In Re: Savient Pharm , 283 F. App'x 887 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-2-2008
In Re: Savient Pharm
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4864
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Recommended Citation
"In Re: Savient Pharm " (2008). 2008 Decisions. Paper 920.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4864
IN RE: *SAVIENT PHARMACEUTICALS, INC.
SECURITIES LITIGATION
A.F.I.K. Holding SPRL, individually
and as class representative,
Appellant
*(Amended in accordance with the Clerk's Order dated 03/26/07)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 02-cv-06048)
District Judge: The Honorable Harold A. Ackerman
Argued: June 24, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Opinion Filed: July 2, 2008)
Frederick W. Gerkens, III, Esq. (Argued)
Glancy, Binkow & Goldberg
1430 Broadway, Suite 1603
New York, NY 10018
-AND-
Lionel Z. Glancy, Esq.
Robert M. Zabb, Esq.
Glancy, Binkow & Goldberg
1801 Avenue of the Stars
Suite 311
Los Angeles, CA 90067
Counsel for Appellant
Irwin H. Warren, Esq. (Argued)
Weil, Gotshal & Manges
767 Fifth Avenue, 27 th Floor
New York, NY 10153
-AND-
Robert B. Kaplan, Esq.
Greenberg Taurig
200 Park Avenue
P.O. Box 677
Florham Park, NJ 07932
Counsel for Appellees
OPINION
BARRY, Circuit Judge
Plaintiff appeals the dismissal of its consolidated class action securities fraud
complaint – the Second Amended Complaint – which charged Bio-Technology General
Corp. (now Savient Pharmaceuticals, Inc.) and three of its senior officers with making
false and misleading statements about the corporation’s financial performance in 1999,
2000, and 2001. The District Court dismissed the Second Amended Complaint finding,
2
as it had with reference to the initial consolidated class action complaint, that scienter had
not been adequately pled. Because plaintiff had already had “two large bites at the apple”
and because further amendment would be futile, the dismissal was with prejudice. The
predominant issue before us is whether the District Court erred in finding that the Second
Amended Complaint failed to adequately plead scienter. Our review is plenary. Winer
Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007).
We have reviewed the extensive record in this case; indeed, the complaints alone
cover 120 and 162 pages, respectively. We have also reviewed the thorough, thoughtful
and, in a word, superb opinions of the District Court, the first opinion comprehensively
analyzing the numerous allegations of the initial consolidated class action complaint in
light of the applicable law and laying out a road map for plaintiff to follow,1 and the
second opinion explaining, after a close review of the Second Amended Complaint, the
deficiencies that remained.2
This is a case in which we need do no more than recognize the excellence of the
District Court’s opinions; indeed, it would make little or no sense to even attempt to
match the quality of that work. And so, substantially for the reasons set forth by the
Honorable Harold A. Ackerman, we will affirm.
1
In re Bio-Technology General Corp. Sec. Litig., 380 F. Supp. 2d 574 (D.N.J. 2005).
2
In re Bio-Technology General Corp. Sec. Litig., No. Civ. A. 02-6048, 2006 WL
3068553 (D.N.J. Oct. 26, 2006).
3