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Doc: wow. Just, wow.
Doc - that’s a terrific point tho I think we’re referencing a different scheduled talk. Maybe not tho. And, yes, closer every day. (A lovely if manifestly unmeaningful concept). Have a great weekend.
Brother Long - Doc - yes thanks I have that information. And I interpret the scheduling of the Liau talk as you do. You may recall there was another date a talk by her was scheduled and there were post-facto explanations about why she didn’t appear then in person but no one that I ever saw explained why a remote appearance was not possible. As an example. If you’re not gonna release TLD in September (some years ago) don’t say that bc naive ppl like me are gonna think you’re serious. Like I said, just a bad day. OK I’m done.
Thanks Doc. Appreciate it. Half yard line, 3-dimensional chess, “soon,” “serial PRs,” big smiles. I guess I’m having a bad day (for other reasons), sorry. Forgive me this post please. Have a great weekend and GLTA.
Doc and ski. Thanks. Ski, I know a bit of your health history good luck when you move ahead. Doc, I’m kinda hoping the fun part starts before too awfully long.
hyper - awesome and thanks for the background which I would not have known!!!
Probably selecting which savings account 1.275 vs 1.333 interest. Sorry a bit discouraged after 3 years post/ data lock. I should have walked home from school…
CO : very apt analogy. Hopefully News breaks up the negative standing waves.
attila as much as I would like to think you’re right about the effect of the $3M disclosure on submission of MAA, the Company’s ability to prevent disclosure of anything material seems rather impressive. And “material” seems to include “any information.”
george good work and thanks for sharing. Enjoy your posts and positive energy.
Oops sorry didn’t see the Pa. post tx
OJ : does this count as your next post?
Smitty I agree the MTD will not succeed. Here is the briefing schedule:
June 12, 2023: Defendants will submit a joint memorandum of law, not to exceed 40 pages.
· July 26, 2023: Plaintiff will submit an opposition brief of up to the total number of pages of the joint memorandum submitted by Defendants.
· August 28, 2023: Defendants will submit a joint reply memorandum of law, not to exceed 25 pages.
Expect a decision 2-8 weeks after last brief.
Smitty - Alpha Vest Capital
ccie - a complaint allegation is to put the defendant on “notice” of the facts and theories that comprise the alleged wrong. So all this means is that NWBO’s lawyers claim that such algorithms were used. Those should be obtainable thru discovery and Defendants’ admins or programmers can be deposed about how they work, in detail.
Dr: what about the fiduciary duty of all other BoD members especially outside members?
ATL and hyperopia: These issues are well beyond the scope of 99% of street retail investors (I include myself certainly) to follow or interpret without generous experts sharing their time and knowledge. Thanks. This is terrific if not-PRed information that to me (retail investor) speaks to the potential for patient impact, approval, revenue, and other material issues. To the bear case: so all these companies are spending all this time and money based on a failed P3? I’m not really seeing that. Actions will have to speak louder than words for a while longer I guess.
dennis if I can ask what’s your level of confidence that we’re not waiting on Eden? I would not expect that but everything I think has been wrong pretty much. TIA
ATL Tx for the calm words.
Wimike- well stated I’m with you.
PM the standard applicable to the scope of permissible discovery is any non-privileged information that is relevant to the claim OR that might lead to such information. Does not have to be admissible at trial. The same standard applies to party and non-party witnesses. “Relevant” means tends to make a fact at issue more or less likely. IMO it’s not an issue of “sources” but communications.
NWBO would seek to obtain communications from the defendants or others, not a journalist. However if NWBO felt Mr Feurstein was communicating to hide, advance, or certainly, plan ahead of time, a “fraud” (Count 3 claims fraud) or an illegal
act (spoofing is both civilly actionable and a crime), IMO NWBO would have a pretty good shot at recovering any of his or Stat communications they were unable to obtain elsewhere.
All kinds of issues to be addressed.
ilt continued… IMO there is no way to prove Mr Fuerstein acted with reckless disregard- too much crossfire, etc. But it’s not totally out of the question that a judge could after discover allow NWBO to argue malice - there’s a documented history of negative reporting. And as I noted the fact that his reputation is to attack and he earns money from doing so, is likely to make the judge have leniency in allowing a claim to proceed is one is filed.
If there’s any evidence of collusion with MMs or certainly any payment or other quod pro quo, that would meet the malice element. But I cannot believe such evidence exists. However, I cannot believe the Fox messages were written, either, so what do I know. In my experience arrogance sometimes finds its own reward and arrogant witnesses can be careless. GLTA let’s get the MAA show on the road!
ilt- Lawyers break legal claims into “elements” - what must be proved to prevail (or defend). To prove defamation against a non-public figure or news organization the elements are: 1) a false statement purporting to be fact (an opinion cannot be “true”or “false” and therefore cannot be defamatory); 2) publication or communication; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the false statement. In a claim against a public figure or news organization element #3 is replaced by a requirement that the defendant KNEW at the time of the making of the false statement that it was false OR
it was made maliciously (bad purpose - intended to cause injury) or with “reckless disregard” - the maker made no effort to ensure that the false statement was not false. The judge in Dominion decided that no reasonable person (juror) could conclude that Fox’s reporting was not false. So Dominion doesn’t have to present evidence to a jury of the falsity of its reporting. Only the other 3 elements. Still has to prove reckless disregard tho some commentators thought judge could make that finding as well and not require proof. But I doubt Dominion was upset bc those proofs will be all the embarrassing internal Fox texts and emails. This is likely to really pi$$ off the jurors. Continued…
As Hoffman notes wrt Amended Complaint there is a new reference to the citation in Defendants’ filings to Stat news slam articles. I have to say I am surprised that on Twitter Mr Fuerstein continues to post claims that the P3 trial was unsuccessful, data were (falsely) manipulated by NWBO, and the like. Zivic especially is providing notice wrt claimed falsity. A bit like Dominion lawsuit where after receiving notice, Fox News continued to publish “reporting” that the Court subsequently has found as a matter of law was legally false. Unfortunately here there will (presumably) not be the same pattern of ill-advised (and from Dominion defendant’s viewpoint,
incredibly damaging) text and email messages.
But, the alleged spoofing goes back to time periods before the publicized Fox discovery disclosures so who knows. Long and short, Stat is really betting heavily on NY Times v Sullivan, the press 1st Amendment case requiring NWBO to prove Stat knew its reports were false or acted willfully with reckless disregard of the truth. And just like Dominion was worried about its financial well-being Stat and AF have built their relevant reputations on tearing down small/pre/revenue and those vulnerable pharmas/biologics. Goes to willfulness element. Just sayin’
Amended Complaint - meant to say NWBO added allegations of spoofing in connection with March 20 MIA announcement and subsequent trading. I was very interested to see that the Cohen firm apparently believes that spoofing is continuing after the original complaint was filed. This clearly raises the stakes bc IF unlawful spoofing of occurred before that Complaint Defendants now are clearly on notice of the alleged unlawful nature of their trading patterns. That doesn’t mean that they didn’t change their patterns or algos after that Complaint. And I don’t have the competence to analyze their post-original complaint trades - based maybe
they did change. But they have a dilemma. If in later trading they backed off algos that allegedly programmed spoofing behavior that could be an admission as to earlier spoofing behavior (tho there is a “subsequent remedial measure” argument that could ameliorate the implied admission). If they didn’t, they lost any argument that later trades lacked scienter.
Thanks Hoffy!
Amended Complaint-quick summary. Doing this on my mobile so cannot manage detail. Amendments are technical and address some arguably thin issues originally plead. Primary, significant new allegations and proffered evidence of critical issue of scienter. See paras 278-281 especially. Also stronger allegations of causation, primarily circumstantial. NWBO initially alleged stock sales of 49 million (during alleged spoofing periods) which didn’t make sense, now claim 280mm shares at depressed share prices allegedly due to spoofing. So, 5.5x potential damages. Also included is explanation, previously
absent, addressing how alleged wrongdoers can profit from consistently depressed share price, which was Defendants’ rallying call in their Dismissal Motions.
No new parties, no request for preliminary injunctive relief, no new legal theories, no direct allegation relating to STAT article or similar.
No Way is this Amended Complaint dismissed on R 12(b)(6) motion.
Injunction speculation- Hello and not to be negative but IMO the chance of issuance of injunctive relief before a trial is extremely remote. First, NWBO didn’t request preliminary injunctive relief such as a preliminary injunction. Only a permanent injunction. A request for preliminary relief could still happen but it hasn’t. Second, a permanent injunction is a remedy very heavily dependent on fact
determinations and those facts are sharply disputed. Meaning, a trial must resolve those factual disputes. Finally and this is a bit of a FWIW issue, but spoofing as alleged is already illegal and there are monetary remedies available, both IMO making a court less inclined to step in with preliminary injunctive relief should that later be sought.
TDD thanks for your passion and presence.
VI thanks for your comments. I understand why Merck would want exclusivity but not why NWBO would permit that. Money, sure, but that assumes that a single licensee is going to pay P/S or royalties at so much higher a rate as to be more profitable than revenue from licensing multiple CI producers. And even if that were possible, which i doubt, I do not see current management agreeing to limit the availability of DC vax for grubby money (assuming manufacturing capacity being sufficient for multiple licensees). I can agree with you that Merck is likely to be the first, but not exclusive, licensee. GLTA
“I’ll gladly pay you Tuesday for a hamburger today!”
diver-creating patient-centered policy at the cutting edge. #notjustaninvestor. Way to go!
Hi newman. Could you I someone pls explain why an investor would pay a “premium price” for C shares or any kind of available shares? Maybe I’m not understanding. Tx.
meriluc: well done.
Yes Iron Mike agree. Negligible impact if any.
Maverick the situation you suggest is not wholly implausible nor necessarily a poor tactic. GLTU!
diver you left out one source of retail diligence- the guy down the block who lives on the corner!
Smitty - see my post 577321. But in brief, the motion to dismiss is brought before any party has the chance to obtain discovery (information from the defendant or 3d parties). It’s just a procedure to avoid costly discovery and other proceedings if the plaintiff’s legal theories are legally insufficient.
wimike- agree on all counts, difficultly of proof of spoofing to the aging and investment fatigue. But (1) recent developments such as the Harrington case are showing a possible path and probably more importantly (2) NWBOs lawyers have had that path identified well before Harrington and have undoubtedly planned for that. For example, management here accuses traders of naked or other impermissible shorting. Harrington had a shorting theory. NWBO’s lawsuit does not.
Flex agree - we’ll see how long CDEL wants to suggest it will defend itself on the backs of its customers. Which if it occurs would (I think) not extricate CDEL with respect to those trades, just add more defendants with more funds to pay a possible judgment. It happens much more often than one might think that a business dilemma such as the one identified by CDEL’s counsel is later abandoned by the client.
Of relevance to that possibility, liability among multiple wrongdoers (at least in a tort claim setting) is “joint and several.” There the Judgment holder can collect from any wrongdoer to the amount of that defendant’s liability. In practice, the Judgment holder usually goes after the deepest pocket.
So if I’m CDEL (or any other defendant) I’m asking myself, do I really want to expose some of my biggest customers to the defense costs and aggravation of litigation if in the end that’s going to cost me more to defend the claims against my entity (more parties, more claims, more documents, etc) and I probably don’t control or really, limit my company’s ultimate liability?