Dechert Secures Complete Victory for Antares Pharma Before the Third Circuit

On January 25, Dechert secured a complete victory for Antares Pharma after the Third Circuit entered a final judgment in Lungu v. Antares Pharma, Inc. et al., affirming the District Court's dismissal of Plaintiff-Appellant's third amended complaint with prejudice for failure to state a securities fraud claim under Section 10(b), Rule 10b-5 and Section 20(a). The Third Circuit held that Plaintiffs failed to sufficiently plead that defendants made a material misrepresentation or omission because the statements at issue were either not false or misleading or were immaterial to a reasonable investor.

Among other things, the court held that (i) the Company's statements about injection pain did not render misleading statements about adverse events that occurred during a clinical study, (ii) the Company was not required to disclose more information about potential adverse events, (iii) the CEO did not overstate the drug's approval prospects, and (iv) a disclosure concerning the exclusion of certain patients from the clinical trial were immaterial because the FDA had approved the procedures for the clinical study and "no reasonable investor would be concerned with patient enrollment data with which the FDA did not take issue." Because a controlling-person claim under Section 20(a) of the Exchange Act requires an underlying violation of Section 10(b), the Third Circuit also dismissed the Section 20(a) claim.

The Third Circuit thus affirmed dismissal of all claims in their entirety, resulting in a complete victory in favor of our clients.

The Dechert Team representing Antares Pharma was led by partners David Kistenbroker, Joni Jacobsen, David Kotler and Melanie MacKay, and associate Amy Lesperance.

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Dechert is a leading global law firm with 22 offices around the world. We advise on matters and transactions of the greatest complexity, bringing energy, creativity and efficient management of legal issues to deliver commercial and practical advice for clients.