IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE BOSTON CONSULTING GROUP, INC., a Massachusetts corporation, Plaintiff, v. GAMESTOP CORP., a Delaware corporation, Defendant. C.A. No. 1:22-00363-CJB DEFENDANT GAMESTOP CORP.’S OPENING BRIEF IN SUPPORT OF ITS MOTION TO PARTIALLY DISMISS SECOND AMENDED COMPLAINT OF THE BOSTON CONSULTING GROUP OF COUNSEL: G IBSON , D UNN & C RUTCHER LLP Trey Cox 2001 Ross Avenue, Suite 2100 Dallas, Texas 75201 Telephone: (214) 698-3256 tcox@gibsondunn.com Dated: April 26, 2023 A BRAMS & B AYLISS LLP John M. Seaman (#3868) E. Wade Houston (#6289) Christopher Fitzpatrick Cannataro (#6621) 20 Montchanin Road, Suite 200 Wilmington, Delaware 19807 Telephone: (302) 778-1000 seaman@abramsbayliss.com houston@abramsbayliss.com cannataro@abramsbayliss.com Attorneys for Defendant GameStop Corp. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 1 of 16 PageID #: 917 TABLE OF CONTENTS PAGE I. NATURE AND STAGE OF PROCEEDINGS ...................................................................1 II. SUMMARY OF ARGUMENT ...........................................................................................3 III. STATEMENT OF FACTS ..................................................................................................4 A. BCG and GameStop execute a Statement of Work. ................................................4 B. The SOW leaves open to future agreements determinations of how much GameStop’s profits would improve as a result of BCG’s work, as well as for related baselines and key assumptions. ...................................4 C. BCG demands variable fees even where the parties never reached written agreements, as the SOW requires, on corresponding profit improvements, baselines and key assumptions. .......................................................6 IV. ARGUMENT .......................................................................................................................6 A. BCG fails to state a claim based on initiatives for which the parties allegedly agreed on underlying profit projections. ..................................................7 1. BCG FAILS TO ALLEGE THAT GAMESTOP BREACHED THE SOW BY NOT PAYING VARIABLE FEES FOR THESE INITIATIVES. ............................................................7 2. BCG HAS PLED ITSELF OUT OF ARGUING, ALTERNATIVELY, THAT GAMESTOP BREACHED THE SOW BY NOT NEGOTIATING IN GOOD FAITH ABOUT THESE INITIATIVES. ...............................................................10 B. BCG improperly reasserts its claim based on GameStop not paying variable fees that the parties never agreed on. .......................................................11 V. CONCLUSION ..................................................................................................................12 Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 2 of 16 PageID #: 918 ii TABLE OF AUTHORITIES PAGES Cases Ashcroft v. Iqbal , 556 U.S. 662 (2009) ...................................................................................................................6 Bell Atl. Corp. v. Twombly , 550 U.S. 544 (2007) .............................................................................................................7, 10 Chemtech Int’l, Inc. v. Chem. Injection Techs., Inc. , 170 F. App’x 805 (3d Cir. 2006) ...............................................................................................8 Conley v. Gibson , 355 U.S. 41 (1957) .....................................................................................................................7 In re Hechinger Inv. Co. of Delaware , 280 B.R. 90, 92 (D. Del. 2002) ........................................12 Hydrogen Master Rts., Ltd. v. Weston , 228 F. Supp. 3d 320 (D. Del. 2017) ...........................................................................................7 Jones v. Kent Cnty. Superior Ct., Delaware , 2018 WL 4771904 (D. Del. Oct. 3, 2018) ...............................................................................12 MarkDutchCo 1 B.V. v. Zeta Interactive Corp. , 2020 WL 4432860 (D. Del. July 31, 2020) ...........................................................................8, 9 Modular Steel Sys. Inc. v. Westfield Ins. , 2022 WL 832048 (3d Cir. Mar. 21, 2022) .............................................................................8, 9 Pension Ben. Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192 (3d Cir. 1993).....................................................................................................4 Reklam v. Bellator Sport Worldwide LLC , 2017 WL 5172397 (D. Del. Nov. 8, 2017) ........................................................................10, 12 Riboldi v. Warren Cnty. Dep’t of Hum. Servs. Div. of Temp. Assistance & Soc. Servs. , 781 F. App’x 44 (3d Cir. 2019) .........................................................................................10, 12 Rules Fed. R. Civ. P. 15(a)(2) ..................................................................................................................11 Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 3 of 16 PageID #: 919 I. NATURE AND STAGE OF PROCEEDINGS 1 For the second time, Boston Consulting Group, Inc. (“BCG”) fails to plausibly allege that GameStop Corp. (“GameStop”) breached the parties’ contract by not paying agreed-upon fees. It also improperly re-asserts its claim—which this Court has already dismissed—that GameStop breached the contract by not paying fees the parties never agreed on. BCG and GameStop agreed in a statement of work (the “SOW”) that GameStop would pay a fixed fee for BCG to perform consulting services on various “workstreams.” The SOW also provided for potential “variable,” performance-based fees; any calculation or payment of such fees required further agreement between the parties. BCG first brought this suit claiming that GameStop breached the SOW by failing to pay some variable fees as to which the parties never reached agreement. D.I. 1 ¶ 29. 2 GameStop moved to dismiss, arguing, inter alia , that BCG failed to state a claim because the fees BCG sought admittedly required further agreement and BCG acknowledged no such agreement was reached. D.I. 22, Part IV.A.1.a. Subsequently, BCG filed a First Amended Complaint, adding conclusory allegations that the parties did agree to variable fees as to “certain,” unspecified workstreams. D.I. 28 ¶¶ 13, 33, 42(a). The Court dismissed this claim, with leave to amend, concluding that BCG’s pleading was “so devoid of any meaningful factual content that it fails to provide GameStop with even a basic understanding of the alleged wrong,” and “additionally fails to let GameStop know if these allegations relate to written or oral ‘agreements.’” Mem. Op. at 25, 29. As the Court explained, under the SOW, “[w]hether the purported agreements at issue were written or oral may well make 1 A blackline showing the changes made by BCG in its Second Amended Complaint is amended as Exhibit A. 2 BCG also alleged breach of the implied covenant of good faith and fair dealing, which the Court dismissed with prejudice after BCG filed its First Amended Complaint. D.I. 76 (“Mem. Op.”). Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 4 of 16 PageID #: 920 2 a big difference as to whether GameStop can be legally bound.” Id. at 26 (citing D.I. 26 (“SOW”) ¶ 4.2.13). BCG has again failed in its Second Amended Complaint (“SAC”) to plausibly allege that GameStop breached the SOW by not paying agreed-upon variable fees. Before BCG is owed any variable fees, the SOW requires the parties to agree, in writing, on how much the work for which BCG seeks variable fees is projected to improve GameStop’s profits, as well as on baselines, key assumptions, applicable testing and validation, and whether and how to execute on the proposed work. SOW ¶¶ 4.2.12, 4.2.13. Yet BCG fails to plead facts showing that the parties entered written agreements on projected profit improvements, instead relying on the vague and conclusory assertion that the parties “memorialized . . . oral agreements” in “follow-up email[s],” which GameStop purportedly did “not dispute[].” SAC ¶¶ 41, 51(a) (emphasis added). Nor does BCG try to allege written agreements on baselines, key assumptions, applicable testing and validation, and whether and how to execute on the work for which BCG seeks variable fees. Id. BCG’s failure to plausibly allege the existence of such written agreements requires dismissal of its claim that GameStop breached the SOW by not paying agreed-upon variable fees. A contrary result would deprive GameStop of contractual terms the parties expressly bargained for, specifically, the term “to assure mutual clarity” on these issues—and to prevent BCG from collecting variable fees absent such mutual clarity. SOW ¶¶ 4.2.12, 4.2.13. Thus, this claim should be dismissed again, this time with prejudice, as BCG’s ongoing inability to plausibly allege this claim despite multiple opportunities to do so shows that further amendment is futile. BCG also attempts in its SAC to resurrect its previously dismissed claim that GameStop breached the SOW by not paying variable fees that the parties never agreed on. BCG’s First Amended Complaint maintained this claim, and GameStop again moved to dismiss it on the same Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 5 of 16 PageID #: 921 3 bases as before. D.I. 28 ¶ 42(b)–(c); D.I. 44, Part IV.A.1.a–b. The Court dismissed this claim because “the SOW still required the parties to negotiate and agree in the future on ‘baselines, key assumptions [and] the amounts of the credits to be made to [profit improvement categories],’” and “[o]nly after the parties agreed on . . . projected profit improvement terms would the payment of related variable fees be possible.” Mem. Op. at 8–9. Instead, the Court concluded that BCG only alleged a viable breach-of-contract claim based on GameStop purportedly failing to negotiate in good faith about the disputed projected profit improvements. Id. at 7–12, 24, 29. BCG has not pled any new facts sufficient to state a viable claim that GameStop breached the SOW by not paying variable fees the parties never agreed on. Instead, BCG raises essentially the same, previously-dismissed claim, with the addition of language that simply repeats BCG’s separate claim that GameStop allegedly failed to negotiate in good faith. Thus, this claim should also be dismissed again, but this time with prejudice. II. SUMMARY OF ARGUMENT 1. BCG fails to state a breach-of-contract claim based on GameStop purportedly not paying agreed-upon variable fees. BCG contends the parties agreed on how much the initiatives would improve GameStop’s profits, triggering GameStop’s obligation to pay variable fees. But BCG fails to plead facts showing the parties formalized any such agreements as required by the SOW. SAC ¶¶ 41, 51(a). BCG also fails to plead facts showing the parties entered written agreements, as the SOW also requires, on related baselines, key assumptions, applicable testing and validation procedures, and on whether and how to execute initiatives for which BCG seeks variable fees. Id. Thus, BCG fails to plausibly allege that GameStop breached any obligation to pay variable fees for these initiatives. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 6 of 16 PageID #: 922 4 2. BCG cannot allege, alternatively, that GameStop breached an obligation to negotiate in good faith about the initiatives for which the parties allegedly agreed on underlying profit projections and thus on BCG’s variable fees. BCG’s own allegations defeat any such claim by pleading that GameStop “participated in . . . Thermometer Meetings in good faith” as to those initiatives. SAC ¶ 41. 3. BCG alleges that GameStop breached the SOW by not paying variable fees for which the parties never agreed on the underlying profit projections or variable fees. SAC ¶¶ 51(b)– (c); see also id. ¶¶ 41–44. But the Court previously dismissed this claim. Mem. Op. at 29. BCG has not pled any new facts sufficient to state a viable claim and, thus, this claim must be dismissed. III. STATEMENT OF FACTS A. BCG and GameStop execute a Statement of Work. In 2019, GameStop began working with BCG to develop ways to improve its business. SAC ¶ 5. After working together for several months, the parties memorialized their relationship by executing the SOW on August 20, 2019. Id. ¶¶ 5, 7, 19. The SOW’s express purpose was to “define a framework regarding the services to be provided by BCG to GameStop . . . as well as the fees to be paid by GameStop to BCG for those services.” SOW, pg. 1 (introductory paragraphs) (emphasis added); see also SAC ¶¶ 7–9. 3 B. The SOW leaves open to future agreements determinations of how much GameStop’s profits would improve as a result of BCG’s work, as well as for related baselines and key assumptions. For BCG’s services, the SOW provided that BCG would receive a “fixed fee” of $16.5 million, unless it earned more in “variable fee[s] . . . based upon . . . projected profit 3 GameStop previously attached the SOW to its motion to dismiss BCG’s original Complaint given the SOW’s centrality to BCG’s claims. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993) Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 7 of 16 PageID #: 923 5 improvements.” SAC ¶¶ 9, 24; see also SOW ¶¶ 2.3, 3.2. “BCG’s variable fee was not predetermined . . . .” SAC ¶ 9. Rather, the variable fees—“if any”—that BCG would receive were “tied . . . to the projected profit improvements resulting from its work.” SOW ¶ 3.3; SAC ¶ 9. Importantly, the anticipated profit improvements resulting from BCG’s work were to be “agreed[] upon” by the parties before BCG could receive any variable fees. SAC ¶ 29; SOW ¶¶ 2.3, 4.1, 4.2.12, 4.2.13; Mem. Op. at 9. The parties set a framework for projecting profit improvements. SAC ¶¶ 26–27; SOW ¶¶ 4.2.5–4.2.6. These profit improvement projections related to four categories, three of which are relevant to this case: (1) “This Year Predicted Profit Improvement” (“TYPPI”); (2) “Next Year Predicted Profit Improvement” (“NYPPI”); and (3) “Annualized run-rate Projected Profit Improvement” (“APPI”). SOW ¶ 2.2; SAC ¶ 20. But the parties expressly left open to future agreements the actual amounts by which GameStop’s profits were projected to improve because of BCG’s work, as well as the baselines and key assumptions relevant to calculating those profit improvements, and which profit- improvement activities (if any) would be executed and how and when they would be executed. SAC ¶ 29; SOW ¶¶ 1.2, 3.3, 4.2.1–4.2.3, 4.2.7, 4.2.12, 4.2.13; Mem. Op. at 8–9. Indeed, the SOW required that, for profit-improvement “initiatives” or “levers” that are not enumerated in the SOW, the parties must agree “in writing” “as to whether and when and how to execute on specific initiatives, computations of TYPPI, NYPPI and APPI, and assumptions and baselines.” SOW ¶¶ 1.2, 4.2.12. The parties expressly bargained for and agreed to these formal requirements “to assure mutual clarity as to scope and status of approvals, decisions, determinations and agreements.” Id. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 8 of 16 PageID #: 924 6 Additionally, before BCG can receive any “credit” for projected profit improvements that determine its variable fees, for “each” “proposed initiative or profit improvement lever,” the parties must have completed a sign-off process that culminates in written agreement on baselines, key assumptions, the amounts of the credits to be made to each of TYPPI, NYPPI and APPI from the subject initiative(s) and, as applicable, specific testing and validation procedures. Id. , ¶ 4.2.13; see also SAC ¶ 29; Mem. Op. at 8–9. C. BCG demands variable fees even where the parties never reached written agreements, as the SOW requires, on corresponding profit improvements, baselines and key assumptions. BCG admits the parties never agreed on some of the relevant “profit improvement projections and BCG’s resulting fees.” SAC ¶ 14; see also id. ¶¶ 42–45. Nonetheless, BCG claims entitlement not only to the $16.5 million in fixed fees GameStop has admittedly already paid under the SOW. SAC ¶ 35; SOW ¶ 3.2. BCG also claims it’s entitled to millions more in variable fees that were never guaranteed under the SOW and that are based solely on BCG’s own unilateral determinations about the value of its work. SAC ¶ 51(b)–(c); SOW ¶¶ 2.3, 3.2, 3.3. For other initiatives, BCG asserts that the parties negotiated in good faith and then reached “specific agreement as to the projected profit improvements,” but that “GameStop has failed to pay all variable fees due and owing.” SAC ¶¶ 35, 41. Yet BCG fails to allege facts showing that the parties ever reached written agreements, pursuant to the formal requirements that they bargained for under the SOW, for any of the initiatives purportedly involved. IV. ARGUMENT When reviewing a motion to dismiss for failure to state a claim, courts accept well-pleaded facts as true, disregard any conclusory assertions, and then determine whether the facts alleged are sufficient to show the plaintiff has a “plausible claim for relief.” See Ashcroft v. Iqbal , 556 U.S. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 9 of 16 PageID #: 925 7 662, 679 (2009). That means a plaintiff must make “a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 n.3 (2007). Further, a plaintiff must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. at 555 (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). To state a claim for breach of contract under Delaware law, plaintiffs must allege facts plausibly demonstrating: “(1) a contractual obligation; (2) a breach of that obligation by the defendant; and (3) a resulting damage to the plaintiff.” Hydrogen Master Rts., Ltd. v. Weston , 228 F. Supp. 3d 320, 333 (D. Del. 2017) (internal quotation marks omitted). 4 A. BCG fails to state a claim based on initiatives for which the parties allegedly agreed on underlying profit projections. BCG unsuccessfully tries, for a second time, to plausibly allege that GameStop breached the SOW by not paying agreed-upon variable fees. In particular, BCG fails to allege facts showing the parties reached written agreements pursuant to the SOW’s express requirements. Thus, this claim is not plausible on its face, so the claim should be dismissed. And because any further amendment would be futile, it should be dismissed with prejudice. Nor can BCG fall back on arguing that GameStop failed to negotiate in good faith about these initiatives, as BCG concedes that good-faith negotiations as to these initiatives occurred. 1. BCG fails to allege that GameStop breached the SOW by not paying variable fees for these initiatives. BCG, once again, fails to plausibly allege that GameStop breached the SOW by not paying variable fees after the parties allegedly agreed to those fees. SAC ¶¶ 41, 45, 51(a); Mem. Op. at 24–26. 4 The SOW contains a provision establishing that it is “governed by and construed in accordance with the laws of the State of Delaware.” See SOW, at BCG Standard Terms § 9.6. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 10 of 16 PageID #: 926 8 The SOW plainly requires any agreements on profit improvement projections, which determine BCG’s variable fees, to be in writing. SOW ¶¶ 4.2.12, 4.2.13; Mem. Op. at 25–26. Yet, in vague and conclusory fashion, BCG alleges only that the parties “memorialized . . . oral agreements” in “follow-up email[s],” which GameStop purportedly did “not dispute[].” 5 SAC ¶ 41. This bare allegation is tellingly also far short of BCG’s contention, during oral argument on GameStop’s prior motion to dismiss, that there were “sign off sheets that are signed with a signature with GameStop on them that we never received payment for.” Mem. Op. at 25 (emphasis added). BCG’s failure to plausibly allege written agreements alone requires dismissal. Chemtech Int’l, Inc. v. Chem. Injection Techs., Inc. , 170 F. App’x 805, 807–08 (3d Cir. 2006) (affirming dismissal of contract claim where plaintiff failed to allege facts showing existence of agreement, such as “that a document was signed [and] . . . called for certain performance”); see also Modular Steel Sys. Inc. v. Westfield Ins. , 2022 WL 832048, at *2 (3d Cir. 2022) (dismissing amended complaint because it did not indicate that defendant’s obligations were triggered under contract’s plain language); MarkDutchCo 1 B.V. v. Zeta Interactive Corp. , 2020 WL 4432860, at *6 (D. Del. July 31, 2020) (dismissing contract claim because counterclaimant “fail[ed] to strictly follow formal requirements” of contract and “holding otherwise would deprive [other parties] of the benefit of their bargain”). Additionally, the SOW plainly requires the parties to complete a “sign-off process” that culminates in a written agreement on baselines, key assumptions, applicable testing and validation, and whether and how to execute on initiatives not enumerated in the SOW. 6 SOW ¶¶ 1.1, 1.2, 5 BCG has noticeably not attached any such emails to its SAC. 6 BCG identifies the following initiatives as ones for which the parties agreed on profit improvement projections or “portions” of profit improvement projections: (1) Range – Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 11 of 16 PageID #: 927 9 4.2.12, 4.2.13; Mem. Op. at 8–9; SAC ¶ 41. Yet BCG fails to allege completion of any sign-off process for these items, or that any writings exist to document agreement on baselines, key assumptions, applicable testing and validation, or whether and how to execute on these initiatives. SAC ¶ 41; SOW ¶¶ 14.2.12, 4.2.13. BCG’s failure to allege any facts showing the parties entered these requisite written agreements is yet another, independent reason to dismiss. A contrary result would deprive GameStop of contractual requirements the parties expressly bargained for precisely “to assure mutual clarity” on these issues and to prevent BCG from collecting variable fees absent such mutual clarity. SOW ¶¶ 4.2.12, 4.2.13; see Modular Steel , 2022 WL 832048, at *2; MarkDutchCo 1 B.V. , 2020 WL 4432860, at *6. BCG’s post-hoc assertions cannot override the contract’s plain terms. BCG does not fare any better with its allegation that the parties reached “oral agreements” for “ portions of profit improvement projections . . . such as APPI,” for some initiatives. SAC ¶ 41 (emphasis added). In addition to the reasons discussed above, any claim based on these initiatives must fail because the SOW requires written agreement on not just APPI, or “portions of profit improvement projections,” but on “ each of TYPPI, NYPPI and APPI.” SOW ¶¶ 4.2.12, 4.2.13 (emphasis added). By BCG’s own admission, that never happened. Thus, BCG’s claim based on these initiatives fails for this independent reason as well. 7 Accordingly, BCG fails to plausibly allege that GameStop breached the SOW by not paying agreed-upon variable fees. 8 Despite having multiple chances to adequately plead this claim, Accessories; (2) ThinkGeek’s wind down; (3) Pre-Owned Tech; (4) RFP All Print; and (5) Price Increases in European stores. SAC ¶ 41. None other than “Pre-Owned Tech” is enumerated in the SOW. SOW ¶ 1.1. 7 These initiatives are Pre-Owned Tech, RFP All Print, and Price Increases in European stores. SAC ¶ 41. 8 It is unclear whether BCG also bases this claim on the initiatives discussed in paragraph 45 of the SAC. SAC ¶¶ 45; 51(a). To the extent BCG partly bases this claim on the initiatives discussed Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 12 of 16 PageID #: 928 10 BCG still fails to allege facts showing that GameStop’s obligation to pay such fees was ever triggered. Mem. Op. at 24–26, 29. The Court should, accordingly, dismiss the claim with prejudice. Riboldi v. Warren Cty. Dep’t of Hum. Servs. Div. of Temp. Assistance & Soc. Servs. , 781 F. App’x 44, 47 (3d Cir. 2019) (affirming dismissal with prejudice where plaintiff “already had two chances to amend his claims”); Reklam v. Bellator Sport Worldwide LLC , 2017 WL 5172397, at *8 (D. Del. Nov. 8, 2017) (similar). 2. BCG has pled itself out of arguing, alternatively, that GameStop breached the SOW by not negotiating in good faith about these initiatives. BCG cannot alternatively allege that GameStop breached an obligation to negotiate in good faith about the initiatives described in paragraph 41 of the SAC, for which the parties allegedly agreed on underlying profit projections. BCG’s own allegations defeat any such claim because BCG also alleges that GameStop “participated in . . . Thermometer Meetings in good faith” as to those initiatives. SAC ¶ 41. Thus, BCG’s breach-of-contract claims based on each of the following initiatives should be dismissed with prejudice: (1) Range – Accessories; (2) ThinkGeek’s wind down; (3) Pre-Owned Tech; (4) RFP All Print; and (5) Price Increases in European stores. Id. in paragraph 45, it fails to adequately plead it. As to the only initiative specified in paragraph 45 (“work to improve the terms of GameStop’s revenue sharing agreement with Bandai Namco”), the claim fails for the same reasons as the initiatives discussed in paragraph 41: BCG fails to allege that the parties reached the requisite written agreements for this initiative. It also fails because BCG alleges that “BCG did not agree” to GameStop’s alleged proposed reduction to APPI, and thus BCG acknowledges that no agreement was reached between the parties. SAC ¶ 45. Accordingly, BCG does not plausibly allege that GameStop breached the SOW by not paying agreed-upon variable fees for this Bandai Namco initiative. As to any other, unidentified initiatives BCG intended to include in paragraph 45, BCG’s failure to identify those initiatives deprives GameStop of fair notice of the grounds for any such claim and thus any such claim must be dismissed. Twombly , 550 U.S. at 555; Mem. Op. at 25. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 13 of 16 PageID #: 929 11 B. BCG improperly reasserts its claim based on GameStop not paying variable fees that the parties never agreed on. BCG improperly alleges again that GameStop breached the SOW by not paying variable fees for which the parties never agreed on the underlying profit projections—a claim the Court has already rejected. SAC ¶¶ 51(b)–(c); Mem. Op. at 7–12, 29. As the Court explained in partly granting GameStop’s prior motion to dismiss, BCG’s claim that GameStop breached the SOW by not paying variable fees for which the parties never agreed on the underlying profit projections is distinct from a claim that GameStop breached the SOW by allegedly failing to negotiate in good faith about those projections or variable fees. Mem. Op. at 7–12. As for the former, “the SOW . . . left unsettled the amount of variable fees that BCG could earn.” Id. at 11. “[T]he SOW still required the parties to negotiate and agree in the future on ‘baselines, key assumptions [and] the amounts of the credits to be made to [profit improvement categories],’” and “[o]nly after the parties agreed on . . . projected profit improvement terms would the payment of related variable fees be possible.” Id. at 8–9. Thus, the Court concluded BCG did not have a viable breach-of-contract claim based on GameStop not paying variable fees for which the parties never agreed on the underlying profit projections. Id. at 7–12, 29. Instead, the Court concluded that BCG had only alleged “just enough” to plead breach of the SOW by failing to negotiate in good faith about the disputed profit projections and variable fees. Id. at 19. The Court, accordingly, dismissed all of BCG’s breach-of-contract claims except its claim for alleged failure to negotiate in good faith, while granting BCG leave to amend its pleading for “breach of contract due to the failure to pay agreed-upon variable fees.” Mem. Op. at 29 (emphasis added). Even if the Court intended to grant BCG leave to amend its claim based on GameStop not Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 14 of 16 PageID #: 930 12 paying unagreed-to variable fees, 9 BCG has not pled any new facts sufficient to state a viable claim consistent with the Court’s prior opinion. Instead, BCG raises essentially the exact same previously dismissed claim, with the addition of language which simply repeats BCG’s separate claim that GameStop allegedly failed to negotiate in good faith. SAC ¶¶ 51(b)–(c); D.I. 28 ¶¶ 42(b)–(c). Thus, this claim should be dismissed again. Id . at 7–12, 29; Jones v. Kent Cnty. Superior Ct., Delaware , 2018 WL 4771904, at *93 (D. Del. Oct. 3, 2018) (dismissing previously dismissed defendant renamed in amended pleading under law of the case doctrine); see also In re Hechinger Inv. Co. of Delaware , 280 B.R. 90, 92 (D. Del. 2002) (discussing dismissal under the law of the case doctrine defendants similar to previously dismissed defendants). Dismissal should be with prejudice, as BCG’s ongoing inability to plausibly allege a claim on this ground, despite multiple opportunities to do so, shows that further amendment would be futile. Riboldi , 781 F. App’x at 47; Reklam , 2017 WL 5172397, at *8. V. CONCLUSION For the foregoing reasons, GameStop respectfully requests that the Second Amended Complaint be dismissed in part as set forth in this motion, and that the Court grant such other relief as may be appropriate. Because permitting further amendment of the complaint would be futile, GameStop respectfully requests that this Court dismiss with prejudice the claims as set forth herein. 9 The court’s memorandum opinion states, “[A]s to BCG’s attempted claim in Count I for, inter alia , breach of contract due to the failure to pay agreed-upon variable fees owed, BCG may be able to further state such a claim. Therefore, and because amendment should be permitted freely “when justice so requires[,]” Fed. R. Civ. P. 15(a)(2), BCG will be permitted an opportunity to file a further amended complaint to address this type of claim.” Mem. Op. at 29 (emphasis added). Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 15 of 16 PageID #: 931 13 OF COUNSEL: Trey Cox G IBSON , D UNN & C RUTCHER LLP 2001 Ross Avenue, Suite 2100 Dallas, Texas 75201 Telephone: (214) 698-3256 Dated: April 26, 2023 /s/ Christopher Fitzpatrick Cannataro _____ John M. Seaman (#3868) E. Wade Houston (#6289) Christopher Fitzpatrick Cannataro (#6621) A BRAMS & B AYLISS LLP 20 Montchanin Road, Suite 200 Wilmington, Delaware 19807 Telephone: (302) 778-1000 seaman@abramsbayliss.com houston@abramsbayliss.com cannataro@abramsbayliss.com Attorneys for Defendant GameStop Corp. Case 1:22-cv-00363-CJB Document 85 Filed 04/26/23 Page 16 of 16 PageID #: 932