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Shash, et al v. Biogen Inc., et al

Docket 22-1773, U.S. Court of Appeals, First Circuit (Oct. 13, 2022)
Securities, Commodities, Exchange (Appeals)
Case Type3850 Securities, Commodities, Exchange
Tags3850 Securities, Commodities, Exchange, 3850 Securities, Commodities, Exchange
Plaintiff - Appellant NADIA SHASH, individually and on behalf of all others similarly situated
Plaintiff - Appellant AMJAD KHAN, individually and on behalf of all others similarly situated
Plaintiff VICTOR D. MENASHE, individually and on behalf of all others similarly situated
...
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No. 00108062041 OPINION issued by David J. Barron, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge ...

Document Shash, et al v. Biogen Inc., et al, 22-1773, No. 00108062041 (1st Cir. Oct. 11, 2023)
Investors' complaint lacks allegations similar to those that we have previously found sufficient for scienter: "admissions, internal records or witnessed discussions suggesting that at the time they made the statements claimed to be misleading, the defendant officers were aware that they were withholding vital information or at least were warned by others that this was so."
Thus, we find the deceitful inference investors urge from Biogen's change in reporting practices less compelling when compared to the competing innocent explanation, particularly given the absence of any allegation that Defendants believed the subgroup data contradicted their efficacy statements.
The Ninth Circuit held similarly, in In re Gilead Sciences Securities Litigation, when the court explained that "[a] limited temporal gap between the time a misrepresentation is publicly revealed and the subsequent decline in stock value does not render a plaintiff's theory of loss causation per se implausible."
F.3d 1142, 1154 (10th Cir. 2015) (concluding that loss causation was adequately pled despite a "concern about the attenuated relationship between the false statement and materialization of the risk ... because the significance of intervening events[,] [if any existed,] created a fact issue that could not be resolved in a motion to dismiss under Rule 12(b)(6)").
And in Singer v. Reali, the Fourth Circuit concluded that plaintiffs had adequately alleged loss causation where the complaint stated that the company's stock price dropped on October 18, 2011, in part, because of a corrective disclosure revealed the day prior in a Form 8-K filing.
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No. 00108062041 OPINION issued by David J. Barron, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge ...

Document Shash, et al v. Biogen Inc., et al, 22-1773, No. 00108062041 (1st Cir. Oct. 11, 2023)
The FDA convened an Advisory Committee, whose primary role generally is "to provide independent advice that will contribute to the quality of the agency's regulatory decision-making and lend credibility to the product review Case: 22-1773 Document: 00118062041 Page: 11 Date Filed: 10/11/2023 Entry ID: 6597125 process."
Investors' complaint lacks allegations similar to those that we have previously found sufficient for scienter: "admissions, internal records or witnessed discussions suggesting that at the time they made the statements claimed to be misleading, the defendant officers were aware that they were withholding vital information or at least were warned by others that this was so."
Even accepting these facts as true, we are still left to guess what specific concerns Massie's group raised and Case: 22-1773 Document: 00118062041 Page: 27 Date Filed: 10/11/2023 Entry ID: 6597125 of any allegation about how or when Defendants learned that the subgroup data potentially undermined their conclusion about aducanumab's efficacy.
The Ninth Circuit held similarly, in In re Gilead Sciences Securities Litigation, when the court explained that "[a] limited temporal gap between the time a misrepresentation is publicly revealed and the subsequent decline in stock value does not render a plaintiff's theory of loss causation per se implausible."
Case: 22-1773 Document: 00118062041 Page: 41 Date Filed: 10/11/2023 Entry ID: 6597125 F.3d 1142, 1154 (10th Cir. 2015) (concluding that loss causation was adequately pled despite a "concern about the attenuated relationship between the false statement and materialization of the risk ... because the significance of intervening events[,] [if any existed,] created a fact issue that could not be resolved in a motion to dismiss under Rule 12(b)(6)").
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No. 00107999972 BRIEF tendered by Appellants Nadia Shash and Amjad Khan

Document Shash, et al v. Biogen Inc., et al, 22-1773, No. 00107999972 (1st Cir. Apr. 19, 2023)
None of Biogen’s arguments precludes the Court from taking judicial notice of those materials.
None of Biogen’s attempts to justify that selective disclosure stands up to scrutiny.
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