ZENOFF V. SORRENTO THERAPEUTICS, INC., ET AL, No. 22-55641 (9th Cir. 2024)
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In the case involving Sorrento Therapeutics, Inc., its CEO, and its Vice President, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a securities fraud class-action case brought by lead plaintiff Andrew R. Zenoff. The plaintiff alleged that the defendants violated the Securities Exchange Act and the SEC's Rule 10b-5 by falsely claiming to have discovered a "cure" for COVID-19, resulting in a temporary surge in Sorrento's stock prices.
The court held that the defendants' representations about the potential COVID-19 cure, when read in context, were not materially false or misleading. The court also found that the plaintiff failed to support the requisite strong inference of scienter, or intent to deceive, manipulate, or defraud. The court noted that Sorrento's financial difficulties and the need to raise capital did not provide a strong inference of scienter. Furthermore, the plaintiff did not provide evidence of specific stock sales or purchases that would indicate an intent to manipulate stock prices.
The court found that the plaintiff's allegations did not meet the specific requirements for claims of securities fraud under the Private Securities Litigation Reform Act of 1995, which include demonstrating a material misrepresentation or omission, scienter, a connection between the misrepresentation or omission and the purchase or sale of a security, reliance upon the misrepresentation or omission, economic loss, and loss causation. The court concluded that the defendants' initial enthusiasm about the potential cure was not inherently false or misleading at the time, and the plaintiff failed to establish a strong inference of scienter. As a result, the court affirmed the lower court's dismissal of the case.
Court Description: Securities Fraud The panel affirmed the district court’s dismissal, for failure to state a claim, of an action alleging violations of the Securities Exchange Act and the Securities and Exchange Commission’s Rule 10b-5 when Sorrento Therapeutics, Inc., its chief executive officer, and its vice president announced that Sorrento might have discovered a “cure” for COVID-19.
The panel held that, in context, defendants’ representations in a press release, a Fox News article, and a BioSpace.com article were not materially false or misleading.
The panel also held that the allegations in plaintiff’s class-action complaint did not support the requisite strong inference of scienter in defendants’ intent to improperly manipulate the price of Sorrento’s shares. * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.
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