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Semple v. Eyeblaster

May 26, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


Plaintiff Elizabeth Semple ("Plaintiff" or "Semple") filed an Amended Complaint alleging various causes of action against her former employer Eyeblaster, Inc. ("Eyeblaster"), its Chief Executive Officer Gal Trifon ("Trifon") (collectively, the "Eyeblaster Defendants"), Lehman Brothers, Inc. ("Lehman") and Deutsche Bank Securities Inc. ("DBSI") (collectively, "Underwriters") arising out of her inability to exercise her options to purchase Eyeblaster stock. Specifically, Semple brings the following claims: (1) tortious interference with contract against the Eyeblaster Defendants and the Underwriters; (2) tortious interference with business relations against the Eyeblaster Defendants; (3) breach of contract against the Eyeblaster Defendants and the Underwriters; and (4) fraud against the Eyeblaster Defendants. The Eyeblaster Defendants and DBSI*fn1 have moved to dismiss for failure to state a cause of action. For the reasons set forth below, the Underwriters' motion to dismiss is granted, and the Eyeblaster Defendants' motion to dismiss is granted in part and denied in part.


Semple was employed as the Vice President for Human Resources at Eyeblaster from March 21, 2005 to April 20, 2008, when she terminated her employment with the company. Amended Complaint ("Am. Compl.) ¶¶ 7, 16. During her employment with Eyeblaster, Semple was granted options to purchase 74,000 shares of Eyeblaster stock pursuant to the 2007 Eyeblaster, Inc. Stock Option and Incentive Plan ("Eyeblaster Stock Option Plan"). Id. ¶¶ 8-9. By the date of her resignation, 26,868 of Semple's stock options had vested. Id. ¶ 17. Semple had until July 18, 2008 to exercise her vested Eyeblaster Options under the Eyeblaster Stock Option Plan, after which date those options would expire. Id. ¶ 18.

In January 2008, Eyeblaster began preparations for an initial public offering ("IPO") of its stock on the NASDAQ stock exchange. Id. ¶ 10. At approximately the same time, Eyeblaster entered into an agreement pursuant to which Lehman and DBSI would act as lead underwriters of the IPO. See id. ¶ 11. In March of 2008, Semple entered into a letter agreement with the Underwriters whereinshe agreed, among other things, to certain restrictions on her right to sell or otherwise dispose of any shares of stock that she would be issued as the result of her exercise of her options to purchase Eyeblaster stock (the "Lock-Up Agreement"). See Declaration of Allen N. Taffet ("Taffet Decl.") Exh. A. Specifically, pursuant to the Lock-Up Agreement, Semple irrevocably agreed "that, without prior written consent of [the Underwriters], [Semple] will not, directly or indirectly, . . . offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock . . . or securities convertible into or exercisable or exchangeable for Common Stock." Id. The Lock-Up Agreement further provided that Semple would be released from her obligation to obtain prior written consent on the occurrence of one of three delineated events: (1) if Eyeblaster notifies the Underwriters that it does not intend to proceed with the IPO; (2) if the Underwriting Agreement does not become effective by December 31, 2008; or (3) if the Underwriting Agreement terminates before payment for and delivery of the Stock. Id. Finally, by signing the Lock-Up Agreement, Semple acknowledged that Eyeblaster and the Underwriters "will proceed with the [IPO] in reliance on this Lock-Up Letter Agreement." Id. Eyeblaster was not a party to the Lock-Up Agreement. Am. Compl. ¶ 15.

Plaintiff alleges that on or aboutJune 30, 2008, Sarit Firon ("Firon"), Eyeblaster's CFO, advised her that Eyeblaster did not intend to proceed with the IPO. Am. Compl. ¶ 19. Plaintiff also alleges that, "Eyeblaster advised the Underwriters that it intended to withdraw the IPO." Id. ¶ 20.

At a certain point prior to June 30, 2008, Millennium Technology Value Partners, L.P. ("Millennium"), a private equity company, approached Semple and made an offer to acquire 23,868 shares of Eyeblaster stock for a purchase price of $310,264.00, and to provide her with the funds necessary to exercise her options to purchase those shares. Id. ¶¶ 21-22. On June 30, 2008, Millennium and Semple entered into a Letter of Intent ("LOI"),*fn2 which set forth the "basic understandings between [Semple] and Millennium, with respect to the proposed Share Purchase." Affirmation of Patrick M. Collins ("Collins Aff.") Exh. 6. The LOI outlined the terms of a contemplated sale of shares, but it explicitly stated that "no term or provision of this [LOI] shall constitute a commitment, agreement or binding agreement on the part of [Semple] or [Millennium] with the exception of the sections entitled 'Confidentiality' and 'No Shop' which shall be binding except to the extent agreed to in definitive and final documentation." Id. The "No Shop" provision of the LOI provided that Semple "may not consummate a sale of the Shares to a party other than Millennium prior to the six month anniversary of the date [of the LOI], with the exception of a sale resulting from an exercise of [Eyeblaster's] right of first refusal." Id. Plaintiff alleges that, as of the end of June or beginning of July, when she entered into the LOI with Millennium, andin reliance on that agreement, she planned to purchase the remaining3,000 shares in which she had vested optionswith her own money. Am. Compl. ¶ 23.

Shortly thereafter,in accordance with the terms of the Eyeblaster Stock Option Plan, Semple provided Eyeblaster with notice of her election to exercise her options to purchase 26,868 shares of stock, and also provided Eyeblaster with a copy of the LOI and thereby informed Eyeblaster that she intended to sell 23,868 of those shares to Millennium. Id. ¶¶ 24-25, 27. Pursuant to Eyeblaster's right of first refusal under the Eyeblaster Stock Option Plan, Semple offered to sell Eyeblaster certain of the shares in which she had the vested option to purchase on the same terms and conditions that Millennium had offered her, but Eyeblaster advised that it would not purchase the shares. Id. ¶¶ 26, 28. Semple also alleges that Firon advised her that Eyeblaster had no objection to her proposed sale of Eyeblaster stock to Millennium, but that Semple could not sell any of the stock she would acquire by exercising her options without first being released from the terms of the Lock-Up Agreement. Id. ¶ 30. Eyeblaster subsequently, in an email message dated July 16, 2008, advised Semple that it would extend her time to exercise her vested options until August 18, 2008 to allow her additional time to obtain the Underwriters' consent to her proposed sale of stock to Millennium. Id. ¶ 31. Yet, Plaintiff alleges that three days earlier, on July 13, 2008, Firon had sent an email to a representative of Millennium, warning that Millennium shouldstop soliciting Eyeblaster's employees to sell stock to Millennium. Id. ¶ 32. Plaintiff alleges that the Eyeblaster Defendants were aware that, without the Millennium sale, she was unable to exercise her vested options because she lackedsufficient funds. Id. ¶ 33.

Pursuant to Eyeblaster's advice, Semple's attorney contacted Lehman's counsel to determine whether Lehman would consent to release her from the Lock-Up Agreement. Id. ¶ 34. Semple's attorney was advised that the Underwriters consented to the sale and transfer of obligations under the Lock-Up Agreement. Id. ¶ 36. However, when Semple's attorney followed up to finalize documents that would provide that consent and release Semple from the Lock-Up Agreement, Lehman's counsel equivocatedand "refused to release Semple." Id. ¶ 37. Plaintiff alleges that during a July 21, 2008 conversation, Trifon told her that the reason the Underwriters had refused to release her from the Lock-Up Agreement was that he (Trifon) had instructed them to withdraw their initial consent. Id. ¶ 38. Trifon also told Semple that he did not want her to be able to exercise her options and that "he did not want other Eyeblaster employees to understand that they could, through outside sources such as Millennium, obtain the liquidity they required to exercise their vested Eyeblaster options." Id. ¶ 39.

Plaintiff subsequently requested a further extension of time until December 31, 2008 to secure a release from the Lock-Up Agreement and to exercise her vested options, but Eyeblaster refused to grant the extension beyondAugust 18, 2008. Id. ¶¶ 40-41. Ultimately, Millennium withdrew from its contemplated transaction with Semple, refusing to proceed with the LOI due to Semple's inability to obtain a release from the Lock-Up Agreement. Id. ¶ 42. Because she lacked sufficient liquidity of her own, Semple was unable to exercise her options before they expired. See id. ¶ 43.


A. Legal Standard on a Motion to Dismiss

To survive a motion to dismiss, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court must accept the facts alleged in the complaint as true, even if doubtful, and draw all reasonable inferences in favor of the nonmoving party. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). In deciding a motion to dismiss, the Court must apply a "flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). This standard requires "factual allegations sufficient 'to raise a right to relief above the speculative level.'" Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (quoting Twombly, 550 U.S. at 555).

Additionally, in considering the sufficiency of the allegations of a claim for fraud, the Court must examine the allegations in the complaint with an eye toward the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure. Although Rule 9(b) must be read in conjunction with Rule 8(a), which requires only a "short and plain statement" of the claim asserted, the fraud allegations must nonetheless be sufficiently specific to "give the defendant adequate information to allow the defendant to frame a response" and "to allow the defendant a reasonable opportunity to answer the complaint." Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 257 (S.D.N.Y. 2008) (citing Ross v. H.H. Robins Co., 607 F.2d 545, 557-58 (2d Cir. 1979), cert. denied, 446 U.S. 946 (1980)) (internal quotation marks omitted).

In decidinga motion to dismiss, the Court may consider documents attached as exhibits to the complaint or incorporated into the complaint by reference, documents that are integral to the plaintiff's claims, even if not explicitly incorporated by reference, and matters of which judicial notice may be taken. See Fed. R. Civ. P. 10(c); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992); Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Thomas v. Westchester County Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002). When documents are integral, known of and possessed by the plaintiff, and there is no dispute as to ...

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