Scott v. Wei et al

MEMORANDUM OF LAW in Support re: 78 MOTION to Dismiss . . Document

S.D.N.Y.August 23, 2018

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALLAN SCOTT, DERIVATIVELY AND ON BEHALF OF 6D GLOBAL TECHNOLOGIES INC., Plaintiff, -against- BENJAMIN TIANBING WEI A/K/A/ BENJAMIN WEY, NEW YORK GLOBAL GROUP, INC., NYGG (ASIA), LTD., TEJUNE KANG, MARK SZYNKOWSKI, ADAM HARTUNG, DAVID S. KAUFMAN, TERRY MCEWEN, ANUBHAV SAXENA, PIOTR A. CHRZASZCZ, and MICHAEL BANNOUT, Defendants, and 6D GLOBAL TECHNOLOGIES INC., Nominal Defendant. Case No. 1:15-cv-09691(RWS) MEMORANDUM OF LAW IN SUPPORT OF THE FORMER OUTSIDE DIRECTORS’ MOTION TO DISMISS PLAINTIFF’S AMENDED VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT MANATT, PHELPS & PHILLIPS, LLP Andrew L. Morrison Samantha J. Katze Danielle C. Newman 7 Times Square New York, New York 10036 Tel.: (212) 790-4500 Fax: (212) 790-4545 amorrison@manatt.com skatze@manatt.com dnewman@manatt.com Attorneys for Defendants Adam Hartung, David S. Kaufman and Anubhav Saxena Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 1 of 26 TABLE OF CONTENTS Page -i- PRELIMINARY STATEMENT ................................................................................................... 1 FACTS ........................................................................................................................................... 3 The Parties ......................................................................................................................... 3 The Proxies ........................................................................................................................ 4 The Alleged Misconduct Does Not Involve The Former Outside Directors ..................... 5 ARGUMENT ................................................................................................................................. 7 POINT I PLAINTIFF FAILS TO STATE A FEDERAL CLAIM AGAINST THE FORMER OUTSIDE DIRECTORS ......................................................................... 7 A. The Pertinent Pleading Standards .......................................................................... 7 B. Plaintiff Does Not Allege A Plausible Claim Against The Former Outside Directors ................................................................................................................. 9 C. The Amended Complaint Fails To Satisfy Rule 9(b) .......................................... 13 POINT II PLAINTIFF’S REMAINING COMMON LAW CLAIMS ARE MERITLESS AND, IN ANY EVENT, SHOULD BE BROUGHT IN DELAWARE .......................................................................................................... 15 A. The Fiduciary Duty Claim Fails As A Matter Of Law ........................................ 15 1. The Delaware Chancery Court is the sole and exclusive forum .............. 15 2. Plaintiff fails to plead a non-exculpated claim ........................................ 17 3. Plaintiff cannot overcome the business judgment rule ............................ 19 B. The Unjust Enrichment Claim Fails As A Matter Of Law .................................. 20 CONCLUSION ............................................................................................................................ 21 Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 2 of 26 TABLE OF AUTHORITIES Page -ii- CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................................7 Boilermakers Local 154 Retirement Fund v. Chevron Corp., 73 A.3d 934, 940 (Del. Ch. 2013)............................................................................................16 DeAngelis v. Corzine, 17 F. Supp. 3d 270, 280 (S.D.N.Y. 2014) ...............................................................................10 Employees’ Ret. Sys. Of Gov’t of the Virgin Islands v. Blanford, 794 F.3d 297 (2d Cir. 2015).......................................................................................................8 GFRE, Inc. v. U.S. Bank, N.A., 130 A.D.3d 569 (2d Dep’t 2015) .............................................................................................20 Henneberry v. Sumitomo Corp. of America, 415 F. Supp. 2d 423 (S.D.N.Y. 2006)........................................................................................8 In re Alloy, Inc., CA. No. 5626-VCP, 2011 WL 4863716 (Del. Ch. Oct. 13, 2011) ..........................................19 In re Ampal-American Israel Corp., 543 B.R. 464 (Bankr. S.D.N.Y. 2016) .....................................................................................18 In re Bear Stearns Companies, Inc. Sec., Deriv. and ERISA Litig., 995 F. Supp. 2d 291 (S.D.N.Y. 2014)........................................................................................3 In re BJ’s Wholesale Club, Inc., CA. No. 6623-VCN, 2013 WL 396202 (S.D.N.Y. Jan. 21, 2013) ..........................................19 In re Cannavest Corp. Sec. Litig., 307 F. Supp. 3d 222, 242 (S.D.N.Y. 2018)..........................................................................9, 13 In re China North East Petroleum Holdings Ltd. Sec. Litig., No. 10 Civ. 4577(MCG), 2014 WL 7236914 (S.D.N.Y. Dec. 11, 2014) ................................14 In re JP Morgan Chase Sec. Litig., 363 F. Supp. 2d 595 (S.D.N.Y. 2005)......................................................................................13 In re Marsh & McLennan Companies, Inc. Secs. Litig., 536 F. Supp. 2d 313 (S.D.N.Y. 2007)........................................................................................8 In re NYMEX Shareholder Litig., C.A. Nos. 3621-VCN, 3835-VCN, 2009 WL 3206051 (Del. Ch. Sept. 30, 2009) ........................................................................................................................................19 In re Paramount Gold and Silver Corp. Stockholders Litig., C.A. No. 10499-CB, 2017 WL 1372659 (Del. Ch. Apr. 13, 2017) .........................................18 Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 3 of 26 iii In re Pfizer Inc. S’holder Derivative Litig., 722 F. Supp. 2d 453 (S.D.N.Y. 2010)......................................................................................20 In re Shengdatech, Inc. Sec. Litig., No. 11 Civ. 1918(LGS), 2014 WL 3928606 (S.D.N.Y. Aug. 12, 2014) ...............................8, 9 JHW Greentree Capital, L.P. v. Whittier Trust Co., No. 05 Civ. 2985 HB, 2005 WL 3008452 (S.D.N.Y. Nov. 10, 2005) .....................................12 Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973)...................................................................................................13 Lipow v. Net1 UEPS Technologies, Inc., 131 F. Supp. 3d 144 (S.D.N.Y. 2015)........................................................................................5 Littlejohn v. City of N.Y., 795 F.3d 297 (2d Cir. 2015).......................................................................................................7 Litwin v. Oceanfreight, Inc., 865 F. Supp. 2d 385 (S.D.N.Y. 2011)......................................................................................12 M+J Savitt, Inc. v. Savitt, No. 08 Civ. 8535(DLC), 2009 WL 691278 (S.D.N.Y. Mar. 17, 2009) ...................................16 Marino v. Grupo Mundial Tenedora, S.A., 810 F. Supp. 2d 601 (S.D.N.Y. 2011)........................................................................................8 Munoz-Nagel v. Guess, Inc., No. 12-CV-1312(ER), 2013 WL 1809772 (S.D.N.Y. Apr. 30, 2013) .......................................7 Nguyen v. Barrett, C.A. No. 11511-VCG, 2016 WL 5404095 (Del. Ch. Sept. 28, 2016) .....................................18 Pence v. Gee Group, Inc., 236 F. Supp. 3d 843 (S.D.N.Y. 2017)......................................................................................16 Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007).....................................................................................................16 Puddu v. 6D Global Tech., Inc., No. 17-938-cv, 2018 WL 3688576 (2d Cir. Aug. 2, 2018) (summary order) .........................12 Solomon v. Armstrong, 747 A.2d 1098 (Del Ch. 1999).................................................................................................19 Steinberg v. Dimon, No. 14 Civ. 688(PAC), 2014 WL 3512848 (S.D.N.Y. July 16, 2014) ....................................20 Steinberg v. Sherman, No. 07 Civ. 1001(WHP), 2008 WL 2156726 (S.D.N.Y. May 8, 2008) ..............................8, 17 Vides v. Amelio, 265 F. Supp. 2d 273 (S.D.N.Y. 2003)........................................................................................9 Witchko v. Schorsch, 15 Civ. 6043(AKH), 2016 WL 3887289 (S.D.N.Y. June 9, 2016) .....................................9, 11 Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 4 of 26 iv Wood v. Baum, 953 A.2d 136 (Del. 2008) ........................................................................................................17 STATUTES 8 Del. C. § 102(b)(7) ......................................................................................................................17 N.Y. Bus. Corp. L. § 402(b) (McKinney 2018) .............................................................................17 Securities and Exchange Act of 1934, 15 U.S.C. § 78n(a) .................................................... passim RULES Fed. R. Civ. P. 9(b) ................................................................................................................ passim Fed. R. Civ. P. 12(b)(3)....................................................................................................................1 Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 7 17 C.F.R § 240.14a-9 .............................................................................................................8, 9, 11 Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 5 of 26 PRELIMINARY STATEMENT Defendants Adam Hartung, David S. Kaufman and Anubhav Saxena (collectively, the “Former Outside Directors”) respectfully submit this memorandum of law in support of their motion for an Order, pursuant to Fed. R. Civ. P. 12(b)(3), (6) and 9(b), dismissing with prejudice the claims for securities fraud, breach of fiduciary duty and unjust enrichment asserted against them in the amended verified shareholder derivative complaint (“Amended Complaint”).1 The information and belief Amended Complaint substitutes prolixity for substance. It goes on for 85 pages. Yet, there are no allegations of any specific conduct undertaken by any of the Former Outside Directors. Moreover, much of the Amended Complaint involves conduct that either preceded the Former Outside Directors’ brief tenure as outside directors of 6D Global Technologies, Inc. (“6D” or the “Company”) or occurred after the Former Outside Directors resigned from 6D’s board of directors. The Amended Complaint purports to describe a stock manipulation scheme conducted by defendant Benjamin Wey (“Wey”) with alleged help from defendant Tejune Kang (“Kang”). Plaintiff predicates this alleged scheme on defendants Wey’s and Kang’s control over 6D. These allegations destroy any claim that the Former Outside Directors controlled 6D. Moreover, the Amended Complaint alleges that the Former Outside Directors acted properly at all times and resigned from their positions when it became clear that they were not receiving complete information and could not effect change mandated by the Company’s auditors. 1 A copy of the Amended Complaint, without exhibits, is annexed as Exhibit A to the accompanying declaration of Andrew L. Morrison dated August 23, 2018 (the “Morrison Dec.”) and cited herein as “Am. Comp. ¶__”. In addition, the Former Outside Directors respectfully submit, contemporaneously with this motion, their opposition to Plaintiff’s motion for leave to file a second amended complaint in this action. For the reasons set forth herein and in the opposition to leave to amend, dismissal with prejudice is appropriate. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 6 of 26 2 As set forth below, Plaintiff cannot state a claim under Section 14(a) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78n(a), against the Former Outside Directors. Among other things, (1) the Former Outside Directors did not sign either of the two April 2015 proxies at issue (or, for that matter, any public filings concerning 6D); (2) the Amended Complaint does not allege how either proxy was rendered false and misleading by the alleged omission; and (3) the allegations in the Amended Complaint lump all of the Former Outside Directors together with all of the other defendants without specifying any particular conduct by any respective Former Outside Director. Such failure to particularize fails to satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b), which apply to Section 14(a) claims that sound in fraud. Because the Amended Complaint fails to allege a securities fraud claim, this Court should not determine the remaining derivative common law claims which involve the internal affairs of a Delaware corporation and are subject to an exclusive venue provision whereby the Company’s shareholders agreed to bring all derivative and fiduciary duty claims in Delaware Chancery Court. However, to the extent that the Court elects to consider such claims, they are meritless. Plaintiff’s breach of fiduciary duty claims fail because, inter alia, (1) the Former Outside Directors’ conduct is protected by the business judgment rule and there are no allegations of specific facts that demonstrate bad faith; (2) the Former Outside Directors are exculpated from breach of fiduciary duty claims by the terms of 6D’s certificate of incorporation; (3) Plaintiff has failed to satisfy the heightened pleading requirements of Rule 9(b), which apply to fiduciary duty claims that sound in fraud; and (4) 6D’s by-laws explicitly require all derivative claims involving fiduciary duties to be brought in the Delaware Chancery Court. Finally, the Amended Complaint fails to set forth any of the elements of an unjust enrichment claim and this throwaway claim should be dismissed as a matter of law. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 7 of 26 3 FACTS The facts relevant to this motion to dismiss are summarized below.2 The Parties Plaintiff is alleged to be a current 6D shareholder who has continuously held 6D shares at all relevant times. (Am. Comp. ¶44) Nominal Defendant 6D is a Delaware corporation with principal executive offices located in New York. (Am. Comp. ¶45) 6D came into existence sometime after June 13, 2014. (Am. Comp. ¶47) Defendant New York Global Group, Inc. (“NYGG-Asia”) is a Delaware corporation headquartered in New York. (Am. Comp. ¶52) Defendant NYGG (Asia), Ltd. is alleged to be a subsidiary of NYGG and located in Beijing, China. (Am. Comp. ¶48) As of April 20, 2015, NYGG-Asia owned 44.9% of 6D’s outstanding shares. (Am. Comp. 50) Defendant Wey is alleged to be the founder and president of Defendant NYGG. (Am. Comp. ¶54) Defendant Kang is the Chief Executive Officer of 6D and has served as chairman of the board of directors of 6D since September 2014. (Am. Comp. ¶58) As of April 20, 2015, Kang beneficially owned 29.7% of 6D’s outstanding shares. (Am. Comp. ¶59) The Former Outside Directors are defendants Adam Hartung, David S. Kaufman and Anubhav Saxena. None of the Former Outside Directors are alleged to have been officers of 6D. All of the Former Outside Directors are alleged to have joined 6D’s board of directors in or about September 2014. (Am. Comp. ¶¶67, 70 and 78) There are no allegations that the Former Outside Directors were involved in the day-to-day operations of 6D. In fact, the Amended 2 The court need only accept well pleaded allegations of fact. Legal conclusions, couched as factual allegations, need not be accepted as true on a motion to dismiss. See In re Bear Stearns Companies, Inc. Sec., Deriv. and ERISA Litig., 995 F. Supp. 2d 291, 298-99 (S.D.N.Y. 2014). Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 8 of 26 4 Complaint alleges that Defendant Wey controlled 6D’s day-to-day operations. (Am. Comp. ¶332) There are no allegations that the Former Outside Directors were conflicted in any way. Defendant Hartung served as chair of the audit committee and a member of the compensation and governance and nominating committees. (Am. Comp. ¶67) Defendant Kaufman served as chair of the governance and nominating committee and a member of the audit and compensation committees. (Am. Comp. ¶70) Defendant Saxena served as chair of the compensation committee and a member of the audit and governance and nominating committees. (Am. Comp. ¶78) None of the Former Outside Directors currently serve on 6D’s board of directors. Defendants Kaufman and Saxena resigned on or about September 30, 2015 and Defendant Hartung resigned on or about April 16, 2016. (Am. Comp. ¶¶67, 70 and 78) The Proxies The Amended Complaint purports to allege a derivative claim against the Former Outside Directors based upon alleged violations of Section 14 of the Securities Exchange Act of 1934, 15 U.S.C. § 78n. This claim is predicated solely upon “the Company’s 2015 Proxies” (Am. Comp. ¶332) which are defined to be 6D’s preliminary proxy filed on April 17, 2015 and 6D’s definitive proxy filed on April 30, 2015 in connection with 6D’s June 3, 2015 annual shareholder meeting. (Am. Comp. ¶¶229-230) Plaintiff alleges that the 2015 Proxies were misleading because they failed “to disclose that Defendant Wey beneficially owned all of NYGG-Asia’s shares.” (Am. Comp. ¶231) Defendant Kang is alleged to have signed the 2015 Proxies. (Am. Comp. ¶¶229-230)3 3 The Amended Complaint also alleges that the 2015 Proxies were false and misleading because “they omitted material information regarding the fact that Defendant Wey beneficially owned NYGG-Asia’s Company stock and Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 9 of 26 5 The 2015 Proxies solicited votes on eight specific agenda items: (1) to elect five members of the 6D board; (2) to ratify BDO USA, LLP as 6D’s auditor; (3) to amend 6D’s certificate of incorporation to allow the board to amend 6D’s by-laws; (4) to amend 6D’s certificate of incorporation to allow the board to fix the size of the board between 3 to 12 directors; (5) to amend 6D’s certificate of incorporation to eliminate stockholder action by written consent; (6) to amend 6D’s certificate of incorporation to eliminate the shareholders’ right to fill board vacancies; (7) to vote on an advisory resolution to approve executive compensation; and (8) to vote on an advisory basis on the frequency of advisory votes on executive compensation. (See Morrison Dec. Exs. B and C) None of these proposed actions are related to the damages sought in this action. The Alleged Misconduct Does Not Involve The Former Outside Directors Most of the Amended Complaint involves conduct by individuals other than the Former Outside Directors that occurred during time periods that predate the existence of 6D or post-date the Former Outside Directors’ resignations. 6D is a digital marketing company that was formed in 2014 after 6D’s predecessor, Six Dimensions, entered into a reverse capitalization transaction with a Chinese company called CleanTech Innovations, Inc. (“CleanTech”). (Am. Comp. ¶¶159- 167) The Amended Complaint focuses on Wey and his conduct prior to 6D’s existence. Plaintiff alleges that Wey “operated and controlled an extensive criminal conspiracy from 2008 (Footnote 3 cont’d) controlled the Company’s day-to-day operations, and included by reference materially false and misleading financial statements.” (Am. Comp. ¶ 332) However, the Amended Complaint does not identify the specific financial statements that were in the 2015 Proxies or how they were false and misleading. A copy of each of the 2015 Proxies is annexed to the accompanying Morrison Dec. This Court may consider publicly filed disclosure documents in connection with a motion to dismiss. See Lipow v. Net1 UEPS Technologies, Inc., 131 F. Supp. 3d 144, 157 (S.D.N.Y. 2015). Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 10 of 26 6 through 2015.” (Am. Comp. ¶3) The Amended Complaint alleges that Wey, through two financial firms – U.S.-based NYGG and China-based NYGG-Asia – would (i) help Chinese companies become listed on a U.S. exchange via reverse mergers with U.S. shell companies, (ii) acquire for himself and his “nominees” a large portion of the shares of these newly-created public companies, and (iii) manipulate the stock price of these companies through large holdings he purportedly controlled and sold at a profit. (Am. Comp. ¶¶4-6) Plaintiff also focuses on dealings between NASDAQ and CleanTech, all of which pre- date 6D’s existence. (Am. Comp. ¶¶143-158) Plaintiff alleges that NASDAQ inquired about NYGG and CleanTech’s relationship after Barron’s published an article in 2010 about Wey’s and NYGG’s alleged role with a number of Chinese clients traded on the NASDAQ. (Am. Comp. ¶¶142-143) According to Plaintiff, CleanTech and Wey misrepresented Wey’s and NYGG’s involvement with CleanTech. (Am. Comp. ¶¶144, 146) The NASDAQ investigation ultimately led to delisting CleanTech’s stock in late 2010, followed by CleanTech’s appeal of the delisting and litigation instituted by CleanTech against NASDAQ. (Am. Comp. ¶¶ 151-158) Plaintiff then describes how, in 2014, CleanTech merged with a company called Six Dimensions, which led to the creation of 6D, and which left NYGG-Asia, previously a creditor of CleanTech, as 6D’s largest shareholder. (Am. Comp. ¶¶159-167) The defendants, including the Former Outside Directors, are alleged to have: (1) allowed 6D’s 2015 Proxies to misleadingly omit that (a) Wey beneficially owned NYGG-Asia’s stock and (b) Wey controlled 6D’s day-to-day operations (Am. Comp. ¶332); (2) allowed 6D to engage in Wey’s fraudulent scheme and failed to maintain adequate internal controls (Am. Comp. ¶324); and (3) received compensation that was unjust in light of the defendants’ alleged bad faith. (Am. Comp. ¶329) Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 11 of 26 7 ARGUMENT POINT I PLAINTIFF FAILS TO STATE A FEDERAL CLAIM AGAINST THE FORMER OUTSIDE DIRECTORS A. The Pertinent Pleading Standards The well settled 12(b)(6) standard set forth in Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) requires a plaintiff to plead sufficient facts to state a claim. While on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all factual allegations in the complaint are accepted as true, and all reasonable inferences are drawn in the plaintiff’s favor, Littlejohn v. City of N.Y., 795 F.3d 297, 306 (2d Cir. 2015), this does not relieve a plaintiff from its “obligation to provide the grounds of his entitlement to relief [which] requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations omitted). Indeed, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 663 (citation omitted). 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.” Id. Accordingly, factual allegations must “possess enough heft to show that the pleader is entitled to relief.” Twombly, 550 U.S. at 557 (quotations omitted). Also, where, as here, claims are predicated upon information and belief, “such allegations must be ‘accompanied by a statement of the facts upon which the belief is founded.’” Munoz- Nagel v. Guess, Inc., No. 12-CV-1312(ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013). In fact, the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 12 of 26 8 In addition, Fed. R. Civ. P. 9(b) imposes a heightened pleading standard for claims sounding in fraud. Courts require that “‘[t]o satisfy the pleading standard for a misleading statement or omission under Rule 9(b), a complaint must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’” Employees’ Ret. Sys. Of Gov’t of the Virgin Islands v. Blanford, 794 F.3d 297, 305 (2d Cir. 2015). Rule 9(b)’s heightened standards are designed, inter alia, “(1) to provide a defendant with fair notice of the claims against it; and (2) to protect a defendant from harm to its reputation or goodwill by unfounded allegations of fraud.” Marino v. Grupo Mundial Tenedora, S.A., 810 F. Supp. 2d 601, 605 (S.D.N.Y. 2011). Rule 9(b)’s heightened pleading requirements apply to a claim for breach of fiduciary duty that sounds in fraud. Id. at 606; Henneberry v. Sumitomo Corp. of America, 415 F. Supp. 2d 423, 464-65 (S.D.N.Y. 2006). Similarly, Rule 9(b) also applies to a claim brought under Section 14(a) of the Securities Exchange Act and Rule 14a-9, 17 C.F.R § 240.14a-9, promulgated thereunder. See In re Marsh & McLennan Companies, Inc. Secs. Litig., 536 F. Supp. 2d 313, 320 n.9 and n.10 (S.D.N.Y. 2007). Plaintiff must allege specific conduct as to each specific defendant and cannot rely upon the “group pleading” exception to this requirement in the context of a claim for breach of fiduciary duty. See Steinberg v. Sherman, No. 07 Civ. 1001(WHP), 2008 WL 2156726, at *5 (S.D.N.Y. May 8, 2008) (“[A] plaintiff may not rely on group pleading to assert a breach of fiduciary duty claim.”). In addition, the group pleading exception does not apply to outside directors unless it can be demonstrated that they acted as corporate insiders or managed the company’s day-to-day operations. In re Shengdatech, Inc. Sec. Litig., No. 11 Civ. 1918(LGS), Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 13 of 26 9 2014 WL 3928606, at *10 (S.D.N.Y. Aug. 12, 2014) (refusing to allow group pleading exception where plaintiffs did not show that the outside directors took part in the preparation of the public filings or otherwise acted like corporate insiders). Significantly, the outside directors in Shengdatech included the chair of the audit committee and members of the audit, compensation and nominating and corporate governance committees). See also In re Cannavest Corp. Sec. Litig., 307 F. Supp. 3d 222, 242 (S.D.N.Y. 2018) (refusing to apply group pleading exception to outside directors). B. Plaintiff Does Not Allege A Plausible Claim Against The Former Outside Directors The elements for a Section 14(a), 15 U.S.C. § 78n(a), Rule 14a-9, 17 C.F.R. § 240.14a- 9(a) claim are: (1) that the proxy materials contain a false or misleading statement of a material fact or omit to state a material fact necessary in order to make the statement made not false or misleading; (2) that the misstatement or omission of a material fact was the result of knowing, reckless or negligent conduct; and (3) that the proxy solicitation was an essential link in effecting the proposed corporate action. Vides v. Amelio, 265 F. Supp. 2d 273, 276 (S.D.N.Y. 2003) (citation omitted). In addition, plaintiff must allege loss causation, that is a “link between the proxy solicitation and the various allegations of fraud and self-dealing . . . .” Witchko v. Schorsch, 15 Civ. 6043(AKH), 2016 WL 3887289, at *7 (S.D.N.Y. June 9, 2016). Accordingly, “‘[a] Section 14 action based on an alleged material misrepresentation or omission in proxy materials therefore should be sustained only when it challenges a transaction which was the subject of the proxy materials, such as approval of a merger agreement or the election of corporate directors.” Id. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 14 of 26 10 The Amended Complaint’s Section 14(a) claim is based solely on the 2015 Proxies which are attached to the accompanying Morrison Declaration.4 The Amended Complaint alleges that both of the 2015 Proxies were signed by defendant Kang. (Am. Comp. ¶¶229-30) The Amended Complaint alleges that “[t]he 2015 Proxies were misleading because Item 403 of Regulation S-K required the 2015 Proxies to disclose that Defendant Wey beneficially owned all of NYGG- Asia’s shares” of 6D. (Am. Comp. ¶231) The only other allegation about the allegedly false and misleading nature of the 2015 Proxies is that “they omitted material information regarding the fact that Defendant Wey beneficially owned NYGG-Asia’s Company stock and controlled the Company’s day-to-day operations, and included by reference materially false and misleading financial statements.” (Am. Comp. ¶332) The Amended Complaint’s 85 pages contain no allegations regarding the Former Outside Directors’ role with respect to the 2015 Proxies. It is undisputed that none of the Former Outside Directors signed either of the 2015 Proxies. There are no allegations to support a conclusion that any of the Former Outside Directors acted intentionally or recklessly with respect to the 2015 Proxies. Moreover, the Former Outside Directors, as a matter of law, could not have acted negligently by absence of conduct with respect to the 2015 Proxies. See DeAngelis v. Corzine, 17 F. Supp. 3d 270, 280 (S.D.N.Y. 2014) (dismissing negligence claims and holding that independent director defendants “‘can be held liable only if they affirmatively participated in the 4 The 2015 Proxies solicited votes on eight specific agenda items: (1) to elect five members of the 6D board; (2) to ratify BDO USA, LLP as 6D’s auditor; (3) to amend 6D’s certificate of incorporation to allow the board to amend 6D’s by-laws; (4) to amend 6D’s certificate of incorporation to allow the board to fix the size of the board between 3 to 12 directors; (5) to amend 6D’s certificate of incorporation to eliminate stockholder action by written consent; (6) to amend the certificate of incorporation to eliminate the shareholders’ right to fill board vacancies; (7) to vote on an advisory resolution to approve executive compensation; and (8) to vote on an advisory basis on the frequency of advisory votes on executive compensation. See Morrison Dec. Exs. B and C. None of these proposed actions are related to the damages sought in this action. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 15 of 26 11 wrongful conduct at issue; they cannot be held liable for the mere failure to act.’”) (citation omitted). Nor does the Amended Complaint allege loss causation. Plaintiff’s alleged damages, asserted derivatively on behalf of the Company, arise out of (i) the federal securities fraud class action filed against 6D and its management; (ii) the SEC Action; (iii) the Discover Litigation; (iv) the DOJ Indictment; (v) NASDAQ’s halting of trading of 6D shares and (vi) delisting of 6D. (Am. Comp. ¶281) None of these events involve any conduct by the Former Outside Directors. Nor are these events remotely related to the votes solicited by the 2015 Proxies. It is undisputed, and the Amended Complaint acknowledges, that NASDAQ’s decision to halt trading in September 2015 is related to purported misrepresentations made by CleanTech and Defendant Wey that have nothing to do with the 2015 Proxies and certainly nothing to do with the Former Outside Directors. (See Am. Comp. ¶264) (“On September 15, 2015, aware that the grounds cited by CleanTech and Defendant to secure reversal of the NASDAQ’s delisting decision were false, the NASDAQ immediately halted trading in 6D Global’s shares.”). Similarly, NASDAQ’s decision to delist 6D shares on November 20, 2015 has nothing to do with the 2015 Proxies and certainly nothing to do with the Former Outside Directors. (See Am. Comp. ¶¶267, 277-78) (setting forth NASDAQ’s reasons for delisting to include failure to timely file 2016 Q1 10-Q; failure to timely file 2015 10-K and failure to pay NASDAQ’s 2016 annual fee). In addition, none of the alleged omissions in the 2015 Proxies are linked to the achievement of the corporate actions proposed therein. Accordingly, the Amended Complaint cannot allege loss causation to support its Section 14(a) and Rule 14a-9 claim against the Former Outside Directors. See Witchko v. Schorsch, 2016 WL 3887289, at *7 (S.D.N.Y. June 9, 2016) Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 16 of 26 12 (dismissing claim and finding that plaintiffs failed “to show a link between the proxy solicitation and the various allegations of fraud and self-dealing they allege.”); Litwin v. Oceanfreight, Inc., 865 F. Supp. 2d 385, 396 (S.D.N.Y. 2011) (dismissing claim and acknowledging that the Second Circuit requires a plaintiff to “show that ‘the challenged proxy statement ‘was an essential link in the accomplishment of the transaction.’”) (citations omitted). The United States Court of Appeals for the Second Circuit’s recent decision in Puddu v. 6D Global Tech., Inc., No. 17-938-cv, 2018 WL 3688576, at *3 (2d Cir. Aug. 2, 2018) (summary order), which, inter alia, affirmed the Court’s dismissal of 10b-5 claims against defendant Terry McEwen is instructive here.5 The Former Outside Directors are even more attenuated to Mr. Wey’s alleged scheme than Mr. McEwen. Mr. McEwen was a former CleanTech board member as well as a former 6D board member. (Am. Comp. ¶73) Mr. McEwen was chairman of 6D’s audit committee. (Id.) Mr. McEwen was also an officer of 6D, serving as Chief Executive Officer (and Chairman of the Board) from June 11, 2014 until September 2014. (Am. Comp. ¶74) Mr. McEwen gave notice of his resignation from 6D’s board on October 5, 2015 (Am. Comp. ¶73), which was after Mr. Kaufman and Mr. Saxena gave notice of their resignation on September 30, 2015. (Am. Comp. ¶¶70, 78) That this Court dismissed claims against Mr. McEwen and that the Second Circuit affirmed such dismissal additionally support dismissing Plaintiff’s similarly deficient claims against the Former Outside Directors. See also JHW Greentree Capital, L.P. v. Whittier Trust Co., No. 05 Civ. 2985 HB, 2005 WL 3008452, at *6-7 (S.D.N.Y. Nov. 10, 2005) (dismissing securities fraud claim against outside director and holding “‘[a] director [who is a] non- 5 The Second Circuit vacated and remanded the Court’s Order dismissing 10b-5 claims against 6D and its management (defendants Kang (CEO) and Szynkowski (CFO)). Importantly, the operative pleading in the Puddu putative class action does not assert any claims against the Former Outside Directors. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 17 of 26 13 participant in the transaction[] owes no duty to insure that all material, adverse information is conveyed to prospective purchasers of the stock of the corporation on whose board he sits’”) (citing Lanza v. Drexel & Co., 479 F.2d 1277, 1289 (2d Cir. 1973)). C. The Amended Complaint Fails To Satisfy Rule 9(b) The Amended Complaint’s Section 14(a) claim is clearly grounded in alleged fraudulent conduct. (See Am. Comp. ¶334) (“The 2015 Proxies formed an essential link in the accomplishment of the continuation of Defendants’ continued violation of their fiduciary duties in connection with the stock manipulation scheme . . . .”). Accordingly, Plaintiff must plead specific facts to support allegations of the Former Outside Directors’ alleged fraudulent conduct. In re JP Morgan Chase Sec. Litig., 363 F. Supp. 2d 595, 636 (S.D.N.Y. 2005) (dismissing claim and holding “[w]hen plaintiffs assert Section 14(a) claims grounded in alleged fraudulent conduct, they are subject to heightened pleading requirements.”). The Amended Complaint fails to do so. The Amended Complaint contains no specific allegations tying the Former Outside Directors to Defendant Wey’s alleged stock manipulation scheme. The Amended Complaint is also bereft of any allegations of specific conduct by any of the Former Outside Directors in connection with the 2015 Proxies. As set forth above, Plaintiff cannot rely on the group pleading exception to excuse his failure to particularize any conduct by any of the Former Outside Directors. See In re Cannavest Corp. Sec. Litig., 307 F.Supp.3d 222, 242 (S.D.N.Y. 2018) (dismissing claim against director where “Plaintiffs have not pled facts demonstrating that Mackay either played a role in the preparation of the misleading statements, or had direct involvement in the day-to-day management of CannaVest.”). Moreover, the Amended Complaint actually shows that the Former Outside Directors acted properly. The Amended Complaint acknowledges that, as soon as they learned that Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 18 of 26 14 NASDAQ had halted trading based upon alleged misrepresentations that occurred in connection with the predecessor company CleanTech (which predates any involvement by any of the Former Outside Directors), Defendants Kaufman and Saxena resigned from 6D’s board. (Am. Comp. ¶¶264-65) Moreover, the Amended Complaint alleges that when 6D’s auditor announced that it would resign as auditor unless Defendant Kang left 6D’s board, Defendant Hartung urged 6D’s board to remove Kang. (Am. Comp. ¶¶270-72) When Hartung’s motion to remove Kang was not acted upon, Hartung also resigned from the board. (Am. Comp. ¶¶272-74) The sparse amount of allegations in the 85-page pleading that actually mention the Former Outside Directors serve to exonerate rather than implicate the Former Outside Directors with regard to any alleged fraudulent misconduct. See In re China North East Petroleum Holdings Ltd. Sec. Litig., No. 10 Civ. 4577(MCG), 2014 WL 7236914 (S.D.N.Y. Dec. 11, 2014). In China North, Judge Cedarbaum dismissed securities fraud claims against Robert Bruce, an outside director who was chairman of the company’s audit committee. Id. at *1. Mr. Bruce signed the company’s 10-K as chairman of the audit committee. Id. However, when the results of a forensic audit discovered dubious fund transfers and other inconsistencies in the company’s accounting practices, Mr. Bruce urged the company’s board to take additional investigatory steps. Id. When the company’s chairman rejected Mr. Bruce’s recommendation, Bruce resigned. Id. These facts are almost identical to the facts in this case except here none of the Former Outside Directors signed the 2015 Proxies. The China North court found that plaintiff’s allegations “related to Bruce’s failure to police China North’s internal controls and to unearth China North’s allegedly fraudulent transactions.” Id. at *3. Moreover, the court noted that “[a]ccording to the Complaint, Bruce’s recklessness is evidenced by the fact that, while Chairman of the Audit Committee, he ‘allow[ed] the Company to commit such flagrant Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 19 of 26 15 accounting errors on his watch’ and ‘allow[ed] the Company’s internal controls to deteriorate to such a degree that the Company’s CEO was able to pilfer the Company’s coffers . . . .’” Id. at 3. The Court found such allegations deficient to allege scienter and to satisfy Rule 9(b): Finally, ‘in determining whether the pleaded facts give rise to a strong inference of scienter, the court must take into account plausible opposing inferences. For an inference of scienter to be strong, a reasonable person [must] deem [it] cogent and at least as compelling as any opposing inference one could draw from the facts alleged.’ The majority of Bruce’s behavior as chronicled in the Complaint not only fails to establish scienter, but actually exonerates him from any allegations of wrongdoing. Id. POINT II PLAINTIFF’S REMAINING COMMON LAW CLAIMS ARE MERITLESS AND, IN ANY EVENT, SHOULD BE BROUGHT IN DELAWARE A. The Fiduciary Duty Claim Fails As A Matter Of Law Notwithstanding the Amended Complaint’s acknowledgment that the Former Outside Directors resigned from 6D’s board when it became apparent that they were not receiving information and could not effect a change in management, Plaintiff alleges, without specific facts, that Messrs. Kaufman, Saxena and Hartung breached their fiduciary duties to 6D’s shareholders by “caus[ing] the Company to improperly engage in the fraudulent scheme and fail[ing] to maintain adequate internal controls, even though such facts were made available to them.” (Am. Comp. ¶324) This vague and conclusory claim is legally deficient for several reasons. 1. The Delaware Chancery Court is the sole and exclusive forum Article XI of 6D’s publicly filed by-laws is called “FORUM FOR ADJUDICATION OF DISPUTES[,]” and it clearly provides that any derivative action on behalf of 6D and any claim for breach of fiduciary duty against 6D’s directors must be brought in the Delaware Chancery Court: Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 20 of 26 16 . . . the court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s shareholders . . . . Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section. (See 6D’s By-laws annexed to the Morrison Dec. at Exhibit D) It is well settled that the provisions of a company’s by-laws and certificate of incorporation are binding on the shareholders. See M+J Savitt, Inc. v. Savitt, No. 08 Civ. 8535(DLC), 2009 WL 691278, at *9 (S.D.N.Y. Mar. 17, 2009) (“A company’s certificate of incorporation and by-laws in substance are a contract between the corporation and its shareholders.”). Delaware courts routinely enforce forum selection clauses found in the by-laws of Delaware corporations such as 6D. See Boilermakers Local 154 Retirement Fund v. Chevron Corp., 73 A.3d 934, 940 (Del. Ch. 2013). In the Second Circuit, a forum selection clause will be enforced if the moving party can demonstrate that (1) the clause was reasonably communicated; (2) is mandatory; and (3) encompasses plaintiff’s claims. Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007); Pence v. Gee Group, Inc., 236 F. Supp. 3d 843 (S.D.N.Y. 2017). Here, it cannot be disputed that the forum selection clause was reasonably communicated to the shareholders, is mandatory (employing the word “shall”) and explicitly covers Plaintiff’s derivative claims and claims for breach of fiduciary duty. Accordingly, 6D’s forum selection clause is enforceable, and Plaintiff’s claims should be dismissed because the shareholders agreed to an exclusive forum in the Delaware Chancery Court.6 6 The unjust enrichment claim against the Former Outside Directors is also subject to the exclusive forum provision because it is brought as a derivative claim. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 21 of 26 17 2. Plaintiff fails to plead a non-exculpated claim Article IX of 6D’s publicly filed certificate of incorporation explicitly exculpates board members in connection with claims for breach of fiduciary duty: Each person who serves or has served as a director shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director: (i) for any breach of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) for unlawful payment of dividend or unlawful stock purchase or redemption . . . ; or (iv) for any transaction from which the director derived an improper personal benefit. (See 6D’s certificate of incorporation attached to the Morrison Dec. as Exhibit E) Exculpation clauses are recognized and enforced under both Delaware and New York law. See N.Y. Bus. Corp. L. §402(b) (McKinney 2018); 8 Del. C. §102(b)(7). The gravamen of the Amended Complaint’s fiduciary duty claim against the Former Outside Directors is an alleged failure by all defendants to police Wey’s alleged fraudulent scheme. This clearly amounts to a claim of lack of due care which is exculpated. Plaintiff tries to plead around 6D’s exculpation provision by insisting, in the most vague and general terms, that all of the defendants -- lumped together -- acted “intentionally,” “recklessly,” “negligently” and “willfully.” (Am. Comp. ¶¶318-325) Yet, the Amended Complaint is bereft of any allegation that attributes specific conduct to any of the Former Outside Directors. See Steinberg v. Sherman, 2008 WL 2156726, at *5 (S.D.N.Y. May 8, 2008) (dismissing fiduciary duty claim and holding that “a plaintiff may not rely on group pleading to assert a breach of fiduciary duty claim”). It is well settled law in Delaware that merely alleging a director’s membership on a company’s audit committee is insufficient to plead around an exculpation provision. See Wood v. Baum, 953 A.2d 136, 142-43 (Del. 2008) (Supreme Court of Delaware upheld dismissal of claim and held that membership on an audit committee is not a Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 22 of 26 18 sufficient basis to infer the requisite scienter for a non-exculpated claim). See also Nguyen v. Barrett, C.A. No. 11511-VCG, 2016 WL 5404095, at *5 (Del. Ch. Sept. 28, 2016) (“Under Delaware law, directors are presumed to be independent, disinterested and faithful fiduciaries” and “Plaintiff does bear the burden to allege facts to rebut the presumption afforded to directors.”). The Amended Complaint merely alleges that all of the defendants allegedly “fail[ed] to maintain internal controls” that allowed “Defendant Wey to improperly engage in the fraudulent scheme.” (Am. Comp. ¶324) At best, this is an allegation of breach of due care which is exculpated by 6D’s certificate of incorporation. See In re Ampal-American Israel Corp., 543 B.R. 464, 477 (Bankr. S.D.N.Y. 2016) (dismissing fiduciary duty claim on basis of exculpation where plaintiff’s allegations of the independent directors’ failure to inform themselves, “without more, does not constitute bad faith”). There are no allegations of specific facts to show that the Former Outside Directors were conflicted or motivated by self-interest. See id. at n.16 (dismissing fiduciary duty claim on basis of exculpation where, inter alia, “[t]he Complaint does not allege that the Independent Directors received any personal benefit from any of the transactions at issue or that they were controlled by MNF or Maiman, who did”). There are no allegations of specific facts to show that the Former Outside Directors acted in bad faith, derived any personal benefit or were controlled by Wey and/or Kang. See In re Paramount Gold and Silver Corp. Stockholders Litig., C.A. No. 10499-CB, 2017 WL 1372659, at *14 (Del. Ch. Apr. 13, 2017) (dismissing fiduciary duty claim on basis of exculpation where “allegations of bad faith are wholly conclusory and insufficient to support a non-exculpated claim for breach of fiduciary duty”). Accordingly, the duty of loyalty is not implicated and a duty of care claim is Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 23 of 26 19 exculpated. Id. (“‘[T]here is a vast difference between an inadequate or flawed effort to carry out fiduciary duties and a conscious disregard for those duties.’”) (citation omitted). Nor can Plaintiff rely upon its conclusory disclosure allegations relating to the 2015 Proxies to support a non-exculpated claim for breach of fiduciary duty against the Former Outside Directors. See In re NYMEX Shareholder Litig., C.A. Nos. 3621-VCN, 3835-VCN, 2009 WL 3206051, at *12 (Del. Ch. Sept. 30, 2009) (“‘A mere conclusory allegation that the alleged disclosure violations also constitute a violation of the duty of loyalty is not sufficient to survive a motion to dismiss, particularly in light of the holding that the Complaint fails to otherwise state a non-exculpated claim against the Director Defendants for breach of fiduciary duty.’” (citation omitted)); In re Alloy, Inc., CA. No. 5626-VCP, 2011 WL 4863716, 2011 WL 4863716, at *14 (Del. Ch. Oct. 13, 2011). 3. Plaintiff cannot overcome the business judgment rule The Amended Complaint also fails to overcome the business judgment rule which protects directors from claims that seek to second guess their decisions made in the exercise of their business judgment. See Solomon v. Armstrong, 747 A.2d 1098, 1111-12 (Del Ch. 1999) (dismissing claim and holding that the burden of pleading and proof is on the party challenging a corporate decision to rebut the presumption that the directors “acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company”). Under Delaware law, the business judgment rule compels dismissal unless plaintiffs can allege specific facts to show that the Former Outside Defendants acted in bad faith. See In re BJ’s Wholesale Club, Inc., CA. No. 6623-VCN, 2013 WL 396202, at *13 (S.D.N.Y. Jan. 21, 2013) (dismissing fiduciary duty claim and holding “[e]xcept for conclusory allegations, however, the Complaint ‘pleads nothing reasonably supportive of the proposition that any omission from the merger proxy statement resulted from disloyalty (including bad faith) on the Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 24 of 26 20 part of the [D]efendant [D]irectors”). Plaintiff has failed to allege any specific facts that show that the Former Outside Directors had any conflicts or acted in bad faith. For this additional reason, the breach of fiduciary duty claim against them fails as a matter of law. B. The Unjust Enrichment Claim Fails As A Matter Of Law Under New York law, the elements for a cause of action for unjust enrichment are: (1) the defendant was enriched; (2) at plaintiff’s expense; and (3) it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. GFRE, Inc. v. U.S. Bank, N.A., 130 A.D.3d 569, 570 (2d Dep’t 2015). The Amended Complaint is devoid of allegations that the Former Outside Directors received any “enrichment” outside of their normal director compensation. Under New York law, a derivative claim against the outside directors for unjust enrichment “cannot be maintained where, as here, the ‘only enrichment alleged by plaintiffs consists of defendants’ salaries, benefits, and unspecified bonuses.’” Steinberg v. Dimon, No. 14 Civ. 688(PAC), 2014 WL 3512848, at *4 (S.D.N.Y. July 16, 2014) (quoting In re Pfizer Inc. S’holder Derivative Litig., 722 F. Supp. 2d 453, 465 (S.D.N.Y. 2010). Accordingly, the unjust enrichment claim against the Former Outside Directors fails as a matter of law. Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 25 of 26 21 CONCLUSION For all the foregoing reasons, the Former Outside Directors respectfully request the Court to dismiss, with prejudice, the claims asserted against them and to award the Former Outside Directors such further relief as the Court deems proper. Dated: New York, New York. August 23, 2018 MANATT, PHELPS & PHILLIPS, LLP By: s/ Andrew L. Morrison Andrew L. Morrison Samantha J. Katze Danielle C. Newman 7 Times Square New York, NY 10036 Tel.: (212) 790-4500 Fax: (212) 790-4545 amorrison@manatt.com skatze@manatt.com dnewman@manatt.com Attorneys for Defendants Adam Hartung, David S. Kaufman and Anubhav Saxena Case 1:15-cv-09691-RWS Document 80 Filed 08/23/18 Page 26 of 26