Tyson filing challenges shareholder
Tyson Foods Inc. on Monday challenged a shareholder’s bid to lead a class action in Brooklyn federal court that alleges the meatpacker misrepresented its efforts to protect workers against covid-19.
Tyson and three executives represented by Mary Eaton of Freshfields Bruckhaus Deringer said in a letter that the losses claimed by private investment fund H Fried Canada Inc. seem to be tied to put options sold before the class period, making the shareholder ineligible to lead, or even be part of, the case.
The original complaint, brought by Mingxue Guo in February, alleged that Tyson made certain false or misleading statements about its response to the pandemic, resulting in compensable damages among shareholders between March and December of 2020.
When share prices rise after a company makes a certain claim, someone buys the stock at an elevated level and those prices later fall because the claim was false or misleading, “you’ve arguably got a securities fraud case,” said Robert Steinbuch, a professor at UALR’s Bowen School of Law.
Guo’s counsel filed a motion earlier this month to appoint H Fried Canada as the lead plaintiff, usually the person with the largest financial interest in the litigation. Tyson this week countered that both groups were ineligible to be the lead plaintiff of the case.
The company claimed that Guo suffered no compensable losses, cannot state a claim for relief and lacks standing to sue, while H Fried Canada sold options before the class period.
“Neither the original named plaintiff nor the proposed lead plaintiff has standing to assert claims against [Tyson] under the Securities Exchange Act, neither is suitable to serve as a representative of the putative class, and no other stockholder has stepped forward,” Tyson said in a letter to the court.
What makes Tyson’s claim unique is that the shares were purchased in an unusual way, Steinbuch said. Instead of buying the stock outright, H Fried Canada agreed to have a stock put to them at an agreed upon price, he said.
Tyson argued that put sellers are not appropriate lead plaintiffs for a number of reasons, including that their market incentives differ from other class members who trade shares on the open market.
Steinbuch said the letter was the company’s effort to dismiss the class action, “alleging that the plaintiff didn’t buy stock during the relevant time period that claims fraud.”
The New York Comptroller urged the U.S. Securities and Exchange Commission last winter to open an investigation into Tyson regarding its failure to carry out certain coronavirus protection policies. The lawsuit claims that on this news, the price of Tyson shares fell $1.78 per share, or 2.5%, to close at $68.25 per share on December 15. The plaintiff blamed Tyson’s wrongful acts and omissions for the losses and damages incurred by shareholders.