1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT of NEW YORK DEAN FREDERICK, Individually and on Behalf of All Others Similarly
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) DEAN FREDERICK, Individually and On Behalf ) of All Others Similarly Situated, ) ) CIVIL ACTION NO. ) Plaintiff, ) ) vs. ) CLASS ACTION COMPLAINT ) ) MECHEL OAO, IGOR V. ZYUZIN, ) STANISLAV A. PLOSCHENKO and ) JURY TRIAL DEMANDED VLADIMIR A. POLIN, ) ) Defendants. ) ) Plaintiff, Dean Frederick (“Plaintiff”), alleges the following based upon the investigation by Plaintiff’s counsel, which included, among other things, a review of the defendants’ public documents, conference calls and announcements made by defendants, United States Securities and Exchange Commission (“SEC”) filings, wire and press releases published by and regarding Mechel OAO (“Mechel” or the “Company”), securities analysts’ reports and advisories about the Company, and information readily available on the Internet, and Plaintiff believes that substantial additional evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. NATURE OF THE ACTION AND OVERVIEW 1. This is a federal class action on behalf of purchasers of Mechel’s securities between October 3, 2007 and July 25, 2008, inclusive (the “Class Period”), seeking to pursue remedies under the Securities Exchange Act of 1934 (the “Exchange Act”). 1 2. Mechel is a vertically integrated mining and metals company. The Company consists of several business segments, including coal and steel production. Mechel’s mining business consists of coal, iron ore and nickel mines in Russia. The Company’s steel business includes the production and sale of semi-finished steel products, carbon and specialty long products, carbon and stainless flat products and downstream metal products. 3. On July 24, 2008, Russian Prime Minister Vladimir Putin called for antitrust authorities to investigate Mechel’s raw material pricing policy, and in particular its coking coal sales, as the Company had sold raw materials to customers in Russia at twice that it had sold raw materials to non-Russian customers. Prime Minister Putin also recommended that Mechel’s profit margins needed to be examined by the antitrust authorities, and “if need be,” by the special committee of the General Prosecutor. On this news, the Company’s shares fell $13.77 per share, or over 37.6 percent, to close on July 24, 2008 at $22.84 per share, on unusually heavy trading volume. 4. The following day, Mechel announced that it was “ready for cooperation with federal authorities.” Significantly, Mechel did not protest Prime Minister Putin’s allegations about the Company’s pricing policies when it announced its intention to cooperate in the investigation. Reuters also reported that Mechel’s pricing policy was subject to an ongoing investigation by Russian anti-monopoly authorities, and quoted Mechel as stating that it “would never again charge a different price for coking coal on the domestic market than it did abroad.” 5. Then on July 28, 2008, Prime Minister Putin also revealed that Mechel had also used offshore traders to minimize tax payments. According to the Prime Minister, Mechel sold coal to a Swiss trading unit at a quarter of domestic prices, contributing to a coal shortage and higher steel prices in Russia. The Associated Press quoted Prime Minister Putin as stating that “it’s a reduction of the tax base within the country, it’s tax evasion. It’s creating a shortage on the 2 domestic market and leads to an increase in the price of metallurgical products.” The head of the Federal Antimonopoly Service (“FAS”) also stated that “the Company must be punished,” as the FAS had opened a case following an investigation into whether Mechel had fixed coking coal prices, and “had enough evidence” to fine Mechel for its violations. On this news, the Company’s shares fell $6.70 per share, or over 25.5 percent, to close on July 28, 2008 at $19.50 per share, on unusually heavy trading volume. 6. On August 14, 2008, Mechel was found guilty by the FAS of breaking competition laws and faced a stiff fine from regulators as a result of its conduct. The FAS stated that Mechel discriminated against Russian consumers, “unreasonably refused contracts,’’ and maintained a monopoly in the coal market. According to a Bloomberg article reporting on this development, abusing a dominant position in the marketplace was punishable by a fine of up to 15 percent of the previous year’s sales in the market where the violation occurred. Additionally, according to Bloomberg, the FAS planned to order Mechel to switch to long-term contracts starting in 2009. Significantly, Bloomberg reported that the FAS started its investigation into Mechel after receiving complaints from numerous steelmakers about the Company. 7. On August 19, 2008, the Associated Press reported that the FAS had ordered Mechel to cut tariffs on its coking coal by 15 percent, to pay a fine of $32 million for price- fixing, and to cut prices on coking coal by 15 percent. 8. Finally, on September 1, 2008, Reuters reported that Mechel was ordered by regulators to cut prices and sign long-term supply deals for coking coal with its main local clients. As a result of Mechel’s conduct, the FAS required the Company to sign long-term deals with three major steel companies for 2009 – 2013, and to provide prices under those long term deals “at a discount to global coking coal prices.” Vedomosti, a business daily, reported that the prices Mechel would have to provide its goods at would be at a discount of 20-35 percent to 3 those offered under contracts by Mechel’s competitors, BHP Billiton and Rio Tinto. Mechel also agreed to slash domestic prices by 15 percent under contracts reached between September 2008 and December 31, 2008 as a further remedy. 9. The Complaint alleges that, throughout the Class Period, defendants failed to disclose material adverse facts about the Company’s financial well-being, business relationships, and prospects. Specifically, defendants failed to disclose or indicate the following: (1) that the Company had engaged in anticompetitive conduct by employing a discriminatory pricing policy for raw material sales between domestic and foreign steel firms; (2) that the Company had engaged in monopolistic conduct by fixing and maintaining coking coal prices at artificially high levels and unreasonably refusing contracts; (3) that as the Company’s anticompetitive and monopolistic practices were discovered, the Company would incur a significant level of fines, and would be forced to enter into long term coking coal supply contracts below market prices; (4) that a portion of the Company’s revenue was derived from anticompetitive and monopolistic conduct, and when such behavior was discovered, the Company’s revenue would significantly decline in future periods; (5) that the Company had used a sophisticated sales and distribution scheme involving wholly owned offshore trading companies to evade paying taxes on a portion of its revenue; (6) that the Company lacked adequate internal and financial controls; (7) that the Company’s financial statements were not prepared in accordance with United States Generally Accepted Accounting Principles (“U.S. GAAP”); and (8) that, as a result of the foregoing, the Company’s financial statements were materially false and misleading at all relevant times. 10. As a result of defendants’ wrongful acts and omissions, and the precipitous decline in the market value of the Company’s securities, Plaintiff and other Class Members have suffered significant losses and damages. JURISDICTION AND VENUE 4 11. The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) of the Exchange Act, (15 U.S.C. §§ 78j(b) and 78t(a)), and Rule 10b-5 promulgated thereunder (17 C.F.R. § 240.10b-5). 12. This Court has jurisdiction over the subject matter of this action pursuant to Section 27 of the Exchange Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331. 13. Venue is proper in this Judicial District pursuant to Section 27 of the Exchange Act, 15 U.S.C. § 78aa and 28 U.S.C. § 1391(b). Mechel’s securities actively trade on the New York Stock Exchange in this District, and the Company has appointed CT Corporation Systems, 111 Eighth Avenue, New York, NY as its “authorized agent upon which process may be served for any suit or proceeding arising out of or relating to our shares, as well as the ADSs and the GDSs or the deposit agreement related thereto.” 14. In connection with the acts, conduct and other wrongs alleged in this Complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including but not limited to, the United States mails, interstate telephone communications and the facilities of the national securities exchange. PARTIES 15. Plaintiff, Dean Frederick, as set forth in the accompanying certification, incorporated by reference herein, purchased Mechel’s securities at artificially inflated prices during the Class Period and has been damaged thereby. 16. Defendant Mechel is a Russian Federation company with its principal executive offices located at Krasnoarmeyskaya Street 1, Moscow 125993, Russian Federation. Defendant Mechel may be served c/o CT Corporation Systems, 111 Eighth Avenue, New York, NY. 17. Defendant Igor V. Zyuzin (“Zyuzin”) was, at all relevant times, the Company’s 5 Chief Executive Officer (“CEO”) and Chairman of the Board of Directors. Defendant Zyuzin may be served c/o CT Corporation Systems, 111 Eighth Avenue, New York, NY. 18. Defendant Stanislav A. Ploschenko (“Ploschenko”) was, at all relevant times, the Company’s Chief Financial Officer (“CFO”). Defendant Ploschenko may be served c/o CT Corporation Systems, 111 Eighth Avenue, New York, NY. 19. Defendant Vladimir A. Polin (“Polin”) was, at all relevant times, the CEO of Mechel Management Company OOO, a Mechel subsidiary, and a member of Mechel’s Board of Directors. Defendant Polin may be served c/o CT Corporation Systems, 111 Eighth Avenue, New York, NY.