Vaso Active Pharmaceuticals, Inc. v. Robinson & Cole LLP

25 Mass. L. Rptr. 424
CourtMassachusetts Superior Court
DecidedJanuary 23, 2009
DocketNo. 064958
StatusPublished

This text of 25 Mass. L. Rptr. 424 (Vaso Active Pharmaceuticals, Inc. v. Robinson & Cole LLP) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vaso Active Pharmaceuticals, Inc. v. Robinson & Cole LLP, 25 Mass. L. Rptr. 424 (Mass. Ct. App. 2009).

Opinion

FabricaNt, Judith, J.

INTRODUCTION

This is an action for legal malpractice in connection with misrepresentations in a registration statement filed with the Securities and Exchange Commission (SEC), and related statements. The plaintiff company contends that the defendant law firm’s conduct [425]*425caused the SEC to suspend trading in the company’s stock, and that the suspension caused a drop in the company’s share price. The plaintiff seeks damages measured by the drop in share price, as well as other damages. Before the Court is the defendant law firm’s motion for summary judgment with respect to that aspect of the plaintiffs claims. For the reasons that will be explained, the motion will be allowed.

BACKGROUND

The plaintiff, Vaso Active Pharmaceuticals, Inc., was incorporated in January 2003, as a wholly-owned subsidiary of BioChemics, Inc. Vaso describes its business as “commercializing over-the-counter pharmaceutical products developed by BioChemics and manufactured by an independent third party.” John Masiz, a Massachusetts attorney, founded BioC-hemics in 1989, and at all relevant times has been its chairman, chief executive officer, and majority shareholder. He was also Vaso’s first chief executive officer.

In the mid-1990s, Masiz obtained, and transferred to BioChemics, three patents for a technology he has labeled “VALE,” for “Vaso Active Lipid Encapsulated.” Masiz has described VALE as “a liquid needle,” that is able to “introduce drugs into the bloodstream in an efficient and highly effective manner,” and as a “platform technology” that can be applied to “a myriad of drugs.” BioChemics developed skin-care products, to be sold over the counter, which it claimed utilized the VALE technology.

After its incorporation in January 2003, Vaso entered into a license agreement with BioChemics for the use of the VALE technology, subject to the limitation that the products it would market would be classified by the Food and Drug Administration (FDA) as over-the-counter, arid would “require less than one million dollars ($1,000,000) of clinical development,” an amount that would not be sufficient to undertake the process required for FDA approval of a new drug. The two companies also entered into a marketing and development agreement, under which BioChemics would develop products for Vaso.

Vaso engaged Robinson & Cole to represent it in connection with an initial public offering of its stock. Robinson and Cole drafted and filed a registration statement and prospectus. The registration statement identified the three products that BioChemics had developed, claimed superior performance of one of the products over competing products, and discussed the terms of the license agreement between Vaso and BioChemics, a copy of which was submitted with the registration statement. The registration statement asserted that the VALE system offered advantages over other forms of drug delivery, and that it was protected by BioChemics’ patents. It went on to say that the three products “have been through the research and development, pre-clinical trial study and clinical trial stages and have received FDA approval.”

The parties agree that the statement that the products had “received FDA approval” was materially misleading. None of Vaso’s products had received FDA approval; Vaso’s intention was to market them as new applications of already approved active ingredients under FDA monographs for those ingredients. The record includes evidence from which a juiy could find that the decision to include the misleading statements, and not to include a full explanation of the regulatory process and its costs and risks, constituted malpractice by Robinson & Cole.

Vaso’s IPO was completed on December 15, 2003, at a price of $1.66 per share, netting $6.4 million to Vaso. Before and after the IPO, the company, and Masiz on its behalf, made a series of statements to the public and to investors about the company’s plans and prospects, including the regulatory status of its products. The record includes evidence from which a jury could find that some of those statements were misleading, and also that they were attributable, at least in part, to negligent advice by Robinson & Cole.

Vaso’s stock began to rise in February 2004, and reached a closing high of $14.11 per share on March 3, 2004. During the same period, however, news media reports began to appear raising questions about the company. In early March, the SEC contacted Vaso and made inquiries. Vaso’s annual report filed with the SEC by Robinson & Cole on March 26, 2004, stated that the company’s products had “been through the research and development stage and are qualified under FDA OTC monographs and have been registered as such.” As of the end of March, Vaso’s stock price had fallen to $7.59 per share.

On April 1, 2004, the SEC announced that it had temporarily suspended trading in Vaso’s stock “because of questions regarding the accuracy of assertions by [Vaso] and others, in press releases, its annual report, its registration statement and public statements to investors concerning, among other things: (1) FDA approval of certain key products, and (2) the regulatory consequences of the future application of their primary product.” On April 2, 2004, The Boston Globe reported that none of Vaso’s products had been approved by the FDA. Also on April 2, 2004, TheS-treet.com, an on-line financial newsletter, commented that Vaso might not be able to sell its products incorporating its new technology without first completing a “time consuming and expensive” FDA approval process that neither Vaso nor BioChemics had initiated. On April 7, 2004, Vaso issued a press release announcing that it intended to issue revised disclosures, and warning investors not to rely on its prior SEC filings and public statements. On April 8, 2004, Vaso’s board of directors voluntarily delisted its stock from the NASDAQ. On that same day, shareholder Dennis E. Smith filed the first of several shareholder class action lawsuits against Vaso. The SEC lifted its trading suspension on April 15, 2004. Vaso stock was then [426]*426available for public trading, but was not listed on any national exchange. The closing price for Vaso shares on April 16, 2004, was $1.75 per share.

During the suspension, Vaso hired new counsel, a Washington firm that specialized in FDA law. With the assistance of its new counsel, in July of 2004 Vaso filed with the SEC an amended annual report, in which it acknowledged that the FDA had taken the position that “insofar as our products or product candidates use a transdermal technology” Vaso “must obtain NDA [New Drug Application] approval of the products before they can be commercially marketed,” that the NDA approval process “typically takes several years” and involves “substantial” costs, and that approval might not be achieved. The amended annual report deleted claims that Vaso’s over-the-counter products incorporated the VALE system, saying instead that the products used a “PENtoCORE technology [that] does not achieve its effect by delivering the drug through the skin and into the bloodstream.” The amended report also deleted claims of superiority of the products, saying instead that the “PENtoCORE technology . . . may enable the formulation of topical products that are pleasant to use because they do not have the odor, greasy feel or residue often associated with other topically applied drug products.” The amended report also removed any claim that the products used a patented technology.

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Bluebook (online)
25 Mass. L. Rptr. 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaso-active-pharmaceuticals-inc-v-robinson-cole-llp-masssuperct-2009.