Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 1 of 27 PageID: 1 THE ROSEN LAW FIRM, P.A. Laurence M. Rosen, Esq. One Gateway Center, Suite 2600 Newark, NJ 07102 Tel: (973) 313-1887 Fax: (973) 833-0399 Email: [email protected] Counsel for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARK SPANIER, Individually and on Case No: behalf of all others similarly situated, CLASS ACTION COMPLAINT FOR Plaintiff, VIOLATIONS OF THE FEDERAL SECURITIES LAWS v. JURY TRIAL DEMANDED BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, BMW (US) HOLDING CORP., OLIVER ZIPSE, HARALD KRÜGER, NORBERT REITHOFER, BERNHARD KUHNT, NICOLAS PETER, and LUDWIG WILLISCH, Defendants. Plaintiff Mark Spanier (“Plaintiff”), individually and on behalf of all other persons similarly situated, by Plaintiff’s undersigned attorneys, for Plaintiff’s complaint against Defendants (defined below), alleges the following based upon personal knowledge as to Plaintiff and Plaintiff’s own acts, and information and belief as to all other matters, based upon, inter alia, the investigation conducted by 1 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 2 of 27 PageID: 2 and through his attorneys, 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 Bayerische Motoren Werke Aktiengesellschaft (“BMW” or the “Company”), and information readily obtainable on the Internet. Plaintiff believes that substantial evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. NATURE OF THE ACTION 1. This is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded BMW securities from November 3, 2015 through September 24, 2020, inclusive (the “Class Period”). Plaintiff seeks to recover compensable damages caused by Defendants’ violations of the federal securities laws under the Securities Exchange Act of 1934 (the “Exchange Act”). JURISDICTION AND VENUE 2. 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 by the SEC (17 C.F.R. § 240.10b-5). 3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331, and Section 27 of the Exchange Act (15 U.S.C. §78aa). 2 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 3 of 27 PageID: 3 4. 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)) as the alleged misstatements entered and the subsequent damages took place in this judicial district, and the Company conducts substantial business in this district. 5. 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 6. Plaintiff, as set forth in the accompanying certification, incorporated by reference herein, purchased BMW securities during the Class Period and was economically damaged thereby. 7. Defendant BMW, together with its subsidiaries, purports to develop, manufacture, and sell automobiles and motorcycles, and spare parts and accessories worldwide. BMW is incorporated in Germany and with headquarters in Munich, Germany. The Company’s American Depositary Receipts (“ADRs”) trade over-the- counter on the OTC under the ticker symbols “BMWYY” and “BAMXF.” 8. BMW (US) Holding Corp. (“BMW US”), BMW’s wholly-owned U.S. subsidiary, is a corporation doing business in all 50 states and the District of 3 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 4 of 27 PageID: 4 Columbia and is organized under the laws of the State of New Jersey, with its principal place of business located in 300 Chestnut Ridge Rd, Woodcliff Lake, NJ 07677. 9. Defendant Oliver Zipse (“Zipse”) has served as the Company’s Chairman of the Board of Management and Chief Executive Officer (“CEO”) since August 16, 2019. 10. Defendant Harald Krüger (“Krüger”) served as the Company’s CEO from May 13, 2015 until August 16, 2019. 11. Defendant Norbert Reithofer (“Reithofer”) has served as the Company’s Chairman of the Supervisory Board at all relevant times. 12. Defendant Nicolas Peter (“Peter”) has served as the Company’s Chief Financial Officer (“CFO”) and Member of the Board of Management since January 1, 2017. 13. Defendant Bernhard Kuhnt (“Kuhnt”) has served as BMW US’s CEO since March 1, 2017. 14. Defendant Ludwig Willisch (“Willisch”) has served as BMW US’s CEO from 2012 to February 28, 2017. 15. Defendants Zipse, Krüger, Reithofer, Peter, Kuhnt, and Willisch are collectively referred to herein as the “Individual Defendants.” 16. Each of the Individual Defendants: 4 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 5 of 27 PageID: 5 (a) directly participated in the management of the Company; (b) was directly involved in the day-to-day operations of the Company at the highest levels; (c) was privy to confidential proprietary information concerning the Company and its business and operations; (d) was directly or indirectly involved in drafting, producing, reviewing and/or disseminating the false and misleading statements and information alleged herein; (e) was directly or indirectly involved in the oversight or implementation of the Company’s internal controls; (f) was aware of or recklessly disregarded the fact that the false and misleading statements were being issued concerning the Company; and/or (g) approved or ratified these statements in violation of the federal securities laws. 17. BMW is liable for the acts of the Individual Defendants and its employees under the doctrine of respondeat superior and common law principles of agency because all of the wrongful acts complained of herein were carried out within the scope of their employment. 5 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 6 of 27 PageID: 6 18. The scienter of the Individual Defendants and other employees and agents of the Company is similarly imputed to BMW under respondeat superior and agency principles. 19. Defendants BMW and the Individual Defendants are collectively referred to herein as “Defendants.” SUBSTANTIVE ALLEGATIONS Materially False and Misleading Statements 20. On or about November 3, 2015, the Company released its quarterly results for the third quarter ended September 30, 2015 (3Q15 Financials). The 3Q15 Financials stated that automobile sales in the US continued their upward trend from the first half of the year and increased by 5%. 21. On March 16, 2016, the Company issued a press release containing a weblink to its financial results and annual report for the fiscal year ended December 31, 2015 (the “2015 Financials”). The 2015 Financials was signed by Defendants Krüger and Reithofer. The 2015 Financials contained signed statements by Defendants Krüger and Reithofer attesting to the accuracy of financial reporting and a fair review of the development and performance of the business, as well as the attendant opportunities and risks. 22. The 2015 Financials stated that the Company sold 405,715 units of automobiles in the USA. 6 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 7 of 27 PageID: 7 23. On March 21, 2017, the Company issued a press release containing a web link to its financial results and annual report for the fiscal year ended December 31, 2016 (the “2016 Financials”). The 2016 Financials were signed by Defendants Krüger and Peter. The 2016 Financials contained signed statements by Defendants Krüger and Peter attesting to the accuracy of financial reporting and a fair review of the development and performance of the business, as well as the attendant opportunities and risks. 24. The 2016 Financials stated that the Company’s revenue generated from the USA was €12,912 million and sold 366,500 automobile units in 2016. 25. On April 3, 2017, the Company issued a press release reporting 31,015 vehicles sold in the U.S. in March 2017, an increase of 3.3% compared with U.S. sales in March 2016. 26. On May 2, 2017, the Company issued a press release reporting 22,624 vehicles sold in the U.S. in April 2017, a decrease of 9.3% compared with U.S. sales in April 2016. 27. On May 4, 2017, the Company issued a press release announcing its financial results for the period ending March 31, 2017. The Company reported sales volume in the United States of 82,169 units between January 1, 2017 and March 31, 2017. 28. On June 1, 2017, the Company issued a press release reporting 25,818 vehicles sold in the U.S. in May 2017, a decrease of 11% compared with U.S. sales 7 Case 2:20-cv-15081-CCC-MF Document 1 Filed 10/27/20 Page 8 of 27 PageID: 8 in May 2016. 29. On July 3, 2017, the Company issued a press release reporting 28,962 vehicles sold in the U.S. in June 2017, an increase of 0.4% compared with U.S. sales in June 2016. 30. On August 1, 2017, the Company issued a press release reporting 21,965 vehicles sold in the U.S. in July 2017, a decrease of 14.8% compared with U.S. sales in July 2016. 31. On August 3, 2017, the Company issued a press release announcing its financial results for the period ending June 30, 2017.