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Justin F. Lazard, Et Al. V. Facebook, Inc., Et Al. 12-CV-04252

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Justin F. Lazard, Et Al. V. Facebook, Inc., Et Al. 12-CV-04252 Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 1 of 25 JUDGE ENGELMAYER UNITED STATES DISTRICT COURT 1 2 CV SOUTHERN DISTRICT OF NEW YORK 4 5 x JUSTIN F. LAZARD, On Behalf of Himself and All Others Similarly Situated, Case No. Plaintiff, CLASS ACTION - against - COMPLAINT FOR VIOLATION OF SECTIONS 11, FACEBOOK, INC., MARK ZUCKERBERG, 12 and 15 OF THE SECURITIES DAVID A. EBERSMAN, DAVID M. SPILLANE,: ACT OF 1933 MARC L. ANDREESSEN, ERSKINE B. BOWLES, JAMES W. BREYER, DONALD E. DEMAND FOR JURY TRIAL GRAHAM, REED HASTINGS, PETER A. THIEL,: MORGAN STANLEY & CO. LLC, J.P. MORGAN SECURITIES LLC, GOLDMAN, SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BARCLAYS CAPITAL INC., ALLEN & COMPANY LLC, CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES: (USA) LLC, DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS, LLC, WELLS \ FARGO SECURITIES, LLC, BLAYLOCK ROBERT VAN LLC, BMO CAPITAL MARKETS: CORP., C.L. KING & ASSOCIATES, INC., CABRERA CAPITAL MARKETS, LLC, CASTLEOAK SECURITIES, L.P., COWEN AND COMPANY, LLC., E*TRADE SECURITIES LLC, ITAtJ BBA USA SECURITIES, INC., LAZARD CAPITAL MARKETS LLC, LEBENTHAL & CO., LLC, LOOP CAPITAL MARKETS LLC, M.R. BEAL & COMPANY, MACQUARIE CAPITAL (USA) INC., MURIEL SIEBERT & CO., INC., OPPENHEIMER & CO., INC., PACIFIC CREST SECURITIES LLC, PIPER JAFFRAY & CO., RAYMOND JAMES & ASSOCIATES, INC., SAMUEL A. RAMIREZ & COMPANY, INC., STIFEL, NICOLAUS & COMPANY, INCORPORATED, THE WILLIAMS CAPITAL GROUP, L.P., and WILLIAM BLAIR & COMPANY, L.L.C., Defendants. x Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 2 of 25 Plaintiff alleges the following based upon the investigation of counsel, Hach Rose Schirripa & Cheverie LLP and the Law Office of Jay Saltzman, P.C., which included a review of United States Securities and Exchange Commission ("SEC") filings by Facebook, Inc. ("Facebook"), as well as regulatory filings and reports, ratings agency reports and advisories about Facebook, press releases and other public statements issued by the ratings agencies about Facebook, and their own internal investigation. Plaintiff believes that substantial additional evidentiary support will exist for the allegations set forth herein after reasonable opportunity for discovery. The claims asserted herein do not sound in or arise from allegations of fraud. NATURE OF THE ACTION 1. This is a class action brought by Justin F. Lazard alleging violations of Sections 11, 12 and 15 of the Securities Act of 1933, 15 U.S.C. §77a et seq. ("Securities Act"), on behalf of persons and/or entities who purchased or otherwise acquired the common stock of Facebook pursuant and/or traceable to the Company's initial public offering (the "IPO" or the "Offering"). 2. Facebook shares were issued pursuant to a common Registration Statement filed with the Securities Exchange Commission on or about May 16, 2012 (the "Registration Statement"). The Offering also occurred in this venue. The Underwriters of the Offering were defendants Morgan Stanley & Co. LLC ("Morgan Stanley"), J.P. Morgan Securities LLC ("JP Morgan"), Goldman, Sachs & Co. ("Goldman Sachs"), Merrill Lynch, Pierce, Fenner, & Smith Incorporated ("Merrill Lynch"), Barclays Capital Inc. ("Barclays"), Allen & Company LLC ("Allen"), Citigroup Global Markets Inc. ("Citigroup"), Credit Suisse Securities (USA) LLC ("CSS"), Deutsche Bank Securities Inc. ("DBS"), RBC Capital Markets, LLC ("RBC"), Wells Fargo Securities, LLC ("Wells Fargo"), Blaylock Robert Van LLC ("Blaylock"), BMO Capital Markets Corp. ("BMO"), C.L. King & Associates, Inc. ("C.L. King"), Cabrera Capital Markets, oil Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 3 of 25 LLC ("Cabrera"), CastleOak Securities, L.P. ("CastleOak"), Cowen and Company, LLC. ("Cowen"), E*TRADE Securities LLC ("E*TRADE"), Itaü BBA USA Securities, Inc. ("Itai"), Lazard Capital Markets LLC ("Lazard"), Lebenthal & Co., LLC ("Lebenthal"), Loop Capital Markets LLC ("Loop"), M.R. Beal & Company ("M.R. Beal"), Macquarie Capital (USA) Inc. ("Macquarie"), Muriel Siebert & Co., Inc. ("Muriel Siebert"), Oppenheimer & Co. Inc. ("Oppenheimer"), Pacific Crest Securities LLC ("PCS"), Piper Jaffray & Co. ("Piper Jaffray"), Raymond James & Associates, Inc. ("Raymond James"), Samuel A. Ramirez & Company, Inc. ("Ramirez"), Stifel, Nicolaus & Company, Incorporated ("Stifel Nicolaus"), The Williams Capital Group, L.P. ("Williams"), and William Blair & Company, L.L.C. ("William Blair") (collectively the "Underwriters" or "Underwriter Defendants"). Each Underwriter was obligated to conduct meaningful due diligence to ensure that the Registration Statement contained no material misstatements and omissions including as related to the stated manner in which the mortgages had been originated. The Underwriters received massive fees for their work in connection with the Offering. Based on, inter alia, the Underwriters' due diligence and the representations in the Registration Statement relating to the underwriting. At the time of the Offering, Facebook shares were $38.00 per share. JURISDICTION AND VENUE 3. The claims asserted herein arise under and pursuant to Sections 11, 12(a)(2), and 15 of the Securities Act, 15 U.S.C. §§ 77k, 771(a)(2) and 77o. 4. This Court has jurisdiction over the subject matter of this action pursuant to Section 22 of the Securities Act, 15 U.S.C. § 77v and 28 U.S.C. § 1331. 5. Venue is properly laid in this District pursuant to § 22 of Securities Act and 28 U.S.C. § 1391(b) and (c). The acts and conduct complained of herein occurred in substantial part 3 Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 4 of 25 in this District and the Underwriter Defendants maintain their principal places of business in this District. 6. In connection with the acts and conduct alleged in this Complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including the mails and telephonic communications and the facilities of the NASDAQ National Securities Market ("NASDAQ"). PARTIES 7. Plaintiff, Justin F. Lazard, purchased pursuant to the Registration Statement and Prospectus which contained material misstatements of fact and omitted facts necessary to make the facts stated therein not misleading. Plaintiff relied on the misstatements in the Prospectus and has suffered damages pursuant to Sections 11 and 12 of the Securities Act. 8. Defendant Facebook is a Delaware corporation with its principal executive offices located at 1601 Willow Road, Menlo Park, California 94025. 9. Defendant Mark Zuckerberg ("Zuckerberg") was, at all times relevant to this complaint, Chairman and Chief Executive Officer ("CEO") of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 10. Defendant David A. Ebersman ("Ebersman") was, at all times relevant to this complaint, Chief Financial Officer ("CFO") of Facebook and signed or authorized the signing of the Company's Registration filed with the SEC. 11. Defendant David M. Spillane ("Spillane") was, at all times relevant to this complaint, Director of Accounting for Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 4 Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 5 of 25 12. Defendant Marc L. Andreessen ("Andreessen") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 13. Defendant Erskine B. Bowles ("Bowles") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 14. Defendant James W. Breyer ("Breyer") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 15. Defendant Donald E. Graham ("Graham") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 16. Defendant Reed Hastings ("Hastings") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 17. Defendant Peter A. Thiel ("Thiel") was, at all times relevant to this complaint, a director of Facebook and signed or authorized the signing of the Company's Registration Statement filed with the SEC. 18. Defendant Zuckerberg, Ebersman, Spillane, Andreessen, Bowles, Breyer, Graham, Hastings, and Thiel, are collectively referred to hereinafter as the "Individual Defendants." The Individual Defendants, because of their positions with Facebook, possessed the power and authority to control the contents of Facebook's submissions to the SEC and the market, and participated in the drafting and editing of the Prospectus. The Individual Defendants Ii Case 1:12-cv-04252-PAE Document 1 Filed 05/30/12 Page 6 of 25 all conducted business and had business residences at 1601 Willow Road, Menlo Park, California 94025. 19. The Individual Defendants, as officers and/or directors each had a duty to promptly disseminate accurate and truthful information with respect to Facebook, and to correct any previously issued statements issued by, or on behalf of the Facebook that had become materially misleading. The Individual Defendants' misrepresentations and omissions in the Prospectus violated these specific requirements and obligations. The Individual Defendants were
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