
18 extent that there are publically filed documents to assure that
19 there is some reconciliation between those publicly filed
20 documents and documents that are filed in China, the company
21 has agreed to establish a hotline, to the extent that there are
22 any complaints or inquiries that employees want to make. Those
23 mechanisms, to the extent that the court approves both the
24 derivative settlement and securities settlement, will be
25 implemented shortly after those settlements become effective.
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1 THE COURT: Thank you very much.

2 Sir, good morning.
3 MR. CAPLAN: Good morning. I am a little nervous.
4 THE COURT: Don't be nervous. I have been reading
5 your letters. Would you come up to the microphone here? I
6 would like you to state your name and address, so the court
7 reporter can have a record of who is speaking. I almost feel
8 like you are one of my most frequent correspondents.
9 MR. CAPLAN: Joel Caplan, with a C.
10 THE COURT: Mr. Caplan, I have received some letters
11 from you. The most recent one says that you have no desire to
12 up-end the settlement, but I think there were three things that
13 you wanted to call my attention to.
14 MR. CAPLAN: Yes, your Honor, the first being that I
15 am concerned that there will be verification of these corporate
16 governance reforms; and if there is not some type of
17 verification, what recourse shareholders would have? Primarily
18 that comes from watching some of the other key settlements that
19 have taken place in the Chinese RTO sector, where the
20 settlements are concluded, the companies don't follow up, and a
21 number of shareholders are left with a very illiquid stock that
22 trades at very low value because the companies don't do what's
23 required to go back to normal reporting.
24 THE COURT: Okay.
25 MR. CAPLAN: So verification, especially in regard to
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1 filing, which wasn't really one of the corporate governance

2 reforms, just that there be a match between what has happened
3 in China and what happens with the SEC.
4 THE COURT: Why don't you go on, you speak fully, and
5 then I am going to have counsel address you.
6 MR. CAPLAN: Okay. The second being that under
7 Delaware law, corporations are required to have a shareholder
8 meeting every 13 months; and if one doesn't happen,
9 shareholders have a right to call a shareholder meeting.
10 THE COURT: That's correct.
11 MR. CAPLAN: The company has not, to my knowledge, had
12 shareholder meeting since the fall of 2010, I believe, maybe
13 the spring of 2011, before the short seller hit piece came out.
14 Anyway, it's been more than 13 months. I have looked into the
15 cost to try to -- well, with an attorney -- take action in
16 Delaware. It is exorbitant.
17 THE COURT: In Chancery Court you. Would have to go
18 to Delaware Chancery Court.
19 MR. CAPLAN: I am pursuing that pro se. I am
20 concerned that the company will place a lot of distance between
21 its U.S. shareholders and its management by not having a
22 shareholder meeting.
23 THE COURT: Okay. That's an issue.
24 And the third issue is?
25 MR. CAPLAN: The third issue is really what's
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1 happening with the filings. I contacted the SEC last week, and
2 they told me there were some exceptions about why a company
3 would not need to file, but she couldn't tell me what those
4 were. I haven't had a chance to follow up to see if ABAT meets
5 that criteria, but I am concerned that as long as they are not
6 filing, nobody is really interested in purchasing the stock, so
7 we are stuck.
8 THE COURT: Okay. I am not sure I understand the last
9 one; but, counsel, who wants to address Mr. Caplan's issues?
10 MS. HOPKINS: Your Honor, with respect to the first
11 one, the verification of the corporate governance reforms, I
12 think that is one of the ramifications we would have here is to
13 enforce the settlements if the company wasn't complying with
14 the specific things they were supposed to do. So I think that
15 would probably be the remedy; also, I suppose, bring a separate
16 action if those things weren't being done. So there are a
17 couple of different remedies we could pursue if we saw that
18 the -- we would have to look through filings, disclosures, and
19 things like that to see, to make sure what we agreed to in the
20 settlement was in fact being adhered to; and, if it wasn't,
21 there would be a couple of different remedies, I think, to
22 force the settlement to make a summary action.
23 The other two point are probably better addressed by
24 Mr. Shalov.
25 MR. SHALOV: Your Honor, I empathize with Mr. Caplan's
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1 concerns. He is invested in the company. He is concerned

2 about it, the corporate management issues associated with his
3 investment that hasn't performed up to his expectations. There
4 are remedies that are available to him legally if he is unable
5 to convince the company to implement his wishes.
6 But, respectfully, this is not the forum to be
7 implementing those procedures. As the court observed, there
8 are mechanisms and procedures available in the Court of
9 Chancery in Delaware with regard to shareholder meetings. To
10 the extent he has issues concerning public filings, he is
11 certainly within his rights to raise those with the company
12 directly. And I believe he has reached out to the company,
13 albeit apparently not to his satisfaction.
14 I think the point to make, your Honor, is we have
15 settled this case specifically with regard to the litigation
16 issues raised in the complaint, and we specifically addressed
17 those. I understand Mr. Caplan has other issues and he has
18 every right to pursue those, but I respectfully would submit
19 that those issues have to be raised in a different forum at a
20 different time.
21 THE COURT: It is certainly the case that if the
22 company has not complied with Delaware law and quota
23 shareholder meetings, that would be an interesting fact to know
24 if this case were going to trial, because it is obviously a
25 corporate governance related issue. But there is a procedure
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1 in Delaware for compelling a corporation to call a shareholder

2 meeting. Because it is a Delaware corporation, that is the
3 court that has jurisdiction over that matter. I am a court of
4 limited jurisdiction in the sense that I don't own the company
5 and every issue that has to do with the company. I can only
6 deal with what's in front of me right now. What's in front of
7 me right now is does this settlement work.
8 In terms of false filings, on an ongoing basis courts
9 deal with things that have already been filed and sometimes
10 enter injunctions that simply reenforce and underscore the
11 legal obligation that anybody who sells stock in the United
12 States has to file full and truthful statements with the SEC.
13 If in the future there are new filings that turn out to be
14 false, the remedy, as I understand it, is to bring a new
15 lawsuit alleging that there are false filings. There are
16 standing requirements and there are other requirements that
17 have to do -- it may not be a securities fraud lawsuit. It may
18 be some other kind of a lawsuit, because the securities fraud
19 lawsuit can only be brought in connection with the purchase or
20 sale of the security, but I am confident that there are
21 remedies.
22 If what you are asking me to do is not to approve the
23 settlement because something bad might happen in the future,
24 that's an objection that I would consider and take under
25 advisement. You specifically told me that you did want to
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1 up-end the settlement. There is always an issue when you

2 settle a case, is the settlement going to work, is the
3 settlement going to work? I had not planned to retain
4 continuing jurisdiction over this case. It is not my practice.
5 It is not the practice of most federal judges to take ongoing
6 oversight over corporate affairs of private corporations. If
7 there is a breach of the settlement agreement, however, this
8 court does have jurisdiction to entertain a lawsuit for breach
9 of that agreement.
10 So what I am tempted to say, Mr. Caplan, is sufficient
11 unto the day if something goes wrong in the future, because I
12 am trying to deal with what is going wrong in the past.
13 I, too, am sympathetic. I understand that you made an
14 investment that has not turned out as you had hoped. That is a
15 story that seems to happen a lot in connection with these
16 Chinese companies. Maybe that is the lesson that one should
17 draw from that, that perhaps we and they are not really on the
18 same page yet in terms of how we think about business matters.
19 Maybe that ought to inform our decisions. It is particularly
20 difficult for an American court or Americans generally to
21 govern the affairs of Chinese entities. They do, nonetheless,
22 if they are going to sell stock in the United States, have an
23 obligation to comply with our laws and our rules. If they are
24 going to have U.S. subsidiaries, the U.S. subsidiaries can't do
25 business in the Chinese way. They have to do business in the
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1 American way. I don't know if that's helpful to you, but that

2 appears, to me, to be what is available I guess to address your
3 concern that on an ongoing basis they might once again stray.
4 MR. CAPLAN: On a practical level, the corporate
5 governance reforms are good, but they are a bit general. I am
6 just wondering if they could be spelled out a little further.
7 THE COURT: I mean, like what? What do you have in
8 mind.
9 MR. CAPLAN: Well, that the company would be required
10 to report.
11 THE COURT: To what?
12 MR. CAPLAN: That they would be required to file
13 timely, to report timely.
14 THE COURT: They are required to do that by law.
15 MR. CAPLAN: Already.
16 THE COURT: Yes.
17 MR. CAPLAN: Couldn't that be reemphasized in the
18 corporate governance reforms specifically?
19 THE COURT: Counsel?
20 MS. HOPKINS: Your Honor, like you said, it is
21 required by law. I don't really see what that --
22 THE COURT: It is not a reform if it is already
23 required by law.
24 MR. SHALOV: That is correct, your Honor.
25 Just an additional fact for the court to know, the
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1 company has been delisted. It doesn't file public filings

2 currently with the Securities and Exchange Commission. The
3 company has separate securities counsel. An attorney from my
4 firm who deals with the regulatory issues who has concluded
5 that current filings with the SEC are at the present time,
6 given its delisting, not required.
7 Again, I understand Mr. Caplan's concern, but that's
8 not an issue that has been raised in the litigation. It is not
9 specifically spelled out as a separate therapeutic measure that
10 is part of the settlement, nor do I think should it be.
11 THE COURT: I can certainly take Mr. Caplan's
12 statements as an objection to the extent that the settlement
13 does not require the filing of reports with the SEC,
14 notwithstanding delisting, and I can rule on that objection.
15 Okay? Maybe that's the thing to do.
16 MR. SHALOV: I think Mr. Caplan is expressing a wish.
17 I don't want to put words in his mouth. I'm not sure he is
18 objecting to the settlement. Obviously if the court wants to
19 consider it an objection, that is up to your Honor.
20 THE COURT: The only way I can consider the issue is
21 if I consider what Mr. Caplan is saying, as he is alleging,
22 that this is a deficiency in the settlement.
23 MR. SHALOV: Understood.
24 THE COURT: That the settlement should require -- you
25 understand, sir, that the stock has been delisted. It no
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1 longer trades. That means that the SEC doesn't require the
2 filing of certain kinds of reports, all right? And if what you
3 are saying is that you think there is a hole in the settlement
4 as a result and it should require the filing of reports,
5 notwithstanding that the SEC doesn't want to have them, I can
6 consider that as an objection. I am expected to give deference
7 to an administrative agency that has expertise in a particular
8 area. So if the SEC says, We don't take reports from delisted
9 companies because we regulate the trading of securities,
10 principally over exchanges, though not exclusively over
11 exchanges, but our interest is not in protecting people's
12 investments, it is in the trading of securities, and the
13 purchase and sale of securities, and if the stock is delisted,
14 it is not trading, so we really don't have any interest in what
15 is going on there. Then the only filings that are required are
16 whatever filings are required by Delaware law of every Delaware
17 corporation, and I would be hard pressed to impose on a
18 corporation a requirement to file something with the SEC that
19 the SEC itself doesn't require and doesn't want.
20 MR. CAPLAN: I was not aware until this moment that
21 once a company is delisted from NASDAQ or another exchange that
22 the SEC doesn't want or require those filings. Are you very
23 confident of that as a matter of law?
24 MR. SHALOV: Your Honor, I do not know that as a legal
25 certainty. What I know is that the company doesn't file
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1 documentation with the SEC on a regular basis any longer.

2 That's a matter between the company and its SEC counsel. I can
3 certainly inquire about that.
4 THE COURT: Let me tell you, I think it would be
5 appropriate, given the fact that the company is no longer
6 filing with the Commission, for me to have, in support of the
7 settlement, some short brief that addresses that issue. I
8 think that would be helpful. It might put Mr. Caplan's mind at
9 rest. It would certainly put my mind at rest. Nothing
10 complicated.
11 MR. SHALOV: Certainly, your Honor.
12 THE COURT: A citation to the relevant regulation, and
13 I am sure securities counsel can give that you relatively
14 quickly.
15 MR. SHALOV: Very well.
16 MR. CAPLAN: I would go back to my point one, in terms
17 of the corporate governance reforms, in verifying them, to set
18 up some sort of specific timetable where in, let's say, three
19 months it could be ascertained if they are following them or
20 not. I know that in other Chinese companies, six months have
21 passed since their settlement, that's what I mentioned in the
22 letter, in Sino-Clean Energy, and they haven't done anything.
23 THE COURT: I can tell you what the remedy is for
24 that. The remedy for that is for someone to come back to me in
25 six months and say: Nothing has happened. The settlement is
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1 not being complied with. The court retains continuing

2 jurisdiction over the settlement.
3 MR. CAPLAN: Even if a final order has been issued?
4 THE COURT: Yes.
5 MR. CAPLAN: And in what way would myself and other
6 shareholders reapproach the court? What would be the method
7 for that?
8 THE COURT: I can't give you legal advice, all right?
9 I just can't do it. There is a method. You have to make a
10 filing. You have to move to reopen the case. You have to move
11 to reopen the case on the ground that the settlement is not
12 being complied with. It has never happened in a single case
13 that I have ever had. I know it can happen.
14 MR. CAPLAN: There have been a lot of firsts with me.
15 THE COURT: I don't know.
16 MR. CAPLAN: So from the final order, what would be
17 the time that we would give them to?
18 THE COURT: Sir, I don't know.
19 MR. CAPLAN: Okay.
20 THE COURT: I don't know. (A) I haven't entered a
21 final order; (b) you can't expect things to happen immediately.
22 Certainly the corporate governance reforms should be put into
23 place. They should be implemented with promptness.
24 I anticipate that you are planning to that. Is that
25 correct?
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1 MR. SHALOV: Yes, your Honor.

2 THE COURT: Okay.
3 MR. CAPLAN: Thank you.
4 THE COURT: Anything else, Mr. Caplan? This is
5 helpful.
6 MR. CAPLAN: Did you say this is helpful?
7 THE COURT: Yes, it has been helpful.
8 MR. CAPLAN: I just want to say I appreciate that you
9 have read my letters at least in their entirety. There have
10 been a lot of interesting phenomena that went on with this
11 situation. I got in over my head.
12 THE COURT: I really feel terrible for you. I really
13 do. I really do.
14 MR. CAPLAN: Thanks.
15 THE COURT: And I appreciate your interest. That's
16 what we are here for. Okay?
17 MR. CAPLAN: Just give me ten seconds just to
18 contemplate inside before I step away from the mike.
19 THE COURT: Sure.
20 (Pause)
21 MR. CAPLAN: Might I just make a statement for
22 therapeutic relief just for the disparity of the reality of the
23 situation as I mentioned in my first letter?
24 THE COURT: Sure.
25 MR. CAPLAN: There is a situation where a company has
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1 had a $225 million loss in market cap, and a settlement has

2 been reached that allows shareholders a third of a penny per
3 share with a question mark about what the final result will be
4 in six months, a year's time, two years' time. It is possible
5 that everything could turn out fine and the company will do
6 what needs to be done, and it is also possible this stock may
7 never recover and that loss in market will completely disappear
8 from shareholders' bank accounts. And --
9 THE COURT: It will turn out to have been a bad
10 investment, which is always the biggest disappointment in the
11 world.
12 MR. CAPLAN: Right. And it is compounded by the fact
13 that this is happening with a large number of Chinese
14 companies. So when that number $225 million is multiplied by
15 10 or 20, it is a huge amount of money that is leaving the
16 country, and there is no recourse.
17 THE COURT: It is interesting, because if what you are
18 talking about is a widespread phenomenon that is detrimental to
19 the United States economy, it ought to be of interest to
20 someone at some level of government. A court of law dealing
21 with a discrete situation is probably not the best forum for
22 working out the policy issue of whether, I don't know, Chinese
23 companies ought to be able to distribute stock in the United
24 States. It might be an issue of interest to the business press
25 if there is in fact this broad-based, widespread phenomenon
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1 happening that, over and over again, these companies are

2 turning out to go bust, and all the investment from the United
3 States ends up in China and there is no return. I would think
4 that somebody from Bloomberg or the Wall Street Journal would
5 be very interested in that.
6 MR. SHALOV: Your Honor, may I? If that's okay?
7 THE COURT: Yes.
8 MR. SHALOV: I just want to put on the record, your
9 Honor, that Advanced Battery is a legitimate, real company. I
10 think Mr. Caplan, in fact, would attest to this. It is not
11 like these other Chinese entities that are fraudulent
12 enterprises that engage in improper schemes to defraud
13 investors. What happened here is that it was a victim, like
14 many of these other Chinese entities, of short seller attacks.
15 Short sellers, a number of unidentified small investment firms,
16 felt that it was appropriate for them to issue negative news
17 and speculate about transactions and engage in misreporting
18 about the company to drive down the share of the price per
19 share of the company and reap some economic reward. That's
20 what happened, unfortunately, to Advanced Battery. It got
21 caught up in these short seller attacks. It is our position,
22 as the court knows, that everything that was contained in these
23 short seller articles was false.
24 THE COURT: Yes.
25 MR. SHALOV: I just want to put that on the record.
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1 Even Mr. Caplan, I believe, will attest that this is a viable

2 entity in China that manufacturers scooters and batteries and
3 is a real, legitimate company, and I just want that to be on
4 the record.
5 THE COURT: It should be. In fact, I am not totally
6 immersed in the shareholder settlement yet, because we weren't
7 going to discuss the shareholder settlement today, but it is in
8 that case where it becomes apparent that there are two sides to
9 the story and that Advanced Battery actually does something.
10 MR. SHALOV: Thank you, your Honor.
11 THE COURT: Another reason why it is probably a good
12 idea for us to handle ultimately both settlements at the same
13 time.
14 MR. SHALOV: Agreed.
15 THE COURT: Yes, Mr. Caplan. Anything else? Because
16 I have got to go to the next case, but I really do want to
17 thank you for your correspondence and thank you for being here
18 today.
19 MR. CAPLAN: Thank you. I can attest to what
20 Mr. Shalov just said.
21 THE COURT: That's great.
22 MR. SHALOV: I just wish the company would do more to
23 verify on behalf of their shareholders and itself.
24 THE COURT: All right. Counsel, anything else, or can
25 I adjourn the hearing until February 21?
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1 MS. HOPKINS: Nothing else.

2 MR. CAPLAN: Nothing else, your Honor.
3 THE COURT: Excellent. And you are going to get me a
4 little brief on that, I mean really short.
5 MR. SHALOV: Your Honor, I don't know what my
6 colleague's schedule is like. Given the upcoming holidays,
7 what were you thinking of, your Honor?
8 THE COURT: By the middle of January.
9 MR. SHALOV: Okay. Thank you.
10 MS. HOPKINS: Thank you, your Honor.
11 THE COURT: Thank you.
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