JS 44C/SDNYREV. 5/2010                              JUDGE FORREST                                        civil c      °fRl...
(PLACE AN x IN ONE BOX ONLY)                                                  ORIGINI I 1 Original          IjlJ 2a. Remov...
JUDGE*OKKEST                      IN THE UNITED STATES DISTRICT COURT                   FOR THE SOUTHERN DISTRICT OF NEW Y...
restraining order against Defendants. In addition, on December 20, 2011, CleanTech filed anotice of motion for admission o...
that the same alleged conduct failed to "afford CleanTech the due process to which it is entitledunder the U.S. Constituti...
Removal on CleanTech, and will file a copy with the Clerk of the Supreme Court of the State ofNew York, as required by 28 ...
CERTIFICATE OF SERVICE       I hereby certify that on December 20, 2011, the foregoing Notice of Removal was servedby comm...
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKCLEANTECH INNOVATIONS, INC.,                                      ...
Dated: December 20, 2011                                     FENSTERSTOCK & PARTNERS LLP                                  ...
ATTACHMENT AList of Defendants:Nasdaq Stock Market, LLCMerit E. JanowStephen D. BarrettDaniel C. BigelowMichael J. CurranJ...
Stephen D. BarrettH.C. Wainwright & Co., Inc.52 Vanderbilt AvenueNew York, NY 10017Daniel C. BigelowMonadnock Capital Mana...
SUPREME COURT OF THE STATE OF NEW YORK    COUNTY OF NEW YORK                                                         x    ...
from the NASDAQ Stock Exchange, pending CleanTechs appeal of NASDAQs final delistingdecision to the Securities Exchange Co...
8.       Defendant NASDAQ Stock Market LLC is a Delaware Limited Liability Company withits principal place of business at ...
belief, his address is at Monadnock Capital Management, LP, 1900 Market Street, Philadelphia,    Pennsylvania 19103-3527. ...
17.     Defendant A. Douglas Melamed is a member of the NASDAQ Stock Market LLC Boardof Directors. He is the Senior Vice P...
21.     Venue is proper in this county pursuant to CPLR § 503(a) because one or more of theDefendants, including NASDAQ an...
CleanTech made further disclosures in its Form 8-K, filed with the SEC onDecember 16, 2010. Fensterstock Aff. Ex. 6. 26.  ...
and the Rules promulgated thereunder by the SEC, and due process under the Constitutions ofthe United States and State of ...
China-based companies. In so doing, theNASDAQ applied blatant discriminatory practices and    procedures to single out Chi...
37.     Despite the fact that the Consultant was not accused, at any time, of any wrongdoing    related to CleanTech, the ...
support their delisting case. Then, they delisted CleanTech basedon fabricated and unsupportedreasons. Fensterstock Aff. E...
The Council Sides With CleanTech and Then Reverses Course46.         CleanTech appealed to the NASDAQ Listing and Hearing ...
"The Council should understand that the benefits to [CleanTech] were        considerable, as the financing allowed [CleanT...
noted throughout the Appeal Brief, during the application process CleanTech had        provided the Staff with the . . . e...
Council, the Staff had no alternative but to contact the Council after the record was closed.CleanTech was permitted to re...
guidance of experienced, bilingual local Chinese professionals that understand       Chinese business practices, customs a...
became clear from those discussions that CleanTech would not be able to get a           bridge financing from any of these...
67.     At all times, CleanTech was transparent with the Staff- this was evident in CleanTechs    rush to disclose the Dec...
Morrison LLP explained in its July 1, 2011 letter, it attempted merely to protect CleanTechs    attorney-client privilege ...
responsive in providing the emails given the legal research required before            releasing attorney-client privilege...
press release on December 15, 2011, announcing the filing of NASDAQs Form 25 DelistingNotice to go into effect 10 days lat...
85.     If CleanTech is delisted, it faces the distinct possibility of becoming insolvent. This    result would be manifes...
New Jersey Atlantic City Project which involved the construction of six wind towers for a totalcontract order of $8,400,00...
reputation; and (4) the delisting decision impaired CleanTechs ability to obtain financing, whichhas caused irreparable ha...
102.      Maintaining CleanTechs listing on the NASDAQ pending the SECs determination of    CleanTechs appeal would proper...
THIRD CAUSE OF ACTION (Against All Defendants)       VIOLATION OF SECTION 19(g) OF THE SECURITIES EXCHANGE ACT109.    Clea...
116.    NASDAQ Rules maintain a procedural and due process dead zone in which an issuers appeal to the SEC may still be pe...
II   123.   By NASDAQs own admission, "Nasdaqs rules do not provide a procedure by which theI   Board of Directors may cal...
NASDAQ Listing and Hearing Review Councils decision to affirm the Hearing Panelsdetermination to delist CleanTech;D.     A...
For any other and further relief that the Court may deem just and proper.Dated: December 19, 2011                         ...
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Cleantech Innovations (CTEK) files Injunctive Relief Against NASDAQ

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Having exhausted all available administrative remedies, CleanTech seeks a temporary
stay, preliminary injunction, and permanent injunction preventing NASDAQ from delisting it from the NASDAQ Stock Exchange, pending CleanTech's appeal of NASDAQ's final delisting
decision to the Securities Exchange Commission ("SEC").

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Cleantech Innovations (CTEK) files Injunctive Relief Against NASDAQ

  1. 1. JS 44C/SDNYREV. 5/2010 JUDGE FORREST civil c °fRlEECIV 9358 The JS-44 civil cover sheet and the information containecmBrein neither replace nor suppf ed^rerein nor supplBrrrent tttefittng and service of <%». pleadings or other papers as required by law, except as provided by local rules of court. Tbjs^forrji^appcbvad, b^the 0 Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of initiating the civil docket sheet. <fc // ?rv *nPLAINTIFFS DEFENDANTS Mills US OiSiiCleanTech Innovations, Inc. Please see attached list.ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)Fensterstock & Partners LLP, 100 Broadway, New York, NY Gibson, Dunn & Crutcher LLP, 1050 Connecticut Avenue, NW,10005,(212)785-4100 Washington, DC 20036 (202) 955-8500CAUSE OF ACTION (cite the us. civil statute under which you are filing and write a brief statement of cause) (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY) In this removed action, the plaintiff asserts claims under 15 U.S.C. § 78s(g) and U.S. Const, amend. V.Hasthisor a similar case been previously filed inSDNY at anytime? No? 7 Yes? f_] Judge Previously AssignedIf yes, was this case VolD Invol. LJ Dismissed. NoLJ Yes U If yes, give date. & Case No.(PLACE AN [x] IN ONE BOX ONLY) NATURE OF SUIT ACTIONS UNDER STATUTES TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES PERSONAL INJURY PERSONAL INJURY 1 J610 AGRICULTURE [ ]422 APPEAL [ ]400 STATECONTRACT [ ]620 OTHER FOOD & 28 USC 158 REAPPORTIONMENT [ ]310 AIRPLANE [ ]362 PERSONAL INJURY - DRUG [ ] 423 WITHDRAWAL [1410 ANTITRUST[ ] 110 INSURANCE [ ]315 AIRPLANE PRODUCT MED MALPRACTICE 11625 DRUG RELATED 28 USC 157 [ 1430 BANKS & BANKING[ ] 120 MARINE LIABILITY [ I 365 PERSONAL INJURY SEIZURE OF [ J 450 COMMERCE[ ]130 MILLER ACT [ ]320 ASSAULT, LIBEL & PRODUCT LIABILITY PROPERTY [ J 460 DEPORTATION[ ] 140 NEGOTIABLE SLANDER []368 ASBESTOS PERSONAL 21 USC 881 PROPERTY RIGHTS [ 1470 RACKETEER INFLU INSTRUMENT [ ]330 FEDERAL INJURY PRODUCT [ ]630 LIQUOR LAWS ENCED & CORRUPT[ J150 RECOVERY OF EMPLOYERS LIABILITY ( ]640 RR & TRUCK [ ] 820 COPYRIGHTS ORGANIZATION ACT OVERPAYMENT & LIABILITY [ ]650 AIRLINE REGS [ ] 830 PATENT (RICO) ENFORCEMENT OF [ ]340 MARINE PERSONAL PROPERTY [ ]660 OCCUPATIONAL [ ] 840 TRADEMARK [1480 CONSUMER CREDIT JUDGMENT [ ]345 MARINE PRODUCT SAFETY/HEALTH []490 CABLE/SATELLITE TV[ ] 151 MEDICARE ACT LIABILITY r 1370 OTHER FRAUD [ ]690 OTHER [ 1810 SELECTIVE SERVICE[ ]152 RECOVERY OF [ ]350 MOTOR VEHICLE r 1371 TRUTH IN LENDING SOCIAL SECURITY XI 850 SECURITIES/ DEFAULTED [ ]355 MOTOR VEHICLE [ ]380 OTHER PERSONAL COMMODITIES/ STUDENT LOANS PRODUCT LIABILITY PROPERTY DAMAGE LABOR [ ] 861 HIA (1395ff) EXCHANGE (EXCL VETERANS) [ ]360 OTHER PERSONAL M385 PROPERTY DAMAGE [ ] 862 BLACK LUNG (923) [ I 875 CUSTOMER[ ] 153 RECOVERY OF INJURY PRODUCT LIABILITY [ 1710 FAIR LABOR [ ] 863 DIWC/DIWW (405(g)) CHALLENGE OVERPAYMENT OF STANDARDS ACT [ J864 SSID TITLE XVI 12 USC 3410 VETERANS BENEFITS [ I 720 LABOR/MGMT [ ] 865 RSI (405(g)) [ J890 OTHER STATUTORY[ ] 160 STOCKHOLDERS SUITS RELATIONS ACTIONS[ ] 190 OTHER CONTRACT [ I 730 LABOR/MGMT [ 1891 AGRICULTURAL ACTS[ ] 195 CONTRACT PRODUCT REPORTING & FEDERAL TAX SUITS [ ]892 ECONOMIC LIABILITY DISCLOSURE ACT STABILIZATION ACT[ 1196 FRANCHISE [ I 740 RAILWAY LABOR ACT [ ) 870 TAXES (U.S. Plaintiff or [ ]893 ENVIRONMENTAL ACTIONS UNDER STATUTES [ I 790 OTHER LABOR Defendant) MATTERS LITIGATION [ ] 871 IRS-THIRD PARTY [I 894 ENERGY CIVIL RIGHTS PRISONER PETITIONS [ 1791 EMPL RET INC 26 USC 7609 ALLOCATION ACTREAL PROPERTY SECURITY ACT [ J895 FREEDOM OF [ ]441 VOTING [1510 MOTIONS TO INFORMATION ACT[ ]210 LANDCONDEMNATION [ ]442 EMPLOYMENT VACATE SENTENCE IMMIGRATION [ )900 APPEAL OF FEE[ ] 220 FORECLOSURE [ ]443 HOUSING/ 20 USC 2255 DETERMINATION[ ] 230 RENT LEASE & ACCOMMODATIONS [ J 530 HABEAS CORPUS [ 1462 NATURALIZATION UNDER EQUAL ACCESS EJECTMENT [ ]444 WELFARE [ ]535 DEATH PENALTY APPLICATION TO JUSTICE[ ] 240 TORTS TO LAND [ ]445 AMERICANS WITH r 1540 MANDAMUS & OTHER [ I 463 HABEAS CORPUS- [ J950 CONSTITUTIONALITY[ ] 245 TORT PRODUCT DISABILITIES - T 1550 CIVIL RIGHTS ALIEN DETAINEE OF STATE STATUTES LIABILITY EMPLOYMENT [1555 PRISON CONDITION [ I 465 OTHER IMMIGRATION[ ] 290 ALL OTHER [ ]446 AMERICANS WITH REAL PROPERTY DISABILITIES -OTHER [ ] 440 OTHER CIVIL RIGHTS Check if demanded in complaint: n CHECK IF THIS IS A CLASS ACTION DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.? UNDER F.R.C.P. 23 IF SO, STATE:DEMAND $_ OTHER JUDGE DOCKET NUMBERCheck YES only if demanded in complaintJURY DEMAND: • YES 0 NO NOTE: Please submit at the time of filing an explanation of why cases are deemed related.
  2. 2. (PLACE AN x IN ONE BOX ONLY) ORIGINI I 1 Original IjlJ 2a. Removed from I I3 Remanded from I I 4 Reinstated or I | 5 Transferred from | | 6 Multidistrict I I 7 Appealto District Proceeding State Court Appellate Court Reopened (Specify District) Litigation Judge from Magistrate Judge Li 2b.Removed from Judgment State Court AND at least one party is pro se.(PLACE AN x IN ONE BOX ONLY) BASIS OF JURISDICTION IF DIVERSITY, INDICATE• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT 0 3 FEDERAL QUESTION Q4 DIVERSITY CITIZENSHIP BELOW. (U.S. NOT A PARTY) (28 USC 1322, 1441) CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY) (Place an [X] in one box for Plaintiff and one box for Defendant) PTF DEF PTF DEF PTF DEFCITIZEN OF THIS STATE [11 [ 11 CITIZEN OR SUBJECT OF A [ 13 [ 13 INCORPORATED and PRINCIPAL PLACE []5 []5 FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATECITIZEN OF ANOTHER STATE []2 [)2 INCORPORATED or PRINCIPAL PLACE []4 []4 FOREIGN NATION [16 [ ]6 OF BUSINESS IN THIS STATEPLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)DEFENDANT(S) ADDRESS UNKNOWN REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THERESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS 7 MANHATTAN (DO NOT check either box if this a PRISONER PETITION.)DATE12/20/2011 SIGNATURE OF ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT [ ] NO 14 1985RECEIPT* Q*4»t ,Cox fc] YES (DATE ADMITTED Mo. Attorney Bar Code # 1962 Yr. )Magistrate Judge is to be designated by the Clerk of the Cou rt. 1%. JUDGE DOISGERMagistrate Judge is so Designated.Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATEDUNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
  3. 3. JUDGE*OKKEST IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORKCLEANTECH INNOVATIONS, INC., Plaintiff,NASDAQ STOCK MARKET, LLC; 11 cw 9S58MERIT E. JANOW; STEPHEN D. BARRETT;DANIEL C. BIGELOW; MICHAEL J. :--oCURRAN; JOHN A. FRY; WILLIAM oLYONS; JOHN D. MARKESE; DOUGLASMELAMED; ERIC W. NOLL; WENDYWHITE; and NASDAQ OMX GROUP, INC., i 3 Defendants. NOTICE OF REMOVAL Defendants NASDAQ Stock Market, LLC, Merit E. Janow, Stephen D. Barrett, Daniel C.Bigelow, Michael J. Curran, John A. Fry, William Lyons, John D. Markese, Douglas Melamed,Eric W. Noll, Wendy White, and NASDAQ OMX Group, Inc. respectfully notice this Court that: 1. A civil action was commenced on December 20, 2011 in the Supreme Court ofthe State of New York, bearing index number 653524-11, captioned CleanTech Innovations, Inc.v. NASDAQStock Market, LLC (the "state-court action"). 2. Defendants were served with the Complaint on December 20, 2011. A copy ofthe Complaint is attached as Exhibit A. This Notice of Removal is filed within 30 days ofDefendants receipt of the initial pleading. Removal is therefore timely under 28 U.S.C.§ 1446(b). 3. On December 20, 2011, Plaintiff CleanTech Innovations, Inc. ("CleanTech") fileda proposed order to show cause in the state-court action, along with a memorandum of law andsupporting affidavits by Blair C. Fensterstock and Arnold Staloff, seeking a temporary
  4. 4. restraining order against Defendants. In addition, on December 20, 2011, CleanTech filed anotice of motion for admission of Arlen Specter pro hac vice, along with a proposed order andsupporting affidavits by Arlen Specter and Blair C. Fensterstock. The same day, the SupremeCourt of the State of New York granted the order to show cause and also granted the motion foradmission pro hac vice. A copy of these filings is attached as Exhibit B. No other pleadings ororders have been entered with regard to any of the papers served or filed in the state-court action. 4. This action is removable to this Court under 28 U.S.C. § 1441(a) in that it is acivil action over which this Court has original and exclusive federal question jurisdiction underthe provisions of 28 U.S.C. § 1331 and 15 U.S.C. § 78aa because the action arises out of andseeks to enforce a duty or liability created by the Securities Exchange Act of 1934 ("ExchangeAct"), 15 U.S.C. § 78 et seq. NASDAQ Stock Market, LLC is a self-regulatory organizationregistered with the Securities and Exchange Commission as a national securities exchangepursuant to the Exchange Act, as amended. 15 U.S.C. § 78f et seq. The Complaint challenges adecision by NASDAQ to delist CleanTechs stock from its exchange; NASDAQ and the otherdefendants—the members of its Board of Directors and its parent company—were involved inthe delisting proceedings only because of NASDAQs functions as a self-regulatoryorganization. The propriety of Defendants conduct identified in the Complaint must bedetermined exclusively by federal law. See 15 U.S.C. § 78aa. 5. The Complaint expressly "arisfes] under the Constitution, laws, or treaties of theUnited States." 28 U.S.C. § 1331. CleanTech asserts, as its third cause of action, that NASDAQhas "arbitrarily and capriciously attempted] to delist CleanTech from its stock exchange," inpurported "violation] [of] Section 19(g) of the [Exchange] Act and the Rules promulgatedthereunder by the SEC." Compl. ^f 110. Similarly, CleanTechs fourth cause of action asserts
  5. 5. that the same alleged conduct failed to "afford CleanTech the due process to which it is entitledunder the U.S. Constitution when faced with a regulatory action." Id. If 115. Because federallaw supplies the causes of action, if any, invoked by CleanTech in these claims, its suit arisesunder federal law. See, e.g., Am. Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260(1916) ("A suit arises under the law that creates the cause of action."), quoted with approval inFranchise Tax Bd. v. Constr. Laborers Vacation Trustfor S. Cal, 463 U.S. 1, 8-9 (1983). 6. In addition, removal is proper because CleanTechs suit falls within the exclusivejurisdiction of the federal courts. Under 15 U.S.C. § 78aa, "[t]he district courts of the UnitedStates ... shall have exclusive jurisdiction of violations of [the Exchange Act] or the rules andregulations thereunder, and of all suits in equity and actions at law brought to enforce anyliability or duty created by [the Exchange Act] or the rules and regulations thereunder."CleanTechs complaint alleges both that Defendants "violated Section 19(g) of the [Exchange]Act, Compl. ^[110, and that they "violated the mandated procedures under NASDAQ and SECrules," id. 78. These allegations can be addressed only in federal court. See, e.g., SpartaSurgical Corp. v. NASD, 159 F.3d 1209, 1212 (9th Cir. 1998) ("federal courts are vested by 15U.S.C. § 78aa with the exclusive jurisdiction over actions brought to enforce any liability orduty created by exchange rules"); Christian, Klein, & Cogburn v. NASD, 970 F. Supp. 276, 278(S.D.N.Y. 1997) (Sotomayor, J.) (upholding removal of complaint against a self-regulatoryorganization that "directly invoke[d] violations of federal securities laws as a basis" for therequested relief). 7. A copy of the Notice of Filing of Notice of Removal is attached as Exhibit C.Promptly after filing this Notice of Removal, FINRA will serve the Notice of Filing of Notice of
  6. 6. Removal on CleanTech, and will file a copy with the Clerk of the Supreme Court of the State ofNew York, as required by 28 U.S.C. § 1446(d). 8. WHEREFORE, FINRA removes the state-court action from the Supreme Court ofthe State of New York to the United States District Court for the Southern District of New York.Dated: December 20, 2011 Respectfully submitted, Douglas^.. Cox (DC-1962) ouelas^R. (DC-196: Counsel ofRecord F. Joseph Warin Scott P. Martin GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 955-8500 Fax: (202) 467-0539 Counselfor Defendants
  7. 7. CERTIFICATE OF SERVICE I hereby certify that on December 20, 2011, the foregoing Notice of Removal was servedby commercial carrier for next-day delivery upon the following: Blair C. Fensterstock, Esq. FENSTERSTOCK & PARTNERS LLP 100 Broadway New York, N.Y. 10005 Counselfor Plaintiff otTP. Martin Sco GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 955-8500 Facsimile: (202) 530-4238
  8. 8. SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKCLEANTECH INNOVATIONS, INC., Index No. ^ 5 2^ | Plaintiff, Date ofFiling: J^/Zfc/^l Plaintiff has designated New York County as theNASDAQ STOCK MARKET, LLC; MERIT E. JANOW; place of trial pursuant toSTEPHEN D. BARRETT; DANIEL C. BIGELOW; CPLR § 503(1), based uponMICHAEL J. CURRAN; JOHN A. FRY; the residence of someWILLIAM LYONS; JOHN D. MARKESE; Defendants.DOUGLAS MELAMED; ERIC W. NOLL;WENDY WHITE; and NASDAQ OMX GROUP, INC., Defendants. SUMMONSTo the above named Defendants: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve acopy of your answer, or if the Complaint is not served with this summons, to serve a notice ofappearance, on the Plaintiffs attorneys within twenty (20) days after the service of thissummons, exclusive of the day of service (or within thirty (30) days after the service is completeif this summons is not personally delivered to your within the State of New York); and in case ofyour failure to appear or answer, judgment will be taken against you by default for the reliefdemanded in the Complaint.
  9. 9. Dated: December 20, 2011 FENSTERSTOCK & PARTNERS LLP AlAJb (jtJjM&i Blair C. Fensterstock Thomas A. Brown II Eugene D. Kublanovsky Michael T. Phillips II Kristen M. Madison 100 Broadway New York, New York 10005 (212) 785-4100 Counselfor PlaintiffCleanTech Innovations, Inc. Hon. Arlen Specter Attorney-at-Law 1525 Locust Street, Nineteenth Floor Philadelphia, PA 19102 (215 735-4200 Counselfor PlaintiffCleanTech Innovations, Inc.TO: Office of General Counsel The NASDAQ Stock Market, LLC 805 King Farm Blvd. Rockville, MD 20850 Eric Noll The NASDAQ Stock Market, LLC 805 King Farm Blvd. Rockville, MD 20850 Edward S. Knight, Esq. NASDAQ OMX One Liberty Plaza New York. NY 10006
  10. 10. ATTACHMENT AList of Defendants:Nasdaq Stock Market, LLCMerit E. JanowStephen D. BarrettDaniel C. BigelowMichael J. CurranJohn D. MarkeseDouglas MelandEric W. NollWendy WhiteNasdaq OMX Group, Inc.
  11. 11. Stephen D. BarrettH.C. Wainwright & Co., Inc.52 Vanderbilt AvenueNew York, NY 10017Daniel C. BigelowMonadnock Capital Management, LP1900 Market StreetPhiladelphia, PA 19103-3527Michael J. CurranCenterline Group625 Madison AvenueNew York, NY 10022John D. MarkeseOne Liberty PlazaNew York, NY 10006Wendy White, Esq.University of Pennsylvania133 South 36th Street, Suite 300Philadelphia, PA 19104Merit E. JanowWeatherhead East Asian InstituteColumbia University420 West 118th Street, MC 3323New York, NY 10027A. Douglas Melamed, Esq.Intel Corporation2200 Mission College Blvd.Santa Clara, CA 95054-1549John A. FryDrexel University3141 Chestnut StreetPhiladelphia, PA 19104William M. LyonsMorningstar, Inc.22 West Washington StreetChicago, IL 60602
  12. 12. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CLEANTECH INNOVATIONS, INC., Index No. (jffi 5 2M v/1 Plaintiff COMPLAINT v. NASDAQ STOCK MARKET, LLC; MERIT E. JANOW; STEPHEN D. BARRETT; DANIEL C. BIGELOW; MICHAEL J. CURRAN; JOHN A. FRY; WILLIAM LYONS; JOHN D. MARKESE; DOUGLAS MELAMED; ERIC W. NOLL; WENDY WHITE; and NASDAQ OMX GROUP, INC., Defendants. Plaintiff CleanTech Innovations, Inc. ("CleanTech") brings this action for injunctive relief against Defendants NASDAQ Stock Market, LLC ("NASDAQ"); NASDAQs Board of Directors (individually, Merit E. Janow, Stephen D. Barrett, Daniel C. Bigelow, Michael J. Curran, John A. Fry, William Lyons, John D. Markese, A. Douglas Melamed, Eric W. Noll, and Wendy White; collectively, the "Directors"); and NASDAQs parent company the NASDAQ OMX Group ("OMX"). By and for its Complaint, CleanTech alleges as follows: INTRODUCTION 1. CleanTech is a U.S. publicly-traded company and market leader in Chinas clean energy industry. It is a leading designer and manufacturer of wind turbines and other wind energy technologies. Since December 15, 2010, CleanTech has been listed on the NASDAQ under the stock symbol CTEK. 2. Having exhausted all available administrative remedies, CleanTech seeks a temporary stay, preliminary injunction, and permanent injunction preventing NASDAQ from delisting itI
  13. 13. from the NASDAQ Stock Exchange, pending CleanTechs appeal of NASDAQs final delistingdecision to the Securities Exchange Commission ("SEC").3. NASDAQ arbitrarily and capriciously determined to delist CleanTech through a slapdashand sporadic process in contravention of NASDAQs Stock Market Equity Rules, the SecuritiesExchange Act of 1934 (the "Act") and the Rules promulgated thereunder by the SEC, and dueprocess under the Constitutions of the United States and State of New York.4. NASDAQ has created this emergency. On December 16, 2011, NASDAQ filed a Form25 Delisting Notice with the SEC, despite the fact that CleanTechs appeal to the SEC is stillpending. Without judicial intervention, NASDAQs delisting of CleanTech will be effective 10days after filing - on December 26, 2011.5. Delisting CleanTech prior to the SECs decision on the merits of CleanTechs appeal willcause the Company irreparable harm - making it difficult for the Company to operate or raiseneeded capital and pushing the company into insolvency.6. Maintaining the status quo, in which CleanTech is suspended from trading on theNASDAQ but is not delisted, would fairly balance the equities and present no harm to NASDAQor the public markets. By preserving the status quo, the SEC would have time to hear the meritsof CleanTechs appeal and CleanTech would be able to operate effectively in the clean energymarketplace. THE PARTIES7. Plaintiff CleanTech Innovations, Inc. is a U.S. publicly-traded company headquartered inChina. Its principal place of business is C District, Maoshan Industrial Park, Tiding EconomicDevelopment Zone, Tiding City, Liaoning Province, China 112616.
  14. 14. 8. Defendant NASDAQ Stock Market LLC is a Delaware Limited Liability Company withits principal place of business at One Liberty Plaza, 165 Broadway, New York, New York,10006. NASDAQ operates as a non-profit entity, with its profits and losses allocated toDefendant NASDAQ OMX Group, Inc.9. Defendant NASDAQ OMX Group, Inc. is a Delaware Corporation with its principalplace of business at One Liberty Plaza, 165 Broadway, New York, New York, 10006.10. Defendant Merit E. Janow is the Chairwoman of the NASDAQ Stock Market LLC Boardof Directors. She is a Professor in the Practice of International Economic Law and InternationalAffairs at the School of International and Public Affairs ("SIPA") of Columbia University.Professor Janow is the Director of the Program in International Finance and Economic Policy atSIPA and Co-Director of Columbias APEC Study Center. In addition, she serves on the facultyof the Weatherhead East Asian Institute and the Center on Japanese Economy and Business atColumbia Business School. Upon information and belief, her address is at the Weatherhead EastAsian Institute, 420 West 118th Street, MC 3323, New York, New York 10027.11. Defendant Stephen D. Barrett is a member of the NASDAQ Stock Market LLC Board ofDirectors. Mr. Barrett is the Chief Executive Officer of H.C. Wainwright & Co., Inc., aninvestment banking firm. He also serves as Managing Partner of Barrett Associates LLC.Previously, he served as Vice President of Merrill Lynch and Co. and as Vice Chairman ofNASDAQ OMX BX, Inc. Upon information and belief, his address is at H.C. Wainwright & Co.,Inc., 52 Vanderbilt Avenue, New York, New York 10017.12. Defendant Daniel C. Bigelow is a member of the NASDAQ Stock Market LLC Board ofDirectors. He is the President of Monadnock Capital Management LP. Upon information and
  15. 15. belief, his address is at Monadnock Capital Management, LP, 1900 Market Street, Philadelphia, Pennsylvania 19103-3527. 13. Defendant Michael J. Curran is a member of the NASDAQ Stock Market LLC Board of Directors. He is the Senior Managing Director and Interim Co-Head of the Affordable Housing Group at Centerline Capital Group, Inc. and serves as its Head of Asset Management. Upon information and belief, his address is at Centerline Capital Group, Inc., 625 Madison Avenue, New York, New York 10022. 14. Defendant John A. Fry is a member of the NASDAQ Stock Market LLC Board of Directors. Since 2010, he has served as the President of Drexel University. He is also a director of Community Health Systems, Delaware Investments, and NASDAQ-OMX. Upon information and belief, his address is at Drexel University, 3141 Chestnut Street, Philadelphia, Pennsylvania 19104. 15. Defendant William Lyons is a member of the NASDAQ Stock Market LLC Board of Directors. He is the Independent Director in the Technology, Information, and Delivery Services Sector at Morningstar, Inc. Upon information and belief, his address is at Morningstar, Inc., 22 West Washington Street, Chicago, Illinois 60602. 16. Defendant John D. Markese is a member of the NASDAQ Stock Market LLC Board of Directors. Since 1992, he has served as the President and Chief Executive Officer of the American Association of Individual Investors. He has been a Director of NASDAQ OMX PHLX, Inc. since July 1, 2011 and NASDAQ OMX Group, Inc. since May 1996. Upon information and belief, his address is at the NASDAQ headquarters, One Liberty Plaza, 165 Broadway, New York, New York 10006.II
  16. 16. 17. Defendant A. Douglas Melamed is a member of the NASDAQ Stock Market LLC Boardof Directors. He is the Senior Vice President and General Counsel at Intel Corporation. Uponinformation and belief, his address is at Intel Corporation, 2200 Mission College Blvd., SantaClara, California 95054-1549.18. Defendant Eric W. Noll is a member of the NASDAQ Stock Market LLC Board ofDirectors. He is the current Chief Executive Officer of the NASDAQ Stock Market LLC and theNASDAQ OMX BX, Inc. As Executive Vice President of Transaction Services of the UnitedStates and United Kingdom at NASDAQ OMX Group, Inc., he oversees the trading operationsof all United States Transaction Services business and is responsible for NASDAQ OMXEurope. Upon information and belief, his address is at the NASDAQ headquarters, One LibertyPlaza, 165 Broadway, New York, New York 10006.19. Defendant Wendy White is a member of the NASDAQ Stock Market LLC Board ofDirectors. She is the Senior Vice President and General Counsel of the University ofPennsylvania and Penn Medicine. Upon information and belief, her address is at the Universityof Pennsylvania and University of Pennsylvania Health System, 133 South 36th Street, Suite300, Philadelphia, Pennsylvania 19104. JURISDICTION AND VENUE20. This Court has personal jurisdiction over the Defendants under CPLR §§301 and 302because they do and transact business in New York, and because many of the materialprocedures, events, and occurrences giving rise to the claims alleged herein took place in NewYork.
  17. 17. 21. Venue is proper in this county pursuant to CPLR § 503(a) because one or more of theDefendants, including NASDAQ and OMX, had their headquarters in New York County, NewYork at all relevant times. NASDAQ ARBITRARILY AND CAPRICIOUSLY DETERMINES TO DELIST CLEANTECH22. Starting on December 15, 2010, CleanTech has been listed on the NASDAQ, having beenapproved by NASDAQ Listing Qualifications on December 10, 2010. Fensterstock Aff.1 Ex. 5.This listing was approved following a five-month review process which included extensivevetting of, and review of information about, CleanTechs relationship with a successful privateinvestor and corporate advisor (the "Consultant") referenced in an August 2010 article inBarrons, the business publication. Fensterstock Aff. Ex. 2.23. Shortly after approving CleanTechs listing on the NASDAQ, NASDAQ ListingQualifications Staff (the "Staff) began requesting additional information about CleanTechsrelationship with the Consultant. The Staff requested information regarding CleanTechsrelationship with the Consultant and any affiliated persons or entities, pursuant to NASDAQRules 5205(e) and 5250(a)(1), which empower the Staff to request such information and delistcompanies if they do not provide that information. Fensterstock Aff. Ex. 2.24. On December 13, 2010, CleanTech consummated a $20 million financing which wasurgently needed to permit CleanTech to meet mid-December bid deadlines for major wind towercontracts for 2011. This financing permitted CleanTech to win over $20 million in contractswith major energy producers. Fensterstock Aff. Exs. 2, 4, 6.25. CleanTech provided a plethora of information responsive to the Staffs requests,demonstrating that there was no improper relationship or conduct. Fensterstock Aff. Exs. 2, 4.1 "Fensterstock Aff." refers to the Affidavit of BlairC. Fensterstock in Support of Plaintiffs Orderto Show Causewith a Temporary Restraining Order and its attached Exhibits.
  18. 18. CleanTech made further disclosures in its Form 8-K, filed with the SEC onDecember 16, 2010. Fensterstock Aff. Ex. 6. 26. CleanTech filed an S-l Registration Statement on December 16, 2010 to register investorshares, which was subject to complete SEC scrutiny and review. The SEC cleared the S-lwithout any staff comments.27. Despite the fact that CleanTech provided the information and disclosed it in its December16, 2010 Form 8-K, the Staff argued that CleanTech withheld material information regarding afinancing plan involving the Consultant and his affiliate companies, which was consummated inDecember 2010 (the "December Financing"). Fensterstock Aff. Exs. 2, 7, 9.28. Contrary to the theories espoused by the NASDAQ Staff and ultimately ratified byDefendants determination to delist CleanTech, the December Financing was in no wayconnected to or conditioned upon CleanTechs being approved for listing on the NASDAQ, andCleanTech promptly, timely, and pursuant to all rules and procedures, disclosed the financing inits December 16, 2010 Form 8-Kand S-l aftersecuring it. Fensterstock Aff. Ex. 18.29. CleanTech further pointed out that it had timely, and pursuant to all proper procedures,informed the Staff of CleanTechs continuing relationship with the Consultant and his affiliatecompanies during the listing application process, and that the Staffhad issued no objection toCleanTechs ties. That process was thorough, complete, and informed the staff of theConsultants activities and relationship with CleanTech and included the production of hundredsof pages of e-mails, the forced production of attorney-client information, and extensiveinterviews. Fensterstock Aff. Exs. 2, 4, 17, 18.30. Finally, on January 13, 2011, the Staff notified CleanTech that it had determined to delistCleanTech from NASDAQ, in contravention of NASDAQs Stock Market Equity Rules, the Act
  19. 19. and the Rules promulgated thereunder by the SEC, and due process under the Constitutions ofthe United States and State of New York. Fensterstock Aff. Ex. 7.31. CleanTech requested a hearing on January 20, 2011, as a result of the Staffsdetermination. The NASDAQ Listing Qualification Hearing Panel (the "Hearing Panel") heardoral arguments with respect to the CleanTechs Delisting on February 24, 2011 in WashingtonD.C. (the "Hearing"). Fensterstock Aff. Ex. 8.Michael Emens Discriminatory Comments to the Hearing Panel32. Representing the Staff at the Hearing was Michael Emen, among others. Mr. Emen, inputting forth the Staffs position supporting the CleanTech Delisting, spoke at length regardingthe NASDAQs official —and blatantly discriminatory ~ policy against Chinese companies thatseek listing on the NASDAQ through a mechanism known as reverse mergers. Fensterstock Aff.Ex.8.33. Mr. Emen did not hide his contempt for such Chinese companies, or the people whopromote them. Indeed, Mr. Emen proudly admitted singling out such companies and their listingapplications for special consideration, stating that "[o]ver the past year, weve developedexpansive procedures to use in reviewing just this type of company that go well beyond what wedo with other applications." Fensterstock Aff. Ex. 8 at 59:15-18. Mr. Emens statements clearlyindicate that the Staff, rather than apply the same set of procedures for each company that seeksto be listed on the NASDAQ, instead used a different and racially profiling set of procedures fora separate class of companies that had one thing in common: their management is Chinese, eventhough they are American companies complying with American securities laws.34. The Staff, by its own admission, applied a double standard to companies that soughtlisting on the NASDAQ based on nothing more than whether the listing applications were from
  20. 20. China-based companies. In so doing, theNASDAQ applied blatant discriminatory practices and procedures to single out China-based companies for review and delisting. Fensterstock Aff. Ex. 8. 35. Mr. Emens bias against China-based companies and reverse mergers are evident in his statements at the Hearing, including the following examples: a. "The key regulatory challenge facing us today - NASDAQ - is how to effectively mitigate the regulatory and reputational risks associated with the listing of Chinese reverse merger companies..." Fensterstock Aff. Ex. 8 at 58:10-14. b. "Today, nearly 15 percent of our applications come from China, and the majority of our 180 Chinese listings are the result of reverse mergers." Fensterstock Aff. Ex. 8 at 58:15- 18. c. "Theres a cottage industry here and in Chinawhich is devoted to arranging these reverse merger transactions." Fensterstock Aff. Ex. 8 at 58:22-59:2. d. "Among the promoters the press is focused on are [the Consultant] and his close associate Ming Li, who, through control of firms here and in China, orchestrated the entire process through which CleanTech went public and became listed." Fensterstock Aff. Ex. 8 at 59:22-60:4. 36. What is more, Mr. Emens comments at the Hearing reveal that it was the involvement of the Consultant, rather than any issue regarding CleanTechs alleged untimely disclosure of information, which resulted in the Staffs request that it be delisted. In fact, when questioned about whether CleanTech could apply in the future for re-listing, Mr. Emen responded "[c]ertainly wed be looking, among other things, at the companys then relationship with [the Consultant] and his associates in making that decision." Fensterstock Aff. Ex. 8 at 73:8-11.I
  21. 21. 37. Despite the fact that the Consultant was not accused, at any time, of any wrongdoing related to CleanTech, the staff singled out CleanTechs mere association with the Consultant as a reason for delisting, and went so far as to suggest that any future consideration regarding re listing CleanTech on the NASDAQ was dependent on, as Mr. Emen stated, "the companys then relationship with [the Consultant]." Fensterstock Aff. Ex. 8 at 73:8-11. 38. Mr. Emens comments at the Hearing revealed the true motivation behind the Staffs reason to delist CleanTech: (1) the fact that it was a Chinese company, and (2) its association with the Consultant. Mr. Emen sought to paint CleanTech in a negative light based solely on its association with the Consultant and his reputation - not CleanTechs. As Mr. Emen stated at the Hearing, "[i]t doesnt matter whether [the Consultants] reputation is deserved or not. What matters is that he is notorious. We knew of his reputation. We were concerned about it. We were entitled to ask about it and weve asked about it through the very end of the approval process." Fensterstock Aff. Ex. 8 at 61:18-62:2. 39. Mr. Emens comments are particularly notable because CleanTechs association with the Consultant was not listed by the Staff as a basis for delisting, yet the Staff devoted tremendous time and effort to the Consultant at the Hearing and, indeed, throughout the initial listing process. 40. Notably, despite the Staffs stated "concerns" regarding the Consultant, prior to NASDAQs initial approval of CleanTechs listing on the NASDAQ, the Staff had met with, interviewed, and questioned the Consultant for almost five hours. All of his career, regulatory history, and the false and misleading articles and blogs about him were explained fully. The Staffknew full well of his role and relationship with CleanTech, and they nevertheless approved CleanTechs listing. Mr. Emen and the Staff only subsequently, at the Hearing, sought to leverage the selective negative press and innuendo they could find concerning the Consultant, to 10I
  22. 22. support their delisting case. Then, they delisted CleanTech basedon fabricated and unsupportedreasons. Fensterstock Aff. Exs. 2, 4, 17.41. It is apparent that the Staffs false allegation that CleanTech failed to timely disclosematerial information was merely an artifice created to single out a China-based company fordelisting based predominately on its association with an individual, who Mr. Emen insinuatedhad a "notorious reputation," but against whom no allegations of wrongdoing concerning anyaspect of the CleanTech listing was ever levied and who has never been accused of any criminalactivity. Fensterstock Aff. Ex. 8 at 61:20.42. Mr. Emens comments to the Hearing Panel were a ruse to shift the focus away from theStaffs weak case against CleanTech and its pre-judgment that it would delist CleanTech as aChina-based scapegoat.The Hearing Panel Determines to Delist CleanTech43. On February 28, 2011, based primarily upon irrational animus against China-basedcompanies and businesspeople, the Hearing Panel wrongfully determined to delist CleanTechfrom the NASDAQ, in contravention of NASDAQs Stock Market Equity Rules, the Act and theRules promulgated thereunder by the SEC, and due process under the Constitutions of the UnitedStates and State of New York. Fensterstock Aff. Ex. 9.44. On March 2, 2011, NASDAQ suspended CleanTech from trading on the NASDAQ.Fensterstock Aff. Ex. 24.45. Since being suspended from trading and threatened with delisting, CleanTechs stockprice has fallen from a high of $9.00 to $0.70 - a precipitous decline in market capitalizationequal to approximately $200 million. Fensterstock Aff. Ex. 22. 11
  23. 23. The Council Sides With CleanTech and Then Reverses Course46. CleanTech appealed to the NASDAQ Listing and Hearing Review Council (the"Council"), the body charged with reviewing Hearing Panel decisions, on February 28, 2011 —the very same day as the Hearing Panels determination that CleanTech should be delisted.Fensterstock Aff. Exs. 9, 10.47. The Council heard new evidence demonstrating that CleanTechs relationship with theConsultant and the December Financing - in which the Consultants companies played a part -were proper.48. On April 27, 2011, Apollo Asia Management L.P. ("Apollo"), an investment fund locatedat 9 West 57th Street, New York City, with $68 billion under management and a sophisticatedshareholder of CleanTech stock, submitted a letter to the NASDAQ Office of Appeals andReview. Apollo submitted this letter not "on behalf of [CleanTech] ... only to offer theperspective of a sophisticated shareholder on the circumstances that seem to have led to[CleanTechs]-Nasdaq delisting." Fensterstock Aff. Ex. 12, p. 1.49. In its letter, Apollo noted that it "[was] well aware of [CleanTechs] affiliation with the[Consultant] and companies with whom the [Consultant] is affiliated. We are aware of the 2010Barrons article casting aspersions on [the Consultant] and aware that he may have hadregulatoryproblems in the past. Although his problems occurred in the distant past, and could beconsidered by many as minor, we take them seriously. Nonetheless, we have at no time felt thatthe affiliation with [the Consultant] has been detrimental to [CleanTech]." Fensterstock Aff. Ex.12, p. 2.50. In its letter, Apollo also described the circumstances surrounding the DecemberFinancing being reviewed by NASDAQ. 12
  24. 24. "The Council should understand that the benefits to [CleanTech] were considerable, as the financing allowed [CleanTech] to secure business opportunities that would not have otherwise been available to it, and made [CleanTech] more creditworthy by expanding the size and stability of its capital base. It is also noteworthy that the financing appeared to us to have come together quickly, of necessity, due to contract bid deadlines [CleanTech] was facing. Apollo is extremely active in financing markets. Although Apollo was not involved in this [CleanTech] financing, we have had no reason to believe, either before or after the financing, that better terms were available than those obtained." FensterstockAff. Ex. 12,p. 2.51. In its letter, Apollo concluded: "In summary, we are of the opinion that, to our knowledge, [CleanTech] has not done anything that is materially harmful or dangerous to existing or future shareholders. Nasdaqs decision to delist, however, has negatively impacted the value of [CleanTech] stock, limited the ability of shareholders to exit their investments and jeopardizes [CleanTechs] future. We think it is ironic and most unfortunate that the very constituency Nasdaq aims to protect should be so negatively affected by its decision. We appreciate that every delisting has potential to harm existing shareholders, and that this criterion alone cannot therefore be the sole reason for overturning a delisting decision. But when viewed alongside questioned company actions that have not harmed shareholders, and that have in some cases helped shareholders, Nasdaqs decision to delist [CleanTech] seems unduly harsh." (Emphasis added.) Fensterstock Aff. Ex. 12, p. 3.52. On behalf of CleanTech, on May 5, 2011, Donohoe Advisory Associates LLC("Donohoe") submitted a letter to the NASDAQ Listing and Hearing Review Council, Office ofAppeals and Review. This letter responded to the inclusion of the Apollo letter into the recordbefore the Council. Fensterstock Aff. Ex. 13.53. In its letter, Donohoe wrote: "Finally, we think it is important to take note of Apollos view that [the Consultant] and [his affiliated company] greatly assisted CleanTech and that Apollo and other shareholders benefitted from that assistance. Moreover, we believe it is significant that Apollo expressed this positive view in spite of its awareness of the Barrons article, which was the basis for the Staffs initial focus on the Companys relationship with [the Consultant] ... As we indicated in our Appeal Brief, the Staff had to have reached a conclusion that there was no issue with the Companys affiliation with [the Consultant] or it would not have been able to issue the listing approval letter to CleanTech on December 10, 2010. As 13
  25. 25. noted throughout the Appeal Brief, during the application process CleanTech had provided the Staff with the . . . engagement letter and made numerous representations indicating the expectation that [the Consultants affiliate] would be participating in future financings as both investor and placement agent. In that regard, an . . .affiliate even invested in the Company during the middle of the application process. In possession of this knowledge, the Staff then issued an approval letter which did not include any restrictions on CleanTechs relationship or dealings with [the Consultant or his affiliate companies] . . . Again, as noted in the Appeal Brief, it was not until the Staff reviewed the December Financing and concluded that it was a "bad deal," that the Staff raised concerns about the Companys relationship with [the Consultant] ... As stated herein and throughout the Appeal Brief, we believe the record is abundantly clear that the Staffs subjective analysis of the December Financing was faulty and inherently flawed." (Emphasis added.) Fensterstock Aff. Ex. 13, p.2.54. On May 19, 2011, the Council issued a decision remanding the delisting dispute to theHearing Panel for further development of factual issues. This decision is attached asFensterstock Aff. Ex. 14.55. In its decision to remand to the Hearing Panel, the Council found that the factual recordbefore the Hearing Panel did not justify delisting and was deficient of evidence on two of theStaffs accusations against CleanTech. First, the Council found that the Hearing Panel was notpresented with sufficient evidence to conclude that CleanTech intentionally withheld informationabout the Consultant, his affiliates, and certain corporate financings. Second, the Council foundthe Hearing Panel was not presented with sufficient evidence to conclude that the Companyknew that listing approval from NASDAQ was imminent when it failed to disclose thatinformation. The Council directed the Staffand CleanTech to present more facts to the HearingPanel on these two issues. Fensterstock Aff. Ex. 14.56. On May 26, 2011, NASDAQ notified CleanTech that it had reopened the record beforethe Hearing Panel to permit the Staff to respond to an alleged ex parte communication.NASDAQ bizarrely alleged that the exparte communication was caused by CleanTech because,when it failed to provide the Staff with a courtesy copy of its April 5, 2011 submission to the 14
  26. 26. Council, the Staff had no alternative but to contact the Council after the record was closed.CleanTech was permitted to rebut the Staffs response. The Office of Appeals and Reviewissued a stay of its May 19 decision. Fensterstock Aff. Ex. 15.57. On June 30, 2011, the Consultant submitted a letter (the "June 30 letter") to theNASDAQ Listing and Hearing Review Council to assist the Council in its understanding of hisrole and relationship with CleanTech. Fensterstock Aff. Ex. 17.58. In his letter, the Consultant described his open and willing participation in all of theNASDAQ inquiries thus far. "We met with NASDAQ China Staff in relation to CleanTech onseveral occasions. On November 5, 2010, I voluntarily met with seven NASDAQ listinginvestigations and listing qualifications staff in their Rockville offices for almost five hours inwhich I answered every question posed to me. The questions addressed my relationship withCleanTech, the China space generally, issues with other China companies, my history in thesecurities industry and even the Barrons article, which I felt contained vague and irresponsibleinnuendo." Fensterstock Aff. Ex. 17, p. 1.59. The June 30 letter also described other meetings that he and his associates, including Mr.Ming Li, had with NASDAQ China Staff. Fensterstock Aff. Ex. 17.60. The June 30 letter clarified some of his business practices. "We believe that the NASDAQ Staffs criticism of us is based upon a mistaken belief that we are like certain intermediaries, promoters and finders engaged in short-term operations to earn a short-term fee. Our business is quite different. Anchored by ... a well-staffed Beijing-based private equity investor conducting painstaking and meticulous due diligence, [we work] for the long-term benefit of our clients and their shareholders. It is essential and common sense for non-US companies to obtain the type of services that we provide. It is not realistic to expect a foreign-based company coming to the US market for the first time to have pre-existing relationships with the legal, banking and accounting professionals needed to guide a public company or to have an understanding of US business practices and customs. Imagine the situation in reverse. How could a US company with no China experience be expected to enter China without the 15
  27. 27. guidance of experienced, bilingual local Chinese professionals that understand Chinese business practices, customs and laws?" Fensterstock Aff. Ex. 17, p.3.61. The June 30 letter continues: "The NASDAQ Staff has implied that the involvement of our firm with CleanTech may somehow constitute a public interest concern. Yet, our firm has no regulatory history, neither have we ever been labeled a public interest concern anywhere in the world, including in the US and in China. We have unfortunately been attacked by tabloid writers and short-sellers along with hosts of investment banks, consulting firms, corporate issuers, accounting firms and institutional investors associated with the China space. We are faulted along with certain other advisors in the China space for doing business with China in a highly charged anti-China atmosphere. In fact, the Staff has admitted that they are now scrutinizing all deals in the China space due to public attention and sentiment in this area." Fensterstock Aff. Ex. 17, p.4.62. The June 30 letter further disclosed: "I have never been sued by the SEC, had to pay afine to the SEC, been subject to disgorgement, or other penalty or sanction, nor have I ever beenconvicted of a crime." Fensterstock Aff. Ex. 17, p. 5.63. The June 30 letter also discussed CleanTechs previous financing, filings, and Form 8-Ks, demonstrating that CleanTechs financings and disclosures were entirely within industrystandards, and that the December Financing did not distinguish itself from any of the otherCleanTech financings that NASDAQ and the SEC approved previously. Fensterstock Aff. Ex.17.64. The June 30 letter also explained the circumstances surrounding the DecemberFinancing: "In late November 2010, Stifel advised CleanTechs corporate counsel that Stifel would not be able to complete the planned $50 million public offering in 2010 and advised the Company to postpone the offering until the first quarter of 2011. Given the December contract bid deadline, CleanTech, with the assistance of [our Chinese affiliate], contacted several Wall Street firms and Chinese banks, including Barclays Capital, Stifel, Cantor Fitzgerald, Canaccord/Genuity, William Blair, and Bank of Montreal Capital Markets, Bank of China, Shanghai Pudong Development Bank and Tiding Rural Credit Union seeking their input and/or possible participation in obtaining a $20 million bridge financing. It quickly 16
  28. 28. became clear from those discussions that CleanTech would not be able to get a bridge financing from any of these banks in a timely fashion. On November 28, 2010, CleanTech urgently requested that [we] arrange the $20 million financing under the scope of services outlined in the Engagement Letter. The financing negotiations were conducted rapidly between counsel, Orrick Herrington, and the Companys securities counsel, Mr. Robert Newman, from November 30 through the closing of December 13, 2010. Prior to this financing, [we and our] affiliates owned no voting securities in CleanTech. Following the financing that voting interest increased to approximately 2.5%. ... CleanTech is not like some other China-based companies experiencing accounting or fraud problems and appearing in the news and should not be punished as if it were one of those companies simply because it is based in China." Fensterstock Aff. Ex. 17, p. 8. 65. About the December Financing, the Consultant wrote: "Further, the financing was not in any way designed to coincide with the NASDAQ listing approval and was not in any way conditioned upon a NASDAQ listing. The financing would have gone through with or without the NASDAQ listing. Neither I nor anyone at [my company or our Chinese affiliate] had any role in deciding how or when to disclose the financing to NASDAQ or the SEC, just as we had no role in deciding how or when to disclose the October financing by Strong Growth [the China affiliate of the Consultants Company] into CleanTech." Fensterstock Aff. Ex. 17, p. 5. "[T]he financing developed rapidly in response to an urgent need. There was never any effort to conceal our involvement with CleanTech or any CleanTech financing from NASDAQ and [we] had no role in filing the Form 8-K announcing the transaction. At all relevant times leading up to the consummation of the December 13, 2010 financing, [we never] discussed with CleanTech whether or when the financing would be disclosed to the NASDAQ." Fensterstock Aff. Ex. 17, p. 8. 66. The difficulty in obtaining bridge financing in November and December 2010 was exceptionally difficult, a fact confirmed by Mr. Newman, CleanTechs securities counsel. "We viewed the [December Financing] opportunity on the terms CleanTech obtained as a major victory given the poor market conditions and inability of CleanTech to attain alternate financing in December of 2010." Fensterstock Aff. Ex. 18, p.3. 17I
  29. 29. 67. At all times, CleanTech was transparent with the Staff- this was evident in CleanTechs rush to disclose the December Financing, just days later in its December 16, 2010 Form 8-K financing. Fensterstock Aff. Exs. 6, 18. 68. Yet, in a stunning reversal, the Council rapidly issued another decision on July 22, 2011, short-circuiting the remand to the Hearing Panel and instead affirming the Hearing Panels February decision delisting CleanTech. The Counsel held that "[t]he Listing Counsel need not resolve this dispute. The evidence shows that [CleanTech] intentionally withheld documents from Staff concerning the December Financing despite repeated requests for information . . ." Fensterstock Aff. Ex. 20, enclosed within as Ex. A, p. 7. 69. The Council affirmed the Hearing Panel decision in contravention of NASDAQs Stock Market Equity Rules, the Act and the Rules promulgated thereunder by the SEC, and due process under the Constitutions of the United States and State of New York. Id. 70. Reversing its position, the Council suddenly found that CleanTech purposefully withheld information from the Staff and Hearing Panel concerning certain financing involving [the Consultant]. Id. 71. This determination was clear legal error and was arbitrary and capricious. 72. This determination was clear legal error because the documents that it newly identified as purposefully withheld were attorney-client privileged documents that, under the law and under the SECs own policies, are held sacrosanct and are protected from production. Fensterstock Aff. Ex. 18, p. 3. 73. NASDAQ arbitrarily and capriciously pushed for the production of attorney-client privileged documents. These privileged documents are the only documents that CleanTech was alleged to have "purposefully withheld." Instead, as the Wall Street law firm Newman & 18§
  30. 30. Morrison LLP explained in its July 1, 2011 letter, it attempted merely to protect CleanTechs attorney-client privilege while being completely responsive to the NASDAQ inquiries. A true and correct copy of this letter is attached as Fensterstock Aff. Ex. 18. 74. As Newman & Morrison wrote about the attorney-client privilege that NASDAQ Staff sought to destroy: "With respect to [whether CleanTech intentionally withheld information from NASDAQ Staff], there was no point in time during my firms representation of CleanTech that I, nor any member of our firm, intended to withhold information from the Staff regarding [the Consultant] and his affiliates and/or the [December Financing]. Moreover, to the best of my knowledge, none of CleanTechs officers, directors, or shareholders, [or the Consultant or his affiliates] intended to withhold information from the Staff . . . It is my understanding that after reviewing the approximately 190 emails generated in connection with the Financing during the period from November 30, 2010, the date of initiation of the financing effort, to December 13, 2010, the date of closing, the Staff has focused on one email from Jason Li to me, dated December 9, 2010, as an indication that CleanTech was fearful of disclosing the planned Financing to NASDAQ. As was evident in my response to Mr. Li, I interpreted this as a request to expedite the completion of the Financing and not worry if completion of the Financing somehow caused a delay in the listing application review process. Accordingly, I responded that I would move forward with the financing as quickly as possible. Had I understood Mr. Lis emails to be expressing a concern that the completion of the Financing could have a negative impact on the listing application, I would have immediately initiated a discussion on that point with Mr. Li. Moreover, I would have contacted the NASDAQ Staff to obtain assurances for CleanTech that it would not negatively affect CleanTech in any way. In my mind, this was a transaction that fully complied with NASDAQs shareholder approval rules, was on terms considered favorable by all involved, and was essential to the future growth of the Company." Fensterstock Aff. Ex. 18, pp. 1:2. 75. Further, NASDAQ Staff inaccurately characterized the process between CleanTech and the Staff. As Newman & Morrison wrote: "No person from our firm was involved in any of the [NASDAQ Staff Inquiry] conversations from the Staffs Submission. Mr. Uchimoto and I discussed the fact that the Staff was asking CleanTech to waive attorney-client privilege, and I told him I needed time to review the issue and discuss the facts with our client. The Staff has incorrectly implied that we were not cooperating with their request to immediately produce all emails, which would have meant the violation of the attorney-client privilege. We disagree with that characterization. We were very 191
  31. 31. responsive in providing the emails given the legal research required before releasing attorney-client privileged information, time-zone differences, language barrier and technical issues of combing through the firms email system to respond to a comprehensive information request by the Staff. The process took approximately two days and we responded fully on November 24, 2010." Fensterstock Aff. Ex. 18, p. 3. The NASDAQ Board of Directors Declines Review 76. On November 23, 2011, the NASDAQ Board of Directors declined to review the Councils decision pursuant to its power under NASDAQ Rule 5825, rendering the Councils decision final. Fensterstock Aff. Ex. 19. 77. Under NASDAQ Rule 5825, any member of the Board of Directors may call for the review of a Council decision. On information and belief, each of the Board Members were not even informed of the Councils decision with enough information to make a proper decision on whether to review the Councils decision. This refusal to review the Councils decision was also made in contravention of NASDAQs Stock Market Equity Rules, the Act and the Rules promulgated thereunder by the SEC, and due process under the Constitutions of the United States and State of New York. 78. On information and belief, expedited discovery will demonstrate that the Board Members violated the mandated procedure under NASDAQ and SEC Rules, refused to review the Council decision in bad faith, and contravened their duties when they refused review of the Council decision. 79. Also on November 23, 2011, CleanTech appealed the decision of the Board of Directors to the SEC, as provided by Rule 420 of the SEC Rules of Practice. Fensterstock Aff. Ex. 20. 80. On December 9, 2011, NASDAQ sent an email to Dave Donohoe, Financial Advisor to CleanTech, notifying Donohoe Advisory that the NASDAQ Stock Market will issue the attached 20I
  32. 32. press release on December 15, 2011, announcing the filing of NASDAQs Form 25 DelistingNotice to go into effect 10 days later. Fensterstock Aff. Ex. 24.81. Also on December 9, 2011, CleanTech submitted a Motion for Reconsideration to theBoard of Directors requesting that they reconsider their decision to decline to review the matter.Fensterstock Aff. Ex. 21.82. On December 12, 2011, NASDAQ Senior Vice President and Corporate Secretary JoanC. Conley rejected the Motion for Reconsideration, admitting that "Nasdaqs rules do notprovide a procedure by which the Board of Directors may call a decision for review after thedecision becomes thefinal action ofNasdaq." (Emphasis added.) Fensterstock Aff. Ex. 23.83. On December 16, 2011, NASDAQ filed a Form 25 Delisting Notice with the SEC, evenas CleanTechs appeal to the SEC is still pending. That From 25 reiterated that: "On May 26, 2011, the Company was provided notice that the May 19, 2011 Council decision was stayed to allow the record to be opened so that Staff could address an ex-parte communication on the record. On July 22, 2011, the Council issued a decision that affirmed the Panel decision to delist the Companys [sic] securities. On November 23, 2011, the Company was provided notice that the Nasdaq Board of Directors declined to call the Council decision for review pursuant to Rule 5825(a)."Without judicial intervention, NASDAQ will delist CleanTech in 10 days - on December 26,2011. Fensterstock Aff. Ex. 25.84. This delisting, were it to become effective on December 26, 2011, would be incontravention of NASDAQs Stock Market Equity Rules, the Act and the Rules promulgatedthereunder by the SEC, and due process under the Constitutions of the United States and State ofNew York. 21
  33. 33. 85. If CleanTech is delisted, it faces the distinct possibility of becoming insolvent. This result would be manifestly unjust and would cause irreparable harm to CleanTech and its shareholders, making it difficult to raise capital or compete in the marketplace. CLEANTECH HAS EXHAUSTED ITS ADMINISTRATIVE REMEDIES 86. CleanTech has exhausted all of the available administrative remedies to prevent the delisting. NASDAQ filed its Form 25 Delisting Notice with the SEC on December 16, 2011, starting a ten-day countdown clock that will lead to CleanTechs delisting on December 26, 2011. Fensterstock Aff. Ex. 25. 87. A procedural and due process dead zone now exists. There is no other process available to stay Nasdaqs decision other than through this Court. CleanTech submitted its appeal to the SEC on November 23, 2011. The SEC can overturn NASDAQs decision to delist CleanTech. Because of the standard SEC briefing schedule, the appeal of the delisting decision to the SEC will not be resolved until well into 2012. By this time, the ten-day countdown clock to December 26, 2011 will have rung and CleanTech will be delisted, causing it significant and truly irreparable harm; one which cannot be remedied with money. Fensterstock Aff. Ex. 20. 88. Because of this procedural and due process dead zone, nothing short of immediate judicial intervention can stop the irreparable harm that NASDAQs delisting would cause CleanTech. NASDAQ MUST BE ENJOINED FROM DELISTING CLEANTECH TO AVOID IRREPARABLE HARM. PRESERVE THE STATUS QUO. AND PROTECT THE INTERESTS OF THE PARTIES AND SHAREHOLDERS 89. As a result of NASDAQs arbitrary, capricious, and racially motivated actions thus far, in addition to NASDAQs unwarranted and obtrusive invasion of the attorney client privilege, CleanTech has been unduly harmed. CleanTech has lost an excellent opportunity to bid on the 22I
  34. 34. New Jersey Atlantic City Project which involved the construction of six wind towers for a totalcontract order of $8,400,000. The New Jersey Atlantic City Project also involves a follow-upproject, which will construct 70 towers, for a total price of just under $100 million. The firsttowers will be assembled in New Jersey, using United States employees. The State of NewJersey would have provided CleanTech, at very low cost and with simple terms, the capitalnecessary to construct and outfit a manufacturing facility. As the result of the delisting effort byNASDAQ, CleanTech lost this opportunity. Fensterstock Aff. Ex. 21, enclosed within as Ex. A.90. Since being suspended from trading and threatened with delisting, CleanTechs stockprice has fallen from a high of $9.00 to $0.70 - a precipitous decline in market capitalizationequivalent to approximately $200 million. Fensterstock Aff. Ex. 22.91. When NASDAQ threatened CleanTech with delisting, a $50,000,000 stock offering thatCleanTech was preparing with Stifel Financial Corporation was abandoned because Stifel couldnot sell CleanTechs stock. Fensterstock Aff. Ex. 21, enclosed within as Ex. A.92. NASDAQs efforts have also sabotaged CleanTechs efforts to raise capital through theToronto Stock Exchange and Hong Kong Stock Exchange. Id.93. In its April 27, 2011, letter to the NASDAQ Office of Appeals and Review, Apollo alsodescribed the irreparable harm to CleanTech shareholders as a result of NASDAQs tradingsuspension and threat to delist CleanTech. Fensterstock Aff. Ex. 12.94. Apollo noted that the delisting decision "disadvantaged existing and future shareholdersof [CleanTech] - ironically, the very constituencies it aims to protect." As proof of such harm,Apollo pointed out that (1) CleanTech stock fell over 50% since the initial delisting decision; (2)the stocks volume also fell, resulting in reduced liquidity; (3) as a public company, CleanTechwas required to disclose the delisting decision, which resulted in permanent damage to its 23
  35. 35. reputation; and (4) the delisting decision impaired CleanTechs ability to obtain financing, whichhas caused irreparable harm. Id., pp. 1-2.95. If CleanTech is delisted, the re-listing process will bring it further financial ruin. Theapplication costs a $25,000 fee, and NASDAQ gives no indication of how soon the applicationwill be processed. CleanTech will lose significant time and money.96. These types of harms will only be exacerbated should Defendants be permitted toeffectuate the delisting while CleanTechs SEC appeal is still pending.97. Delisting CleanTech prior to the SECs decision on the merits of CleanTechs appealwould cause the company irreparable harm - making it difficult for the company to operate orraise needed capital and pushing the company into insolvency.98. Maintaining the status quo, in which CleanTech is suspended from trading on theNASDAQ but not delisted, would fairly balance the equities and presents no harm to NASDAQor the public markets. By preserving the status quo, the SEC would have time to hear the meritsof CleanTechs appeal and CleanTech would be able to operate effectively in the clean energymarketplace. FIRST CAUSE OF ACTION (Against All Defendants) TEMPORARY STAY OR PRELIMINARY INJUNCTION99. CleanTech incorporates the preceding allegations of this Complaint in paragraphs 1through 98 as if fully set forth herein.100. Without a stay pending its hearing on the preliminary injunction enjoining NASDAQfrom delisting CleanTech, CleanTech will suffer irreparable harm while it simply awaits theSECs adjudication of its appeal.101. A temporary stay and preliminary injunction would preserve the status quo while thisCourt and the SEC determine the merits of permanent injunctive relief. 24
  36. 36. 102. Maintaining CleanTechs listing on the NASDAQ pending the SECs determination of CleanTechs appeal would properly balance the equities. It is no burden for NASDAQ to maintain CleanTechs listing on the NASDAQ - NASDAQ has already suspended trading in CleanTech on the exchange and that suspension continues. 103. Having submitted its appeal to the SEC, CleanTech has exhausted all of its administrative remedies. The SEC may still reverse NASDAQs decision to delist. However, no NASDAQ or SEC administrative procedure permits CleanTech to seek an interim stay of the delisting. SECOND CAUSE OF ACTION (Against All Defendants) PERMANENT INJUNCTION 104. CleanTech incorporates the preceding allegations of this Complaint in paragraphs 1 through 103 as if fully set forth herein. 105. Without a permanent injunction enjoining NASDAQ from delisting CleanTech, CleanTech will suffer irreparable harm while it simply awaits the SECs adjudication of its appeal. 106. A permanent injunction would preserve the status quo while the SEC determines the merits of CleanTechs appeal. 107. Maintaining CleanTechs listing on the NASDAQ pending the SECs determination of CleanTechs appeal would properly balance the equities. It is no burden for NASDAQ to keep CleanTech suspended from trading but maintain its listing on the NASDAQ. 108. Having submitted its appeal to the SEC, CleanTech has exhausted all of its administrative remedies. The SEC may still reverse NASDAQs decision to delist. However, no NASDAQ or SEC administrative procedure permits CleanTech to seek an interim stay of the delisting. 25I
  37. 37. THIRD CAUSE OF ACTION (Against All Defendants) VIOLATION OF SECTION 19(g) OF THE SECURITIES EXCHANGE ACT109. CleanTech incorporates the preceding allegations of this Complaint in paragraphs 1through 108 as if fully set forth herein.110. By arbitrarily and capriciously attempting to delist CleanTech from its stock exchange,Defendants have violated Section 19(g) of the Act and the Rules promulgated thereunder by theSEC. Section 19(g) mandates that stock exchanges like the NASDAQ maintain compliance withtheir own rules.111. NASDAQs effort to delist CleanTech has been marred by procedural deficiencies,arbitrary and capricious fact findings, and a rush to judgment - all of which have violatedNASDAQ Rules.112. These violations of NASDAQ Rules have irreparably harmed CleanTech and pushed it tothe brink of insolvency.113. Only injunctive relief preventing CleanTechs delisting pending the SEC appeal canprevent further violation of these Rules and the Act. FOURTH CAUSE OF ACTION (Against All Defendants) VIOLATION OF DUE PROCESS UNDER THE U.S. CONST. AMEND. V.114. CleanTech incorporates the preceding allegations of this Complaint in paragraphs 1through 113 as if fully set forth herein.115. Defendants, acting in their role as a quasi-governmental and regulatory body, havearbitrarily and capriciously pushed to delist CleanTech from the NASDAQ. This effort does notafford CleanTech the due process to which it is entitled under the U.S. Constitution when facedwith a regulatory action. 26
  38. 38. 116. NASDAQ Rules maintain a procedural and due process dead zone in which an issuers appeal to the SEC may still be pending even as NASDAQ files its Form 25 Delisting Notice and effectuates delisting. 117. By NASDAQs own admission, "Nasdaqs rules do not provide a procedure by which theBoard of Directors may call a decision for review after the decision becomes the final action ofNasdaq." Fensterstock Aff. Ex. 23. 118. NASDAQs process has not afforded CleanTech due process to contest the Staffs initialdelisting determination.119. Because it is possible for NASDAQ to delist CleanTech and then CleanTech to prevail inits appeal before the SEC of the NASDAQ action, Defendants have denied CleanTech the dueprocess owed to it under the U.S. Constitution. FIFTH CAUSE OF ACTION (Against All Defendants) VIOLATION OF DUE PROCESS UNDER THE N.Y. CONST. ART. I S 6120. CleanTech incorporates the preceding allegations of this Complaint in paragraphs 1through 119 as if fully set forth herein.121. Defendants, acting in their role as a quasi-governmental and regulatory body, havearbitrarily and capriciously pushed to delist CleanTech from the NASDAQ. This effort does notafford CleanTech the due process to which it is entitled under the Constitution of the State ofNew York when faced with a regulatory action.122. NASDAQ Rules maintain a procedural and due process dead zone in which an issuersappeal to the SEC may still be pending even as NASDAQ files its Form 25 Delisting Notice andeffectuates delisting. 27
  39. 39. II 123. By NASDAQs own admission, "Nasdaqs rules do not provide a procedure by which theI Board of Directors may call a decision for review after the decision becomes the final action of Nasdaq." Fensterstock Aff. Ex. 23.I 124. NASDAQs process has not afforded CleanTech due process to contest the Staffs initialI delisting determination. 125. Because it is possible for NASDAQ to delist CleanTech and then CleanTech to prevail inI its appeal before the SEC of the NASDAQ action, Defendants have denied CleanTech the due• process owed to it under the Constitution of the State of New York. PRAYER FOR RELIEFI WHEREFORE, CleanTech prays for judgment against Defendants as follows:I A. As and for its First Cause of Action, a stay pending its hearing on the preliminary injunction enjoining Defendants from delisting CleanTech from the NASDAQ Capital MarketI and/or otherwise effectuating the Form 25 Delisting Notice filed with the SEC on December 16,I 2011 until such a time as the SEC makes a determination on CleanTechs appeal of NASDAQs delisting determination;I B. As and for its Second Cause of Action for a permanent injunction enjoining DefendantsI from delisting CleanTech from the NASDAQ Capital Market and/or otherwise effectuating the Form 25 Delisting Notice filed with the SEC on December 16, 2011 until such a time as the SECI makes a determination on CleanTechs appeal of NASDAQs delisting determination; C. As and for it Third Cause of Action for violation of Section 19(g) of the SecuritiesI Exchange Act for an Order enjoining the effectiveness of that decision and ordering expeditedI discovery relating to the NASDAQ Board of Directors decisions not to call for review theII 28I
  40. 40. NASDAQ Listing and Hearing Review Councils decision to affirm the Hearing Panelsdetermination to delist CleanTech;D. As and for its Fourth Cause of Action for violation of due process guaranteed under theFifth Amendment of the U.S. Constitution an Order enjoining the effectiveness of the NASDAQdecision and ordering expedited discovery relating to the NASDAQ Board of Directorsdecisions not to call for review the NASDAQ Listing and Hearing Review Councils decision toaffirm the Hearing Panels determination to delist CleanTech;E. As and for its Fifth Cause of Action for violation of due process guaranteed under ArticleI, Section 6 of the Constitution of the State of New York an Order enjoining the effectiveness ofthe NASDAQ decision and ordering expedited discovery relating to the NASDAQ Board ofDirectors decisions not to call for review of the NASDAQ Listing and Hearing ReviewCouncils decision to affirm the Hearing Panels determination to delist CleanTech; and 29
  41. 41. For any other and further relief that the Court may deem just and proper.Dated: December 19, 2011 FENSTERSTOCK & PARTNERS LLP 4$& 6W^) Blair C. Fensterstock Thomas A. Brown II Eugene D. Kublanovsky Michael T. Phillips II Kristen M. Madison 100 Broadway New York, New York 10005 (212) 785-4100 Counselfor PlaintiffCleanTech Innovations, Inc. ARLEN SPECTER Attorney-at-Law 1525 Locust Street, Nineteenth Floor Philadelphia, PA 19102 (215 735-4200 Counselfor PlaintiffCleanTech Innovations, Inc. 30

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