Gopher Asset Management & Noah Holdings Limited - To provide comprehensive compliance legal services for Gopher Asset Management, the top private equity funds management, under Noah Holdings Limited which is listed in the US to deal with the regulatory supervision by the China Securities Regulatory Commission after the promulgation and implementation of the Regulations on Strengthening the Supervision of Private Investment Funds (“Document No. 71”). Gary and his team perused Document 71 and learn the various operation modes of the funds under Gopher’s management. Based on the understanding of Document 71 and clients’ business, Gary communicated with the officers of CSRC to explore the benchmarks of mode of supervision for private equities, e.g. how to evaluate if a fund has performed its due diligence, which level a fund manager shall look into, i.e. whether shall go to the bottom assets. Gary and his team creatively set up some measures of evaluation. The roadmap was highly appreciated by all parties after communication with the officers and Gopher as well as Kirkland, Deloitte. The report has was completed by the end of Jan. 2022. CSRC and other supervision authorities recognized the report and underneath methodology. This case is the first regulatory supervision case after the promulgation and implementation of Document No. 71, which is specific benchmarking and pioneering in the industry. Just because it’s the first case, not only Noah and Gopher do not know how to deal with the regulatory supervision, but also for the China Securities Regulatory Commission (“CSRC”) does not know where to start and how to carry out the supervision. In addition, asset management companies usually manage a large number of private equity funds, and the levels of the funds are layer by layer.
Airbus S.A.S. - The client is one of the largest aircraft manufacturing company worldwide. Gary was engaged as a PRC counsel to assist the client to handle a multi-jurisdictional anti-corruption investigation from the French Parquet National Financier (“PNF”), the U.S. Department of Justice (“DOJ”) and the UK Serious Fraud Office (“SFO”). This case is also the biggest case PNF has worked on in history and the highest fine amount in cross-border anti-corruption sanctions.
Gary’s service targets the PNF, DOJ and SFO’s investigation into possible misconduct by intermediaries and senior government officials in the sale and purchase of aircraft in China. Gary utilised his extensive experience in government enforcement compliance matters, performed multi-level and multi-faceted legal defence techniques (attorney-client privilege, etc.), and delicately grasped the deep understandings on domestic political sensitivities and of international compliance policies. Gary helped the client to successfully design a solution that met the investigation requirements of the overseas regulators without triggering governmental investigations in China. In this case, Gary also demonstrated his oriental wisdom to closely team up with international well-known offshore law firms and professional lawyers, and to bridge up the civil law and common law mindsets.
Luckin Coffee Inc. - The client is the biggest chain coffee brand in China. Gary assisted the client’s Special Committee of the Board of Directors to operate a thorough internal investigation against a few senior executives and provided profound evidence in support of the response to the inquiries from the U.S. SEC. Gary’s team was intensively engaged to conduct state secret review and provide legal service to the client from PRC law perspective. When the investigation started, it was in the middle of the U.S.-China Trade War and prior to the China Securities Regulatory Commission (“CSRC”) rendered any clear guidance to the client. Gary worked closely with the client’s international counsels from foreign law firms, participated in the high-level decision-making meetings with the client’s senior executives, brought clear and practical legal proposals to the client at several critical company survival occasions. Gary’s bold and feasible action plans helped the client to stand up to the pressure under parallel regulatory investigations from both mainland China and the U.S. The client also survived from the delisting crisis.
CBRE Global Investors (Asia Pacific) Ltd - The Chinese shareholder and its appointed management passed an invalid board resolution to provide loan out of JV’s funds to its affiliate, at the same time, obtained control over the JV’s bank account where the RMB 200 million funds sit. The legal representative of the JV, appointed by the foreign shareholder, found out this and instructed us to engage with the bank and issue formal letter to it to freeze the account, which has timely prevented the PRC party from withdrawing money. Later on, we initiated legal proceedings to recover control of the bank account and obtained a freezing order over the bank account, buying name for DLA Piper to solve certain issues offshore. The PRC party fight back, claiming that the legal rep has infringed the JV’s interests by freezing the bank account and causing losses of interests, and asking the legal rep to compensate millions of RMB to the JV. This is not a straightforward case - the first instance court had to held three hearings before rendering a judgment. However, both the first instance court and appeal court ruled in favor of us, deciding that the legal rep had no intention to cause losses to the JV, and that the legal rep’ actions taken under exceptional circumstances are neither illegal nor unethical. The dispute between the two parties is still ongoing.
This case concerns control of a joint venture, reminding us again of the importance of a properly designed corporate governance structure. Procedurally, there was difficulty with using whose name and what cause action to bring an action. For our side, the specific governance structure of this JV restricted us from obtaining authorization from the foreign shareholder to bring an action, and we were limited with using the legal rep’s name to bring an action. The PRC party has its own problem because they cannot instruct the legal rep to file a lawsuit, which is commonly seen in PRC proceedings, they had to instruct a corporate body named supervisor to file the lawsuit, which has faced doubts from the judge of appeal court. Substantively, as is usual with this kind of case, the facts were complicated, and the parties brought various actions against each other, which required us to present facts in a focused manner and deal with different actions at the same time. In addition, we had to come up with and deploy strategy given the specific situation of JV, especially the governance structure of the JV, including not to bring an action to invalidate board resolutions which the PRC Party has made such effects to pass. The judge in charge of this case wrote an article about the significance and underneath legal theory. The Supreme Court gave an award to the judge which evidence the recognition of the case.
A Top-tier Chinese Trust Management Company - deal with the cross-border business disputes arising from foreign investment on behalf of the client. The subject matter of dispute reaching tens of billions yuan. In the case, Mr. Gary GAO cooperated with overseas law firms and filed four legal processes on behalf of clients in PRC, Hong Kong, ICC and Cayman Islands simultaneously. As the leading lawyers in the PRC legal process, Mr. Gary GAO’s team finally won the victory in PRC legal process for the client.
