Case 2:21-cv-06240-PA-JEM Document 79-2 Filed 06/16/22 Page 1 of 4 Page ID #:2054
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`KEVIN P. MUCK (SBN 120918)
`kevin.muck@wilmerhale.com
`SUSAN S. MUCK (SBN 126930)
`susan.muck@wilmerhale.com
`JESSICA L. LEWIS (SBN 302467)
`jessica.lewis@wilmerhale.com
`WILMER CUTLER PICKERING HALE
` AND DORR LLP
`One Front Street, Suite 3500
`San Francisco, CA 94111
`Telephone: (628) 235-1002
`Facsimile: (628) 235-1001
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`Attorneys for Defendants Activision Blizzard,
`Inc., Robert A. Kotick, Dennis Durkin, Armin
`Zerza and Brian Kelly
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`GARY CHENG, Individually and on
`Behalf of All Others Similarly Situated,
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` Plaintiff,
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` v.
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`Case No. 2:21-cv-06240-PA-JEM
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`DECLARATION OF KEVIN P.
`MUCK IN SUPPORT OF
`DEFENDANTS’ MOTION TO
`DISMISS SECOND AMENDED
`ACTIVISION BLIZZARD, INC.,
`CLASS ACTION COMPLAINT
`ROBERT A. KOTICK, DENNIS
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`DURKIN, SPENCER NEUMANN,
`Date: August 15, 2022
`ARMIN ZERZA and BRIAN KELLY,
`Time: 1:30 p.m.
`Place: Courtroom 9A, First Street
` Courthouse
`Judge: The Honorable Percy Anderson
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` Defendants.
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`DECL. OF KEVIN P. MUCK
`ISO MOTION TO DISMISS
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`No. 2:21-CV-06240-PA-JEM
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`Case 2:21-cv-06240-PA-JEM Document 79-2 Filed 06/16/22 Page 2 of 4 Page ID #:2055
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` I, Kevin P. Muck, declare as follows:
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`1.
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`I am an attorney admitted to practice before this Court, a member of
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`the bar of the State of California, and a partner in the law firm of Wilmer Cutler
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`Pickering Hale and Dorr LLP, counsel for Defendants Activision Blizzard, Inc.
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`(“Activision” or the “Company”), Robert A. Kotick, Dennis Durkin, Armin Zerza,
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`and Brian Kelly in this action. I submit this Declaration in support of the motion to
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`dismiss the Second Amended Class Action Complaint for Violations of the Federal
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`Securities Laws, filed jointly by my clients and a separately represented co-
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`defendant, Spencer Neumann. I have personal knowledge of the matters set forth in
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`this declaration and, if called upon, could testify competently thereto.
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`2.
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`Attached as Exhibit A is a true and correct copy of a press release
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`issued by Microsoft Corporation and Activision on January 18, 2022, publicly
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`available on Activision’s website at https://investor.activision.com/node/34941/pdf.
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`The copy attached as Exhibit A was obtained from Activision’s website on January
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`25, 2022.
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`3.
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`Attached as Exhibit B is a true and correct copy of Activision’s Form
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`8-K, filed with the United States Securities and Exchange Commission (”SEC”) on
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`April 28, 2022.
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`4.
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`Attached as Exhibit C is a chart reflecting, among other things, daily
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`closing prices for shares of Activision common stock for the alleged class period in
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`this action (November 8, 2018 through November 16, 2021), as obtained from
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`Bloomberg. The data contained in the chart attached as Exhibit C were obtained
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`from Bloomberg on June 15, 2022.
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`5.
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`Attached as Exhibit D is a true and correct copy of Robert A. Kotick’s
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`letter to all employees, dated July 27, 2021, publicly available on the Company’s
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`website at https://investor.activision.com/node/34326/pdf. The copy attached as
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`Exhibit D was obtained from Activision’s website on January 25, 2022.
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`6.
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`Attached as Exhibit E is a true and correct copy of Activision’s Notice
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`No. 2:21-CV-06240-PA-JEM
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`DECL. OF KEVIN P. MUCK
`ISO MOTION TO DISMISS
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`Case 2:21-cv-06240-PA-JEM Document 79-2 Filed 06/16/22 Page 3 of 4 Page ID #:2056
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`of Motion and Motion for Summary Adjudication filed on May 6, 2022, in the
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`action captioned Department of Fair Employment and Housing v. Activision
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`Blizzard, Inc. et al., No. 21STCV26571 (California Superior Court, County of Los
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`Angeles).
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`7.
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`Attached as Exhibit F is a true and correct copy of the “Order Re
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`Hearing on Consent Decree,” entered by the Court on March 22, 2022 in the action
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`captioned U.S. Equal Employment Opportunity Commission v. Activision Blizzard,
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`Inc., et al., No. 2:21-CV-07682-DSF-JEM (U.S. District Court, C.D. Cal.) [ECF
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`No. 76].
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`8.
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`Attached as Exhibit G is a true and correct copy of the United States
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`Equal Employment Opportunity Commission’s (“EEOC”) “Commissioner Charges
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`and Directed Investigations” webpage, publicly available on the EEOC’s website at
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`https://www.eeoc.gov/commissioner-charges-and-directed-investigations. The
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`copy attached as Exhibit G was obtained from the EEOC’s website on June 9, 2022.
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`9.
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`Attached as Exhibit H is a true and correct copy of the California
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`Department of Fair Employment and Housing’s (“DFEH”) “Complaint Process”
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`webpage, publicly available on the DFEH’s website at
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`https://www.dfeh.ca.gov/complaintprocess/. The copy attached as Exhibit H was
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`obtained from the DFEH’s website on June 9, 2022.
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`10. Attached as Exhibit I is a true and correct copy of a redline
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`comparison of Plaintiffs’ First Amended Complaint filed on December 3, 2021
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`[ECF No. 39], and Plaintiffs’ Second Amended Complaint filed on May 18, 2022
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`[ECF No. 78], created by personnel at my law firm using Litera Compare and
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`Microsoft Word software. Generally, text appearing in blue represents additions to
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`the Second Amended Complaint, text appearing in red represents deletions, and text
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`appearing in green represents text that has been moved.
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`11. On June 3, 2022, counsel for all parties participated in a teleconference
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`pursuant to Local Rule 7-3. The participants in that conference were: Brian
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`No. 2:21-CV-06240-PA-JEM
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`DECL. OF KEVIN P. MUCK
`ISO MOTION TO DISMISS
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`Case 2:21-cv-06240-PA-JEM Document 79-2 Filed 06/16/22 Page 4 of 4 Page ID #:2057
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`Alexander of The Rosen Law Firm, P.A., counsel for Plaintiffs; Craig Varnen of
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`Gibson, Dunn & Crutcher LLP, counsel for defendant Spencer Neumann; and
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`myself and my colleague, Jessica Lewis, counsel for Defendants Activision, Mr.
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`Kotick, Mr. Durkin, Mr. Zerza, and Mr. Kelly. Both I and Mr. Neumann’s counsel
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`explained the substance and specific bases for our respective clients’ contemplated
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`motion to dismiss and why we believe the Second Amended Complaint does not
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`state a claim against any of the Defendants, including the failure to allege falsity,
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`scienter, or loss causation in accordance with applicable legal standards and the
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`Court’s prior ruling dismissing the First Amended Complaint in this action.
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`Plaintiffs’ counsel disagreed, and we were not able to reach a resolution that would
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`eliminate the necessity of a hearing.
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`I declare under penalty of perjury under the laws of the United States of
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`America that the foregoing is true and correct. Executed on June 16, 2022 at San
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`Francisco, California.
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` /s/ Kevin P. Muck
` Kevin P. Muck
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`DECL. OF KEVIN P. MUCK
`ISO MOTION TO DISMISS
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