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Precedential or Non-Precedential: Non-Precedential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                                                               NOT PRECEDENTIAL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

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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.

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