Vladimir Maliarov, Et Al. V. Eros International PLC, Et Al. 15-CV
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Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 1 of 68 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VLADIMIR MALIAROV, Individually and Case No. On Behalf of All Others Similarly Situated, Plaintiff, CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE FEDERAL v. SECURITIES LAWS EROS INTERNATIONAL PLC, JYOTI JURY TRIAL DEMANDED DESHPANDE, ANDREW HEFFERNAN, PREM PARAMESWARAN, KISHORE LULLA, VIJAY AHUJA, NARESH CHANDRA, DILIP THAKKAR, SUNIL LULLA, MICHAEL KIRKWOOD, KEN NAZ, DEUTSCHE BANK SECURITIES INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, UBS SECURITIES LLC, JEFFERIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, and EM SECURITIES LLC, Defendants. CLASS ACTION COMPLAINT Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 2 of 68 Plaintiff Vladimir Maliarov (“Plaintiff”), by and through his attorneys, alleges the following upon information and belief, except as to those allegations concerning Plaintiff, which are alleged upon personal knowledge. Plaintiff’s information and belief is based upon, among other things, his counsel’s investigation, which includes without limitation: (a) review and analysis of regulatory filings made by Eros International Plc (“Eros” or the “Company”), with the United States Securities and Exchange Commission (“SEC”); (b) review and analysis of press releases and media reports issued by and disseminated by Eros; and (c) review of other publicly available information concerning Eros. NATURE OF THE ACTION AND OVERVIEW 1. This is a class action on behalf of persons or entities who purchased or otherwise acquired Eros securities: (1) pursuant and/or traceable to the Company’s Registration Statement and Prospectus (collectively, the “Registration Statement”) issued in connection with the Company’s initial public offering on the New York Stock Exchange on or about November 12, 2013 (the “IPO” or the “Offering”); and/or (2) between November 12, 2013 and November 12, 2015, inclusive (the “Class Period”). Plaintiff seeks to pursue remedies under the Securities Act of 1933 (the “Securities Act”) and under the Securities Exchange Act of 1934 (the “Exchange Act”). 2. Eros is in the Indian film entertainment industry. The Company co-produces, acquires and distributes Indian language films in multiple formats worldwide. 3. The Company has created an online video streaming service, whereby users pay a fee to stream content through various web-connected devices, and touted the new streaming service as having huge growth potential. CLASS ACTION COMPLAINT 1 Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 3 of 68 4. In order to grow the streaming business, the Company needed to acquire popular titles to incentive viewers to pay fees to Eros. 5. On November 12, 2013, Eros priced its IPO of 5,000,000 shares of common stock, at a price of $11.00 per share, exclusive of the underwriters’ exercise of their over- allotment option to purchase 750,000 additional shares. 6. On October 30, 2014, research firm Alpha Exposure published a report on Eros alleging that (1) due to aggressive accounting practices, Eros's reported earnings are significantly overstating the economic reality of its business model, (2) the Company’s subsidiary financials reveal a lack of free cash flow and raise many questions about the company’s accounting, (3) the Company enriched its controlling family at the expense of shareholders through a series of related-party transactions, and (4) the Company appears to have made meaningful misstatements to investors. 7. On this news, Eros shares fell $1.69, or 13%, to close at $11.17 on October 30, 2015, on unusually heavy volume. 8. On November 10, 2015, research firm Alpha Exposure published another report on Eros alleging that (1) the Company engaged in pervasive accounting deception related to the company’s revenue figures, (2) Eros overstated the number of movies it has distributed by 124% and 200% during fiscal years 2014 and 2015, respectively, and (3) Eros overstated its theatrical revenue by 82% and 104% during fiscal years 2014 and 2015, respectively. 9. On this news, Eros shares fell $3.78, or 31%, over two trading days to close at $8.25 on November 11, 2015, on unusually heavy volume. 10. On November 13, 2015, research firm Alpha Exposure published an additional report on the Company that disclosed that Eros avoided releasing a movie list, and ultimately CLASS ACTION COMPLAINT 2 Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 4 of 68 provided a movie list with fewer films than previously publicly disclosed. In addition, the report disclosed that the Company had overstated theatrical revenues for the 2015 and 2014 fiscal years. 11. On this news shares of Eros fell $1.82 per share, or over 20%, to close on November 13, 2015 at $7.08 per share. 12. Throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company’s business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (1) that the Company enriched its controlling family at the expense of shareholders through a series of related-party transactions; (2) that the Company lacked adequate internal controls; (3) that Eros overstated the number of movies it has distributed during fiscal years 2014 and 2015; (4) that Eros overstated its theatrical revenue during fiscal years 2014 and 2015; (5) that, as a result, the Company’s financial results and operating metrics were overstated; (6) that, as such, the Company’s financial statements were not prepared in accordance with Generally Accepted Accounting Principles (“GAAP”); and (7) that, as a result of the foregoing, the Company’s financial statements and Defendants’ statements about Eros’s business, operations, and prospects, were materially false and/or misleading at all relevant times. 13. 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 14. The claims asserted herein arise under and pursuant to Sections 11 and 15 of the Securities Act (15 U.S.C. §§ 77k and 77o), and Sections 10(b) and 20(a) of the Exchange Act CLASS ACTION COMPLAINT 3 Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 5 of 68 (15 U.S.C. §§ 78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by the SEC (17 C.F.R. § 240.10b-5). 15. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331, Section 22 of the Securities Act (15 U.S.C. § 77v), and Section 27 of the Exchange Act (15 U.S.C. §78aa). 16. Venue is proper in this Judicial District pursuant to 28 U.S.C. §1391(b) and Section 27 of the Exchange Act (15 U.S.C. §78aa(c)). A significant portion of Defendants’ actions, and the subsequent damages, took place in this Judicial District. 17. In connection with the acts, transactions, and conduct alleged herein, Defendants directly and indirectly used the means and instrumentalities of interstate commerce, including the United States mail, interstate telephone communications, and the facilities of a national securities exchange. PARTIES 18. Plaintiff, as set forth in the accompanying certification, incorporated by reference herein, purchased Eros shares during the Class Period, and suffered damages as a result of the federal securities law violations and false and/or misleading statements and/or material omissions alleged herein. 19. Defendant Eros is an Isle of Man corporation with its principal executive offices located at 50 County Avenue, Secaucus, New Jersey 07094. 20. Defendant Jyoti Deshpande (“Deshpande”) was, at all relevant times, Group Chief Executive Officer (“CEO”) and Managing Director of Eros. Deshpande also signed the Company’s Registration Statement as CEO. CLASS ACTION COMPLAINT 4 Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 6 of 68 21. Defendant Andrew Heffernan (“Heffernan”) was, at all relevant times, Chief Financial Officer (“CFO”) of Eros until May 28, 2015. Heffernan also signed the Company’s Registration Statement as CFO. 22. Defendant Prem Parameswaran (“Parameswaran”) was, at all relevant times, Group CFO and President of North America of Eros beginning May 28, 2015. 23. Defendant Kishore Lulla (“K. Lulla”) was a director and Chairman of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 24. Defendant Vijay Ahuja (“Ahuja”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 25. Defendant Naresh Chandra (“Chandra”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 26. Defendant Dilip Thakkar (“Thakkar”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 27. Defendant Sunil Lulla (“S. Lulla”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 28. Defendant Michael Kirkwood (“Kirkwood”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 29. Defendant Ken Naz (“Naz”) was a director of Eros and signed or authorized the signing of the Company’s Registration Statement filed with the SEC. 30. Defendants Deshpande, Heffernan, and Parameswaran are collectively referred to hereinafter as the “Individual Defendants.” The Individual Defendants, because of their positions with the Company, possessed the power and authority to control the contents of Eros’s reports to the SEC, press releases and presentations to securities analysts, money and portfolio CLASS ACTION COMPLAINT 5 Case 1:15-cv-08956-AJN Document 1 Filed 11/13/15 Page 7 of 68 managers and institutional investors, i.e.