On January 10, 2013, in a detailed and interesting
opinion with features that may be helpful to other life sciences securities
suit defendants, Middle District of Tennessee Judge Kevin Sharp granted the
motion of Biomimetic Therapeutics to dismiss the securities class action
lawsuit that had been filed against the company over its disclosures concerning
developments in the clinical trials of its flagship product. A copy of Judge
Sharp's opinion can be found here.
The clinical trials were conducted in support of the
company's efforts to obtain FDA approval of its bone grafting product called
Augment. Biomimetic conducted the clinical trial pursuant to protocols it had
proposed and that had been approved by the FDA. As later became apparent,
Biomimetic based its analysis of the testing results on a different patient
population than had been identified in the FDA-approved protocols. The results
associated with the different population were more favorable to the company.
The FDA expressed concerns to Biomimetic about the
population used and other aspects of the clinical trials in a December 3, 2012
deficiency letter. The FDA also raised a number of concerns about the trials in
a May 10, 2011 briefing document released in advance of the public expert panel
meeting. Following the meeting, the expert panel narrowly voted in favor of
approval of the Augment's safety and efficacy.
Biomimetic's share price declined 35% following the FDA's
May 10, 2011 disclosure of the testing concerns. Its share price declined a
further 12% following the narrow expert panel vote, out of concerns that in
view of the narrowness of the expert panel vote, FDA approval without
additional processes was unlikely.
Following the share price decline, shareholders filed a
securities class action lawsuit in the Middle District of Tennessee against
Biomimetic and certain of its directors and officers. The shareholders alleged
that throughout the class period, the defendants made unjustifiably positive
statements about the Augment clinical trials and omitted to disclose the
specific concerns that the FDA had raised about the trials.
According to the court, the "heart" of the plaintiffs'
allegations was that the defendants had engaged in a regulatory "bait and
switch" by changing the patient population used to analyze its trial results in
a way that allowed the company to report more favorable results that would have
been shown if the original population were used. The plaintiffs also alleged
that the defendants had failed to disclose the other problems with the clinical
trials, including in particular that Biomimetic had failed to include processes
to capture measurements on additional items that were of particular concern to
The defendants moved to dismiss the plaintiff's
The January 10 Opinion
In his January 10, 2013 opinion, Judge Sharp granted the
motion to dismiss without leave to amend, finding that the plaintiffs'
allegations failed to meet the pleading requirements of the PSLRA.
Judge Sharp rejected the argument that the company's use
of a modified patient population to analyze the trial results violated the
FDA-approved protocol. He also found that in a press release and in an earnings
call, the company had "acknowledged the confusion that had been generated
between the classifications of patient populations." In light of these
disclosures, the company's statements about the patient populations "do not
suggest a knowing and deliberate intent to deceive or defraud, let alone highly
In reaching this conclusion, Judge Sharp put particular emphasis
on the fact that the company had "never suggested approval by the FDA was
assured," adding that "quite to the contrary," the company "repeatedly and
consistently warned that there were no guarantees that Augment would be
Judge Sharp also found that plaintiffs' allegations that
the defendants had deceptively omitted to disclose other clinical trial
deficiencies were also insufficient. He concluded that "the alleged
deficiencies and the omission in the clinical trials do not raise a strong
inference of fraudulent intent as required by the PSLRA."
In particular, Judge Sharp rejected, as insufficient, the
plaintiff's argument that the company was "cutting corners by failing to
conduct certain tests or studies." He noted that
The notion that [Biomimetic] would recklessly forego
necessary tests and studies or hide adverse events makes little sense, even
disregarding Defendants' assertion that they poured their own money into the
company. Plaintiffs' own allegation is that Augment is [Biomimetic's] flagship
product and necessary to the companies [sic] success, begging the question why
it would sabotage all of the company's efforts on the point.
Along those lines, Judge Sharp noted that neither the
company nor the individual defendants had engaged in securities sales after the
company received the FDA's deficiency letter.
One particularly interesting aspect of Judge Sharp's
opinion is his consideration of the plaintiffs' allegations that the defendants
had deceptively failed to disclosed the FDA's concerns in the deficiency letter
while at the virtually the same time had made positive statements about the
progress of the Augment clinical trials. Judge Sharp noted that "a deficiency letter
is not a final FDA decision, but a request for more information, and in fact,
very few [applications] are approved without the issuance of a deficiency
letter." Judge Sharp then cited with approval language from a prior opinion to
the effect that "it simply cannot be that every critical comment by a
regulatory agency has to be seen as material for securities law reporting
purposes." He concluded that based on the overall factual allegations, the
company "had a reasonable basis for optimism" notwithstanding the concerns
noted in the deficiency letter.
As I noted in my recent
analysis of 2012 securities class action lawsuit filings, life sciences
companies continue to be a favored target for securities class action
litigation. The reason the companies attract securities suits has a lot to do
with the complex and unpredictable regulatory process to which the companies
are subject. The regulatory process is. As this case shows, many things can
happen during the course of a clinical trial, which in turn can significantly
affect investors' perceptions of the prospects for the company involved.
There are several aspects of Judge Sharp's opinion that
should be heartening to life sciences companies that find themselves targeted
by securities litigation as a result of setbacks the companies experience in
the clinical trial process.
First, Judge Sharp showed an uncommon willingness to
immerse himself in the complexities of the regulatory process and the science
involved with the Augment clinical trials. Because of his willingness to
understand the complex details, he was able to understand what had happened
concerning the change in patient population used for analytical purposes. He
was also able to understand the company's disclosures about the populations
used. Because he had this understanding, he was not persuaded by the
plaintiffs' characterization of the change in patient populations as a "bait
and switch." Of course, other life sciences securities suit defendants may
not always have a court as wiling to do the hard work to develop those kinds of
detailed understandings of the process and of the science. But this case does
show the possibilities arising from trying to make those kinds of arguments to
A second and more interesting aspect of Judge Sharp's
opinion has to do with his analysis of the plaintiffs' allegations concerning
the defendants' alleged failure to disclose the concerns noted in the
deficiency letter. Although he does not come right out and say that life
sciences companies do not have an obligation to disclose an FDA deficiency
letter, Judge Sharp's opinion certainly will provide support for other life
sciences securities suit defendants who want to argue that the mere fact that
the FDA has sent a deficiency letter alone is not necessarily material and that
the failure to disclose concerns identified in a deficiency letter does not by
itself amount to securities fraud. This aspect of Judge Sharp's opinion could
prove to be quite helpful for other life sciences securities defendants.
Another important aspect of Judge Sharp's opinion has to
do with his analysis of the company's precautionary disclosures. He clearly
considered it important that the company avoided any suggestion that approval
of Augment was assured and emphasized the possibility that Augment might not be
approved. The company's precautionary disclosures, along with the absence of
any insider or company stock sales at sensitive times, seems to have gone a
long way toward reassuring Judge Sharp that the defendants had not set out to
deceive anyone. Judge Sharp's opinion underscores the importance for life
sciences companies to avoid overly optimistic statements about future
regulatory outcomes as well as for the companies to use the disclosure
documents to "bespeak caution" to investors about the uncertainties of the
One final note about Judge Sharp's opinion has to do with
the simple fact that the dismissal was granted. Because of the unpredictability
of the FDA regulatory process and because of the resulting volatility of life
sciences companies' share prices, the companies tend to attract significant
levels of securities litigation. But though the companies may attract lawsuits,
that does not always mean that the suits are always great cases for the
plaintiffs. As one industry observer noted (refer here), "courts
continued to grant with relative frequency life sciences companies' motions to
dismiss due to plaintiffs' inability to sufficiently plead scienter."
other items of interest from the world of directors & officers liability,
with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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