MGM Mirage Securities Litigation 09-CV-01558-First Amended
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Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 1 of 92 KESSLER TOPAZ NIX PATTERSON & ROACH, LLP MELTZER & CHECK, LLP BRADLEY E. BECKWORTH (Pro Hac Vice) RAMZI ABADOU (Pro Hac Vice) JEFFREY J. ANGELOVICH (Pro Hac Vice) STACEY M. KAPLAN (Pro Hac Vice) SUSAN WHATLEY (Pro Hac Vice) ERIK D. PETERSON (Pro Hac Vice) BRAD E. SEIDEL (Pro Hac Vice) 580 California Street, Suite 1750 LISA P. BALDWIN (Pro Hac Vice) San Francisco, CA 94104 205 Linda Drive Tel: 415/400-3000 Daingerfield, TX 75638 Fax: 415/400-3001 Tel.: 903/645-7333 Fax: 903/645-4415 ROBBINS GELLER RUDMAN & DOWD LLP ARTHUR C. LEAHY (Pro Hac Vice) BRIAN O. O’MARA (SBN 8214) RYAN A. LLORENS (Pro Hac Vice) 655 West Broadway, Suite 1900 San Diego, CA 92101 Tel.: 619/231-1058 Fax: 619/231-7423 Lead Counsel for Plaintiffs [Additional counsel appear on signature page.] UNITED STATES DISTRICT COURT DISTRICT OF NEVADA In re MGM MIRAGE SECURITIES No. 2:09-cv-01558-GMN-VCF LITIGATION CLASS ACTION This Document Relates To: FIRST AMENDED COMPLAINT FOR VIOLATIONS OF FEDERAL SECURITIES ALL ACTIONS. LAWS 699690_1 Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 2 of 92 Lead Plaintiffs, Arkansas Teacher Retirement System (“Arkansas Teacher”), Philadelphia Board of Pensions and Retirement (“Philadelphia”), Luzerne County Retirement System (“Luzerne”) and Stichting Pensioenfonds Metaal en Techniek (“PMT”) (collectively “Lead Plaintiffs” or “plaintiffs”) bring this securities fraud class action pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) against defendants MGM Mirage (now known as MGM Resorts International) (“MGM” or the “Company”), J. Terrence Lanni (“Lanni”), James J. Murren (“Murren”), Daniel J. D’Arrigo (“D’Arrigo”) and Robert C. Baldwin (“Baldwin”) (collectively, “Defendants”), on behalf of themselves and all persons and entities who purchased or otherwise acquired the publicly traded securities of MGM between August 2, 2007 and March 5, 2009, inclusive (the “Class Period”). Lead Plaintiffs’ allegations are based upon the investigation conducted by Lead Plaintiffs’ counsel, which included a review of United States Securities and Exchange Commission (“SEC”) filings made by MGM, statements by former employees of MGM and other third parties, as well as governmental and regulatory filings and reports, securities analysts’ reports and advisories about the Company, press releases and other public statements issued by the Company, and other public media reports and legal documents about the Company. Lead Plaintiffs’ counsel believe that substantial additional evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. INTRODUCTION AND SUMMARY OF THE ACTION 1. In November 2004, MGM announced an ambitious plan to build CityCenter, the largest privately developed construction project in the western hemisphere. MGM touted CityCenter as a spectacular multi-billion dollar “city within a city,” consisting of numerous high rises including a 4,000 room luxury hotel and casino, several 400-room, non-gaming hotels, 1,650 units of luxury condominiums (later increased to 2,650 units), and 550,000 square feet of retail, dining and - 1 - 699690_1 Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 3 of 92 entertainment space. MGM later described CityCenter as a “luxury urban metropolis defined by its dazzling vertical architecture.” The original construction budget for CityCenter was estimated to be $4 billion and it was scheduled to open in 2010. By the time construction commenced on CityCenter in 2006, the construction estimate for CityCenter had risen to $7 billion, excluding pre-opening and land costs. By April 2007, MGM announced another increase in the construction budget for CityCenter, to $7.4 billion (excluding land costs and pre-opening expenses), while also announcing that the scope of the project had increased by 670,000 square feet. And, by the end of the Class Period, CityCenter would prove much more costly to MGM – and its shareholders – than ever disclosed by Defendants. In fact, MGM’s crown jewel project would prove to be a virtual black hole, bringing the Company to the brink of bankruptcy and causing its investors to suffer massive losses. 2. Not surprisingly, CityCenter’s massive, multi-billion dollar development cost was highly material to MGM’s investors because (i) MGM was already carrying over 10 billion dollars of debt on its balance sheet; and (ii) MGM touted the development as “transformational” for MGM and its prospects. While CityCenter’s development and prospects may have seemed “dazzling” in February 2006, by the start of the Class Period, on August 2, 2007, Defendants were caught in a bind – either continue to misleadingly tout CityCenter or admit that MGM’s plan for a “city within a city” was quickly crumbling due to skyrocketing costs and an unprecedented seizure in the world credit markets. Defendants chose the former. 3. By the start of the Class Period in August 2007, the credit crisis was rapidly gaining momentum. Capital markets had contracted and, ultimately, would come close to a complete standstill. Tight credit would have been material to MGM’s investors at any time because of its effect on MGM’s ability to obtain financing. However, the credit crisis was of even greater - 2 - 699690_1 Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 4 of 92 importance to MGM during the Class Period because MGM had embarked on a path that would ultimately require it to spend over $9 billion to build CityCenter. MGM’s ability to fund and complete CityCenter was equally important to Defendants. Indeed, unbeknownst to MGM’s investors, the Company conducted internal risk assessments that ranked the CityCenter project as the number one risk facing the Company. 4. Defendants initially responded to concerns about the possible impact of the credit crisis by claiming that MGM was doing well financially, had the ability to raise capital from many sources unaffected by the crisis, and that lending institutions simply “loved” Defendants because they were “good guys.” In the fall of 2007, MGM announced that it had entered into a joint venture with Dubai World to fund the completion of CityCenter. Defendants claimed that Dubai World was like a personal bank for MGM and that the alliance had “evaporate[d]” any concerns about MGM’s ability to fund and complete the project. 5. In reality, however, from the inception of the Class Period, MGM was in a precarious financial position that grew more severe with every passing day. In addition to the increasingly negative impact the credit crisis was having on MGM, the CityCenter project was also spiraling out of control. At the beginning of the Class Period, Defendants publicly announced a $7.4 billion estimated cost for completion of the CityCenter project. Defendants’ reported cost of completion was intentionally misleading. In addition, Defendants never finalized design plans for the project. Instead, Defendants changed the design plans and material lists for CityCenter on an almost daily basis during the Class Period. Moreover, MGM took the construction estimates it received for the project and intentionally and unreasonably reduced them by at least 20%. Further, MGM took those understated estimates and then improperly slashed them by hundreds of millions of dollars more. That is, MGM’s publicly announced estimates for the CityCenter project were knowingly - 3 - 699690_1 Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 5 of 92 understated by at least 20% of the actual estimate provided to Defendants, and then improperly slashed by hundreds of millions of dollars more. Defendants also knew, but failed to disclose, that the project was riddled with construction defects and rising costs that grew more severe as the Class Period progressed. 6. For example, by at least the end of 2007 or the beginning of 2008, Defendants were aware of substantial defects in several phases of CityCenter. By July 2008, Defendants knew of dangerous structural defects in the Harmon Hotel (the “Harmon”) building at CityCenter and had received over a dozen citations from county inspectors. These defects were so severe that, after the Class Period, Defendants announced that they planned to demolish the entire Harmon structure. Matters got so bad for MGM that it came within a day of filing for bankruptcy protection during the Class Period. Numerous MGM employees worked around the clock – sleeping on the floor in camping gear – to prepare the Company for the filing. Although Defendants were fully aware of all of these issues at all relevant times, they hid the truth from investors. 7. Had Defendants chosen to disclose CityCenter’s problems during the Class Period, investors and lenders would have likely abandoned the Company in droves, adding further pressure to the Company’s already stressed liquidity position. So, instead of telling the truth, Defendants misled the market about MGM’s ability to timely complete and finance CityCenter by repeatedly representing, among other things, that the Company was “uniquely positioned” to withstand the credit crisis that began in July 2007 and intensified throughout 2008 and 2009. 8. When the truth was finally revealed, MGM’s stock price plummeted, investors were badly damaged, and, like Lead Plaintiffs, MGM’s joint venture partner, Dubai World, filed suit against MGM claiming, among other things, that Defendants had grossly underestimated the cost to complete CityCenter and overstated MGM’s available financing, ability to obtain additional - 4 - 699690_1 Case 2:09-cv-01558-GMN -VCF Document 152 Filed 04/17/12 Page 6 of 92 financing, and revenues, accusing the Company of making “misrepresentations” and exhibiting a lack of candor. Dubai World’s complaint confirmed that, during the Class Period, MGM made “misrepresentations and [exhibited a] lack of candor regarding its financial well-being ” and misrepresented the accuracy of CityCenter’s construction budget.