Inter-Local Pension Fund Gcc/i v. Rigel Pharmaceuticals, Inc. , 697 F.3d 869 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: RIGEL PHARMACEUTICALS, INC. 
SECURITIES LITIGATION,
INTER-LOCAL PENSION FUND
GCC/IBT, on behalf of itself and
all others similarly situated,
Plaintiff-Appellant,
v.
ANDRE DELEAGE, Executor, Estate
of Jean Deleage,
Appellee, No. 10-17619
RIGEL PHARMACEUTICALS, INC.;  D.C. No.
3:09-cv-00546-JSW
JAMES M. GOWER; RYAN D.
MAYNARD; DONALD G. PAYAN; OPINION
RAUL R. RODRIGUEZ; ELLIOTT B.
GROSSBARD; BRADFORD S.
GOODWIN; GARY A. LYONS;
WALTER H. MOOS; HOLLINGS C.
RENTON; PETER S. RINGROSE;
STEPHEN A. SHERWIN; CREDIT
SUISSE SECURITIES (USA) LLC;
OPPENHEIMER & CO. INC.; THOMAS
WEISEL PARTNERS LLC; JEFFERIES
& COMPANY, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
10655
10656 IN RE: RIGEL PHARMACEUTICALS
Argued and Submitted
February 17, 2012—San Francisco, California
Filed September 6, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Hug
IN RE: RIGEL PHARMACEUTICALS 10659
COUNSEL
Sanford Svetcov, Robbins Geller Rudman & Dowd LLP, San
Francisco, California, for the appellant.
John C. Dwyer, Cooley LLP, Palo Alto, California, for the
appellees.
10660 IN RE: RIGEL PHARMACEUTICALS
OPINION
HUG, Senior Circuit Judge:
I. INTRODUCTION
Plaintiff Inter-Local Pension Fund GCC/IBT (“Plaintiff”)
brought a securities fraud action1 individually and on behalf2
of all other persons who purchased or otherwise acquired the
common stock of Rigel Pharmaceuticals, Inc. (“Rigel”)
between December 13, 2007 and February 3, 2009, pursuant
to sections 10(b) and 20(a) of the Securities Exchange Act of
1934, 15 U.S.C. §§ 78j(b) and 78t(a), and the rules and regu-
lations promulgated thereunder, including Securities and
Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5.
Plaintiff also brought claims on behalf of itself and persons
who purchased Rigel stock traceable to the registration state-
ment and prospectus issued in connection with Rigel’s Febru-
ary 2008 stock offering, pursuant to sections 11, 12, and 15
of the Securities Exchange Act of 1934, 15 U.S.C. §§ 77k,
77l, and 77o.
The complaint focuses on alleged statements by Rigel and
other individuals concerning the results of a clinical drug trial
and alleged statements about partnership prospects for Rigel.
Named defendants include Rigel, James M. Gower, Ryan D.
1
Two separate complaints originally were filed. On March 19, 2009, the
district court ordered the two actions consolidated. Plaintiff then filed a
consolidated complaint on July 24, 2009. On December 21, 2009, the dis-
trict court dismissed that complaint with leave to amend. On January 27,
2010, Plaintiff filed the consolidated amended complaint that is the subject
of this appeal (“the complaint”). On August 24, 2010, the district court
granted the defendants’ motion to dismiss the consolidated amended com-
plaint, but gave Plaintiff leave to amend. On September 22, 2010, Plaintiff
informed the district court that it was electing to stand on the consolidated
amended complaint. The district court then entered a final judgment on
October 8, 2010.
2
The district court did not certify a class.
IN RE: RIGEL PHARMACEUTICALS 10661
Maynard, Donald G. Payan, Raul R. Rodriguez, Elliott B.
Grossbard, Jean Deleage, Bradford S. Goodwin, Gary A.
Lyons, Walter H. Moos, Hollings C. Renton, Peter S. Rin-
grose and Stephen A. Sherwin (“Defendants”).
Plaintiff timely appealed the district court’s August 24,
2010 order granting defendants’ motion to dismiss the com-
plaint.3 We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
II. BACKGROUND
A. R788 and The Clinical Trial
Rigel is a clinical-stage drug development company that
discovers and develops novel, small-molecule drugs for the
treatment of inflammatory and autoimmune diseases, certain
cancers, and other diseases. One of those drugs is R788,
which Rigel is developing to treat and stop the progression of
rheumatoid arthritis.
Rigel conducted a Phase IIa clinical trial to evaluate the
safety and preliminary clinical efficacy of R788 in patients
who were suffering from active rheumatoid arthritis despite
therapy with methotrexate. The clinical trial was a multi-
center, randomized, double-blind, placebo-controlled, ascend-
ing dose study involving 189 patients in the United States and
Mexico. Rigel placed patients into one of three cohorts receiv-
ing either 50, 100, or 150 mgs of R788 orally twice daily over
a twelve week period. Based upon a three to one ratio, Rigel
assigned patients within each cohort to receive R788 or a pla-
cebo respectively.
3
In its opening brief, Plaintiff has not raised any issues concerning the
district court’s dismissal of Plaintiff’s section 12(a)(2) claim and therefore
has waived any issues concerning that claim. See In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1410 n.7 (9th Cir. 1996); Officers for Justice v. Civil
Serv. Comm’n of City & Cnty of San Francisco, 979 F.2d 721, 726 (9th
Cir. 1992).
10662 IN RE: RIGEL PHARMACEUTICALS
Rigel measured efficacy for each participant based on the
American College of Rheumatology (“ACR”) criteria, which
denote at least a twenty percent improvement (ACR20), at
least a fifty percent improvement (ACR50), or at least a sev-
enty percent improvement (ACR70). For scientific and ethical
reasons, people conducting clinical trials generally select their
trial methodology, including primary efficacy endpoints and
statistical methodology, before the clinical trial begins.
Rigel’s chosen primary efficacy endpoint for the trial was the
percentage of patients who were ACR20 responders by the
end of the 12-week trial. ACR50 and ACR70 were secondary
endpoints.
B. Reports of the Top-Line Results of the Clinical Trial
The complaint alleges that, on December 13, 2007, Rigel
issued a press release concerning its Phase 2 clinical study for
R788.4 Among other things, the press release stated:
Rigel Pharmaceuticals, Inc. . . . today announced that
its oral syk kinase inhibitor, R788 (tamatinib fos-
dium), has demonstrated statistically significant
results in treating Rheumatoid Arthritis (RA)
patients in a recently completed Phase 2 clinical
trial. Groups treated with R788 at 100mg and 150mg
po bid (orally, twice daily), showed higher ACR20,
ACR50, ACR70 and DAS28 response rates than the
placebo group. The efficacy results for the 100mg
and 150mg dose groups were fairly comparable.
Dramatically, the onset of the effect in these dose
groups occurred as early as one week after initiation
4
Rigel allegedly filed a registration statement with the SEC on January
24, 2008 in connection with its secondary offering. Plaintiff alleges that,
as a result of incorporating documents into the registration statement,
Defendants made the December 13, 2007 press release, including the
allegedly false and misleading statements contained in that press release,
part of the registration statement.
IN RE: RIGEL PHARMACEUTICALS 10663
of therapy. We believe that the significant ACR
scores and good tolerability observed in this clinical
trial, and the further benefit of oral delivery may
make R788 a favorable alternative to the currently
marketed biological agents.
The press release included the following chart, entitled “Ef-
ficacy Results”:
Treatment DAS28-
Assigned Number ACR20 ACR50 ACR70 CRP 2.6
po bid (N) % (N) % (N) % (N) % (N)
Placebo 47 38% (18) 19% (9) 4% (2) 17% (8)
50 mg 46 32% (15) 17% (8) 2% (1) 20% (9)
100 mg 49 65% (32) 49% (24) 33% (16) 35% (17)
(p=.008) (p=.002) (p<.001) (p=.005)
150 mg 47 72% (34) 57% (27) 40% (19) 47% (22)
(p<.001) (p<.001) (p<.001) (p<.001)
The press release also included information concerning side
effects, stating:
The most common clinically meaningful adverse
events noted in the clinical trial were dose-related
neutropenia, mild elevations of liver function tests,
and gastrointestinal (GI) side effects. Dose reduction
(to one half the assigned dose, by taking the drug
once per day) was pre-specified in the protocol, con-
tingent on neutrophil counts and/or liver function
tests. Notably, a vast majority of the patients (19 out
of 21) who had their dose reduced, successfully
completed the clinical trial with minimal safety
issues.
In addition, the press release also provided:
The key safety results are shown in the table below:
10664 IN RE: RIGEL PHARMACEUTICALS
Placebo 50mg 100mg 150mg
po BID po BID po BID po BID
N=47 N=46 N=49 N=47
Completed Study 1 0 5 13
at Reduced Dose (N)
Dropouts (N): 11 6 6 8
Withdrew Consent 6 3 2 1
Adverse Event 2 1 3 6
Other 3 2 1 1
Neutropenia (N) 0 0 5 10
Requiring dose
reduction
ALT>3XULN (N) 2 0 0 3
Diarrhea (N) 0 3 2 10
(severity moderate
or greater)
Upper GI side effects (N) 2 1 2 12
(gastritis, nausea,
dyspepsia) (severity
moderate or greater)
Hypertension (N) 0 0 2 0
(severity moderate or
greater)
The complaint alleged that, on the same day that Rigel
issued its press release, it also held a conference call with,
among others, Gower and Dr. Grossbard. During the confer-
ence call, Dr. Grossbard referenced the handout and discussed
some of the results. When discussing efficacy and the statisti-
cal significance of the results, Dr. Grossbard stated:
The p values are uniformly less than .008, usually
less than .001. . . . We have concluded that the 100
milligram and 150 milligram dose groups have
impressive and statistically significant improvements
over placebo, and that the onset occurs very, very
early. The efficacy results for the two effective doses
IN RE: RIGEL PHARMACEUTICALS 10665
were fairly comparable, and the 100 milligrams bid
dose kind of caught up by the end so that they were
really equivalent. The 50 milligram dose [does] not
appear to be much better than placebo, and so overall
there was a good dose response.
Dr. Grossbard then went on to discuss the reported safety
results. As part of that discussion, he allegedly stated:
The incidence of reported moderate hypertension
was quite low, although the way case report forms
are filled out an occasional patients [sic] had a nota-
tion for his systolic blood pressure increase, and an
occasional one had diastolic blood pressure increase.
And it is hard to know exactly what that means, so
I’m reporting to you here those where the case report
forms noted, hypertension of moderate severity. So
in conclusion we think the 100 milligram dose was
well tolerated. The 150 milligram dose somewhat
less so. But with dose reductions almost all the
patients were able to finish the study.
Dr. Grossbard explained that there “is a dose response, so
the higher the dose, the more side effects.” He also noted that
the most common side effects were neutropenia and gastroin-
testinal side effects and that those side effects were most prev-
alent with the 150 mg dose.
During the conference call, Dr. Grossbard stated that he
would be writing a paper with Dr. Michael Weinblatt, Profes-
sor of Medicine at Harvard Medical School, and that the
paper would be “the next significant statement about the
results of this study.”
On July 8, 2008, Rodriguez allegedly presented efficacy
and safety graphs at the Collins Stewart 4th Annual Growth
Conference. Among other things, Rodriguez allegedly stated
10666 IN RE: RIGEL PHARMACEUTICALS
that, during the clinical trial, there was “[a] bit of hyperten-
sion here and there.”
C. Presentation of Detailed Results and Analysis to
Doctors and Scientists
The complaint alleges that Defendants subsequently
reported additional information about the clinical trial when
Drs. Weinblatt and Grossbard gave a presentation to physi-
cians at the ACR Annual Scientific Meeting on October 27,
2008 and when a scholarly article was published in the
November 2008 issue of the medical journal “Arthritis and
Rheumatism.” This information was more academic and
detailed.
During the October 27, 2008 presentation, Rigel allegedly
provided dose response information, broken down based on
whether the patient received R788 in Mexico or in the United
States. The following chart was presented:
Placebo 50MG 100MG 150MG
# of U.S. Patients 25 46 21 5
ACR20 6 (24%) 15 (33%) 11 (52%) 2 (40%)
ACR50 1 (4%) 8 (17%) 6 (29%) 2 (40%)
ACR70 0 (0%) 1 (2%) 3 (14%) 2 (40%)
Placebo 50MG 100MG 150MG
# of Mexico Patients 22 0 28 42
ACR20 12 (55%) 0 (0%) 21 (75%) 32 (76%)
ACR50 8 (36%) 0 (0%) 18 (64%) 25 (60%)
ACR70 2 (9%) 0 (0%) 13 (46 %) 17 (40%)
On the day that this data was presented, Dr. Grossbard
allegedly stated:
The issue of Mexico/US interaction before the study
— I think we actually mentioned this at our original
discussion on the Web after the study was over. I
IN RE: RIGEL PHARMACEUTICALS 10667
was concerned that there might be such an interac-
tion.
And so, I requested before the study was unblinded
that we do a country interaction and it turned out
there was one. And the issue of the interaction was
that the placebo rate was much higher in Mexico
than in the US. And the response rate was much
higher in Mexico than in the US.
Dr. Grossbard explained, “you get the same difference but
different points of departure.” The journal article contained a
similar discussion, stating that there were “higher clinical
responses being observed in patients enrolled from Mexico in
both the placebo group and the R788 groups. Even with this
difference in response rates between the 2 countries, the dif-
ference between active drug and placebo remained >20%.”
The journal article contained much more extensive,
detailed, and scientific information. For example, the article
reported the data regarding age, gender, and race of the
patient participants, the number of tender and swollen joints,
the number of patients on prednisone, and the dosage of
methotrexate that patients were receiving. Details also
included all the adverse events experienced by patients in
three percent or more of any group, regardless of severity,
causation, frequency, treatment, or dosage. Thus, in addition
to the more severe adverse events disclosed in the original
reports, the journal article showed that, out of the 142 patients
receiving the drug, six patients had experienced smaller eleva-
tions of liver enzymes, three patients had experienced mild
hypertension, five patients had experienced less significant
neutropenias that did not require dose adjustment, and 19
patients had experienced mild diarrhea. The article included
information about the number of patients receiving the pla-
cebo who experienced these kinds of adverse events and it
reported on other kinds of adverse events experienced by
10668 IN RE: RIGEL PHARMACEUTICALS
study participants, such as headaches, coughs, rashes, and
fatigue.
The journal article repeated some of the same earlier infor-
mation regarding efficacy, including the same p-values. In
addition, the journal article discussed statistical analysis used
for the study.
D. Rigel’s Statements Regarding a Potential Partnership
The complaint alleges that Defendants made misleading
comments about Rigel’s prospects for obtaining a partner for
development of R788. On October 27, 2008, Gower allegedly
stated that Rigel was “[s]till on track for what we’ve been
saying all along, which is putting the partnership in place as
early as the early part of next year.” He indicated that the end
of the first quarter of the following year would be “ideal,” but
that “it’s certainly not in our control that it would be.” In
addition, he acknowledged that he could not know that poten-
tial partners would not “freak out” about the credit crisis
occurring at the time and also recognized that partnership
deals can take a long time to put in place. On November 3,
2008, Gower allegedly stated: “We expect to establish a col-
laboration partnership to further these ends, and that in fact is
going quite well.”
III. STANDARD OF REVIEW
The decisions of a district court on motions to dismiss are
reviewed de novo. Zucco Partners, LLC v. Digimarc Corp.,
552 F.3d 981, 989 (9th Cir. 2009). We must accept as true all
well-pleaded allegations in the complaint. S. Ferry LP, No. 2
v. Killinger, 542 F.3d 776, 782 (9th Cir. 2008). “If support
exists in the record, the dismissal may be affirmed on any
proper ground, even if the district court did not reach the issue
or relied on different grounds or reasoning.” Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998).
IN RE: RIGEL PHARMACEUTICALS 10669
Rule 8(a) of the Federal Rules of Civil Procedure requires
only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
12(b)(6) authorizes courts to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). To avoid dismissal, the complaint must pro-
vide “more than labels and conclusions, and a formulaic reci-
tation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual alle-
gations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in
the complaint are true. Id. Our review of challenges to a dis-
missal for failure to state a claim is generally limited to the
face of the complaint, materials incorporated into the com-
plaint by reference, and matters of which we may take judicial
notice. Zucco, 552 F.3d at 989.
In addition to the pleading requirements of Rule 8, there are
more demanding pleading requirements for certain causes of
action, especially securities fraud. We discuss those specific
requirements in the relevant sections below.
IV. ANALYSIS
A. Section 10(b) and Rule 10b-5
The district court dismissed the section 10(b) and Rule 10b-
5 claim on the grounds that the complaint failed to sufficiently
allege a false or misleading statement or omission and failed
to sufficiently allege scienter. We conclude that this was not
error.
1. Elements and Pleading Requirements
[1] Section 10(b) of the Securities Exchange Act of 1934
makes it unlawful for any person to:
use or employ, in connection with the purchase or
sale of any security registered on a national securi-
10670 IN RE: RIGEL PHARMACEUTICALS
ties exchange . . . any manipulative or deceptive
device or contrivance in contravention of such rules
and regulations as the [Securities and Exchange]
Commission may prescribe as necessary or appropri-
ate in the public interest or for the protection of
investors.
15 U.S.C. § 78j(b). One of those rules promulgated under the
Act is Securities and Exchange Commission Rule 10b-5,
which makes it unlawful to, among other things, “make any
untrue statement of a material fact or to omit to state a mate-
rial fact necessary in order to make the statements made, in
the light of the circumstances under which they were made,
not misleading.” 17 C.F.R. § 240.10b-5(b).
To sufficiently plead a primary violation of Rule 10b-5
based on misstatements, a plaintiff must adequately allege the
following: 1) a material misrepresentation or omission by the
defendant; 2) scienter; 3) a connection between the misrepre-
sentation or omission and the purchase or sale of a security;
4) reliance upon the misrepresentation or omission; 5) eco-
nomic loss; and 6) loss causation. Stoneridge Inv. Partners,
LLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008). In
the case before us, the district court held that Plaintiff had
failed to sufficiently plead that there was a misrepresentation
or omission and also had failed to sufficiently plead scienter.
[2] At the pleading stage, a complaint alleging claims
under section 10(b) and Rule 10b-5 must not only meet the
requirements of Rule 8, but must satisfy the heightened plead-
ing requirements of both Federal Rule of Civil Procedure 9(b)
and the Private Securities Litigation Reform Act (“PSLRA”).
Zucco, 552 F.3d at 990. Rule 9(b) provides: “In alleging fraud
or mistake, a party must state with particularity the circum-
stances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
Thus, Rule 9(b) requires particularized allegations of the cir-
cumstances constituting fraud, including identifying the state-
ments at issue and setting forth what is false or misleading
IN RE: RIGEL PHARMACEUTICALS 10671
about the statement and why the statements were false or mis-
leading at the time they were made. In re GlenFed, Inc. Sec.
Litig., 42 F.3d 1541, 1547-49 (9th Cir. 1994).
The PSLRA imposes additional specific pleading require-
ments, including requiring plaintiffs to state with particularity
both the facts constituting the alleged violation and the facts
evidencing scienter. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 313 (2007).
Under the PSLRA, to properly allege falsity, a securities
fraud complaint must now “specify each statement alleged to
have been misleading, the reason or reasons why the state-
ment is misleading, and, if an allegation regarding the state-
ment or omission is made on information and belief, . . . state
with particularity all facts on which that belief is formed.” 15
U.S.C. § 78u-4(b)(1); see also Matrixx Initiatives, Inc. v.
Siracusano, 131 S. Ct. 1309, 1318 n.4 (2011); Zucco, 552
F.3d at 990-91.
To adequately plead scienter under the PSLRA, the com-
plaint must “state with particularity facts giving rise to a
strong inference that the defendant acted with the required
state of mind.” 15 U.S.C. § 78u-4(b)(2)(A); see also Tellabs,
551 U.S. at 314.
2. Falsity
Plaintiff’s allegations regarding falsity fall into three gen-
eral categories: 1) statements related to efficacy; 2) statements
related to safety; and 3) statements about Rigel’s future part-
nership prospects.
a. Statements Related To Efficacy
Plaintiff contends that the district court’s analysis of the
alleged statements relating to efficacy was erroneous because
Plaintiff adequately pled falsity with respect to reported study
10672 IN RE: RIGEL PHARMACEUTICALS
results and adequately pled falsity with respect to country
effect.
i) Statistical Methodology
The district court held that Plaintiff had failed to adequately
plead a false statement regarding efficacy because disagree-
ments over statistical methodology and study design are insuf-
ficient to allege a materially false statement. Plaintiff argues
that it met the pleading requirements by alleging “false” study
results, including allegations of “statistically ‘false p-values’ ”5
and inaccurate and improper statistical analysis. We hold that
the district court did not err.
In order to allege falsity, a plaintiff must set forth facts
explaining why the difference between two statements “is not
merely the difference between two permissible judgments, but
rather the result of a falsehood.” In re GlenFed, Inc. Securi-
ties Litigation, 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc).
It is apparent from the complaint that Plaintiff’s allegations
of “falsity” were based on its contention that Defendants
should have used a particular statistical methodology, which
it described in the complaint. Plaintiff did not allege that
Defendants inaccurately reported the results of their own sta-
tistical analysis. Plaintiff also did not allege that Defendants
had chosen or changed their statistical methodology after see-
ing the unblinded raw data from the clinical trial. Instead,
Plaintiff challenged Defendants’ reported statistical results by
alleging that Defendants should have used Plaintiff’s chosen
statistical methodology, including calculating separate p-
values for the United States and Mexico and combining those
results using “Fisher’s method,” and using “Tukey’s Studen-
tized Range test.” Plaintiff alleged that using its proposed sta-
tistical methodology would result in different p-values for the
5
In clinical trials, p-values usually are used to determine the statistical
significance of the results.
IN RE: RIGEL PHARMACEUTICALS 10673
100 mg and 150 mg doses at ACR 20 and that these newly
calculated p-values were not statistically significant.
[3] Thus, Plaintiff’s allegations of “falsity” essentially are
disagreements with the statistical methodology adopted by the
doctors and scientists who designed and conducted the study,
wrote the journal article, and selected the article for publica-
tion. The allegations therefore concern two different judg-
ments about the appropriate statistical methodology to be used
by Defendants. The allegations are not about false statements.
Although Plaintiff argues that it is simply challenging the
truth of the reported results, not the study design, there are
multiple problems with this argument. First, regardless of
whether the statistical methodologies used to calculate p-
values are considered part of the study design, Plaintiff is
alleging that Defendants should have used different statistical
methodologies, not that Defendants misrepresented the results
they obtained from the methodologies they employed.
Second, to accept Plaintiff’s argument that it is not chal-
lenging the study design, we would have to draw a line
between using a particular method of statistical analysis that
was part of a study’s protocol and adopted prior to unblinding
the data and disclosing results that were calculated using that
statistical analysis. Drawing such a distinction would suggest
that a company should announce statistical results that are
obtained using a statistical methodology that is adopted after
the study data is made available to the researchers and that is
different from the methodology used as part of the clinical
trial. Such a post-hoc adoption of a statistical method could
raise concerns regarding reliability, biased scientific methods,
or even fraud. See United States v. Harkonen, No. C 08-
00164, 2010 WL 2985257, *4, 7-10 (N.D. Cal. July 27, 2010).6
6
Plaintiff relies on Harkonen to argue that the p-values and clinical
results reported here were “false.” Plaintiff’s reliance on Harkonen is mis-
placed. Harkonen was a criminal wire fraud case where the district court
10674 IN RE: RIGEL PHARMACEUTICALS
Because there are many ways to statistically analyze data, it
is necessary to choose the statistical methodology before see-
ing the data that is collected during the clinical trial; otherwise
someone can manipulate the unblinded data to obtain a favor-
able result. Id. at *4. Thus, the principal features of the statis-
tical analysis usually are included in the protocol and the
statistical analysis plan is finalized before the data is
unblinded.
[4] Neither the Supreme Court nor this court has addressed
the question of whether statements concerning statistical
results of a clinical trial may be considered false or mislead-
ing under Rule 10b-5 because the statistical methodology that
produced those results was not the best or most acceptable
methodology. However, the district courts that have addressed
this issue support our conclusion that merely alleging that
defendants should have used different statistical methodology
in their drug trials is not sufficient to allege falsity. For exam-
ple, in Padnes v. Scios Nova Inc., No. C 95-1693, 1996 WL
539711 (N.D. Cal. Sept. 18, 1996), the plaintiffs alleged that
the defendants made false public statements relating to the
results of a Phase II drug study. The defendants had made
public statements that the results of a drug trial were statisti-
cally significant. Id. at *2. The plaintiffs did not allege that
the defendants’ statements summarizing their study inaccu-
rately reported their own conclusions. Id. at *5. Rather,
among other things, the plaintiffs alleged that the defendants
found that there was sufficient evidence to support the conviction because
statements in the defendant’s press release contradicted his own study
methodology and statistical calculations, and because the defendant
engaged in post-hoc calculations based on unblinded data to report a dif-
ferent result, without revealing the timing and process for these calcula-
tions. Harkonen, 2010 WL 2985257 at *3-12. In the case before us,
however, we have a securities fraud action where Plaintiff may implicitly
be suggesting that Defendants should have engaged in similar conduct, but
there are no allegations that Defendants actually did engage in similar con-
duct.
IN RE: RIGEL PHARMACEUTICALS 10675
should have included in their public summaries of the study
different measurements of the study’s outcome than those per-
formed by the researchers. Id. at *5.
The court held that the fact that the plaintiffs disagreed with
the researchers about the import of the data did not make the
defendants’ summaries of the study false or misleading. Id. In
addition, the court concluded that the securities laws do not
require that companies report information only from optimal
studies, even assuming that scientists could agree on what is
optimal, and that companies reporting information from
imperfect studies are not required to disclose alternative meth-
ods for interpreting the data. Id. The court therefore held that
the plaintiffs did not plead facts sufficient to explain why the
defendants’ summaries of the study were false or misleading.
Id.; see also In re Adolor Corp. Sec. Litig., 616 F. Supp. 2d
551, 568 n.15 (E.D. Pa. 2009) (where plaintiffs’ statistician
identified what he believed were problems with a defendant’s
statistical analysis of a clinical trial, plaintiff merely alleged
a disagreement about how to conduct and analyze the study,
not a false or misleading statement); DeMarco v. DepoTech
Corp., 149 F. Supp. 2d 1212, 1225 (S.D. Cal. 2001)
(“Although Plaintiffs may have established a legitimate dif-
ference in opinion as to the proper statistical analysis, they
have hardly stated a securities fraud claim.”).
[5] We find this reasoning persuasive. Because Plaintiff
does not allege that Defendants misrepresented their own sta-
tistical methodology, analysis, and conclusions, but instead
criticizes only the statistical methodology employed by
Defendants, Plaintiff did not adequately plead falsity with
respect to statistic results.
ii) Statements Relating to Country Interaction and
Corresponding Dose Response
Plaintiff argues that the complaint adequately alleges falsity
by alleging that Defendants’ initial presentation of results
10676 IN RE: RIGEL PHARMACEUTICALS
based on combined data7 from the United States and Mexico
misled investors because the combination of data from the
two countries concealed the existence of a country interaction
and consequently falsely indicated that there was a strong
ascending dose response (i.e. higher doses of R788 corre-
sponded to greater improvement in patients) between the 100
mg dose level and the 150 mg dose level.
We reject this argument. In fact, according to Plaintiff, the
press release regarding the results of the study stated that the
“efficacy results for the 100mg and 150mg dose groups were
fairly comparable.” Similarly, during the conference call con-
ducted that same day, Dr. Grossbard allegedly also stated that
the efficacy results for those two doses were “fairly compara-
ble.” The clear import of these alleged statements was that
there was not an ascending dose response between the 100 mg
and 150 mg dose levels. Therefore, Plaintiff did not ade-
quately plead falsity with respect to country interactions or
dose response.
[6] Accordingly, we affirm the district court’s ruling that
Plaintiff did not sufficiently plead falsity with respect to the
allegations relating to efficacy.
7
To the extent Plaintiff is challenging the statistical methodology used
by Defendants, that issue is addressed above.
In addition, to the extent Plaintiff suggests that parties conducting clini-
cal trials necessarily are required to release all the detailed data or break
that data down by categories that may plausibly be of interest to some
investors, Plaintiff is incorrect. Section 10(b) and Rule 10b-5 do not cate-
gorically prohibit statements that are incomplete or that report cumulative
figures instead of detailed breakdowns of the underlying data or sub-
categories of data. Brody v. Transitional Hosps. Corp., 280 F.3d 997,
1006, 1006 n.8 (9th Cir. 2002); see also In re Adolor Corp. Securities Liti-
gation, 616 F. Supp. 2d at 569 (holding that company was not required to
provide data or analysis on subgroups of patients in clinical trial even if
sub-group information was material and the company had made public
statements about top-line results).
IN RE: RIGEL PHARMACEUTICALS 10677
b. Statements Related to Safety
Plaintiff contends that the district court erred when it ruled
that Plaintiff failed to adequately plead falsity with respect to
Defendants’ initial statements about certain safety-related
results from the clinical trial.8 Plaintiff argues that Defendants
should have disclosed more information concerning side
effects on the day of the initial press release because the omis-
sion of some information related to side effects made the ini-
tial statements misleading. For example, Plaintiff argues that
Defendants should have reported more information related to
blood pressure or liver enzyme levels.
[7] The December 13, 2007 press release clearly identified
its table of results for certain side effects as “key safety
results,” not “all safety results” or even just “safety results.”
8
Although the district court held that Plaintiff had not adequately pled
false or misleading statements, much of Plaintiff’s argument on appeal
concerns the significance of allegedly omitted information to possible
investors rather than whether the alleged omission of information made
the alleged statements misleading. The materiality of information is differ-
ent from the issue of whether a statement is false or misleading.
Plaintiff contends that, after the Supreme Court’s decision in Matrixx
Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309 (2011), once a company
chooses to disclose any safety information, it must disclose all material
information regarding safety. This contention misconstrues the Supreme
Court’s opinion in Matrixx. Matrixx established that section 10(b)(5) and
Rule 10b-5 do not create an affirmative duty to disclose any and all mate-
rial information; section 10(b) and Rule 10b-5 prohibit only misleading
and untrue statements, not statements that are incomplete. Matrixx, 131 S.
Ct. at 1321-22. The Matrixx Court made it clear that not all adverse events
would be material and, more importantly, that not all material adverse
events would have to be disclosed. See id. “Even with respect to informa-
tion that a reasonable investor might consider material, companies can
control what they have to disclose under these provisions by controlling
what they say to the market.” Id. at 1322. Thus, as long as the omissions
do not make the actual statements misleading, a company is not required
to disclose every safety-related result from a clinical trial, even if the com-
pany discloses some safety-related results and even if investors would
consider the omitted information significant.
10678 IN RE: RIGEL PHARMACEUTICALS
Defendants never claimed that these were all of the safety
results or that these results included every occurrence of every
possible side effect.
[8] Moreover, for each category of side effect the press
release did address, the press release made clear what the
criteria were for including patients in the category. For exam-
ple, for hypertension, the press release stated that it was
including hypertension of moderate severity or greater. The
press release did not state that it was including all incidents
in which a patient experienced an increase in blood pressure
during the course of the trial. With regard to liver function,
the press release did not state that it was including all patients
in which there was any increase in liver enzymes regardless
of the degree or impact of the increase. Rather, the press
release stated that it was noting cases in which a liver enzyme
(ALT) was three times the upper limit of normal (3XULN).
It also stated that, for neutropenia, patients were included
based on whether dose reduction was necessary. For diarrhea
and upper GI side effects, the press release stated that it was
including incidents of moderate severity9 or greater.
[9] Plaintiff does not allege that Defendants omitted infor-
mation that fell into these categories. Rather, Plaintiff alleges
that Defendants should have initially reported other informa-
tion concerning side effects instead of waiting to report that
information in the journal article. However, the subsequent
release of more extensive information, such as a few cases of
mild hypertension or some cases of neutropenias that did not
require dose reductions, was not inconsistent10 with the results
9
Plaintiff’s contention that investors might not understand that a term
such as “moderate” did not include side effects of lesser severity has no
merit. Any investor reading the press release would understand that Rigel
had set thresholds for reporting its “key safety findings” and that the press
release did not include all side effects experienced by participants in the
drug trial.
10
Thus, the facts in the instant case are very different from those in
Matrixx. In Matrixx, the defendant allegedly had evidence of a biological
IN RE: RIGEL PHARMACEUTICALS 10679
that originally were reported. Moreover, even if some inves-
tors might have wanted more extensive information related to
blood pressure, liver enzymes, or other matters, that would
not be sufficient to make the alleged original statements false
or misleading. Accordingly, we hold that Plaintiff did not ade-
quately allege that the initial statements related to possible
side effects were false or misleading.
c. Statements Related to Partnership Prospects
Plaintiff contends that the district court erred when it held
that Plaintiff had not sufficiently alleged that Defendants’
statements regarding partnership prospects were false or mis-
leading. The complaint alleges that, on October 27, 2008,
Gower falsely stated: “[S]till on track for what we’ve been
saying all along, which is putting the partnership in place as
early as the early part of next year. I doubt it will be this
year.” The complaint also alleges that, on November 3, 2008,
Gower falsely stated: “We remain committed to doing every-
thing possible to develop and commercialize R788 in RA. We
expect to establish a collaboration partnership to further these
ends, and that in fact is going quite well.”
link between its drug’s key ingredient and anosmia and had not conducted
any studies of its own to disprove that link. 131 S. Ct. at 1319-23. How-
ever, the defendant allegedly did more than withhold this information
from the public; it allegedly contradicted its own information, publicly
stating that reports indicating that its drug caused anosmia were “com-
pletely unfounded and misleading” and that “the safety and efficacy of
zinc gluconate for the treatment of symptoms related to the common cold
have been well established.” Id. at 1323 (internal quotation marks omit-
ted). Accordingly, the Court concluded that, assuming the alleged facts to
be true, the undisclosed causation information was not only material, but
constituted facts “necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading.”
Id. (internal quotation marks omitted). The Court therefore held that the
plaintiff adequately pleaded a misrepresentation or omission. Id. Here, in
contrast, although the allegedly omitted information was more detailed
and extensive than the alleged original statements, the omitted information
did not contradict, or render misleading, the original reports of the top-line
results.
10680 IN RE: RIGEL PHARMACEUTICALS
[10] The complaint further alleges that, because potential
partners had access to the clinical trial data, and because
Defendants “knew” the results were not really statistically sig-
nificant, Rigel was not on track for a partnership and defen-
dants knew it.11 Plaintiff does not allege any specific facts that
would show that Defendants did not really expect to enter into
a partnership, that Rigel was not really moving towards a part-
nership,12 or that Defendants believed that the clinical trial
results were not statistically significant. Rather than ade-
quately pleading that the statements regarding partnership
plans and expectations were false, the complaint effectively
pleads only that Defendants should have had different expec-
11
In concluding that the allegations were inadequate, the district court
reasoned, in part, that Plaintiff had not alleged any facts showing that
Defendants “believed” or “knew” that their statements regarding partner-
ship prospects and the clinical trial results were false. Plaintiff argues that
the district court thus improperly conflated falsity and scienter. However,
because the allegations relating to partnership prospects concerned the
Defendants’ statements about their expectations, Defendants’ mental states
were at issue when analyzing falsity. Moreover, Plaintiff’s complaint
claims that Defendants’ statements regarding partnership prospects were
false because Defendants “knew” at the time that the results of the clinical
trial had derailed Rigel’s partnership prospects. When the alleged false
statements are about a defendant’s own beliefs and expectations, the anal-
ysis of falsity and scienter often will involve examination of the same
facts. See, e.g., Ronconi v. Larkin, 253 F.3d 423, 429-30 (9th Cir. 2001).
12
The district court did not take judicial notice of the fact that Rigel did
subsequently enter into a partnership agreement with AstraZeneca. We do
not take judicial notice of the partnership agreement either. In any event,
our analysis would be the same regardless of whether Rigel entered into
a partnership agreement. The mere fact that stated expectations fail to
come to pass does not make a statement concerning expectations or plans
false. See Ronconi, 253 F.3d at 429-30.
In their brief, Defendants argue that it would be appropriate for us to
take judicial notice of a number of other documents in order to address
misrepresentations made by Plaintiff with respect to other issues such as
clinical trial results and analyst reports. Although we understand Defen-
dants’ frustrations, we decline to take judicial notice of any documents.
The record is sufficient for us to address any issues that are relevant to our
analysis.
IN RE: RIGEL PHARMACEUTICALS 10681
tations and beliefs concerning partnership prospects. Because
the complaint does not allege that Defendants falsely repre-
sented their actual partnership plans and expectations, the
allegations are insufficient to plead falsity. See Ronconi v.
Larkin, 253 F.3d 423, 429-30 (9th Cir. 2001) (holding that
complaint did not sufficiently plead falsity where it alleged
that defendant made false statements about earnings and sales
expectations and that defendant stated that plan to cut jobs
and costs was “on track,” but complaint did not allege facts
showing that defendant knew at the time that the predictions
were inaccurate).
[11] Accordingly, we hold that Plaintiff has failed to meet
the pleading requirements for falsity under Rule 8, Rule 9(b),
and the PSLRA.
3. Scienter
[12] Plaintiff contends that the district court erred when it
concluded that Plaintiff had not sufficiently pled scienter.
Scienter is “a mental state embracing intent to deceive,
manipulate, or defraud.” See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 319 (2007) (internal quotation
marks omitted).
[13] To adequately plead scienter under the PSLRA, the
complaint must “state with particularity facts giving rise to a
strong inference that the defendant acted with the required
state of mind.” 15 U.S.C. § 78u-4(b)(2); see also Zucco Part-
ners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th Cir.
2009). To qualify as a “strong inference,” the Supreme Court
has held, “an inference of scienter must be more than merely
plausible or reasonable.” Tellabs, 551 U.S. at 314. When
determining whether there are sufficient allegations of
scienter, courts “must consider the complaint in its entirety
. . . [and inquire] whether all of the facts alleged, taken collec-
tively, give rise to a strong inference of scienter, not whether
any individual allegation, scrutinized in isolation, meets that
10682 IN RE: RIGEL PHARMACEUTICALS
standard.” Id. at 322-23. Moreover, courts must take into
account plausible opposing inferences. Id. at 323. A com-
plaint will survive a motion to dismiss “only if a reasonable
person would deem the inference of scienter cogent and at
least as compelling as any opposing inference one could draw
from the facts alleged.” Id. at 324.
Plaintiff argues that it met the requirements for pleading
scienter by alleging that Defendants knew of the detailed
study results when they made the allegedly fraudulent state-
ments and by alleging that Defendants had financial motives
for making fraudulent statements. These arguments are
unconvincing, and we hold that the district court did not err
when it determined that Plaintiff had not sufficiently pled
scienter.
a. Knowledge of the Study Data
Plaintiff argues that Defendants knew that their statements
regarding statistical significance and efficacy were false
because they had access to the clinical trial results and there-
fore knew there was a substantial country interaction and
knew what the blood pressure data was. Even assuming,
arguendo, that Plaintiff adequately pled that all of the defen-
dants had knowledge of the detailed clinical results at the time
the allegedly false statements were made, such an allegation
does not support a strong inference of scienter.
[14] Although Plaintiff notes that it alleged that Dr. Gross-
bard knew there was a country effect, Plaintiff points us to no
allegations that Dr. Grossbard or any of the other defendants
believed that they made false or misleading statements relat-
ing to a country effect or that Defendants believed that they
were misrepresenting the statistical significance of their
results. Moreover, to the extent Plaintiff has provided us with
any indication about Dr. Grossbard’s views regarding country
effects, the inference is that, after looking at the results, Dr.
Grossbard was not concerned about comparative patient
IN RE: RIGEL PHARMACEUTICALS 10683
responses in the United States and Mexico for at least two
reasons: 1) he believed the differences between the active and
placebo patients were similar for both countries, but simply
had different starting and ending points; and 2) he was aware
of other rheumatoid arthritis drugs that had been approved by
the FDA and similarly had included a significant number of
Latin American patients in their clinical trials and had shown
higher response rates in Latin American patients than in
American and European patients during their drug trials.
[15] Plaintiff next contends that it adequately pled scienter
by alleging that the earlier reports by Defendants failed to dis-
close some blood pressure information. Plaintiff acknowl-
edges that Rodriguez stated that there was a “bit of
hypertension here and there,” but asserts that he concealed the
fact that five patients experienced hypertension, not two as
was initially reported. The complaint does not specifically
allege that Rodriguez himself stated that there was any partic-
ular number of patients who suffered from hypertension.
However, the complaint does allege that he presented a chart
relating to safety. Even assuming that Plaintiff adequately
alleged that this was the same chart from the December 13,
2007 press release, which reported two incidents of moderate
or higher hypertension, such an allegation would be insuffi-
cient to support a finding of scienter. The complaint does not
allege that there were patients excluded from that chart who
experienced moderate or severe hypertension. More impor-
tantly for purposes of scienter, the complaint does not allege
that Defendants believed that there were more patients than
those listed on the chart who experienced moderate or severe
hypertension. Instead, Plaintiff essentially is arguing only that
Rodriguez knew he was not reporting information concerning
all cases of hypertension, regardless of severity, or all inci-
dents of increased blood pressure. This is not sufficient to
allege that he or the other defendants believed that they were
making false or misleading statements related to blood pres-
sure.
10684 IN RE: RIGEL PHARMACEUTICALS
In addition, as the district court noted, if Defendants were
intent on misleading investors about the safety of R788, it
does not make sense that the safety information they would
choose to disclose in their initial, allegedly fraudulent,
reports, would be the most severe adverse events.
b. Motive For Fraud
Plaintiff contends that its allegations regarding motive bol-
ster its scienter pleadings. In support of this argument Plaintiff
argues that it alleged a motive to commit fraud when it
alleged that, at the time the allegedly fraudulent statements
were made, Defendants were seeking a partner and were plan-
ning to raise capital in a stock offering. In addition, Plaintiff
points to its allegations that individual defendants knew that
they would receive higher salaries, bonuses, and stock options
and that the value of their stock options would increase sub-
stantially if Rigel reported positive results from the clinical
trial.
[16] However, allegations of routine corporate objectives
such as the desire to obtain good financing and expand are
not, without more, sufficient to allege scienter; to hold other-
wise would support a finding of scienter for any company that
seeks to enhance its business prospects. Lipton v. Pathogene-
sis Corp., 284 F.3d 1027, 1038 (9th Cir. 2002). In addition,
it is common for executive compensation, including stock
options and bonuses, to be based partly on the executive’s
success in achieving key corporate goals. Thus, especially
given the holistic approach to assessing scienter adopted in
Tellabs and the requirement that we take into account plausi-
ble opposing inferences, we will not conclude that there is
fraudulent intent merely because a defendant’s compensation
was based in part on such successes. See Rubke v. Capitol
Bancorp Ltd., 551 F.3d 1156, 1166 (9th Cir. 2009) (holding
that allegations of motive and opportunity were not enough to
create a strong inference of scienter).
IN RE: RIGEL PHARMACEUTICALS 10685
In addition, the individual defendants’ conduct concerning
their stock is inconsistent with Plaintiff’s theory that financial
motive establishes scienter here. The complaint alleges that
individual defendants knew that the value of their stock
options would increase if Rigel reported positive results from
the clinical trial. However, because none of the defendants
sold stock during the period between the allegedly fraudulent
statements and the subsequent public disclosure of the
detailed data, which is the period during which they would
have benefitted from any allegedly fraudulent statements, the
value of the stock and stock options does not support an infer-
ence of scienter. See Metzler Inv. GMBH v. Corinthian Colls.,
Inc., 540 F.3d 1049, 1067 (9th Cir. 2008) (holding that, where
a defendant sold no stock at all, this suggested that there was
no insider information from which to benefit and there was
not a strong inference of scienter); Ronconi v. Larkin, 253
F.3d 423, 436 (9th Cir. 2001) (holding that, where knowl-
edgeable insiders did not sell stock at a time that would have
taken advantage of allegedly fraudulent statements, there was
not a strong inference of scienter). In fact, it supports the
opposite inference.13
Moreover, if the individual defendants were acting based
on their belief that they had a financial motive to conceal the
“true” results of the clinical trial, they would not have volun-
tarily publicly disclosed all the data and the statistical meth-
odology. They also would not have decided that the people to
receive that detailed information should be the people most
likely to identify any problems with the study — the doctors
and scientists who were at the scientific meeting and who
were publishing and reading the journal article.
13
Similarly, the argument that Defendants made the allegedly fraudulent
statements in order to obtain a partner makes no sense given that Defen-
dants disclosed the detailed information before entering into a partnership
agreement.
10686 IN RE: RIGEL PHARMACEUTICALS
c. Holistic Review
[17] Overall, the inference of scienter here is weak, and
certainly not as strong as the inference that Defendants had a
non-fraudulent intent. Thus, the district court did not err when
it determined that Plaintiff did not sufficiently plead scienter.
B. Section 11 Claim
Plaintiff contends that the district court erred when it dis-
missed the section 11 claim.14 The district court concluded
that Plaintiff’s section 11 claim was grounded in fraud and
therefore was subject to the pleading requirements contained
in Rule 9(b), which it then held were not met. Alternatively,
the court held that Plaintiff had failed to allege a material
omission or misrepresentation.
The particularity requirements of Rule 9(b) apply to claims
brought under section 11 when such claims are grounded in
fraud. Stac Elecs., 89 F.3d at 1404-05. Plaintiff argues that its
section 11 claim is not grounded in fraud, pointing out that it
disclaimed in its complaint any allegation of fraud in connec-
tion with the section 11 cause of action, and contending that
it did not incorporate any of the section 10(b) conduct allega-
tions in its section 11 claim.
We have held that a plaintiff’s nominal efforts to disclaim
allegations of fraud with respect to its section 11 claims are
unconvincing where the gravamen of the complaint is fraud
and no effort is made to show any other basis for the claims.
Stac Elecs., 89 F.3d at 1405 n.2. “To ascertain whether a com-
plaint ‘sounds in fraud,’ we must normally determine, after a
14
Section 11 of the Securities Act creates a private remedy for purchas-
ers of a security if the registration statement “contained an untrue state-
ment of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.”
15 U.S.C. § 77k(a); Stac Elecs., 89 F.3d at 1403.
IN RE: RIGEL PHARMACEUTICALS 10687
close examination of the language and structure of the com-
plaint, whether the complaint ‘allege[s] a unified course of
fraudulent conduct’ and ‘rel[ies] entirely on that course of
conduct as the basis of a claim.’ ” Rubke v. Capitol Bancorp
Ltd, 551 F.3d 1156, 1161 (9th Cir. 2009) (quoting Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.
2003)) (alterations in original). A plaintiff “may choose not to
allege a unified course of fraudulent conduct in support of a
claim, but rather to allege some fraudulent and some non-
fraudulent conduct.” Vess, 317 F.3d at 1104.
[18] Here, although the section 11 claim does not adopt all
of the allegations contained in the rest of the complaint, it
does not allege different misrepresentations. Instead, it merely
relies on the same alleged misrepresentations from the
December 13, 2007 press release that are central to Plaintiff’s
section 10(b) fraud claim. Accordingly, Plaintiff’s section 11
claim is grounded in fraud and Plaintiff must meet Rule 9(b)’s
pleading requirements. This does not mean, as Plaintiff con-
tends, that it may not plead alternative theories of liability; it
merely means that, with both the section 10(b) and the section
11 claims, Plaintiff must meet the pleading requirements of
Rule 9(b). For the same reasons discussed above regarding the
section 10(b) claim, we hold that, for the section 11 claim,
Plaintiff has failed to meet Rule 9(b)’s pleading requirements
with respect to pleading a false or misleading statement.15
C. Section 15 and Section 20(a) Claims
[19] Section 20(a) and section 15 both require underlying
primary violations of the securities laws. 15 U.S.C. §§ 77o,
78t(a). Because Plaintiff here has failed to adequately plead
a violation of the federal securities laws, it follows that Plain-
tiff also has failed to adequately plead violations of section
20(a) and section 15.
15
In addition, the allegations do not even meet Rule 8(a)’s requirements
because they do not allege a material omission or misrepresentation.
10688 IN RE: RIGEL PHARMACEUTICALS
V. Conclusion
For the foregoing reasons, the district court’s order granting
the motion to dismiss is AFFIRMED.