Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

In Re: Savient Pharm
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4864




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Recommended Citation
"In Re: Savient Pharm " (2008). 2008 Decisions. Paper 920.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/920


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-4864


                  IN RE: *SAVIENT PHARMACEUTICALS, INC.
                             SECURITIES LITIGATION

                             A.F.I.K. Holding SPRL, individually
                                  and as class representative,
                                                    Appellant

             *(Amended in accordance with the Clerk's Order dated 03/26/07)


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                             (D.C. Civil No. 02-cv-06048)
                 District Judge: The Honorable Harold A. Ackerman


                                Argued: June 24, 2008


               Before: SLOVITER, BARRY and ROTH, Circuit Judges

                             (Opinion Filed: July 2, 2008)




Frederick W. Gerkens, III, Esq. (Argued)
Glancy, Binkow & Goldberg
1430 Broadway, Suite 1603
New York, NY 10018
       -AND-
Lionel Z. Glancy, Esq.
Robert M. Zabb, Esq.
Glancy, Binkow & Goldberg
1801 Avenue of the Stars
Suite 311
Los Angeles, CA 90067

Counsel for Appellant


Irwin H. Warren, Esq. (Argued)
Weil, Gotshal & Manges
767 Fifth Avenue, 27 th Floor
New York, NY 10153
       -AND-
Robert B. Kaplan, Esq.
Greenberg Taurig
200 Park Avenue
P.O. Box 677
Florham Park, NJ 07932

Counsel for Appellees




                                        OPINION




BARRY, Circuit Judge

      Plaintiff appeals the dismissal of its consolidated class action securities fraud

complaint – the Second Amended Complaint – which charged Bio-Technology General

Corp. (now Savient Pharmaceuticals, Inc.) and three of its senior officers with making

false and misleading statements about the corporation’s financial performance in 1999,

2000, and 2001. The District Court dismissed the Second Amended Complaint finding,

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as it had with reference to the initial consolidated class action complaint, that scienter had

not been adequately pled. Because plaintiff had already had “two large bites at the apple”

and because further amendment would be futile, the dismissal was with prejudice. The

predominant issue before us is whether the District Court erred in finding that the Second

Amended Complaint failed to adequately plead scienter. Our review is plenary. Winer

Family Trust v. Queen, 

, 325 (3d Cir. 2007).

        We have reviewed the extensive record in this case; indeed, the complaints alone

cover 120 and 162 pages, respectively. We have also reviewed the thorough, thoughtful

and, in a word, superb opinions of the District Court, the first opinion comprehensively

analyzing the numerous allegations of the initial consolidated class action complaint in

light of the applicable law and laying out a road map for plaintiff to follow,1 and the

second opinion explaining, after a close review of the Second Amended Complaint, the

deficiencies that remained.2

        This is a case in which we need do no more than recognize the excellence of the

District Court’s opinions; indeed, it would make little or no sense to even attempt to

match the quality of that work. And so, substantially for the reasons set forth by the

Honorable Harold A. Ackerman, we will affirm.




   1
       In re Bio-Technology General Corp. Sec. Litig., 

(D.N.J. 2005).
   2
    In re Bio-Technology General Corp. Sec. Litig., No. Civ. A. 02-6048, 

(D.N.J. Oct. 26, 2006).

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