2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-2008

In Re: Discovery Lab

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2080

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Recommended Citation

"In Re: Discovery Lab " (2008). 2008 Decisions. Paper 1311.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1311
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-2080

_____________

IN RE: DISCOVERY LABORATORIES SECURITIES LITIGATION

THE MIZLA GROUP 

(JOSEPH, DENISE, ALAN, ERIN, JULIA MIZLA)

and CLAIRE SPOONER,

 Appellants

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 06-cv-01820)

District Judge: Honorable Stewart Dalzell

 

Argued March 25, 2008

Before: McKEE, RENDELL and TASHIMA*, Circuit Judges

(Filed: April 29, 2008)

 

James R. Malone, Jr., Esq. [ARGUED]

Chimicles & Tikellis

361 West Lancaster Avenue

One Haverford Centre

Haverford, PA 19041

 Counsel for Appellants The Mizla Group

__________________

 * Honorable A. Wallace Tashima, Senior Judge of the United States Court of 

Appeals for the Ninth Circuit, sitting by designation. 
2

Carol A. Mager, Esq

Mager & Goldstein

1818 Market Street, Suite 3710

Philadelphia, PA 19103

 Counsel for Appellant Claire Spooner

Robert L. Hickok, Esq. [ARGUED]

Christopher J. Huber, Esq.

Gay P. Rainville, Esq.

Pepper Hamilton

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

 Counsel for Appellees

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

 Plaintiffs, the Mizla Group and Claire Spooner, appeal the dismissal of their

Second Amended Complaint (“the Complaint”) in a securities class action. In the

Complaint, they alleged violations of Section 10(b) of the Securities Exchange Act of

1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated under the Act, 17 CFR §

240.10b-5, by defendants, Discovery Laboratories, Inc. (“Discovery”), Robert Capetola,

President and Chief Executive Officer of Discovery, and Christopher Schaber, former

Chief Operating Officer of Discovery. The District Court considered the claims in the

Complaint in a lengthy opinion and ultimately dismissed each claim for failure to

sufficiently plead materiality and/or scienter under the heightened pleading standards of
 In particular, we note that appellants appeal the dismissal of their allegations relating 1

to statements made regarding the likelihood of approval by the European Medicines

Evaluation Agency only on the basis of materiality. The District Court, however,

dismissed those allegations based on insufficient pleading of scienter as well, and

appellants do not challenge that determination on appeal. Thus, a ruling in their favor on

the materiality issue would be unavailing.

3

the Private Securities Litigation Reform Act. The plaintiffs appeal the dismissal of the

majority of their claims, but have abandoned or waived others.1

We find the District Court’s opinion well-reasoned and do not find that any of the

issues before us constitutes grounds for disturbing or varying from its analysis. 

Accordingly, we will affirm the dismissal of the complaint for the reasons set forth

therein.