United States District Court, S.D. New York
Attorneys for Plaintiff TAYLOR & COHEN LLP, Robert Cohen,
Esq., Zachary S. Taylor, Esq.
Attorneys for Defendants SHERMAN WELLS SYLVESTER &
STAMELMAN LLP Anthony J. Sylvester, Esq., Jordan D.
W. SWEET U.S.D.J.
Luxoft USA, Inc. ("Luxoft USA") and Luxoft Holding,
Inc. ("Luxoft Holding") (collectively, the
"Defendants" or "Luxoft") have moved
pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss the complaint of Plaintiff Maik Lankau
("Lankau" or the "Plaintiff") (the
"Complaint"). Based on the conclusions set forth
below, Defendants' motion is granted in part and denied
filed his Complaint in this diversity action on November 9,
2016. (Dkt. 1.) In the Complaint, Plaintiff alleges:
fraudulent inducement by Defendants (Compl. ¶¶
82-90); fraud by Defendants (Compl. ¶¶ 91-98);
violation of Section 10(b) of the 1934 Securities Act and
Rule 10(b)-(5) by Luxoft Holding (Compl. ¶¶
99-105); breach of contract by Defendants (Compl.
¶¶ 106-11); and tortious interference with contract
by Luxoft Holding (Compl. ¶¶ 112-18) .
January 9, 2017, Defendants filed the instant motion to
dismiss. The motion was heard and marked fully submitted on
February 23, 2017.
Complaint sets forth the following allegations, which are
assumed true for the purpose of this motion to dismiss.
See Koch v. Christie's Int'1 PLC, 699 F.3d
141, 145 (2d Cir. 2012).
Holding, and its wholly-owned subsidiary Luxoft USA, provide
software development and support, product engineering and
testing, technology consulting services for multinational
corporations. (Compl. ¶¶ 18, 20.) Defendants have
dedicated delivery centers and offices throughout the world.
(See Compl. ¶ 20.)
May through July 2014, Defendants recruited Lankau to become
Luxoft's Managing Director for Telecommunication and
Embedded Systems; Defendants were looking for someone to lead
its international Telecommunication and Embedded Systems
division. (Compl. ¶¶ 2, 24, 27-28, 34.)
the negotiations with a Luxoft-hired recruiter, Lankau
expressed disinterest in any new position that did not have
an equity component as part of the compensation, as Lankau
would forfeit unvested stock options if he left his current
employer, Danaher Corporation ("Danaher") as well
as sufficient managerial breadth. (See Compl.
¶¶ 25, 33, 58). In response, both the recruiter and
Luxoft employees, such as Michael Minkevich
("Minkevich"), made oral and written assurances
that the Managing Director's compensation would include a
stock options award. (Compl. ¶¶ 26, 32, 38-40). In
email messages to Lankau, Minkevich estimated the value of
the proposed equity award at $1.3 million over a four-year
vesting period. (See Compl. ¶ 38). Lankau was assured by
Luxoft that he would receive his stock options sometime in
August 2014, but that the equity compensation plan, termed
"Stock Option Plan III" or "SOP III, "
still needed to be approved by Luxoft's Board of
Directors. (Compl. ¶¶ 39-40.)
executed the final employment contract with Luxoft USA (the
"Employment Agreement") on July 11, 2014. (Compl.
¶ 42.) After signing the Employment Agreement, Lankau
left Danaher and began working at Luxoft USA in mid-August
2014. (Compl. ¶¶ 5, 42, 44.)
relevance to the present case, the Employment Agreement has
several provisions detailing Lankau's employment
responsibilities, compensation, and at-will status.
with regard to employment responsibilities, the Employment
Agreement states that Lankau's responsibilities included
"Business Development" and "Delivery and
Operations, " which in further detail entailed the
following: "Accountable for operational/financial
metrics and overall business results of practice";
"Manage/oversee multiple delivery teams (Delivery
Centers) to ensure client satisfaction"; "Provide
risk assessment and reliable forecasting";
"Cultivate cross-functional communication with other
Lines of Business/practices"; "Provide mentoring
for the practice senior technical management (Delivery
Managers)." (Compl. ¶ 57; see also Compl.,
Ex. 1 at Ex. A.) Lankau left Danaher, in part, because of
these broad managerial responsibilities. (See Compl.
with regard to compensation, the Employment Agreement states:
Executive's Base Salary shall be subject to annual review
for adjustment at the discretion of the Board (any salary so
adjusted shall thereafter be the Base Salary for purposes of
this Agreement). The next salary adjustment is scheduled for
April 1, 2015.
In addition to (but without duplication of) the Base Salary
and any bonus, while Executive is employed by the
Corporation, Executive shall be eligible to participate in
the Stock Option Plan (subject to approval by the Board and
the Corporation's policies), and such other pension, life
insurance, health insurance, disability insurance and other
employee benefits plans, if any, which the Corporation may
from time to time make available to its executive employees
(Cornpl., Ex. 1 ¶¶ 4(a), 4(d).) Lankau alleges that
while "Stock Option Plan" was not defined in the
Employment Agreement, Defendants informed him that it
referred to SOP III. (See Cornpl. ¶ 68.) In
addition, Lankau states that his salary was never reviewed
for adjustment while employed at Luxoft. (Compl. ¶ 65.)
with regard to Lankau's at-will employment and
termination conditions, the Employment Agreement states:
Executive understands, acknowledges, and agrees hat Executive
is an "at-will" Employee, and that Executive's
employment by the Corporation . . . maybe be terminated by
the Corporation (through action by the Board) for any reason
or no reason . . . subject only to the contractual rights
upon termination set forth herein; provided that if the
Corporation terminates the Executive without Cause, the
Executive shall be entitled to ninety (90) days prior notice
to be given by the Corporation.
(Compl., Ex. 1 ¶ 5(a) .)
about November 11, 2014, Luxoft Holding's board of
directors approved SOP III, an equity compensation plan for
Luxoft USA employees, with shares scheduled to vest starting
on January 1, 2016. (Compl. ¶ 46.) At that time, Lankau
was not granted any equity compensation. (Compl. ¶ 47).
employed by Luxoft, Lankau alleges that he was repeatedly
told, orally and in writing, that he would be awarded his
equity compensation package at some future date.
(See Compl. ¶¶ 10, 49-53). Examples in the
Complaint include being told in November 2014 by Minkevich
that Lankau would only receive his equity compensation in
August 2015, a year after starting, Compl. ¶ 49); being
told in October 2015, by Luxoft Holding's CEO Dmitry
Loschinin ("Loschinin"), that Lankau would receive
equity compensation at some point in the future, (Compl.
¶ 51); in February 2016, in an email from Loschinin,
being told the same and that the equity package was awaiting
Board approval, (Compl. ¶ 53).
January 2015, Lankau was informed that his job
responsibilities as listed in the Employment Agreement would
change-specifically, he would not have oversight with respect
to the Delivery Center-which Lankau accepted in conjunction
with the promises from Luxoft that he would in the future
receive equity compensation. (See Compl. ¶¶ 61,
August 15, 2016, Lankau was told he would be terminated,
without cause, and his last day of work would be September 1,
2016. (Compl. ¶ 74.) Upon termination, Luxoft offered
Lankau a severance package of $100, 000 if he agreed to waive
any and all claims. (Compl. ¶ 12.)
Rule 12(b)(6) motion to dismiss, all factual allegations in
the complaint are accepted as true and all inferences are
drawn in favor of the pleader. Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
A complaint must contain "sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A claim is facially
plausible when "the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at
556). In other words, the factual allegations must
"possess enough heft to show that the pleader is
entitled to relief." Twombly, 550 U.S. at 557 (internal
quotation marks omitted).
"a plaintiff may plead facts alleged upon information
and belief, where the belief is based on factual
information that makes the inference of culpability
plausible, ' such allegations must be * accompanied by a
statement of the facts upon which the belief is
founded.'" Munoz-Nagel v. Guess, Inc., No.
12 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30,
2013) (quoting Arista Records, LLC v. Doe 3, 604
F.3d 110, 120 (2d Cir. 2010)); Prince v. Madison
Square Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y. 2006);
Williams v. Calderoni, 11 Civ. 3020 (CM), 2012 WL
691832, at *7 (S.D.N.Y. Mar. 1, 2012)). The pleadings,
however, "must contain something more than ... ...