SCHMIDT v. SKOLAS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 8/12/2013. 8/12/2013 ENTERED AND COPIES MAILED AND E-MAILED; AND MAILED TO UNREP. (ems)
SCHMIDT v. SKOLAS et al
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN A. SKOLAS, et al.,
August 12, 2013
Alan Schmidt, a former shareholder of Genaera Corporation (“Genaera”) and a former
unitholder of the Genaera Liquidating Trust (“GLT”), filed the Amended Verified Class Action and
Shareholder Derivative Complaint for Damages and Rescission of Sales of Assets to Ohr and
Dipexium (“Amended Complaint”) against John A. Skolas, Leanne Kelly, John L. Armstrong, Jr.,
Zola B. Horovitz, Osagie O. Imasogie, Mitchell D. Kaye, Robert F. Shapiro, Paul K. Wotton, Robert
DeLuccia, Griffin Securities,1 David Luci, Steve Rouhandeh, Jeffrey Davis, Mark Alvino, GLT,
Biotechnology Value Fund, Inc. (“BVF”), Ligand Pharmaceuticals, Inc. (“Ligand”), Xmark Capital
Partners, LLC (“Xmark”), Argyce LLC (“Argyce”), Ohr Pharmaceuticals (“Ohr”), John L. Higgins,
Genaera, SCO Financial Group (“SCO”), Dipexium Pharmaceuticals, LLC (“Dipexium”),
MacroChem Corporation (“MacroChem”), Access Pharmaceuticals, Inc. (“Access”), and Mark N.
Lampert for breach of their fiduciary duties, as well as aiding and abetting thereof, arising out of the
liquidation of Genaera.
Eight groups of Defendants have moved to dismiss the Amended Complaint: (1) Trustee
Argyce and Skolas (“Trustee Defendants”); (2) Directors and Officers Kelly, Armstrong, Horovitz,
Plaintiff has voluntarily dismissed his claims against Griffin Securities. (ECF Document
Imasogie, Shapiro, and Wotton (“D&O Defendants”); (3) Xmark and Kaye (“Xmark Defendants”);
(4) Dipexium, DeLuccia, and Luci (“Dipexium Defendants”); (5) BVF and Lampert (“BVF
Defendants”); (6) Ligand and Higgins (“Ligand Defendants”); (7) MacroChem, Access, Rouhandeh,
Davis, Alvino (“Access Defendants”); and (8) Ohr, on grounds including statute of limitations and
lack of personal jurisdiction. For the reasons that follow, the Court grants Defendants’ motions to
This action stems from the dissolution of Genaera, a biotechnology company that developed
pharmaceutical drugs and held licenses to intellectual property and patents. (Am. Compl. ¶ 63.)
Genaera was a Delaware corporation with its principal place of business in Pennsylvania that owned
the rights to certain high value assets with “the potential to earn high returns for Genaera and its
stockholders.” (Id. ¶¶ 11, 65.) It dissolved on June 12, 2009, and its assets were transferred to GLT,
a Delaware entity, which was managed by Defendant Argyce as trustee. (Id. ¶¶ 24, 151-52.) The
allegations of the Amended Complaint pertain mostly to D&O Defendants’ participation in a scheme
to dissolve Genaera, and Trustee Defendants’ sale of the assets in GLT for less than their value to
Genaera insiders and their affiliates, at the expense of Genaera shareholders.
Dissolution of Genaera
In April 2009, Genaera’s Board of Directors announced that the company’s prospects were
“not promising” and stated that dissolution and liquidation would return the greatest value to
The only Defendant that has not moved to dismiss is SCO. However, for the same
reasons that apply to all other Defendants, Plaintiff’s claims cannot be sustained against SCO.
The claims against SCO are also dismissed.
stockholders. (Id. ¶ 123.) On April 18, 2009, the Board unanimously approved—and recommended
that shareholders vote to approve—a plan to dissolve and dispose of all the company’s assets and
make distributions to stockholders by establishing a liquidating trust. (Id. ¶ 125.) Defendant Kaye
was not at this meeting. (Id.) The proxy statement falsely stated that no Genaera officers or directors
would profit from the dissolution, and did not accurately describe how promising certain Genaera
assets were, among other alleged misrepresentations. (Id. ¶¶ 128-29.) The proxy statement also did
not explain that Defendant Argyce had already been selected as trustee, even though Defendant
Skolas—one of Argyce’s only employees—had been fired as Genaera’s CFO in 2007. (Id. ¶¶ 138,
154-55.) Following the announcement of Board approval of the Plan of Dissolution, Genaera stock
declined dramatically. (Id. ¶ 139.) At a special meeting of stockholders on June 4, 2009, the
stockholders—the two largest of which were Xmark and BVF—approved the Board’s
recommendation to adopt the Plan of Dissolution. (Id. ¶¶ 124, 140-41.) Genaera filed Articles of
Dissolution with the Delaware Secretary of State on June 12, 2009, and the company’s assets and
liabilities were transferred to GLT. (Id. ¶ 151.) Thereafter, each outstanding share of Genaera
common stock was canceled and replaced by a unit in GLT. (Id. ¶¶ 159-60.) The trustee had three
years to “monetiz[e]” Genaera’s assets. (Id. ¶ 187.) GLT terminated upon its final distribution of
assets on March 31, 2011. (Defs. Argyce LLC’s and John A. Skolas’s Mot. to Dismiss Am. Compl.
[Trustee’s Mot. to Dismiss] Ex. 19 [Grantor Letter Statement of Income].)
Post-Dissolution Sale of Assets
Genaera owned Squalamine and Trodusquemine compounds (“Aminosterol Assets”). (Am.
Compl. ¶ 226.) One of these compounds was used for eye drops to treat age-related macular
degeneration. (Id. ¶ 229.) On July 8, 2009, the Trustee accepted a $50,000 down payment on the sale
of the Aminosterol Assets for $200,000 to BBM Holdings, Inc., the predecessor to Ohr. (Id. ¶¶ 218,
224.) On August 12, 2009, the Trustee publicly reported that the Aminosterol Assets had been sold
in May 2009. (Id. ¶ 220.) On August 21, 2009, Ohr filed an 8-K Form announcing its purchase of
the Aminosterol Assets, with the purchase agreement attached. (Trustee’s Mot. to Dismiss Ex. 7
[Aminosterol 8-K Form].) The Trustee “had the opportunity to sell the assets” for a higher price, and
there was no public announcement of bidding for the assets. (Am. Compl. ¶¶ 219, 225.)
In 1999, Genaera developed Pexiganan, a topical cream for the treatment of diabetic foot
infections. (Id. ¶ 82.) In July 2007 and again in October 2007, MacroChem licensed the right to
develop Pexiganan from Genaera, with the possibility for Genaera to earn up to $35 million and ten
percent royalty payments based on certain developmental milestones. (Id. ¶¶ 95-96.) In 2008,
MacroChem “abruptly” stopped investing in the development of Pexiganan. (Id. ¶ 107.) In February
2009, Access acquired MacroChem and “ceased development of MacroChem’s dermatology
products, including Pexiganan.” (Id. ¶¶ 112-13.) D&O Defendants knew that Genaera had a right
under the licensing agreement with MacroChem to demand the return of Pexiganan if MacroChem
refused to develop the drug, but they did not make any such demand. (Id. ¶ 114.) In December 2009,
Pexiganan was returned to GLT, as announced in a March 2010 press release by GLT. (Trustee’s
Mot. to Dismiss Ex. 17 [GLT March 2010 Update].) According to Plaintiff, Trustee Defendants
terminated the previously existing licensing agreement with MacroChem in order to allow Dipexium
Defendants to obtain the rights to Pexiganan without the royalty and milestone obligations of the
original licensing agreement. (Am. Compl. ¶¶ 206, 207, 210.)
After Genaera’s dissolution, on January 11, 2010, the Trustee publicly solicited bids for
Pexiganan, with a deadline for bids of February 12, 2010. (Id. ¶ 206.) Although the Amended
Complaint does not allege the exact date of the transaction with Dipexium, a February 19, 2010 GLT
update to unitholders announced multiple expressions of interest in Pexiganan, and a March 2010
GLT update reported negotiations for sales of the asset. (Trustee’s Mot. to Dismiss Ex. 16 [GLT Feb.
19, 2010 Update]; GLT March 2010 Update.) In an update on May 21, 2010, GLT declared that “the
Trust ha[d] sold substantially all of the assets of the Trust and its predecessor in interest, Genaera
Corporation.” (Trustee’s Mot. to Dismiss Ex. 24 [GLT May 21, 2010 Update]; see also id. Ex. 14
[GLT July 2010 Update] (describing sale of Pexiganan under “January-May 2010” heading).) The
Dipexium website announced the acquisition of Pexiganan “soon after th[e] transaction.” (Am.
Compl. ¶ 213.)
Interlukin 9 (“IL9") Asset
Since 2007, Genaera had owned a licensor interest in the IL9 antibody program for asthma,
which it licensed to MedImmune, LLC (“MedImmune”). (Id. ¶ 72.) Genaera could have received up
to $54 million in payments and royalties from MedImmune if IL9 reached certain milestones in its
development. (Id. ¶ 77.) On May 18, 2010, Trustee Defendants sold IL9 to Ligand. (Id. ¶ 176.)
Ligand then sold half its interest in IL9 to BVF, which had previously owned more than fifteen
percent of Ligand stock. (Id. ¶¶ 177, 190.) This subsequent transaction was not mentioned in GLT’s
purchase agreement with Ligand. (Id. ¶ 177.) GLT sent a “Brief Update to Unitholders” dated May
21, 2010, in which it announced the sale of IL9 to Ligand for $2.75 million and revealed that Ligand
conveyed half of its interest to BVF. (GLT May 21, 2010 Update.) In addition, Ligand filed an 8-K
Form that also announced the details of the transaction. (Trustee’s Mot. to Dismiss Ex. 22 [IL9 8-K
Schmidt, a former investment professional and former high-ranking employee of Brown
Brothers Harriman, was a stockholder of Genaera from 1998 until its dissolution on June 12, 2009,
and thereafter became a unitholder of GLT by operation of law. (Am. Compl. ¶¶ 10, 60.)
“[T]hroughout the years[, Schmidt] has held many conversations with Genaera officers and
directors” regarding the assets at issue and their values and prospects. (Id. ¶ 10.) He filed this lawsuit
on June 8, 2012, on behalf of himself and all other former shareholders of Genaera, on behalf of all
other unitholders of GLT, and derivatively on behalf of Genaera and GLT. (Id. ¶¶ 47, 53, 59.)
Schmidt filed the Amended Complaint on December 19, 2012, and the above-listed groups of
Defendants filed motions to dismiss on February 4, 2013. The Court held oral argument on the
motions to dismiss on July 10, 2013. The remaining counts are: breach of fiduciary duty against
D&O Defendants, and all other Defendants for aiding and abetting thereof, on behalf of the
stockholder class; breach of fiduciary duty against Trustee Defendants, and all other non-D&O
Defendants for aiding and abetting thereof, on behalf of the unitholder class; corporate waste against
D&O Defendants, and all other Defendants for aiding and abetting thereof, derivatively on behalf
of Genaera; breach of fiduciary duty by controlling shareholder against Xmark Defendants and BVF
Defendants, and all other Defendants for aiding and abetting thereof, on behalf of the stockholder
class; punitive damages against all Defendants; rescission of Aminosterol Assets sale from Ohr; and
rescission of Pexiganan sale from Dipexium.3
Plaintiff has agreed to dismiss without prejudice the following claims: illegal vote
selling; voiding dissolution vote; disgorgement of insider trading profits; and violations of 14(a)
of the Securities Act. (Pl.’s Mem. of Law in Opp’n to Director and Officer Defs.’ Mot. to
STANDARD OF REVIEW
Motion to Dismiss for Lack of Personal Jurisdiction
The plaintiff bears the burden of demonstrating facts that establish personal jurisdiction when
a defendant raises a personal jurisdiction defense. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368
(3d Cir. 2002). The plaintiff’s factual allegations are taken as true and all factual disputes are drawn
in the plaintiff’s favor for the purpose of this analysis. See id. Establishing a prima facie case for the
exercise of personal jurisdiction requires the plaintiff to demonstrate “with reasonable particularity
sufficient contacts between the defendant and the forum state.” Mellon Bank (East) PSFS, Nat’l
Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). The plaintiff must offer “sworn affidavits or
other competent evidence” and may not “rely on the bare pleadings alone” in its effort to withstand
the defendant’s motion. Patterson v. FBI, 893 F.2d 595, 604 (3d Cir. 1990).
If the plaintiff meets this burden, the defendant must establish the presence of other
considerations that would render jurisdiction unreasonable to prevail on its motion. Brown & Brown,
Inc. v. Cola, 745 F. Supp. 2d 588, 602 (E.D. Pa. 2010) (citing Carteret Sav. Bank, FA v. Shushan,
954 F.2d 141, 150 (3d Cir. 1992)).
Motion to Dismiss for Failure to State a Claim
In reviewing a motion to dismiss for failure to state a claim, a district court must accept as
true all well-pleaded allegations and draw all reasonable inferences in favor of the non-moving party.
See Bd. of Trs. of Bricklayers & Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs.,
237 F.3d 270, 272 (3d Cir. 2001). A court should accept the complaint’s allegations as true, read
Dismiss Am. Compl. at 4 n.3 [Pl.’s Resp. to D&O Defs.]; Pl.’s Mem. of Law in Opp’n to Defs.
Xmark Capital Partners, LLC and Mitchell D. Kaye’s Mot. to Dismiss Am. Compl. at 7 n.2.)
those allegations in the light most favorable to the plaintiff, and determine whether a reasonable
reading indicates that relief may be warranted. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59,
64 (3d Cir. 2008). “But a court need not credit a complaint’s bald assertions or legal conclusions
when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Factual allegations [in a complaint] must be enough to raise a right to relief above the
speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion
to dismiss, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. A plaintiff must present “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a cause of action. Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citation omitted). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Simply reciting the elements
will not suffice. Id.; see also Phillips, 515 F.3d at 231.
The Third Circuit Court of Appeals has directed district courts to conduct a two-part analysis
when faced with a Rule 12(b)(6) motion. First, the legal elements and factual allegations of the claim
should be separated, with the well-pleaded facts accepted as true but the legal conclusions
disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court
must make a commonsense determination of whether the facts alleged in the complaint are sufficient
to show a plausible claim for relief. Id. at 211. If the court can infer only the mere possibility of
misconduct, the complaint must be dismissed because it has alleged—but has failed to show—that
the pleader is entitled to relief. Id.
When faced with a motion to dismiss for failure to state a claim, courts may consider the
allegations in the complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004).
Defendant Ohr has moved to dismiss for lack of personal jurisdiction under Federal Rule of
Civil Procedure 12(b)(2). “[A]t no point may a plaintiff rely on the bare pleadings alone in order to
withstand a defendant’s Rule 12(b)(2) motion to dismiss . . . .” Time Share Vacation Club v. Atl.
Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Yet Plaintiff has attempted to do just that. Ohr
attached to its motion to dismiss the Declaration of its CEO, Irach B. Taraporewala. (Taraporewala
Decl.) The Declaration states that Ohr is a Delaware corporation with headquarters in New York
(and formerly in Utah) that has never had an office or employee based in Pennsylvania, nor has it
sold any goods there. (Id. ¶¶ 3-4.) The negotiations and execution of the asset purchase agreement
between Ohr and GLT, a Delaware entity, did not take place in Pennsylvania; the closing of the
agreement occurred in New York, and GLT was represented by New Jersey counsel. (Id. ¶¶ 6-7, 9.)
The asset purchase agreement is additionally governed by Delaware law and has a forum-selection
that selects Delaware as the forum for any disputes. (Id. Ex. A [Aminosterol Assets Purchase
Agreement] §§ 8.8, 8.9.)
Plaintiff, conversely, has filed no affidavits in support of his argument for personal
jurisdiction. In fact, the Amended Complaint fails even to include Ohr in its list of parties and
otherwise makes no jurisdictional allegations about Ohr. (Am. Compl. ¶¶ 11-41.) The Court cannot
do Plaintiff’s work for him by searching for possible contacts between Ohr and Pennsylvania.
Plaintiff bore this burden and failed to carry it. See, e.g., Junge v. Wheeling Island Gaming, Inc., Civ.
A. No. 10-1033, 2010 WL 4537052, at *4 (W.D. Pa. Nov. 2, 2010); Olympia Steel Bldgs. Sys. Corp.
v. Gen. Steel Domestic Sales, LLC, Civ. A. No. 06-1597, 2007 WL 1816281, at *4-5 (W.D. Pa. June
22, 2007) (finding no personal jurisdiction over defendant where, “[d]espite their clear burden,
[plaintiffs] have not submitted any evidence, in the form of sworn affidavits or otherwise,” related
to personal jurisdiction).
In response to Ohr’s argument, Plaintiff, without adducing additional facts supporting
personal jurisdiction, seeks limited jurisdictional discovery. A plaintiff is entitled to jurisdictional
discovery if he “presents factual allegations that suggest with reasonable particularity the possible
existence of the requisite contacts between [the defendant] and the forum state.” Eurofins Pharma
US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir. 2010) (citation omitted). “A
plaintiff may not, however, undertake a fishing expedition based only upon bare allegations, under
the guise of jurisdictional discovery.” Id. Here, there are no factual allegations—set forth with
“reasonable particularity” or otherwise—to support jurisdictional discovery. Plaintiff’s concession
that he is “not aware of the extent of activities or contacts that Defendant Ohr has had with the
Commonwealth” reveals his request for jurisdictional discovery to be nothing more than a fishing
expedition. (See Mem. of Law in Opp’n to Def. Ohr Pharmaceutical, Inc.’s Mot. to Dismiss Am.
Compl. at 18.)
Given Plaintiff’s failure to provide affidavits or other competent proof of personal
jurisdiction, make any basic allegations of the Court’s personal jurisdiction over Ohr in his Amended
Complaint, or otherwise support his request for limited jurisdictional discovery with “reasonable
particularity,” the Court finds that it lacks personal jurisdiction over Ohr Pharmaceuticals. The
claims against it are therefore dismissed.
Statute of Limitations
The parties agree that Pennsylvania’s two-year statute of limitations applies to Plaintiff’s
claims for breach of fiduciary duty and corporate waste, and aiding and abetting thereof. See 42 Pa.
Cons. Stat. § 5524(7); (Mem. of Law in Opp’n to Defs. Argyce LLC’s and John A. Skolas’ Mot. to
Dismiss Am. Compl. at 8 & n.4; e.g., Director and Officer Defs.’ Mot. to Dismiss Am. Compl. at
21-22.). Therefore, given that Plaintiff filed this lawsuit on June 8, 2012, Plaintiff’s claims cannot
have accrued before June 8, 2010 in order to be timely.
To grant a motion to dismiss on statute of limitations grounds, the statute of limitations
defense must be clear on the face of the complaint. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
2002). Plaintiff has, in fact, conceded that he “missed the two-year period by a couple of weeks.”
(Oral Arg. Tr. at 22.) He therefore relies on the discovery rule to toll the running of the limitations
period. (See, e.g., Mem. of Law in Opp’n to Defs. Argyce LLC’s and John A. Skolas’ Mot. to
Dismiss Am. Compl. at 8.)
A federal court applying a state statute of limitations period applies state tolling rules.
Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011) (citations omitted). The Pennsylvania
discovery rule tolls the statute of limitations until the plaintiff knew, or should have known through
the exercise of reasonable diligence, of the injury and its cause. Wise v. Mortg. Lenders Network
USA, Inc., 420 F. Supp. 2d 389, 395 (E.D. Pa. 2006). However, the discovery rule is implicated “in
only the most limited of circumstances.” Goleman v. York Int’l Corp., Civ. A. No. 11-1328, 2011
WL 3330423, at *4 (E.D. Pa. Aug. 3, 2011). To this end, lack of knowledge is insufficient to toll the
running of the statute of limitations. See Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468
A.2d 468, 471 (Pa. 1983).
Rather, “the salient point giving rise to [the discovery rule’s] application is the inability of
the injured, despite the exercise of reasonable diligence, to know that he is injured and by what
cause.” Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). Plaintiff bears the burden of establishing this
inability. See Donovan v. Idant Labs., 625 F. Supp. 2d 256, 266 (E.D. Pa. 2009), aff’d sub nom. D.D.
v. Idant Labs., 374 F. App’x 319 (3d Cir. 2010). Yet when the Court asked Plaintiff’s counsel at oral
argument to explain the greater-than-two-year period after Plaintiff received notice of the
transactions before he brought suit, counsel responded that “Mr. Schmidt was putting together all
the facts and circumstances.” (Oral Arg. Tr. at 29.) As the Court noted in response, to toll the statute
of limitations on every plaintiff’s mere assertion that he needed time to put together all the facts and
circumstances would eviscerate the very concept of a limitations period. (Id. at 29-30.); see also
Ingenito v. AC & S, Inc., 633 A.2d 1172, 1175 (Pa. Super. Ct. 1993) (“[T]he [discovery] rule cannot
be applied so loosely as to nullify the purpose for which a statute of limitations exists.”).
Indeed, Plaintiff has never pointed to exactly what information ultimately brought his cause
of action to his attention. He avers generally that the 2011 release of the Trustee’s financial
statements for fiscal year 2010 gave him the necessary information. (See Oral Arg. Tr. at 20 (“[T]hat
was the first time that there was enough information [for] the plaintiff . . . to actually discern the
nature of the injury, and where it was caused and how it came about.”).) Yet by May 2010, all of the
relevant transactions had occurred and been publicly announced, through a combination of updates
from GLT, public SEC filings, and press releases from the acquiring companies. It is not clear what
more information Plaintiff wanted. Although he implies that he was unaware of the value of the
assets sold until acquiring companies were able to develop or finance them, (See Am. Compl.
¶¶ 214-15), the Amended Complaint is replete with allegations of the great promise these assets
showed prior to Genaera’s dissolution in 2009, (See id. ¶¶ 79, 105, 178, 203-05). If Plaintiff cannot
articulate why, in spite of his reasonable diligence, his cause of action was unknowable to him before
June 2010, he has not met his burden. See Brawner v. Educ. Mgmt. Corp., 513 F. App’x 148, 151
(3d Cir. 2013) (affirming grant of motion to dismiss because cause of action was not tolled where
plaintiff failed to show that any new information received after the expiration of the statute of
limitations “was essential to the commencement of a suit”).
“Where . . . reasonable minds would not differ in finding that a party knew or should have
known on the exercise of reasonable diligence of his injury and its cause, the court determines that
the discovery rule does not apply as a matter of law.” Fine, 870 A.2d at 858-59. The fact that a
plaintiff “may not have been aware of the ‘full extent’ of the possible injury does not save his
claims.” Brawner, 513 F. App’x at 151 (quoting Gleason v. Borough of Moosic, 15 A.3d 479, 484
(Pa. 2011)). Plaintiff was on notice that GLT was selling Genaera’s core assets, and was provided
with regular updates on negotiations, transactions, and prices; all of this information was presented
to him before June 8, 2010. Plaintiff’s explanation that he was “putting together all the facts and
circumstances” does not reflect an inability to know of his cause of action in spite of reasonable
diligence. Plaintiff has not met his burden of demonstrating that the discovery rule should apply here.
See Goleman, 2011 WL 3330423, at *4-5; Garcia-Valentie v. McKibbin, Civ. A. No. 06-5097, 2007
WL 2022067, at *5 (E.D. Pa. July 9, 2007).
Finally, Plaintiff also relies on the fraudulent concealment doctrine in an attempt to toll his
claims. Under Pennsylvania law, the fraudulent concealment doctrine requires an “affirmative and
independent act of concealment that would divert or mislead the plaintiff from discovering the
injury,” which is lacking here. See Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir. 1991). Plaintiff would
be hard-pressed to point to any act of concealment here, given that every transaction to which
Plaintiff objects was announced publicly by GLT, announced publicly by the purchaser, filed
publicly with the SEC, or some combination of the three. Fraudulent concealment does not toll
Leave to Amend the Complaint
Plaintiff has already amended his Complaint once. “Although Federal Rule of Civil
Procedure 15(a) states that leave to amend ‘shall be freely given when justice so requires,’ . . . leave
to amend need not be granted when amending the complaint would clearly be futile.” Cowell v.
Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001) (quoting Fed. R. Civ. P. 15(a)(2)). Cowell
specifically notes that repleading is futile if a claim cannot overcome the statute of limitations. Id.
Because Plaintiff cannot change the dates on which the transactions he challenges occurred, further
amending his complaint would be futile.
Likewise, though Plaintiff has agreed to dismiss certain counts without prejudice, the Court
dismisses them with prejudice because they, too, are barred by their statutes of limitations. See 15
U.S.C. § 78i(f) (setting forth three-year statute of repose for violations of Section 14(a), which
allegedly occurred in proxy statement issued May 14, 2009); 42 Pa. Cons. Stat. § 5524(7) (providing
two-year statute of limitations for fraud, where alleged vote selling occurred on June 4, 2009 and
alleged insider trading occurred June 5, 2009). Finally, the claims for the remedies of punitive
damages and rescission cannot stand now that the underlying causes of action have been dismissed.
For the reasons set forth above, Defendants’ motions to dismiss are granted. An Order
consistent with this Memorandum will be docketed separately.
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