This case was last updated from PACER on 11/04/2021 at 06:57:21 (UTC).

Koza v. Athenex, Inc. et al

Case Summary

On March 22, 2021, Peter Koza & others (“Plaintiff”), represented by Jeremy A. Lieberman of Pomerantz LLP filed a class action complaint against Athenex Inc., Rudolf Kwan, Johnson Y.N. Lau & Timothy Cook (“Defendants”) seeking compensatory and punitive damages including pre-judgment and post-judgment interest thereon for alleged violations of the federal securities laws by the Defendants. This case was filed in U.S. District Court for the Western District of New York with Judge H. Kenneth Schroeder Jr. and Judge Lawrence J. Vilardo presiding.

For the purposes of this complaint, Athenex is a “global clinical stage biopharmaceutical company dedicated to becoming a leader in the discovery, development, and commercialization of next generation drugs for the treatment of cancer.” One of the Company’s main drug candidates is an oral paclitaxel and encequidar for the treatment of metastatic breast cancer.

In its complaint, Plaintiff alleged that “On August 7, 2019, Athenex announced topline data showing that oral paclitaxel and encequidar met the primary efficacy endpoint with statistically significant improvement over IV paclitaxel in a Phase 3 pivotal study in metastatic breast cancer.” Plaintiff also alleged that “On September 1, 2020, the Company announced that the FDA had accepted for filing Athenex’s NDA for Oral Paclitaxel and Encequidar in metastatic breast cancer with priority review.” Plaintiff further alleged that “Then, on December 9, 2020, Athenex announced that it had presented updated Phase 3 data on survival and tolerability associated with Oral Paclitaxel and Encequidar in patients with metastatic breast cancer.”

Plaintiff then alleged that “Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company’s business. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (i) the data included in the Oral Paclitaxel plus Encequidar NDA presented a safety risk to patients in terms of an increase in neutropenia-related sequalae; (ii) the uncertainty over the results of the primary endpoint of objective response rate (ORR) at week 19 conducted by BICR; (iii) the BICR reconciliation and re-read process may have introduced unmeasured bias and influence on the BICR; (iv) that the Company’s Phase 3 study that was used to file the NDA was inadequate and not well-conducted in a patient population with metastatic breast cancer representative of the U.S. population, such that the FDA would recommend a new such clinical trial; (v) as a result, it was foreseeable that the FDA would not approve the Company’s NDA in its current form; and (vi) as a result, the Company’s public statements were materially false and misleading at all relevant times.”

 

There are two claims for relief laid down by Plaintiff. The first claim is for alleged violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder against all defendants and the second claim is for the alleged violation of Section 20(a) of the Exchange Act against the individual defendants.

In its prayer for relief, the plaintiff has requested the court to determine the action as a proper class action pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of the Class as defined herein, and certify the Plaintiff as class representative pursuant to Rule 23 of the Federal Rules of Civil Procedure and appointment of Plaintiff’s counsel as Lead Counsel, order compensatory and punitive damages including pre-judgment and post-judgment thereon and litigation costs.

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    1:21-CV-00413

  • Filing Date:

    03/22/2021

  • Case Status:

    Disposed - Other Disposed

  • Case Type:

    Finance - Security/Commodity/Exchange

Judge Details

Presiding Judge

Lawrence J. Vilardo

Referral Judge

H. Kenneth Schroeder Jr.

 

Party Details

Plaintiff

Peter Koza

Petitioners

Philip Harris

Sharon Harris

Timothy A. Brogan

Kevin Hawie

Nathan A Aferi

William Douglas McConnell

John McKenzie

Ballard Family Living Trust

Defendants

Athenex, Inc.

Timothy Cook

Rudolf Kwan

Johnson Y.N. Lau

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

Joseph Alexander Hood ll

Attorney at Pomerantz LLP

600 Third Avenue, 20Th Floor

New York, NY 10016

Michael Anthony Riehler

Attorney at Sugarman Law Firm LLP

1600 Rand Building, 14 Lafayette Square

Buffalo, NY 14203

Jeremy A. Lieberman

Attorney at Pomerantz LLP

600 Third Avenue, 20Th Floor

New York, NY 10016

David A. Rosenfeld

Attorney at Robbins Geller Rudman & Dowd LLP

58 South Service Road, Suite 200

Melville, NY 11747

Jules L. Smith

Attorney at Blitman & King

The Powers Building, 16 West Main Street

Rochester, NY 14614

Laurence J. Hasson

Attorney at Bernstein Liebhard, LLP

10 East 40Th Street, 28Th Floor

New York, NY 10016

Joseph P. Guglielmo

Attorney at Scott & Scott, Attorneys at Law LLP

The Chrysler Building, 405 Lexington Ave

New York, NY 10174

Defendant Attorneys

Brian Marc Feldman

Attorney at Harter Secrest & Emery LLP

1600 Bausch & Lomb Place

Rochester, NY 14604

Douglas W. Greene

Attorney at Baker & Hostetler LLP

Suite 3900, 999 Third Avenue

Seattle, WA 98104-4076

 

Court Documents

#28

#27

#26

#25

#24

#22

#21

#20

19 #4

Exhibit D - Declaration of Timothy A. Brogan in Support

19 #3

Exhibit C - Estimate of losses

19 #2

Exhibit B - Certification

19 #1

Exhibit A - PSLRA Notice

19 #34

18 #5

Exhibit E - S+S Firm Resume

18 #4

Exhibit D - McKenzie Declaration

18 #3

Exhibit C - Loss Chart

18 #2

Exhibit B - Certification & Schedule A

66 More Documents Available
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Docket Entries

  • 08/05/2021
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  • DocketRemark: re #28 Order and 46 - The Clerk of the Court shall consolidate 21-V-413 into 21-CV-337 and administratively close 21-CV-413. The consolidated action shall henceforth be denominated In re ATHENEX, Inc. Securities Litigation.All docketing to be done in action 21-cv-337. (TF) (Entered: 08/06/2021)

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  • 08/05/2021
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  • Docket(#28) ORDER granting (20) Motion to Consolidate Cases; granting (22) Motion to Consolidate Cases; resolving (22) Motion to Appoint Counsel ; granting (25) Motion to Consolidate Cases; resolving (25) Motion to Appoint Counsel ; granting (26) Motion to Consolidate Cases; resolving (26) Motion to Appoint Counsel ; granting (30) Motion to Consolidate Cases; resolving (30) Motion to Appoint Counsel ; granting (31) Motion to Appoint Counsel ; granting (31) Motion to Consolidate Cases; granting (16) Motion to Consolidate Cases; resolving (16) Motion to Appoint Counsel ; granting (19) Motion to Consolidate Cases; resolving (19) Motion to Appoint Counsel in case 1:21-cv-00337-LJV-HKS; granting (8) Motion to Consolidate Cases; resolving (8) Motion to Appoint Counsel ; granting (11) Motion to Consolidate Cases; resolving (11) Motion to Appoint Counsel ; granting (12) Motion to Consolidate Cases; resolving (12) Motion to Appoint Counsel ; granting (15) Motion to Consolidate Cases; resolving (15) Motion to Appoint Counsel ; granting (16) Motion to Appoint Counsel ; granting (16) Motion to Consolidate Cases in case 1:21-cv-00413-LJV-HKS. Signed by Hon. H. Kenneth Schroeder Jr. on 8/5/2021. Associated Cases: 1:21-cv-00337-LJV-HKS, 1:21-cv-00413-LJV-HKS(KER)-CLERK TO FOLLOW UP- (Entered: 08/05/2021)

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  • 05/18/2021
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  • DocketE-Filing Notification: Incorrect event used to electronically file document. For future reference, use Response event. No action required. #27 NOTICE by Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau of Non-Opposition and Reservation of Rights in Response to Motions to Appoint Lead Plaintiff. Clerk to modify entry. (TF) (Entered: 05/18/2021)

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  • 05/17/2021
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  • Docket(#27) NOTICE/RESPONSE TO MOTIONS to Appoint Lead Plaintiff by Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau of Non-Opposition and Reservation of Rights in Response to Motions to Appoint Lead Plaintiff (Greene, Douglas) Modified on 5/18/2021 (TF). (Entered: 05/17/2021)

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  • 05/14/2021
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  • Docket(#26) RESPONSE to Motion re (16 in 1:21-cv-00413-LJV-HKS, 16 in 1:21-cv-00413-LJV-HKS, 31 in 1:21-cv-00337-LJV-HKS, 31 in 1:21-cv-00337-LJV-HKS) MOTION to Appoint Counsel and Appoint Lead Plaintiff MOTION to Consolidate Cases , (11 in 1:21-cv-00413-LJV-HKS, 11 in 1:21-cv-00413-LJV-HKS, 19 in 1:21-cv-00337-LJV-HKS, 19 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases MOTION to Appoint Counsel and Appointment of Co-Lead Plaintiffs, (12 in 1:21-cv-00413-LJV-HKS, 12 in 1:21-cv-00413-LJV-HKS, 22 in 1:21-cv-00337-LJV-HKS, 22 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases MOTION to Appoint Counsel and Appoint Lead Plaintiffs, (15 in 1:21-cv-00413-LJV-HKS, 15 in 1:21-cv-00413-LJV-HKS, 30 in 1:21-cv-00337-LJV-HKS, 30 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases , for Appointment as Lead Plaintiff MOTION to Appoint Counsel , (25 in 1:21-cv-00337-LJV-HKS, 25 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases and for Appointment as Lead Plaintiff MOTION to Appoint Counsel , (7 in 1:21-cv-00413-LJV-HKS, 15 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases , (26 in 1:21-cv-00337-LJV-HKS, 26 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases MOTION to Appoint Counsel and Appointment as Lead Plaintiff, (20 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases , MOTION to Appoint Counsel and Appoint Lead Plaintiff filed by Kevin Hawie. Associated Cases: 1:21-cv-00337-LJV-HKS, 1:21-cv-00413-LJV-HKS(Smith, Jules) (Entered: 05/14/2021)

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  • 05/13/2021
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  • Docket(#25) NOTICE by Timothy A. Brogan re (15 in 1:21-cv-00413-LJV-HKS, 15 in 1:21-cv-00413-LJV-HKS, 30 in 1:21-cv-00337-LJV-HKS, 30 in 1:21-cv-00337-LJV-HKS) MOTION to Consolidate Cases , for Appointment as Lead Plaintiff MOTION to Appoint Counsel Notice of Withdrawal of Motion Associated Cases: 1:21-cv-00337-LJV-HKS, 1:21-cv-00413-LJV-HKS(Rosenfeld, David) (Entered: 05/13/2021)

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  • 05/05/2021
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  • Docket(#24) NOTICE by Nathan A Aferi, William Douglas McConnell Notice of Non-Opposition Associated Cases: 1:21-cv-00337-LJV-HKS, 1:21-cv-00413-LJV-HKS(Hasson, Laurence) (Entered: 05/05/2021)

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  • 05/05/2021
  • Docket(#23) TEXT REFERRAL ORDER (DISPOSITIVE) - Hon. H. Kenneth Schroeder Jr., United States Magistrate Judge, is hereby designated to act in this case as follows: Pursuant to 28 U.S.C. 636(b)(1)(A) and (B), all pre-trial matters in this case are referred to the above-named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall also hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. 636(b)(1)(B) and (C). All motions or applications shall be filed with the Clerk and made returnable before the Magistrate Judge. The parties are encouraged to consider the provisions of 28 U.S.C. 636(c) governing consent to either partial or complete disposition of the case, including trial if necessary, by the Magistrate Judge. Consent forms are available from the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/5/2021. (CMD) (Entered: 05/05/2021)

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  • 05/04/2021
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  • Docket(#22) STIPULATION and Proposed Scheduling Order by Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau. (Greene, Douglas) (Entered: 05/04/2021)

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  • 05/04/2021
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  • Docket(#21) Corporate Disclosure Statement by Athenex, Inc.. (Greene, Douglas) (Entered: 05/04/2021)

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15 More Docket Entries
  • 05/03/2021
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  • Docket(#6) TEXT ORDER granting #5 Motion for Pro Hac Vice of Douglas W. Greene. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/3/2021. (CMD)-CLERK TO FOLLOW UP- (Entered: 05/03/2021)

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  • 04/29/2021
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  • Docket(#5) MOTION to appear pro hac vice of Douglas W. Greene, Esq. ( Filing fee $ 200 receipt number 0209-4232474.) by Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau.(Feldman, Brian) (Entered: 04/29/2021)

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  • 03/29/2021
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  • Docket(#4) NOTICE of Appearance by Joseph Alexander Hood ll on behalf of Peter Koza (Hood ll, Joseph) (Entered: 03/29/2021)

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  • 03/25/2021
  • DocketCase reassigned to Hon. Lawrence J. Vilardo. (TF) (Entered: 03/25/2021)

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  • 03/24/2021
  • Docket(#3) TEXT ORDER OF RECUSAL: I hereby recuse myself from further involvement in this matter and ask the Clerk of the Court to reassign this matter to another district judge. SO ORDERED. Issued by Hon. John L. Sinatra, Jr. on 3/24/2021. (KLH)-CLERK TO FOLLOW UP- (Entered: 03/24/2021)

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  • 03/23/2021
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  • Docket(#2) Summons Issued as to Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau. (TF) (Entered: 03/23/2021)

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  • 03/23/2021
  • DocketAUTOMATIC REFERRAL to Mediation The ADR Plan is available for download at #http://www.nywd.uscourts.gov/alternative-dispute-resolution.(TF) (Entered: 03/23/2021)

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  • 03/23/2021
  • DocketNotice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at #http://www.uscourts.gov/services-forms/forms. (TF) (Entered: 03/23/2021)

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  • 03/23/2021
  • DocketCase assigned to Hon. John L. Sinatra, Jr.. Notification to Chambers of on-line civil opening. (TF) (Entered: 03/23/2021)

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  • 03/22/2021
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  • Docket(#1) COMPLAINT against Athenex, Inc., Timothy Cook, Rudolf Kwan, Johnson Y.N. Lau $ 402 receipt number 0209-4192909, filed by Peter Koza. (Attachments: #1 Certification, #2 Schedule A, #3 Civil Cover Sheet, #4 Proposed Summons)(Lieberman, Jeremy) (Entered: 03/22/2021)

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