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Biotech / Medical : Biotech Valuation -- Ignore unavailable to you. Want to Upgrade?

To: Biomaven who wrote (5376)	1/9/2002 2:42:44 PM
From: RCMac	Respond to of 52153

A strong defense to that "insider information" charge is that an independent outsider (BMY) had (presumably) the same information as the insiders and it did not deter them from making the purchase. My guess is that the prior communications from the FDA were pretty routine stuff - certainly BMY would have examined all of it. Peter, I agree that it's a pretty good argument that BMY (a) looked at the same information that it is now charged was improperly withheld, and (b) was not deterred -- i.e., did not find it "material" within the meaning of the securities laws (material: likely to assume "actual significance" in an investment decision by a reasonable investor). But note that this is a defense on the facts, i.e., probably not a question on which defendants could get summary judgment, and a question that would have to be decided at trial (by a jury). And whether BMY got all the information that IMCL had gotten from meetings with FDA would be a major issue in the litigation. If the 12/28 FDA letter as quoted in The Cancer Letter correctly describes what FDA earlier said to IMCL, then this lawsuit won't go away easily. The letter alone might be sufficient to preclude summary judgment for IMCL. The relevant passage is: "In order for your application to be considered complete, you were informed during the meeting of Aug. 11, 2000, in our letter of Jan. 19, 2001, and during the telephone conference call of Jan. 26, 2001, that the application must provide evidence that the addition of a toxic agent (irinotecan [CPT-11] ) is necessary to achieve the clinical effect." (quoted from IMCL thread # 1796, Message 16876302 --RCM