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Private Shareholder Action Under Exchange Act 14(a) and SEC Rule 14a

Posted by: on Fri, Mar 27, 2015

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G. Mark Albright

Nevada Bar No. 1394

Albright, Stoddard, Warnick and Albright

801 S Rancho Dr D4

Las Vegas, NV 89106

Phone: (702) 384-7111

Fax: (702) 384-0605

Email:

gma@albrightstoddard.com

Attorneys

for Plaintiff

See Signature Page for Additional Counsel

UNITED

STATES DISTRICT COURT

FOR THE

DISTRICT OF NEVADA

W. A.

SOKOLOWSKI, Plaintiff, v. STEPHEN
A.

WYNN; JOHN J.

HAGENBUCH; RAY R.

IRANI; ROBERT J.

MILLER; ALVIN V.

SHOEMAKER; J. EDWARD

VIRTUE; and D. BOONE

WAYSON Defendants, –

Civil

No. COMPLAINT JURY

DEMAND

2:15-cv-00536-RFB-NJK

COMPLAINT

I. JURISDICTION AND VENUE

1.

This Court has jurisdiction pursuant to (a) 28 U.S.C. §1331 because Count I

asserts claims for violations of § 14(a) of the Exchange Act and SEC

Rule 14a-9; (b) diversity jurisdiction under 28 U.S.C. § 1332(a)(2) , as

Plaintiff and each of the Defendants are citizens of different states, and the
value of the relief

requested exceeds $75,000,

exclusive of interest and costs; and (c) the Court’s supplemental jurisdiction

over the common law claims pursuant to 28 U.S.C. § 1367(a).

2.

This Court has

jurisdiction over each Defendant because each either is an individual with

sufficient minimum contacts with this District.

3.

Venue is proper in this District pursuant to

28 U.S.C. §§ 1391(a)(2) and (3) and § 1401 because some or all of the events,

actions, and failures to act giving rise to the claims asserted herein occurred

or were initiated in this District.

II. NATURE OF

ACTION AND SUMMARY OF CLAIMS

4.

This is a shareholder’s action brought by

Plaintiff in his capacity as a current shareholder of Wynn Resorts, Limited

(“Wynn” or the “Company) on March 5, 2015, the record date for shareholders for

the Company’s 2015 Annual Meeting. No claims are asserted herein derivatively

on behalf of Wynn or against the Company in whose name the Defendants caused it

to issue and disseminate its Proxy Statement dated March 14, 2015 in connection

with its forthcoming Annual Meeting of Shareholders scheduled for April 24,

2015 (the “Proxy Statement”).

5.

Each of the Defendants, Messrs. Wynn, Irani,

Virtue, Hagenbuch, Miller, Shoemaker and

Wayson, is presently serving

on the Company’s Board of Directors (“Board”), and collectively and individually
initiated or

actively participated in a course of conduct that was designed to, and did, in

connection with the content of the Proxy Statement and/or otherwise:

(a) Conceal the fact that the

Company’s management was and is improperly misrepresenting and historically had

misrepresented Wynn’s internal controls in order to allow a widespread scheme

of bribery, money laundering and other wrongful behavior in violation of

applicable federal and other laws and, thereafter through the present, cover-up

such wrongdoing;

(b) Deceive the shareholders of Wynn

regarding the Defendants’ oversight of the management of the Company’s

operations;

(c) Concealed the fact that the

Company had failed to comply with the books and records, and internal controls

provisions of the Foreign Corrupt Practices Act (the “FCPA”) and the Bank

Secrecy Act as well as conceal such violations of law ;

(d) Conceal material facts with

respect to audits of the Company’s year-end financial statements performed by
Ernst

& Young, LLP (“E&Y”) including, inter

alia, that such audits and the reports thereupon were not prepared in

accordance with the standards of the Public Company Accounting Oversight Board

(United States) a.k.a.Generally Accepted Auditing Standards (“GAAS”) ,;

(e) Conceal the fact that the

Defendants are causing waste of the Company’s assets by means of, inter alia,
causing a committee of the

Board and counsel to it to commence a purported investigation of possible

violations of the FCPA and other violations of law as alleged in a letter sent

on behalf of a Wynn shareholder to the Board on December 18, 2014 (the “Demand

Letter”) without any benefit flowing to the Company. Such sham investigation is

being carried out solely to protect the Defendants and others from personal

liability for their long-continuing wrongdoing and the harm it has caused the

Company. Neither the Board nor the committee has validly exercised its business

judgment in commissioning such sham investigation, which has been put in the

hands of Potter, Anderson & Corroon (“PAC”), a Delaware law firm which has

a history of generating “whitewash” reports regarding claims of corporate

wrongdoing and which has a bias against any claims alleged by principal counsel

for Plaintiff and the shareholder on whose behalf the Demand Letter was sent.[1] Moreover, evidencing the sham
nature of the

foregoing proceeding, is the fact that the Board has already sought and

obtained the dismissal of many of the claims alleged by various Wynn
shareholders

in derivative litigation.

(i) Conceal the fact that the

Defendants have disregarded and/or intentionally breached the Company’s “Code
of

Business Ethics” (the “Code”), which was first adopted on May 4, 2004. as well
as other written policies governing

their conduct;

(j) Enhance the Defendants’

positions as directors and/or officers of Wynn while providing each of them

with substantial compensation, power, and prestige;

(k) Conceal the fact that the

Defendants and senior officers of the Company have given away, directly and

indirectly through Wynn’s political action committee and otherwise at least

$1.8 million in Wynn’s corporate funds in 2014 and many millions of dollars in

previous years to, inter alia,

politicians and/or their campaigns, much of it for the personal benefit of

officers and directors of the Company without any concomitant benefit to the

Company; and

(l) Conceal and misrepresent the

reasons why the Board has not nominated Elaine P. Wynn (“Ms. Wynn”), a major
shareholder of the

Company, for re-election to the Board.

6.

At material times, while serving as Wynn’s purportedly independent public

accounting firm (i.e. auditor), E&Y failed to provide to the Company
the independent auditing services it was well-compensated to

provide, negligently or otherwise failed to conduct audits of the Company’s

financial statements in accordance with Generally Accepted Auditing Standards

(“GAAS”) as E&Y was engaged to do, and issued false and misleading “clean”

opinion letters as to the Company’s year-end financial statements.

7.

This action charges the Defendants with

directly participating in and/or aiding and abetting violations of §14 (a) of

the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 14a-9 thereunder

as well as breaching their common law duty of candor owed to Plaintiff and

other Wynn shareholders. Plaintiff seeks, inter alia, a

determination that the Proxy Statement as issued and disseminated to Plaintiff

and other Wynn shareholders warrants replacement with one in full compliance

with applicable law and an Order negating the shareholder votes to be taken at

the Company’s 2015 Annual Meeting pursuant to the proxies solicited by

Defendants by the Proxy Statement and related materials.

8.

The allegations in this Complaint are based upon personal knowledge as to

Plaintiff and his ownership of shares of Wynn, and on information and belief as

to all other matters, such information and belief having been informed by the

investigation conducted by and under the supervision of his counsel, which

included, among other things: (a) review and analysis of the Company’s public

filings with the SEC; (b) review of its 2011-2015 Proxy Statements; (c) review

of other publicly available information, including articles in the news media;

(d) review of the Company’s website and press releases; (e) consultation with

persons knowledgeable regarding the facts and circumstances alleged

herein; (f) review of filings in

shareholder derivative Complaints and related materials

in litigations commenced against some or all of the Defendants;

(g) review of preliminary and final proxy solicitation materials prepared on

behalf of the Defendants and Ms. Wynn; and

(h) review of filings with the Federal Election Commission

III. PARTIES AND NON-PARTY WYNN

9.

Plaintiff W.A. Sokolowski owns and has

continuously owned common stock of Wynn during the period of the wrongdoing

alleged herein and on March 5, 2015.

Plaintiff is a citizen of New Jersey.

10.

Wynn, itself, is not a defendant herein and no

claims are asserted against it. It is, for the purposes of this litigation,

entirely passive since the Proxy Statement was caused to be issued and

disseminated in its name by the Defendants. It owns and operates integrated

resort properties featuring gaming, retail, convention, and exhibition

facilities in Asia and the United States, including within the Macao Special

Administrative Region of the People’s Republic of China and within this

District. In Las Vegas, Nevada

11.

Defendant Stephen A. Wynn (“Mr. Wynn”) has been the Company’s Chief Executive
Officer (“CEO”),

and Chairman of the Board (“Chairman”). He has

dominated and controlled the Board, hand-selecting those who serve on the Board

and determining the remuneration they receive. In

fact, no member of the Company’s Board

is independent or free from Mr. Wynn’s de

facto control or influence. Indeed, no one would be nominated to join the

Company’s Board without his specific direction or approval. Mr. Wynn

consciously and purposely has engaged in a

course of conduct that has exposed and continues to expose the Company to

potential fines and sanctions and severe scrutiny by federal, state and certain

foreign regulators and law enforcement authorities. The Board continuously has

submitted to Mr. Wynn’s wishes and provided him with various perquisites and

emoluments which are purportedly charged to him at fair market value such as,

e.g., a villa on the Company’s property in Las Vegas.[2]

12.

Defendants Irani,

Virtue, Hagenbuch, Miller, Shoemaker and

Wayson, are presently serving

on the Board, together with Ms. Wynn, whom they have not nominated for
re-election. Upon information and belief, each of such Defendants as well as

Mr. Wynn, is a citizen of states other than New Jersey. Messrs. Hagenbuch and

Virtue are the Board’s nominees for re-election as directors of the Company.

13.

At all relevant times, each of the Defendants,

because of their positions as directors of Wynn, had access to adverse,

non-public information about the Company’s financial condition and operations

and the investigations thereof, including the wrongdoing alleged herein.

14.

Each of the Defendants, because of their

positions of control and authority as Chief Executive Officer (in the case of

Mr. Wynn) and directors of the Company, directly and/or indirectly, exercised

control over the contents of the various public statements issued by the

Company, including the Proxy Statement, which was issued and disseminated by

them and in their name.

15.

Each member of the Board knew

that operating in Macao involved a higher than normal risk of violating
American

and Chinese anti-corruption laws. Nevertheless,

in the face of such specific knowledge, the Defendants breached their fiduciary

duties by failing to implement or maintain adequate internal controls and

accounting systems to prevent violations of the FCPA as well as Nevada gaming

regulations and/or to require the Company’s management to do so. Thus, each of

them knowingly, recklessly, and/or with gross negligence caused the Company to

violate the FCPA as well as the Bank Secrecy Act in order to generate business.

In the case of the Defendants other than Mr. Wynn, they participated and/or

acquiesced in such conduct to maintain his favor and keep their positions as

Directors of the Company and all of the substantial personal benefits that

inured to them as a result.

16.

Indeed, in Wynn Resorts, Limited v. Okada, Case

No. 2:12-cv-00400 (D. Nev.),

in a Counterclaim asserted by the Company’s then largest shareholder, it is

claimed that: “Mr. Wynn, has run Wynn Resorts as a personal fiefdom,
packing the Board with friends who do his

personal

bidding,

and

paying

key

executives exorbitant amounts

for their unwavering fealty.”

17.

Although it appears that the

very costly FCPA investigations of the Company have either been suspended or

terminated, there are ongoing anti-corruption investigations conducted by the

Chinese government that are likely to impact upon Wynn’s operations in Macau.

In addition, there are ongoing investigations by the FBI relating to the

Company’s violations of, inter alia,

the Bank Secrecy Act.

18.

The Defendants were well-informed about

and/or actively participated in the wrongdoing alleged herein, particularly the

acquiescence in illegal money laundering activities at the Company’s casinos,

failure to implement and maintain adequate internal controls as well as

deception of the investing public and federal and state regulators. They

abdicated their respective stewardship responsibilities to the Company by

acquiescing and/or participating in the wrongdoing alleged herein and by

placing their loyalty to Mr. Wynn above their loyalty to the Company.

IV. SUBSTANTIVE ALLEGATIONS

A.

The Demand Letter

19.

The Demand Letter sent to the

Board on behalf of a Wynn shareholder demanded

that the Board cause the Company to sue Mr. Wynn, the members

of the Board, the Company’s officers, other executives, auditors and legal

counsel involved in, among other wrongdoing, the Company’s direct and indirect

money laundering, payment of bribes and otherwise violating the reporting

requirements of the FCPA, the Board’s relationship with former director Kazuo
Okada (Mr.

Okada”) and/or engaging in other wrongful conduct.

20.

The Demand Letter accused the members of the Board

with acquiescing in and/or covering up the specified wrongful conduct, causing

it and/or sitting idly by while the Company concealed its likely exposure in

the wake of such conduct. It also claimed that the Board accepted the funds and
highly

questionable contacts of former Wynn director (since October 21,

2002),

Mr. Okada, when each member of the Board knew or should have known that he was

“unsuitable” to be either a director of the Company or a shareholder. Mr. Okada
had made much of his fortune manufacturing

gaming machines for Japan’s notorious pachinko parlors — and who was apparently

well-acquainted with the underside of the mushrooming Asian gambling industry.

Red warning flags were highly visible to each member of the Board as to Mr.

Okada and his well-known propensity for impropriety. Nevertheless, Mr. Wynn and

each member of the Board was willing to make a “pact with the devil” to obtain

his financing and contacts and, thereafter, let him remain a shareholder and

director once his egregious conduct became known.

21.

The claims set forth in the Demand Letter are

purportedly being investigated by a “committee” of unidentified members of the

Board. However, despite such representations, whatever

“investigation” is being carried out is being performed by PAC consistent with

what appears to be its ultimate goal, i.e., to “whitewash” the wrongful conduct

as alleged in the Demand Letter.

22.

By aiding and abetting the

Board’s waste of Wynn’s assets, and likely collecting millions of dollars of

the Company’s money, PAC is acting consistent with the Board’s successful

attempt to have dismissed previously alleged and pending claims by Wynn

shareholders. Indeed, to carry out their solely personal objectives, the Board
has

given PAC “carte blanche” and an open checkbook in order to develop a defensive

strategy vis-à-vis the claims set

forth in the Demand Letter.

23.

Moreover, PAC explicitly

refused to answer questions addressing the bona

fides of its actions and those of the “committee” of the Board it purports

to represent. In particular, it refused to identify the members of such

“committee” or provide the Board’s resolution appointing it to consider the

Demand Letter.[3] In particular, PAC would
not answer a single one of the questions

that would establish, inter alia, whether it was solicited by

Wynn’s General Counsel or some other lawyer (as distinct from the “committee”),

when it was contacted and whether it and/or “committee” members had conflicts

of interest that would demonstrate their bias and interestedness.

B. Macau

24.

In 2006, Wynn Resorts opened a hotel in Macau under a land

concession agreement granted by the Macau government, with a term running from

2002 to 2022. In February 2006, the Company announced that it had submitted an

application to the Macau government for a second land concession agreement to

build a new casino resort.

25.

After five years, the second land concession agreement had still

not been approved. In May 2011, at Mr. Wynn’s instigation, the Board, with the

exception of Mr. Okada, approved a $135 million “donation” to the University of

Macau Development Foundation (“Development Foundation”). The Macau “donation,”

was essentially an indirect bribe to the Chancellor of the Development

Foundation who was, coincidentally, head of the Macau government.

26.

The “donation” consisted of a $25 million charitable transfer made

in 2011, and a commitment to make additional transfers of $10 million per year

for each of the calendar years between 2012 and 2022. The Macau “donation,” the
largest in the

history of the University, represented an illegal or otherwise improper attempt

to influence the Macau government to expedite approval of the second land

concession agreement. There was no legitimate business purpose for the

“donation” which, if not a bribe, was a waste of Wynn’s corporate assets for

which it got nothing in return.

27.

Moreover, the “donation” contravenes the Company’s stated policies

including, inter alia, the Code, which defines itself as

“a statement of policies for the individual and business conduct of the

Company’s employees and Directors….” The Code specifically addressed conduct

such as the “donation” when it stated:

“Prohibition on Gifts to Government Officials
and Employees…You

are prohibited from providing gifts, meals or anything of value to government

officials or employees or members of their families in connection with Company

business without prior written approval from the Compliance Officer…

Bribery of Government Officials The Company’s

Policy Regarding Payments to Foreign Officials, the [FCPA], and the laws of

many other countries prohibit the Company and its officers, employees and

agents from giving or offering to give money or anything of value to a foreign

official, a foreign political party, a party official or a candidate for

political office in order to influence official acts or decisions of that

person or entity, to obtain or retain business, or to secure any improper

advantage.”

28.

Some time prior to February 8,

2012, the Securities and Exchange Commission (the “SEC”), in response to

information that had been provided to it, and based upon a belief that the

Macau “donation” was a bribe and that the Company had not properly accounted

for it or made appropriate disclosures, commenced an informal investigation.

The SEC thereafter informed the Company that it had commenced an informal

inquiry into the Macau “donation.”

29.

Ultimately, based upon the

information and documents at its disposal, in 2013, the SEC informed the

Company that it had concluded its investigation. In an 8-K Report with the SEC,
Wynn

informed shareholders that the investigation had concluded. In particular, you

caused the Company to state in its filing:

“On July 2, the company received a

letter from the (commission) stating that the investigation had been completed

with the (SEC) not intending to recommend any enforcement action against the

company by the SEC.”

23. Speaking to The Associated Press from his yacht off

the Spanish island of Ibiza following the SEC filing, Mr. Wynn said he never

had any doubt federal investigators would “clear” the Company. He is quoted as

saying:

“We were so sanguine that we never paid

any attention to it; we had no exposure. It was a nonevent except for the damn

newspapers.”

30.

Consistent with its

unimpressive history of oversight (it encourages Nevada casinos to

self-police), in February 2013, based on the facts and documents that were made

available to it, the Nevada State Gaming Control Board (“NGCB”) purportedly

investigated the Macau “donation” and found no violations of its rules and

regulations.

31.

While the Company had, so far,

escaped liability under the FCPA or that might be imposed by Chinese

authorities as a result of the $135 million “contribution, following the

foregoing NGCB decision, in early April, 2013, Mr. Okada sent a letter setting

forth the Board’s personal responsibility for the “contribution.” The letter
states, under the heading “Suspicious $135 million donation to

the University of Macau Development

Foundation” as follows.

“In April 2011, the Board met, discussed, and
approved

a pledge by Wynn Macau, Limited (“Wynn Macau”), a subsidiary of the Company, to

donate HK$1 billion (roughly $135 million) to the University of Macau

Development Foundation, at a time when Wynn Macau was seeking local government

approval to develop a third casino. This donation is suspicious for a

number of reasons, including its enormous size, the fact that the 10-year term

of the pledge matches precisely the length of the casino license Wynn Resorts

was seeking, and the fact that the lead trustee of the University of Macau

Development Foundation also has a position in the Macau government which

enables him to influence the issuance of gaming licenses. Mr.

Okada questioned and objected to the donation and was ultimately the sole

director to vote against it. Mr. Okada has noted that ‘I am at a

complete loss as to the business justification for the donation, other than
that

it was an attempt to curry favor with those that have ultimate authority for

issuing gaming licenses.’ Following the April 2011 board meeting,

pursuant to his rights as a director of the Company and in furtherance of his

fiduciary duties to stockholders of the Company, Mr. Okada, sought to further

investigate the Wynn Macau donation and requested additional information from

Wynn Resorts concerning the donation and related matters. When the

Company refused to provide the information, Mr. Okada took legal action

and was vindicated by a court order requiring Wynn Resorts to comply with Mr.

Okada’s reasonable requests. As Mr. Okada feared, the questionable Wynn

Macau donation has already spawned at least four stockholder lawsuits against

the Company and investigations by both the United States Securities and

Exchange Commission (for possible violations of law including the Foreign

Corrupt Practices Act) and the Nevada Gaming Board. Not only is this

enormous financial commitment a drain on the Company’s coffers, but now Wynn

Resorts stockholders will be saddled with the added costs associated with

responding to the regulatory investigations and lawsuits. If the results

of these investigations and lawsuits include the development of facts regarding

legally questionable practices by the Company, stockholders will be at still

further risk.”

25. In response, the Board caused the Company

to issue a statement as follows:

“[Mr. Okada’s company] Aruze has not been a

stockholder of Wynn Resorts, Limited since February 18, 2012 when its

shares were redeemed by the Wynn Board after a lengthy, third-party

investigation uncovered prima facie evidence of improper conduct under the

Foreign Corrupt Practices Act by Mr. Okada, Universal Entertainment and Aruze
in

their dealings with Philippine officials. This most recent filing is

a regrettable attempt to divert attention from the issues facing Mr.

Okada and Aruze. Given the fact that Aruze was ejected seven months ago as

a Wynn shareholder based on conduct unacceptable for a gaming licensee, it

has absolutely no rights as a shareholder to nominate directors and its

invalid nominations have been rejected on this basis.”

32.

Curiously, in attacking Mr.

Okada, presumably upon the advice of the Board’s legal counsel, it did not deny

his allegations regarding the Company’s $135 million “contribution.”
Notwithstanding

the belittling of these investigations, in fact, the Company was caused by the

Board to expend substantial sums thereupon which it would not have had to incur

but for the illegal or otherwise improper conduct referred to above. While,

ultimately, no charges were brought against the Company or its Board or

enforcement actions taken, none of these fortunate outcomes for the Company can

be attributed to an absence of serious wrongdoing as claimed above. In any

event, since there was no legitimate corporate purpose for the Macau

“donation,” it amounted to a waste of the Company’s assets for which the Board

is responsible.

33.

Moreover, while corruption has

been rampant in Macau, the only place where casino gambling in China is legal,

the central government increasingly has taken action to penalize companies

which have been found to engage in corrupt activities, particularly bribery of

governmental officials. It is inconceivable that the Macau “donation” is not on

the “radar screen” of China’s anti-corruption regulators and that the Company

remains vulnerable to having its otherwise legal activities curtailed or even

eliminated. Thus, any corrupt or otherwise illegal conduct (such as illegal

foreign exchange dealings, bribery or money laundering), particularly if the

Board acquiesces in such conduct, leaves the Company vulnerable to material

negative events, such as interference with its business operations in China and

substantial fines.

C. The Defendants’ Relationship With Mr. Okada

34.

The Board was more than

happy to accept Mr. Okada’s capital when it was needed to help the Company,

notwithstanding its knowledge that he was, from the outset, an unsuitable

shareholder or director of Wynn. Indeed, material facts regarding his

background were kept from the Nevada Gaming Control Board (“NGCB”) and other

regulators to allow Mr. Okada to act as a director and major shareholder of the

Company. It has been reported that at a 2004 regulatory hearing, a Nevada
official

told Mr. Okada that Mr. Wynn was putting his reputation on the line in allying

himself with him, even if the NGCB had never found ties between Mr. Okada,

Japan’s then-largest individual taxpayer, and criminal organizations.[4]

35.

Presumably, following a deterioration in the close personal

relationship between Mr. Wynn and Mr. Okada, in relation to the Macau

“donation,” Mr. Okada called into question whether the magnitude of the

donation was an appropriate use of the Company’s funds. He also demanded an

investigation of the Company’s records related to the purported “donation.”

36.

Although the members of the Board were more than willing to accept

Mr. Okada as a business partner and a director of Wynn previously, following

Mr. Okada’s demands, Mr. Wynn and his allies then retaliated against him.

37.

In November 2011, the Board retained Freeh Sporkin & Sullivan,

LLP (“Freeh”), a law firm with excellent credentials but which could be

expected to (and did) perform as expected by the Board, to investigate whether

Mr. Okada was “suitable” to own shares of Wynn. The Board used the Freeh firm’s

conclusions that he was an “unsuitable” shareholder to justify a forcible

redemption of Mr. Okada’s $2.77 billion stake in the Company in exchange for a

promissory note valued at $1.9 billion. In particular, the Freeh firm
concluded,

inter alia, with respect to Mr.

Okada:

“Mr. Okada, his associates and

companies have arranged and designed his corporate gaming business and

operations in the Philippines in a manner which appears to contravene

Philippine Constitutional provisions and statutes that require 60% ownership by

Philippine nationals, as well as a Philippine criminal statute.

Mr. Okada, his

associates and companies appear to have engaged in a longstanding practice of

making payments and gifts to his two (2) chief gaming regulators at the
Philippines

Amusement and Gaming Corporation (“PAGCOR”), who directly oversee and regulate

Mr. Okada’s Provisional Licensing Agreement to operate in that country.

Since 2008,

Mr. Okada and his associates have made multiple payments to and on behalf

of these chief regulators, former PAGCOR Chairman Efraim Genuino and Chairman

Cristino Naguiat (his current chief regulator), their families and PAGCOR

associates, in an amount exceeding US 110,000.

At times,

Mr. Okada, his associates and companies have consciously taken active

measures to conceal both the nature and amount of these payments, which appear

to be prima facie violations of the United States Foreign Corrupt Practices Act

(“FCPA”). In one such instance in September 2010, Mr. Okada, his

associates and companies, paid the expenses for a luxury stay at Wynn Macau by

Chairman Naguiat, Chairman Naguiat’s wife, their three children and nanny,

along with other senior PAGCOR officials, one of whom also brought his family.

Mr. Okada and his staff intentionally attempted to disguise this

particular visit by Chairman Naguiat by keeping his identity “Incognito” and

attempting to get Wynn Resorts to pay for the excessive costs of the chief

regulator’s stay, fearing an investigation. Wynn Resorts rejected the request

by Mr. Okada and his associates to disguise and to conceal the actual

expenditures made on behalf of Chairman Naguiat.

Additionally,

Mr. Okada, his associates and companies appear to have engaged in a

pattern of such prima facie violations of the FCPA. For example, in 2010 it

also is possible that Mr. Okada, his associates and companies made similar

payments to a Korean government official who oversees Mr. Okada’s initial

gaming investment in that country. Additional investigation is needed to

develop and confirm these possible FCPA violations.

The prima facie FCPA violations by

Mr. Okada, his associates and companies constitute a substantial, ongoing

risk to Wynn Resorts and to its Board of Directors, creating regulatory risk,

conflicts of interest and potential violations of his fiduciary duty to Wynn

Resorts.

Finally,

Mr. Okada’s documented refusal to receive Wynn Resorts requisite FCPA

training provided to other Directors, as well as his failure to sign an

acknowledgment of understanding of Wynn Resorts Code of Conduct, increase this

risk going forward.”

38.

The foregoing conduct, if as

alleged by Freeh, was ample justification for removing Mr. Okada as an

“unsuitable” shareholder of the Company.[5] In fact, each member of the
Board was well aware of Mr. Okada’s

casino project in the Phillipines and, ifits members did not know of any such

alleged illegal payments there, they should have been aware of them when the

Board took Mr. Okada on as a partner and asked that he join the Board or

thereafter.

39.

Indeed, it is inconceivable

that the Board and lawyers assisting it did not thoroughly investigate Mr.

Okada and his affiliated companies beforehand. Notwithstanding his highly

questionable background, according to a March 2, 2012 article in The New
York Times
, during a May “2008

financial conference call, when asked about Mr. Okada’s planned Philippines

venture, Mr. Wynn professed his support and counsel on the project.” According

to the Times, Mr. Wynn said: “He’s my

partner and friend and there is hardly anything that I won’t do for him…I love

Kazuo Okada as much as any man that I’ve ever met in my life.”

40.

Based upon publicly available

information, it appears that it was Mr. Okada’s objections to the Macau

“donation” and personal disagreements with Mr. Wynn that led the Company, in

February 2012, to sue Mr. Okada and the two entities he controls, Aruze and

Universal Entertainment Corp., for breach of fiduciary duty rather than his

newly-uncovered “unsuitability.”[6]

41.

Upon

information and belief, such litigation has been stayed at the request of
federal prosecutors who have been investigating Mr. Okada and his

companies for potential violations of anti-bribery laws in relation to his

casino development on Manila Bay. It has also been reported by Reuters that
the Philippine government

has also been investigating $40 million in payments made by Universal

affiliates to a politically-connected consultant in 2010 around the time

Universal was lobbying for concessions for its casino resort.

42.

Despite the legitimacy of

his objections to the Company’s Macau “donation,” in making the Faustian

bargain that the Board did with Mr. Okada, its members have subjected the

Company irresponsibly to massive expenses and investigations that could have

been avoided. Most recently, the relationship with Mr. Okada has led to further

substantial expenses in Japan. On April 24, 2014, Mr. Okada caused his company
to file a complaint with the Tokyo District

Public Prosecutors Office accusing the Company and Mr. Wynn with

“defamation, harm to public trust and circulation of rumors” in

relation to the publication of an investigation into his company’s conduct in

the Philippines. The Company’s response was to the effect that the criminal

complaint was an attempt by Mr. Okada “to create a distraction from the

investigations pending against him” and that it was related to a previously

filed civil defamation case that a dismissed Tokyo court ruling presently being

appealed.

D. Money Laundering

43.

Macau’s

casinos such as Wynn’s have relied on junket operators for many years to locate

gamblers in mainland China and transport them. Because of Chinese laws

restricting capital transfer out of the country (i.e. the mainland), these

junket operator/middlemen serve a critical role by providing financing to
Chinese

players and also to collect gambling debts.

44.

Lax rules

and/or non-enforcement of them in Macau allow criminals to transform ill-gotten

cash (including restricted capital from the mainland) into legitimate-looking

gambling “winnings” from casinos. A congressional report in October said $202

billion is laundered each year through Macau. Upon information and belief, you

have long known of these illegal practices at the Company’s casinos, not only

in Macau but elsewhere, particularly in Las Vegas.

45.

Notwithstanding

the increasing attention being paid by federal authorities, the Board and Mr.

Wynn, in particular, were well aware or should have been aware that money

laundering was taking place at the Wynn Las Vegas, some of which was at the

behest of drug dealers known to high-level Wynn executives and other employees.

Upon information and belief, a number of Wynn’s senior-level executives and

“hosts”, among others, have been interviewed by FBI and DEA investigators.[7]

Such interviews and the subject matter thereof have created substantial turmoil

at the Company’s Las Vegas casinos causing employee morale issues, turnover and

fear of the consequences of the investigations.

46.

Moreover,

upon information and belief, instead of immediately taking action to stop such

illegal activity after it was brought to Mr. Wynn’s and the Board’s attention,

and reported it to relevant investigators, it appears that the existence of

money laundering “swept it under the

rug.”

47.

It is

believed that there are presently investigations underway regarding the

Company’s possible violations of the Bank Secrecy Act by, inter alia,
the FBI, the IRS and the DEA which, if found, would

subject it to indictment, massive fines and other expenses.[8]

Indeed, in 2013, Las Vegas Sands, a competitor, was required to pay $47 million

in the wake of an investigation of merely two individuals who had used its

casinos to launder money.

48.

By

acquiescing in money laundering at the Company’s casinos, the Board has

subjected and may be continuing to subject Wynn to fines and other penalties.
Moreover,

in the face of investigative reporting by The

Wall Street Journal (see, article November 21, 2014), the Board’s

spokesman, Michael Weaver, the Company’s Senior Vice President, is quoted as

stating falsely:

“We are not aware of any criminal

investigation of the Company whatsoever and we have serious doubts that any

such investigation is taking place.”

49.

It is simply inconceivable

that the Board and Mr. Weaver were unaware of the fact that the wide-ranging

money laundering investigations referred to above were well underway and that

present and former employees have been interviewed by the FBI and others in

connection therewith.[9]

50.

By failing to disclose timely

all material facts to the investing public with respect to the money laundering

at the Company’s casinos and the foregoing investigations, the Board has
subjected

Wynn to massive claims by purchasers of the Company’s securities. None of such

activities, their cover-up nor the existence of the investigations, despite the

materiality of such facts, has been disclosed in the Proxy Statement.

E. Prostitution

51.

On

information and belief, all Board members have been well aware that employees

of the Company, directly and indirectly, provide prostitutes to selected

gamblers and others at the Wynn Las Vegas, where prostitution is illegal.

Although the NGCB has, to date, been lax in its enforcement, such policy can

change at any time. If it can be shown that the Board and/or the Company’s
senior

executives acquiesced in such illegal conduct, such persons, including Mr.

Wynn, could be found to be unsuitable to operate a casino in Nevada or

otherwise severely penalized. Such conduct renders Wynn vulnerable to

substantial damages and key executives being found “unsuitable.”

F.

Misuse of the Company’s

Assets

52.

Mr.

Wynn has personally availed himself of corporate assets including, inter
alia
, personal living facilities

at a villa on the Company’s property, using the Company’s decorators,

consultants and employees for his personal benefit and otherwise, none of which

is accurately reflected in the Proxy Statement. To the extent thereof, Mr. Wynn

should be required to account to the Company and be required to repay it for

any such unjust benefits he has received and may be still receiving.

G.

The Proxy Statement

53.

As

they did with respect to previous years’ proxy statements, the Defendants

caused the issuance and dissemination of the the Proxy Statement, which is in

violation of §14(a) of the Securities Exchange Act and Rule 14a-9 promulgated

thereunder by the SEC, as well as their duty of candor owed to Plaintiff and

other Wynn shareholders. The Proxy Statement, issued and disseminated to Wynn
shareholders of record as of March 5,

2015 in connection with the Company’s 2015 Annual Meeting of Shareholders,

solicits votes on the Defendants’ behalf and in support of the proposals

advocated by them, including the re-election of directors Hagenbuch and Virtue,

ratification of the Audit Committee’s selection of E&Y as Wynn’s auditor

and in opposition to an institutional shareholder’s proposal to shed light on

Wynn’s political contributions (”Political Contribution Transparency”
proposal).

54.

Upon information

and belief, each of the Defendants personally approved of the substantive

content of the Proxy Statement and/or indirectly controlled its content, all

the while omitting material facts bearing upon how the shareholders of the

Company would vote upon, inter alia, the Board’s two nominees for
re-election

to directorships and the continued selection of E&Y as the Company’s

purportedly independent auditor.

55.

Despite

federal disclosure requirements, the Board caused the Proxy Statement to be

issued on the Company’s behalf to misrepresent and fail to disclose material

facts regarding the manner in which Board members were and are selected and

evaluated as well as how they have functioned historically in their stewardship

of the Company.

56.

In order to induce Wynn’s

shareholders to vote in favor of, inter alia, the re-election of the

Defendants’ two nominees for re-election. to bolster their apparent legitimacy

as directors and to secure E&Y as Wynn’s auditor, the Proxy Statement set

forth various representations about

the purported qualifications of the members of the Board (including 2015’s two

nominees for re-election, Messrs. Hagenbuch and Virtue), the conduct of the

various committees of the Board and their individual members and with respect

to E&Y and its services.

57.

Moreover, by failing to

disclose the material facts regarding the Defendants’ conduct as described

herein and in the Demand Letter, the Proxy Statement set forth an unrealistic

portrait of the Defendants which presented them as highly credible regarding

the issues presented for a shareholder vote. In particular, had the Defendants

disclosed all the material facts with regard to their multi-year misconduct,

they would have lost the credibility integral to shareholders’ ability to
evaluate

their recommendations and solicitations.

58.

The deceptive statements

regarding the Board and, in particular, the material facts omitted from the

Proxy Statement as to the wrongdoing of such directors, are likely to directly

cause the re-election of the Board’s nominees and to otherwise cause

shareholders to vote as recommended by the Defendants..

59.

In addition to the request

that Wynn shareholders re-election two directors and vote against the Political
Contribution

Transparency proposal, the Proxy Statement also asks

that the Company’s shareholders

ratify the Audit Committee’s appointment of E&Y as the independent public

accountants (i.e. auditor) for the Company. In seeking such ratification, the

Proxy Statement does not disclose the highly material fact that E&Y had

failed to conduct its audits of Wynn’s financial statements in conformity with
GAAS

and represented falsely in its opinion letters as to such statements that they

were prepared in conformity with Generally Accepted Accounting Principles

(“GAAP”) when the Board knew or should have known that they were not. In

particular, E&Y’s failure to expose and disclose, inter alia, Wynn’s
money laundering and the serious breakdown in

the Company’s controls with respect thereto was a breach of its engagements to

provide auditing services in conformity with GAAS.

60.

The Defendants knew but

did not disclose in the Proxy Statement that, at minimum, E&Y was

undoubtedly negligent or reckless in the performance of its audit

responsibilities owed to the Company. Moreover, the Defendants knew and did not

diclose in the Proxy Statement that E&Y had, over a period of many years,
breached its annual contracts with the

Company (i.e. the terms of its engagement) in carrying out the audits that it

did and by issuing false and misleading opinion letters that it knew or should

have known were unjustified.

61.

As

a result of the deceptive Proxy Statement and, in particular, its failure to

disclose material facts regarding E&Y and its defective audits and false

“opinion” letters, the ratification of E&Y’s re-appointment as Wynn’s

auditor by the Board’s Audit Committee,is likely to occur.

62.

The

Proxy Statement states with respect to the proposed re-election of Messrs.

Hagenbuch and Virtue:

“The Board has voted to reduce the size of Class I

to two directors, effective upon expiration of the terms of the current Class I

directors at the 2015 Annual Meeting, resulting in the size of the Board being

reduced from eight directors to seven. The Board has nominated the two nominees

listed below to serve as Class I directors for terms that commence upon

election at the 2015 Annual Meeting”

.

In making such statement and others, the
Defendants misrepresented

that the entire Board voted for such

reduction and nominated solely the two nominees. In fact, the Defendants

concealed the fact that they are forcing Ms. Wynn, currently and a long-time

director and major shareholder of the Company, off the Board, have not

disclosed the reasons for doing so and that she has not so voted.[10]

On March 16, 2015, Ms. Wynn sent a letter to the Company’s shareholders stating,
inter alia
,:

“I have served tirelessly on your behalf for the past 13 years as

a director and co-founder of Wynn Resorts. The board recently took action

to shrink the size of the board by one director and thereby exclude me from the

board despite my immense industry knowledge and expertise, and my role building

and promoting the Wynn business and brand through the years. This action

was without merit and therefore, I have decided to file my nomination and seek

your vote for my re-election to the board.”[11]

63.

The Defendants responded, in part, to Ms.

Wynn’s letter to the Company’s shareholders, while concealing the fact that

they had for many years supported her continuation as a director, stating, inter
alia
,:

“Following an extensive process which included
multiple meetings

and the participation of Ms. Wynn, the Corporate Governance Committee

determined not to recommend that Ms. Wynn be re-nominated due to:

concerns over actual and
potential

conflicts of interest; in this regard the Corporate Governance Committee

believes that Ms. Wynn has placed her individual interests ahead of her

duties as a director, including in her cross claim against the Company’s

Chief Executive Officer;

 

the Committee’s view that
Ms. Wynn’s

claims in her lawsuit and ongoing dispute with the Company’s Chief Executive

Officer have reduced the effectiveness of her participation on the Board; and

 

the Committee’s view that
Ms. Wynn is

not meaningfully contributing to the Board’s discussion and work, which is

increasingly conducted at the Board committee level, in which Ms. Wynn

is unable to participate due to Ms. Wynn’s lack of independence under

NASDAQ listing standards and resulting inability to serve on any existing

Board committees.

64.

Ms. Wynn contradicted Defendants’

statements quoted in the previous paragraph and credibly said in her own

supplement to her proxy

solicitation:

“For

the reasons described in detail above, I represent the superior candidate when

compared with Mr. Hagenbuch, who has little, if any, experience in the

highly regulated gaming industry. In contrast, I have spent more than four

decades in the resort, hospitality and gaming industries. Because of my

substantial ownership of the Company, my interests are aligned with yours.

Moreover, I am fully committed to continuing my efforts to hold Company

management accountable to our stockholders and to represent the views of women

on a Board otherwise composed entirely of men.”

60. Ms. Wynn went on to further point out the
deceptive nature of

the Defendants’ statements and said:

“First, the Company Proxy Statement states

that the Nominating and Corporate Governance Committee believes that I have

placed my own interests ahead of the company’s and created actual and potential

conflicts of interest because my lawsuit against Mr. Wynn, if successful,

could trigger a violation of indenture covenants. I believe that this is

neither an authentic nor a valid reason to remove me from the Board.

I believe that this is not an authentic reason

because this issue existed at the time

of my election to the Board in November 2012 and, in that election, the Board

apparently had no problem re-nominating me as a director and urging

stockholders to vote for me. The Board’s decision not to re-nominate me now,

when nothing has changed since the last time I was up for re-nomination,

illustrates my belief that this reason is nothing more than a pretext by the

Board.

I also believe that this is not a valid reason. My

dispute with Mr. Wynn is one between two stockholders who disagree over

the continued validity of a stockholders agreement entered into long ago. It’s

a stockholder-to-stockholder issue and not a Board issue. This issue will

persist whether or not I serve on the Board, and in my opinion, it does not

impact the ability of either of us to act as effective Board members.

Furthermore, although I am seeking to gain control of the shares I own, I

remain devoted to the company and its future success. I intend to remain a

significant stockholder indefinitely. Be assured that my interests as a

stockholder are aligned with yours. Furthermore, in my view, there is no actual

or potential conflict of interest other than a possible technical violation of

the indenture covenants if my cross-claim against Mr. Wynn is successful.

A violation of the indenture covenants will only occur if two things happen:

there is a change of control of the Company and, within 60 days

thereafter, certain of the Company’s outstanding notes are rated below

investment grade by both rating agencies that rate such notes. Even if I win my

cross-claim and the Company’s notes are downgraded by both rating agencies,

such a violation could be prevented by my agreeing to let Mr. Wynn vote

fewer shares than he now does, but still a sufficient number to ensure that our

combined share total is larger than that of the next-largest stockholder. While

such an agreement cannot be certain, as the second and third largest

stockholders of the company, respectively, Mr. Wynn and I have every

incentive to arrive at an agreement and avoid triggering a covenant violation.

Second, the Company Proxy Statement states that the

Committee believes that the pendency of that lawsuit has “reduced the

effectiveness” of my participation on the Board because independent

directors have voiced concerns that Board discussions could be “negatively

impacted by the perception that [I] might seek to utilize statements made at

Board meetings” in order to advance my litigation claims or my position as

a stockholder. The Committee apparently

did not have concerns about the effectiveness of my participation on the Board

or the effect of my presence on deliberations of the Board when it re-nominated

me in November 2012, many months after my claim was filed. Once again, I
believe that this reason is

pretextual, because nothing has changed since the last time I was up for

re-nomination. In fact, I do not recall hearing any member of the Board

ever raise concerns about any potential chilling effect that my litigation with

Mr. Wynn may have on deliberations. If

any member of the Board had such concerns, it is my view that the issue should

have been raised and discussed, rather than referenced for the first time in

the Company Proxy Statement. Moreover, the independent directors meet in

Committee, as well as in executive sessions following Board meetings, so they

have ample opportunity to speak with one another without Mr. Wynn or me in

attendance.

Finally, the Company Proxy Statement states that the

Committee is focused on my “lack of independence under NASDAQ listing

standards and resulting inability to serve on any existing Board

committees.” I find this statement to be quite puzzling. It turns out that

likely I am “independent.” I believe that I satisfy all of the bright

line tests for independence under the NASDAQ rules, and that the Board could
make

a determination that I am “independent” if it wanted to. I wouldn’t

have qualified when I was married to the Chairman and CEO, but obviously that’s

no longer an issue. It’s simply unfair of the Board to unjustifiably state the

opposite conclusion and then use that as a reason for excluding me.

Furthermore, I think that it is a curious argument to make given that the Board

chose to shrink the size of the Board rather than nominate an independent

director in my place. As a result, my exclusion from the Board would have

absolutely no effect on increasing the number of independent directors who can

serve on existing Board committees. All it does is eliminate a strong director

from the ranks of the Board.

There are two seats up for election. I intend to use

the proxies given to me to vote for myself and for the one candidate nominated

by the Board other than John J. Hagenbuch. Also, as I discuss in more detail

later in this proxy statement, if the stockholders agreement between

Mr. Wynn and me is valid, as Mr. Wynn contends, he is obligated to

endorse and vote for me as a director.

For

the reasons described in detail above, I represent the superior candidate when

compared with Mr. Hagenbuch, who has little, if any, experience in the

highly regulated gaming industry. In contrast, I have spent more than four

decades in the resort, hospitality and gaming industries. Because of my

substantial ownership of the Company, my interests are aligned with yours.

Moreover, I am fully committed to continuing my efforts to hold Company

management accountable to our stockholders and to represent the views of women

on a Board otherwise composed entirely of men.”

61. The Proxy Statement

also includes a stockholder proposal by the New York State Common Retirement

Fund (the “Fund”), the beneficial owner of 284,854 shares as of

November 25, 2014 (the ”

Political Contribution Transparency ” Proposal). The Proxy

Statement contains the following description of the Political Contribution
Transparency Proposal:

“Resolved, that the shareholders

of [the Company] hereby request that the Company provide a report, updated

semiannually, disclosing the Company’s:

1. Policies

and procedures for making, with corporate funds or assets, contributions and

expenditures (direct or indirect) to (a) participate or intervene in any

political campaign on behalf of (or in opposition to) any candidate for public

office, or (b) influence the general public, or any segment thereof, with

respect to an election or referendum.

2. Monetary

and non-monetary contributions and expenditures (direct and indirect) used in

the manner described in section 1 above, including: a.The identity of the

recipient as well as the amount paid to each; and 
b.The title(s) of the

person(s) in the Company responsible for decision-making.

The report shall be presented to the board of

directors or relevant board committee

and posted on the Company’s website.”‘

62. The

Fund submitted the following Supporting Statement regarding the
Political Contribution Transparency Proposal:

“As long-term shareholders of Wynn

Resorts, we support transparency and accountability in corporate spending on

political activities. These include any activities considered intervention in

any political campaign under the Internal Revenue Code, such as direct and

indirect contributions to political candidates, parties, or organizations;

independent expenditures; or electioneering communications on behalf of

federal, state or local candidates.

Disclosure is in the best interest of the company

and its shareholders and critical for compliance with federal ethics laws.

Moreover, the Supreme Court’s Citizens United decision recognized the

importance of political spending disclosure for shareholders when it said,

‘[D]isclosure permits citizens and shareholders to react to the speech of

corporate entities in a proper way. This transparency enables the electorate to

make informed decisions and give proper weight to different speakers and

messages.’ Gaps in transparency and accountability may expose the company to

reputational and business risks that could threaten long-term shareholder

value.

Wynn Resorts contributed at least $1,800,053 in

corporate funds since the 2004 election cycle. (CQ: http://moneyline.cq.com and

National Institute on Money in State Politics: http://www.followthemoney.org)

However, relying on publicly available data does not

provide a complete picture of the Company’s political spending. For example,

the Company’s payments to trade associations used for political activities are

undisclosed and unknown. In some cases, even management does not know how trade

associations use their company’s money politically. The proposal asks the

Company to disclose all of its political spending, including payments to trade

associations and other tax exempt organizations used for political purposes.

This would bring our Company in line with a growing number of leading

companies, including Qualcomm, Exelon, Merck and Microsoft that support

political disclosure and accountability and present this information on their

websites.

The Company’s Board and its shareholders need

comprehensive disclosure to be able to fully evaluate the political use of

corporate assets. We urge your support for this critical governance

reform.”

63. The

Proxy Statement contains the Board’s argument in opposition to the Political
Contribution Transparency Proposal which, while partially accurate, conceals

the material fact that many of the Company’s direct and indirect

contributions to political candidates, parties, or organizations, independent

expenditures and/or electioneering communications (directly

or through Wynn Resorts Limited PAC, i.e. “Wynn PAC” its political
action committee) on

behalf of federal, state or local candidates or parties were made and are being

made to benefit personally members of the Board and senior officers of the

Company:

“After careful consideration, the Board of

Directors recommends that stockholders vote AGAINST this proposal for the

following reasons:

The Company operates in a highly regulated industry,

and the decisions of federal, state, and local governments can significantly

impact the Company. Therefore, the Board believes that it is critical that the

Company participate in the political process to protect its business interests

and its stockholders’ interests. The Company is committed to participating in

the political process as a good corporate citizen, in full compliance with

applicable laws. The Company also has adopted the Political Contributions

Policy and Procedures. In addition to the Company’s Code of Business Conduct

and Ethics, the Political Contributions Policy and Procedures governs the

Company’s consideration of political activities, including the Company’s

political contributions at the federal, state, and local levels and the

Company’s membership in trade associations.

The Company’s political contributions at the

federal, state, and local levels are subject to extensive internal review and

oversight to confirm their compliance with applicable contribution limits and

regulations. Recognizing that the Company likely will not agree with every

position a candidate takes, the Company’s government affairs team meets with a

candidate prior to making significant contributions to determine whether

supporting the candidate is in the best interests of the Company and its

stockholders. In addition, the Company reports to the Audit Committee on its

political contributions on a periodic basis.

The Company also believes that it provides

sufficient transparency with respect to its political contributions. The

Company’s participation in political activities includes contributions to

federal elections through Wynn PAC. In compliance with federal law, [Wynn PAC]

files regular reports with the Federal Election Commission (“FEC”) to

disclose political contributions by Wynn PAC. These reports are publicly

available on the FEC website. In addition, reports regarding the Company’s

specific political contributions in various jurisdictions are publicly

available at each jurisdiction’s official website.

From time to time, the Company pays annual

membership dues to industry trade associations. The trade associations in which

the Company participates may engage in political activities, but such decisions

are governed by those associations’ respective bylaws. Thus, even when the

Company participates in these associations, the Company does not control how

they use membership dues. The Company expects these trade associations to

comply with applicable laws with respect to their political activities. As

such, the Board believes that additional disclosures regarding the specific

payments made to these trade associations would not benefit stockholders.

In sum, the Company already discloses sufficient

information regarding its political contributions; and the Company has an

appropriate system of oversight, including its Political Contributions Policy

and Procedures, designed to confirm that the Company’s political contributions

comply with applicable law and are in the best, long-term interests of the

Company and its stockholders. Accordingly, the Board believes that preparing an

additional report as requested in the proposal would be unnecessary and an

imprudent use of the Company’s time and resources.”

64. The Proxy Statement failed to disclose that many of the

Company’s direct and indirect political contributions have absolutely no

connection to the Company’s business operations or serve any legitimate

business purposes. These included, inter

alia, contributions to the 2012 presidential campaign of Willard “Mitt”

Romney and congressional candidates in districts far-removed from any of the

Company’s casinos or other businesses. Indeed, upon information and belief,

many or most of such political contributions were made and are being made to

reflect the political philosophy of Mr. Wynn and other members of the Board,

none of which is disclosed by the Defendants in the Proxy Statement or

follow-up solicitation materials.

I. FALSE CERTIFICATIONS

65. As

the senior-most officer of the Company, Mr. Wynn, among others in management,

had extensive duties to ensure the accuracy and completeness of financial

information disseminated to investors.

66. As

noted in American Institute of Certified Public Accountants (“AICPA”) auditing

standard, Section 110.03, a public company’s management is responsible for

preparing financial statements in accordance with GAAP:

“The financial statements are

management’s responsibility.… Management

is responsible for adopting sound accounting policies and for establishing and

maintaining internal controls that will, among other things, initiate, record,

process, and report transactions (as well as events and conditions) consistent

with management’s assertions embodied in the financial statements. The entity’s

transactions and the related assets, liabilities, and equity are within the

direct knowledge and control of management.

The auditor’s knowledge of these matters and internal controls is limited

to that acquired through the audit. Thus, the fair presentation of financial

statements in conformity with generally accepted accounting principles is an

implicit and integral part of management’s responsibility.”

67.

In Accounting Series Release 173 (July 2,

1975), the SEC reiterated the duty of management to present a true

representation of a company’s operations:

“[I]t is important that the

overall impression created by the financial statements be consistent with the

business realities of the company’s financial position and operations.”

68.

Pursuant to the Sarbanes-Oxley Act of 2002

(“SOX”) and SEC rules promulgated thereunder, the chief executive officer and

chief financial officer of reporting corporations, such as the Company, are

required to certify as to the accuracy and completeness of a company’s

financial statements.

69.

At all relevant times, the Company’s senior

management, including Mr. Wynn and the members of the Audit Committee,,

including Defendant Hagenbuch, repeatedly opined that internal controls over

financial reporting were adequate and re-nominated E&Y as Wynn’s auditor,

despite the fact that there was, inter alia,, illegal

money laundering at Wynn casinos , as well as other serious wrongful conduct as

referred to herein. Notwithstanding such

wrongdoing, Mr. Wynn unjustifiably and repeatedly executed “clean

certifications” pursuant to Sections 302 and 906 of SOX. These
certifications falsely and deceptively

stated, inter alia, that the Company

had disclosed all significant deficiencies and material weaknesses in the

design or operation of internal control over financial reporting which are

reasonably likely to adversely affect the Company’s ability to record, process,

summarize and report financial information. None of such material facts were

disclosed in the Proxy Statement. In ther context of the Defendants’ proposed

re-election of Defendant Hagenbuch, such omission of material facts is

particularly significant.

V. BREACHES OF

COMPANY POLICIES

70.

As an officer (in the case of Mr. Wynn) and

as directors of the Company, the Defendants owed to the Company and its

shareholders fiduciary duties of trust, due care, candor, good faith, and

loyalty. Each of the Defendants knew it

was his fiduciary duty and responsibility to use his utmost ability to oversee

the management and administration of the Company’s business and affairs, to

ensure that the Company complied with all of its legal obligations and operated

in a diligent, honest and prudent manner, and to ensure that effective

policies, procedures, systems, and internal controls are in place to prevent,

detect and promptly terminate any unlawful corporate conduct or unethical

business practices such as those described above.

71.

Each Defendant acquiesced in at least some of

the wrongful conduct described herein, thereby breaching his fiduciary duty of

loyalty and good faith owed to the Company and its shareholders. Such conduct
was and is not the product of a

valid exercise of business judgment, and constitutes a non-exculpable breach of

fiduciary duty for which each director faces a substantial threat of personal

liability.

72.

Each Defendant breached his respective duty

of loyalty and good faith by knowingly permitting and/or acquiescing in

historical engagement by the Company’s management in violations of the FCPA,

anti-money laundering laws and other laws, rules and regulations applicable to
Wynn

and its subsidiaries, as described herein, and by failing to implement and/or

maintain adequate internal controls prevent violations of the FCPA, the Bank
Secrecy

Act and other laws, as described herein.

73.

The Defendants, as a result of their service

on the Board and on the committees described in the Proxy Statement, their

knowledge and purported expertise as alleged therein, the receipt by the Board

and those committees of regular and complete reports, were aware of the

unlawful and unethical business practices alleged herein, yet knowingly and/or

recklessly breached their fiduciary obligations as officers and/or directors of

the Company, by permitting them to be continued and/or covered-up.

74.

Wynn’s improper inducements and underhanded practices

aimed at influencing Macau government officials in order to secure favorable

concessions for the Company was not the result of a rogue employee or division,

but instead, notwithstanding the Code, reflected an “anything goes” business

philosophy, directed, encouraged and aggressively pursued to increase revenues

and profits through the payment of bribes in violation of the FCPA, the

engagement in money laundering and acquiescence in prostitution at Wynn’s

casinos over compliance with laws and regulations designed to protect the

Company without due regard to the long-term consequences of such

wrongdoing. Upon information and belief,

these widespread practices were well known to senior management and the entire

Board, and were knowingly pursued despite their knowledge of its illegality

and/or cover-up and the inevitable long-term harm to the Company. Management of
Wynn, accompanied by Board

passivity, knowingly made a calculated bet that any legal consequences from the

bribery, money laundering and other wrongful conduct described herein would not

be found out by governmental regulators and enforcement agencies. By knowingly
or negligently permitting this

strategy to continue, notwithstanding its well-publicized codes of behavior,

the Board adopted such conduct as Company policy, and committed a sustained and

systematic failure of compliance oversight in breach of each Board members’

fiduciary duty of loyalty and good faith.

75.

To this day, none of the Defendants took

steps to disclose publicly in the Proxy Statement or otherwise the Company’s

bribery, money laundering activities and passive encouragement of prostitution

promptly to the DOJ, the SEC, Nevada gaming authorities and other regulatory

agencies, as they were legally required to do. Even as to those of the

Defendants who may not have been directors of the Company while illegal conduct

was taking place, they have nevertheless taken no action to punish those

directly responsible for the wrongdoing or to expose it to the light of day.

76.

The Board established a Compliance

Committee in order to provide the

illusion of compliance with various laws, regulations and the Code. The only
current member of the Compliance

Committee identified in the Proxy Statement is Gov.. Miller, a former governor

with extensive political connections in Nevada and elsewhere. Notwithstanding
this

Committee and despite Mr. Miller’s personal knowledge of applicable Nevada,

federal and other laws (including Las Vegas’ anti-prostitution law), the Board
has flagrantly disregarded and continues to

disregard the Code and other corporate governance guidelines and standards,

which have been published hypocritically knowing that they would not be and

were not being followed.

VI. WRONGDOING

OF E&Y

77.

During the period of the wrongdoing alleged

herein, the Audit Committee of the Board appointed E&Y as Wynn’s

independent registered public accounting firm (i.e. auditor). As an integral
part of its obligations to the

Company and its shareholders and pursuant to the terms of its annual retention

by the Company’s Audit Committee, E&Y was obligated to, inter alia:

carry out its audits in conformity with GAAS, and render its opinions that the

Company’s financial statements were prepared in conformity with GAAP and were

otherwise accurate in all material respects.

78.

It was E&Y’s responsibility to evaluate

the Company’s internal controls, which it repeatedly failed to do over multiple

years or, to the extent that it did so, any such evaluation was performed

negligently. Despite knowing otherwise, E&Y stated in each of its annual

opinion letters, and in its February 27, 2015 report to the Board and Wynn

stockholders, in part, as follows:

“We conducted our

audit in accordance with the standards of the Public Company Accounting

Oversight Board (United States). Those standards require that we plan and

perform the audit to obtain a reasonable assurance about whether effective

internal control over financial reporting was maintained in all material

respects….We believe that our audit provides a reasonable basis for our

opinions…..

A company’s internal control over financial reporting is a process

designed to provide reasonable assurance regarding the reliability of financial

reporting the preparation of financial statements for external purposes in

accordance with [GAAP]. A company’s internal control over financial reporting

includes those policies and procedures that (1) pertain to the maintenance of

records that in reasonable detail accurately and fairly reflect the

transactions and dispositions of the assets of the company; (2) provide

reasonable assurance that transactions are recorded as necessary to permit

preparation of financial statements in accordance with [GAAP] and that receipts

and expenditures of the company are being made only in accordance with

authorizations of management and directors of the company; and (3) provide

reasonable assurance regarding prevention or timely detection of unauthorized

acquisition, use or disposition of the company’s assets that could have a

material effect on the financial statements.

In

our opinion the company maintained in all respects effective internal control

over financial reporting as of December 31, 2014.”

79.

Each of the Defendants knew or should have

known that the foregoing statements regarding E&Y’s audits and Wynn’s

controls were false. If E&Y had conducted its year-end audits of the

Company’s consolidated and subsidiary financial statements in conformity with

GAAS, as it was contractually obligated to do and represented that it did,, it

either was obvious or should have been obvious to E&Y that the Company’s
internal controls were

materially deficient and that Wynn had

been engaging in the material wrongdoing alleged herein over a period of many

years.

80.

E&Y and its engagement partners were

motivated to “look the other way” and deliver “clean” opinions as to the

Company’s year-end financial statements when, in fact, E&Y knew that such

“clean” opinions were wholly unjustified.

In order to retain the continued patronage and substantial fees

generated by the Company, E&Y repeatedly generated “clean,” unqualified

opinions that the year-end financial statements of the Company and its

subsidiaries were prepared in accordance with GAAP and that such statements

were audited by it in conformity with GAAS when E&Y knew such

representations were false and would deceive the investing public and the SEC.

81.

The false statements made by E&Y in its

annual opinion letters on the Company’s year-end financial statements were

materially false and misleading because of, inter

alia, the widespread deficiencies in its internal controls known or which

should have been known to E&Y, its engagement partners and each of the

members of the Audit Committee that allowed much of the unlawful conduct

complained of herein to occur, including, inter alia,the improper use of
Wynn’s funds in

violation of the FCPA, failing to report known money laundering activities in

violation of the Bank Secrecy Act.

82.

Notwithstanding, or perhaps because of E&Y’s

acquiescence, the Company’s Audit Committee repeatedly selected E&Y as the

Company’s auditor and proposed its choice to Wynn shareholders for
ratification,

most recently in the Proxy Statement. By concealing material facts regarding

E&Y’s competence and credibility as the Company’s auditor, the Board’s

solicitation of shareholder votes in favor of ratification of its

re-appointment, was deceptive and in violation of §14(a) of the Exchange Act

and Rule 14a-9 promulgated thereunder.[12]

COUNT I

(For Violations of Section 14(a) of the Exchange
Act)

83.

Plaintiff repeats and re-alleges each and

every allegation contained above as if fully set forth herein.

84.

This claim is asserted by Plaintiff

individually against the Defendants who were members of the Company’s Board of

Directors when the Proxy Statement was issued and disseminated to Wynn

shareholders. Such claim arises from

their violation of Section 14(a) of the Exchange Act and SEC Rule 14a-9 in

connection with such Proxy Statement which solicited the votes of Plaintiff and

other shareholders in connection with the Company’s Annual Meeting of

Shareholders to be held on April 24, 2015.

85.

Through the Proxy Statement, the Defendants

solicited the votes of Plaintiff and the other Wynn shareholders in connection

with, inter alia, the re-election of Messrs. Hagenbuch and Virtue to the

Board, the ratification of the Audit Committee’s selection of E&Y to

continue as Wynn’s auditor and the Political Contribution Transparency Proposal
.

86.

The Board, through the Proxy Statement,

recommended that Wynn shareholders vote in favor of each of the Board’s

proposals; in particular, in favor of the re-election of each of the two Board

members nominated for re-election, the ratification of the appointment of

E&Y as Wynn’s auditor and against the Political Contribution Transparency

Proposal.

87.

The Proxy Statement containes untrue

statements of material fact and omitted other facts necessary to make the

statements made not misleading, and failed to disclose material facts as more

fully set forth above. In particular,

the 2013 and 2014 Proxy Statements failed to disclose material information

regarding, inter alia, the

credibility of the Defendants and their recommended votes, as set forth above.

88.

In addition to the frustration of Plaintiff’s

personal suffrage rights as a Wynn shareholder, these deceptions materially

affect and are likely to proximately cause, inter

alia, the re-election of Defendants Hagenbuch, the ratification of E&Y

as Wynn’s auditor and the rejection of the Political Contribution Transparency

Proposal.

89.

By utilizing the Proxy Statement as described

herein, the suffrage rights of Plaintiff and each other shareholder of the

Company have been violated by the Defendants, which conduct is in violation of
§14

(a) of the Exchange Act and SEC Rule 14a-9.

COUNT

II

(Breach of the Duty of Candor)

90.

Plaintiff repeats and re-alleges each of the

allegations set forth above as if fully set forth herein.

91.

Each of the Defendants, at the time of the

issuance and dissemination of the Proxy Statement, by reason of the fact that

such Proxy Statements was and is false and misleading, as described herein,

breached his respective duties of candor owed to Plaintiff and the Company’s

other shareholders.

92.

For the reasons set forth with respect to

Plaintiff’s Exchange Act claims, he is entitled to injunctive relief as set

forth below and such damages as he may prove at trial.

PRAYER FOR

RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

  1. Determining

    that the Proxy Statement is false and misleading in violation of §14(a) of
    the

    Exchange Act and Rule 14a-9 promulgated thereunder and that the Defendants
    have

    breached their duty of candor owed to Plaintiff and other Wynn
    shareholders;

  2. Enjoining

    the actions taken pursuant to the Proxy Statement at the Company’s 2015
    Annual

    Meeting of Shareholders;

  3. Requiring

    the Defendants to issue and disseminate a replacement for the Proxy
    Statement

    that is in compliance with the requirements of applicable federal law and
    rules

    and consistent with the Defendants’ duty of candor and to hold a meeting
    of

    Wynn’s shareholders in connection therewith;

  4. Awarding

    Plaintiff and his counsel reasonable attorneys’ fees, expert fees and
    other

    reasonable costs and expenses; and

  5. E.

    Granting

    such other and further relief as this Court may deem just and proper.

JURY DEMAND

Plaintiff demands

a trial by jury on all claims so triable.

Dated:

March 23, 2014 ALBRIGHT,

STODDARD, WARNICK

AND ALBRIGHT

G. Mark Albright

Nevada Bar No. 1394

801 S Rancho Dr D4

Las Vegas, NV 89106

(702) 384-7111

gma@albrightstoddard.com

GREENFIELD & GOODMAN, LLC

Richard D. Greenfield

250 Hudson Street, 8th Floor

New York, NY 10013

(917) 495-4446

whitehatrdg@earthlink.net

Counsel

for Plaintiff



[1]

PAC has a long history of assisting boards of directors in developing defensive

strategies in opposition to shareholder pre-suit demands and derivative

litigation, uniformly collecting millions of dollars in doing so..

[2]

The recent decision of the Defendants not to re-nominate Mr. Wynn’s former

wife, Ms. Wynn, to a seat on the Board is purportedly contrary to Mr. Wynn’s

personal wishes. Indeed, Ms. Wynn has filed her own proxy materials with the

SEC and is soliciting proxies from the Company’s shareholders.

[3]

Neither the existence of the “committee” nor its members have been disclosed in

the Proxy Statement, which similarly did

not disclose the Board’s receipt of the Demand Letter nor what has been done in

response thereto.

[4]

The relationship with Mr. Okada was so close that the Board agreed to open the

Okada Restaurant at the Wynn Las Vegas. That restaurant has now been closed in

the wake of the deterioration of that relationship at substantial cost to the

Company.

[5] The Second Amended and
Restated Articles of

Incorporation of Wynn (“Articles”) provide for standards that seek to define an

“Unsuitable Person.” As set forth on page 8 of the Articles, the phrase

Unsuitable Person “shall mean a Person who . . . in the sole discretion of
the board of directors of the Corporation, is deemed

likely to jeopardize the Corporation’s or any Affiliated Company’s

application for, receipt of approval for, right to the use of, or entitlement

to, any Gaming License.” [emphasis added]

[6] Well-before the Macau
“donation” issue

erupted, the Board and Mr. Wynn in particular, were aware of Mr. Okada’s

activities in the Philipines and, in particular, statements made regarding Mr.

Wynn’s involvement therein. The Freeh report states that “Mr. Okada

asserted that all his efforts in the Philippines prior to the change of

presidential administration in the summer of 2010 were undertaken on behalf of

and for the benefit of Steve Wynn and Wynn Resorts, and that he only undertook

to develop a gaming business in the Philippines independently subsequent to the

change of presidential administrations. On

December 20, 2007, Aruze Corp. issued a press release [which] stated the

following: “The Company looks to acquire the licenses necessary

to operate a casino resort in the Asian region, including Macau, and to

commence operation of a casino resort on its own over the next business

year. . . . For this know-how, which is vital from a management perspective,

the Company intends to enlist the full cooperation of…Steve Wynn in its future

pursuits regarding this project. For the purpose of successfully operating a

casino resort in the Asian Region on an independent basis, the Company has

received agreement from Steve Wynn that he will supply all necessary support,

including active personal exchange with Wynn.…” [emphasis added] There is no

evidence that neither the Company nor any Board member took steps to contradict

Mr. Okada’s statements, directly or through Azure.

[7]

The Demand Letter identified two of the Company’s former employees with

specific knowledge of Wynn’s money laundering practices in Las Vegas.

[8] It

is understood that these investigations include interviews by the FBI and DEA

of many of the Company’s largest customers.

[9] Curiously, following the
article in The Wall Street Journal, the Board’s legalcounsel,

Donald Campbell, Esquire, is quoted in the November 21, 2014Las Vegas

Review-Journal as saying “Wynn…doesn’t believe its under
federal

investigation…”[emphasis added]

[10]

In fact, the Proxy itself, mailed with the Proxy Statement, misrepresents that

The Board of Directors recommends

that you vote FOR” its nominees, Messrs. Hagenbuch and Virtue.[emphasis added]

[11] Ms. Wynn further states
therein: “I have more

than 40 years of gaming and hospitality experience and have been an integral

part of helping the company grow into the successful enterprise it is

today. No one at the company, other than our Chairman and CEO, is more

knowledgeable about its history, its operations, its customers, or its

award-winning staff. ..I am also the third-largest stockholder of Wynn

Resorts, with more than 9.5 million shares, representing a 9.4% interest in the

company. It is clear that my interests are very much aligned with

the interests of you, my fellow stockholders. Given my substantial

stockholdings in the company, you can be assured that I am keenly focused on

viewing every board action through the lens of generating overall stockholder

value. My unique history with Wynn Resorts has afforded me a strong,

independent voice on the board. I

do not simply toe the party line and instead hold our management team,

including our Chairman and CEO, accountable to our stockholders. The

board’s action to exclude a strong and knowledgeable voice may make for a more

homogeneous and compliant board, but I believe that is not at all in the best

interests of our stockholders.”[emphasis added]

[12]

While the Board appears to have the power to disregard the shareholder vote

should a majority of the shares voting not ratify E&Y as the Company’s

auditor, in practical terms, the Audit Committee would have to replace E&Y.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on construction, real estate, secured finance, business litigation and insurance defense.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.  Call 702-384-7111 or email Mark Albright at gma@albrightstoddard.com.

 

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.