Case 1:16cw01445NRB Document 1 fled 02/24/16 Page 1 of 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x JACKSON COUNTY EMPLOYEES' : Civil Action No. RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, : CLASS ACTION Plaintiff, COMPLAINT FOR VIOLATIONS OF THE I FEDERAL SECURITIES LAWS vs. BHP BILLITON LIMITED, BHP BILLITON PLC, JAC NASSER, ANDREW MACKENZIE, PETER BEAVEN and GRAHAM KERR, Defendants, DEMAND FOR JURY TRIAL x Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 2 of 30 Plaintiff Jackson County Employees' Retirement System ("Plaintiff'), individually and on behalf of all others similarly situated, alleges the following based upon personal knowledge as to Plaintiff and Plaintiff sown acts, and upon information and belief as to all other matters based on the investigation conducted by and through Plaintiff's attorneys, which included, among other things, a review of Securities and Exchange Commission ("SEC") filings by BHP Billiton Limited ("BFIP Ltd.") and BHP Billiton Plc ("BHP Plc") (together, "BHP" or the "Company"), as well as media and analyst reports about the Company. Plaintiff believes that substantial evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. a ti *si aixi astw "I Plaintiff brings this securities class action on behalf of all purchasers of the American Depositary Receipts (the "ADR5") of BHP between September 25, 2014 and November 30, 2015, inclusive (the "Class Period"), seeking to pursue remedies against BHP and certain of its current and former executive officers and/or directors under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule lob-S promulgated thereunder. JURISDICTION AND VENUE 2, Jurisdiction is conferred by Section 27 of the Exchange Act, The claims asserted herein arise under Sections 10(b) and 20(a) of the Exchange Act and Rule lob-S. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1 J.3 I and 1337, and Section 27 of the Exchange Act. 3. Venue is proper in this District pursuant to Section 27 of the Exchange Act and 28 U.S.C. § 1391(b), as the ADRs trade on the New York Stock Exchange ("NYSE"), which is located in this District, Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 3 of 30 In connection with the acts alleged herein, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications and the facilities of the national securities markets. PARTIES 5. Plaintiff, as set forth in the accompanying Certification incorporated by reference herein, purchased ADRs during the Class Period and has been damaged thereby. 6. Defendant BFIP describes itself as a leading global resources company and is among the world's top producers of major commodities, including iron ore, metallurgical and energy coal, conventional and unconventional oil and gas, copper, aluminum, manganese, uranium, nickel and silver, The Company operates under a Dual Listed Company structure, with parent companies BLIP Ltd. and BHP Plc operated as a single economic entity by a unified board and management team. The economic and voting interests in BHP resulting from holding one BHP Ltd. share are equivalent to that resulting from holding one Bi-IP Plc share. Accordingly, holders of ADRs effectively have an interest in a single group that combines the assets, and is subject to the liabilities, of BLIP Ltd. and BHP Plc. Throughout the Class Period, the ADRs of BHP Ltd. and BHP Plc were listed on the NYSE under the ticker symbols "BFIP" and "BBL," respectively, with SEC filingsjointly issued on their behalf, Each ADR represented two ordinary shares of BHP Ltd. or BHP Plc, as the case may be. For the fiscal year ended June 30, 2015, BHP Ltd. and BHP Plc had outstanding 3,211,691,105 and 2,112,071,796 fully paid ordinary shares, respectively. Defendant Jac Nasser ("Nasser") has served as a director of BLIP Ltd. and BHP Plc since June 2006 and as Chairman of their Board of Directors (the "Board") since March 31, 2010. 8. Defendant Andrew Mackenzie ("Mackenzie") has served as Chief Executive Officer ("CEO") and as a member of the Group Management Committee of BHP Ltd. and BHP Plc since -2- Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 4 of 30 May 10, 2013, and as a member of the Board since May2013 Hejoined the Company in November 2008 as Chief Executive Non-Ferrous. 9. Defendant Peter Beaven ("Beaven") has served as Chief Financial Officer ("CFO") and as a member of the Group Management Committee of BHP Ltd. and BHP Pie since October 2014. Previously, he was President of Copper, a position he held since May 2013. Before that, he served in various executive roles at the Company, including as President of Base Metals, President of Manganese, and Vice President and Chief Development Officer for Carbon Steel Materials, 10. Defendant Graham Kerr ("Kerr") was CFO and a member of the Group Management Committee of BHP Ltd. and BHP Plc from November 201I until October L, 2014. He joined the Company in 1994 and, except for a two-year hiatus, served in various executive roles, including as President of Diamonds and Specialty Products, He serves as CEO and a director of South32 Limited ("South32"), a mining company spun out of BHP in May 2015. Ii, Defendants Nasser, Mackenzie, Beaven and Kerr are referred to as the "Individual Defendants" and, together with the Company, as "Defendants." 12. Additionally, Samarco's executive officers are, and at all relevant times were, elected by Samarco's board, CLASS ACTION ALLEGATIONS 13, Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a class consisting of all purchasers of the ADRs of BFIP during the Class Period (the "Class"). Excluded from the Class are Defendants and their families, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a controlling interest, -3- Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 5 of 30 14. The members of the Class are so numerous thatjoinder is impracticable. Throughout the Class Period, the Company's ADRs were actively traded on the NYSE. While the exact number of Class members is unknown to Plaintiff at this time and is only ascertainable through discovery, Plaintiff believes that there are hundreds, if not thousands, of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by BFIP and/or its transfer agent, and may be notified of the pendency of this action by mail or other means, using a form of notice similar to that customarily used in securities class actions. 15. Plaintiff's claims are typical of the claims of the members of the Class because all Class members are similarly affected by Defendants' wrongful conduct in violation of federal law, as alleged herein, 16. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class and securities litigation. 17. Common questions of law and fact exist as to all Class members and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are: (a) whether the Exchange Act was violated by Defendants as alleged herein; (b) whether statements made by Defendants misrepresented and/or omitted material facts about the business and operations of BHP; and (c) whether and to what extent the members of the Class have sustained damages, as well as the proper measure of damages. 18. A class action is superior to all other available methods for the fair and efficient adjudication ofthis controversy becausejoinder of all members is impracticable and separate actions could result in inconsistent judgments. Furthermore, because the damages suffered by individual -4- Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 6 of 30 Clas 111Ln1her iiav he relat]\ elc 'null, the e\pense and burden 0h iiIc]\ 'dual litinat1011 'nalce it impossible or nipracircnnic icr ae nlrers ci the ('Incs to tncivi(Iucill FCLli'Ls Lie ilIied, There will be III) ditlkil iii 1iiiliigin ci I I I this ituLcil is cIas auNOIL BALK4ROUND 19. BHP i among the world's top producer' if major commodities, including iron ore. In fact, during Lie (I Period, the Coiiipuiv chaj ,rterized I i flfl OIL i., •.t "key pillar of 1)1 [P7 also calli i a major ccntrlhLitortobotTl pmdueiicii arid carrilil IN rellecft,l iii theOelcL'ei 2". 2014 • lirle i'',)!I ,i ko'' 1i it BI-P Bil[a'ii 20. Saniiiiec' \iiiiei ç[ic \ Lahl1arcc) is a ccinpaiir haerl in Brazil that ciis and operates iron oreminc. liiii ore prOLe:'iIi iacilitics, and aportiocated iii ili': HIrNillill "titL oil \Iiaas Gerais LulL 1 siiNI' *II1IO "ainarcc 1:s i'.'intli ownedby BHP and miniarl Li Ii1fldU": \ ale ale j, each rll''\lliell hoidsa H)r IIlyLCi ill Sairiarco. 21, Cur , 11 its ownersfnp structure, 'oiii,•,rc'ri i opented by an eight-member board of directors c'pr i\ed H tburrepresentativesofeacTi 1BHP idVale, reci1ical1y, dutfuic the ( lass -5- Case 1:16cvM1445NRB Document 1 fled 02/24/16 Page 7 of 30 Period, the Samarco board consisted of four BHP executives (one of whom was a member of BHP's Group Management Committee), and four Vale executives.