Masters v. Glaxosmithkline

271 F. App'x 46
CourtCourt of Appeals for the Second Circuit
DecidedMarch 26, 2008
DocketNo. 06-5140-cv
StatusPublished
Cited by12 cases

This text of 271 F. App'x 46 (Masters v. Glaxosmithkline) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Masters v. Glaxosmithkline, 271 F. App'x 46 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Lead plaintiff-appellant Joseph Masters challenges the district court’s dismissal of his second amended putative class action complaint (the “complaint”) alleging securities fraud claims under Section 10(b) of the Securities Exchange Act and Rule 10b-5 against defendant-appellants GlaxoSmithKline PLC (“GSK”), and its Chairman and Chief Executive Officer, Jean-Pierre Gamier.2 We review the district court’s grant of defendants’ Rule 12(b)(6) motion to dismiss de novo, and accept as true all allegations in the complaint and draw all reasonable inferences in favor of Masters. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115-16 (2d Cir.2008).

The complaint alleges that GSK violated the Exchange Act in four ways: (1) by making false statements and omissions regarding the viability of GSK’s patents for its drugs Paxil and Augmentin, and engaging in a course of frivolous litigation with respect to those patents (the “Patent Claim”); (2) by suppressing information about Paxil’s addictiveness and withdrawal effects (the “Paxil Withdrawal Claim”); (3) by violating the Federal False Claims Act by overcharging Medicare and Medicaid for GSK’s pharmaceutical products, resulting in multiple lawsuits against GSK (the “Overcharge Claim”); and (4) by misrepresenting the safety and efficacy of the use of Paxil in children and adolescents (the “Paxil Pediatric Claim”).

The district court dismissed all but the Paxil Pediatric Claim on statute of limitation grounds. Section 804 of the Public Company Accounting Reform and Investor Protection Act of 2002 (“Sarbanes-Oxley”), extended the statute of limitations period applicable to section 10(b) of the Exchange Act and Rule 10b-5 to the earlier of “(1) two years after the discovery of the facts constituting the violation; or (2) 5 years after such violation.” 28 U.S.C. § 1658(b). The two-year limitations period — referred to as the “inquiry notice” period — is triggered when “ ‘circumstances would suggest to an investor of ordinary intelligence the probability that she has been defrauded.’ ” LC Capital Partners LP v. Frontier Ins. Group Inc., 318 F.3d 148, 154 (2d Cir.2003) (quoting Dodds v. Cigna Securities, Inc., 12 F.3d 346, 350 (2d Cir.1993)).

Although the triggering of inquiry notice is an issue “often inappropriate for resolution on a motion to dismiss,” where “the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of fraud can be gleaned from the complaint and papers ... integral to the complaint, resolution of the issue on a motion to dismiss is appropriate.” Id. at 156 (internal quotations and citations omitted); see also Dodds, 12 F.3d at 352 n. 3. For the reasons below, we agree with the dis[49]*49trict court that, based on the allegations in the complaint, Masters was on inquiry notice with respect to the Paxil Withdrawal, the Patent, and Overcharge Claims no later than two years prior to when he filed his original complaint on April 12, 2005; thus, these claims were untimely.

With respect to the Paxil Withdrawal Claim, in August 2001, GSK was sued in class action lawsuits by consumers of Paxil claiming adverse effects upon ceasing Paxil’s use, and related fraudulent behavior by GSK, news of which was made available not only in the press but also in GSK’s 2001 year-end Form 20-F filing with the Securities Exchange Commission (“SEC”).3 Further, Masters alleges that the disclosure of the lawsuits caused a drop in the price of GSK’s securities on September 6, 2001. Moreover, in December 2001, GSK after consulting with and securing approval from the Federal Drug Agency (“FDA”), changed the labeling of Paxil to include a warning about its discontinuation effects. Masters’ assertions that the foregoing disclosures were not adequate “storm warnings” to trigger inquiry notice are meritless. See LC Capital, 318 F.3d at 154. Notwithstanding Masters’ assertion that the class actions did not allege claims of fraud, the complaints in the class actions sufficiently made known the underlying factual allegations forming the basis of Masters’ securities fraud claim. Cf. Menowitz v. Brown, 991 F.2d 36, 42 (2d Cir.1993). In addition, notwithstanding Masters’ assertion that the warning label approved by the FDA itself mischaraeterized or understated the full extent of Paxil's alleged withdrawal effects, the warning label was not the type of “reassuring statement []” that might allay a reasonable investor’s concern. See LC Capital, 318 F.3d at 155. Accordingly, the Paxil Withdrawal Claim was properly dismissed as untimely.

So was the Patent Claim. No later than March 2002, GSK announced that at least one court had invalidated certain of GSK’s patents covering Augmentin. Moreover, in July 2002, GSK announced that it had lost one patent case involving Paxil, and in December 2002, announced that it was having mixed results in other litigation over its patents. Meanwhile, in July 2002, the Federal Trade Commission made public a report that was critical of GSK’s conduct in pursuing its Paxil patent. In addition, the complaint alleges that GSK stock price dropped numerous times between March 13, 2002 and March 4, 2003 in response to developments in the patent litigation.

Masters’ assertions that the limitations period was not triggered because the trial courts’ patent decisions were on appeal, and because the price declines in GSK’s securities were not sufficiently “sharp” to put an investor on inquiry notice, are unavailing. We have held that district court filings and opinions may suffice to trigger the limitations period, LC Capital, 318 F.3d at 155; Menowitz, 991 F.2d at 42, and we are aware of no case requiring a certain degree of price decline before the limitations period may commence, especially where, as here, there were multiple drops in price. Equally unavailing is Masters’ reliance on Garnier’s statements in the press that “We are very confident we can defend our patents!,]” and “we feel that the courts eventually will recognize the letter of the law and give us the added [50]*50protection for Augmentin.” As the district court found, these statements were not the type of “reassuring words” that might negate inquiry notice, see LC Capital, 318 F.3d at 155; rather, they were of a type a reasonable investor would view as mere expressions of hope. Accordingly, the Patent Claim was untimely.

The Overcharge Claim fares no better. The complaint acknowledges that lawsuits were filed against GSK starting in November 2001 as a result of its alleged violations of the False Claims Act, and that public disclosure of these lawsuits caused GSK’s share price to decline on December 11, 2001. We reject Masters’ claim that it was the settlement of the litigation in April 2003 that triggered inquiry, rather than the filing and reporting of the litigation itself. See, e.g., LC Capital, 318 F.3d at 155 (knowledge of a lawsuit may be sufficient to trigger inquiry notice); Menowitz, 991 F.2d at 42 (same). Thus, the district court properly dismissed all but the Paxil Pediatric Claim as untimely under 28 U.S.C.

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Bluebook (online)
271 F. App'x 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masters-v-glaxosmithkline-ca2-2008.