April 19, 2024
San Diego lawyer Steven Hubachek (backside left) argues for plaintiff Andrew Zenoff at Pasadena listening to. Picture through YouTube.com

Two months after pandemic lockdowns started, San Diego biotech Sorrento Therapeutics put out a hopeful press launch on a COVID-19 breakthrough that some took to tout a treatment.

9th Circuit opinion affirming San Diego federal court's dismissal of lawsuit. (PDF)
ninth Circuit opinion affirming San Diego federal court docket’s dismissal of lawsuit. (PDF)

That 1,100-word PR blast of Might 15, 2020, didn’t use the phrase “treatment,” however the inventory market learn between the strains — and favorable protection by Fox Information and others.

“Sorrento IDs Antibody In opposition to COVID-19 That Seems 100% Efficient,” headlined a BioSpace.com story.

Sorrento’s inventory value skyrocketed.

As famous in a ninth Circuit Courtroom of Appeals determination Monday favoring Sorrento, its inventory value rose to a each day excessive of $9 per share — or 243.5% greater than the prior buying and selling day’s shut of $2.62 — and its widespread inventory traded at practically 78 occasions its each day quantity.

However 5 days after the discharge, others threw chilly water on Sorrento’s claims.

Its inventory value fell from $6.82 a share to $4.55 a share.

Investor Andrew Zenoff of Rancho Santa Fe sued the Judicial Drive firm 5 minutes north of Westfield UTC mall in a category motion Might 26, 2020, alleging securities fraud.

“The gravamen of the [first amended complaint] was that Sorrento had falsely claimed to have developed a treatment for COVID-19, deceptive traders,” wrote Choose Consuelo Callahan for a three-judge panel.

The swimsuit pressured CEO Henry Ji’s statements in media articles Might 15 that “We need to emphasize there’s a treatment. There’s a resolution that works 100%,” and “If we have now the neutralizing antibody in your physique, you don’t want the social distancing. You possibly can open up a society with out concern.”

However in San Diego federal court docket, Choose Anthony J. Battaglia granted Sorrento’s movement to dismiss the case, saying Zenoff had did not make believable showings of falsity or scienter — a defendant’s data that their conduct is wrongful and intend to behave regardless of this data.

Zenoff appealed and his authorized group argued the case Feb. 14 — Valentine’s Day — in Pasadena.

However the court docket confirmed little love in its ruling Monday affirming the district court docket’s dismissal of the swimsuit.

Battaglia discovered claims of a treatment to be “a press release of company optimism” — in different phrases, mere ‘puffery’ which ‘can’t state an actionable materials misstatement of truth below federal securities regulation.’”

The appellate court docket additional mentioned:

May 15, 2020, press release cited in Zenoff complaint.
Might 15, 2020, press launch cited in Zenoff criticism. (PDF)

Zenoff contends that Sorrento “instructed the world a number of whoppers” regarding a 100% treatment for COVID-19. Whereas Defendants’ enthusiasm for STI-1499 might need been overblown, in context, their statements weren’t materially deceptive.


Even when the Defendants’ statements may very well be construed to be deceptive, Zenoff would nonetheless not be entitled to reduction until his allegations raised the requisite sturdy inference of scienter.

Plaintiff Zenoff had famous that, in March 2020, Sorrento’s impartial auditor had issued a “going concern” qualification to its 2019 audit opinion noting Sorrento’s excessive money burn fee and overleveraged capital construction.

Sorrento’s 2019 Type 10-Ok filed with the Securities and Alternate Fee additionally had indicated that if it couldn’t elevate adequate financing for its day-to-day operations, it must shut down, courts had been instructed.

The appeals court docket’s opinion shrugged off Zenoff’s suggestion that the “treatment” protection was meant to shore up its backside line.

“Though Sorrento’s monetary scenario was clearly helped by the market’s response to the announcement of the event of STI-1499, Sorrento had taken steps to satisfy its ‘dire monetary scenario’ nicely earlier than the bulletins of STI-1499,” the ninth Circuit mentioned.

“It appears doubtless that the bump within the value of Sorrento’s inventory within the week of Might 15 offered it with extra income from its settlement with Anarki to buy inventory, however Zenoff doesn’t allege any specific improper or inflated gross sales.”

The appeals court docket concluded that in spring 2020, “the potential for a treatment for COVID-19 generated many harmless explanations for Defendants’ statements and the market’s response to these statements.”