Renee
12 years ago
CHBT: Initial Decision:
http://www.sec.gov/alj/aljdec/2012/id454cff.pdf
In the Matter of :
: INITIAL DECISION
CHINA-BIOTICS, INC. : February 22, 2012
APPEARANCES: Michael D. Foster and John J. Kaleba for the
Division of Enforcement, Securities and Exchange Commission
Jerome S. Fortinsky and Lindi L. Beaudreault of Shearman & Sterling LLP for Respondent China-Biotics, Inc.
BEFORE: Carol Fox Foelak, Administrative Law Judge
SUMMARY
This Initial Decision revokes the registration of the registered securities of China-Biotics, Inc. (China-Biotics). The revocation is based on China-Biotics’s failure to file required periodic reports with the Securities and Exchange Commission (Commission).
I. INTRODUCTION
A. Procedural Background
The Commission initiated this proceeding with an Order Instituting Proceedings (OIP), pursuant to Section 12(j) of the Securities Exchange Act of 1934 (Exchange Act), on October 7, 2011. At a December 19, 2011, prehearing conference, the Division of Enforcement (Division) requested leave to file a motion for summary disposition. Leave was granted, pursuant to 17 C.F.R. § 201.250(a); the due dates for the motion for summary disposition, opposition, and reply were January 10, 17, and 24, 2012, respectively. China-Biotics, Inc., Admin. Proc. No. 3-14581 (A.L.J. Dec. 19, 2011) (unpublished). The pleadings were timely filed.
This Initial Decision is based on China-Biotics’s Answer to the OIP, the pleadings, and the Commission’s public official records concerning China-Biotics, of which official notice is taken pursuant to 17 C.F.R. § 201.323. There is no genuine issue with regard to any material fact, and this proceeding may be resolved by summary disposition, pursuant to 17 C.F.R. § 201.250. Any other facts in China-Biotics’s pleadings have been taken as true, in light of the Division’s burden of proof and pursuant to 17 C.F.R. § 201.250(a). All arguments and proposed findings and conclusions that are inconsistent with this decision were considered and rejected.
B. Allegations and Arguments of the Parties
The OIP alleges that China-Biotics’s securities are registered with the Commission pursuant to Section 12(g) of the Exchange Act and that China-Biotics had not filed any required periodic reports since filing a report for the quarter ended December 31, 2010. China-Biotics argues that summary disposition is inconsistent with due process and would foreclose it from the opportunity to prepare its case and bring itself into compliance.
C. Procedural Issues
1. Summary Disposition
China-Biotics’s argument that summary disposition is inconsistent with due process is unavailing. Pursuant to 17 C.F.R. § 201.250(a), the facts of its pleadings “shall be taken as true,” and pursuant to 17 C.F.R § 201.250(b), summary disposition may be granted “if there is no genuine issue with regard to any material fact.”1 See also Gary M. Kornman, Exchange Act Release No. 59403 (Feb. 13, 2009), 95 SEC Docket 14246, 14254 n.24, petition for review denied, 592 F.3d 173 (2010); Conrad P. Seghers, Advisers Act Release No. 2656 (Sept. 26, 2007), 91 SEC Docket 2293, 2299-300, petition for review denied, 548 F.3d 129 (2008).
2. Investigative File
China-Biotics “requests that the Division be ordered to provide China-Biotics with access to the entire investigative file.” The issues to which China-Biotics alludes have been fully addressed, including at prehearing conferences on November 17 and December 19, 2011. See China-Biotics, Inc., Administrative Proceedings Rulings No. 689 (A.L.J. Dec. 6, 2011); China-Biotics, Inc.
1 China-Biotics has affirmatively declined to identify any issue of material fact, arguing that to do so would provide the Division with discovery to which it is not entitled. , Admin. Proc. No. 3-14581 (A.L.J. Dec. 19, 2011) (unpublished), (A.L.J. Nov. 17, 2011) (unpublished). China-Biotics does not argue that the Division has failed to comply with the disclosure ordered by the undersigned. Accordingly, the undersigned will not reopen any issues related to the investigative file.
1 China-Biotics has affirmatively declined to identify any issue of material fact, arguing that to do so would provide the Division with discovery to which it is not entitled.
II. FINDINGS OF FACT
China-Biotics (CIK No. 1271057)2 is a Delaware corporation located in Shanghai, People’s Republic of China, with a class of equity securities registered with the Commission pursuant to Exchange Act Section 12(b). Answer at 1; official notice. Common shares of China-Biotics were quoted on OTC Link, operated by OTC Markets Group (symbol “CHBT”).3 Answer at 1. The Commission’s public official records contained in EDGAR4 show that, at the time this proceeding was initiated, China-Biotics was delinquent in its periodic filings with the Commission, having not filed any periodic reports since its filing, on February 14, 2011, of Form 10-Q for the quarter ended December 31, 2010. The company has filed Forms 12b-25 (Notification of Late Filing) during its subsequent periods of delinquency to state the reasons for its failure to file Forms 10-K and 10-Q. China-Biotics is unable predict when it will return to compliance: its latest Form 12b-25, filed on February 9, 2012, states:
China-Biotics, Inc. (the “Company”) is unable to timely file its Quarterly Report on Form 10-Q for the period ended December 31, 2011 (the “Form 10-Q”) by the prescribed due date of February 9, 2012 as a result of the Company’s inability to provide audited financial statements for the fiscal year ended March 31, 2011. The Company is unable to provide audited financial statements due to the resignation of its independent auditor, BDO Limited, on June 22, 2011. The Company has not yet retained a new auditor.
Until a new auditor is retained and an audit of the Company’s financial statements is completed, the Company will be unable to provide the necessary financial statements to file the Form 10-Q. At this time, the Company cannot predict when it will be in a position to file the Form 10-Q, but it intends to file the Form 10-Q as soon as reasonably practicable.
Prior to its current delinquency, China-Biotics made every required periodic filing since it became a public company. Respondent’s Brief Opposing Motion for Summary Disposition (Opposition) at 2; official notice. After China-Biotics has completed bringing its filings up to date with financial statements that have been certified by a new auditor, it will return to its long-established practice of timely submitting its periodic filings. Opposition at 15.
2 The CIK number is a unique identifier for each corporation in EDGAR. The user can retrieve filings of a corporation by using its CIK number.
3 OTC Markets has since discontinued the display of quotes for CHBT. Instead it displays a “skull-and-crossbones” symbol for CHBT and warns “Caveat Emptor.” See www.otcmarkets.com (last visited Feb. 22, 2012).
4 Reference to any required filings of China-Biotics is supported by the Commission’s public official records contained in EDGAR, of which official notice is taken pursuant to 17 C.F.R. § 201.323.
III. CONCLUSIONS OF LAW
Exchange Act Section 13(a) and Rules 13a-1 and 13a-13 thereunder require public corporations to file annual and quarterly reports with the Commission. “Compliance with those requirements is mandatory and may not be subject to conditions from the registrant.” America’s Sports Voice, Inc., Exchange Act Release No. 55511 (Mar. 22, 2007), 90 SEC Docket 879, 885, recon. denied, Exchange Act Release No. 55867 (June 6, 2007), 90 SEC Docket 2419. Scienter, which is often described as “a mental state embracing intent to deceive, manipulate, or defraud,” is not required to establish violations of Exchange Act Section 13(a) and Rules 13a-1 and 13a-13. See SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998); SEC v. Wills, 472 F. Supp. 1250, 1268 (D.D.C. 1978). It is undisputed that China-Biotics failed to timely file its required periodic reports for any period after the quarter ended December 31, 2010, and that it cannot predict when it will return to compliance.
Accordingly, China-Biotics violated Exchange Act Section 13(a) and Exchange Act Rules 13a-1 and 13a-13.
IV. SANCTION
The Division requests that the registration of China-Biotics’s securities be revoked.5 In proceedings pursuant to Section 12(j) of the Exchange Act against issuers that violated Exchange Act Section 13(a) and Rules 13a-1 and 13a-13 thereunder, the determination “of what sanctions will ensure that investors will be adequately protected . . . turns on the effect on the investing public, including both current and prospective investors, of the issuer’s violations, on the one hand, and the Section 12(j) sanctions, on the other hand.” Gateway Int’l Holdings, Inc., Exchange Act Release No. 53907 (May 31, 2006), 88 SEC Docket 430, 438-39 (citing Steadman v. SEC, 603 F.2d 1126, 1139-40 (5th Cir. 1979)). The Commission “consider[s], among other things, the seriousness of the issuer’s violations, the isolated or recurrent nature of the violations, the degree of culpability involved, the extent of the issuer’s efforts to remedy its past violations and ensure future compliance, and the credibility of its assurances, if any, against further violations.” Id. at 439.
The violations were serious in that failure to file periodic reports violates a crucial provision of the Exchange Act. The purpose of the periodic reporting requirements is to publicly disclose current, accurate financial information about an issuer so that investors may make informed decisions:
The reporting requirements of the Securities Exchange Act of 1934 is the primary tool which Congress has fashioned for the protection of investors from negligent, careless, and deliberate misrepresentations in the sale of stock and securities. Congress has extended the reporting requirements even to companies which are “relatively unknown and insubstantial.”
5 The only remedies available in this proceeding, pursuant to Section 12(j) of the Exchange Act, to address the company’s reporting violations are revocation or suspension of registration of its securities.
SEC v. Beisinger Indus. Corp., 552 F.2d 15, 18 (1st Cir. 1977) (quoting legislative history); accord e-Smart Techs., Inc., Exchange Act Release No. 50514 (Oct. 12, 2004), 57 S.E.C. 964, 968-69.
China-Biotics’s violations are recurrent in that it has repeatedly failed to file periodic reports. Concerning culpability, China-Biotics knew of its reporting obligations but failed to comply with them. What China-Biotics argues is a mitigating factor, that its delinquency has, so far, extended for one year, not many years, is somewhat diminished by the facts that the company does not have an auditor and cannot predict when it will return to compliance. In fact, China-Biotics has made no representations concerning its efforts to remedy its past and ongoing violations. Although it intends to return to compliance, its violations will continue for an indeterminate period.
In sum, dismissal of this proceeding or a lesser sanction, such as a suspension of registration for a period of twelve months or less, is not an appropriate disposition.6 Rather, revocation of the registration of China-Biotics’s registered securities will serve the public interest and the protection of investors, pursuant to Section 12(j) of the Exchange Act. Accord, Nature’s Sunshine Products, Inc., Exchange Act Release No. 59268 (Jan. 21, 2009), 95 SEC Docket 13488; Impax Labs., Inc., Exchange Act Release No. 57864 (May 23, 2008), 93 SEC Docket 6241. Of course, at any time following the revocation, China-Biotics may re-register its securities under Exchange Act Section 12(g) by filing a Form 10 with the Commission, after it has engaged a new auditor and has audited financial statements.
V. ORDER
IT IS ORDERED that, pursuant to Section 12(j) of the Securities Exchange Act of 1934, 15 U.S.C. § 78l(j), the REGISTRATION of the registered securities of China-Biotics, Inc., IS REVOKED.
This Initial Decision shall become effective in accordance with and subject to the provisions of Rule 360 of the Commission’s Rules of Practice, 17 C.F.R. § 201.360. Pursuant to that Rule, a party may file a petition for review of this Initial Decision within twenty-one days after service of the Initial Decision. A party may also file a motion to correct a manifest error of fact within ten days of the Initial Decision, pursuant to Rule 111 of the Commission’s Rules of Practice, 17 C.F.R. § 201.111. If a motion to correct a manifest error of fact is filed by a party, then that party shall have twenty-one days to file a petition for review from the date of the undersigned’s order resolving such motion to correct a manifest error of fact.
The Initial Decision will not become final until the Commission enters an order of finality. The Commission will enter an order of finality unless a party files a petition for review or a motion to correct a manifest error of fact or the Commission determines on its own initiative to review the Initial Decision as to a party. If any of these events occur, the Initial Decision shall not become final as to that party.
__________________________________
Carol Fox Foelak
Administrative Law Judge
bUrRpPPP!
13 years ago
BRENTWOOD, Tenn., Oct. 14, 2011 /PRNewswire via COMTEX/ -- Confirmation.com, the world's leading provider of secure audit confirmation services, comments on recent news about the Securities and Exchange Commission's (SEC) decision to suspend trading in China-Biotics, Inc. (CHBT) which follows earlier reports about CHBT's accounting fraud allegations involving directing their auditors to a fake bank website as the auditors attempted to confirm the company's cash balances. Several years ago Brian Fox, CPA and Founder of Confirmation.com, began teaching CPAs at national accounting fraud conferences how to use technology to circumvent an auditor's confirmation procedures, and specifically warned CPAs that fraudsters would soon create fake bank websites to try and deceive the auditors with false audit confirmations and online verifications. According to CHBT's 8-K filed with the SEC, BDO Limited resigned as CHBT's independent auditor in June of this year because of irregularities that likely "constitute as illegal acts" which could have a material effect on the CHBT's financial statements. As mentioned in BDO's resignation letter, one of the irregularities found during the audit revealed that when viewing the company's online bank accounts, BDO auditors were directed by CHBT staff to a suspected fake bank website. Another irregularity BDO cited was that the chop or authenticity seal of the purchaser on a sales contract belonged to another company than the one named on the sales contract. "Manipulating sales contracts, creating bogus invoices, and forging bank statements are just a few techniques fraudsters use to inflate a company's cash balances," said Brian Fox. "While these are your typical, tried and true methods for hiding financial fraud, in the last few years I have been especially concerned about how easy it would be to create fake business credentials that look legitimate using today's technology. As auditors, we should always be vigilant of the multiple ways to circumvent the confirmation process, not only of the tactics that have been used time and time again, but also of the new ways fraudsters will creatively use today's technologies - like email and the Internet - that are readily available to just about everyone. "It's unfortunate that a company created a fake bank website for the sole purpose of misleading an auditor during the confirmation process, but this is not surprising and is actually just the tip of the iceberg. We will continue to see more fraudsters use email, the Internet and fake websites to misdirect and circumvent their auditor's confirmation procedures." "While numerous U.S. traded Chinese companies have recently come under SEC scrutiny for allegations of wrongdoing, financial fraud can happen anywhere," said Chris Schellhorn, CEO of Confirmation.com. "More than 10 years ago, we saw a big weakness in the confirmation process and envisioned major financial frauds happening as a result of this. That's why we created Confirmation.com, the first ever secure online confirmation service that is now widely used by auditors throughout the world." A portion of Brian's presentation at the 2011 AICPA Forensic Accounting Conference where he predicted the use of fake bank websites can be viewed here. Additionally, a variety of free web seminars about audit confirmations and confirmation-related financial frauds can be found on the CPA2Biz Confirmation.com Web Seminars page. About Confirmation.com Confirmation.com is the creator and world's leading provider of secure electronic audit confirmation services. In addition to its bank confirmation solution, the company provides solutions for more than 30 different types of audit confirmations including accounts receivable confirmations. Confirmation.com is the Preferred Provider of Electronic Confirmations for the AICPA Trusted Business Advisor(TM) Solutions Program and is endorsed by the American Bankers Association. Confirmation.com has received numerous awards including being a multi-year alumni on the Inc. 500 list (2010 and 2011), CPA Technology Advisor's 2009 Innovation Award and the Readers' Choice Award (2009 and 2010), K2 Annual Quality Award (2009 and 2010), and four-time winner of the Future 50 Award. Several hundred In-Network responding companies including all of the Top 10 banks in the U.S. and over 8,000 accounting firms in more than 100 countries trust Confirmation.com for their audit confirmation needs. For more information, visit Confirmation.com. Available Topic Expert(s): For information on the listed expert(s), click appropriate link.ContactDebbie Gray, Director of MarketingConfirmation.com888-716-3577Debbie.gray@confirmation.com SOURCE Capital Confirmation, Inc. Copyright (C) 2011 PR Newswire. All rights reserved
mlkrborn
13 years ago
CHBT $1.26 after voluntary Nazdog's delisting and USA and China probes into us listed chineese cos:
China Said to Discuss Allowing SEC Probes of Mainland Firms for First Time
By Bloomberg News - Jul 5, 2011 2:03 PM ET
China Said to Discuss Letting SEC Probe Mainland Companies
The headquarters building of the U.S. Securities and Exchange Commission (SEC) stands in Washington, D.C. Photographer: Joshua Roberts/Bloomberg
Muddy Waters' Block on Research on China Companies, July 1
Play Video
July 1 (Bloomberg) -- Carson Block, founder of Muddy Waters LLC, talks about his research into Chinese companies and outside reaction to his reports and short-selling position on companies including Sino-Forest Corp. Block spoke yesterday with Bloomberg Television's Erik Schatzker. (Source: Bloomberg)
Kurtz Interview on China Companies, June 30
Play Video
June 30 (Bloomberg) -- Michael Kurtz, head of Asian strategy at Macquarie Bank Ltd., talks about the potential for business fraud at Chinese companies. Kurtz speaks in Hong Kong to Rishaad Salamat on Bloomberg Television's "On the Move Asia." (Source: Bloomberg)
PCAOB Chairman James R. Doty
James Doty, chairman of the Public Company Accounting Oversight Board, said in April that the inability to inspect auditors in China represents a “gaping hole in investor protection.” The board regulates and inspects registered auditors under the oversight of the SEC. Photographer: Rich Clement/Bloomberg
Shang Fulin
Shang Fulin, chairman of the China Securities Regulatory Commission (CSRC), speaks at the Caijing Annual Conference 2011 in Beijing, China, Dec. 17, 2010. Photographer: Adam Dean/Bloomberg
U.S. and Chinese officials will meet next week to discuss giving American securities regulators the right to investigate companies within China for the first time, said two Chinese officials with direct knowledge of the plans.
Representatives from the Securities and Exchange Commission and the Public Company Accounting Oversight Board will meet with counterparts from the China Securities Regulatory Commission in Beijing from July 11 to 12, said the officials, who asked not to be named because the talks are private.
A joint delegation from the SEC and PCAOB will share “technical and practical information regarding audit inspection and cross-border oversight that we hope and expect should facilitate our achievement of our meaningful inspection procedure for Chinese audit firms going forward,” said Colleen Brennan, a PCAOB spokeswoman, declining to discuss the timing of any meeting. John Nester, an SEC spokesman, declined to comment.
China-Biotics Inc. (CHBT) and Heli Electronics Corp. (HELI) are among dozens of companies traded in the U.S. that have disclosed auditor resignations or accounting irregularities this year, leading to the suspension or delisting of their shares. Some of the SEC’s previous investigations of such companies have been stalled by the inability to gather information in China.
Regulators in the Asian nation haven’t felt pressure to immediately address oversight of companies publicly traded in the U.S. because they weren’t responsible for approving the listings, one of the officials said.
Reverse Mergers
The meetings next week will discuss the feasibility of U.S. regulators conducting field inspections of auditors and companies in China, the officials said. They’ll also include talks focused on companies that list in the U.S. through reverse mergers, said one of the Chinese officials.
Reverse mergers allow closely held firms to buy publicly traded shell companies, thereby gaining a stock listing without the scrutiny of an initial public offering. Chinese companies listed in the U.S. have had $4.1 billion wiped off their market value this year amid a wave of auditor resignations and fraud allegations by short-sellers including Carson Block’s Muddy Waters LLC. Auditors have cited problems ranging from forged paperwork to a suspected fake bank website.
The SEC cautioned investors last month, saying that companies gaining listings this way may be prone to “fraud and other abuses.”
‘Gaping’ Hole
PCAOB Chairman James R. Doty said in April that the inability to inspect auditors in China represents a “gaping hole in investor protection.” The board regulates and inspects registered auditors under the oversight of the SEC.
“We’re at a time where the integrity of the financial statements of so many companies has been challenged, that the natural place to look for some reassurance is the regulator with oversight responsibility,” said Jacob Frenkel, a former SEC lawyer now with Shulman Rogers Gandal Pordy & Ecker PA in Potomac, Maryland. “But if the regulator cannot oversee, that in and of itself diminishes confidence.”
Access that U.S. regulators have requested doesn’t comply with China’s existing laws, one of the Chinese officials said. The Chinese regulators were offered equal access to conduct field inspections in the U.S., according to the officials. No foreign companies are currently listed in China.
The China Securities Regulatory Commission didn’t immediately respond to faxed requests for comment.
‘Something Conclusive’
U.S. regulators previously met with officials from the China Securities Regulatory Commission in May in Washington. Doty said at the time that those talks may lead to “something conclusive” on how the nations handle the situation.
“Both sides have agreed to accelerate efforts, including undertaking a process for negotiations and engaging in technical assistance activities, to reach a bilateral agreement,” the PCAOB’s Brennan said.
Some SEC investigations have been stalled as Chinese regulators blocked attempts to gather data even when the firms were willing to cooperate, a person with direct knowledge of the matter said in May.
The Nasdaq Stock Market has delisted companies such as China MediaExpress Holdings Inc. (CCME) and China Agritech Inc. (CAGC) China Agritech spokesman Fan Bin said the company’s delisting hasn’t affected its business. Zheng Zhuofeng, China MediaExpress’s financial controller, wasn’t available to comment.
New Policy
More than 150 Chinese companies with a market value of $12.8 billion have entered U.S. markets through reverse mergers since 2007, according to the PCAOB. During that same period, only about 50 Chinese companies filed IPOs. The Bloomberg Chinese Reverse Mergers Index, which tracks 78 shares listed in the U.S., has dropped 44 percent this year.
The accounting board last month rejected an application by Hong Kong-based Zhonglei CPA Co. to become a registered U.S. auditor, citing an inability to inspect its work for companies based in China. It was the first time the board had rejected an application since tightening rules in October.
The PCAOB issued a new policy in October making the inability to inspect auditors in nations such as China a factor when considering whether to approve them. The organization is currently blocked from inspecting firms based in China.
Most of the customers of the firms that are under investigation by the SEC are in China, not regulated by the SEC. Without the ability to subpoena information from the firms’ customers, it’s been difficult for the SEC to corroborate sales records, a person familiar with the matter said in May.
‘Illegal Acts’
The SEC in March suspended trading of Heli Electronics after faulting the company for a lack of current and accurate information in its financial statements. MaloneBaily LLP resigned as the company’s auditor that same month after it identified irregularities with Heli Electronics’s financial statements. Calls to the company’s offices in the city of Guangzhou went unanswered.
China-Biotics said June 29 that the company intended to voluntarily delist its stock from trading on the Nasdaq exchange. BDO Ltd. resigned June 22 as the company’s auditor citing irregularities it had uncovered that likely constituted “illegal acts,” including being directed by China-Biotics staff during audit work to a suspected fake bank website. An operator who answered calls to the company’s offices in Shanghai said no one was available to comment.
--Eva Woo, Dune Lawrence. With assistance from Charles Li in Beijing, Neil Western in Hong Kong and Jesse Hamilton in Washington. Editors: John Liu, David Scheer
To contact Bloomberg News staff on this story: Eva Woo in Beijing at +86-10-6649-7537 or ewoo9@bloomberg.net; Dune Lawrence in New York at +1-212-617-4510 or dlawrence6@bloomberg.net
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