Opinions of the United
2008 Decisions 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Precedential or Non-Precedential: Non-Precedential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
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NOT PRECEDENTIAL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.
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
2
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.
1
In particular, we note that appellants appeal the dismissal of their allegations relating
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