Opinion
No. 07-2080.
Argued March 25, 2008.
Filed: April 29, 2008.
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.
James R. Malone, Jr., Esq. [Argued], Chimicles Tikellis, Haverford, PA, for Appellants The Mizla Group.
Carol A. Mager, Esq., Mager Goldstein, Philadelphia, PA, for Appellant Claire Spooner.
Robert L. Hickok, Esq. [Argued], Christopher J. Huber, Esq., Gay P. Rainville, Esq., Pepper Hamilton, Philadelphia, PA, for Appellees.
OPINION OF THE COURT
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 the Private Securities Litigation Reform Act. The plaintiffs appeal the dismissal of the majority of their claims, but have abandoned or waived others.
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.
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.