The opinion of the court was delivered by: Phyllis Hamilton, District Judge.
ORDER RE MOTIONS TO DISMISS
Before the court are defendants' motions to dismiss the consolidated shareholder derivative complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and alternative motions to stay the action in favor of an action presently pending in the Superior Court of California, County of Santa Clara. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.
This is a shareholders' derivative action suit brought for the benefit of nominal defendant Sagent Technology, Inc. ("Sagent") against certain of Sagent's current and former directors and officers ("the individual defendants"). Plaintiffs allege insider trading and accounting irregularities, which they claim necessitated a restatement of revenues for the period in which the stock sales occurred. Plaintiffs allege violations of California Corporations Code § 25402 and common law claims of breach of fiduciary duty and waste of corporate assets. Jurisdiction is based on 28 U.S.C. § 1332, as plaintiffs and defendants are alleged to be citizens of different states and the matter in controversy exceeds $75,000.
Sagent, which was founded in 1995 and went public in April 1999, creates and sells business software designed to help businesses collect, analyze, understand, and act on customer and operational information. Sagent's revenue is derived from license fees for software products and fees for services relating to the software products, including maintenance, consulting, training, technical support, and software and data updates. Sagent sells its products both directly to customers and indirectly through enterprise software vendors (who integrate Sagent's products with their own applications) and resellers and distributors (who sell Sagent's products to end-user customers). Sagent is a Delaware corporation, with its principal executive offices in California.
Plaintiffs allege claims against thirteen of Sagent's current and former officers and directors ("the individual defendants"):
• Defendant Shanda Bahles ("Bahles") was a director of Sagent from May 1995 until some time in 2001 or early 2002. Bahles sold 999,762 shares of Sagent common stock, for $15,011,663, between October 26, 1999, and November 3, 1999, and 309 shares of Sagent stock, for $6,650,058, between January 24, 2000, and February 9, 2000.
• Defendant John Zicker ("Zicker") has been a director of Sagent since June 1995, and served as the company's Executive Vice President of Technology and Chief Technology Officer from June 1995 to September 2000. Zicker sold 80,000 shares of Sagent common stock, for $1,385,950, between October 26, 1999, and November 5, 1999.
• Defendant Richard Shapero ("Shapero") was a director of Sagent from May 1995 to September 2000. Shapero sold 34,172 shares of Sagent common stock, for $587,080, on November 2, 1999.
• Defendant Thomas M. Lounibos ("Lounibos") served as Sagent's Executive Vice President of Sales and Marketing from 1998 to March 2000. Plaintiffs allege that Lounibos sold 286,097 shares of Sagent common stock, for $3,950,080, between October 25, 1999, and November 1, 1999, and 31,000 shares, for $575,930, between February 18, 2000, and February 29, 2000.
• Defendant W. Virginia Walker ("Walker") served as Sagent's Executive Vice President of Finance and Administration and Chief Financial Officer from 1998 to May 2000. Walker sold 18,372 shares of Sagent common stock, for $250,642, between October 26, 1999, and November 5, 1999.
• Defendant Kenneth C. Gardner ("Gardner") was a director of Sagent from June 1995 to January 2002, serving as President and Chief Executive Officer from June 1995 to August 2000, and Chairman of the Board and Chief Technology Officer from August 2000 to January 2002.
• Defendant Ben C. Barnes ("Barnes") was a director and served as Sagent's President and Chief Executive Officer from August 2000 to July 2002.
• Defendant Andre Boisvert ("Boisvert") has served as a director since April 2001, Chairman of the Board since January 2002, and Chief Executive Officer since July 2002.
• Defendant Klaus S. Luft ("Luft") served as a director from April 1999 until late 2001 or early 2002.
• Defendant Ali Jenab ("Jenab") has served as a director since November 2001.
• Defendant Keith Maib ("Maib") has served as a director since July 1999.
• Defendant Irving H. Lichtenwald ("Lichtenwald") has served as a director since September 2001.
• Defendant David Eliff ("Eliff") served as Sagent's Executive Vice President of Finance and Administration and Chief Financial Officer from May 2000 to November 2001.
The facts underlying the claims in this action are substantially similar to those alleged in two securities fraud class actions filed in the Northern District of California — In re Sagent Technology, Inc., Securities Litigation, case No. C-01-20081 JW, filed October 20, 2000 ("Sagent I"), and In re Sagent Technology, Inc., Securities Litigation, case No. C-01-4637 PJH, filed November 30, 2001 ("Sagent II"), both alleging claims under the 1934 Securities Exchange Act and the Private Securities Litigation Reform Act.
In Sagent I, the plaintiffs alleged claims under §§ 10(b) and 20(a) of the 1934 Act, and Rule 10b-5, against Sagent and other defendants, including Bahles, Zicker, Shapero, Lounibos, Walker, Gardner, Luft, Maib, Gardner, and Sagent's venture capitalists. Plaintiffs alleged that during the period between October 21, 1999, and April 18, 2000, defendants violated Generally Acceptable Accounting Principles ("GAAP")*fn1 by improperly recognizing millions of dollars of royalty revenue on software licenses that did not meet the revenue recognition criteria set forth in SOP 97-2,*fn2 and made misleading public statements regarding various licensing agreements. Plaintiffs asserted that defendants committed these violations in order to inflate the value of Sagent's stock, until Bahles, Zicker, Shapero, Lounibos, and Walker were able to sell at least $8 million of their own Sagent stock. Sagent I was dismissed in April 2003, pursuant to the terms of a court-approved final settlement.
In Sagent II, plaintiffs alleged claims under §§ 10(b) and 20(a), and Rule 10b-5, against Sagent, its current CEO, its former CFO, and one of its former salesmen, based on Sagent's announcement in November 2001 that it had discovered that sales orders totaling $5 million had been forged by the former salesman in 2001, and that it would be necessary to restate the company's revenues for the first three quarters of 2001. The proposed class period in Sagent II extended from May 11, 2001, to November 28, 2001. In September 2002, the court dismissed the claims against Sagent, its CEO, and its former CFO, on the ground that plaintiffs had failed to plead facts constituting strong evidence of deliberately reckless or conscious misconduct, as required under In re Silicon Graphics, Inc., Securities Litigation, 183 F.3d 970 (9th Cir. 1999). The court granted leave to amend, but plaintiffs opted not to file an amended complaint. Plaintiffs have filed a motion for default judgment against the defendant salesman, who was indicted for fraud, pleaded guilty, and was sentenced, and is presently in federal custody.
In the present action, plaintiffs seek recovery, on behalf of Sagent, against Sagent's directors and former officers and directors for breaches of fiduciary duty. As in Sagent I, plaintiffs assert that the individual defendants caused Sagent to violate GAAP by improperly recognizing revenue in the third and fourth quarters of 1999 and the first quarter of 2000 — specifically, that defendants violated SOP 97-2 by recognizing revenue on software licenses before the customization, production, and delivery of the software had been completed.*fn3 As in Sagent II, plaintiffs allege improper revenue recognition in connection with the forged sales during the first three quarters of 2001.
Finally, plaintiffs allege that during the period between late October 1999 and late February 2000, Bahles, Zicker, Shapero, Lounibos, and Walker ("the selling defendants") used nonpublic information regarding Sagent's true financial condition to profit from the sale of large amounts of Sagent stock, and that the individual defendants aided and abetted the selling defendants' use of this nonpublic information to sell their personal holdings of Sagent stock at inflated prices.*fn4
Plaintiffs assert five causes of action.*fn5 Against the selling defendants, plaintiffs allege a claim of insider trading, in violation of California Corporations Code § 25402, and a common law claim of breach of fiduciary duty for insider trading. Against all the individual defendants, plaintiffs allege a claim of breach of fiduciary duty for disseminating misleading information to the public; a claim of breach of fiduciary duty for failure to maintain accounting controls; and a claim of waste of corporate assets.
Defendants now seek an order dismissing all causes of action for failure to state a claim. Alternatively, they seek an order staying the case pending resolution of a shareholder derivative suit based on allegations similar to the allegations in this case, and which is ...