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Take-Two Interactive Software, Inc. v. Brant

March 31, 2010



Before the Court are defendants' motions to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act. For the following reasons, the motions are granted in part and denied in part.


The parties' familiarity with the proceedings and submissions to date is assumed. This section recites only those facts relevant to the adjudication of the instant motions. Facts alleged in the Amended Complaint are taken as true for the purposes of this motion practice.

On July 12, 2006, Richard Lasky ("Lasky") commenced a shareholder derivative action against Take-Two Interactive Software, Inc. ("Take-Two"). The Lasky action was consolidated with a second derivative action brought by Raeda Karadsheh ("Karadsheh). (See Docket Entry No. 7.) A verified consolidated shareholder derivative complaint (the "Derivative Complaint") was filed on February 9, 2007. (See Docket Entry No. 19.) Take-Two's Special Litigation Committee ("SLC") evaluated the claims and moved to dismiss the Derivative Complaint as against nineteen of the twenty-three defendants and to assign to Take-Two the claims against the remaining four defendants; Ryan A. Brant ("Brant"), Larry Muller ("Muller"), Kelly G. Sumner ("Sumner") and James H. David, Jr. ("David") (collectively the "Defendants"). The SLC's motion was granted on April 21, 2009. (See Docket Entry No. 113.) On June 15, 2009, Take-Two filed an amended complaint (the "Amended Complaint").

This action revolves around the alleged backdating of stock option awards to the Defendants and others. Backdating is the practice of granting an option to purchase the stock of a corporation at an exercise price lower than the fair market value of the stock on the date of the grant, thus providing the recipient with an immediate profit. (Am. Compl. ¶ 17.) Take-Two adopted Stock Option Plans (collectively, the "Plans") in 1997 and 2002. (Id. ¶ 12.) The Plans were administered by Take-Two's Board of Directors through a two-person committee. (Id. ¶ 13.) Brant is the only Defendant to have served on that committee; he "effectively ran and controlled the operations of Take-Two." (Id. ¶ 8.) Both Plans expressly provided that the exercise price of an option was not to be less than the fair market value of Take-Two's common stock on the date the option was awarded. (Id. ¶ 14.)

The Amended Complaint alleges that the Defendants served in the following capacities; received backdated option awards during the following date ranges;*fn1 and signed the following publicly filed, allegedly false, statements:

· Brant -- Served as CEO from 1993 -- 2001 and as Chairman of the Board of Directors from 1993-2004; received option grants from May 5, 1997 -- December 1, 2004 (Id. ¶ 21.) Signed Form 14A filings from April 1998 -- April 2003 and proxy statements from 1997 -- 2003. (Id. ¶¶ 46-47.)

· David -- Served as CFO from July 2000 -- December 2001; received option grants from April 3, 2000 -- August 2, 2001 (Id. ¶ 28.) Signed Form 14A filings from October 2000 -- June 2001 and proxy statements from 2000 -- 2001. (Id. ¶¶ 50-51.)

· Muller -- Served as CFO from January 1999 -- April 2000, COO from April 2000 -- February 2001, Exec. VP of Operations from October 2001 -- January 2002; received option grants from March 1, 1999 -- October 3, 2001 (Id. ¶ 25.) Signed Form 14A in April 1999 and a proxy statement in 1999. (Id. ¶¶ 52-53.)

· Sumner -- Served as a Director from December 1997 -- January 2003, CEO from February 2001 -- January 2003; received option grants July 28, 1997 -- April 15, 2002 (Id. ¶ 31). Signed Form 14A filings from April 1998 -- May 2002 and proxy statements from 1997 -- 2002. (Id. ¶¶ 48-49.)

On January 22, 2002, Take-Two's general counsel sent an e-mail to Sumner, Paul Eibeler ("Eibeler"), Albert G. Pastino ("Pastino"), Barry Rutcofksy ("Rutcofsky") and Patti Tay ("Tay") regarding the pricing of stock options. The e-mail message included the following statement: "In this light, it is worth mentioning that options must be granted at an exercise price equal to 100% of the fair market value of the underlying common stock on the date of grant. Any below market issuance will result in a charge to earnings on the date of grant." (Decl. of Joseph C. Schoell, Ex. B ("Kasowitz Rpt.") at Ex. G.*fn2 ) From 1997-2003, Take-Two allegedly failed to reflect the expenses resulting from the alleged backdating scheme in its financial filings with the SEC and in the financial information publicly disseminated to its shareholders and prospective shareholders.

(Id. ¶ 36.) This failure was a violation of SEC rules and regulations as well as of generally accepted accounting principles. (Id.) As a result of the alleged backdating scheme, Take-Two was forced to restate and lower its earnings by $54.6 million for the period of 1997-2005. (Id. ¶ 37.) The SLC conducted an investigation of Take-Two's backdating practices and subsequently released its September 5, 2007, Report of the Special Litigation Committee of Take-Two Interactive Software, Inc. (the "SLC Rpt," Decl. of Joseph C. Schoell, Ex. A). The SLC Report concluded that at least eight executives and directors charged in the derivative complaints did not receive backdated options and had not participated in the alleged backdating scheme. (SLC Rpt. at 37.) The Kasowitz Report, which was prepared for the SLC, concluded that Tay, one of the recipients of the general counsel's 2002 e-mail, was a "central figure" in the alleged backdating scheme. (Kasowitz Rpt. at 33.) Eibeler and Rutcofsky were dismissed as defendants following the SLC's determination that they had received backdated options but had not actively engaged in backdating of Take-Two options. (See Docket Entry No. 113; SLC Rpt. at 44, 46.) Pastino was not charged with receiving backdated options or participating in the scheme. The SLC alleges that "Take-Two" first learned about its historical backdating practices after a Wall Street Journal article published in March 2006 detailed the practice and a subsequent June 2006 New York Times article specifically identified Take-Two's option awards as suspicious. (SLC Report at 26, n.9.)

The Amended Complaint asserts claims for violations of Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78n, and SEC Rule 14a-9, violations of Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and SEC Rule 10b-5 and for breach of fiduciary duties and/or unjust enrichment under Delaware law. Defendants move to dismiss the Amended Complaint on the grounds that the claims asserted against them are time barred, that the Amended Complaint fails to meet the pleading particularity requirements of Federal Rule of Civil Procedure 9(b) and of the Private Securities Litigation Reform Act, and that the Amended Complaint fails to state a cause of action upon which relief can be granted.


In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "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). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim will have "facial plausibility when the plaintiff pleads factual ...

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