In re Turquoise Hill Res. Sec. Litig.

• Decision Date: 16 September 2021
• Docket Number: 1:20-cv-08585-LJL
• Parties: IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES LITIGATION
• Court: U.S. District Court — Southern District of New York

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IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES LITIGATION

No. 1:20-cv-08585-LJL

United States District Court, S.D. New York

September 16, 2021

Salvatore J. Graziano BERNSTEIN LITOWITZ BERGER &amp GROSSMANN LLPSalvatore GrazianoMark Lebovitch Michael BlatchleyJai Chandrasekhar Lead Counsel for Lead Plaintiff the Pentwater Funds and the Class

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

LEWIS J. LIMAN, United States District Judge.

The United States District Court for the Southern District of New York(“Southern District”) presents its compliments to the appropriate judicial authority of the United Kingdom for assistance in obtaining evidence to be used at trial in the above-captioned civil proceeding before this Court.This request is made pursuant to Chapter I of the Hague Convention of 18 March 1970 on the Taking of Evidence in Civil or Commercial Matters (“Hague Convention”).The Southern District is a court of law and equity and has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331and15 U.S.C §§ 15(a)and26.

The Southern District has determined that it would further the interests of justice and that justice cannot be completely done between the parties without documents in the possession of Mr. Richard Bowley and the testimony, under oath, of Mr Bowley, who resides within your jurisdiction.This is an action alleging violation of United States securities laws.Mr. Bowley is a former employee of Rio Tinto and is a significant witness concerning Plaintiffs' allegations that Defendants violated securities laws by failing to timely disclose alleged schedule delays and cost overruns at the Oyu Tolgoi mine.The evidence sought by Applicants is necessary for the just and proper disposal of the proceedings and is for use in the trial of this action.

Mr. Bowley's testimony is not available from any source within the jurisdiction of the Southern District, and cannot be obtained by any means other than pursuant to an order of an appropriate judicial authority of the United Kingdom, compelling the witness to appear for examination.Mr. Bowley, a non-party to this action, resides at 1 Hazeldown Close, River, Dover, Kent, CT17 0NJ.

This request is made with the understanding that, and on the basis that, any order made pursuant to this request: (1) will not require Mr. Bowley to commit any offense; (2) will not require Mr. Bowley to undergo a broader form of inquiry than he would have if the litigation were conducted in the United Kingdom; and (3) will not violate the laws of civil procedure of any United Kingdom court.

The Southern District, therefore, and in conformity with Article 3 of the Hague Convention, respectfully requests that you, in furtherance of justice by proper and usual process of your court, cause Mr. Bowley to produce the documents listed in Exhibit 1 and to appear before an official examiner authorized to administer oaths, and to take testimony, at a precise time to be fixed between counsel for the Applicants and the witness or (if applicable) the appointed Examiner under 34.15, and answer on his oath or affirmation questions and cross-questions, and that you will direct his deposition to be transcribed and recorded by video, and the transcript and video be sent to counsel for the parties in the action, who so request a copy.The Southern District stands ready to provide similar judicial assistance to judicial authorities in the United Kingdom when required.

This Court has reviewed each of the document requests and deposition topics attached to this letter of request in light of the allegations of the Second Amended Complaint, dated September 16, 2021(“Complaint”), Plaintiffs' claims that this Court sustained in its decision on Defendants' motions to dismiss the Complaint, and Defendants' Answer to the Complaint.This Court has determined that each of the document requests and deposition topics seeks evidence that is relevant to Plaintiffs' claims and Defendants' defenses for use at the trial of this action.

In particular, the document requests are relevant to the following Complaintparagraphs: No. 1: ¶ 116;No. 2: ¶¶ 144, 199;No. 3: ¶ 119;No. 4: ¶¶ 118, 127, 268;No. 5: ¶ 141;No. 6: ¶¶ 179-83;No. 7: ¶¶ 209-14;No. 8: ¶¶ 221;No. 9: ¶¶ 222-29;No. 10: ¶¶ 14-17, 20, 23, 111-22, 127, 141-52, 166-68, 171, 179-81, 205-20;No. 11: ¶¶ 24, 262;No. 12: ¶ 284;andNo. 13: ¶¶ 14, 20-21, 111-22, 126-27, 141-52, 165-71, 179-83, 205-29.

The deposition topics are relevant to the following Complaintparagraphs: No. 1: ¶¶ 14-17, 20, 23, 111-22, 127, 141-52, 166-68, 171, 179-81, 205-20;No. 2: ¶¶ 111-22, 221-29;No. 3:

¶¶ 111-22, 141-52;No. 4: ¶¶ 165-83;No. 5: ¶¶ 111-22, 141-52, 205-29;No. 6: ¶¶ 111-22, 141-52, 205-29;No. 7: ¶¶ 221-29;No. 8: ¶¶ 111-22, 141-52;No. 9: ¶¶ 15, 141, 272;andNo. 10: ¶ 286.

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THEREFORE MAKES THE FOLLOWING REQUEST:

1.Sender

The Honorable Lewis J. Liman

United States District Judge

United States District Court for the Southern District of New York

Daniel Patrick Moynihan United States Courthouse

500 Pearl St.

Courtroom 15C

New York, NY 10007-1312

United States of America

2.Central Authority of the Requested State

The Senior Master of the King's Bench Division

The High Court of England and Wales

For the attention of the Foreign Process Section

Room E16

Royal Courts of Justice

Strand

LONDON WC2A 2LL

United Kingdom 3.Person to whom the executed request is to be returned

The Honorable Lewis J. Liman

United States District Judge

United States District Court for the Southern District of New York

Daniel Patrick Moynihan United States Courthouse

500 Pearl St.

Courtroom 15C

New York, NY 10007-1312

United States of America and

Michael Blatchley

Bernstein Litowitz Berger & Grossmann LLP

1251 Avenue of the Americas, 44th Floor

New York, NY 10020

United States of America

4.Specification of the date by which the requesting authority requires receipt of the response to the Request for International Judicial Assistance (“Request for Assistance”)

The requesting authority would greatly appreciate a response to the Request for Assistance within 21 days or as soon thereafter as is practicable.

5.

a. Requesting Judicial Authority

United States District Court for the Southern District of New York

Daniel Patrick Moynihan United States Courthouse

500 Pearl St.

Courtroom 15C

New York, NY 10007-1312

United States of America

b. To the competent authority of

United Kingdom

c. Name of the case and any identifying number

In re Turquoise Hill Resources Ltd. Securities Litigation, Case No. 1:20-cv-08585-LJL(S.D.N.Y.)6.Names and addresses of the parties and their representatives

a. Plaintiffs

The Pentwater Funds, individually and on behalf of all others similar situated.

b. Names and addresses of Plaintiffs' representatives

Michael D. Blatchley

Salvatore J. Graziano

Bernstein Litowitz Berger & Grossmann LLP

1251 Avenue of the Americas, 44th Floor

New York, New York 10020

Counsel for Lead Plaintiff The Pentwater Funds

c. Defendants

Rio Tinto PLC, Rio Tinto Limited, Jean-Sébastien Jacques, and Arnaud Soirat

d. Names and addresses of Defendants' representatives

Corey Worcester

Renita Sharma

Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22^nd Floor,

New York, New York 10010

Counsel for DefendantsRio Tinto PLC, Rio Tinto Limited, Jean-Sébastien Jacques, and Arnaud Soirat

7.

a. Nature and purpose of the proceedings:

The Plaintiffs in this case allege that DefendantsRio Tinto PLC, Rio Tinto Limited, Jean-Sébastien Jacques, and Arnaud Soirat(“Defendants”) violated United States Securities laws by failing to timely disclose schedule delays and budget overruns that occurred at the Oyu Tolgoi mine (“Oyu Tolgoi”).Plaintiffs and the other members of the proposed Class are investors in Turquoise Hill Resources Ltd.(“Turquoise Hill”), which was a publicly-traded issuer whose sole business and asset was its ownership interest in the Oyu Tolgoi mine.During the Class Period (July 17, 2018, through July 31, 2019), Turquoise Hill owned 66% of the Oyu Tolgoi mine, which was almost exclusively operated by Rio Tinto.(The Mongolian Government owned 34% of the mine.)As described below, Plaintiffs allege that they and the other Class members were harmed when the truth concerning the schedule delays and budget overruns at Oyu Tolgoi caused massive declines in the price of Turquoise Hill securities.A copy of the Complaint is attached as Exhibit 3 hereto.The nature of the action is summarized at Complaint¶¶ 1-27.Plaintiffs seek damages and other relief for injury caused by Defendants' alleged wrongdoing.Id.§ XIV.

b. Summary of complaint^[1]

Plaintiffs allege that Defendants made a series of misrepresentations to conceal massive cost overruns and delays concerning the most critical aspect of the development of the Oyu Tolgoi underground mine in Mongolia.Complaint¶ 3.The Oyu Tolgoi mine, which is jointly owned by DefendantRio Tinto and the Government of Mongolia, and operated almost exclusively by Rio Tinto, is expected to be one of the largest copper mines in the world.Id.

Throughout the Class Period, the senior executives of Rio Tinto assured investors that progress on that development was at the time “on plan and on budget” and that the deadline for achieving sustainable first production-when the mine would begin generating cash flows- remained intact.Id.¶ 4.Plaintiffs allege that in reality, from before the start of the Class Period and at the time of Defendants' statements, the underground expansion project was many months...