Fr. Emmanuel Files Motion For Summary Judgment in SEC Fight Over Ligand Pharmaceuticals
Fr. Emmanuel Files Motion For Summary Judgment in SEC Fight Over Ligand Pharmaceuticals
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL )
MANAGEMENT, LLC, ) Civil Action No. 1:18-cv-11926-PBS
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, Defendants Father Emmanuel
LLC and the Amvona Fund, LP, move this Honorable Court to grant summary judgment in their
favor on all claims asserted by Plaintiff Securities and Exchange Commission in this so-called
“short-and-distort” case.
In support of this Motion, Defendants state that the Commission’s case is based on four
statements made by Fr. Emmanuel that (i) are each either demonstrably true or constitute opinion
commentary protected by the First Amendment, (ii) had no impact on the subject company’s
stock price and therefore were immaterial as a matter of law; and (iii) were made without the
requisite scienter.
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The Commission has failed to present any evidence of any material impact to the stock
price of Ligand (the subject of the alleged misstatements in this case). In fact, the stock price for
Ligand went up on all but one of the days of the challenged statement and the undisputed record
shows that both parties agree the one day on which the stock price rose was not statistically
significant. This makes the statements immaterial as a matter of law and is fatal to the
Commission’s claims.
Additionally, the undisputed record shows that Fr. Emmanuel believed in the veracity of
the four opinions being challenged: one based on a mathematically correct calculation, which the
Commission charges was misleading because Fr. Emmanuel’s chosen metric (of which it
disapproves) made Ligand “look[] really bad”; two statements about a different company than
the one he shorted; and one statement based on a telephone call in which the other participant
essentially conceded the truth of Fr. Emmanuel’s statement and for which Fr. Emmanuel’s real-
time notes corroborate his statement. And Fr. Emmanuel’s actions were in direct opposition to
the hallmarks of a typical “short-and-distort” case, as Fr. Emmanuel (1) published all his reports
under his own name; (2) expressly disclosed at the beginning of each report that he had taken a
short position in Ligand and that he was only expressing his opinions; (3) specifically cited all
source materials giving rise to his commentary concerning Ligand; and (4) held on to his short
position for months after he issued his reports. Thus, the Commission has failed to prove
scienter and cannot sustain a claim based on the four alleged misstatements as they are protected
In addition, the Commission’s novel attempt to use Rule 206 of the Investment Advisers
Act in the context of an alleged market-manipulation case based on allegedly false statements
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fails both because there was no fraud, and because the Commission has provided no evidence
Defendants further rely on their Memorandum of Law in Support of Their Motion for
WHEREFORE, Defendants respectfully request that the Court enter Summary Judgment
in favor of Defendants.
Respectfully Submitted,
I hereby certify that Defendants’ counsel conferred with counsel for the Securities and
Exchange Commission in an attempt to resolve or narrow the issues but was unable to do so.
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Case 1:18-cv-11926-PBS Document 124 Filed 09/30/20 Page 4 of 4
Pursuant to Local Rule 7.1(d), Defendants request to be heard at oral argument on their
Motion for Summary Judgment.
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-participants on September 30, 2020.
4
Case 1:18-cv-11926-PBS Document 125 Filed 09/30/20 Page 1 of 45
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff )
)
v. )
) Civil Action No. 1:18-cv-11926-PBS
GREGORY LEMELSON and LEMELSON CAPITAL )
MANAGEMENT, LLC, ) Leave to File in Excess of Pages Permitted by
) Local Rule 7.1(b)(4), Granted September 21,
Defendants, ) 2020, Dkt. No. 119
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
TABLE OF CONTENTS
Pages
Table of Contents....................................................................................................... i
Table of Authorities................................................................................................... iv
I. INTRODUCTION ......................................................................................... 1
III. ARGUMENT.................................................................................................. 14
A. Legal Standard................................................................................... 14
i
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Pages
i. The Commission’s Failure to Produce Evidence that
the Four Challenged Statements Caused Ligand’s Stock
Price to Decrease is Fatal to its Claims.......................... 15
ii
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Pages
b. July 3, 2014 Statement that Viking Did Not
Consult with Its Auditors on Material Issues
and the Financial Statements Were
Unaudited……………………………………. 31
IV. CONCLUSION............................................................................................... 35
iii
Case 1:18-cv-11926-PBS Document 125 Filed 09/30/20 Page 5 of 45
TABLE OF AUTHORITIES
Cases
Case Pages
Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697 (D. Md. 2000).......................... 31, 33
Aurelius v. Bofl Fed. Bank, No. MC 16–71 DSF (FFM), 2016 WL 8925145
25, 26
(C.D. Cal. Sept. 20, 2016)..................................................................................
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975)....................... 23 n.7
Brumbaugh v. Wave Systems Corp., 416 F. Supp. 2d 239 (D. Mass. 2006)..... 16, 19
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993)......................... 31, 33
City of Dearborn Heights Act 345 Police & Fire Retirement Sys. v.
26
Waters Corp., 632 F.3d 751 (1st Cir. 2011).......................................................
Emerson v. Genocea Biosciences, Inc. 353 F. Supp. 3d 28 (D. Mass. 2018)..... 15, 16, 19
Fait v. Regions Fin. Corp., 655 F.3d 105 (2d Cir. 2011)................................... 29, 31, 33
Fire & Police Pension Ass’n of Colo. v. Abiomed, Inc., 778 F.3d 228
(1st Cir. 2015).................................................................................................... 24 n.9, 26
iv
Case 1:18-cv-11926-PBS Document 125 Filed 09/30/20 Page 6 of 45
Case Pages
Greebel v. FTP Software, Inc., 194 F.3d 185 (1st Cir. 1999)............................ 24 n.9, 26 n.10
In re Biogen Sec. Litig., 179 F.R.D. 25 (D. Mass. 1997)................................... 15, 16, 20
In re Boston Technology Inc. Sec. Litig., 8 F. Supp. 2d 43 (D. Mass. 1998)...... 22, 23
In re Credit Suisse First Boston Corp. Sec. Litig., No. 97 CIV. 4760 (JGK),
26 n.10
1998 WL 734365 (S.D.N.Y. Oct. 20, 1998).......................................................
In re Northern Telecom Sec. Litig., 116 F. Supp. 2d 446 (S.D.N.Y. 2000)........ 20, 21
In Re Xcelera.com Securities Litig., 430 F.3d 503 (1st Cir. 2005)..................... 15, 19
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir. 1990)........ 25
Mehta v. Ocular Therapeutix, Inc., 955 F.3d 194 (1st Cir. 2020)...................... 26
v
Case 1:18-cv-11926-PBS Document 125 Filed 09/30/20 Page 7 of 45
Case Pages
MHC Mut. Conversion Fund v. Sandler O’Neill Partners, L.P.,
29, 30
761 F.3d 1109 (10th Cir. 2014)...........................................................................
Miss. Pub. Emps. Ret. Sys. v. Boston Sci. Corp., 649 F.3d 5 (1st Cir. 2011)..... 24 n.9
Moldea v. New York Times Co., 15 F.3d 1137 (D.C. Cir.1994)......................... 31, 33
Parnes v. Gateway 2000, Inc., 122 F.3d 539 (8th Cir. 1997)............................. 22
Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995)......................................... 30, 31, 33, 34
SEC v. Butler, No. 00-1827, 2005 WL 5902637 (W.D. Pa. Apr. 18, 2005)....... 17
SEC v. Curshen, 372 Fed. App’x 872, No. 09-1196, 2010 WL 1444910
26
(10th Cir. Apr. 13, 2010).....................................................................................
SEC v. Dubovoy, No. 15-6076, 2016 WL 5745099 (D.N.J. Sept. 29, 2016)...... 27
vi
Case 1:18-cv-11926-PBS Document 125 Filed 09/30/20 Page 8 of 45
Case Pages
SEC v. Fife, 311 F.3d 1 (1st Cir. 2002).............................................................. 15
SEC v. Hamdan, SEC Lit. Rel. No. 23470, (Feb. 17, 2016)............................... 26, 27
SEC v. Ustian, No. 16 C 3885, 2019 WL 7486835 (N.D. Ill. Dec. 13, 2019).... 17, 18
SEC v. World Radio Mission, 544 F.2d 535 (1st Cir. 1976)............................... 24
Testa v. Wal-Mart Stores, Inc., 144 F.3d 173 (1st Cir. 1998)............................. 28 n.13
vii
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I. INTRODUCTION
The Securities and Exchange Commission has never brought an enforcement action
remotely resembling its case against Defendant Father Emmanuel Lemelson (f/k/a Gregory
Lemelson). And for good reason. The Commission seeks to punish Fr. Emmanuel in this so-
called “short-and-distort” case based on four statements he made that (i) are each either
demonstrably true or constitute opinion commentary protected by the First Amendment, (ii) had
no impact on the subject company’s stock price and therefore were immaterial as a matter of law;
From June to August 2014, Fr. Emmanuel published five reports, consisting of 56 pages,
and gave two internet radio interviews expressing his opinions as to why Ligand
statements and opinions Fr. Emmanuel made concerning Ligand, the Commission cherry-picks
just two as allegedly being false or misleading. Curiously, the other two challenged statements
involve a different company entirely, in which Fr. Emmanuel did not hold a short position. On
the days the challenged statements were made, Ligand’s stock price actually increased, and the
Commission has failed to produce any evidence (expert or otherwise) that Fr. Emmanuel’s
statements negatively impacted Ligand’s stock price. As this Court (and others) have previously
held, this renders the four challenged statements immaterial as a matter of law.
Moreover, this case lacks all the hallmarks of a true short-and-distort scheme,
distinguishing it from all others the Commission has ever brought. For example, Fr. Emmanuel
(1) published all his reports under his own name; (2) expressly disclosed at the beginning of each
report that he had taken a short position in Ligand and that he was only expressing his opinions;
(3) specifically cited all source materials giving rise to his commentary concerning Ligand; and
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(4) held on to his short position for months after he issued his reports. Because the Commission
has failed to produce any evidence of scienter, the absence of these short-and-distort hallmarks is
fatal to its case. Indeed, there are no facts in the undisputed record upon which a factfinder could
In addition, the Commission’s novel attempt to use Rule 206 of the Investment Advisers
Act in an alleged market-manipulation case based on allegedly false statements fails because the
Commission has provided no evidence that Fr. Emmanuel defrauded his own investors.
In short, in the face of the undisputed facts that Fr. Emmanuel lacked any intent to
defraud, the Commission challenges four statements (which were each demonstrably true or
opinion commentary protected by the First Amendment) that had no impact on Ligand’s stock
price: one based on a mathematically correct calculation, which the Commission charges was
misleading because Fr. Emmanuel’s chosen metric (of which it disapproves) made Ligand
“look[] really bad”; two statements about a different company than the one he shorted; and one
statement based on a telephone call in which the other participant essentially conceded the truth
of Fr. Emmanuel’s statement and for which Fr. Emmanuel’s real-time notes corroborate his
the Commission’s case, taken after years of lobbying by Ligand and its counsel, is not only
frivolous but if not disposed of on summary judgment, it will have a dangerously chilling impact
In 2012, Fr. Emmanuel created the Amvona Fund LP. Defendants’ Concise Statement of
Undisputed Material Facts in Support of Their Motion for Summary Judgment (“SOF”) ¶ 1.
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Lemelson Capital Management is the general partner of Amvona. SOF ¶ 2. Throughout its
existence, Amvona has mostly held long positions in stocks, but has also occasionally taken short
positions. SOF ¶ 3. Since 2010 (even before launching Amvona), Fr. Emmanuel has published
securitization fraud, and high-level security analysis of common stocks—none of which, apart
In 2014, Fr. Emmanuel identified Ligand as a company whose stock he believed was
overvalued and accordingly took a short position in the company. SOF ¶ 6. On June 16, 2014,
consistent with his prior practice, Fr. Emmanuel issued a 25-page opinion commentary
concerning his Ligand thesis. SOF ¶ 7. Fr. Emmanuel qualified his report with cautionary
language, including full disclosure that he was “shorting” Ligand. 1 SOF ¶ 8. Indeed, starting
with the first sentence of his first report on Ligand, and continuing in every one of the
reports at issue, Fr. Emmanuel disclosed that “Lemelson Capital is short shares
of (NASDAQ:LGND).” SOF ¶ 8 (emphasis added); SOF ¶ 36; SOF ¶ 59; SOF ¶ 63. Fr.
Emmanuel additionally disclosed that “[a]ll content in this report represents the opinions of
Lemelson Capital.” SOF ¶ 9 (emphasis added). This report also included the following:
All expressions of opinion are subject to change without notice, and Lemelson
Capital does not undertake to update or supplement this report or any information
contained herein . . . . Lemelson Capital may benefit from any change in the
valuation of any other companies, securities, or commodities discussed in this
document.
SOF ¶ 10.
1
As far as the undersigned are aware, Fr. Emmanuel’s disclosure that he was short Ligand distinguishes this case
from all other short-and-distort actions brought by the Commission.
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Among his many opinions in the June 16, 2014 report, Fr. Emmanuel stated Ligand’s
largest royalty-generating drug, Promacta, faced an imminent threat from a new drug, which he
believed would “virtually eliminate demand for Promacta.” SOF ¶ 11. Ligand’s stock price fell
on the date Fr. Emmanuel published this first 25-page report; however, the Commission is not
Following the publication of Fr. Emmanuel’s June 16, 2014 report, high-ranking Ligand
personnel exchanged emails with the company’s Investor Relations (“IR”) representative, Bruce
Voss, expressing anger about the report and discussing whether to speak with Fr. Emmanuel
about it. SOF ¶ 14. Ligand decided to have Mr. Voss call Fr. Emmanuel. SOF ¶¶ 14, 15.
Ligand’s CEO, John Higgins, specifically instructed Mr. Voss not to “jump into content or a
On June 18, 2014, Mr. Voss and Fr. Emmanuel spoke by phone. SOF ¶ 15. According
to Mr. Voss’ handwritten notes, the call lasted from 12:56 p.m. ET to 1:16 p.m. ET. SOF ¶ 15.
Fr. Emmanuel took extensive electronic notes of the call, which reflect that Mr. Voss agreed
with his opinion that Promacta was going away. SOF ¶ 16. The metadata from these notes
shows that Fr. Emmanuel created them at 1:21 p.m. ET and completed them at 1:42 p.m. ET.
SOF ¶ 17.
For his part, according to his real-time emails, Mr. Voss followed his client’s express
instructions and did not engage in any rebuttal of Fr. Emmanuel’s opinions during this call. SOF
¶ 18. Specifically, according to Mr. Voss, Fr. Emmanuel stated his opinion that Promacta was
going away and then asked Mr. Voss, “don’t you agree?” SOF ¶¶ 18-20. Mr. Voss stated that he
did not respond to this question; instead he remained silent. SOF ¶ 20.
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The following day, June 19, 2014, Fr. Emmanuel was interviewed by an internet radio
outlet called Benzinga. SOF ¶ 21. There is no evidence of the number of people that listened to
this interview. SOF ¶ 22. The interview lasted approximately 22 minutes, only five of which
included a discussion of Fr. Emmanuel’s thesis on Ligand. SOF ¶¶ 23, 24. When the topic of
Ligand was first raised around the 15-minute mark of the interview, Fr. Emmanuel disclosed he
had a short position in Ligand. SOF ¶ 25. At approximately the 16-minute mark, Fr. Emmanuel
stated that he had spoken to Ligand—and then corrected himself by saying he spoke to Ligand’s
IR firm—which had “basically agreed” with his thesis concerning Promacta. SOF ¶ 26. This
statement, which did not appear in any of Fr. Emmanuel’s four subsequent reports, is the first of
the four challenged statements. SOF ¶ 29. Ligand’s stock price closed higher on the day of the
After the interview, Mr. Higgins and Mr. Voss spoke by phone that same day about both
Mr. Voss’s discussion with Fr. Emmanuel and the radio interview. SOF ¶ 30. Thereafter, Mr.
Higgins and Mr. Voss continued their conversation in writing. SOF ¶¶ 31-32. In an email
written the day after the interview, Mr. Voss explained his position as to what transpired on the
call: “As I wrote last night, he [Fr. Emmanuel] made the statement with a rhetorical ‘don’t you
agree’ and I moved on to the next subject as we had more to cover and his statement was
ridiculous.” SOF ¶ 31 (emphasis added). Critically, the writing that Mr. Voss refers to from the
previous night is missing. SOF ¶ 31. Ligand claims it cannot find it. SOF ¶ 31.
In response to (i) their initial telephone conversation; (ii) the missing written document;
and (iii) the email that Ligand did produce, Mr. Higgins sent an email to Mr. Voss expressing his
anger that Mr. Voss remained silent and left Fr. Emmanuel with the impression of a “tacit
agreement” with Fr. Emmanuel’s thesis. SOF ¶ 32. Specifically, Mr. Higgins stated:
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Also, if he [Lemelson] said the CEO beats his employees would you just move on
because “there were more things to cover.” Or would you take a moment to stick
up for the CEO? Promacta is a big deal, and a big part of our value and business
model. He knows it too. He gave you a softball and you just moved on? Even 1
minute of soft info would have left him with a different impression than tacit
agreement.
In other words, based on his multiple communications with Mr. Voss, Mr. Higgins
agreed with Fr. Emmanuel that Mr. Voss had “basically” (or in Mr. Higgins’ words, “tacit[ly]”)
agreed with Fr. Emmanuel’s thesis. Mr. Voss responded to Mr. Higgins’ contention of a tacit
agreement not by claiming Fr. Emmanuel lied, but instead by stating that Fr. Emmanuel took
On July 3, 2014, Fr. Emmanuel issued his second report on Ligand. SOF ¶ 35. This
report included a critical discussion of a company called Viking Therapeutics, with whom
Ligand had just entered into a licensing agreement. SOF ¶ 37. Fr. Emmanuel did not hold a
short position in Viking (a private, pre-operational company) at the time. SOF ¶ 41. Moreover,
contrary to the Commission’s patently false allegations in both its Complaint and Amended
Complaint, Ligand did not own any portion of Viking at this time. SOF ¶¶ 39-40. Two of the
Commission’s four challenged statements in this case are based on Fr. Emmanuel’s statements
In his July 3, 2014 report, Fr. Emmanuel disclosed that the basis for his comments
concerning Viking came solely and directly from his analysis of Viking’s publicly filed Form S-1
Registration Statement, and he cited to the document so that readers could review the document
for themselves. SOF ¶¶ 42-45. In its S-1, Viking disclosed that it had terminated its auditor one
month after hiring it and then disclosed the following concerning the new auditor:
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SOF ¶ 44. Immediately after quoting the above passage and expressly sourcing it as coming
from Viking’s publicly filed S-1, Fr. Emmanuel opined: “In other words, Marcum was merely
hired, but the company has not yet even consulted with the firm on any material issues. The
financial statements provided on the S1 accordingly are unaudited.” SOF ¶ 45 (emphasis added).
In fact, the S-1 contained a combination of audited and unaudited statements. 2 SOF ¶ 46.
publicly-filed information, it serves as the first of the Commission’s two challenged statements
Viking’s S-1 also disclosed details concerning that company’s total inexperience
conducting preclinical studies and clinical trials. For example, the company disclosed that, “All
clinical trials, preclinical studies and other analyses performed to date with respect to our drug
candidates have been conducted by Ligand. Therefore, as a company, we do not have any
experience in conducting clinical trials for our drug candidates.” SOF ¶ 50 (emphasis added).
Viking further disclosed, IN BOLD, “We intend to rely on third parties to conduct our
preclinical studies and clinical trials and perform other tasks for us.” SOF ¶ 49 (emphasis in
original). Based on these disclosures, Fr. Lemelson correctly concluded in his July 3, 2014
2
The term “unaudited” appears 56 times in the S-1, while the term “audited” appears only seven times. SOF ¶ 46.
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report that: “Viking does not intend to conduct any preclinical studies or trials ….” SOF ¶ 48
(emphasis added). This is the second challenged statement from the July 2014 report. Id.
There is no evidence that any investor of Ligand or Viking raised concerns about either
of these statements. SOF ¶¶ 47, 53. Moreover, Viking’s CEO, Brian Lian, testified that he does
not recall if he even read Fr. Emmanuel’s July 3, 2014 report, did not speak with any investor
about this report in any depth, and does not recall any of his colleagues expressing any concern
about the statements. SOF ¶ 54. Ligand’s stock price closed higher on the day this report came
On August 4, 2014, Fr. Emmanuel published his third report on Ligand. SOF ¶ 58. The
Commission is not challenging any of Fr. Emmanuel’s statements contained in the August 4,
2014 report. SOF ¶ 60. On that date, Ligand’s share price skyrocketed, closing 9% higher than
On August 14 and 22, 2014, Fr. Emmanuel published his fourth and fifth reports on
Ligand. SOF ¶ 62. These last two reports discussed, inter alia, $245 million in new debt that
Ligand was incurring through a publicly announced bond offering. SOF ¶ 66. Among the many
points he made in analyzing the bond offering, in the August 14 Report, he wrote:
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In the August 22, 2014 Report, Fr. Emmanuel continued his analysis of the bond
offering based on his review of Ligand’s recent publicly filed 8-K, writing:
On August 18 [2014], Ligand filed a form 8-K with the Securities and Exchange
Commission (SEC) revealing that the company had issued $245 million in new
debt against the company’s tangible equity of jut $21,000, giving rise to a debt to
tangible equity ratio of 11,667-to-1 (that is to say, $11,667 dollars in debt for
every $1 dollar in tangible common shareholder equity).
SOF ¶ 68.
Fr. Emmanuel then concluded his analysis of the bond offering as follows:
There is no question that the cost of this preferential treatment of a few large
Ligand shareholders at the expense of remaining investors places a burden on
Ligand and its shareholders that is both unsustainable and further deepens the
company’s insolvency and likelihood of liquidation or reorganization under
Chapter 7 or Chapter 11 of the bankruptcy code under which remaining Ligand
common shareholders have only the protection of $21,000 in tangible equity to
shield them from $245 million in debt.
SOF ¶ 69.
In its original Complaint, the Commission based its final challenged statement on Fr.
Emmanuel’s calculation of Ligand’s debt-to-tangible equity ratio. SOF ¶ 70. Specifically, the
Commission falsely claimed the calculation was wrong because Fr. Emmanuel failed to include
the cash from the loan proceeds as part of shareholder tangible equity, notwithstanding that cash
proceeds of a loan do not constitute equity (tangible or otherwise). 3 SOF ¶¶ 70-71. After the
Court dismissed this claim from the original Complaint, the Commission re-plead it, now
arguing not that the calculation was wrong but that despite being true and accurate, it was (along
In making his debt-to-tangible equity ratio calculation, Fr. Emmanuel explained to his
readers that he was comparing only Ligand’s tangible equity to its debt (and therefore expressly
3
Notably, this exact same erroneous allegation was contained in both presentations Ligand and its counsel made to
the Commission, which are discussed further below. SOF ¶¶ 100, 112.
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excluded the company’s intangible assets from his analysis). SOF ¶¶ 74-75. Further, in both the
August 14 and 22 Reports, Fr. Emmanuel told readers that the figures he used in making his
calculation came directly from Ligand’s publicly available regulatory filings, and therefore his
calculation of the debt-to-tangible equity ratio and related commentary did not constitute any
On August 14, 2014, Ligand’s stock price closed higher than it did the previous day.
SOF ¶ 64. On August 22, 2014, Ligand’s stock price closed down slightly (a statistically
Notably, despite the Commission’s dubious claim that Fr. Emmanuel’s constitutionally-
protected decision to exclude Ligand’s intangible assets from his calculation and his related
discussion of “tangible equity” amounted to securities fraud, these concepts were not unique to
his financial analysis of Ligand. He had previously questioned the value of intangible assets
when analyzing other companies. SOF ¶¶ 80-82. For example, just a few months earlier in
March 2014, when discussing WWE, Fr. Emmanuel wrote, “Intangible assets (the kind you can’t
sell easily when things turn south) increased from roughly 100 k in 2010 to just under 27 M in
2013, an increase of 268 fold in 3 years – these ‘ghost assets’ of course can bolster a balance
sheet nicely. . . . Current price exceeds tangible book [a synonym for “tangible equity”] by a
factor of nearly 10x.” SOF ¶ 81 (brackets added). Similarly, in Fr. Emmanuel’s published
analysis concerning Geospace Technologies, Fr. Emmanuel noted that he believed Geospace was
C. Negative Commentary About Ligand Between June and August 2014 From
Other Securities Analysts
Meanwhile, on July 22 and August 5, 2014—within the time period that Fr. Emmanuel
published the reports and gave the interviews on Ligand at issue—a research firm called Empire
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Asset Management issued two reports, which were extremely critical of Ligand. SOF ¶ 83. On
the date of the first, Ligand’s stock price plunged by approximately 4.5%—more movement of
the stock price than on any day Fr. Emmanuel published one of his reports (except for the day
the stock went up by more than 9%). SOF ¶ 84. On the date of the second Empire report,
Also, on July 15, 2014, then-Federal Reserve Chair Janet Yellen made statements about
valuations of biotech stocks being “substantially stretched.” SOF ¶ 86. On that date, Ligand’s
stock price fell by more than 4.5%. SOF ¶ 87. Internal Ligand emails reflect that company
personnel believed Ms. Yellen’s statements—not Fr. Emmanuel’s opinion commentary— may
have been the cause of negative movement in Ligand’s stock during this time. SOF ¶ 88.
To this day, Ligand has never made a public statement contesting anything Fr. Emmanuel
has written or said about the company, despite a NASDAQ rule suggesting it should do so if it
believed his statements were false and impacted its stock price. SOF ¶¶ 90-92. Instead, Ligand
engaged two large international law firms in an effort to silence Fr. Emmanuel by persuading the
On September 25, 2014, Ligand and its first law firm met with the Commission’s Boston
regional office. SOF ¶ 93. Ligand made a 60-slide PowerPoint presentation to the Commission,
including offensive references to, and photographs of, Fr. Emmanuel’s faith and religious
practice, in addition to false and baseless allegations that Fr. Emmanuel engaged in an “affinity
fraud,” misrepresented the performance of the Amvona Fund, and had a “questionable personal
history.” SOF ¶¶ 95-96. Notably, the PowerPoint presentation made no mention whatsoever of
the first three challenged statements. SOF ¶¶ 97-98. As to the fourth challenged statement, the
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PowerPoint erroneously claimed that the debt-to-tangible equity ratio was wrong, because Fr.
Emmanuel failed to include the cash proceeds from the loan in his calculation. SOF ¶ 99. This
is the same false allegation that the Commission included in its original Complaint. SOF ¶ 70.
Sometime after the September 25, 2014 meeting, the Boston regional office informed
Ligand that it would not be opening an investigation concerning Fr. Emmanuel. SOF ¶ 104.
As a result, Ligand hired new counsel, who had previously served as a high-ranking
employee at the Commission in Washington, D.C. SOF ¶¶ 105-107. This new attorney arranged
a second meeting, this time with his former colleagues at the Commission’s Washington, D.C.
regional office, on June 8, 2015—nine months after Ligand’s first, failed meeting. SOF ¶ 107.
Ligand again made a PowerPoint presentation to the Commission, this time containing 62 slides.
SOF ¶ 108. And again, Ligand made no mention of either of the two challenged statements
concerning Viking. SOF ¶ 112. Also, once again, Ligand included the false contention
concerning Fr. Emmanuel’s calculation of its debt-to-tangible equity ratio. SOF ¶ 113.
On September 12, 2018, more than four years after Fr. Emmanuel published his final
report on Ligand, the Commission filed this enforcement action. SOF ¶ 117. On March 21,
2019, the Commission filed the operative Amended Complaint. SOF ¶ 118. Based on the four
challenged statements, the Commission brought claims under 10b-5 (both for the statements
themselves and claiming “scheme” liability, even though the Commission has not identified any
alleged fraud outside the challenged statements). SOF ¶¶ 119-121. The Commission also
alleged a violation of Section 206 of the Investment Advisers Act (“IAA”), based on the
completely novel (and unsupportable) theory that Fr. Emmanuel defrauded his own investors by
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not disclosing that the profits from the Ligand short were allegedly the result of the four
Given the fact that Ligand’s stock price increased on all but one of the five dates on
which he made the four challenged statements, and the fact that there were other negative reports
about the company during the relevant timeframe (which appear to have directly corresponded
with Ligand’s stock price decreasing), Defendants sought discovery on the Commission’s theory
that Fr. Emmanuel’s statements caused Ligand’s stock price to drop. SOF ¶¶ 124. Among this
discovery, Fr. Emmanuel served an interrogatory seeking the basis for the Commission’s
contention that Defendants’ statements influenced or otherwise impacted the stock price for
Ligand. SOF ¶ 125. The Commission objected to the interrogatory as “a premature request for
matter that may be the subject of expert testimony.” SOF ¶ 126. The Commission made the
same objection to Fr. Emmanuel’s request for documents supporting the Commission’s position
Notwithstanding the Commission’s discovery responses and its customary use of expert
event studies to prove its theories in similar cases (discussed further below), the Commission,
incredibly, did not designate an affirmative expert witness in this case. 4 SOF ¶ 129.
4
The Commission did designate a rebuttal expert in response to Defendants’ expert who had conducted an event
study, SOF ¶ 130, and determined the four challenged statements did not impact Ligand’s stock price; however,
pursuant to well-established caselaw, the testimony of the rebuttal witness cannot be considered for purposes of
summary judgment. See Maraj v. Massachusetts, 953 F. Supp. 2d 325, 328 (D. Mass. 2013) (granting summary
judgment because “there is no need to consider rebuttal evidence” in order to create a genuine issue of material fact).
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III. ARGUMENT
A. Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). A genuine issue of material fact
“does not spring into being simply because a litigant claims that one exists. Neither wishful
thinking nor mere promises to produce admissible evidence at trial, nor conclusory responses
unsupported by evidence, will serve to defeat a properly focused Rule 56 motion.” Ryan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990) (internal citations omitted). In opposition, the
Commission may not rest on the pleadings but must present “significant probative evidence”
demonstrating that a genuine dispute of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-51 (1986) (presenting a mere “scintilla of evidence” is insufficient).
allegations, or rank speculation.” Ingram v. Brink's, Inc., 414 F.3d 222, 228–29 (1st Cir. 2005).
B. The Commission Has Failed to Meet its Burden of Establishing a Rule 10b-5
Claim Based on the Four Challenged Statements
To prevail on its Rule 10b–5 claim, the Commission must prove that Fr. Emmanuel: “(1)
engaged in fraudulent conduct; (2) in connection with the purchase or sale of securities; (3)
the mails; (4) with the requisite scienter.” SEC v. Tambone, 417 F. Supp. 2d 127, 131 (D. Mass.
2006); 15 U.S.C. § 77q(a); 17 C.F.R. § 240.10b–5. In addition, the Commission must establish
that each of the four challenged statements was material. See Gross v. Summa Four, Inc., 93
F.3d 987, 992 (1st Cir. 1996) (superseded by statute on other grounds); Goldberg v. Meridor,
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567 F.2d 209, 220 (2d Cir. 1977) (stating the test for materiality is no different in SEC
would consider it important in deciding whether or not to invest his money in a particular
security.” SEC v. Fife, 311 F.3d 1, 9 (1st Cir. 2002) (citing Basic v. Levinson, 485 U.S. 224,
231-32 (1988)). A statement is only material if it “significantly altered the ‘total mix’ of
information.” Basic, 485 U.S. at 232. The fact that “an investor might find information
interesting or desirable is not sufficient to satisfy the materiality requirement.” Milton v. Van
As both the First Circuit and this Court have recognized, in cases like the present
market, materiality is proven or disproven by the impact the alleged statements have on the
price of the company’s stock. 5 “In an efficient market, the defendant’s misrepresentations are
absorbed into, and reflected by, the market price.” In Re Xcelera.com Securities Litig., 430 F.3d
503, 507 (1st Cir. 2005). Following this principle, in Emerson v. Genocea Biosciences, Inc., this
Court dismissed a securities fraud case on the ground that disclosure of the allegedly material
information did not impact the company’s stock price, and therefore plaintiffs could not establish
materiality as a matter of law. 353 F. Supp. 3d 28, 41 (D. Mass. 2018) (Saris, J.). See also In re
5
Both Defendants’ affirmative expert and Plaintiff’s rebuttal expert agree that the market for Ligand was efficient
during the relevant time period. SOF ¶ 132.
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Biogen Sec. Litig., 179 F.R.D. 25, 35 (D. Mass. 1997) (noting defendants can rebut presumption
of materiality if they can show “‘the market price was not affected by their misrepresentations’”)
(Saris, J.) (internal citation omitted); Brumbaugh v. Wave Systems Corp., 416 F. Supp. 2d 239,
254-55 (D. Mass. 2006) (“[t]he concept of materiality translates into information that alters the
price of the firm's stock); (quoting In re Burlington Coat Factory Securities Litig., 114 F.3d
1410, 1425 (3d Cir. 1997)) (“In the context of an ‘efficient’ market, the concept of materiality
translates into information that alters the price of the firm’s stock. . . . This is so because efficient
markets are those in which information important to reasonable investors (in effect, the market,
is immediately incorporated into stock prices”)) (internal citations omitted); Oran v. Stafford,
226 F.3d 275, 282 (3d Cir. 2000) (Materiality “may be measured post hoc by looking to the
movement ... of the price of the firm's stock.”); SEC v. Berlacher, No. 07-3800, 2010 WL
3566790, at *7 (E.D. Pa. Sept. 13, 2010) (“As opposed to guessing what a reasonable investor
would find important or what could alter the total mix of information in the market, the United
States Court of Appeals for the Third Circuit has adopted a concrete method of measuring the
materiality of information... [i]f there is no movement in the stock price, then the disclosed
This Court’s decision in Emerson, decided three months after the Commission filed this
case, is both dispositive and instructive. 353 F. Supp. 3d 28. There, plaintiff asserted that a
immunotherapy treatment on viral shedding process was a material omission from an otherwise
positive announcement about the clinical trial that violated Rule 10b-5. Id. at 38. The company
later released the 12-month viral shedding results, and the company’s stock price increased on
the day it released the data. Id. at 40-41. This Court held, in deciding a motion to dismiss, “[t]he
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release of the negative twelve month viral shedding results without consequence is fatal to
Plaintiffs’ allegations.” Id. at 41 (emphasis added). The same result must follow here
(especially at the summary judgment stage), where Ligand’s stock price also increased on the
days of the alleged misstatements, reflecting that reasonable investors in the marketplace did not
Moreover, the Court should disregard any argument the SEC might make to the contrary,
because when it suits the Commission’s needs, the Commission argues that stock price
movement proves materiality. See, e.g., SEC v. Ustian, No. 16 C 3885, 2019 WL 7486835, at
*27 (N.D. Ill. Dec. 13, 2019) (expert retained by SEC opined that stock at issue traded in
efficient market meaning any news would be reflected in stock within one day and considered
whether announcement at issue had material impact); SEC v. Garcia, No. 10 CV 5268, 2011 WL
6812680, at *13 (N.D. Ill. Dec. 28, 2011) (SEC questioned defendant’s explanations for trading
activity by noting that stock traded in efficient market and so reports published before defendant
made his investment and that defendant claimed to have relied upon would have already been
incorporated into market price); SEC v. Butler, No. 00-1827, 2005 WL 5902637, at *11-12
(W.D. Pa. Apr. 18, 2005) (SEC argued that evidence of efficient market and quick market
reaction supported finding of materiality); SEC v. Mangan, 598 F. Supp. 2d 731, 733 (W.D.N.C.
2008) (SEC expert opined that stock traded in efficient market, and the SEC argued that the
movement in stock proved materiality); SEC v. Hoover, 903 F. Supp. 1135, 1144 (S.D. Tex.
1995) (SEC argued in insider trading case that the negative market reaction to an 8-K disclosure
Given the required correlation between changes in stock price and materiality, and the
Commission’s historical reliance on that correlation to prove materiality, it is not surprising that
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in market-manipulation cases like the present, the Commission routinely relies on event-study
analyses (expert reports that identify and isolate the causes of changes in market prices) to prove
materiality. See, e.g., SEC v. Aly, No. 16 Civ 3853, 2018 WL 1581986, at *15-16 (S.D.N.Y
March 27, 2018) (SEC permitted to present evidence of expert’s event study to prove
materiality); Mangan, 598 F. Supp. 2d at 735 (SEC sought to avoid summary judgment by
submitting expert event window analysis that concluded movement in stock price showed
materiality); SEC v. Goldstone, CIV 12-0257 JB/LFG, 2016 WL 3135651, at *46 (D.N.M. May
10, 2016) (SEC successfully argued for its expert’s event study to be admitted to prove
materiality); Ustian, 2020 WL 416289, at *10 (SEC successfully argued for the admission of its
expert’s event study to prove materiality); SEC v. Leslie, No. C 07-3444, 2010 WL 2991038, at
*11-14 (N.D. Cal. July 29, 2010) (addressing SEC’s argument in favor of admitting its expert’s
event study to prove materiality). Such evidence would have been especially important under
the factually unique circumstances of this case, where there were no sudden or calamitous drops
in Ligand’s share price on the days Fr. Emmanuel made his challenged statements (a fact present
Emmanuel’s statements had on Ligand’s stock price, the Commission suggested it would be
here or otherwise opine on the impact the challenged statements had on the stock price.
SOF ¶ 129. This failure is telling given the Commission’s discovery responses and its
customary practice of doing so in similar cases, and is itself fatal to its claims.
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Admittedly, the Circuits are split on whether event studies in securities fraud cases are
mandatory for plaintiffs to prove materiality or whether they are merely “almost obligatory.”
While the First Circuit has not directly ruled on the issue, it has cited the “mandatory” cases with
approval, and its decisions (and those from this Court) finding that the impact of misstatements is
reflected in the movement of a company’s stock price, strongly indicate it believes event studies
are mandatory. Regardless, in light of the complete absence of other evidence of materiality in
this case (both with respect to stock price movement as set forth above, and more generally as set
forth below), no matter which line of cases the Court decides to follow, the Commission’s
conspicuous failure not to offer an affirmative event study provides an additional reason why the
Commission has failed to establish the required element of materiality as a matter of law.
The Third Circuit “has essentially made event studies mandatory” to prove materiality in
securities fraud cases. Goldstone, 2016 WL 3135651, at *46 (citing Burlington Coat Factory
Factory, 114 F.3d at 1425). The First Circuit has cited Burlington Coat Factory with approval.
See In Re Polymedica Corp. Sec. Lit., 432 F.3d 1, 13-14 (1st Cir. 2005) (adopting definition of
efficient market from Burlington Coat Factory, i.e., that the market price of a stock fully reflects
all publicly available information, and noting that Third Circuit held the concept of materiality in
an efficient market translates into information that alters the firm’s stock). Moreover, the First
misrepresentations are absorbed into, and reflected by, the market price,” only makes sense if
event studies are mandatory, at least in cases like the present where there are multiple statements
with no immediate and obvious drop in the share price. 430 F.3d at 507. The same is true of this
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In addition, the lack of an event study is dispositive here, because it means the
Commission failed to provide evidence that Fr. Emmanuel’s alleged misstatements, as opposed
to any other market forces, caused a drop in Ligand’s stock price. See Berlacher, 2010 WL
3566790, at *8 (finding SEC failed to prove materiality where defendant presented event study
concluding that information was not material, and the court declined to credit and rely upon the
SEC’s expert, who failed to submit an event study, because his proposed methodology did not
account for stock’s volatility or isolate alleged misconduct); Mangan, 598 F. Supp. 2d at 735-36
(granting defendant’s motion for summary judgment where SEC failed to present sufficient
evidence regarding materiality where expert’s analysis did not distinguish cause of drop in
market price from leakage of information at issue and other market forces). This is a particularly
glaring deficiency here, where Ligand’s own disclosures noted it had a history of stock price
volatility, SOF ¶ 102, and Ligand’s stock price fell by as much as 30 percent over a one-month
period between March and April 2014, just a few months prior to Fr. Emmanuel’s reports. SOF
¶ 103. Accordingly, by failing to produce affirmative expert evidence of an event study showing
that the four challenged statements negatively impacted Ligand’s stock price, the Commission
Moreover, even if this Court were to determine an event study is not mandatory in all
because the Commission has presented no other evidence to show that any of the alleged
misstatements were material. While the Second Circuit, for example, has not adopted a per se
requirement as has the Third Circuit, courts in that Circuit have noted that event study analyses
are nonetheless “almost obligatory.” In Re Vivendi Universal, SA. Sec. Litig., 634 F. Supp. 2d
352, 364 (S.D.N.Y. 2009). Indeed, in In re Northern Telecom Sec. Litig., 116 F. Supp. 2d 446,
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460 (S.D.N.Y. 2000), the court granted defendants summary judgment because plaintiffs’
expert’s testimony was “fatally deficient in that he did not perform an event study or similar
analysis to remove the effects on stock price of market and industry information...” In other
words, the exception to the event-study requirement (in Circuits where its use is not mandatory)
arises when a securities plaintiff provides significant other evidence of materiality. See Veleron
Holding, B.V. v. Stanley, 117 F. Supp. 3d 404 (S.D.N.Y. 2015) (finding plaintiff’s failure to
present event study not dispositive on materiality because “plenty of evidence” of materiality
based on testimony concerning non-public information used by short seller). For the reasons set
challenged statements impacted Ligand’s stock price, the Commission’s claims fail because Fr.
Emmanuel disclosed his short position and included cautionary language that his reports
constituted opinion commentary. See, e.g., Saltzberg v. TM Sterling/Austin Assoc., Ltd., 45 F.3d
399, 400 (11th Cir. 1995) (“The context in which a statement is made is important. When an
specific warnings of the risks involved, that language may be sufficient to render the alleged
1358, 1366 (N.D. Ga. 1998) (granting defendant’s motion to dismiss 10b-5 claims because the
defendants adequately disclosed their conflicts of interest, noting that “[g]iven these disclosures,
the difference between what is said ... and what the Plaintiffs say should have been said ... would
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not alter the total mix of facts available to an investor.”). Given Fr. Emmanuel’s disclosures, his
Even if the Court ignores that (i) the Commission failed to produce an event-study
analysis; (ii) the Commission failed to produce any other evidence that the challenged statements
negatively impacted Ligand’s stock price; (iii) the stock price rose on the days of three of the
four challenged statements and only decreased negligibly on the date of the fourth, which its own
rebuttal expert concedes was not statistically significant; (iv) Fr. Emmanuel disclosed his short
position and included other cautionary language in his reports, and (v) the Commission failed to
produce any other evidence (as opposed to bare allegations) of materiality, summary judgment is
still warranted, because the statements themselves do not support a finding of materiality.
Without more, this statement itself is too vague to support a claim that it was material.
Fr. Emmanuel said only that some unidentified individual at an unidentified investor relations
firm “basically agreed” that Promacta was “going away” at some unspecified date in the future.
See Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1217 (1st Cir. 1996) (noting statements lacking
specificity or clearly constituting the opinions of the speaker are considered immaterial as a
matter of law); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 547-48 (8th Cir. 1997) (finding
statement lacking specificity immaterial as a matter of law); In re Boston Technology Inc. Sec.
Litig., 8 F. Supp. 2d 43, 70-71 (D. Mass. 1998) (finding analyst’s statement that problem with
6
Fr. Emmanuel even went so far as to disclose opposing opinions that contradicted his own in his reports, SOF ¶ 56,
another fact that distinguishes this case from any the Commission has previously brought.
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product order cancellation was an aberration and corporation’s comments about exciting new
The Commission has presented no evidence to support its allegation that the two alleged
misstatements in Fr. Emmanuel’s report about Viking, a start-up company with no operations 7
had a material impact on Ligand. Tellingly, Ligand failed to mention either of these alleged
misstatements in its two separate presentations to the Commission. SOF ¶¶ 98, 112.
Additionally, Viking’s CEO does not recall if he even read Fr. Emmanuel’s July 3, 2014 report,
did not speak with any investor about this report in depth, and does not recall anyone at Viking
expressing any concern about these statements. SOF ¶ 54. When questioned, Ligand’s CEO
also could not offer any explanation as to how these statements were material. SOF ¶ 55.
The lack of materiality of the two Viking statements is further underscored by Ligand’s
periods in which Ligand claimed Fr. Emmanuel’s statements caused Ligand’s stock price to
decrease, 8 but conspicuously excluded the period from June 24, 2014 to July 13, 2014 (which
covers the nine days before the two Viking statements and the 10 days thereafter). SOF ¶ 116.
Finally, the Commission all but conceded the lack of materiality as to the Viking
statements when it alleged in its Amended Complaint—in order to support its claim of
7
These statements were made before Viking was publicly traded and neither Fr. Emmanuel nor his entities owned or
shorted any Viking securities at the time (an impossibility at any rate for a private company with no operations). In
addition to not being material, these statements are also not “in connection with the purchase or sale of securities.”
See Basic, 485 U.S. at 261 (White, J. concurring) (doubting Rule 10b-5’s requirement that a statement is “in
connection with purchase or sale of securities” was satisfied where defendants did not purchase or sell securities at
issue during the relevant time period and noting that “in previous cases, we had recognized that Rule 10b–5 is
concerned primarily with cases where the fraud is committed by one trading the security at issue”) (citing Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 736 n.8 (1975)).
8
The Commission did not adopt Ligand’s argument in this regard.
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materiality—that Ligand owned nearly half of Viking at the time the statements were made.
SOF ¶ 39. This contention was false, as Ligand did not own any part of Viking. SOF ¶ 40.
ratio because it claims it was improper to exclude Ligand’s intangible assets. However, Fr.
Emmanuel expressly disclosed that he was only considering Ligand’s tangible assets, and thus
reasonable investors (whether they agreed with him or not) understood the components of his
financial analysis and were free to disregard it. Indeed, if Fr. Emmanuel’s chosen metric was, as
the Commission claims, irrelevant given Ligand’s particular business model, no reasonable
investor would have relied upon it in deciding whether to purchase or sell Ligand stock.
2. The Commission’s Rule 10b-5 Claim Also Fails Because the Commission
Did Not Produce Any Evidence to Establish Scienter
To prove scienter, the Commission must prove Fr. Emmanuel acted with “a mental state
embracing intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 n.5
(1980). 9 In other words, the Commission must show that Fr. Emmanuel had the “intent to say
something ... that is not believed to be true.” SEC v. World Radio Mission, 544 F.2d 535, 540
(1st Cir. 1976) (emphasis added). While the issue of scienter is usually a jury question, summary
judgment is appropriate “if the nonmoving party rests merely upon conclusory allegations,
9
Proof of “a high degree of recklessness” is also enough. Miss. Pub. Emps. Ret. Sys. v. Boston Sci. Corp., 649 F.3d
5, 20 (1st Cir. 2011). However, recklessness in this context “does not include ordinary negligence but is closer to
being a lesser form of intent.” Fire and Police Pension Ass’n of Colo. v. Abiomed, Inc., 778 F.3d 228, 240 (1st Cir.
2015) (quoting Greebel v. FTP Software, Inc., 194 F.3d 185, 188 (1st Cir. 1999) (recklessness is “a highly
unreasonable omission, involving not merely simple, or even inexcusable, negligence, but an extreme departure
from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known
to the defendant or is so obvious the actor must have been aware of it”). See also Novak v. Kasaks, 216 F.3d 300,
312 (2d Cir. 2000) (recklessness is “a state of mind ‘approximating actual intent, and not merely a heightened form
of negligence”’).
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improbable inferences, and unsupported speculation.’” SEC v. Ficken, 546 F.3d 45, 51 (1st Cir.
2008) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
The undisputed factual record demonstrates that the Commission’s only potential
argument is that scienter should be inferred based on Fr. Emmanuel having held a short position
in Ligand, which would have benefitted from a drop in the company’s stock price. Such
evidence is legally inadequate. “[C]learly evidence of mere motive and opportunity cannot
suffice against a motion for summary judgment on the issue of scienter.” Geffon v. Micrion
Corp., 249 F.3d 29, 36 (1st Cir. 2001) (granting summary judgment to defendants in securities
fraud case because “[e]ven if the statements at issue were material and false or misleading, the
evidence does not support a finding that defendants knew the statements would materially
Here, not only has the Commission failed to produce any evidence to support scienter,
but all the hallmarks of an actual short-and-distort scheme that might otherwise allow a
factfinder to infer scienter are conspicuously absent. First, Fr. Emmanuel disclosed his short
position in all of his reports and during the internet radio interview at issue. “Short sellers
operate by speculating that the price of a security will decrease. They can perform a useful
function by bringing information that securities are overvalued to the market. However, they
have an obvious motive to exaggerate the infirmities of the securities in which they speculate.”
In re Longtop Fin. Techs. Ltd. Sec. Litig., 910 F. Supp. 2d 561, 577 (S.D.N.Y. 2012) (granting
motion to dismiss Rule 10b-5 claims). Applying this logic, multiple courts have found that
identification of a short position or other conflict of interest, and fulsome disclosures generally,
militate against liability for alleged securities violations. See, e.g., Aurelius v. Bofl Fed. Bank,
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No. MC 16–71 DSF (FFM), 2016 WL 8925145, at *3 (C.D. Cal. Sept. 20, 2016) (granting
motion to quash subpoena and reasoning that defendant “stated in each of his articles that he was
‘short’ Bofl stock. It would seem unlikely for [defendant] to make such a proclamation if he
were part of a scheme to manipulate the market.”); Mehta v. Ocular Therapeutix, Inc., 955 F.3d
194, 208 (1st Cir. 2020) (reasoning that disclosure of FDA Form 483 in same filing that stated
company was using good manufacturing practices “undercut any inference that defendants
(finding scienter was undercut by company’s disclosure to investors of correspondence with the
FDA and potential consequences of the agency's negative determination); City of Dearborn
Heights Act 345 Police & Fire Retirement Sys. v. Waters Corp., 632 F.3d 751, 760 (1st Cir.
2011) (“[A]ttempts to provide investors with warnings of risks generally weaken the inference
of scienter”). 10
Second, Fr. Emmanuel published his reports in his own name, something a short seller
with an intent to defraud would not do. Compare Doe v. SEC, No. C 11-80209, 2011 WL
5600513, at *1 (N.D. Cal. Nov. 17, 2011) (denying motion to quash SEC’s subpoena to Google
scheme); SEC v. Curshen, 372 Fed. App’x 872, No. 09-1196, 2010 WL 1444910, at *7-10 (10th
Cir. Apr. 13, 2010) (affirming liability and injunction against individual that shared false
information about company by anonymous postings); SEC Lit. Rel. No. 23470, SEC v. Hamdan
10
Compare Greebel, 194 F.3d at 196 (listing examples of evidence that can be used to raise inference of scienter
and including personal interest of corporate executives not to inform others of impending sale of stock); In re Credit
Suisse First Boston Corp. Sec. Litig., No. 97 CIV. 4760 (JGK), 1998 WL 734365, at *10 (S.D.N.Y. Oct. 20, 1998)
(reasoning that a reasonable trier of fact could conclude failure to disclose short position was evidence of scienter).
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settlement with defendant who manipulated market prices through multiple postings and
Third, the SEC also establishes scienter in a typical short-and-distort case by showing
that after making a false statement aimed at driving down the stock, the offender covered his
short position almost immediately before the market had a chance to discover the truth. See, e.g.,
Complaint, SEC v. Berliner, No. 1:08-cv-03859-JES (S.D.N.Y. Apr. 24, 2008) (SEC alleged
defendant acted intentionally because he sold short 10,000 shares of stock “within minutes” of
disseminating false information); Aly, 2018 WL 1581986, at *23 (establishing scienter based on
temporal proximity of defendant filing Schedule 13D with false information and then selling his
call options within 10 minutes); SEC v. Dubovoy, No. 15-6076, 2016 WL 5745099, at *2, 5
(D.N.J. Sept. 29, 2016) (finding intent to trade on hacked information supported by temporal
proximity of closing positions within minutes or hours after information released publicly). In
stark contrast here, Fr. Emmanuel held on to a substantial portion of his short position in Ligand
until October 13, 2014 (SOF ¶ 89)—almost four months after he published his initial report
regarding Ligand and almost two months after he published his final one. See Reliance Ins. Co.
v. Barron’s, 442 F. Supp. 1341, 1353 (S.D.N.Y. 1977) (granting summary judgment in part
because defendants did not purchase or sell any of the subject securities at or about the time of
ii. The First Challenged Statement Fails for Lack of Scienter for
Additional Reasons
The Commission’s first challenged statement differs from the others in that it arises from
11
In addition, at the outset of the Commission’s investigation, Fr. Emmanuel voluntarily turned over his entire hard
drive to the Commission—including all attorney-client privileged communications—in an effort to be as transparent
as possible. SOF ¶ 135. This, too, is entirely inconsistent with someone whose goal was to intentionally defraud the
market.
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involving only two people, Fr. Emmanuel and Mr. Voss. 12 The Commission must prove that Fr.
Emmanuel knowingly lied when he stated that Mr. Voss “basically agreed” that Promacta was
going away. The undisputed facts, however, demonstrate the Commission has failed to produce
any evidence that he did not believe his statement was true; all the evidence is to the contrary.
First, Fr. Emmanuel took real-time notes (years before he knew this statement would be
the subject of a Commission action against him) of his phone call with Mr. Voss, which state that
Mr. Voss agreed with his thesis about Promacta. SOF ¶¶ 16-17.
Second, Mr. Voss and Ligand’s CEO John Higgins’ real-time discussions demonstrate
that, at minimum, Mr. Voss left Fr. Emmanuel with the reasonable belief that he “basically
agreed” with Fr. Emmanuel’s concerning Promacta. In fact, that is the very impression with
which Mr. Voss left Mr. Higgins. Mr. Voss claims that Fr. Emmanuel stated that Promacta was
going away and asked Mr. Voss, “don’t you agree?” Rather than voicing any disagreement as
one would expect if he in fact disagreed, Mr. Voss claimed he remained silent. SOF ¶ 20.
Indeed, after Mr. Voss described the conversation to Mr. Higgins (both by phone and in writing),
the latter wrote an email that chastised Mr. Voss for leaving Fr. Emmanuel with the impression
of a “tacit agreement.” 13 SOF ¶ 32. In response, Mr. Voss did not disagree with Mr. Higgins’
assessment; instead, he claimed that Fr. Emmanuel took the “piece of dialogue out of context.”
SOF ¶ 33 (emphasis added). Indeed, to succeed with respect to this challenged statement, the
12
The undersigned are unaware of any other case where the Commission alleges securities fraud based on a disputed
“he said/he said” oral conversation involving only the defendant and one other person with no other witnesses.
13
In an email, Mr. Voss refers to another writing that he sent to Mr. Higgins on the day of the Benzinga interview
about his conversation with Fr. Emmanuel that Ligand has failed to produce. SOF ¶ 31. A factfinder is permitted to
draw a negative inference against Ligand for the failure to produce this document. See Testa v. Wal-Mart Stores,
Inc., 144 F.3d 173, 177 (1st Cir. 1998) (“[w]e have held with some regularity that a trier of fact may (but need not)
infer from a party’s obliteration of a document relevant to a litigated issue that the contents of the document were
unfavorable to that party”).
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Commission would effectively need to prove that Ligand’s own CEO was lying when he
stated—based on his conversations with Mr. Voss—that Mr. Voss tacitly agreed with Fr.
Third, the recording of the statement and the context in which it was made demonstrate
the lack of scienter. The interview with Benzinga lasted approximately 22 minutes. SOF ¶ 23.
Ligand was not even mentioned until nearly the 15-minute mark, and Fr. Emmanuel’s statement
that Ligand’s IR firm “basically agreed” with his thesis that Promacta was going away was made
at around the 16-minute mark. SOF ¶¶ 24-26. Fr. Emmanuel initially attributed the statement to
Ligand, before correcting himself to clarify he spoke with Ligand’s IR representative. SOF ¶ 26.
Such a correction is not consistent with an intent to defraud. Further, Fr. Emmanuel did not
include this statement in his subsequent reports as he would have presumably done if he
fabricated it for the purposes of trying to cause Ligand’s stock price to plummet.
securities. See Lowe v. SEC, 472 U.S. 181, 210 n.58 (1985) (“because we have squarely held
that the expression of opinion about a commercial product such as a loudspeaker is protected by
the First Amendment . . . it is difficult to see why the expression of an opinion about a
marketable security should not also be protected”) (internal citation omitted). While “matters of
belief and opinion are not beyond the purview of” the securities laws, “liability lies only to the
extent that the statement was both objectively false and disbelieved by the defendant at the time
it was expressed.” Fait v. Regions Fin. Corp., 655 F.3d 105, 110 (2d Cir. 2011) (citing Virginia
Bankshares v. Sandberg, 501 U.S. 1083, 1095-96 (1991)) (emphasis added); MHC Mut.
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Conversion Fund v. Sandler O’Neill Partners, L.P., 761 F.3d 1109, 1113 (10th Cir. 2014) (“To
warrant liability on this view, then, a plaintiff must show both that the defendant expressed an
opinion that wasn’t his real opinion (sometimes called ‘subjective disbelief’) and that the opinion
didn’t prove out in the end (sometimes called ‘objective falsity’)”) (emphasis in original); Mayer
v. Mylod, 988 F.2d 635, 639 (6th Cir. 1993) (“Material statements which contain the speaker’s
opinion are actionable under Section 10(b) of the Securities Exchange Act if the speaker does not
believe the opinion and the opinion is not factually well-grounded.”) (citations omitted).
Court must look at the context it was made. Where a short seller discloses his short position, the
readers know he is not disinterested, and this weighs in favor of the statement being one of
opinion. Silvercorp Metals Inc. v. Anthion Mgmt., LLC, 959 N.Y.S.2d 92, *9 (Sup. Ct. 2012)
(table) (dismissing securities fraud case on New York State First Amendment grounds against
short sellers who disclosed their short position and provided the basis for their conclusions about
the subject company). 14 The First Amendment protects even false and libelous opinions
provided that the facts supporting the opinions are provided. See id; Partington v. Bugliosi, 56
F.3d 1147, 1156 (9th Cir. 1995) (“[W]hen a speaker outlines the factual basis for his conclusion,
As set forth above, the Commission cannot prove scienter with respect to the first
challenged statement. Even analyzing this statement in the light most favorable to the
Commission, at worst, Fr. Emmanuel formed an opinion that Mr. Voss “basically” agreed with
14
The New York Court of Appeals has observed that the New York State Constitution provides broader speech
protections than does the United States Constitution. See Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235, 243
(1991).
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his thesis concerning Promacta when Mr. Voss admittedly failed to challenge it after Fr.
Emmanuel asked him to do so. The Commission has failed to produce any evidence that Fr.
Emmanuel did not believe this opinion, and therefore not only does it fail for lack of scienter, but
it is also protected by the First Amendment. Fait, 655 F.3d at 110 (citing Virginia Bankshares,
Fr. Emmanuel’s statement about Viking not consulting with its auditors on any material
issues and the financial statements in Viking’s publicly available S-1 therefore being unaudited
was a conclusion he drew from the disclosures in the S-1 itself. SOF ¶¶ 43-45. Moreover, he
cited to and specifically identified for his readers the particular language in the S-1 that led to his
conclusion. Accordingly, any reasonable investor could have reviewed the S-1 to see that while
many of the statements were unaudited (as Fr. Emmanuel correctly stated), certain others were
audited. This statement, therefore, is shielded from liability by the First Amendment. See
Partington, 56 F.3d at 1156; Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 704 (D. Md. 2000)
(“[t]he principle that opinions based on disclosed facts are protected is well established”);
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir. 1993) (stating that when “the bases
for the ... conclusion are fully disclosed, no reasonable reader would consider the term anything
but the opinion of the author drawn from the circumstances related”); Moldea v. New York Times
Co., 15 F.3d 1137, 1144–45 (D.C. Cir.1994) (“Because the reader understands that such
supported opinions represent the writer's interpretation of the facts presented, and because the
reader is free to draw his or her own conclusions based upon those facts, this type of statement is
not actionable in defamation”). Further, Fr. Emmanuel’s statement that Viking had not consulted
Fr. Emmanuel’s statement that Viking did not intend to conduct pre-clinical studies or
trials is objectively and demonstrably true. In its publicly available S-1, Viking disclosed that as
a company, it had no experience conducting pre-clinical studies. It then disclosed, in bold, “We
intend to rely on third parties to conduct our preclinical studies and clinical trials and
perform other tasks for us.” SOF ¶ 49 (emphasis in original). Based on these disclosures, Fr.
Emmanuel, whose theory in the report was that the licensing agreement with Viking made no
sense for Ligand shareholders, and that Viking was essentially an alter-ego of Ligand, accurately
concluded that Viking would not be conducting preclinical studies and clinical trials. SOF ¶ 52.
Nonetheless, the Commission has argued that the statement was misleading because it
could have been interpreted to mean that nobody was going to conduct preclinical studies and
clinical trials on Ligand’s drugs. This argument must fail. First, it is far too speculative to
survive summary judgment. Second, it is completely undermined by the plain context of the
report, in which Fr. Emmanuel opined that Viking offered no value to Ligand shareholders, and
Ligand’s transaction with Viking appeared to be for the purpose of shifting various liabilities to
another entity for financial/accounting reasons. SOF ¶ 52. Nothing in Fr. Emmanuel’s thesis as
set forth in the report even came close to touching upon the issue of whether Ligand or Viking
were pushing drugs to the market without conducting any preclinical studies and clinical trials
Similarly, at the motion to dismiss hearing, the Commission argued that Fr. Emmanuel’s
statement was false because Viking—while not actually conducting the preclinical studies and
trials itself—was going to use third parties for this purpose. This argument too must fail,
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because it ignores the large elephant in the room that Viking itself felt this distinction was so
important it needed not only to disclose it in the S-1, but to do so in bold text. Clearly, Viking
did not agree with the Commission’s position that this was a distinction without a difference.
In addition, even if the Court determines that this statement is not capable of being
deemed demonstrably true, it would be barred as protected opinion by the First Amendment for
at least three reasons. First, at minimum, the statement reflects Fr. Emmanuel’s reasonable
opinion that if Viking was going to rely on third parties to actually conduct the studies and trials,
it was fair to point out that Viking was not going to conduct those studies and trials. (Again,
Viking felt this was an important enough difference to highlight it in bold to the readers of its S-
1). Second, Fr. Emmanuel expressly disclosed that he was relying on the publicly filed S-1 as
the basis for his statement in his July 3 report, which readers could easily review for themselves.
See Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 731 n.13 (1st Cir. 1992);
Partington, 56 F.3d at 1156; Agora, 90 F. Supp. 2d at 704; Chapin, 993 F.2d at 1093; Moldea,
15 F.3d at 1144–45. Third, the Commission has produced no evidence that Fr. Emmanuel
subjectively believed his opinion to be false. See Fait, 655 F.3d at 110 (citing Virginia
The Commission originally alleged that Fr. Emmanuel’s calculation of Ligand’s debt-to-
tangible-equity ratio was knowingly false, because he did not include the cash proceeds from the
loan. SOF ¶ 70. In fact, it was the Commission’s contention that was false, because proceeds
from a loan do not constitute equity, and the Commission has not presented any evidence of any
accounting principle to the contrary. The Court dismissed the Commission’s original claim, and
the Commission replead it, no longer claiming that Fr. Emmanuel’s correct calculation was false,
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but instead that it was somehow misleading despite being mathematically infallible. SOF ¶ 73.
First, the undisputed facts in this case show that Fr. Emmanuel’s calculation of Ligand’s
debt-to-tangible equity was accurate. No witness has challenged the accuracy of the actual
calculation (as opposed to the chosen metric). SOF ¶ 76. Second, Fr. Emmanuel expressly
explained to his readers that he was comparing only Ligand’s tangible assets to its debt. The
Commission’s claim that the statement was misleading notwithstanding that the calculation was
correct and that Fr. Emmanuel accurately explained the components of the ratio cannot stand
First Amendment scrutiny. Certainly, the Commission cannot tell individuals what metrics and
ratios they can and cannot use when analyzing securities without utterly destroying the First
Amendment. Third, Fr. Emmanuel disclosed all the facts underlying his calculations. See
Partington, 56 F.3d at 1156. Fourth, Fr. Emmanuel has historically disregarded the value of
intangible assets when analyzing other companies, SOF ¶¶ 80-82, eliminating any inference that
he subjectively believed he was misleading his readers by excluding from his calculation
C. The Commission Has Failed to Provide Evidence to Support its IAA Claim
The Commission’s theory behind its entirely unprecedented IAA claim is that the alleged
misstatements that form the basis of the Commission’s Rule 10b-5 claims rendered all Fr.
Emmanuel’s communications with his investors or potential investors misleading. Am. Compl.
¶¶ 62-64. For the reasons discussed above, the Commission has failed to present adequate
evidence to support its Rule 10b-5 claim, which destroys the entire premise of their IAA claim.
In addition, the Commission has failed to provide any evidence that Fr. Emmanuel
defrauded his investors. Incredibly, despite investigating this matter for more than three years,
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based on the discovery provided to Defendants, it appears the Commission brought its novel
IAA claim without bothering even to speak with any of Fr. Emmanuel’s investors. SOF ¶ 123.
After bringing its baseless IAA claim, the Commission deposed Fr. Emmanuel’s longest
and largest investor, a liver transplant specialist and hospital director. SOF ¶¶ 139-140. The
investor testified that he never has had any concern about Fr. Emmanuel’s candor or truthfulness.
SOF ¶ 140. In addition, the physician-investor testified that based on his own analysis of
Promacta and the market in 2014, he agreed with Fr. Emmanuel’s thesis that Promacta was going
Further, Fr. Emmanuel worked with an editor on all the Ligand reports. SOF ¶ 137. The
Commission deposed the editor who testified unequivocally that Fr. Emmanuel believed in all
his opinions. SOF ¶ 138. (“I never sensed in any way there was any conscious effort to
misrepresent anything”); (“I will say that Father Emmanuel felt very adamant about [Ligand],
that it was not just overvalued but may have actually no material value”); (“He passionately
believed these – in each one of these stocks, whether it was long or short, that he was adamantly
correct. . . . But I had no firsthand, at least, observation of anything that even brushed up against
IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant them
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Respectfully Submitted,
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-participants on September 30, 2020.
36
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)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL )
MANAGEMENT, LLC, ) Civil Action No. 1:18-cv-11926-PBS
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
Pursuant to Local Rule 56.1, the Defendants hereby provide the following statement of
1. Fr. Emmanuel formed a hedge fund, the Amvona Fund LP, in 2012. Affidavit of
3. Throughout its existence, Amvona has mostly held long positions in stocks, but
has also occasionally taken short positions. Brooks Aff. Ex. 1 at 239:17-22; Affidavit of Fr.
4. Since 2010, Fr. Emmanuel has published approximately 200 research and
commentary pieces discussing economics, securitization fraud, and high-level security analysis
of common stocks. Lemelson Aff. ¶ 4. See also, Amvona Economic Analysis, available at
https://www.amvona.com/economic-analysis.
5. Fr. Emmanuel’s regular course of business was to include disclosures in all of his
published reports about the positions he had in the securities being discussed and that the reports
contained Fr. Emmanuel’s opinions based on public information, and that he may not necessarily
publish updated opinions if circumstances changed. Lemelson Aff. ¶ 5. See also, e.g., Brooks
Aff. Ex. 2 at 4 (disclosing position held in company being discussed and providing disclaimer
OUR SUBJECTIVE BELIEF”); Brooks Aff. Ex. 3 at 2-3(same); Brooks Aff. Ex. 4 at 2
(disclosing that Lemelson Capital had no position in stock being discussed and including same
disclosure as above).
was overvalued. Based on this belief, Fr. Emmanuel took a short position in Ligand. Brooks
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8. In the first sentence of his June 16, 2014 report on Ligand, Fr. Emmanuel
disclosed that “Lemelson Capital is short shares of (NASDAQ:LGND).” Brooks Aff. Ex. 6 at 1.
9. Fr. Emmanuel additionally disclosed that “[a]ll content in this report represents
10. The June 16, 2014 report also included the following disclosure language:
All expressions of opinion are subject to change without notice, and Lemelson
Capital does not undertake to update or supplement this report or any information
contained herein . . . . The information included in this document . . . reflects
prevailing conditions and Lemelson Capital’s views as of this date, all of which
are accordingly subject to change. Lemelson Capital’s opinions and estimates
constitute a best efforts judgment and should be regarded as indicative,
preliminary and for illustrative purposes only . . . . This report’s estimated
fundamental value only represents a best efforts estimate of the potential
fundamental valuation of a specific security, and is not expressed as, or implied
as, assessments of the quality of a security, a summary of past performance, or an
actionable investment strategy for an investor . . . . Lemelson Capital may benefit
from any change in the valuation of any other companies, securities, or
commodities discussed in this document.
11. Among his many opinions in the June 16, 2014 report, Fr. Emmanuel stated
Ligand’s largest royalty-generating drug, Promacta, faced an imminent threat from a new drug,
which he believed would “virtually eliminate demand for Promacta.” Brooks Aff. Ex. 6 at 4.
12. The Commission is not challenging any statements contained in the June 16, 2014
13. Ligand’s stock price fell on the date Fr. Emmanuel issued this report. Brooks Aff.
Ex. 14 at 31.
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14. Following the publication of Fr. Emmanuel’s first report on Ligand, on June 17,
2014, Ligand’s Investor Relations representative, Bruce Voss, exchanged a number of emails
with high-ranking personnel at Ligand discussing Fr. Emmanuel’s report and whether and how to
speak with Fr. Emmanuel about the report. Brooks Aff. Ex. 9. In the course of these email
exchanges, John Higgins, the CEO of Ligand, instructed Mr. Voss to not “jump into content or a
rebuttal” on the call with Fr. Emmanuel. Brooks Aff. Ex. 9 at EPROD-SEC-LIT-E-000000940.
15. Mr. Voss and Fr. Emmanuel spoke over the phone on June 18, 2014. According
to Mr. Voss’ handwritten notes, the call lasted from approximately 12:56 p.m. ET until 1:16 p.m.
16. Fr. Emmanuel took notes of the call, which stated that Mr. Voss agreed with his
opinion that Promacta was going away. Brooks Aff. Ex. 12 at EPROD-SEC-LIT-E-00589567.
17. The metadata from these notes shows that they were drafted June 18, 2014 at 1:21
p.m. ET and last modified that day at 1:42 p.m. ET. Brooks Aff. Ex. 12 at 3-4.
18. Mr. Voss’ emails indicated that he listened to Mr. Higgins’ instruction not to
engage in any rebuttal of Fr. Emmanuel’s opinions during this call. Brooks Aff. Ex. 13 at
EPROD-SEC-LIT-E-000000407.
19. Mr. Voss testified that he did not engage in any rebuttal of Fr. Emmanuel’s
20. Mr. Voss recalled that Fr. Emmanuel asked multiple times if Mr. Voss agreed
with his positions and, specifically that Fr. Emmanuel stated that he believed Promacta was
going away and then asked, “don’t you agree?” Brooks Aff. Ex. 10 at 131:1-23. Mr. Voss
admitted that he remained silent in response to this question. Brooks Aff. Ex. 10 at 146:1-15.
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21. On June 19, 2014, Fr. Emmanuel was interviewed by an outlet called Benzinga.
22. There is no evidence of the number of people that listened to this interview.
23. The June 19, 2014 interview lasted approximately 21 minutes, 41 seconds. See
24. About five minutes of the interview discussed Fr. Emmanuel’s short thesis
regarding Ligand. Specifically, the interview first mentions Father Emmanuel’s short position in
Ligand at the 14 minute, 40 second mark in the interview and the discussion regarding Ligand
ended at approximately the 19 minute, 30 second mark in the interview. Brooks Aff. ¶ 15.
25. When the topic of Ligand was first raised on the interview, Fr. Emmanuel stated
that he had taken a short position in Ligand’s stock. Brooks Aff. ¶ 15.
26. At approximately the 16-minute mark of this interview, Fr. Emmanuel initially
stated that he had spoken to Ligand, and then corrected himself to say that he spoken to Ligand’s
Investor Relations (“IR”) firm which had “basically agreed” with his thesis concerning Promacta
27. There is no evidence that any individual decided to sell his or her Ligand shares
28. Bruce Voss, the referenced representative of the IR firm, denies having made this
29. This is the first of the Commission’s four challenged statements. Brooks Aff. Ex.
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30. Subsequent to the June 19, 2014 interview, Mr. Voss spoke with Ligand
executives John Higgins and Matthew Foehr about his conversation with Fr. Emmanuel on June
18, 2014 and Fr. Emmanuel’s June 19, 2014 interview. Brooks Aff. Ex. 10 at 152:11-23.
31. There is an email on June 20, 2014 that refers to a written summary shared by Mr.
Voss regarding the phone conversation between Mr. Voss and Fr. Emmanuel on June 19, 2014.
Specifically, Mr. Voss wrote “As I wrote last night, he made that statement with a rhetorical
‘don’t you agree’ and I moved on to the next subject as we had more to cover and his statement
was ridiculous.” No such document was produced in this litigation. Ligand’s counsel stated that
they looked for the document but could not locate it. Brooks Aff. Ex. 13 at EPROD-SEC-LIT-E-
32. Subsequent to the June 19, 2014 interview, Mr. Voss and Mr. Higgins exchanged
emails regarding the June 18, 2014 conversation between Mr. Voss and Fr. Emmanuel. In one of
those emails, Mr. Higgins expressed that he was upset that Mr. Voss remained silent and left Fr.
Emmanuel with the impression of “tacit agreement” with Fr. Emmanuel’s thesis regarding
Also, if he [Lemelson] said the CEO beats his employees would you just move on
because “there were more things to cover.” Or would you take a moment to stick
up for the CEO? Promacta is a big deal, and a big part of our value and business
model. He knows it too. He gave you a softball and you just moved on? Even 1
minute of soft info would have left him with a different impression than tacit
agreement.
33. In response to that email from Mr. Higgins, Mr. Voss replied by writing, inter
alia, “[t]he comment about Promacta was not a legitimate question but rather it was made in
passing and then he chose to take that piece of the dialogue out of context.” Brooks Aff. Ex. 13
at EPROD-SEC-LIT-E-000000407.
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34. Ligand’s stock price closed higher on the day of the interview than it had the
35. On July 3, 2014, Fr. Emmanuel issued his second analysis report discussing
Lemelson Capital Management’s short position on Ligand. Brooks Aff. Ex. 15.
36. This report also included the disclosure that Fr. Emmanuel had taken a short
position in Ligand, that Fr. Emmanuel was expressing his own opinions, and that Fr. Emmanuel
may not necessarily amend his opinions if circumstances changed. Brooks Aff. Ex. 15 at 1-2.
37. The July 3, 2014 report included a discussion of a company called Viking
Therapeutics, with whom Ligand had just entered into a licensing agreement. Brooks Aff. Ex.
15 at 7-10.
38. Two of the Commission’s four challenged statements in this case are based on Fr.
Emmanuel’s statements about Viking contained in the July 3, 2014 report. Brooks Aff. Ex. 8 at
39. In both the Original Complaint and the Amended Complaint, the SEC has alleged
that as of May 2014, “Ligand became a 49.8% owner of Viking common stock.” Brooks Aff.
40. Ligand did not own any portion of Viking at the time this report was published.
41. Fr. Emmanuel did not hold a short position in Viking at the time these statements
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42. The first statement from this report that the Commission challenged is: “the
company [Viking] has not yet even consulted with the firm [auditors] on any material issues.”
43. In the July 3, 2014 report, Fr. Emmanuel quoted Viking’s S-1 statement and noted
that Viking engaged MaloneBailey to audit their financial statements for the fiscal year ending
December 31, 2012, but then Viking terminated MaloneBailey on April 7, 2014. Brooks Aff.
Ex. 15 at 9.
44. Then, Fr. Emmanuel noted Marcum LLP was hired to perform the audit and
45. Fr. Emmanuel then made the statement that the Commission is challenging (“In
other words, Marcum was merely hired, but the company [Viking] has not yet even consulted
with the firm [auditors] on any material issues”) as a summary of this quoted passage. Brooks
46. Viking’s July 1, 2014 S-1 statement also noted that a number of its financial
statements were unaudited. Brooks Aff. Ex. 19 at 13-14, 56, 60-61, 69-70, 72, 166-69, 171-73,
176-77, 180. Indeed, the term “unaudited” appears 56 times in Viking’s S-1, while the term
47. There is no evidence of any investor of Ligand or Viking raising concerns about
48. The second statement from the July 3, 2014 report that the Commission
challenged is: “Viking does not intend to conduct any preclinical studies or trials …” Brooks
49. Viking’s S-1 statement stated in bold that “We intend to rely on third parties to
conduct our preclinical studies and clinical trials and perform other tasks for us.” Brooks
50. Viking’s S-1 statement also stated, “All clinical trials, preclinical studies and
other analyses performed to date with respect to our drug candidates have been conducted by
Ligand. Therefore, as a company, we do not have any experience in conducting clinical trials for
51. Viking’s CEO, Brian Lian, testified that Viking did not intend to conduct its own
preclinical studies, but rather “to hire third parties to conduct their experiments.” Brooks Aff.
Ex. 20 at 76:6-77:14.
52. Fr. Emmanuel’s opinion in this section of his report was that Ligand’s transaction
with Viking appeared to be for the purposes of shifting various liabilities to another entity to
portray a more positive accounting perspective for Ligand. Brooks Aff. Ex. 15 at 8-9.
53. There is no evidence of any investor of Ligand or Viking raising concerns about
54. Viking’s CEO, Brian Lian, testified that he did not recall if he read Fr.
Emmanuel’s July 3, 2014 report, did not speak with any investor about this report in any depth,
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and did not recall any of his colleagues at Viking expressing any concern about these statements.
55. Ligand’s CEO, John Higgins, also could not offer any explanation as to how these
56. The July 3, 2014 report also acknowledged and addressed a June 17, 2014 report
authored by Joseph Pantginis of Roth Capital that was critical of the June 16, 2014 report.
57. Ligand’s stock price closed higher on July 3, 2014 than it did the previous day.
58. On August 4, 2014, Fr. Emmanuel published his third report on Ligand. Brooks
59. This report disclosed that Fr. Emmanuel had taken a short position in Ligand,
contained Fr. Emmanuel’s own opinions, and that Fr. Emmanuel may not necessarily amend his
60. The Commission is not challenging any of Fr. Emmanuel’s statements contained
in the August 4, 2014 report. See Brooks Aff. Ex. 8 at 2-4; Brooks Aff. Ex. 7.
61. On August 4, 2014, Ligand’s share price closed 9% higher than it did the previous
62. On August 14 and 22, 2014, Fr. Emmanuel published his fourth and fifth reports
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63. Both of these reports disclosed that Fr. Emmanuel had taken a short position in
Ligand, contained Fr. Emmanuel’s own opinions, and that Fr. Emmanuel may not necessarily
amend his opinions in a published report if circumstances changed. Brooks Aff. Ex. 23 at 3-4;
64. On August 14, 2014, Ligand’s stock price closed higher than it did the previous
65. On August 22, 2014, Ligand’s stock price closed down slightly. Brooks Aff. Ex.
14 at 30.
66. The August 14 and 22, 2014 reports discussed, inter alia, $245 million in new
debt that Ligand was taking on through a publicly announced bond offering. Brooks Aff. Ex. 23
67. As part of his discussion of the bond offering in the August 14 Report, Fr.
Emmanuel wrote:
68. As part of his discussion of the bond offering in the August 22 Report, Fr.
Emmanuel wrote:
On August 18 [2014], Ligand filed a form 8-K with the Securities and Exchange
Commission (SEC) revealing that the company had issued $245 million in new
debt against the company’s tangible equity of jut $21,000, giving rise to a debt to
tangible equity ratio of 11,667-to-1 (that is to say, $11,667 dollars in debt for
every $1 dollar in tangible common shareholder equity).
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69. Fr. Emmanuel concluded his analysis of the bond offering in the August 22
Report as follows:
There is no question that the cost of this preferential treatment of a few large
Ligand shareholders at the expense of remaining investors places a burden on
Ligand and its shareholders that is both unsustainable and further deepens the
company’s insolvency and likelihood of liquidation or reorganization under
Chapter 7 or Chapter 11 of the bankruptcy code under which remaining Ligand
common shareholders have only the protection of $21,000 in tangible equity to
shield them from $245 million in debt.
70. In its original Complaint, the Commission alleged Fr. Emmanuel’s calculation
was wrong, because it failed to include the cash from the loan proceeds as part of shareholder
71. The Commission has not presented any accounting principle that would support
72. This Court dismissed the claim that Fr. Emmanuel’s calculation was wrong from
the original Complaint, with leave to the Commission to replead it. Brooks Aff. Ex. 26 at 4-5.
73. The Commission amended the allegation to allege that the calculation is false, but
74. In presenting this calculation, Fr. Emmanuel explained that he excluded Ligand’s
intangible assets from his calculation and was comparing just Ligand’s tangible equity to its
75. Fr. Emmanuel disclosed the numbers he used in making his calculation in his
reports. Specifically, Fr. Emmanuel’s August 14, 2014 report, citing Ligand’s Q2 financial
report, noted that Ligand reported just $21,000 in tangible equity. Brooks Aff. Ex. 23 at 2. Fr.
Emmanuel’s August 22, 2014 report, citing Ligand’s August 18, 2014 8K filing, noted that
Ligand reported issuing $245 million in new debt. Brooks Aff. Ex. 24 at 3. Dividing the
12
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reported debt of $245 million by the $21,000 in reported tangible equity yields a ratio of 11,667
to 1, as stated in Fr. Emmanuel’s August 22, 2014 report. Brooks Aff. Ex. 24 at 3.
76. No witness has challenged the accuracy of this calculation. Brooks Aff. Ex. 25 at
31:6-11.
77. Internal Ligand emails, dated September 19, 2014, reflected that Ligand
understood this calculation based on reading the reports. Specifically, Todd Pettingill corrected
a PowerPoint presentation regarding Fr. Emmanuel’s statement that originally alleged Fr.
Emmanuel incorrectly stated Ligand had $21,000 in cash assets to properly acknowledge that Fr.
Emmanuel stated Ligand had $21,000 in tangible equity. Brooks Aff. Ex. 27 at
LGND_0047298.
78. At depositions, Ligand representatives did not challenge the calculation itself, but
stated that the metric of a debt-to-tangible equity was not a traditional metric used to evaluate the
value of a security. Brooks Aff. Ex. 21 at 116:20-24; Brooks Aff. Ex. 18 at 82:12-83:7, 84:19-
85:16, 103:2-104:1.
79. The SEC alleged that “Lemelson thus compared an apple (“tangible equity,”
which omitted existing intangible assets) to an orange (the full amount of the new debt, ignoring
the cash proceeds of the issuance) at two different points in time to concoct a ratio that looks
really bad (11,667 dollars of debt for every dollar of shareholder equity) but has no bearing on
the actual financial wherewithal of the Company. Brooks Aff. Ex. 7 ¶ 52.
80. In prior published opinions, Fr. Emmanuel disregarded or diminished the value of
81. For example, In discussing his short position in World Wrestling Entertainment in
March 2014, Fr. Emmanuel wrote, “Intangible assets (the kind you can’t sell easily when things
13
Case 1:18-cv-11926-PBS Document 126 Filed 09/30/20 Page 14 of 22
turn south) increased from roughly 100 k in 2010 to just under 27 M in 2013, an increase of 268
fold in 3 years – these ‘ghost assets’ of course can bolster a balance sheet nicely. . . . Current
price exceeds tangible book by a factor of nearly 10x.” Brooks Aff. Ex. 28 at 11.
82. As another example, in Fr. Emmanuel’s published analysis of his long position in
Geospace Technologies, he noted multiple times that he believed Geospace was undervalued
because of its significant tangible assets, stating: “Given the extraordinary volatility in revenues
and earnings from year to year, it is a more sound approach to focus on the tangible assets
buttressing the share price as consideration for the margin of safety in the commitment. . . .”
III. Negative Commentary About Ligand Between June and August 2014 From Other
Securities Analysts
83. On July 22 and August 5, 2014, an entity called Empire Asset Management issued
two reports concerning Ligand. Brooks Aff. Ex. 30; Brooks Aff. Ex. 31.
84. On July 22, 2014, Ligand’s stock price decreased by approximately 4.5%. Brooks
85. On August 5, 2014, Ligand’s stock price decreased by more than 2%. Brooks
86. On July 15, 2014, Federal Reserve Chair Janet Yellen made statements about
valuations of biotech stocks being “substantially stretched.” Brooks Aff. Ex. 32 at 20.
87. On that date, Ligand’s stock price fell by more than 4.5%. Brooks Aff. Ex. 14 at
30-31.
88. Internal emails at Ligand reflect that Ligand personnel believed that Ms. Yellen’s
statements may have been the cause of negative movement in Ligand’s stock. Brooks Aff. Ex.
33 at LGND_0000052.
14
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89. The chart below reflects the relevant dates from June-October 2014 on which Fr.
90. Ligand never made a public statement contesting or correcting any of Fr.
91. NASDAQ Rule IM-5250-1 states in pertinent part: “In certain circumstances, it
may also be appropriate to publicly deny false or inaccurate rumors, which are likely to have, or
have had, an effect on the trading in its securities or would likely have an influence on
92. Ligand representatives testified that they decided not to issue any such statement
because they viewed Fr. Emmanuel as too marginal of a voice. Brooks Aff. Ex. 10 at 228:15-22;
93. Ligand initially engaged Latham & Watkins as legal counsel and met with the
Commission’s Boston regional office on September 25, 2014. Brooks Aff. Ex. 21 at 212:9-
15
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213:7; Brooks Aff. Ex. 10 at 274:3-12; Brooks Aff. Ex. 17 at 98:11-99:21; Brooks Aff. Ex. 36 at
LGND_0080678.
94. The purpose of the September 25, 2014 meeting between the Commission and
Ligand (being represented by Latham & Watkins) was for Ligand to convince the Commission to
investigate and bring an enforcement action against Fr. Emmanuel. Brooks Aff. Ex. 36 at
LGND_0080737.
96. Among the allegations in the September 25, 2014 PowerPoint, Ligand accused Fr.
Fund, and that Fr. Emmanuel had a “questionable personal history.” Brooks Aff. Ex. 36 at
Brooks Aff. Ex. 36 at LGND_0080695; Brooks Aff. Ex. 36 at LGND_0080698-701; Brooks Aff.
Ex. 36 at LGND_0080703-04.
97. The September 25, 2014 PowerPoint did not reference the Commission’s
challenged statement by Fr. Emmanuel in the June 19, 2014 Benzinga interview. See Brooks
98. The September 25, 2014 PowerPoint did not reference either of the statements
about Viking on July 3, 2014 that the Commission is challenging in this litigation. See Brooks
99. The September 25, 2014 PowerPoint from Ligand mentioned Fr. Emmanuel’s
statement about Ligand’s debt to tangible equity ratio, but claimed it was incorrect because the
calculation did not include the cash proceeds from the loan. Brooks Aff. Ex. 36 at
LGND_0080713.
16
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100. The September 25, 2014 PowerPoint did not mention the Empire reports
published on July 22 and August 5, 2014. See Brooks Aff. Ex. 36.
101. The September 25, 2014 PowerPoint did not mention Ligand’s historically
102. Ligand’s own financial disclosures identifies its historically volatile stock prices
103. Ligand’s stock price dropped as much as 30% between March 2014 and April
104. Sometime after the September 25, 2014 meeting, the Commission’s Boston
regional office informed Ligand that it would not be opening an investigation concerning Fr.
105. Following the September 25, 2014 meeting, Ligand changed counsel to Bradley
Bondi of Cahill Gordon. Brooks Aff. Ex. 17 at 108:2-109:20; Brooks Aff. Ex. 21 at 254:11-
106. Bradley Bondi used to work for the Commission. See Brooks Aff. Ex. 38.
107. Bradley Bondi contacted a former colleague at the Commission and scheduled a
second meeting between Ligand and the Commission’s Washington, D.C. regional office on
109. The purpose of the June 8, 2015 meeting between the Commission and Ligand
(being represented by Cahill Gordon) was for Ligand to convince the Commission to investigate
and bring an enforcement action against Fr. Emmanuel. Brooks Aff. Ex. 40 at LGND_0080797
17
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110. Among the allegations in the June 8, 2015 PowerPoint, Ligand accused Fr.
Fund, and that Fr. Emmanuel had a “questionable personal history.” Brooks Aff. Ex. 40 at
LGND_0080752-55.
111. The June 8, 2015 PowerPoint only referenced the Commission’s challenged
statement by Fr. Emmanuel in the June 19, 2014 Benzinga interview on one slide. Brooks Aff.
Ex. 40 at LGND_0080771.
112. The June 8, 2015 PowerPoint did not reference either of the statements about
Viking on July 3, 2014 that the Commission is challenging in this litigation. See Brooks Aff. Ex.
40.
113. The June 8, 2015 PowerPoint from Ligand mentioned Fr. Emmanuel’s statement
about Ligand’s debt to tangible equity ratio, but claimed it was incorrect because the calculation
did not include the cash proceeds from the loan. Brooks Aff. Ex. 40 at LGND_0080788.
114. The June 8, 2015 PowerPoint did not mention the Empire reports published on
115. The June 8, 2015 PowerPoint did not mention Ligand’s historically volatile stock
116. The June 8, 2015 PowerPoint identified four periods of time that it claimed Fr.
Emmanuel’s reports caused Ligand’s stock price to decrease. These time periods were: (1) June
16, 2014 to June 24, 2014; (2) July 13, 2014 to July 17, 2014; (3) August 7, 2014; and (4)
August 22, 2014 to August 25, 2014. Brooks Aff. Ex. 40 at LGND_0080763.
18
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117. The Commission filed its original Complaint on September 12, 2018. Brooks
118. The Commission filed its Amended Complaint on March 21, 2019. Brooks Aff.
Ex. 7.
119. The Commission has alleged that Fr. Emmanuel made four misstatements in
violation of Rule 10b-5. See Brooks Aff. Ex. 8 at 2-4; Brooks Aff. Ex. 7 ¶¶ 36-53.
120. The Commission has also alleged a scheme liability theory. Brooks Aff. Ex. 7 ¶¶
58-59.
121. At oral argument, the Commission conceded that they do not have much alleged
behavior beyond the four alleged misstatements to support its scheme liability theory. Brooks
122. The Commission has also alleged violations of the Investment Advisers Act on
the theory that Fr. Emmanuel did not disclose his alleged misstatements in violation of Rule 10b-
123. Based on the discovery responses provided by the Commission, it does not appear
the Commission interviewed any of Fr. Emmanuel’s investors prior to filing this claim. Brooks
Aff. ¶ 45.
VI. The Commission Failed to Produce the Expert Evidence Required to Support Its
Market-Manipulation Claim
124. Defendants sought discovery from the Commission seeking any evidence it had
that Fr. Emmanuel’s alleged misstatements caused Ligand’s stock to drop. Brooks Aff. Exs. 42-
43.
125. Specifically, on June 13, 2019, Defendants served the Commission with its First
19
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State the basis for Your contention that Defendants’ statements influenced or
otherwise impacted the stock price for Ligand, including but not limited to (i) a
detailed description of all data sources and other materials You considered, and (ii)
each alternative cause, influence, or reason for the decline in Ligand’s stock price that
You considered, analyzed, and/or reviewed with a detailed explanation for how you
ruled out that alternative form of causation.
126. The Commission objected to this Interrogatory, stating, inter alia, it was “a
premature request for matter that may be the subject of expert testimony.” Brooks Aff. Ex. 44 at
11.
127. Defendants also served the Commission with its First Set of Requests for
Production of Documents on June 13, 2019. Request Nos. 20-21 sought: “All Documents or
Communications relating, concerning, or supporting the position that Fr. Lemelson’s statements
listed in [paragraphs 36 through 50] of the Amended Complaint caused any changes in the price
128. The Commission objected to these document requests, stating, inter alia, it was “a
premature request for matter that may be the subject of expert testimony.” Brooks Aff. Ex. 45 at
12-13.
129. The Commission did not serve any affirmative expert report. Brooks Aff. ¶ 50.
130. On January 17, 2020, Defendants served the Commission their expert report of
131. On February 28, 2020, the Commission served the Defendants its rebuttal expert
132. The experts agreed that Ligand traded in an efficient market. Brooks Aff. ¶ 53.
133. The experts also agreed that there was no statistically significant evidence that Fr.
Emmanuel’s statement about the debt to tangible equity ratio, which is the Commission’s fourth
20
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alleged misstatement in this case, had any material impact on Ligand’s stock price. Brooks Aff.
¶ 54.
VII. Evidence Regarding Fr. Emmanuel’s Subjective Belief in the Veracity of His
Opinions
134. Fr. Emmanuel has testified consistently that he believed in the veracity of his
opinions when he published them. Brooks Aff. Ex. 1 at 296:8-22; Brooks Aff. Ex. 46 at 391:2-
135. Fr. Emmanuel produced his entire hard drive to the Commission in this case,
including all communications with counsel to aid in the Commission’s investigation. Brooks
Aff. Ex. 1 at 16:2-19:20; Brooks Aff. Ex. 5 at 106:11-25, 328:2-9; Brooks Aff. Ex. 48 at 51:10-
52:2, 153:8-154:9.
136. There is no document in Fr. Emmanuel’s hard drive that indicates Fr. Emmanuel
did not believe in the veracity of his opinions when he published them.
137. Fr. Emmanuel worked with an editor, Michael Johns, on the five reports
published regarding Ligand. Brooks Aff. Ex. 49 at 27:18-29:10, 49:5-50:1, 55:22-56:21, 64:11-
13.
138. Mr. Johns testified that Fr. Emmanuel believed in the veracity of his opinions
when he published them. Brooks Aff. Ex. 49 at 30:9-24, 59:24-60:21, 115:14-116:10, 117:4-15.
139. Dr. Nicholas Jabbour is Fr. Emmanuel’s largest and longest-standing investor.
140. Dr. Jabbour testified at deposition that he never had any concern about Fr.
21
Case 1:18-cv-11926-PBS Document 126 Filed 09/30/20 Page 22 of 22
141. Dr. Jabbour testified that based on his own analysis of Promacta and the market in
2014, he agreed with Fr. Emmanuel’s thesis that Promacta was going away. Brooks Aff. Ex. 50
at 85:1-23.
Respectfully Submitted,
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-participants on September 30, 2020.
22
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 1 of 9
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL )
MANAGEMENT, LLC, ) Civil Action No. 1:18-cv-11926-PBS
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
Massachusetts and am counsel to Defendants Rev. Fr. Emmanuel Lemelson (identified in the
Complaint as “Gregory Lemelson”) and Lemelson Capital Management, LLC, and Relief
2. Attached hereto as Exhibit 1 is a true and correct copy of selected excerpts from
2017.
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 2 of 9
Management announces stake in World Wrestling Entertainment (WWE) and calls on Board to
17, 2014.
5. Attached hereto as Exhibit 4 is a true and correct copy of “Update: The Short
Case for World Wrestling Entertainment,” published by Lemelson Capital Management on April
8, 2014.
6. Attached hereto as Exhibit 5 is a true and correct copy of selected excerpts from
‘going concern’ risk drive 100 percent downside,” published by Lemelson Capital Management
10. Attached hereto as Exhibit 9 is a true and correct copy of a June 17, 2014 email
exchange between Bruce Voss, John Higgins, and Matt Foehr produced in this litigation at
Bates-pages EPROD-SEC-LIT-E-000000940-42.
11. Attached hereto as Exhibit 10 is a true and correct copy of selected excerpts from
2
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 3 of 9
12. Attached hereto as Exhibit 11 is a true and correct copy of Bruce Voss’
handwritten notes from the June 18, 2014 phone call between Mr. Voss and Fr. Emmanuel
13. Attached hereto as Exhibit 12 is a true and accurate copy of Fr. Emmanuel’s notes
of his conversation with Ligand’s IR firm representative, Bruce Voss, which were produced at
document. The metadata reflects that the document was created on June 18, 2014.
14. Attached hereto as Exhibit 13 is a true and accurate copy of a June 20, 2014 email
exchange between Bruce Voss, Matthew Foehr, and John Higgins produced in this litigation at
Bates-pages EPROD-SEC-LIT-E-000000407-EPROD-SEC-LIT-E-000000408.
15. Father Emmanuel’s June 19, 2014 pre-market interview with Benzinga is
interview is 21 minutes, 40 seconds. The interview first mentions Father Emmanuel’s short
position in Ligand at the 14 minute, 40 second mark in the interview. At the 16-minute mark in
the interview, Father Emmanuel initially stated that he spoke with Ligand and then he corrected
himself to state that he had spoken to Ligand’s IR firm the day before the interview and they
“basically agreed” that they understood Promacta was going away. The discussion regarding
16. Attached hereto as Exhibit 14 is a true and accurate printout of the historical stock
prices of Ligand Pharmaceuticals, Inc. (LGND) for 2014. This data was taken from the
activity/stocks/lgnd/historical.
3
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 4 of 9
Pharmaceuticals (NASDAQ: LGND): Appendix Lemelson Capital further increases short stake
applications for Promacta and Kyprolis not commercially viable, Duavee sales remain
18. Attached hereto as Exhibit 16 is a true and correct copy of Plaintiff’s Original
19. Attached hereto as Exhibit 17 is a true and correct copy of selected excerpts from
20. Attached hereto as Exhibit 18 is a true and correct copy of selected excerpts from
21. Attached hereto as Exhibit 19 is a true and correct copy of excerpts of Viking
Therapeutics, Inc.’s Form S-1 Registration Statement filed with the United States Securities and
22. The term “unaudited” appears 56 times in Viking’s S-1, while the term “audited”
23. Attached hereto as Exhibit 20 is a true and correct copy of selected excerpts from
24. Attached hereto as Exhibit 21 is a true and correct copy of selected excerpts from
25. Attached hereto as Exhibit 22 is a true and correct copy of “Update: Lemelson
Capital Further Increases Short Stake in Ligand Pharmaceuticals (NASDAQ: LGND) as LGND
4
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 5 of 9
2014.
26. Attached hereto as Exhibit 23 is a true and correct copy of “Lemelson Capital
Says Ligand Pharmaceuticals’ (NASDAQ: LGND) $225M Debt Issuance Solidifies Company’s
28. Attached hereto as Exhibit 25 is a true and correct copy of selected excerpts from
the August 6, 2020 Deposition Transcript of David Becker, representative of the Securities and
Exchange Commission Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.
29. Attached hereto as Exhibit 26 is a true and correct copy of this Court’s
30. Attached hereto as Exhibit 27 is a true and correct copy of a September 19, 2014
email exchange between Todd Pettingill and Nishan de Silva produced in this litigation at Bates-
pages LGND_0047298-99.
31. Attached hereto as Exhibit 28 is a true and correct copy of “The Short Case for
32. Attached hereto as Exhibit 29 is a true and correct copy of “Excerpt From The
Amvona Fund, LP’s 2015 Annual Report On Geospace Technologies,” published on March 26,
2016.
5
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 6 of 9
33. Attached hereto as Exhibit 30 is a true and correct copy of the report titled
“Ligand Pharmaceuticals Incorporated (LGND) ‘If something cannot go on forever, it will stop.’
Initiating Coverage with a Sell, $16.00 Price Target” published by Empire Asset Management
34. Attached hereto as Exhibit 31 is a true and correct copy of the report titled
“Ligand Pharmaceuticals Incorporated (LGND) 2Q2014 Results: Maintain our $16.00 Price
35. Attached hereto as Exhibit 32 is a true and correct copy of an excerpt from the
“Monetary Policy Report” published by the Board of Governors of the Federal Reserve System
36. Attached hereto as Exhibit 33 is a true and correct copy of a July 7, 2014 to July
37. Attached hereto as Exhibit 34 is a true and correct redacted copy of excerpts of
BTIG Statements that include information on Fr. Emmanuel’s short transactions regarding
38. Attached hereto as Exhibit 35 is a true and correct copy of NASDAQ Rule IM
https://listingcenter.nasdaq.com/rulebook/nasdaq/rules/nasdaq-5000#nasdaq-rule_5200.
39. Attached hereto as Exhibit 36 is a true and correct copy of Ligand’s PowerPoint
presentation to the Securities and Exchange Commission titled “Ligand Presentation to the
SEC,” dated September 25, 2014, produced in this litigation at Bates-pages LGND_0080678-
737.
6
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 7 of 9
40. Attached hereto as Exhibit 37 is a true and correct copy of excerpts from Ligand
Pharmaceuticals Incorporated’s Form 10-Q filed with the United States Securities and Exchange
41. Attached hereto as Exhibit 38 is a true and correct copy of Bradley J. Bondi’s
titled “Government Service” it states that Mr. Bondi “served three years on the executive staff of
the Securities and Exchange Commission, working as counsel for enforcement actions and
regulatory rule-making to Commissioners Paul S. Atkins and Troy Paredes, the former of whom
Bondi has co-authored op-eds and journal articles on regulatory policy and securities law.”
42. Attached hereto as Exhibit 39 is a true and correct copy of an email exchange
between Bradley Bondi and Scott Friestad of the Securities and Exchange Commission between
May 18, 2015 and May 21, 2015, produced in this litigation at Bates-pages EPROD-SEC-LIT-E-
001189144-47.
presentation titled “Ligand Presentation to the SEC,” dated June 8, 2015, produced in this
44. Attached hereto as Exhibit 41 is a true and correct copy of selected excerpts from
the December 6, 2018 Transcript of Motion to Dismiss Hearing in the above-captioned matter.
45. Based on my review of all the materials the Commission has produced in
discovery in this matter, it does not appear that the Commission interviewed any of Fr.
46. Attached hereto as Exhibit 42 is a true and correct copy of excerpts from
Defendants’ First Set of Interrogatories to the Commission, served on June 13, 2019.
7
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 8 of 9
47. Attached hereto as Exhibit 43 is a true and correct copy of excerpts from
Defendants’ First Set of Requests for Production of Documents to the Commission, served on
48. Attached hereto as Exhibit 44 is a true and correct copy of excerpts from the
49. Attached hereto as Exhibit 45 is a true and correct copy of excerpts from the
Commission’s Responses and Objections to Defendants’ First Set of Requests for Production of
50. The Commission did not serve an affirmative expert report in this matter.
51. On January 17, 2020, Defendants served the Commission their expert report of
Aaron Dolgoff.
52. On February 28, 2020, the Commission served the Defendants its rebuttal expert
54. The experts also agreed that there was no evidence that Fr. Emmanuel’s statement
about the debt to tangible equity ratio, which is the Commission’s fourth alleged misstatement in
55. Attached hereto as Exhibit 46 is a true and correct copy of selected excerpts from
56. Attached hereto as Exhibit 47 is a true and correct copy of selected excerpts from
8
Case 1:18-cv-11926-PBS Document 127 Filed 09/30/20 Page 9 of 9
57. Attached hereto as Exhibit 48 is a true and correct copy of selected excerpts from
58. Attached hereto as Exhibit 49 is a true and correct copy of selected excerpts from
59. Attached hereto as Exhibit 50 is a true and correct copy of selected excerpts from
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-participants on September 30, 2020.
9
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 1 of 13
Page 1
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Page 2
1 APPEARANCES:
2
3 On behalf of the Securities and Exchange Commission:
4 VIRGINIA M. ROSADO DESILETS, ESQ.
5 JEFFREY FINNELL, ESQ.
6 SONIA TORRICO, ESQ.
7 Securities and Exchange Commission
8 100 F Street Northeast
9 Washington, D.C. 20549
10 (202) 5510-4955
11
12 On behalf of the Witness:
13 DOUGLAS F. MacLEAN, ESQ.
14 Armor Compliance
15 22 Batterymarch Street
16 Boston, Massachusetts 02109
17 (617) 501-2055
18
19 ALSO PRESENT:
20 LUCY GAUTHIER, Intern
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 3 of 13
Page 3
1 C O N T E N T S
2
3 WITNESS EXAMINATION
4 Gregory Lemelson 5
5
6 EXHIBITS DESCRIPTION IDENTIFIED
7 1 Form 1662 7
8 2 Subpoena 8
9 3 Subpoena 15
10 4 Subpoena 15
11 5 Background Questionnaire 25
12 6 Fund Information 110
13 7 E-mail 120
14 8 E-mail 161
15 9 Report 198
16 10 Prequin Ranking 202
17 11 Barron Ranking 203
18 12 Barron Ranking 204
19 13 Barclays Ranking 206
20 14 Descriptions 246
21 15 Summary 261
22 16 Summary 262
23 17 Report 270
24 18 Report 271
25 19 Report 272
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 4 of 13
Page 4
1 C O N T E N T S (CONT.)
2
3 EXHIBITS DESCRIPTION IDENTIFIED
4 20 Report 274
5 21 Report 275
6 22 E-mail 287
7 23 E-mail 289
8 24 Article 349
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 5 of 13
Page 5
1 P R O C E E D I N G S
2 MS. DESILETS: On the record at 9:25 a.m.
3 Can you raise your right hand, please. Do
4 you swear or affirm to tell the truth, the whole truth
5 and nothing but the truth?
6 THE WITNESS: I do.
7 Whereupon,
8 GREGORY LEMELSON
9 was called as a witness and, having been first duly
10 sworn, was examined and testified as follows:
11 EXAMINATION
12 BY MS. DESILETS:
13 Q Please state and spell your full name for
14 the record.
15 A My legal name is Gregory M. Lemelson, but
16 I'm referred to as Father Emmanuel Lemelson, which is
17 my ecclesiastical name or baptismal name.
18 Q You can put your hand down.
19 A Oh, sorry.
20 Q So would you prefer it if we refer to you as
21 Father Lemelson today?
22 A Father Emmanuel.
23 Q My name is Virginia Rosado Desilets. This
24 is Sonia Torrico, and this is Lucy Gauthier.
25 MS. DESILETS: Did I pronounce that right?
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 6 of 13
Page 16
1 I think, and received on September 1st.
2 Q Have you produced documents to the staff
3 pursuant to the requests in Exhibits 2 through 4 in
4 this later subpoena that we marked earlier?
5 A Yeah, I believe I produced everything that's
6 responsive. If there were any exceptions, I think I
7 noted them in my responses. Sometimes it was
8 difficult to ferret out relevant e-mails, but I think
9 we gave you the entire .pst files from Outlook.
10 Q Have you withheld any documents on the
11 grounds of attorney-client privilege or any other
12 privilege?
13 A No, I think we waived the attorney-client
14 privilege.
15 Q You knowingly and willingly waived the
16 protections of the attorney-client privilege by
17 producing privileged attorney-client communications to
18 us?
19 A I believe we did.
20 Q Can you describe the search that was
21 conducted for the subpoena documents?
22 A You mean like on my computer?
23 Q Did you look anywhere other than your
24 computer for responsive documents?
25 A Well, I -- I have pretty much digital copies
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 7 of 13
Page 17
1 of everything nowadays, so I don't think I did. I
2 mean anything that's a hard copy would have existed on
3 my Cloud drive or on my hard drive.
4 But to my recollection, it was pretty easy
5 to put together the subpoena materials because my
6 files are fairly organized. And then I just used a
7 search feature in Outlook to search for e-mails, but
8 it became clear it was difficult to move such a large
9 quantity of e-mails. So I asked Doug to just give you
10 the entire folders of the e-mails. Make the .pst
11 files, the data files, which were, I believe, 8 or 9
12 gigabytes or something like that.
13 Q So on your computer -- which computer was
14 this that the documents were on?
15 A My home office.
16 Q Your home office computer?
17 A Yeah.
18 Q And that's the one that you use for all of
19 your Lemelson Capital Management and Amvona Fund
20 business?
21 A That's right.
22 Q And you have folders on that desktop that
23 were organized by topic?
24 A That's right.
25 Q Did you review all of the folders that you
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 8 of 13
Page 18
1 thought might have documents responsive to the
2 subpoenas?
3 A Yes.
4 Q And you provided any documents that you
5 thought might be responsive to the subpoenas?
6 A Yes. If there were exceptions, I believe I
7 noted them. For example, in the second subpoena,
8 there was a lot to reference to correspondence
9 regarding the word "SEC," so there was no easy way to
10 figure out -- to eliminate word fragments. So -- but
11 I think, you know, I spot-checked everything I
12 provided -- I mean I didn't read everything I gave
13 you. I just gave it to you wholesale. But I believe
14 mostly everything that is responsive -- it's possible
15 that there are some things that might have had the
16 word "SEC" in it, but chances are it's in an e-mail
17 chain. So I'm sure there's a lot of duplicates
18 because of the e-mail chain format Outlook uses.
19 Q With respect to your initial production, you
20 provided the .pst of your full e-mail account?
21 A I believe so, yes.
22 Q And which e-mail account was that?
23 A It was on my business e-mail accounts.
24 Q Which e-mail addresses are those?
25 A It should be [email protected]. There
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 9 of 13
Page 19
1 should be -- there might be some legacy e-mails from
2 [email protected]. Could involve the e-mail
3 address [email protected]. There could have been
4 e-mails sent from my personal e-mail account,
5 [email protected]. I think that's all of them.
6 Q And did you produce the full .pst for each
7 of those accounts?
8 A Well, the way my Outlook is set up is that
9 so anytime someone e-mails me, it goes into my general
10 in box, and then I file everything in folders in
11 Outlook. So everything related to business in the
12 business .pst file I gave you. I have nothing -- so
13 my personal folders would only have things about my
14 personal life, like vendors or electric company or
15 something like that.
16 Q And do you file your sent items as well as
17 received items?
18 A I don't file the sent. They're in the sent
19 folder, but I never delete them either, so they should
20 all be in the .pst file.
21 Q Do you produce the sent items as well as the
22 business folder?
23 A They should all be in the .pst file, yeah.
24 They should all be in the file I gave you. I almost
25 never delete anything ever. I can't think of an
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 10 of 13
Page 32
1 I consider myself, I'm referred to as a priest with a
2 lay vocation, and my lay vocation is as a securities
3 analyst and a fund manager.
4 Q Where are you employed in your lay vocation?
5 A In Lemelson Capital Management.
6 Q What is Lemelson Capital Management?
7 A It's the general partner of a fund called
8 the Amvona LP. It's a Massachusetts LLC.
9 Q How long -- did you found Lemelson Capital
10 Management?
11 A Yes, I helped to establish it.
12 Q When was that?
13 A 2012.
14 Q When you say you helped to establish it, who
15 else was involved?
16 A The attorney who helped set up it. His name
17 was Kevin Cott. Initially I was going to form the
18 entity also with my brother, but ultimately it didn't
19 work out that way. I mean my initial thought was to
20 form it, and then he was going to be involved, and
21 then he wasn't going to be involved, and then I just
22 moved forward on my own.
23 Q What is your brother's name?
24 A Jason.
25 Q What is his last name?
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 11 of 13
Page 239
1 A Yes. I studied Merrick and GSK, Novartis,
2 their licensees. And then they have in-licensing
3 agreements with other partners. Some of them are
4 opaque.
5 For example, they have an agreement with a
6 company called Biotech Value Fund, which is not easy
7 to get to the bottom of, exactly, what the arrangement
8 is. But I try to read everything I can for all
9 related parties as well. So you build a competence
10 from reading these things, what is going on.
11 Q When did you first hear about Ligand?
12 A I remember very clearly I was sitting in my
13 driveway and I was reading on my iPad and I was
14 looking through some screeners and generally the
15 thought on my mind was that bubbles were being
16 created.
17 The market had been in an upward march for
18 five years, and I began to be of the opinion that it
19 was safer for my investors to be short than to be
20 long. Even though I had not done a lot of shorting,
21 the first issue we really shorted was World Wrestling
22 Entertainment.
23 And I was screening through companies that
24 had really very, very high statistics multiples,
25 things like Enterprise Value EBITDA or
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 12 of 13
Page 296
1 I mean, I've been criticized before, going
2 back to 2010. I don't expect people to agree with
3 what I write. Probably a minority agree with what I
4 write. In fact, today I'm sure a minority of people,
5 probably less so after Valeant, but a minority of
6 people probably understand what I've been saying about
7 Ligand for the time being.
8 Q You were surprised that the price went down
9 after you released your negative research reports on
10 Ligand?
11 A I don't think they are negative. I think
12 that they're an accurate, factually accurate and
13 rationale recounting of the flaws I see in the
14 company.
15 Q You are not sure whether these reports are
16 negative about Ligand?
17 A Well, I think what they are doing is
18 negative. I think I'm recounting it and bringing it
19 to light in the reports.
20 Q In a negative light?
21 A I think in an accurate, truthful, and
22 rational light.
23 Q Do you have a negative view of Ligand?
24 A I do.
25 Q Do you think your reports reflect that
Case 1:18-cv-11926-PBS Document 127-1 Filed 09/30/20 Page 13 of 13
Page 359
1 PROOFREADER'S CERTIFICATE
2
3 In the Matter of: TRADING IN THE SECURITIES OF
4 LIGAND PHARMACEUTICALS, INC.
5 Witness: Emmanuel Lemelson
6 File Number: HO-12718-A
7 Date: July 20, 2016
8 Location: Washington, D.C.
9
10
11 This is to certify that I, Nicholas Wagner,
12 (the undersigned), do hereby swear and affirm
13 that the attached proceedings before the U.S.
14 Securities and Exchange Commission were held
15 according to the record and that this is the
16 original, complete, true and accurate transcript
17 that has been compared to the reporting or recording
18 accomplished at the hearing.
19
20
21
22 ____________________ ____________________
23 (Proofreader's Name) (Date)
24
25
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Case 1:18-cv-11926-PBS Document 127-5 Filed 09/30/20 Page 1 of 17
2 DISTRICT OF MASSACHUSETTS
3 _______________________________
)
4 SECURITIES AND EXCHANGE )
COMMISSION, )
5 )
Plaintiff, )
6 ) Civil Action No.
v. ) 1:18-cv-11926-PBS
7 )
GREGORY LEMELSON and LEMELSON )
8 CAPITAL MANAGEMENT, LLC, )
)
9 Defendants, )
)
10 and )
)
11 THE AMVONA FUND, LP, )
)
12 Relief Defendant. )
_______________________________)
13
14 VOLUME 1
23
24
1 APPEARANCES:
2
For Plaintiff:
3
U.S. Securities and Exchange Commission
4 Boston Regional Office
Division of Enforcement
5 BY: Marc Jones, Esq.
617.573.8947, [email protected]
6 Alfred A. Day, Esq.
617.573.4537, [email protected]
7 33 Arch Street, Suite 2400
Boston, MA 02110
8
- and -
9
U.S. Securities and Exchange Commission
10 Division of Enforcement
BY: Sonia G. Torrico, Esq.
11 202.551.3515, [email protected]
100 F Street, N.E.
12 Washington, DC 20549
13
For Defendants and Relief Defendant:
14
Libby Hoopes
15 BY: Douglas S. Brooks, Esq.
617.338.9300, [email protected]
16 399 Boylston Street
Boston, MA 02116
17
22
23
24
25 * * * *
2
1 I N D E X
2 WITNESS EXAMINATION PAGE
3 GREGORY (EMMANUEL)
LEMELSON
4
BY MR. JONES 8
5
* * * *
6
E X H I B I T S
7
NO. DESCRIPTION PAGE
8
Exhibit 1 13-page printout from Lemelson 10
9 Capital Management website headed
"Lemelson Capital - History"
10
Exhibit 2 Answer of Defendants to Amended 100
11 Complaint
12 Exhibit 3 Tables and spreadsheets relating to 110
The Amvona Fund, LP, Bates Nos.
13 Amvona_00001-13
14 Exhibit 4 Multi-page Lemelson Capital 172
Management document headed "Document
15 12-1, Ligand Pharmaceuticals
(NASDAQ:LGND)"
16
Exhibit 5 Multi-page Lemelson Capital 172
17 Management document headed "Document
12-2 Ligand Pharmaceuticals (NASDAQ:
18 LGND): Appendix"
19 Exhibit 6 Multi-page Lemelson Capital 172
Management document headed "Document
20 12-3, Update: Lemelson Capital
Further Increases Short Stake in
21 Ligand Pharmaceuticals (NASDAQ:
LGND) as LGND EPS Plunges 76 percent
22 in Q2 2014"
23
24
25
3
1 E X H I B I T S (Continued)
2 NO. DESCRIPTION PAGE
3 Exhibit 7 Multi-page Amvona document headed 172
"Document 12-4, Lemelson Capital
4 Says Ligand Pharmaceuticals'
(NASDAQ: LGND) $225M Debt Issuance
5 Solidifies Company's Insolvency,
Substantially Raises Specter of
6 Bankruptcy"
7 Exhibit 8 Six-page document headed "Document 172
12-5, Ligand Pharmaceuticals
8 (NASDAQ: LGND): Institutional
holders wasting no time dumping
9 stock in response to mounting
insolvency and bankruptcy risks"
10
Exhibit 9 Multi-page GSK document headed 208
11 "Press Release, Second quarter 2014,
Issued: Wednesday, 23 July 2014,
12 London U.K."
13 Exhibit 10 Multi-page GSK document headed 215
"Press release, First quarter 2014,
14 Issued: Wednesday, 30 April 2014,
London U.K."
15
Exhibit 11 Multi-page GSK document headed 226
16 "Press Release, Fourth Quarter 2012,
Issued: Wednesday, 6 February 2013,
17 London, U.K."
18 Exhibit 12 Four-page email to Jesse Perkins 261
from Emmanuel Lemelson dated
19 9/6/2014, with list of attachments
20 Exhibit 13 Four-page email to allanrudolf 265
@yahoo.com from Emmanuel Lemelson
21 dated 9/7/2014, with list of
attachments
22
Exhibit 14 Four-page email to johnx99y 266
23 @yahoo.com from Emmanuel Lemelson
dated 9/7/2014, with list of
24 attachments
25
4
1 E X H I B I T S (Continued)
2 NO. DESCRIPTION PAGE
3 Exhibit 15 Three-page email to Dimitrios 269
Karakoutas from Emmanuel Lemelson
4 dated 9/17/2014, with list of
attachments
5
Exhibit 16 Three-page email to William Ware 272
6 from Emmanuel Lemelson dated
10/3/2014, with list of attachments
7
Exhibit 17 Five-page email to [email protected] 276
8 from Emmanuel Lemelson dated
11/10/2014, with list of attachments
9
Exhibit 18 Email to Edward Gu from Emmanuel 279
10 Lemelson dated 10/9/2014, Bates No.
SEC-Lemelson-E-0366451
11
Exhibit 19 Email to [email protected] and 286
12 a long list of bcc's from Emmanuel
Lemelson dated 6/16/2014, Bates No.
13 SEC-Lemelson-E-0184019
14 Exhibit 20 Email to [email protected] and 290
a long list of bcc's from Emmanuel
15 Lemelson dated 6/19/2014, Bates Nos.
SEC-Lemelson-E-0117738 - 7740
16
Exhibit 21 Email chain, the top email to 296
17 Jennifer Bloom from Emmanuel
Lemelson dated 7/2/2014, with list
18 of attachments, Bates Nos.
SEC-Lemelson-E-0117738 - 7740
19
Exhibit 22 Email chain, the top email to Lori 299
20 Schumacher from Emmanuel Lemelson
dated 7/21/2014, Bates Nos.
21 SEC-Lemelson-E-0042035 - 2039
22 Exhibit 23 Email to Emmanuel Lemelson from 304
Michael Johns dated 9/3/2014, Bates
23 Nos. SEC-Lemelson-E-0073067 - 3071
24
25
5
1 E X H I B I T S (Continued)
16
17
18
19
20
21
22
23
24
25
6
1 P R O C E E D I N G S
09:35:27 5 Reporting.
09:36:20 20 Commission.
9 DIRECT EXAMINATION
11 Q. Good morning.
12 A. Good morning.
09:37:01 15 Commission.
18 A. It appears so.
23 I can only ask you what you know, and if you don't
1 Q. Okay.
2 A. -- fairly clearly.
14 A. Yes.
17 sale?
23 different.
1 A. Yes.
4 yes, in 2014.
9 referring to?
11 Pharmaceuticals.
13 fraud?
8 Ligand?
9 A. No.
11 Viking Pharmaceuticals?
12 A. No.
14 A. No.
18 whistleblower.
1 A. Yes.
6 email.
8 or not?
16:15:00 10 Q. Okay.
11 A. -- essentially.
13 Fund?
14 A. Yes, he did.
16:15:36 25 Q. Okay.
328
1 C E R T I F I C A T E
8 and correct.
11
13 ________________________, ___________________.
14 (City) (State)
15
16 _________________________
GREGORY (EMMANUEL) LEMELSON
17 VOLUME 1
18
19
20
21
22
23
24
25
339
1 ERRATA SHEET
2 Deposition of: GREGORY (EMMANUEL) LEMELSON, VOL. 1
Date taken: October 16, 2019
3 Case: SEC vs. LEMELSON, et al.
PAGE LINE
4 ____ ____ CHANGE: __________________________________
REASON: __________________________________
5
____ ____ CHANGE: __________________________________
6 REASON: __________________________________
7 ____ ____ CHANGE: __________________________________
REASON: __________________________________
8
____ ____ CHANGE: __________________________________
9 REASON: __________________________________
10 ____ ____ CHANGE: __________________________________
REASON: __________________________________
11
____ ____ CHANGE: __________________________________
12 REASON: __________________________________
13 ____ ____ CHANGE: __________________________________
REASON: __________________________________
14
____ ____ CHANGE: __________________________________
15 REASON: __________________________________
16 ____ ____ CHANGE: __________________________________
REASON: __________________________________
17
____ ____ CHANGE: __________________________________
18 REASON: __________________________________
19 ____ ____ CHANGE: __________________________________
REASON: __________________________________
20
____ ____ CHANGE: __________________________________
21 REASON: __________________________________
22 ____ ____ CHANGE: __________________________________
REASON: __________________________________
23
24
Signed ________________________
25 Dated ________________________
340
341
1 COMMONWEALTH OF MASSACHUSETTS)
2 SUFFOLK, SS. )
18
23
24
25
Case 1:18-cv-11926-PBS Document 127-5 Filed 09/30/20 Page 17 of 17
342
3 October, 2019.
6 Notary Public
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 1 of 25
1
Despite an entirely opaque future, the dwindling of critical revenue streams that will continue to
stress the Company as a “going concern”, Ligand trades at an excessively high PE ratio of 115, a
factor of 4.8x that of financially superior competitors (and 6x that of the S & P 500). Moreover,
Lemelson Capital believes the Company has consistently used persuasive definitions to suppress
important evidence regarding pressures to the Company’s revenue streams and its super-
concentration in both its sole supplier and also its customer base.
Ligand’s press releases and communications with investors paint an exceedingly optimistic picture
of the Company’s future growth. Yet the firm’s SEC filings reveal a business whose key revenue
streams are either in decline, or are likely to diminish entirely. By way of example, collaborative
R & D revenues (a substantial part of Ligand’s overall sales and business model), have already
declined 79 percent in just the last four years, further concentrating the Company’s business into
just two precariously remaining fragile revenue streams.
Above all, the Company faces it biggest existential threat in what is likely to be a momentous
impairment of its largest royalty generating asset, Promacta®, a GlaxoSmithKline therapy that as
recently as Q4 2013 accounted for as much as 72 percent of all royalties received by the Company.
Getting past the Company’s jargon, Ligand’s business is radically simple. The result of 27 years of
operating activity at Ligand is a deficit of $669 million. In the last ten years alone, shareholders
have been diluted by 72 percent. The future of the Company is sold as full of promise, but in reality
there is no evidence to support significant gains in revenue or profitability that would even
vaguely approximate a justification for the Company’s current share price of $66.75 as of June 13,
2014. Further, after losing revenue from collaborative R & D efforts, the Company has gone from
three revenue sources to essentially two, and now appears likely to decline even further to just
one revenue source, resulting in a dangerously undiversified revenue structure.
In light of the extraordinary risks associated with Ligand as a going concern, the imminent threat
to Promacta® royalties and based on superior firms’ far lower valuations, Lemelson Capital
believes that Ligand’s fair value is roughly $0 per share, or 100 percent below the current stock
price.
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 2 of 25
2
Disclaimer
Following publication, Lemelson Capital may transact in the securities of the Company. Lemelson
Capital has obtained all information herein from sources it believes to be accurate and reliable
However, such information is presented “as is,” without warranty of any kind – whether express
or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy,
timeliness, or completeness of any such information or with regard to the results obtained from
its use. All expressions of opinion are subject to change without notice, and Lemelson Capital does
not undertake to update this report or any information contained herein.
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 3 of 25
3
Table of Contents
Disclaimer.................................................................................................................................................. 2
Investment Highlights ............................................................................................................................... 4
Overview ................................................................................................................................................... 4
Company’s Vital Royalty Generating Program “Promacta®” Facing Severe Competitive Threat ............ 5
“Captisol®” Revenue Likely to Remain Immaterial ................................................................................... 8
“Going Concern” Risk ................................................................................................................................ 8
Litigation: An Open-ended Liability .................................................................................................... 10
Collaborative R & D Revenues Declining Rapidly ................................................................................ 11
Net Cash Provided by Operations Immaterial .................................................................................... 11
Management’s Comments Regarding Diversification and Risk Reduction are Materially Misleading .. 12
Fig. 1 Havione Facility, Loures, Portugal ............................................................................................. 13
Persuasive Definitions and Suppressed Evidence ................................................................................... 14
Collaborations: The Red Herring ............................................................................................................ 15
Unscrupulous Stock Promotion Driving ‘Nosebleed’ Valuation ............................................................. 16
Fig. 2 Stock Price and Shares Outstanding Q1 2013 vs. Q1 2014 ....................................................... 16
Fig. 3 Insider Transactions: Number and Volume ............................................................................... 17
Fig. 4 Major Assets .............................................................................................................................. 18
Fig. 5 Business Model .......................................................................................................................... 18
Fig. 6 Ligand Stock Price and Shares Outstanding .............................................................................. 19
Fig. 7 PE Ratio of Competitors ............................................................................................................ 20
Conclusion ............................................................................................................................................... 21
Fig 8 Retained Earnings ....................................................................................................................... 22
Full Disclaimer ......................................................................................................................................... 24
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 4 of 25
4
Investment Highlights
a. Revenue and profits highly concentrated in one (single-sourced) product, and essentially
two royalty agreements, one of which is set to decline precipitously.
b. Based on recent FDA comments, Gilead’s revolutionary Sovaldi® drug will virtually eliminate
demand for Promacta®, which is Ligand’s largest royalty generating asset, accounting for as
much as 72 percent of Ligand royalty revenue as recently as Q4 2013.
c. When backing out intangibles from the balance sheet, net share-holder equity is
approximately minus $4 million.
d. Current stock price represents ~100 percent downside.
Overview
a. Over 70 percent of 2013 revenue was derived from Promacta®, Kyprolis, and Captisol®
programs (including Captisol® material sales). Royalties on Avinza, another major royalty
generating program is quickly deteriorating since the Company’s partner Pfizer notified the
Company that a generic product entered the market.
b. The only material source of revenue outside of royalty programs is Captisol® sales which,
contrary to the Company’s representations regarding diversification is single sourced. There
are no indications that Captisol® sales will increase materially in the future, and is likely to
become the Company’s only significant source of future revenue.
c. Total revenue for 2013 was ~$49 million. Net Income from continuing operations
for 2013 was just $8.8 million or $0.43 per diluted share. This was less than the income from
continuing operations of $9.7 million, or $0.49 per diluted share, the Company earned in 2011
a year when Captisol® sales were substantially lower, indicating that even with a marked
increase of Captisol® material sales, the Company profitability has declined.
2013 net income would barely cover projected 2014 stock-based compensation expense,
which thus far has essentially been the fiscal purpose of the Company, leaving the Company
exposed to going concern risk.
“Now this past quarter, we saw sales for PROMACTA® dip several percent lower than
the prior quarter to $80 million. That's a bit lower than expected.”
In fact, the “$80 million” figure represented above is Ligand partner GlaxoSmithKline’s
(NYSE:GSK) gross revenue from Promacta® sales and not Ligand’s royalty.
“Sovaldi® is the first drug that has demonstrated safety and efficacy to treat certain
types of HCV infection without the need for co-administration of interferon”
There has never been evidence presented that Promacta® will be able to generate significant
revenue now that revolutionary treatments for Hepatitis C are enter mainstream use.
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 6 of 25
6
On April 22nd, 2014 GSK announced that they would be selling the business unit that includes
Promacta®.
GSK PLC ANNOUNCES MAJOR THREE-PART TRANSACTION WITH NOVARTIS TO DRIVE SUSTAINABLE SALES GROWTH,
IMPROVE LONG-TERM EARNINGS AND DELIVER INCREASING RETURNS TO SHAREHOLDERS
Royalty revenues were $23.6 million in 2013. Importantly the increase in royalty revenue of $9.5
million and $4.9 million for the year ended December 31, 2013 and 2012 respectively, is due to
an increase in Promacta® and Kyprolis royalties with Promacta® being by far the larger royalty
program.
However, the increase was due to timing of customer orders and not an increase in demand, a
point hardly emphasized by the Company.
Gilead’s Sovaldi®, as well as similar drugs coming to market in 2H 2014 from AbbVie
(NASDAQ:ABBV) and Merck (NYSE:MRK) will likely eliminate demand for Promacta®, which is the
largest royalty generating asset, accounting for as much as 72 percent of the firm’s royalties as
recently as Q4, 2013. Sovaldi® and its counterparts are revolutionary treatments for Hepatitis C
that will likely eliminate the need for interferon-based therapies like Promacta® all-together.
It is apparent that these new revolutionary treatments are vastly superior, standing to eliminate
the virus in as little as four to six weeks, thus mitigating damage to the liver. The last point has
serious implication to any ancillary application for Promacta® resulting from damage to the liver
as a result of the Hepatitis C infection, which Ligand has incorrectly suggested would be potentially
a robust market (post Hepatitis C cure) for interferon-based therapies that would involve
applications such as Promacta®.
Vitally, the initial application of the new drugs is in combination with interferon-based therapies,
which is why there has not yet been a significant impairment to Ligand’s Promacta® business.
However, according to both the FDA and leaders in the field, the application is set to change.
The purpose and applicability of Promacta® was discussed with an Associate Clinical Professor of
Medicine and Surgery at one of the largest transplant Hepatology departments at a major U.S.
university hospital and also with the Chief of abdominal surgery and transplantation at a major
European university hospital, with the latter commenting after consultation with his US counter-
part:
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 7 of 25
7
“I spoke to one of my colleague (the chief of transplant Hepatology at the largest liver
transplant program in the US) regarding the future of Hep C treatment: he is very
impressed by the new drug from Gilead (Sovaldi®) in his patients, it is very well
tolerated even in patients with advanced disease (including ones with
thrombocytopenia). Though the drug is used with or without interferon currently he
expects that in the near future with more drugs close to being approved on the
market he sees a shorter treatment cycle without interferon and with even better
tolerance…”
Further references on the obsolete nature of supportive care treatments such as Promacta®, that
are made available to patients who are ineligible or poor candidates for interferon-based therapy
are also available in the following publications:
On February 28, 2013 GSK submitted a New Drug Application (NDA) for Promacta® after the FDA
granted breakthrough therapy designation for Promacta® in patients with severe aplastic anemia.
Shares of Ligand jumped 3.6 percent that day on the news. What the news failed to mention,
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 8 of 25
8
however, is that other indications for Promacta®, such as aplastic anemia, are extremely small
and involve as few as 10,000 U.S. patients.
“I mean, we gave our outlook for 2015 revenue several months ago. Our outlook
hasn't change. It was north of $80 million.”
Trailing twelve months (TTM) net income at March 31, 2014 was 22.56 percent. If the Company
achieves $80 million in revenue in 2015, it is reasonable to estimate that net income may
approximate all of $18.4 million dollars against a market capitalization of nearly $1.4 billion, a
calculation that does not assume any impairment to the Promacta® business, a threat
management has blithely overlooked.
The Company recorded material sales of Captisol® of $19.1 million in 2013 compared to $9.4
million in 2012 and $12.1 million in 2011. The increase in material sales of $9.7 million for the
year ended December 31, 2013 compared to 2012, however, is due to timing of customer
purchases of Captisol® as well as an increase in customer purchases for use in clinical trials, and,
notably, not an increase in demand. This is yet another fact not immediately obvious from the
Company’s financial statements or public comments. Further, the atypical increase in clinical trial
demand for Captisol® resulted in unusually high margins in 2013 that are not likely to be repeated.
Looking through the Company’s investor presentation released on May 28, 2014, it would appear
that new blockbuster drugs will be delivered in collaboration with major research-based
pharmaceutical manufacturers such as GSK. But the reality is the Company’s Captisol® product is
39 percent of total Company revenues, and there is no evidence that sales are likely to increasing
substantially in the future over the three-year average of just $13.5 million per year.
The Company’s recent 10-K contains a buried sentence that stands out – at first glance as an
affirmation that the Company is generating sufficient operating cash flow. But a more careful
read reveals the opposite:
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“We believe that the actions presently being taken to generate sufficient operating
cash flow provide the opportunity for us to continue as a going concern”
First is the qualifier “we believe,” which is very different from say, “we are.” The subject is the
actions that are being taken, not the cash flow itself, which at best will only be “sufficient.” Finally,
the actions, are likely to provide only an “opportunity” “to continue as a going concern”.
There are not many companies that raise “going concern” issues in their 10-K filings. Indeed,
reviewing the form 10-K of other financially compromised concerns’ and searching for the term is
a worthwhile exercise because it reveals that the term is rarely used in 10-K or other SEC filings.
“We have incurred significant losses since inception. At December 31, 2013, our
accumulated deficit was $671.3 million and we had negative working capital of $4.1
million.”
Anemic and concentrated cash flow is not the only risk threatening Ligand’s existence as a going
concern. With no tangible assets to buttress the shares, any minor distress that prevented the
Company from issuing more stock or debt, would easily drive the Company into liquidation –
consider for example the following:
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If your Company and its CEO are already involved in litigation, avoiding it in the future would be
a top priority. That’s why spelling out ongoing concerns in a 10-K is imperative.
“…the lawsuit also names us and our Chief Executive Officer John Higgins as
additional defendants for allegedly aiding and abetting the Genaera Defendants….”
Because the US is a litigious society, the quote from Ligand’s 2013 10-K above may not be an
immediate cause for concern. However, the follow up comment “the outcome of this matter is
not presently determinable” however, is hugely notable. Public companies will typically conclude
any discussion of litigation with affirmation that the outcome is not likely to represent a material
impact. Because this litigation may likely represent such a material impact, Ligand has not done
this.
Indeed, the word litigation appears twenty-one times in the Company’s 2013 form 10-K,
including in the following:
“We have product liability insurance that covers our clinical trials up to a $5.0 million
annual limit. If we are sued for any injury caused by our product candidates or any
future products, our liability could exceed our total assets.”
Walmart (NYSE: WMT), one of the world’s largest and arguably most sued companies, mentions
the term only eight times in its 2013 10-K.
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As recently as 2009, collaborative research and development at Ligand accounted for 78 percent
of the Company’s revenue.
Between 2009 and 2013, however, collaborative research and development and other revenues
declined at the Company from $30.6 million to just $6.3 million representing a decline of 79
percent in just four years offsetting the nominal gains in royalties and material sales.
The Company has not provided any indication that it expects collaborative research and
development sales to recover, further concentrating what had previously been three distinct
revenue streams into just two (royalties and material sales).
In Q1 2014, total revenue was just $15.9 million with only $7.8 million attributable to royalties
and $5.7 million attributable to materials sales. Net income was just ~$2 million, a sum just ~$600
thousand higher than Q1 2013, which is offset by roughly an additional five percent dilution
through stock issuance over the same period.
Net cash provided by operating activities was just ~$500 thousand higher in Q1 2014 vs. Q1 2013.
Between May 8 2013 when the Company announced its Q1 2013 earnings, and May 7 2014, when
it announced Q1 2014 earnings, the stock price appreciated 149.98 percent. The reward for
earning an additional ~$500 thousand in net cash over twelve months was an astounding ~$840
million increase in market capitalization.
Once the ~$65 million in intangibles padding the balance sheet is backed out, there is
approximately minus $4 million in equity to support the Company’s $1.4 billion market
capitalization.
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“Our risk profile is vastly reduced compared with industry norms owing to the large
number of both partnered and unpartnered assets we have.”
“Well, the way we look at this, as you know, we quote our portfolio of shots-on-goal,
our fully funded partnerships or programs, and we have over 90. And a rough
estimate, probably 2/3 are Captisol®-related”
Suggesting that there is product diversification in the pipeline when 2/3 of the pipeline is in fact
tied to one product is problematic. Not mentioning that accounts receivable from two customers
were 75 percent of total accounts receivable at December 31, 2013 and 87 percent of total
accounts receivable at December 31, 2012 is an even more so.
In the last four years, the Company, rather than diversifying its business, has actually become far
more concentrated with the veritable loss of collaborative research and development revenue
collapsing into precariously fragile royalty payments from basically two partners and both volatile
and insignificant material sales recklessly sourced from a single supplier.
Further, even this partner revenue is by no means guaranteed since the Company’s partners have
a right to terminate collaboration and licensing agreements, as the Company conceded in its 2013
10-K:
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“… The asset was impaired upon receipt of notice from MedImmune that it was
exercising its right to terminate the collaboration and license agreement.”
“…The asset was impaired upon receipt of notice from Merck in October 2011 that it
was exercising its right to terminate the collaboration and license agreement.”
Additionally, the Company has tremendous concentration not just on the customer side, but also
on the supplier side with just three products accounting for virtually all of Ligand’s tiny revenue.
“Material sales” are attributable solely to the Company’s Captisol® product and amounted to just
~$19 million in all of 2013. This product is single sourced to a manufacturer named “Hovione”
located in Portugal:
If Havione were not able to supply Captisol® for any reason, the Company would be unable to
continue to derive revenues from material sales until it obtained an alternative source, which
would likely take a considerable period of time, a prominent risk since Captisol® represented ~36
percent of the Company’s total Q1 2014 revenue.
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HTTP://WWW.LIGAND.COM/MESSAGE-FROM-THE-CEO
Ligand is defining terms in ways that appear on the surface to be straightforward but are in fact
subtly loaded. Further, the Company frequently, as in the case of Promacta®, presents only part
of a piece of evidence that supports their claims while ignoring the parts that contradict the same
claim. For example, discussing the aplastic anemia application for Promacta® (10,000 potential
US patients) while omitting the impending loss of the Hepatitis C application.
Another example of this selective commentary on the Company’s future is evident in the
Company’s May 28, 2014, 29-page investor presentation. The presentation includes an abundant
number of charts and figures. However, none of them relate to cash flow, which seems a peculiar
omission for a company that is a self-professed cash flow “Evangelist.”
Reading Ligand’s annual and interim reports, as well as studying the conference call transcripts, is
a remarkable journey through all the great things that might happen in the future in the
pharmaceutical industry. However, the Company speaks very little about its own financial
realities. For example, there is rarely any mention of GAAP figures in conference calls while stock-
based compensation and changes to contingent liabilities are almost always backed out of any
presentation of the numbers. By the time management is done man-handling the statement of
operations, it is difficult to understand what exactly it is meant to represent.
Most people do not find reading 86 pages of financial reports and largely boiler-plate risk
disclosures to be all that exciting, and it is unlikely any form 10-K will be nominated for a Nobel
Prize in literature. Companies know this, and also know that if a kitchen sink approach to risk
disclosures is taken, and enough are thrown in, at about paragraph #132, the eyes of the casual
reader will begin to glaze over and a hugely critical sentence can be easily misread. This is precisely
the approach that the Company takes in concealing its risks.
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In the end all the Company’s talk of “collaborations” is really just a Red Herring, often disguised
in sports jargon such as “shots on goal”, for a Company that over its entire existence has done
nothing but hemorrhage shareholder capital and now appears set to lose its largest royalty
generating program.
The Company has had 27 years to prove its model. It is hardly a start-up. But in this time, its track
record is both transparent and deeply troubling: It has succeeded in losing $~669M of
shareholders’ capital.
Ligand’s model, far from being a strength or representing any sort of real diversity of risk, is in fact
nothing but an illusion. Ligand’s stock price is a derivative of temporal excitement in an exuberant
market. The Company has no real control over the R&D initiatives or choices of its partners, or
any other aspect of the commercialization of new products.
Take a step back from the Company’s Glossolalia, and consider: Why would some of the largest
and most powerful pharmaceutical companies in the world take all of the risk, lay out all of the
capital and in the end share any substantial part of the kill with tiny 18 man Ligand? If the answer
is intellectual property, is it really plausible that these companies would not just as soon work
around any IP issues knowing full well, Ligand is financial unfit to legally enforce anything when
IP litigation often spans many years and costs many tens of millions of dollars to litigate that the
Company doesn’t have?
There is a saying that is particularly applicable in investing: “A bird in the hand is worth two in the
bush.” For Ligand, they’ve only ever had “two in the bush.”
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“We have financed our operations through offerings of our equity securities,
borrowings from long-term debt, issuance of convertible notes…
In October 2013, we filed a universal shelf registration statement with the SEC... This
registration statement provides additional financial flexibility for us to sell shares of
common stock or other equity or debt securities as needed at any time, including
through our at-the-market equity issuance program.”
Delta $840,586,000
As can be seen above, the weighted-average number of common shares-diluted in 2014 increased
by 927,993 to 21,208,203, a 4.6 percent growth, over 2013.
Between December 2009 and March 2014 the Company increased its share count by 8.9 million
shares or 72.4 percent.
In a recent interview, Matthew W. Foehr, the Company’s Executive Vice President and Chief
Operating Officer said:
When the commentary was published on June 9, 2014, shares surged nearly 5%. Shortly
afterwards Mr. Foehr discussed the Company’s skill at marketing itself to investors.
“We do not believe our average daily trading volume is an impediment to investor
interest, yet there's always room for more volume. We have a comprehensive and
active program of outreach to current and potential investors and analysts, including
participation in a number of health care and growth investment conferences each
year. We believe our communication with Wall Street is appropriately frequent”
Volume may not be an “impediment to investor interest”, but it could be an impediment to insider
selling.
Before the recent run up, insiders largely bought shares through the middle of 2013. Then, after
sell side analysts who either have or seek investment banking business from the firm, upgraded
shares (to a PT around $90 in most cases), insider’s began significant selling.
The Company has no tangible assets and a price to free cash flow ratio of 82 – that is to say, it
would take 82 years for free cash flow to cover the market capitalization of the Company and that
is only if the Company can somehow maintain its newly-discovered free cash flow, which is
unlikely. In fact, in only two of the last 10 years has the Company had any free cash flow at all.
Symbolic of the company’s disarray and lack of forward solutions or strategy, the “Major Assets”
section of the Company website (arguably one of the most critical company metrics) states simply
“under construction.”
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The pithy oversight shown in figures 4 and 5 below, are both symbolic, perhaps representing the
Company’s most honest statement regarding the state of its business.
HTTP://WWW.LIGAND.COM/MAJOR-ASSETS
The same text appears under the “Business Model” section of the site.
HTTP://WWW.LIGAND.COM/BUSINESS-MODEL
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None of the nine sub-pages under the “Investors” section of the website, however, remain
“under construction.” These pages are full of, laudatory information about the stock.
As of February 14, 2014, there were approximately 705 holders of record of the common stock.
It is safe to reason that a significant number of these may well be a subset of the retail investor
genus known as “medical professionals,” who are not frequently lauded for their investing savvy.
Additionally, an unusual number of sell-side analysts covering the stock and providing price
targets in the 90s appear to have a primary profession in the medical field.
If there is any doubt about the lucrative trade in issuing and selling stock, consider the chart
above.
There are seven analysts following the Company. At least six of them are producing radically
speculative reports with indefensible “nosebleed” price targets.
The disclosures on these reports invariably suggest various possible conflicts of interest and look
something like this:
If the Company were priced at a 15x diluted TTM EPS of $0.58 per share, the price would be
$8.70 per share.
At a PE ratio of 24x diluted TTM EPS (the average of the Company’s supposed competitors, who
have long histories of profitability, real R & D and significant assets), the price per share would
be $13.92.
Competitors with long histories of profitability and free cash flow include:
Average PE 24.01
However, neither PE ratio above would apply in the case of Ligand which has only speculative
value and virtually no perceptible insight into future revenue or profitability, while maintaining a
spectrum of significant liabilities, including from the Company itself vis-à-vis spectacular dilution.
For an investor with the slightest inclination to even the most modest margin of safety, shares in
Ligand should be valued currently as essentially worthless.
“We recognized compensation expense of $5.7 million, $4.1 million and $3.4 million
for 2013, 2012 and 2011, respectively, associated with option awards...”
Conclusion
“Increasingly, we are hearing from investors that if you want to own a piece of this
lucrative industry, the best way to do it is to own Ligand. The thinking behind that is
Ligand has so many partnerships and programs, so many ways to participate in the
upside, that investors have a potential for biotech like returns, but at the same time
the Company's portfolio diversity and ultra lean cost structure creates an unusually
lower risk profile compared to typical biotech. This is what investors and analysts are
saying…”
L. FRANK BAUM
THE WONDERFUL WIZARD OF OZ
What is the Company really selling? According to the CEO, it is the promise of “biotech-like
returns.”
The balance sheet is ~66 percent intangibles. Once removed, the Company has just about minus
$4 million in equity. This point is important since management boasted recently of “doubling”
shareholder equity. If there was any appreciable evidence that the Company’s existing programs
were likely to produce materially higher revenues or profits in the future, the intangible entry
might have some value. But as it stands today, it is just padding the balance sheet to disguise just
how precarious the Company’s financial situation continues to be.
The Company’s income from continuing operations in 2013 was $8.8 million, which represents
just .629 percent (6/10th) of one percent of the Company’s market capitalization as of June 12,
2014 and would barely cover just stock-based compensation expense planned in FY 2014
(contingent liabilities aside).
In 2013, despite increased sales of some $9.7 million, the Company’s net cash position actually
decreased by $743,000 to just $11.6 million.
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How could a Company whose retained earnings amount to a cumulative loss to shareholders of
$669 million, while diluting shareholders by 72.4 percent over just ten years, be worth anything
more than zero?
The Company lacks any margin of safety. To be sure, purchasing the stock is an acquired liability
posed by, amongst other things, management itself.
For this royalty stream/low operating expense business model to work, the Company's portfolio
of “partnered products” would need to deliver actual royalty streams from supposed near-term
launches (rather than trade on the promise of future royalty streams from early-stage partnered
programs, which comprise 60 percent of the Company's so-called pipeline). But this has not
occurred, and the evidence indicates that even if it does occur at some future date, the revenue
and projected profits cannot justify a share price above zero given the severe threats to the highly
concentrated revenue streams and the likelihood management will continue to dilute owners
without restraint.
Buying Ligand shares at $67.75 (the price the stock closed at on Friday June 13, 2014) is buying a
stock that has earned just $0.57 cents per share in the last twelve months, a TTM figure set to
drop even further with the release of the Company’s Q2 2014 GAAP earnings, which are almost
certain to be negative.
Management and its investment banks who moonlight as purported analysts have convinced the
market that buying into Ligand is buying into a highly diversified pharmaceutical concern, with all
the romance and excitement of prospecting in the biotech gold rush. But in reality, nothing could
be further from the truth. Buyers are actually paying a 115x premium for a Company that has
never retained its earnings, basically has only two of its three revenue streams remaining with the
larger of these remaining two set to decline precipitously.
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What is left of the Company after that is sales of a material called Captisol®, which is being single-
sourced to a third party, Portugal-based facility, and which has never produced significant profits
though it has been commercially available for some time before its adoption by Ligand.
The history of losses, current “going concern” risks associated with the possibility of termination
of already insipid licensing agreements, outstanding shareholder dilution, and the imminent
conclusion of the commercial viability of the Company’s largest royalty generating product,
Promacta®, makes Ligand wholly unsuitable as an investment and its shares fundamentally
worthless.
For those inclined to adventure in a richly-priced stock market, buying shares in Ligand is like
handing over your money to a Company so it can essentially make its payroll. Ligand is a company
with no real assets and fragile royalty programs, which is prone to speaking in sports jargon about
an abstract pipeline not of assets, but of vague “partnerships and programs”, for which they do
not control the outcome, and to which they are infinitely the junior partner to the transaction.
The markets have risen steadily for five years, creating an expensive bull market in equities. As is
almost always the case, the rising tide has lifted all ships, and market participants may have gained
naïve optimism about the future of businesses like Ligand. As purely speculative issues go, Ligand
is one of the most egregiously speculative investments trading on any U.S.-based exchange.
In such environments, there is almost no limit to the amount of stock a Company and its
investment bankers can sell.
However, general market sentiment will change and when it does it would not be surprising to
see a great many holders of shares in Ligand become unpleasantly skittish in a matter of a
millisecond.
Greed will become fear again, and there will be no market for shares of companies of Ligand’s
flavor. If the Company has difficulty selling its shares on the open market (its biggest revenue
generator to date), or at prices that are significantly impaired, payroll will be a notable problem
at the Company once again and shareholders who bought into the dream are likely to be left
holding worthless pieces of digital paper.
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Full Disclaimer
As of the publication date of this report, Lemelson Capital Management LLC has a short position
in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains in the event
that the price of the stock declines. Following publication of the report, Lemelson Capital may
transact in the securities of the Company covered herein. All content in this report represents the
opinions of Lemelson Capital. Lemelson Capital has obtained all information herein from sources
it believes to be accurate and reliable. However, such information is presented “as is,” without
warranty of any kind – whether express or implied. Lemelson Capital makes no representation,
express or implied, as to the accuracy, timeliness, or completeness of any such information or
with regard to the results obtained from its use. All expressions of opinion are subject to change
without notice, and Lemelson Capital does not undertake to update or supplement this report or
any information contained herein.
This document is for informational purposes only and it is not intended as an official confirmation
of any transaction. All market prices, data and other information are not warranted as to
completeness or accuracy and are subject to change without notice. The information included in
this document is based upon selected public market data and reflects prevailing conditions and
Lemelson Capital’s views as of this date, all of which are accordingly subject to change. Lemelson
Capital’s opinions and estimates constitute a best efforts judgment and should be regarded as
indicative, preliminary and for illustrative purposes only.
Any investment involves substantial risks, including, but not limited to, pricing volatility,
inadequate liquidity, and the potential complete loss of principal. This report’s estimated
fundamental value only represents a best efforts estimate of the potential fundamental valuation
of a specific security, and is not expressed as, or implied as, assessments of the quality of a
security, a summary of past performance, or an actionable investment strategy for an investor.
This document does not in any way constitute an offer or solicitation of an offer to buy or sell any
investment, security, or commodity discussed herein or of any of the affiliates of Lemelson
Capital. Also, this document does not in any way constitute an offer or solicitation of an offer to
buy or sell any security in any jurisdiction in which such an offer would be unlawful under the
securities laws of such jurisdiction. To the best of Lemelson Capital’s abilities and beliefs, all
information contained herein is accurate and reliable.
Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash or
derivative positions in any Company discussed in this document at any time. As of the original
publication date of this document, investors should assume that Lemelson Capital is short shares
of Ligand and may have positions in financial derivatives that reference this security and stand to
potentially realize gains in the event that the market valuation of the Company’s common equity
is lower than prior to the original publication date. These affiliates, officers, and individuals shall
Case 1:18-cv-11926-PBS Document 127-6 Filed 09/30/20 Page 25 of 25
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have no obligation to inform any investor about their historical, current, and future trading
activities. In addition, Lemelson Capital may benefit from any change in the valuation of any other
companies, securities, or commodities discussed in this document.
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Plaintiff,
v.
Civ. No. 1:18-cv-11926-PBS
GREGORY LEMELSON and LEMELSON CAPITAL
MANAGEMENT, LLC, JURY TRIAL DEMANDED
Relief Defendant.
AMENDED COMPLAINT
Plaintiff, the United States Securities and Exchange Commission (the “Commission”),
alleges the following against Defendants Gregory Lemelson (“Lemelson”) and Lemelson Capital
Management, LLC, and Relief Defendant The Amvona Fund, LP, and hereby demands a trial by
jury:
SUMMARY OF ALLEGATIONS
1. Between May and October of 2014, Lemelson devised and carried out a
Pharmaceuticals, Inc. (“Ligand”) and then sought to manipulate the stock price to make a profit.
A short position is an investment technique whereby an investor seeks to profit when the price of
a stock falls. Lemelson publicly disseminated a series of false statements about Ligand to drive
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down the price of the stock, while engaging in a series of purchases and sales of Ligand stock
from a broker. The investor then sells the stock at its current market price (which the investor
hopes is overvalued and will soon drop). If the price of the stock goes down, the investor profits
from the “short sale” by purchasing the stock at the lower price, referred to as “covering” the
short sale, returning the borrowed stock to the broker, and keeping the difference between the
3. Beginning in May 2014 and continuing through October 2014, Lemelson took
short positions in Ligand stock through his hedge fund, The Amvona Fund, LP (“Amvona”). He
then orchestrated a public campaign attacking Ligand with the intent to convince the investing
public that Ligand’s stock was overvalued. As part of his campaign, Lemelson made a series of
false statements of material fact about Ligand that were intended to shake investor confidence in
the company, drive down the price of Ligand’s stock, and, consequently, increase the value of
4. Starting in June 2014 and continuing through August 2014, Lemelson authored
and published multiple “research reports” that contained false statements of material fact about
Ligand and that were intended to create a negative view of the company and its value and,
consequently, to drive down the price of the company’s stock. Further, between June and
October of 2014, Lemelson participated in live and written interviews in which he made
additional false statements of material fact about Ligand which also were intended to create a
negative view of the company and its value and, consequently, to drive down the price of the
company’s stock.
2
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5. Each of Lemelson’s false statements was intended to drive down the price of
Ligand’s stock. For example, in a June 2014 report, Lemelson stated that Ligand’s flagship drug
product, and main source of licensing revenue, was imminently “going away.” To bolster and
lend credence to his report, Lemelson, in a widely available radio interview, falsely stated that a
Ligand representative agreed with his analysis. Lemelson also falsely claimed that Ligand
engaged in a sham licensing transaction with another pharmaceutical company and had run up so
much debt that the company was insolvent. None of these statements was true, none had a
reasonable basis in fact, and each concerned significant aspects of Ligand’s financial condition,
business dealings, and the viability of its products that reasonable investors would consider
important in evaluating Ligand’s prospects. Lemelson made each of these false statements
intentionally or recklessly for the purpose of driving down Ligand’s stock price.
6. Between June and October 2014, Lemelson publicly and widely disseminated
false statements about Ligand in press releases, on Amvona’s blog, through social media, in
various other media outlets, and also in appearances on radio shows. In doing so, Lemelson
intended to create a negative view of the company and its value and, consequently, to drive down
material fact about Ligand, Lemelson and Lemelson Capital Management, LLC (“LCM”)
deceived investors and prospective investors in The Amvona Fund by making and disseminating
false statements about Ligand as part of their efforts to obtain and retain Amvona Fund investors.
Defendants further misled investors and potential investors by not disclosing that The Amvona
Fund’s positive returns from its short position in Ligand were based on Defendants’ stock price
manipulation.
3
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8. As Lemelson intended, the price of Ligand stock fell during his scheme to mislead
investors about its value. The day Lemelson began disseminating his false statements, June 16,
2014, Ligand’s opening share price was $67.26. By October 13, 2014, Ligand’s share price had
dropped by nearly $23—a decline of approximately 34 percent. Also by that time, Lemelson had
“covered” the vast majority of Amvona’s short position in Ligand generating approximately $1.3
million in illegal profits. Ligand’s stock price subsequently recovered, and today, Ligand stock
9. By engaging in this conduct, Lemelson and LCM violated Section 10(b) of the
Securities Exchange Act of 1934 (“Exchange Act”) [15 U.S.C. § 78j(b)] and Rules 10b-5(a), (b),
and (c) thereunder [17 C.F.R. § 240.10b-5(a)-(c)], and both Lemelson and LCM violated Section
206(4) of the Investment Advisers Act of 1940 (“Advisers Act”) [15 U.S.C. § 80b-6(4)] and Rule
10. The Commission seeks injunctive relief, disgorgement of ill-gotten gains together
11. The Commission brings this action pursuant to the enforcement authority
conferred upon it by Section 21(d) of the Exchange Act [15 U.S.C. § 78u(d)] and Section 209(d)
of the Advisers Act [15 U.S.C. § 80b-9(d)]. The Commission seeks the imposition of a civil
penalty pursuant to Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section
12. This Court has jurisdiction over this action pursuant to Sections 21(d), 21(e), and
27 of the Exchange Act [15 U.S.C. §§ 78u(d), 78u(e), and 78aa], and Sections 209(d), 209(e) and
214 of the Advisers Act [15 U.S.C. §§ 80b-9(d), 80b-9(e), 80b-14], and 28 U.S.C. § 1331.
4
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21(d)-(e) and 27 of the Exchange Act [15 U.S.C. §§ 78u(d)-(e) and 78aa], and Sections 209(d)
and 214 of the Advisers Act [15 U.S.C. §§ 80b-9(d) , 80b-14], because a substantial part of the
acts constituting the alleged violations occurred in the District of Massachusetts, Lemelson lived
and worked in Massachusetts during the relevant time period, and the principal place of business
14. In connection with the conduct alleged in this Complaint, Lemelson directly or
regulatory requirements, and resulted in substantial loss, or significant risk of substantial loss, to
other persons.
16. Unless enjoined, Lemelson will continue to engage in the securities law violations
alleged herein, or in similar conduct that would violate federal securities laws.
Investment Officer and portfolio manager of Lemelson Capital Management LLC, a private
investment firm he founded to manage The Amvona Fund, LP. At all relevant times, Lemelson
was an “investment adviser” within the meaning of Section 202(a)(11) of the Advisers Act [15
U.S.C. §80b-2(a)(11)]. Lemelson is LCM’s founder, Chief Investment Officer, and portfolio
manager. In those capacities, Lemelson controls LCM and makes all decisions on behalf of
LCM.
June 14, 2012, with its principal office in Marlborough, Massachusetts. LCM is an Exempt
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Reporting Adviser registered with the Commission and the Commonwealth of Massachusetts.
LCM is the investment manager and investment adviser to The Amvona Fund, LP. At all
relevant times, LCM was an “investment adviser” within the meaning of Section 202(a)(11) of
19. The Amvona Fund, LP is a Delaware company formed on July 24, 2012, with its
Rule 206(4)-8(b) promulgated under the Advisers Act [17 C.F.R. § 275.206(4)-8] and Sections
3(a) and 3(c)(1) of the Investment Company Act of 1940 [15 U.S.C. § 80a-3(a) and (c)(1)].
Lemelson is the General Partner of Amvona. Lemelson launched Amvona as a hedge fund in
September 2012, and began accepting limited partner investments shortly thereafter. On January
4, 2013, Lemelson formed The Amvona Fund Ltd. (“Amvona Limited”) in the British Virgin
Islands. Amvona Limited operates as a feeder fund into Amvona (Amvona Limited and Amvona
are hereinafter referred to together as “Amvona”). Lemelson is the Director of Amvona Limited.
Amvona advertises itself as a long-position fund, i.e., a fund that seeks to profit from
appreciation in the price of securities it holds. Amvona has approximately $15 million of assets
under management, more than half of which belong to Lemelson and his family.
RELATED ENTITIES
involved in the development and licensing of medicines and technologies. Ligand’s common
stock is registered with the Commission under Section 12(b) of the Exchange Act and trades on
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company focused on developing treatments for metabolic and endocrine disorders. Viking’s
common stock is registered with the Commission under Section 12(b) of the Exchange Act and
trades on NASDAQ under the symbol “VKTX.” Through a Master License Agreement between
Ligand and Viking dated May 2014, Ligand became a 49.8% owner of Viking common stock.
FACTS
22. On May 22, 2014, Lemelson and LCM took an initial short position in Ligand of
579 shares on behalf of Amvona. Shortly thereafter, Lemelson began publicly disseminating
part of a fraudulent scheme to drive down Ligand’s share price and profit from his short position.
23. Between June 16 and August 22, 2014, Lemelson published a total of five reports
that discussed Ligand. Lemelson was the sole author and solely responsible for the content of
each report. All of Lemelson’s reports about Ligand were negative and took a dim view of the
company’s value and prospects. Certain of the reports also contained false and misleading
statements of material fact, as detailed in Part B below. Lemelson used these false and
misleading statements to bolster and lend credence to the overall attack levied against Ligand
24. Lemelson published the first of his negative reports about Ligand on June 16,
2014, titled “Ligand Pharmaceuticals (NASDAQ: LGND)” (the “June 16th Report”). As
detailed below, Lemelson stated, without a reasonable basis in fact, that Ligand’s primary source
of licensing revenue, the drug Promacta, was on the brink of obsolescence. Lemelson then
doubled down on this misstatement by falsely claiming in a June 19 interview that a Ligand
representative stated the company knew Promacta was “going away.” Lemelson thus concluded
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that “Ligand’s fair value is roughly $0 per share, or 100 percent below the current stock price.”
By this time, Lemelson had increased his short position in Ligand by borrowing and selling short
68,528 shares for approximately $4.6 million. In the days following the June 16 report Ligand’s
25. Lemelson continued his efforts to drive Ligand’s stock price even lower. In his
next report, dated July 3, 2014 and titled “Ligand Pharmaceuticals (NASDAQ: LGND);
Appendix” (the “July 3rd Report”), Lemelson characterized a transaction between Ligand and
Viking as a sham by making false statements about Viking’s finances and operations. Lemelson
went on to state that “the intrinsic value of Ligand shares must be reaffirmed as $0 with
26. Lemelson’s next report, dated August 4, 2014 and titled “Update: Lemelson
Capital Further Increases Short Stake in Ligand Pharmaceuticals (NASDAQ: LGND) as LGND
EPS Plunges 76 percent in Q2 2014” (the “August 4th Report”), repeated his false statement
about Promacta becoming obsolete and concluded that “the intrinsic value of Ligand shares must
27. In another report dated August 14, 2014, titled “Lemelson Capital Says Ligand
Substantially Raises Specter of Bankruptcy” (the “August 14th Report”), Lemelson claimed that
28. Finally, on August 22, 2014, Lemelson issued a report titled “Ligand
response to mounting insolvency and bankruptcy risks” (the “August 22nd Report”), in which he
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made misleading statements about Ligand’s financial condition, as detailed below, and claimed
that “common shareholders could be wiped out almost entirely without notice.”
29. Lemelson published his Ligand reports under the heading of LCM; posted them
on Amvona’s website; distributed them to various press sources – among them, PR Newswire,
Globe Newswire, Seeking Alpha, Benzinga, Street Insider, Value Walk, and USA Today – the
day they were published; and posted links to the reports on various social media accounts under
his control. The published press releases contained abbreviated summaries of the report and
30. Between June and October 2014, Lemelson also conducted various audio and
written interviews in which he stated that Ligand’s stock had no intrinsic value and provided
online financial media outlet, including appearing on Benzinga’s “Premarket Prep” show, which
provides investors with information prior to market open. Lemelson discussed Ligand in at least
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31. The purpose of Lemelson’s reports and interviews was to shake investor
confidence in Ligand and drive down Ligand’s share price. For example, in a solicitation to a
prospective Amvona investor, Lemelson touted the June 19th Interview and asserted that
“[s]hares of Ligand dropped ~2% during the interview.” Similarly, a major financial news
organization noted that Ligand’s stock price “fell more than 7 percent” after Lemelson published
his report claiming that demand for Promacta was rapidly declining.
32. Lemelson took affirmative steps to suppress commentary that highlighted his bias,
his lack of familiarity with the pharmaceutical industry, and his motivation to drive down the
price of Ligand stock. For example, Lemelson successfully petitioned Seeking Alpha to remove
33. Lemelson expanded Amvona’s short position in Ligand stock between May 22
and August 4, 2014, to 65,736 shares. He covered a significant portion of this position in August
2014, after Ligand’s share price dropped from $68.72 on June 16, 2014, to $51.75 on August 22,
2014, in the wake of Lemelson’s negative reports and interviews. Lemelson covered the bulk of
Amvona’s remaining short position in October 2014. In total, Lemelson sold short (and bought
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34. Amvona profited by approximately $1.3 million from this trading, and, as a part
owner of Amvona, Lemelson personally profited from his fraudulent trading activity.
35. Lemelson presented his negative reports on Ligand as a purported exposé on the
company’s inner workings, and claimed that his statements about Ligand were based on
extensive research and discussions with the company’s representatives and with medical experts.
In his reports and other public statements, Lemelson intentionally or recklessly made the
1) Lemelson Falsely States that Ligand’s Flagship Product was “Going Away.”
36. The central thesis of Lemelson’s June 16th Report was that Promacta, Ligand’s
flagship drug and primary source of revenue, was facing competitive pressure from a new
competing drug, Sovaldi, which would soon render Promacta obsolete. Lemelson subsequently
sought to lend credence to his thesis by falsely stating that a Ligand representative agreed with
Benzinga’s Pre-Market Prep show on June 19, 2014. During the June 19th Interview, Lemelson
made the following false statement of material fact: “I had discussions with [Ligand]
management just yesterday – excuse me, their [Ligand’s] IR [investor relations] firm. And they
38. Lemelson’s statement referenced a conversation he had on June 18, 2014, with a
Representative, however, never made any such statement. The IR representative notified
Lemelson of that fact via email after hearing Lemelson’s Benzinga interview. Lemelson never
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responded to the email. Nor did Lemelson correct or withdraw his false statement, or disclose
that the IR Representative denied having made the statement Lemelson attributed to him.
39. Lemelson made this false statement of material fact to support his argument that
one of Ligand’s main revenue sources—royalties from licensing Promacta—was imperiled and
40. Lemelson also attempted to bolster his false representation that Promacta was on
the brink of obsolescence by misleading the readers of his reports about other “evidence” he had
about Promacta. The June 16 Report cites information provided by “an Associate Clinical
Professor of Medicine and Surgery at one of the largest transplant Hepatology departments at a
major U.S. university hospital and also with the Chief of abdominal surgery and transplantation
at a major European university hospital.” This statement was itself misleading because: a)
Lemelson did not disclose that the European hospital doctor was actually Amvona’s largest
investor (and thus had a significant financial interest in making Ligand’s stock price fall), and b)
Lemelson never spoke with the U.S. hospital doctor, relying only on a report from his largest
41. Further, none of the information Lemelson identified as the source of his
statement about Promacta suggested that Sovaldi would render Promacta obsolete. Specifically,
Lemelson cited two articles in the June 16th Report as “references to the obsolete nature of
[Hepatitis C] supportive care treatments such as Promacta,” despite the fact that neither article
discussed Promacta, and neither article could be fairly construed as implying or suggesting that
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42. In sum, Lemelson’s false statements about Promacta were falsely attributed to
Ligand and had no other reasonable basis in fact. He either intentionally lied about Promacta’s
43. Lemelson’s false statements about Promacta were material. Each concerned the
viability of one of Ligand’s main sources of revenue. These material falsehoods supported
Lemelson’s misrepresentations that Ligand’s revenue streams were in peril, and were thus
44. Lemelson published another report about Ligand on July 3, 2014. In that report,
in addition to repeating his claims about Promacta, Lemelson also took aim at Ligand’s business
relationship with Viking. Lemelson stated that “Ligand appears to be indirectly creating a shell
company through Viking to generate paper profits to stuff its own balance sheet.” He further
stated that Ligand had “engaged in a ‘creative transaction’ with an affiliate shell company called
Viking Therapeutics” to the detriment of Ligand shareholders. To bolster and lend credence to
these accusations, Lemelson made material misstatements of fact regarding Ligand’s licensing
agreement with Viking and Viking’s Form S-1 registration statement (the form the SEC requires
45. Viking was not a “shell.” It was in the business of developing treatments for
certain kinds of illnesses. Ligand had five drugs that it licensed to Viking to develop. Ligand
had also invested in Viking and bought just under half of the company before Lemelson started
trying to drive Ligand's stock price down. In short, Viking was working on developing certain of
46. In the July 3rd Report, Lemelson falsely stated that, as of the filing of Viking’s
July 1, 2014 Form S-1 registration statement, Viking had “yet to consult with [its auditors] on
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any material issues” and that the “financial statements provided in the S1 accordingly are
unaudited.” Lemelson also falsely stated in the same report that “Viking does not intend to
conduct any preclinical studies or trials.” None of these statements were true, and each was
made to support Lemelson’s false claim that Viking was “an affiliate shell company” that Ligand
used to “create almost a veritable pyramid scheme of shell companies” that was “guaranteed to
lose money.”
47. Lemelson’s statements about auditors and financial statements were false and
contradicted by Viking’s July 1, 2014 Form S-1, which Lemelson relied upon when writing his
July 3 report. The Form S-1 contains a letter from Viking’s new auditors stating that they have
“audited the balance sheets of Viking . . . as of December 31, 2012, and 2013.”
48. Further, the May 21, 2014 Master License Agreement between Ligand and
Viking, which was attached to the Viking Form S-1, stated that “Viking is engaged in the
Through the Master License Agreement, Viking obtained licenses to develop drugs, and leased
space from Ligand to conduct the necessary research and development activities, which include
preclinical studies and trials. Lemelson’s statement that “Viking does not intend to conduct any
preclinical studies or trials” is thus contradicted by the very document Lemelson supposedly
relied upon.
49. In short, each of Lemelson’s false statements about Viking is contradicted by the
source Lemelson supposedly relied upon. Lemelson therefore either intentionally lied about, or
50. Lemelson’s falsehoods about Viking were material. Each concerned a significant
financial transaction and sought to both cast doubt on the stated benefits of the transaction to
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Ligand and to allege misconduct by Ligand management. These material falsehoods supported
Lemelson’s false claim that the Ligand-Viking business relationship was a sham or fraud
designed to artificially inflate Ligand’s profits, and were thus central to his scheme to drive down
51. In his August 14 Report, titled “Lemelson Capital Says Ligand Pharmaceuticals’
(NASDAQ: LGND) $225 Debt Issuance Solidifies Company’s Insolvency, Substantially Raises
Specter of Bankruptcy,” Lemelson wrote that Ligand’s “announcement that it would assume
$225 million in convertible debt . . . further deepens the already significant concerns about
Ligand’s imminent insolvency and the company’s substantial risk of bankruptcy.” In support of
this statement, Lemelson wrote that, as a result of the August 2014 debt issuance, “the
company’s liabilities will again far exceed its assets and the company will technically be
insolvent once more” and that, even before the new debt issuance, “the company’s liabilities
exceeded tangible assets, meaning the company was insolvent.” These statements were
including Ligand’s intellectual property and goodwill – in claiming that Ligand was insolvent.
In fact, in its quarterly financial reports on Forms 10-Q both before and after Ligand’s August
Institutional holders wasting no time dumping stock in response to mounting insolvency and
bankruptcy risks,” Lemelson again painted a misleading picture of Ligand’s financial health. He
wrote that Ligand “issued $245 million in new debt against the company’s [Ligand’s] tangible
equity of just $21,000, giving rise to a debt to tangible equity ratio of 11,667-to-1 (that is to say,
$11,667 dollars (sic) in debt for every $1 dollar (sic) in tangible common shareholder equity)”
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and that “shareholders have only the protection of $21,000 in tangible equity to shield them from
$245 million in debt.” This statement was misleading for the following reasons. First, this
statement ignores the cash proceeds of the debt issuance – i.e., while Ligand took on debt, it also
received cash, tens of millions of which remained at Ligand’s disposal as of the end of the third
quarter of 2014. Moreover, Lemelson’s statement that Ligand’s shareholders “have only the
protection of $21,000 in tangible equity to shield them from $245 million in debt” compares
apples to oranges. Shareholder equity is not “protection from debt”; it is a balance sheet figure
that represents the difference between assets and liabilities. Assets – including cash – “protect”
shareholders from debt. Yet, without explanation, Lemelson cited a “debt to tangible equity”
ratio that discarded the value of Ligand’s intangible assets, such as intellectual property – the
intellectual property rights to its drugs. Lemelson then compounded the misleading nature of his
statement by comparing “tangible equity” as of June 30, 2014 – a figure that has no bearing on
“protection from debt” – to the full amount of the August 2014 debt offering ($245 million).
Lemelson thus compared an apple (“tangible equity,” which omitted existing intangible assets) to
an orange (the full amount of the new debt, ignoring the cash proceeds of the issuance) at two
different points in time to concoct a ratio that looks really bad (11,667 dollars of debt for every
dollar of shareholder equity) but has no bearing on the actual financial wherewithal of the
Company.
53. Second, and perhaps worse, Lemelson used his apples-to-oranges comparison to
suggest that Ligand was insolvent. It was misleading to suggest that a debt-to-tangible-equity
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54. Lemelson’s misleading statements were material, as each went to the heart of
Ligand’s overall financial wherewithal and supported Lemelson’s argument that Ligand’s stock
was worthless.
55. Both LCM and Lemelson, intentionally or recklessly, and by failing to exercise
reasonable care, disseminated the material false statements of fact detailed above to LCM’s
investors and prospective investors. By doing so, and by omitting to disclose material
information, they caused disclosures by Lemelson and LCM about Amvona’s investment
56. Lemelson and LCM sent Lemelson’s reports and links to his interviews, which
contained multiple misstatements of material fact as detailed above, to current and prospective
Amvona investors, including in emails dated June 16, June 19 (boasting that Ligand shares
dropped two percent during his interview), July 2, July 3, and July 18, 2014. He also touted his
results in driving down Ligand’s stock price in communications to investors and prospective
investors, including in an email dated July 18, 2014; letters to Amvona Fund partners dated July
17, 2014 (claiming that Lemelson’s research report and appendix on Ligand “have begun to be
proven correct”) and October 9, 2014 (citing the decline in Ligand’s stock price); an investor
presentation dated September 4, 2014 (falsely noting that Lemelson Capital had been credited
with the drop in Ligand’s market capitalization by certain media outlets); and in multiple posts to
his Amvona website. In addition, in using Lemelson’s reports to solicit potential investors to
entrust their funds to him, Lemelson and LCM did not disclose that the profitability of their
through false statements, rather than his ability to identify a company whose stock would
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decrease on its own based on its inherent lack of value. This omission also made other
disclosures about Amvona’s value-focused investing strategy materially false and misleading.
scheme through a series of fraudulent acts, statements, and material omissions designed to drive
Ligand’s stock price down and profit from a short position in Ligand stock.
59. By engaging in the conduct above, these Defendants, directly or indirectly, acting
commerce or of the mails, in connection with the purchase or sale of securities: (a) have
employed or are employing devices, schemes, or artifices to defraud; (b) have made or are
making untrue statements of material fact or have omitted or are omitting to state material facts
necessary to make the statements made, in light of the circumstances under which they were
made, not misleading; and (c) have engaged or are engaging in acts, practices, or courses of
business which operate as a fraud or deceit upon certain persons, or, in the alternative, aided and
60. The conduct of these Defendants involved fraud, deceit, manipulation, and/or
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61. By engaging in the foregoing conduct, Lemelson violated, and unless enjoined
will continue to violate, Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5
above.
63. Section 206(4) of the Advisers Act prohibits an investment adviser from, directly
or indirectly, engaging in any act, practice, or course of business that is fraudulent, deceptive, or
making any untrue statement of a material fact or omitting to state a material fact necessary to
make the statements made, in the light of the circumstances under which they were made, not
64. By the actions described above, Lemelson and LCM, by use of the mails or any
knowingly, recklessly, or negligently made untrue statements of material fact and omissions that
65. At all relevant times, Lemelson and LCM were “investment advisers” within the
meaning of Section 202(a)(11) of the Advisers Act [15 U.S.C. §80b-2(a)(11)]. Lemelson was an
“investment adviser” by virtue of his ownership, management and control of LCM, and his
provision of investment advice to Amvona. Both Lemelson and LCM were in the business of
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66. At all relevant times, Amvona was a “pooled investment vehicle” within the
meaning of Rule 206(4)-8(b) promulgated under the Advisers Act [17 C.F.R. § 275.206(4)-8]
and Sections 3(a) and 3(c)(1) of the Investment Company Act of 1940 [15 U.S.C. § 80a-3(a) and
(c)(1)].
67. By engaging in the conduct described above, Lemelson and LCM violated, and
unless enjoined will continue to violate, Section 206(4) of the Advisers Act [15 U.S.C. § 80b-
69. Section 21(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)] states: “In any
action or proceeding brought or instituted by the Commission under any provision of the
securities laws, the Commission may seek, and any Federal court may grant, any equitable relief
70. Relief Defendant Amvona has received investor funds derived from the unlawful
acts or practices of the Defendants under circumstances dictating that, in equity and good
Defendants’ wrongful acts and there is no reason in equity why Relief Defendant should be
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72. As a result, Relief Defendant Amvona is liable for unjust enrichment and should
be required to return its ill-gotten gains, in an amount to be determined by the Court. The Court
should also impose a constructive trust on property in the possession of the Relief Defendant that
WHEREFORE, the Commission respectfully request that the Court enter Final Judgment:
I.
Permanently restraining and enjoining Defendants, and their agents, servants, employees,
attorneys and those persons in active concert or participation with them, who receive actual
notice of the order by personal service or otherwise, from violating Section 10(b) of the
Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5] and
Section 206(4) of the Advisers Act [15 U.S.C. § 80b-6(4)] and Rule 206(4)-8 thereunder
II.
Ordering Defendants and Relief Defendant to disgorge the proceeds their ill-gotten gains,
III.
Ordering Lemelson and LCM to pay appropriate civil monetary penalties under Section
21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section 209(e) of the Advisers Act
IV.
Retaining jurisdiction of this action in accordance with the principles of equity and the
Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders and
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decrees that may be entered or to entertain any suitable application of motion for additional relief
V.
Granting such other and further relief as this Court may determine to be just and
necessary.
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-participants on March 21, 2019.
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Plaintiff,
v.
Defendants,
and
Relief Defendant.
The Commission alleges the Defendants violated the securities laws in three ways: First,
Defendants made four false factual statements about the viability of Ligand’s flagship drug, the
nature of Ligand’s relationship with Viking Therapeutics, Inc., and Ligand’s financial condition.
Second, through these false statements and other conduct, Defendants engaged in a fraudulent
“short and distort” scheme to profit from Defendants’ short position by manipulating the market
price of Ligand shares. Third, Defendants deceived investors and prospective investors by
making and disseminating false statements about The Amvona Fund’s Ligand investment and by
failing to disclose that the fund’s positive returns from that position resulted from Defendants’
stock price manipulation The first two of these comprise the Commission’s First Claim,
violations of Exchange Act Section 10(b) and Rule 10b-5. The third is the Commission’s
Second Claim, violation of Advisers Act Section 206(4) and Rule 206(4)-8.
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Defendants raise four grounds for dismissal: (1) that three of four challenged false
statements of material fact were actually true; (2) that certain of Defendants’ statements included
in the Complaint, most of which the Commission does not allege are independently actionable,
are statements of “opinion”; (3) that the challenged false statements of material fact are not
material; and (4) that the Commission’s claim under Rule 206(4)-8 of the Investment Advisers
Act fails. Each of these arguments prematurely raises factual disputes that are not grounds for
ARGUMENT
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court takes the allegations in the complaint as true, making all reasonable
inferences in favor of the plaintiff. Hill v. Gozani, 638 F.3d 40, 55 (1st Cir. 2011). Dismissal for
failure to state a claim is only appropriate when the pleadings fail to set forth factual allegations
respecting each element necessary to sustain recovery under a legal theory. Gagliardi v.
The Commission alleges that Defendants made four specific material misrepresentations
in the course of their campaign to drive down Ligand’s share price and profit from their short
position. To state a claim under Exchange Act Section 10(b) and Rule 10b-5(b), the
Commission must allege that each of the four challenged statements of fact was false or
misleading, material, and made with scienter. 15 U.S.C. § 78j(b); 17 CFR § 240.10b–5(b); see
SEC. v. Ficken, 546 F.3d 45, 47 (1st Cir. 2008). The Commission has done so here: 1
1
Defendants’ objection that this case is “different” from prior short-and-distort cases (Dkt. No. 11 (“Br.”) at 1) is no
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False Statement No. 1 – Promacta. In a June 19, 2014 interview, Lemelson falsely
stated: “I had discussions with [Ligand] management just yesterday – excuse me, their
[Ligand’s] IR [investor relations] firm. And they basically agreed. They said, ‘Look, we
understand Promacta’s going away.’” (Compl. ¶ 37.) This statement was false – Ligand’s IR
representative never said any such thing – and material, as it concerned Ligand’s main source of
False Statements Nos. 2 & 3 – Viking. In a July 3, 2014 report, Defendants falsely
stated that Viking had “yet to consult with [its auditors] on any material issues” and that the
“financial statements provided in the S1 accordingly are unaudited.” (Compl. ¶ 46.) In the same
report, Defendants falsely stated that “Viking does not intend to conduct any preclinical studies
or trials.” (Compl. ¶ 46.) These statements were false – Viking’s public filings plainly
contradict each statement – and material, as each concerned a significant financial transaction
and sought both to cast doubt on the stated benefits of the transaction and to allege misconduct
False Statement No. 4 – Ligand’s Financial Condition. In an August 22, 2014 report,
Defendants misleadingly stated that Ligand “issued 245 million in new debt, against tangible
equity of just $21,000, giving rise to a debt to tangible equity ratio of 11,667 to 1 (that is $11,667
dollars [sic] in debt for every $1 in tangible common shareholder equity)” and that “shareholders
have only the protection of $21,000 in tangible equity to shield them from $245 million in debt.”
(Compl. ¶ 51.) In making this statement, Defendants omitted any reference to, and failed to
account for, the proceeds of the loan, which makes the statement misleading. (Compl. ¶ 52.)
ground for dismissal when, as here, the Commission has sufficiently alleged actionable misstatements that were part
of a scheme to manipulate Ligand’s stock price.
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And, the statement was material, as it went to the heart of Ligand’s overall financial viability and
supported Defendants’ argument that Ligand’s stock was worthless. (Compl. ¶¶ 52-53.)
The Commission does not allege that Defendants’ other statements in the Complaint
(which include all the statements described at pages 12-14 of Defendants’ brief) are
backdrop for Defendants’ false statements, evidence Defendants’ scheme and scienter, and
B. Defendants Arguments That Their False Statements Were In Fact True Are Not
Grounds For Dismissal.
Defendants first argue that three of the four false statements the Commission challenges
were actually true. (Br. at 5-11.) They are wrong, but the merits of the Commission’s
604 F.3d 1, 12 (1st Cir. 2011) (stating “court may not disregard properly pled factual allegations”
even when judge thinks proof of these facts is improbable). As set forth above, the Complaint
alleges in detail that each of the challenged statements is false or misleading and precisely how it
is false or misleading. For the purposes of a motion to dismiss, that is the end of the story.
Defendants’ disagreement with the Commission’s allegations raises, at best, factual disputes that
must be resolved at a later stage of this proceeding. Grajales v. P.R. Ports Auth., 682 F.3d 40,
44 (1st Cir. 2012) (on motion to dismiss, court must accept truth of all well-pleaded facts and
2
The Commission reserves the right to amend its Complaint to add additional claims stemming from Defendants’
other statements, many of which Defendants say are not actionable as “opinions.” (E.g., Br. at 12-14.) The
Supreme Court’s Omnicare decision (which Defendants do not mention but is discussed in Part C.3 below)
addressed liability for statements of opinion under the federal securities laws. Under Omnicare, even Defendants’
purported opinions may give rise to liability if the evidence shows that Defendants (i) did not believe the opinion
statement when it was made or (ii) misrepresented or omitted material facts that would make the opinion statement
misleading.
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draw all reasonable inferences for plaintiff). Defendants’ attacks on the truth of the Complaint’s
allegations are premature and do not constitute grounds for dismissal. What is more,
In the spirit of “the best defense is a good offense,” Defendants attack supposed
“erroneous factual assertions” and “inflammatory language” in the Complaint. (Br. at 5-6.) For
example, Defendants claim that the Commission misquoted Lemelson. (Br. at 6.) Not so. The
purported “misquote,” in Complaint Paragraph 28, alleges that Lemelson said that Ligand’s
“common shareholders could be wiped out almost entirely without notice.” Defendants deny
that Lemelson said this and denounce the Commission for “mak[ing] a mockery of Fed. R. Civ.
P. 9(b)’s particularity requirement” by “invent[ing] Lemelson’s words to boost its case, rather
than simply rely[ing] on what he actually said.” (Br. at 6 (emphasis in original).) In fact, the
Commission did quote Lemelson’s exact words – the August 22, 2014 report includes the very
language quoted in Paragraph 28 of the Complaint. 3 (See Declaration of Alfred A. Day (“Day
Decl.”) Ex. 1 (August 22, 2014 report) at 5) (“If the call feature above is exercised common
shareholders could be wiped out almost entirely without notice.” (emphasis added)).) In any
event, the Commission does not allege that this statement is independently actionable as a
Defendants also take issue with the Commission’s paraphrasing of Defendants’ reports.
(Br. at 5.) None of the snippets Defendants complain about purport to be direct quotes; they are
3
Defendants attached what appears to be a different version of this report to their motion (see Brooks Decl. Ex. 5),
and contains slightly different language (“common shareholders would be wiped out immediately”). The version
attached hereto, which the Commission quoted in its Complaint, was marked as Exhibit 21 during Lemelson’s
testimony before the staff of the Commission.
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characterized the Ligand-Viking transaction as “a common game of 3-card Monte, played on any
street corner – shills included” (Brooks Decl. Ex. 2 at 9), which the Commission distilled down
to, simply, a “sham” (e.g., Compl. ¶ 5). In any event, the Commission does not allege that the
fact. Again, Defendants’ accusations have no bearing on the legal sufficiency of the Complaint.
Defendants also falsely stated that a Ligand representative said Ligand’s flagship drug,
Promacta, was “going away.” (Compl. ¶¶ 36-39, 43.) While Defendants spend a significant
amount of their brief focused on Defendants’ other misrepresentations, they do not argue that
They do argue about the other misleading statements Defendants made in support of their
argument that Promacta was “going away”: (i) a reference to conversations with two doctors
(without disclosing that one was actually Ligand’s largest investor) about Promacta, and (ii) the
citation of two medical journal articles that do not discuss Promacta. (Br. at 8-10 & n.10 (citing
Compl. ¶¶ 40-41).) Despite what they wrote in their June 16, 2014 report (“The purpose and
applicability of Promacta was discussed with” the two doctors (Brooks Decl. Ex. 1 at 6)),
Defendants now claim that the sources they referenced do not even concern Promacta. (Br. at 9
(doctors referenced in June 16 report made “no comment on Promacta”).) Similarly, about the
two medical studies cited in that report, Defendants now maintain that “Lemelson never claimed
the articles discussed Promacta or its prospects” (Br. at 9 n.10), even though Lemelson’s report
states: “Further reference on the obsolete nature of supportive care treatments such as
Promacta … are also available in the following publications[.]” (Brooks Decl. Ex. 1 at 7
(emphasis added).) Regardless, even if Defendants arguments raise a genuine factual dispute
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about these allegations, it could not be resolved at this stage of the litigation.
In the July 3, 2014 report, Defendants wrote that “Viking does not intend to conduct any
preclinical studies or trials[.]” (Compl. ¶ 46; Brooks Decl. Ex. 2 at 7.) They defend this
statement by noting that Viking expected to contract with third parties to perform certain tasks
related to future preclinical studies and clinical trials. (Br. at 7 (citing Brooks Decl. Ex. 6 at
17).) 4 But Viking also disclosed that, notwithstanding contractual arrangements with “[Contract
would “maintain responsibility” for their activities. (Brooks Decl. Ex. 6 at 21.) 5 In any event,
Defendants merely raise a factual dispute that cannot be resolved on a motion to dismiss.
In a similar vein, Defendants argue that their statement that the financial statements
referenced in Viking’s Form S-1 were audited was true, on the ground that some of Viking’s
financial statements were unaudited. (Br. at 10-11.) This argument defies common sense –
Defendants said that Viking had never been audited, when it in fact had. 6 The statement was
false, as the Commission alleges, and Defendants’ premature factual argument should be
rejected.
Defendants stated that Ligand had a debt-to-tangible equity ratio of “11,667 to 1” and
4
Defendants cite to page 17 of Viking’s Form S-1 refers to the page number in the original document, which
appears at page 21 of the PDF.
5
This reference is to page 21 of the PDF, which is page 17 of Viking’s Form S-1.
6
Defendants’ position is contrary to Lemelson’s admission, during sworn testimony, that his statement about the
Viking financial statements was contradicted by the public filing, and that he would not have included the statement
in his report if he had read the auditor’s letter attached to Viking’s Form S-1. (Day Decl. Ex. 2 (excerpts of
Lemelson testimony) at 728:20 – 729:16.)
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that Ligand’s shareholders had “only $21,000 in tangible equity to shield them from $245
million in debt.” (Compl. ¶ 51.) The Commission alleges that this statement was misleading
because Defendants failed to account for the proceeds of a $245 million loan in their analysis. 7
(Compl. ¶ 52.) Defendants disagree, and contend that the Commission’s allegation is somehow
contrary to basic accounting principles. Defendants are mistaken, as the Commission will prove
For now, suffice it to say that (1) the way Defendants’ presented their “debt-to-tangible
equity ratio” and discussed the supposedly exposed position of Ligand’s shareholders was
misplaced as that source contains no guidance on how to calculate the debt and equity parts of a
debt-to-equity ratio, nor does it contemplate the debt-to-tangible equity ratio Defendants
presented, and (3) in contending that their statement was not misleading, they ignore the elephant
in the room (or perhaps at the bank) – the hundreds of millions of dollars of loan proceeds.
that they claimed put Ligand “deep within the context of insolvency” and left Ligand
shareholders with only $21,000 as a “shield” from $245 million in debt. (Day Decl. Ex. 1 at 5.)
Yet they ignored that Ligand now had $245 million to spend. 8 The shareholders thus had vastly
more than $21,000 as a “shield” against debt, and it was misleading to suggest otherwise, much
less to suggest that the company was “deep in the context of insolvency.”
In any event, the parties’ dispute over whether Defendants’ statements about Ligand’s
7
Defendants’ position is contrary to prior correspondence with Commission staff, in which Defendants
characterized their failure to account for the loan proceeds as an “obvious error.” (Day Decl. Ex. 2 (excerpt of June
30, 2017 Wells submission) at 26.)
8
Defendants “debt-to-tangible equity” ratio also excluded Ligand’s intellectual property and other intangible assets,
such as goodwill.
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financial condition were misleading is yet another factual dispute that cannot be resolved on a
motion to dismiss.
Defendants next argue that certain of Defendants’ statements included in the Complaint
expressed opinions, not facts, and that the SEC’s claims fail because the Commission does not
allege that Defendants’ subjectively disbelieved the opinions. (Br. at 12.) This argument misses
the mark for two reasons: first, Defendants attack statements that the Commission does not
allege are independently actionable and, second, Defendants misstate the law regarding when
statements of opinion may give rise to liability under the federal securities laws.
Laborers Dist. Council Constr. Indus. Pension Fund, 135 S. Ct. 1318, 1325 (2015) (quoting
Webster’s New International Dictionary 782 (1927)). If a statement is obviously one of fact, a
court may so rule as a matter of law. Flotech, Inc. v. E. I. Du Pont de Nemours & Co., 814 F.2d
775, 778 (1st Cir. 1987). If, on the other hand, reasonable minds could differ about whether a
The false statements alleged here are plainly statements of fact, as each concerns an
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• In a July 3, 2014 report, Defendants stated that Viking had “yet to consult
with [its auditors] on any material issues” and that the “financial statements
had either consulted with its auditors, or it had not, and its financial
• In the same July 3 report, Defendants falsely stated that “Viking does not
“issued 245 million in new debt, against tangible equity of just $21,000,
and that “shareholders have only the protection of $21,000 in tangible equity
above, this statement ignores the proceeds of the loan, and misrepresents
Ligand’s financial condition at the time – i.e., either Ligand shareholders had
only the $21,000 in tangible equity, or, as the Commission alleges, they had
Each of these statements is alleged in the Complaint to be a false statement of fact. And, even if
reasonable minds could disagree about whether these are statements of fact or opinion, that
would be a matter for the jury, and not a basis for dismissal at the pleading stage.
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Rather than grappling with the false statements for which the Commission seeks to hold
them liable, Defendants focus on various statements that the Commission does not allege are
independently actionable. For example, the Commission is not suing Lemelson for saying that
Ligand was creating “a veritable pyramid scheme of shell companies.” (Br. at 13-14.) The
Complaint is clear that the challenged false statements of fact about Viking – that it had not
consulted auditors, had no audited financial statements, and did not intend to conduct clinical
trials – were made to provide a (false) factual underpinning for Defendants’ argument that
The other statements Defendants characterize as opinion are similarly included in the
Complaint for context, to evidence Defendants’ scheme and scienter, and to demonstrate that
Defendants’ misrepresentations were intended to support Defendants’ reports and other public
statements. (Br. at 12 (citing Compl. ¶¶ 36, 44, 46).) The Commission does not allege that any
of these statements by Defendants are independently actionable. Rather, each recounts a portion
of the reports that Defendants’ sought to prop up with the challenged false statements of fact.
For a statement of fact, the plaintiff need only plead that the statement itself is untrue or
lacked a reasonable basis (i.e., objective falsity), which the Commission has done here. Miller
Inv. Trust v. Morgan Stanley & Co., LLC, 308 F. Supp. 3d 411, 429 (D. Mass. 2018) (citing Fait
v. Regions Fin. Corp., 655 F.3d 105, 110 (2d Cir. 2011)). For opinions, on the other hand, a
plaintiff must plead one of three things: (1) that the statement falsely represented the speaker’s
belief at the time it was made (subjective falsity) and that it was untrue (objective falsity);
(2) that a statement of fact embedded within the opinion is untrue; or (3) that the speaker omitted
material facts that would make the statement not misleading to a reasonable investor. Id.
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(citing Omnicare, 135 S. Ct. at 1325-27, 1329-30); see Plumbers’ Union Local No. 12 Pension
Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 775 (1st Cir. 2011).
Defendants contend that the statements they characterize as opinions are not actionable
because “the [Commission] never alleges that Lemelson did not believe these opinions.” (Br.
at 12 (emphasis in original).) As an initial matter, the Commission has not alleged that the
statements in question are actionable. Defendants’ entire line of argument is thus a red herring.
But it is also wrong on the law. Pleading subjective falsity is only required in the absence of
allegations that a statement of opinion was rendered misleading because an embedded statement
of fact was untrue or there was a material omission. Miller Inv. Trust, 308 F. Supp. 3d at 429
(citing Omnicare, 135 S. Ct. at 1326 & n.2). Here, the Commission has alleged factual
misstatements. (See Part C.1, supra.) But even if any of the challenged factual misstatements
allegations would be sufficient under Omnicare because each would constitute either (i) a false
statement of fact embedded within the opinion or (ii) a material omission that would make the
opinion misleading.
misrepresentation or omission as ‘having significantly altered the total mix of information made
available.’” Basic, Inc. v. Levinson, 485 U.S. 224, 232 (1988). As Defendants acknowledge (Br.
at 16), the First Circuit has held that “[i]n most circumstances, disputes over the materiality of
allegedly false or misleading statements must be reserved for the trier of fact.” Shaw v. Digital
Equip. Corp., 82 F.3d 1194, 1217 (1st Cir. 1996) (citing Basic, 485 U.S. at 236); Swack v. Credit
Suisse First Boston, 383 F. Supp. 2d 223, 238 (D. Mass. 2004) (materiality is “a fact-specific
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question that is rarely an appropriate basis for dismissal”). At the motion to dismiss stage, a
court’s inquiry is limited to “whether the complaint presents a ‘plausible jury question of
materiality.’” In re Vertex Pharm. Inc., Sec. Litig., 357 F. Supp. 2d 343, 351 (D. Mass. 2005)
(Saris, J.) (quoting Baron v. Smith, 380 F.3d 49, 53 (1st Cir. 2004)).
The Commission has more than adequately pled a “plausible jury question” of materiality
for each of the challenged false statements, as set forth in Part A, supra. To briefly recap:
Ligand acknowledged that its main revenue source was about to dry
up?
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While these allegations are sufficient, there are more. The Commission alleges that
Ligand’s share price dropped 34% during the period Defendants were disseminating their false
statements. (Compl. ¶ 8.) One financial news organization reported that Ligand’s stock price
“fell more than 7 percent” after Defendants spread their falsehood about Promacta. (Compl.
¶ 31.) And, Lemelson himself boasted that Ligand’s stock price fell 2% during the June 19,
2014 interview in which he falsely stated that a Ligand representative agreed that “Promacta’s
going away.” (Compl. ¶ 31.) Indeed, Defendants choice to include these statements in their
reports about the value of Ligand’s stock demonstrates that they considered the subject matter of
Defendants’ materiality arguments are largely aimed at statements the Commission has
not alleged are actionable misrepresentations. For example, Defendants’ statement that “Ligand
is worth $0/share” (Br. at 17) is not among the false statements at issue in this case. Defendants’
arguments about “puffery” and “exaggeration” (Br. at 16-17) are therefore irrelevant.
Defendants mention in passing only two of the false statements that the Commission
alleges are actionable. They first contend that because some of Viking’s financial statements
were unaudited (Br. at 18), their demonstrably false statements about Viking were unimportant. 9
Obviously, it is very different to say that a company has never consulted an auditor and has no
audited financial statements for a given period, than to say the company has consulted an auditor
but some of its financial statements remain unaudited. In any event, Defendants put the merits
cart before the pleadings horse, and their argument should be rejected.
9
Defendants based this argument on Parnes v. Gateway 2000, Inc., 122 F.3d 539 (8th Cir. 1997). Parnes is
inapposite, as it involved an alleged earnings overstatement of only 2%, which the court found too small to be
material in the context of a high-risk, high-growth company. Contrast Shaw v. Digital Equipment Corp., 82 F.3d
1194, 1217 (1996). Here, in contrast, Defendants were not claiming some inconsequential variance in reported
revenue – they were, in effect, saying that an entire company was a sham.
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Defendants next invoke the “bespeaks caution doctrine” for their false statement that a
Ligand representative agreed that “Promacta’s going away.” (Br. at 18 (citing Parnes, 122 F.3d
at 548-49 (discussing “bespeaks caution” doctrine).) But the bespeaks caution doctrine only
projections, when accompanied by cautionary disclosures that adequately warn of the possibility
that actual results or events may turn out differently. Battle Constr. Co., Inc. v. InVivo
Therapeutics Holdings Corp., 101 F. Supp. 3d 135, 139 (D. Mass. 2015) (citing Shaw v. Digital
Equip. Corp., 82 F.3d 1194, 1213 (1st Cir. 1996)). When, as here, a false statement concerns an
existing fact (i.e., what a Ligand representative said about Promacta), the doctrine has no
application. In re No. Nine Visual Tech. Corp. Sec. Litig., 51 F. Supp. 2d 1, 19 (D. Mass. 1999)
E. That the Commission’s Advisers Act Claim Strikes the Defendants as Novel Is No
Ground for Dismissal.
The Commission has alleged that Defendants deceived investors and prospective
investors by making and disseminating false statements about Ligand as part of their efforts to
obtain and retain Amvona Fund investors, and by failing to disclose that The Amvona Fund’s
positive returns from its short position in Ligand were based on Defendants’ stock price
both The Amvona Fund’s investment strategy and about Lemelson’s abilities as a financial
adviser to be materially misleading. (Compl. ¶ 54.) The Commission alleges the specific
reports, interviews, emails, and client communications where these misrepresentations and
Defendants claim that Rule 206(4)-8 does not apply to statements like those Defendants
made, but only applies to statements about “the fund or the manager himself.” (Br. at 19-20.)
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They cite five (non-exclusive) examples of statements the Commission described in the Rule
Release for Rule 206(4)-8: (1) “the experience and credentials of the adviser (or its associated
persons)”; (2) “the risks associated with an investment in the pool”; (3) “the performance of the
pool or other funds advised by the adviser”; (4) “the valuation of the pool or investor accounts in
it”; and (5) “practices the adviser follows in the operation of its advisory business such as how
the adviser allocates investment opportunities.” 72 Fed. Reg. 44756, 44757 (Aug. 9, 2007).
They ignore that the Commission has alleged that Defendants’ misrepresentations and
fraudulent omissions relate to both the fund and the manager. Defendants’ misrepresentations
about Ligand fit squarely into the “risks associated with an investment” and “performance of the
pool” examples Defendants cite from the Rule Release, as they are statements about The
Amvona Fund and its $5 million short position in Ligand which was part of the pooled
investment. Similarly, statements and omissions concerning how The Amvona Fund actually
made its money (through fraud) are, by definition, statements about the fund (fitting the
“performance of the pool” example). Statements and omissions about Lemelson’s abilities as a
financial adviser (including his ability to pick stocks that will decline in price) are statements
about the manager (fitting the “experience and credentials” and “practices the adviser follows in
the operation of its advisory business” examples). In other words, the Commission alleges the
very types of misrepresentations and omissions the Defendants say Rule 206(4)-8 was intended
to cover.
But even if Defendants were correct that this case presented a new or unanticipated
application of Rule 206(4)-8, they do not explain why that would be legal grounds to dismiss the
claim (or even why it would be a problem at all). In citing the Rule Release, Defendants skip
over the Commission’s expressed intent at the beginning of the Release: “our intent is to
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prohibit all fraud on investors in pools managed by investment advisers.” 72 Fed. Reg. 44756,
44757 (Aug. 9, 2007) (emphasis added). The Commission also made clear that it intended the
Rule to extend to the limits of their Congressional authority: “In adopting rule 206(4)-8, we
intend to employ all of the broad authority that Congress provided us in section 206(4) and direct
Id. The Commission explained that the Rule was a “general antifraud rule[] capable of
flexibility.” Id. The Rule Release thus explicitly rejects the argument that the scope is limited in
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CONCLUSION
Defendants do not raise any adequate grounds to dismiss this action. For the reasons
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper
copies will be sent to those indicated as non-participants on November 8, 2018.
18
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From: Foehr, Matt <[email protected]>
To: Higgins, John L. <[email protected]>;Bruce Voss <[email protected]>
Sent: 6/17/2014 7:22:49 PM
Subject: RE: LGND / Lemelson
I looked at these with Erika this morning and will forward fine details in a moment (Erika
is pulling them up). In general, e-malings on Thursday and Friday of last week - Erika
called him back on Friday morning to schedule a time for this week for an introductory
call, but his assistant said he was busy and could not talk to schedule. The time was then
selected over e-mail between Erika and Lemelson.
-----Original Message-----
From: Higgins, John L.
Sent: Tuesday, June 17, 2014 4:12 PM
To: Bruce Voss; Foehr, Matt
Subject: RE: LGND / Lemelson
Bruce I have proposed a narrative for a call for you to have with lemelson. Specifically,
in my proposal, I do not think the first call should be jump into content or a rebuttal. I
would like to feel him out first for tone and approcah to the research and what the purpose
of a call would be if he is not going to update a report. To me, if we jump right into
rebuttal mode without knowing our countrparty, seems we are less prepared for any call we
could have on substance
And Matt - will you let us know more precisely how many times lemelson called for a
meeting/call and roughly when/dates. I want to get a sense for how hard he was trying to
make contact with us prior to the reprot coming.
I'd be happy to speak with Lemelson but whether it's me or management, the substance of the
call from our end should be pointing out the errors and biases in their report, and putting
forth the correct information. Please look at the Q&A I began drafting, with an eye on
answers and any facts you see in the report that are wrong and should be added to the Qs.
That said, a large part of Lemelson's thesis is built upon Promacta (HCV) and Captisol
(ingredient vs. drug, lumpy ordering), so perhaps a call that includes Matt and me makes
sense.
I could speak with Lemelson to feel out their questions, intent, asset base, size of short
position, etc. prior to a call with management, but that's an unnecessary interim step that
likely will get us little information. If I do a joint call with Matt I can start out with
those questions but I bet they'll be cagey with their answers.
Cancelling the call will make us look like we're hiding, and not the intended ''you're too
reckless to justify our time."
Bruce Voss, Managing Director, Principal Investor Relations: Results that Matter
This email and attachments, if any, may contain confidential and/or privileged information.
If you are not the intended recipient, please notify the sender immediately. Any
unauthorized copying, disclosure or distribution of the material in this email is strictly
forbidden.
-----Original Message-----
From: Higgins, John L. [mailto:[email protected]]
Sent: Tuesday, June 17, 2014 3:42 PM
To: Foehr, Matt; Bruce Voss
Subject: RE: LGND / Lemelson
3) have Bruce call in lieu Matt. The gist of the call would be a friendly dialogue to say
management would be happy to speak with Lemelson, however we disagree with most of the
report given things are misrepresented or factually out of date. And that we read the
disclaimer upfront that the report is written "as is", that they do not warrant accuracy
and they do not make updates to correct things.
So, (the message could go on) happy to have a call, but we want to know would we get out of
it (ie would the report be reissued with corrections and current information) and what
questions does lameleson have for us.
To me #3 seems the best option. Cancel could be toxic. Having the call could be a sandtrap
until we know a little more.
On the other hand, I am open to no call back at all. The rationale being this report is so
absurd, and a call might be a trap for him to say he talked to management and now sees some
value but its only say $15/share so still a big short. (the ale win the battle but lose the
war)
Bruce any thoughts now, otherwise I can call you about 8 am tomorrow to discuss.
thanks
john
Both: I was just looking at my meeting schedule for tomorrow and Thursday and noted that
Erika actually originally scheduled the Lamelson call for tomorrow (Wednesday) at 1:00 p.m.
PT (it was another call that was originally scheduled for Thursday with a known long-term
holder - both were booked earlier - unfortunate). We can of course huddle in advance of
John
Attached is a first, working draft doc11ment to begin the process with both. We can use this
with USA Today (Gary Strauss) should we choose to grant him an interview, or alternatively
the messages can be emailed to him as a company statement.
Ligand and LHA have exchanged numerous emails on this subject, and perhaps it's best to set
a time for later today to compare all we know and our thoughts on next steps. I'll make
myself available when everyone else is.
Bruce Voss, Managing Director, Principal <image00l.jpg> Investor Relations: Results that
Matter
This email and attachments, if any, may contain confidential and/or privileged information.
If you are not the intended recipient, please notify the sender immediately. Any
unauthorized copying, disclosure or distribution of the material in this email is strictly
forbidden.
December 3, 2019
Reported by:
Sheri L. Somers
CSR No. 9734
Job No. 10062968
Page 2
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MASSACHUSETTS
Page 3
APPEARANCES:
For Plaintiff:
U.S. SECURITIES AND EXCHANGE COMMISSION
BOSTON REGIONAL OFFICE
33 Arch Street, 24th Floor
Boston, Massachusetts 02110
617.573.8947
617.573.4590 fax
By: Marc Jones, Esq.
[email protected]
Alfred A. Day, Esq.
[email protected]
LIBBY HOOPES
399 Boylston Street
Boston, Massachusetts 02116
617.338.9300
617.338.9911 fax
By: Douglas S. Brooks, Esq.
[email protected]
Page 4
APPEARANCES (Continued):
The Videographer:
Ryan Asanas
Key Discovery
Also present:
Gregory Lemelson
Page 5
INDEX
WITNESS: BRUCE VOSS
PAGE
EXAMINATION BY MR. BROOKS 12
EXHIBITS
DEFENDANT'S PAGE
Exhibit 75 E-mail string, top e-mail to 39
various recipients from Bruce
Voss dated 6/16/2014, Bates Nos.
LCM_SEC0000220 to '221
Exhibit 76 E-mail to Bruce Voss from John 52
Higgins dated 6/17/2014, Bates
Nos. LCM_SEC0000826
Exhibit 77 E-mail string, top e-mail to 59
John Higgins from Bruce Voss
dated 6/17/2014, Bates Nos.
LCM_SEC0000259 to '261
Page 6
EXHIBITS
DEFENDANT'S PAGE
Exhibit 82 Top page says, "This document 103
was produced natively, and
attached notes of Bruce Voss,
Bates Nos. LCM_SEC0000001 to
'002
Exhibit 83 E-mail string, top e-mail to 132
John Higgins and Matt Foehr from
Bruce Voss dated 6/18/2014,
Bates Nos. LCM_SEC0000316 to
'318
Exhibit 84 E-mail to Bruce Voss from John 139
Higgins dated 6/20/2014, Bates
Nos. LCM_SEC0000883
Exhibit 85 E-mail string, top e-mail to 144
John Higgins from Bruce Voss
dated 6/20/2014, Bates Nos.
LCM_SEC0000324 to '325
Page 7
EXHIBITS
DEFENDANT'S PAGE
Exhibit 90 E-mail to John Higgins and Matt 173
Foehr from Bruce Voss dated
6/20/2014, Bates Nos.
LCM_SEC0000331
Page 8
EXHIBITS
DEFENDANT'S PAGE
Exhibit 99 E-mail string, top e-mail to 217
John Higgins from Matt Foehr
dated 7/7/2014, Bates Nos.
LCM_SEC0000991 to '1005
Page 9
EXHIBITS
DEFENDANT'S PAGE
Exhibit 108 E-mail to Randy Osborne from 261
Bruce Voss dated 9/5/2014, Bates
Nos. LCM_SEC0000524
Exhibit 109 E-mail string, top e-mail to 263
John Higgins, Matt Foehr and
Charles Berkman from Bruce Voss
dated 9/23/2014, Bates Nos.
LCM_SEC0000528 to '535
Exhibit 110 E-mail string, top e-mail to 267
Matt Foehr from Bruce Voss dated
9/23/2014, Bates Nos.
LCM_SEC0000543 to '544
Page 10
Page 11
1 SAN DIEGO, CALIFORNIA; TUESDAY, DECEMBER 3, 2019
2 8:57 A.M. - 5:52 P.M.
11 No. 1:18-CU-11926-PBS.
21 matter.
22 MR. JONES: Good morning. Marc Jones for the
Page 12
1 Commission.
2 MR. BONDI: Brad Bondi of Cahill Gordon & Reindel
11
12 BRUCE VOSS,
14 testified as follows:
15
16 EXAMINATION
17 BY MR. BROOKS:
18 Q. Good morning, Mr. Voss. We met briefly off
Page 34
1 when Mr. Berkman sent it to you?
2 A. I don't recall exactly when I read the full
13 A. I had.
19 traded companies.
Page 35
1 correct?
2 A. That's correct. The report came out on the
3 16th.
11 anyone at Ligand?
16 A. As I recall, it did.
19 person?
23 A. I have not.
24 Q. With whom at Ligand did you speak about the
Page 99
1 Do you see that?
2 A. I do.
9 Mr. Higgins?
10 A. I don't follow, seeing on a phone call.
14 A. I don't recall.
17 content or a rebuttal."
18 Do you see that?
19 A. I do.
Page 100
1 A. This is ultimately what happened.
2 Q. Meaning ultimately that's the way the call
3 went --
4 A. Right.
12 correct?
17 Q. Right.
18 A. And I'm not sure that Mr. Higgins here was
20 rebuttal.
Page 113
1 Q. All right. Now we're going to get to the
2 hard part where I'm going to ask you to decipher all of
3 your notes.
4 A. I understand.
7 A. Yeah.
8 Q. That's the date of the call, right?
13 voicemail.
14 Q. Okay.
17 place.
18 Q. Okay. So fair to say it was a 20-minute
19 conversation?
20 A. Correct.
Page 131
1 Do you recall anything that Father Lemelson
2 said during your June 18, 2014 telephone conversation
4 I believe?
16 I remembered it.
Page 146
1 Q. So if you go down in that first paragraph of
2 your thing towards the end, do you see where, three
4 A. I see that.
15 to go to zero in sales.
21 A. I don't.
22 Q. So I'll just represent for the record that we
Page 147
1 that they exist, I'd ask counsel to look for them.
2 MR. TONOLLI: I'll represent that we have looked,
7 BY MR. BROOKS:
8 Q. So you don't know why you wrote that?
15 BY MR. BROOKS:
17 had the back and forth, you just -- sitting here today,
18 you have no memory of what you were referring to,
19 correct?
20 A. Unfortunately I don't.
Page 152
1 A. I do see that.
2 Q. And prior to your e-mail to Mr. Higgins on
3 January 20, you had spoken to him by phone on -- prior
4 to -- sorry. Mr. Tonolli is ready to object.
5 MR. TONOLLI: You said January.
6 MR. BROOKS: I know.
7 BY MR. BROOKS:
8 Q. Let me rephrase it so the transcript is
9 clear.
10 Prior to your e-mail -- strike that.
11 Prior to Mr. Higgins' e-mail to you on
12 June 20 that's part of Exhibit 85, you had spoken to
13 Mr. Higgins about your conversation with Father
14 Lemelson on June 18, correct?
15 A. That's correct, in the debrief.
16 Q. Okay. And Mr. Higgins' characterization was
17 that you made a tacit agreement -- you were in tacit
18 agreement that Promacta was going away, right?
19 MR. TONOLLI: Object to form.
20 MR. JONES: Vague.
21 BY MR. BROOKS:
22 Q. You can answer.
23 A. What you just said he wrote.
24 Q. Did you agree with Mr. Higgins' assessment
Page 228
1 Q. Was that true?
2 A. There had been no dialogue between Father
14 with LHA.
19 A. It was.
21 today?
22 A. It does.
Page 274
1 Q. But you don't recall who at Ligand told you?
2 A. I don't recall who. I don't recall when.
14 would have been the one to tell you that there seems to
20 BY MR. BROOKS:
Page 287
1 accomplished by meeting with me in person and talking
2 and discussing things. Whether it was an interview or
7 today?
8 A. As best I can remember, absolutely not.
13 this road, which was the last exhibit, which was 111 --
14 A. That's right.
20 that meeting?
Page 288
1 (Mr. Day leaves the deposition.)
2 Q. And you see obviously that Ligand was using
4 is that right?
20 record.
21 BY MR. BROOKS:
22 Q. I guess, first, did you ever have any such
23 conversations?
24 A. I was aware that Ligand was talking to law
Page 311
1 DECLARATION UNDER PENALTY OF PERJURY
2
3 I, BRUCE VOSS, hereby certify under penalty of
4 perjury under the laws of the State of California that
5 the foregoing is true and correct.
6
7 Executed this _____ day of ________________, 2019
8 at ____________________, California.
9
10
11
12 ____________________________
13 BRUCE VOSS
14
15
16
17
18
19
20
21
22
23
24
Page 312
1 DEPOSITION ERRATA SHEET
2
CASE NAME: SEC v. LEMELSON
3 DEPOSITION DATE: December 3, 2019
WITNESS NAME: BRUCE VOSS
4
5 Reason Codes: 1. To clarify the record.
2. To conform to the facts.
6 3. To correct transcription errors.
7
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8 From _______________________ to _______________________
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5
6
_______ Subject to the above changes, I certify that
7 the transcript is true and correct
8 _______ No changes have been made. I certify that the
transcript is true and correct.
9
10
11 ______________________
BRUCE VOSS
12
13
14
15
16
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ERRATA SHEET
Case: Securities and Exchange Commission v. Lemelson, No. 1:18-cv-11926-PBS (D. Mass)
I am polling my colleagues to see if anyone has any experience with Benzinga but so far no
one does.
John, you're going to have to trust me that I handled my conversation with Lemelson
appropriately. I gained as much information as I could and represented the company
forcefully but as you can tell from the interview and my debrief, this guys approach is
absurd and he's not interested in hearing another point of view.
The comment about Promacta was not a legitimate question but rather it was made in passing
and then he chose to take that piece of the dialogue out of context. That's typical of what
he has done with other pieces from conference calls and SEC filings in his report. Quite
simply I did not agree with that statement nor did I agree with any number of statements he
made.
I am happy to reengage with him, but as we have seen any engagement is subject to
misinterpretation. That's why I think email might be the better vehicle than a phone call.
> Please listen to the interview. At least the ligand part. You talked to the guy. We are
putting the puzzle of the plan together. Your input would be helpful. And Who is benziga,
the interview service?
>
> Also, if he said the CEO beats his employees would you just move on because "there were
more things to cover." Or would you take a moment to stick up for the CEO? Promacta is a
big deal, and a big part of our value and business model. He knows it too. He gave you a
softball and you just moved on? Even 1 minute of soft info would have left him with a
different impression than tacit agreement.
>
> Are IR firms ever advocates for their clients. It seems the approach with Gary and now
hearing the non-rebuttal approach with lemelson is more passive than ideal.
>
> John
>
>> On Jun 20, 2014, at 9:42 AlvI, "Bruce Voss" <[email protected]> wrote:
>>
>> I've read some posts about his interview but have not seen the interview itself. I could
call him and ask for proof I said Promacta sales are going away (I don't think he recorded
our conversation, but if he did that would be great as he'd have a record of me not saying
that), and in absence of proof I can demand he correct his statement (I'm not sure how he
would do that as it was in an interview, but maybe he could put a correction on Seeking
Alpha). As I wrote last night, he made that statement with a rhetorical "don't you agree"
and I moved on to the next subject as we had more to cover and his statement was
ridiculous.
>>
>> We could always threaten legal action against him for being reckless by making knowingly
incorrect statements publicly but I'm not sure what that would include. Maybe Charles has a
view.
>>
>>
>>
>> Bruce Voss, Managing Director, Principal
Table of Contents
Overview ................................................................................................................................................... 1
Disclaimer.................................................................................................................................................. 2
ITP not a commercially viable application for Promacta® ........................................................................ 3
No indication Kyprolis’® 2014 sales will even cover CEO’s compensation ............................................... 3
A “Silly” Report? Duavee® and CE® Melphalan ........................................................................................ 6
Viking Therapeutics ................................................................................................................................... 7
A curious relationship ............................................................................................................................... 9
Speculation has no intrinsic value, 100% downside risk reaffirmed ...................................................... 10
Full Disclaimer ......................................................................................................................................... 11
Overview
o Lemelson Capital’s original June 16, 2014 report can be found here.
Promacta® sales, which represented as much as 72 percent of Ligand royalty revenue as recently
as Q4 2013, have slowed sharply in Q1 and are expected to continue to decline, a point
recognized in recent analyst commentary. There is no evidence of a significant market for
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 2 of 12
2
Amgen’s total revenue from Kyprolis® in Q1 2014 was just $68 million, representing royalties to
LGND of just $1,020,000.
Contrary to recent analyst commentary regarding “significant revenue contribution in the near
term” from sales of Duavee® and Captisol-enabled® (CE) Melphalan, Duavee® sales have been
and will continue to be immaterial for the foreseeable future, while an NDA has not even been
filed for CE Melphalan.
There are no indications that Captisol® sales will increase materially in the future, and it is likely
to become the company’s only significant source of future revenue. Recent analyst commentary
concedes that single-sourced Captisol® represents the majority of the Company’s “pipeline.”
The company’s recent and highly complex arrangement with Viking Therapeutics, a sub-tenant
in one of Ligands buildings, deserves close scrutiny, since the latter of the two appears to serve
only as shell for Ligand to further access pubic markets via a $58 million IPO and an arrangement
(not disclosed in related press releases) to convey 50% of Viking equity, post successful offering
to Ligand.
Given extraordinary and growing liabilities associated with Ligand’s key products, as well as
questionable transactions associated with the Viking IPO, Lemelson Capital reaffirms downside
risk for LGND at 100%.
Disclaimer
Following publication, Lemelson Capital may transact in the securities of the company. Lemelson
Capital has obtained all information herein from sources it believes to be accurate and reliable.
However, such information is presented “as is,” without warranty of any kind whether express
or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy,
timeliness, or completeness of any such information or with regard to the results obtained from
its use. All expressions of opinion are subject to change without notice, and Lemelson Capital
does not undertake to update this report or any information contained herein.
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 3 of 12
3
“The first line of therapy for ITP is a corticosteroid, usually prednisone. In children,
idiopathic thrombocytopenic purpura usually runs its course without the need for
treatment.”
(REFERRING TO NEW THERAPIES THAT WILL REPLACE PROMACTA® AS AN INDICATION FOR HEP C)
LIGAND PHARMACEUTICALS INCORPORATED'S (LGND) Q1 2014 RESULTS EARNINGS CALL TRANSCRIPT
Once the Hep C application is lost, there is no evidence of a significant, commercially viable
market for Promacta®. ITP, which has been mentioned as an alternative application, does not
have significant commercial viability.
“But I think we are just about seeing a peak in the third line area for Kyprolis®.”
According to Amgen’s (NASDAQ: AMGN) form 10-Q for Q1 2014 filed with the SEC, Amgen’s
total revenue from Kyprolis® in Q1 2014 was just $68 million, representing royalties to LGND of
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 4 of 12
4
Even if Kyprolis® were to receive designation as a second-line indication and sales reached the
highest end of all expectations and tripled in coming years, the royalty rate payable to LGND
would barely exceed an anemic $18 million.
The FDA approved Kyprolis® for multiple myeloma in 2012 based on just a 23% response rate to
the drug in only 266 patients.
The Phase 3 FOCUS trial, which was recently completed, could easily reinforce Kyprolis'
association with heart failure, organ failure, and other serious side effects. In other words, it is
essential to consider the significant possibility that Kyprolis® may fail to ever become a second-
line indication for AMGN.
Indeed, Kyprolis® might end up demonstrating little to no overall survival benefit in any of the
myeloma trials, which would confirm that it too lacks commercial viability.
Despite the FDA approval, many oncologists are understandably hesitant to use Kyprolis® due to
the drug's association with heart failure, ischemia, hypertension, and even infusion reactions.
Although myeloma patients may have a very poor prognosis after failure to respond to front and
second-line therapies, it does not mean that oncologists would gamble with the possibility of
drug-induced death.
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 5 of 12
5
“…any setback that may occur with respect to Promacta® or Kyprolis® could
significantly impair our operating results and/or reduce the market price of our
stock.”
“Further, the manufacture, use or sale of our potential products or our collaborative
partners' products or potential products may infringe the patent rights of others. This
could impact Captisol, Promacta®, Kyprolis, Avinza, Duavee, Viviant and Conbriza,
Nexterone, and other products or potential products.”
“So Kyprolis® you know we have at the moment a third line plus indication. There is a
finite level of growth you can get in the third line.“
According to the company’s proxy statement filed with the SEC, Mr. Higgins’ total compensation
for 2013 was $3,004,911, or roughly 26% of the Company’s 2013 net income. Additionally,
Executive VP and COO Mr. Matthew Foehr earned total compensation of $1,965,465. When
taken together, these two executive salaries alone are equivalent to approximately 44% of the
Company’s 2013 net earnings.
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 6 of 12
6
“…we expect significant revenue contribution in the near term from Duavee® and CE®
Melphalan”
ROTH CAPITAL ANALYST JOSEPH PANTGINIS RESPONDING TO LCM’S JUNE 16 RESEARCH REPORT ON LGND
JOHN SHARP, VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER (REFERRING TO FY 2014)
“LIGAND PHARMACEUTICALS' CEO DISCUSSES Q4 2013 RESULTS,” EARNINGS CALL TRANSCRIPT
CE® Melphalan is not even mentioned in the Company’s 2013 annual report. According to the
company’s website, an NDA has NOT even been filed for CE® Melphalan (a fact also recognized in the
company’s Q1 2014 conference call).
According to Streetinsider.com, Joseph Pantginis, Roth Capital analyst, on June 17, 2014, referred to the
original June 16, 2014 Lemelson Capital Management research report on LGND as “silly.” On the same
day and again on June 25, 2014, Mr. Pantginis reiterated his buy rating on LGND shares with a $92 price
target.
At $92 per share, LGND would trade at 159x earnings and its market cap would swell to over $1.9 billion
for a Company that has earned just $9.2 million in the last twelve months. Such a price would represent
almost 30x book value (all of which is intangible).
In another article published by SmarterAnlyst, Mr. Pantginis further referred to the report as “foolish.”
According to TipRanks, which measures analysts’ success rates based on how their calls perform,
analyst Joseph Pantginis, who covers LGND, currently has a one-year average return of -6.5% and is
ranked #3027 out of 3104 analysts.
During the same period, while Mr. Pantginis returned a loss of 6.5%, the S&P 500 rose approximately
17.6%.
Mr. Pantginis was not able to invalidate any point raised in LCM’s original June 16, 2014 research report,
but did admit in the response that LGND’s “pipeline” is in fact highly concentrated in just one product,
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 7 of 12
7
namely Captisol®. Further, Mr. Pantginis acknowledged that current LGND management has been in
place ~six of the last ten years (a period of time when shareholders were diluted by some 72%).
Viking Therapeutics
On Thursday May 22, Viking Therapeutics, a clinical-stage biopharmaceutical company, which consists
entirely of technologies it in-licenses from Ligand, released a joint statement together with Ligand,
announcing that it had signed a “broad licensing deal” with Ligand Pharmaceuticals. Shares of Ligand
closed 3% higher on the news, representing an increase of almost $40 million in market capitalization
for Ligand in just a matter of hours.
Viking does not intend to conduct any preclinical studies or trials and does not own any products or
intellectual property or manufacturing abilities and leases space from Ligand. Viking appears to be a
single-purpose vehicle created to raise more capital from public markets for its sponsor, Ligand
Pharmaceuticals.
"A relationship such as this one with Viking gives Ligand the opportunity to entrust
valuable internal programs to a dedicated team with the operational resources to
take them to the next level."
“This is a creative transaction that establishes a bold portfolio of early- and mid-stage
assets that have the potential to generate substantial news flow…”
However, once again there is a substantial difference between the Company’s press releases and SEC
filings in Viking’s recent S1 registration.
“Our independent registered public accounting firm has expressed substantial doubt
about our ability to continue as a going concern.”
“Additionally, as of March 31, 2014, we do not believe that we will have sufficient
cash to meet our operating requirements for at least the next 12 months...”
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 8 of 12
8
In fact, Ligand had to loan Viking $2.5 million in order to get them to take programs that they did,
meaning that they literally had to pay the partner in this instance to take on the programs, and
apparently the only partner that could be located for these programs was essentially insolvent, just as
Ligand is once intangibles are removed from its balance sheet.
It is perhaps a testimony to the biotech bubble that exists when one insolvent company pays another
insolvent company to take over not “products,” but “programs” in order to generate not “sales” but
“news flow,” in order for the second insolvent company, which has no immediate hope of generating
revenue let alone profits or cash flow (and has never had any revenues) to take itself public.
“Under the terms of the Master License Agreement, we will pay Ligand an upfront fee
of $29.0 million, subject to adjustment in certain circumstances, payable in equity
upon the closing of this offering”
$29 million is almost four times what Ligand has earned in the last twelve months. Yet, this fact was
somehow left out of its May 22 press release.
Ligand appears to be indirectly creating a shell company through Viking to generate paper profits to
stuff its own balance sheet. Viking represents a subsidiary that can start with a clean slate and issue
new shares ad infinitum over the years just as Ligand has done over its lifetime. Only this time, the
dilution and the inevitable losses will be associated with another name, thus shielding Ligand from the
obvious bad press, while allowing the company to access the public markets yet again and add a
substantial entry to the “asset” side of the balance sheet, which will be a positive number, behind which
in reality will be nothing but further losses based on Ligand’s own portfolio of “programs,” which
apparently were not marketable to any profitable company.
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 9 of 12
9
According to Viking’s balance sheet, the firm has no assets and yet plans to raise $58 million in public
markets, 50% of which, or $29 million apparently will go directly to Ligand, a fact revealed in the SEC
filing but not the related press releases on the licensing agreements. On the announcement of the
“creative transaction,” Ligand shares themselves gained almost $40 million in value. The combined total
of these two events equals almost as much as Ligand’s projected 2015 gross revenues.
The legality of such a transaction may one day be challenged by shareholders in either company. The
ethics should already be clear. The objectives of alchemy have no place in legitimate finance.
The casual observer might even mistake what Ligand leadership has coined a “creative transaction” as a
common game of three-card Monte, played on any street corner – shills included.
A curious relationship
On April 7, 2014 Viking suddenly terminated its relationship with its independent registered public
accounting firm and auditor MaloneBailey just one month after they had engaged them.
On April 7, 2014, Viking’s Board of Directors appointed Marcum LLP as an independent registered public
accounting firm stating:
From September 24, 2012 (Inception) through April 7, 2014, neither we nor anyone
on our behalf consulted with Marcum regarding (1) the application of accounting
principles to a specified transaction, either completed or proposed, (2) the type of
audit opinion that might be rendered on our financial statements, or (3) any matter
that was either the subject of a disagreement, as described in Item 304(a)(1)(iv) of
Regulation S-K and the related instructions thereto, or a “reportable event” as
described in Item 304(a)(1)(v) of Regulation S-K.
Case 1:18-cv-11926-PBS Document 127-15 Filed 09/30/20 Page 10 of 12
10
In other words, Marcum was merely hired, but the company has not yet even consulted with the firm on
any material issues. The financial statements provided on the S1 accordingly are unaudited.
The Company’s CY 2015 revenue estimates are $80 million. At such a sales level, net profits
continue to be immaterial. Additionally, virtually every major revenue-generating product of
the Company faces either a significant competitive or market threat. Current tangible equity is
negative $4 million--that is to say, the Company’s liabilities far exceed its assets and the
Company appears all but certain to show a GAAP loss in Q2, which will further erode the “house
of cards” balance sheet the company has maintained.
The impact to sales of Promacta® from revolutionary new drugs has already begun to manifest
itself in the Company’s Q1 results. Suggestions that ITP is a viable alternative market for
Promacta® are contradicted by clinical research and expectations.
Kyprolis®, a third-line indication for multiple myeloma, has been linked to heart failure by the
FDA, and there is no evidence to suggest that the results of the Phase 3 FOCUS trial will result in
Kyprolis® becoming a second-line indication. However, even if it did achieve this status, the
maximum royalties payable to LGND would barely exceed $18 million dollars, a result that
would likely take many years to achieve.
The company has engaged in a “creative transaction” with an affiliate shell company called
Viking Therapeutics, funding the junior partner to the transaction with a $2.5 million loan, which
represents a significant part of Ligand’s cash and overall current assets. The purpose of this
transaction appears to be the ability of Ligand to access public markets indirectly through Viking
in order to further stuff its own balance sheet with what will likely be inflated Viking stock
should the Viking IPO succeed. It is indeed possible to infer from the terms of the transaction
that the value of the five “programs” licensed to Viking were in fact less than zero since Ligand
was required to make a loan to Viking in exchange for Viking taking them over, part of which will
be used to pay Ligand rent on space which Ligand is providing to the firm in its own building.
The Company’s business model as a “broker” of obscure, third-line, unknown and largely
untested indications is inherently flawed and filled with extraordinary risk. It is worth
considering why so much time, energy and resources are invested by the company in
extraordinarily complex transactions that are often presented to the public in a different light
than they are to the SEC.
There is no circumstance where speculation has a legitimate value greater than zero. Indeed
transactions can certainly represent an amount less than zero (only liability). For this reason,
the intrinsic value of Ligand shares must be reaffirmed as $0 with downside risk justifiably
calculated at 100%.
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Full Disclaimer
As of the publication date of this report, Lemelson Capital Management LLC has a short position
in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains in the event
that the price of the stock declines. Following publication of the report, Lemelson Capital may
transact in the securities of the Company covered herein. All content in this report represents
the opinions of Lemelson Capital. Lemelson Capital has obtained all information herein from
sources it believes to be accurate and reliable. However, such information is presented “as is,”
without warranty of any kind, whether express or implied. Lemelson Capital makes no
representation, express or implied, as to the accuracy, timeliness, or completeness of any such
information or with regard to the results obtained from its use. All expressions of opinion are
subject to change without notice, and Lemelson Capital does not undertake to update or
supplement this report or any information contained herein.
This document is for informational purposes only and it is not intended as an official
confirmation of any transaction. All market prices, data and other information are not
warranted as to completeness or accuracy and are subject to change without notice. The
information included in this document is based upon selected public market data and reflects
prevailing conditions and Lemelson Capital’s views as of this date, all of which are accordingly
subject to change. Lemelson Capital’s opinions and estimates constitute a best efforts judgment
and should be regarded as indicative, preliminary and for illustrative purposes only.
Any investment involves substantial risks, including, but not limited to, pricing volatility,
inadequate liquidity, and the potential complete loss of principal. This report’s estimated
fundamental value only represents a best efforts estimate of the potential fundamental
valuation of a specific security, and is not expressed as, or implied as, assessments of the quality
of a security, a summary of past performance, or an actionable investment strategy for an
investor.
This document does not in any way constitute an offer or solicitation of an offer to buy or sell
any investment, security, or commodity discussed herein or of any of the affiliates of Lemelson
Capital. Also, this document does not in any way constitute an offer or solicitation of an offer to
buy or sell any security in any jurisdiction in which such an offer would be unlawful under the
securities laws of such jurisdiction. To the best of Lemelson Capital’s abilities and beliefs, all
information contained herein is accurate and reliable.
Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash or
derivative positions in any Company discussed in this document at any time. As of the original
publication date of this document, investors should assume that Lemelson Capital is short
shares of Ligand and may have positions in financial derivatives that reference this security and
stand to potentially realize gains in the event that the market valuation of the Company’s
common equity is lower than prior to the original publication date. These affiliates, officers, and
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individuals shall have no obligation to inform any investor about their historical, current, and
future trading activities. In addition, Lemelson Capital may benefit from any change in the
valuation of any other companies, securities, or commodities discussed in this document.
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Plaintiff,
v.
Civ. No. __________
GREGORY LEMELSON and LEMELSON CAPITAL
MANAGEMENT, LLC, JURY TRIAL DEMANDED
Defendants,
and
Relief Defendant.
COMPLAINT
Plaintiff, the United States Securities and Exchange Commission (the “Commission”),
alleges the following against Defendants Gregory Lemelson (“Lemelson”) and Lemelson Capital
Management, LLC, and Relief Defendant The Amvona Fund, LP, and hereby demands a trial by
jury:
SUMMARY OF ALLEGATIONS
1. Between May and October of 2014, Lemelson devised and carried out a
Pharmaceuticals, Inc. (“Ligand”) and then sought to manipulate the stock price to make a profit.
A short position is an investment technique whereby an investor seeks to profit when the price of
a stock falls. Lemelson publicly disseminated a series of false statements about Ligand to drive
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down the price of the stock, while engaging in a series of purchases and sales of Ligand stock
from a broker. The investor then sells the stock at its current market price (which the investor
hopes is overvalued and will soon drop). If the price of the stock goes down, the investor profits
from the “short sale” by purchasing the stock at the lower price, referred to as “covering” the
short sale, returning the borrowed stock to the broker, and keeping the difference between the
3. Beginning in May 2014 and continuing through October 2014, Lemelson took
short positions in Ligand stock through his hedge fund, The Amvona Fund, LP (“Amvona”). He
then orchestrated a public campaign attacking Ligand with the intent to convince the investing
public that Ligand’s stock was overvalued. As part of his campaign, Lemelson made a series of
false statements of material fact about Ligand that were intended to shake investor confidence in
the company, drive down the price of Ligand’s stock, and, consequently, increase the value of
4. Starting in June 2014 and continuing through August 2014, Lemelson authored
and published multiple “research reports” that contained false statements of material fact about
Ligand and that were intended to create a negative view of the company and its value and,
consequently, to drive down the price of the company’s stock. Further, between June and
October of 2014, Lemelson participated in live and written interviews in which he made
additional false statements of material fact about Ligand which also were intended to create a
negative view of the company and its value and, consequently, to drive down the price of the
company’s stock.
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5. Each of Lemelson’s false statements was intended to drive down the price of
Ligand’s stock. For example, in a June 2014 report, Lemelson stated that Ligand’s flagship drug
product, and main source of licensing revenue, was imminently “going away.” To bolster and
lend credence to his report, Lemelson, in a widely available radio interview, falsely stated that a
Ligand representative agreed with his analysis. Lemelson also falsely claimed that Ligand
engaged in a sham licensing transaction with another pharmaceutical company and had run up so
much debt that the company had virtually no value. None of these statements was true, none had
a reasonable basis in fact, and each concerned significant aspects of Ligand’s financial condition,
business dealings, and the viability of its products that reasonable investors would consider
important in evaluating Ligand’s prospects. Lemelson made each of these false statements
intentionally or recklessly for the purpose of driving down Ligand’s stock price.
6. Between June and October 2014, Lemelson publicly and widely disseminated
false statements about Ligand in press releases, on Amvona’s blog, through social media, in
various other media outlets, and also in appearances on radio shows. In doing so, Lemelson
intended to create a negative view of the company and its value and, consequently, to drive down
material fact about Ligand, Lemelson and Lemelson Capital Management, LLC (“LCM”)
deceived investors and prospective investors in The Amvona Fund by making and disseminating
false statements about Ligand as part of their efforts to obtain and retain Amvona Fund investors.
Defendants further misled investors and potential investors by not disclosing that The Amvona
Fund’s positive returns from its short position in Ligand were based on Defendants’ stock price
manipulation.
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8. As Lemelson intended, the price of Ligand stock fell during his scheme to mislead
investors about its value. The day Lemelson began disseminating his false statements, June 16,
2014, Ligand’s opening share price was $67.26. By October 13, 2014, Ligand’s share price had
dropped by nearly than $23—a decline of approximately 34 percent. Also by that time,
Lemelson had “covered” the vast majority of Amvona’s short position in Ligand generating
approximately $1.3 million in illegal profits. Ligand’s stock price subsequently recovered, and
9. By engaging in this conduct, Lemelson and LCM violated Section 10(b) of the
Securities Exchange Act of 1934 (“Exchange Act”) [15 U.S.C. § 78j(b)] and Rules 10b-5(a), (b),
and (c) thereunder [17 C.F.R. § 240.10b-5(a)-(c)], and both Lemelson and LCM violated Section
206(4) of the Investment Advisers Act of 1940 (“Advisers Act”) [15 U.S.C. § 80b-6(4)] and Rule
10. The Commission seeks injunctive relief, disgorgement of ill-gotten gains together
11. The Commission brings this action pursuant to the enforcement authority
conferred upon it by Section 21(d) of the Exchange Act [15 U.S.C. § 78u(d)] and Section 209(d)
of the Advisers Act [15 U.S.C. § 80b-9(d)]. The Commission seeks the imposition of a civil
penalty pursuant to Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section
12. This Court has jurisdiction over this action pursuant to Sections 21(d), 21(e), and
27 of the Exchange Act [15 U.S.C. §§ 78u(d), 78u(e), and 78aa], and Sections 209(d), 209(e) and
214 of the Advisers Act [15 U.S.C. §§ 80b-9(d), 80b-9(e), 80b-14], and 28 U.S.C. § 1331.
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21(d)-(e) and 27 of the Exchange Act [15 U.S.C. §§ 78u(d)-(e) and 78aa], and Sections 209(d)
and 214 of the Advisers Act [15 U.S.C. §§ 80b-9(d) , 80b-14], because a substantial part of the
acts constituting the alleged violations occurred in the District of Massachusetts, Lemelson lived
and worked in Massachusetts during the relevant time period, and the principal place of business
14. In connection with the conduct alleged in this Complaint, Lemelson directly or
regulatory requirements, and resulted in substantial loss, or significant risk of substantial loss, to
other persons.
16. Unless enjoined, Lemelson will continue to engage in the securities law violations
alleged herein, or in similar conduct that would violate federal securities laws.
Investment Officer and portfolio manager of Lemelson Capital Management LLC, a private
investment firm he founded to manage The Amvona Fund, LP. At all relevant times, Lemelson
was an “investment adviser” within the meaning of Section 202(a)(11) of the Advisers Act [15
U.S.C. §80b-2(a)(11)]. Lemelson is LCM’s founder, Chief Investment Officer, and portfolio
manager. In those capacities, Lemelson controls LCM and makes all decisions on behalf of
LCM.
June 14, 2012, with its principal office in Marlborough, Massachusetts. LCM is an Exempt
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Reporting Adviser registered with the Commission and the Commonwealth of Massachusetts.
LCM is the investment manager and investment adviser to The Amvona Fund, LP. At all
relevant times, LCM was an “investment adviser” within the meaning of Section 202(a)(11) of
19. The Amvona Fund, LP is a Delaware company formed on July 24, 2012, with its
Rule 206(4)-8(b) promulgated under the Advisers Act [17 C.F.R. § 275.206(4)-8] and Sections
3(a) and 3(c)(1) of the Investment Company Act of 1940 [15 U.S.C. § 80a-3(a) and (c)(1)].
Lemelson is the General Partner of Amvona. Lemelson launched Amvona as a hedge fund in
September 2012, and began accepting limited partner investments shortly thereafter. On January
4, 2013, Lemelson formed The Amvona Fund Ltd. (“Amvona Limited”) in the British Virgin
Islands. Amvona Limited operates as a feeder fund into Amvona (Amvona Limited and Amvona
are hereinafter referred to together as “Amvona”). Lemelson is the Director of Amvona Limited.
Amvona advertises itself as a long-position fund, i.e., a fund that seeks to profit from
appreciation in the price of securities it holds. Amvona has approximately $15 million of assets
under management, more than half of which belong to Lemelson and his family.
RELATED ENTITIES
involved in the development and licensing of medicines and technologies. Ligand’s common
stock is registered with the Commission under Section 12(b) of the Exchange Act and trades on
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company focused on developing treatments for metabolic and endocrine disorders. Viking’s
common stock is registered with the Commission under Section 12(b) of the Exchange Act and
trades on NASDAQ under the symbol “VKTX.” Through a Master License Agreement between
Ligand and Viking dated May 2014, Ligand became a 49.8% owner of Viking common stock.
FACTS
22. On May 22, 2014, Lemelson and LCM took an initial short position in Ligand of
579 shares on behalf of Amvona. Shortly thereafter, Lemelson began publicly disseminating
part of a fraudulent scheme to drive down Ligand’s share price and profit from his short position.
23. Between June 16 and August 22, 2014, Lemelson published a total of five reports
that discussed Ligand. Lemelson was the sole author and solely responsible for the content of
each report. All of Lemelson’s reports about Ligand were negative and took a dim view of the
company’s value and prospects. Certain of the reports also contained false and misleading
statements of material fact, as detailed in Part B below. Lemelson used these false and
misleading statements to bolster and lend credence to the overall attack levied against Ligand
24. Lemelson published the first of his negative reports about Ligand on June 16,
2014, titled “Ligand Pharmaceuticals (NASDAQ: LGND)” (the “June 16th Report”). As
detailed below, Lemelson stated, without a reasonable basis in fact, that Ligand’s primary source
of licensing revenue, the drug Promacta, was on the brink of obsolescence. Lemelson then
doubled down on this misstatement by falsely claiming in a June 19 interview that a Ligand
representative stated the company knew Promacta was “going away.” Lemelson thus concluded
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that “Ligand’s fair value is roughly $0 per share, or 100 percent below the current stock price.”
By this time, Lemelson had increased his short position in Ligand by borrowing and selling short
68,528 shares for approximately $4.6 million. In the days following the June 16 report Ligand’s
25. Lemelson continued his efforts to drive Ligand’s stock price even lower. In his
next report, dated July 3, 2014 and titled “Ligand Pharmaceuticals (NASDAQ: LGND);
Appendix” (the “July 3rd Report”), Lemelson characterized a transaction between Ligand and
Viking as a sham by making false statements about Viking’s finances and operations. Lemelson
went on to state that “the intrinsic value of Ligand shares must be reaffirmed as $0 with
26. Lemelson’s next report, dated August 4, 2014 and titled “Update: Lemelson
Capital Further Increases Short Stake in Ligand Pharmaceuticals (NASDAQ: LGND) as LGND
EPS Plunges 76 percent in Q2 2014” (the “August 4th Report”), repeated his false statement
about Promacta becoming obsolete and concluded that “the intrinsic value of Ligand shares must
27. In another report dated August 14, 2014, titled “Lemelson Capital Says Ligand
Substantially Raises Specter of Bankruptcy” (the “August 14th Report”), Lemelson claimed that
28. Finally, on August 22, 2014, Lemelson issued a report titled “Ligand
response to Insolvency and bankruptcy risk” (the “August 22nd Report”), in which he
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mischaracterized Ligand’s financial condition, as detailed below, and claimed that “common
29. Lemelson published his Ligand reports under the heading of LCM; posted them
on Amvona’s website; distributed them to various press sources – among them, PR Newswire,
Globe Newswire, Seeking Alpha, Benzinga, Street Insider, Value Walk, and USA Today – the
day they were published; and posted links to the reports on various social media accounts under
his control. The published press releases contained abbreviated summaries of the report and
30. Between June and October 2014, Lemelson also conducted various audio and
written interviews in which he stated that Ligand’s stock had no intrinsic value and provided
online financial media outlet, including appearing on Benzinga’s “Premarket Prep” show, which
provides investors with information prior to market open. Lemelson discussed Ligand in at least
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31. The purpose of Lemelson’s reports and interviews was to shake investor
confidence in Ligand and drive down Ligand’s share price. For example, in a solicitation to a
prospective Amvona investor, Lemelson touted the June 19th Interview and asserted that
“[s]hares of Ligand dropped ~2% during the interview.” Similarly, a major financial news
organization noted that Ligand’s stock price “fell more than 7 percent” after Lemelson published
his report claiming that demand for Promacta was rapidly declining.
32. Lemelson took affirmative steps to suppress commentary that highlighted his bias,
his lack of familiarity with the pharmaceutical industry, and his motivation to drive down the
price of Ligand stock. For example, Lemelson successfully petitioned Seeking Alpha to remove
33. Lemelson expanded Amvona’s short position in Ligand stock between May 22
and August 4, 2014, to 65,736 shares. He covered a significant portion of this position in August
2014, after Ligand’s share price dropped from $68.72 on June 16, 2014, to $51.75 on August 22,
2014, in the wake of Lemelson’s negative reports and interviews. Lemelson covered the bulk of
Amvona’s remaining short position in October 2014. In total, Lemelson sold short (and bought
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34. Amvona profited by approximately $1.3 million from this trading, and, as a part
owner of Amvona, Lemelson personally profited from his fraudulent trading activity.
35. Lemelson presented his negative reports on Ligand as a purported exposé on the
company’s inner workings, and claimed that his statements about Ligand were based on
extensive research and discussions with the company’s representatives and with medical experts.
In his reports and other public statements, Lemelson intentionally or recklessly made the
1) Lemelson Falsely States that Ligand’s Flagship Product was “Going Away.”
36. The central thesis of Lemelson’s June 16th Report was that Promacta, Ligand’s
flagship drug and primary source of revenue, was facing competitive pressure from a new
competing drug, Sovaldi, which would soon render Promacta obsolete. Lemelson subsequently
sought to lend credence to his thesis by falsely stating that a Ligand representative agreed with
Benzinga’s Pre-Market Prep show on June 19, 2014. During the June 19th Interview, Lemelson
made the following false statement of material fact: “I had discussions with [Ligand]
management just yesterday – excuse me, their [Ligand’s] IR [investor relations] firm. And they
38. Lemelson’s statement referenced a conversation he had on June 18, 2014, with a
Representative, however, never made any such statement. The IR representative notified
Lemelson of that fact via email after hearing Lemelson’s Benzinga interview. Lemelson never
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responded to the email. Nor did Lemelson correct or withdraw his false statement, or disclose
that the IR Representative denied having made the statement Lemelson attributed to him.
39. Lemelson made this false statement of material fact to support his argument that
one of Ligand’s main revenue sources—royalties from licensing Promacta—was imperiled and
40. Lemelson also attempted to bolster his false representation that Promacta was on
the brink of obsolescence by misleading the readers of his reports about other “evidence” he had
about Promacta. The June 16 Report cites information provided by “an Associate Clinical
Professor of Medicine and Surgery at one of the largest transplant Hepatology departments at a
major U.S. university hospital and also with the Chief of abdominal surgery and transplantation
at a major European university hospital.” This statement was itself misleading because: a)
Lemelson did not disclose that the European hospital doctor was actually Amvona’s largest
investor (and thus had a significant financial interest in making Ligand’s stock price fall), and b)
Lemelson never spoke with the U.S. hospital doctor, relying only on a report from his largest
41. Further, none of the information Lemelson identified as the source of his
statement about Promacta suggested that Sovaldi would render Promacta obsolete. Specifically,
Lemelson cited two articles in the June 16th Report as “references to the obsolete nature of
[Hepatitis C] supportive care treatments such as Promacta,” despite the fact that neither article
discussed Promacta, and neither article could be fairly construed as implying or suggesting that
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42. In sum, Lemelson’s false statements about Promacta were falsely attributed to
Ligand and had no other reasonable basis in fact. He either intentionally lied about Promacta’s
43. Lemelson’s false statements about Promacta were material. Each concerned the
viability of one of Ligand’s main sources of revenue. These material falsehoods supported
Lemelson’s misrepresentations that Ligand’s revenue streams were in peril, and were thus
44. Lemelson published another report about Ligand on July 3, 2014. In that report,
in addition to repeating his claims about Promacta, Lemelson also took aim at Ligand’s business
relationship with Viking. Lemelson stated that “Ligand appears to be indirectly creating a shell
company through Viking to generate paper profits to stuff its own balance sheet.” He further
stated that Ligand had “engaged in a ‘creative transaction’ with an affiliate shell company called
Viking Therapeutics” to the detriment of Ligand shareholders. To bolster and lend credence to
these accusations, Lemelson made material misstatements of fact regarding Ligand’s licensing
agreement with Viking and Viking’s Form S-1 registration statement (the form the SEC requires
45. Viking was not a “shell.” It was in the business of developing treatments for
certain kinds of illnesses. Ligand had five drugs that it licensed to Viking to develop. Ligand
had also invested in Viking and bought just under half of the company before Lemelson started
trying to drive Ligand's stock price down. In short, Viking was working on developing certain of
46. In the July 3rd Report, Lemelson falsely stated that, as of the filing of Viking’s
July 1, 2014 Form S-1 registration statement, Viking had “yet to consult with [its auditors] on
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any material issues” and that the “financial statements provided in the S1 accordingly are
unaudited.” Lemelson also falsely stated in the same report that “Viking does not intend to
conduct any preclinical studies or trials.” None of these statements were true, and each was
made to support Lemelson’s false claim that Viking was “an affiliate shell company” that Ligand
used to “create almost a veritable pyramid scheme of shell companies” that was “guaranteed to
lose money.”
47. Lemelson’s statements about auditors and financial statements were false and
contradicted by Viking’s July 1, 2014 Form S-1, which Lemelson relied upon when writing his
July 3 report. The Form S-1 contains a letter from Viking’s new auditors stating that they have
“audited the balance sheets of Viking . . . as of December 31, 2012, and 2013.”
48. Further, the May 21, 2014 Master License Agreement between Ligand and
Viking, which was attached to the Viking Form S-1, stated that “Viking is engaged in the
Through the Master License Agreement, Viking obtained licenses to develop drugs, and leased
space from Ligand to conduct the necessary research and development activities, which include
preclinical studies and trials. Lemelson’s statement that “Viking does not intend to conduct any
preclinical studies or trials” is thus contradicted by the very document Lemelson supposedly
relied upon.
49. In short, each of Lemelson’s false statements about Viking is contradicted by the
source Lemelson supposedly relied upon. Lemelson therefore either intentionally lied about, or
50. Lemelson’s falsehoods about Viking were material. Each concerned a significant
financial transaction and sought to both cast doubt on the stated benefits of the transaction to
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Ligand and to allege misconduct by Ligand management. These material falsehoods supported
Lemelson’s false claim that the Ligand-Viking business relationship was a sham or fraud
designed to artificially inflate Ligand’s profits, and were thus central to his scheme to drive down
51. In his August 14 and August 22 Reports, Lemelson stated that Ligand was
saddled with crippling debt and therefore insolvent. To support this claim, Lemelson falsely
stated that Ligand “issued 245 million in new debt, against tangible equity of just $21,000,
giving rise to a debt to tangible equity ratio of 11,667 to 1 (that is $11,667 dollars (sic) in debt
for every $1 in tangible common shareholder equity)” and that “shareholders have only the
protection of $21,000 in tangible equity to shield them from $245 million in debt.”
52. In calculating Ligand’s “debt to equity ratio of 11,667 to 1,” Lemelson included
the new debt but not the proceeds of the loan, which would have yielded a debt-to-equity ratio
closer to 1:1. Lemelson intentionally misstated Ligand’s debt-to-equity ratio, or was reckless as
53. This false statement was material. Lemelson made his false statement about
Ligand’s debt-to-equity ratio to support his argument that Ligand had rendered itself insolvent by
issuing excessive debt. Lemelson’s false statement went to the heart of Ligand’s overall
financial viability and supported his argument that Ligand’s stock was worthless.
54. Both LCM and Lemelson, intentionally or recklessly, and by failing to exercise
reasonable care, disseminated the material false statements of fact detailed above to LCM’s
investors and prospective investors. By doing so, and by omitting to disclose material
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information, they caused disclosures by Lemelson and LCM about Amvona’s investment
55. Lemelson and LCM sent Lemelson’s reports and links to his interviews, which
contained multiple misstatements of material fact as detailed above, to current and prospective
Amvona investors, including in emails dated June 16, June 19 (boasting that Ligand shares
dropped two percent during his interview), July 2, July 3, and July 18, 2014. He also touted his
results in driving down Ligand’s stock price in communications to investors and prospective
investors, including in an email dated July 18, 2014; letters to Amvona Fund partners dated July
17, 2014 (claiming that Lemelson’s research report and appendix on Ligand “have begun to be
proven correct”) and October 9, 2014 (citing the decline in Ligand’s stock price); an investor
presentation dated September 4, 2014 (falsely noting that Lemelson Capital had been credited
with the drop in Ligand’s market capitalization by certain media outlets); and in multiple posts to
his Amvona website. In addition, in using Lemelson’s reports to solicit potential investors to
entrust their funds to him, Lemelson and LCM did not disclose that the profitability of their
through false statements, rather than his ability to identify a company whose stock would
decrease on its own based on its inherent lack of value. This omission also made other
disclosures about Amvona’s value-focused investing strategy materially false and misleading.
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scheme through a series of fraudulent acts, statements, and material omissions designed to drive
Ligand’s stock price down and profit from a short position in Ligand stock.
58. By engaging in the conduct above, these Defendants, directly or indirectly, acting
commerce or of the mails, in connection with the purchase or sale of securities: (a) have
employed or are employing devices, schemes, or artifices to defraud; (b) have made or are
making untrue statements of material fact or have omitted or are omitting to state material facts
necessary to make the statements made, in light of the circumstances under which they were
made, not misleading; and (c) have engaged or are engaging in acts, practices, or courses of
business which operate as a fraud or deceit upon certain persons, or, in the alternative, aided and
59. The conduct of these Defendants involved fraud, deceit, manipulation, and/or
60. By engaging in the foregoing conduct, Lemelson violated, and unless enjoined
will continue to violate, Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5
17
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21 of 23
above.
62. Section 206(4) of the Advisers Act prohibits an investment adviser from, directly
or indirectly, engaging in any act, practice, or course of business that is fraudulent, deceptive, or
making any untrue statement of a material fact or omitting to state a material fact necessary to
make the statements made, in the light of the circumstances under which they were made, not
63. By the actions described above, Lemelson and LCM, by use of the mails or any
knowingly, recklessly, or negligently made untrue statements of material fact and omissions that
64. At all relevant times, Lemelson and LCM were “investment advisers” within the
meaning of Section 202(a)(11) of the Advisers Act [15 U.S.C. §80b-2(a)(11)]. Lemelson was an
“investment adviser” by virtue of his ownership, management and control of LCM, and his
provision of investment advice to Amvona. Both Lemelson and LCM were in the business of
65. At all relevant times, Amvona was a “pooled investment vehicle” within the
meaning of Rule 206(4)-8(b) promulgated under the Advisers Act [17 C.F.R. § 275.206(4)-8]
18
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and Sections 3(a) and 3(c)(1) of the Investment Company Act of 1940 [15 U.S.C. § 80a-3(a) and
(c)(1)].
66. By engaging in the conduct described above, Lemelson and LCM violated, and
unless enjoined will continue to violate, Section 206(4) of the Advisers Act [15 U.S.C. § 80b-
68. Section 21(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)] states: “In any
action or proceeding brought or instituted by the Commission under any provision of the
securities laws, the Commission may seek, and any Federal court may grant, any equitable relief
69. Relief Defendant Amvona has received investor funds derived from the unlawful
acts or practices of the Defendants under circumstances dictating that, in equity and good
Defendants’ wrongful acts and there is no reason in equity why Relief Defendant should be
71. As a result, Relief Defendant Amvona is liable for unjust enrichment and should
be required to return its ill-gotten gains, in an amount to be determined by the Court. The Court
19
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should also impose a constructive trust on property in the possession of the Relief Defendant that
WHEREFORE, the Commission respectfully request that the Court enter Final Judgment:
I.
Permanently restraining and enjoining Defendants, and their agents, servants, employees,
attorneys and those persons in active concert or participation with them, who receive actual
notice of the order by personal service or otherwise, from violating Section 10(b) of the
Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5] and
Section 206(4) of the Advisers Act [15 U.S.C. § 80b-6(4)] and Rule 206(4)-8 thereunder
II.
Ordering Defendants and Relief Defendant to disgorge the proceeds their ill-gotten gains,
III.
Ordering Lemelson and LCM to pay appropriate civil monetary penalties under Section
21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section 209(e) of the Advisers Act
IV.
Retaining jurisdiction of this action in accordance with the principles of equity and the
Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders and
decrees that may be entered or to entertain any suitable application of motion for additional relief
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V.
Granting such other and further relief as this Court may determine to be just and
necessary.
21
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JS 44 (Rev. 08/18) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Worcester
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Marc J. Jones, (617) 573-8947, Alfred A. Day, (617) 573-4537 Douglas S. Brooks, (617) 338-9300
Securities and Exchange Commission, Boston Regional Office LibbyHoopes, P.C.
33 Arch St, 24th Floor, Boston, MA 02110 399 Boylston St, Boston, MA 02116
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
1. Title of case (name of first party on each side only) Securities and Exchange Commission v. Gregory Lemelson
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I. 410, 441, 470, 535, 830*, 835*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.
✔ II. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.
III. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 376, 385,
400, 422, 423, 450, 460, 462, 463, 465, 480, 485, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890,
896, 899, 950.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES 9 NO 9✔
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
§2403)
YES 9 NO ✔
9
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
YES 9 NO 9
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES 9 NO 9
✔
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES ✔
9 NO 9
A. If yes, in which division do all of the non-governmental parties reside?
YES 9 NO 9
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME Marc J. Jones, Alfred A. Day
ADDRESS Securities and Exchange Commission, Boston Regional Office, 33 Arch St, 24th Floor, Boston, MA 02110
TELEPHONE NO. Jones: (617) 573-8947, Day: (617) 573-4537
(CategoryForm9-2018.wpd )
Case 1:18-cv-11926-PBS Document 127-17 Filed 09/30/20 Page 1 of 20
MATTHEW FOEHR December 5, 2019
Reported by:
Sheri L. Somers
CSR No. 9734
Job No. 10062971
Page 2
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MASSACHUSETTS
Page 3
APPEARANCES:
For Plaintiff:
U.S. SECURITIES AND EXCHANGE COMMISSION
BOSTON REGIONAL OFFICE
33 Arch Street, 24th Floor
Boston, Massachusetts 02110
617.573.8947
617.573.4590 fax
By: Marc Jones, Esq.
[email protected]
For Defendants:
LIBBY HOOPES
399 Boylston Street
Boston, Massachusetts 02116
617.338.9300
617.338.9911 fax
By: Douglas S. Brooks, Esq.
[email protected]
The Videographer:
Ryan Asanas and Mike Tisa
Key Discovery
Also present:
Gregory Lemelson
Page 4
INDEX
WITNESS: BRUCE VOSS
PAGE
EXAMINATION BY MR. BROOKS 9
EXHIBITS
DEFENDANT'S PAGE
Page 5
EXHIBITS
DEFENDANTS' PAGE
Exhibit 123 Document titled, "Ligand 165
Pharmaceuticals Incorporated
Going Concern Analysis," Bates
Nos. LGND_0021095 to '098
Page 6
EXHIBITS
DEFENDANTS' PAGE
Exhibit 131 E-mail to John Higgins from Matt 231
Foehr dated 9/26/2014, Bates
Nos. LGND_0061987 to '2010
Exhibit 132 E-mail string, top e-mail to 246
Bruce Voss from Matt Foehr dated
6/17/2014, Bates Nos.
LCM_SEC0000849 to '851
Page 7
PREVIOUSLY MARKED EXHIBITS
4 236
79 245
85 261
99 268
110 270
Page 8
1 SAN DIEGO, CALIFORNIA; THURSDAY, DECEMBER 5, 2019
12 No. 1:18-CV-11926-PBS.
20 attorneys.
Page 9
1 MR. McCAUGHEY: William McCaughey, Cahill Gordon &
9 MATTHEW FOEHR,
11 testified as follows:
12
13 EXAMINATION
14 BY MR. BROOKS:
19 A. I have.
Page 53
1 Q. Do you have any memory of what Viking was
3 A. I do not.
18 license agreement.
21 unpartnered assets?
Page 98
1 but if you look at the second paragraph, it says,
2 "While Ligand and its prior counsel have had some
3 contact with the enforcement staff (through the Boston
4 office and the Office of Whistleblower Protection) in
5 the past concerning Lemelson, we wish to discuss new
6 contact -- new conduct by Lemelson since those
7 meetings."
24 A. In Boston.
Page 99
1 Q. Who was at that meeting?
4 our CFO at the time, and there may have been other
6 SEC.
8 attended?
9 A. I don't.
19 there.
Page 108
1 A. I believe that there was.
3 Ligand's counsel?
5 referring to was --
6 Q. Okay.
12 May 2015?
13 A. I don't.
20 meeting last?
23 A. Yes.
Page 109
1 A. Yes.
2 Q. Was it the same presentation as was made in
3 Boston?
4 A. I don't recall.
5 Q. Do you recall whether the presentation
6 involved things that took place after the meeting in
7 Boston occurred?
8 A. It may have.
9 Q. Did you take notes at that meeting?
10 A. No.
11 Q. Did anyone?
12 A. I don't know.
13 Q. As best you can recall, what was in that
14 presentation?
15 A. Generally a summary of Ligand and our
Page 305
1 I, the undersigned, a Certified Shorthand
2 Reporter of the State of California, do hereby certify:
3 That the foregoing proceedings were taken
4 before me at the time and place herein set forth; that
5 any witnesses in the foregoing proceedings, prior to
6 testifying, were duly sworn; that a record of the
7 proceedings was made by me using machine shorthand,
8 which was thereafter transcribed under my direction;
9 that the foregoing transcript is a true record of the
10 testimony given.
11 Further, that if the foregoing pertains to the
12 original transcript of a deposition in a federal case,
13 before completion of the proceedings, review of the
14 transcript [ X ] was [ ] was not requested.
15
16 I further certify I am neither financially
17 interested in the action nor a relative or employee of
18 any attorney or party to this action.
19 IN WITNESS WHEREOF, I have this date
20 subscribed my name.
21 Dated: December 19, 2019
22
23 _____________________________________
Sheri L. Somers
24 CLR, CSR No. 9734
Page 306
1 DECLARATION UNDER PENALTY OF PERJURY
2
3 I, MATTHEW FOEHR, hereby certify under penalty of
4 perjury under the laws of the State of California that
5 the foregoing is true and correct.
6
7 Executed this _____ day of ________________, 2019
8 at ____________________, California.
9
10
11
12 ____________________________
13 MATTHEW FOEHR
14
15
16
17
18
19
20
21
22
23
24
Page 307
1 DEPOSITION ERRATA SHEET
2
CASE NAME: SEC v. LEMELSON
3 DEPOSITION DATE: December 5, 2019
WITNESS NAME: MATTHEW FOEHR
4
5 Reason Codes: 1. To clarify the record.
2. To conform to the facts.
6 3. To correct transcription errors.
7
Page _____ Line ______ Reason Code ______
8 From _______________________ to _______________________
9 Page _____ Line ______ Reason Code ______
From _______________________ to _______________________
10
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11 From _______________________ to _______________________
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13
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14 From _______________________ to _______________________
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16
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17 From _______________________ to _______________________
18 Page _____ Line ______ Reason Code ______
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19
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20 From _______________________ to _______________________
21 Page _____ Line ______ Reason Code ______
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22
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23 From _______________________ to _______________________
24
Page 308
1 Page _____ Line ______ Reason Code ______
From _______________________ to _______________________
2
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3 From _______________________ to _______________________
4 Page _____ Line ______ Reason Code ______
From _______________________ to _______________________
5
6
_______ Subject to the above changes, I certify that
7 the transcript is true and correct
8 _______ No changes have been made. I certify that the
transcript is true and correct.
9
10
11 ______________________
MATTHEW FOEHR
12
13
14
15
16
17
18
19
20
21
22
23
24
ERRATA SHEET
Case: Securities and Exchange Commission v. Lemelson, No. 1:18-cv-11926-PBS (D. Mass)
Reported by:
Veronica S. Thompson
CSR 6056, RPR, CRR, CCRR
KEY Discovery
Page 2
United States District Court
District of Massachusetts
Page 3
APPEARANCES
For Plaintiff:
U.S. Securities and Exchange Commission
By: Alfred A. Day, Sr. Trial Counsel
33 Arch Street
Boston, Massachusetts 02110
617-573-4537
[email protected]
For Defendants:
Libby Hoopes
By: Douglas A. Brooks, Esq.
399 Boylston Street
Boston, Massachusetts 02116
617-338-9300
[email protected]
Page 4
INDEX
EXAMINATION PAGE
By Mr. Brooks 7
EXHIBITS
LGND_0018094
LGND_0041208-0041210
LGND_0047276-0047278
LGND_0047298-0047307
LGND_0052340-0052343
Page 5
Exhibit 157 Email string ending 08/10/14 from 138
LGND_0040984, 0041028-0041031
LCM_SEC0000774-0000776
Exhibit 4 37 2
Exhibit 7 58 16
Exhibit 8 85 17
Exhibit 114 49 4
Page 6
1 SAN DIEGO, CALIFORNIA, DECEMBER 12, 2019, 7:00 AM
2 VIDEOGRAPHER: We are now on the record.
17 Exchange Commission.
18 MR. McCAUGHEY: William McCaughey, Cahill
23 Pharmaceuticals.
24 MR. BONDI: Brad Bondi, Cahill Gordon &
Page 7
1 Reindel, on behalf of Ligand Pharmaceuticals and the
2 witness.
5 TODD PETTINGILL,
7 EXAMINATION
8 BY MR. BROOKS:
13 A. I have not.
22 A. Makes sense.
24 A. Yes.
Page 53
1 media posts. You know, he's got like three different
2 Wikipedia pages. He's got his own -- oh, and they all,
8 try to understand.
10 was this guy that was coming at us with, you know, false
13 break?
15 7:56 AM.
18 8:05 AM.
19 BY MR. BROOKS:
24 so.
Page 54
1 Q. Do you recall generally what was discussed at
19 respond?
Page 82
1 Q. If I could turn your attention back to the
3 equity"?
4 A. Uh-huh.
11 A. Yes.
Page 83
1 physical, you know, amount that you owe of your house.
11 answered.
Page 84
1 wasn't even being consistent on how he was calculating
2 it.
10 reports.
11 BY MR. BROOKS:
14 of Fr. Lemelson?
15 A. Yes.
17 answered.
18 BY MR. BROOKS:
24 term.
Page 85
1 I've heard of tangible assets. And tangible
8 calculation here?
12 BY MR. BROOKS:
15 tangible equity?
16 A. Yes.
18 as Exhibit 8.
20 Q. Yes.
Page 103
1 BY MR. BROOKS:
14 A. Correct.
18 A. Yep.
Page 104
1 with.
6 Q. Now --
19 take the assets. That's -- you mark up, you total up,
Page 131
1 they sold when they came out with good SARM -- or with
6 from Ligand.
14 though?
16 getting things mixed up, but the point is, you know, he
18 transaction --
19 Q. Right.
20 A. -- in the markets --
21 Q. Right.
23 misleading.
Page 132
1 a full year before the Viking IPO?
5 BY MR. BROOKS:
8 look at this.
15 Dourado?
16 A. Yeah.
23 A. Assume so.
·4· before me at the time and place herein set forth; that
19
21
22
23
· · · · · · · ____________________________
24· · · · · · Veronica S. Thompson
· · · · · · · CSR 6056, RPR, CRR, CCRR
Case 1:18-cv-11926-PBS Document 127-18 Filed 09/30/20 Page 19 of 21
TODD PETTINGILL December 12, 2019
Page 154
1 DECLARATION UNDER PENALTY OF PERJURY
11 20______, at ______________________.
12
13
14 ____________________________
15 TODD PETTINGILL
16
17
18
19
20
21
22
23
24
Page 155
1 DEPOSITION ERRATA SHEET
2 Case Name: SEC v. Lemelson
Name of Witness: TODD PETTINGILL
3 Date of Deposition: 12/12/19
KEY Discovery Job
4 Reason Codes: 1. To clarify record.
2. To conform to facts.
5 3. To correct transcription errors.
6
7 Page ______ Line ______ Reason ______
8 From _______________________ to ________________________
9 Page ______ Line ______ Reason ______
10 From _______________________ to ________________________
11 Page ______ Line ______ Reason ______
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Page 156
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19 Page ______ Line ______ Reason ______
20 From _______________________ to ________________________
21 ______ Subject to the above changes, I certify that the
transcript is true and correct.
22 ______ No changes have been made. I certify that the
transcript is true and correct.
23
___________ __________________________________________
24 Date Todd Pettingill
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Copies to:
Jeffrey T. Hartlin, Esq. Michael D. Maline, Esq.
Paul Hastings LLP Thomas S. Levato, Esq.
1117 S. California Avenue Goodwin Procter LLP
Palo Alto, California 94304 The New York Times Building
(650) 320-1804 620 Eighth Avenue
New York, New York 10018
(212) 813-8800
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the
following box:
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
Accelerated filer
Non-accelerated filer _ (Do not check if a smaller reporting company) Smaller reporting company
https://www.sec.gov/Archives/edgar/data/1607678/000119312514257855/d711611ds1.htm 1/196
11/25/2019 S-1 Filed 09/30/20 Page 2 of 21
Case 1:18-cv-11926-PBS Document 127-19
Aggregate
Offering Price(1)(2)
Common Stock, $0.00001 par value per share $57,500,000 $7,406
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(2) Includes the aggregate offering price of additional shares that the underwriters have the option to purchase.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on an estimate of the proposed maximum aggregate offering
price.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
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Case 1:18-cv-11926-PBS Document 127-19
Table of Contents
The following table sets forth our summary financial data as of the dates and for the periods indicated. We have derived the
summary statement of operations data for the period from September 24, 2012 (Inception) through December 31, 2012 and the
year ended December 31, 2013 from our audited financial statements included elsewhere in this prospectus. The summary
statement of operations data for the three months ended March 31, 2013 and 2014 and the cumulative period from September 24,
2012 (Inception) through March 31, 2014, and the balance sheet data as of March 31, 2014, are derived from our unaudited
financial statements included elsewhere in this prospectus. Our unaudited financial statements have been prepared on the same
basis as the audited financial statements and, in the opinion of our management, include all adjustments, consisting of normal
recurring adjustments and accruals, necessary for a fair statement of the information for the interim periods.
The historical results presented below are not necessarily indicative of the results to be expected for any future period and our
interim results are not necessarily indicative of the results that may be expected for a full year. The following summaries of our
financial data for the periods presented should be read in conjunction with the sections of this prospectus entitled “Risk Factors,”
“Selected Financial Data,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and our financial statements and the related notes included elsewhere in this prospectus.
Cumulative
Period from Period from
September 24, September 24,
2012 Three Three 2012
(Inception) Year Months Months (Inception)
through Ended Ended Ended through
December 31, December 31, March 31, March 31, March 31,
2012 2013 2013 2014 2014
(Unaudited) (Unaudited) (Unaudited)
Statement of Operations
Revenue $ – $ – $ – $ – $ –
Operating expenses:
Research and development 68,871 11,613 575 50,000 130,484
General and administrative 40,770 89,463 2,615 159,737 289,970
Total operating expenses 109,641 101,076 3,190 209,737 420,454
Loss from operations (109,641) (101,076) (3,190) (209,737) (420,454)
Other expenses:
Loss from change in fair value of debt
conversion feature – 20,622 37 10,249 30,871
Interest expense 1,386 24,549 1,356 8,955 34,890
Total other expenses 1,386 45,171 1,393 19,204 65,761
Net loss (111,027) (146,247) (4,583) (228,941) (486,215)
Basic and diluted net loss per share $ (0.07) $ (0.07) $ (0.00) $ (0.07) $ (0.24)
Weighted-average shares used to compute
basic and diluted net loss per share 1,482,625 2,043,295 1,794,444 3,191,666 2,026,311
Pro forma basic and diluted net loss per
share (unaudited) $ $
Weighted-average pro forma shares used to
compute basic and diluted net loss per
common share (unaudited)
-9-
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(1) The pro forma column in the balance sheet data table above reflects (a) the conversion of our outstanding convertible notes in an aggregate principal amount of
$310,350 and accrued interest of approximately $9,083 into an aggregate of shares of our common stock upon the closing of this offering, based on an
assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this prospectus, and (b) the issuance of an
aggregate of shares of our common stock to Ligand pursuant to the Master License Agreement and conversion of the Note upon the consummation of
this offering, based on shares of common stock outstanding as of immediately prior to the closing of this offering (excluding shares issued in this offering) and
an assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this prospectus. The pro forma information
is illustrative only, and we will adjust this information based on the actual initial public offering price and other terms of this offering determined at pricing.
(2) The pro forma as adjusted column in the consolidated balance sheet data table above reflects (a) the conversion of our outstanding convertible notes in an
aggregate principal amount of $310,350 and accrued interest of approximately $9,083 into an aggregate of shares of our common stock upon the
closing of this offering, based on an assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this
prospectus, (b) the issuance of an aggregate of shares of our common stock to Ligand pursuant to the Master License Agreement and conversion of the
Note upon the consummation of this offering, based on shares of common stock outstanding as of immediately prior to the closing of this offering (excluding
shares issued in this offering) and an assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this
prospectus, and (c) the sale of shares of common stock in this offering at an assumed initial public offering price of $ , the midpoint of the price
range set forth on the cover page of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses
payable by us. The pro forma as adjusted information is illustrative only, and we will adjust this information based on the actual initial public offering price
and other terms of this offering determined at pricing.
(3) Each $1.00 increase or decrease in the assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this
prospectus, would increase or decrease each of the pro forma as adjusted cash, additional paid-in capital, total stockholders’ equity (deficit) by approximately
$ million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting the
estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of shares we
are offering. An increase or decrease of 1.0 million in the number of shares we are offering would increase or decrease each of the pro forma as adjusted cash,
additional paid-in capital and total stockholders’ equity (deficit) by approximately $ million, assuming an initial public offering price of $ , the
midpoint of the price range set forth on the cover page of this prospectus, and after deducting the estimated underwriting discounts and commissions and
estimated offering expenses payable by us. The pro forma as adjusted information is illustrative only, and we will adjust this information based on the actual
initial public offering price and other terms of this offering determined at pricing.
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• our drug candidates may cause undesirable side effects that delay or preclude regulatory approval or limit their commercial use or
market acceptance, if approved;
• collaborators who may be responsible for the development of our drug candidates may not devote sufficient resources to these
clinical trials or other preclinical studies of these candidates or conduct them in a timely manner; or
• we may face delays in obtaining regulatory approvals to commence one or more clinical trials.
Success in early development does not mean that later development will be successful because, for example, drug candidates in later-
stage clinical trials may fail to demonstrate sufficient safety and efficacy despite having progressed through initial clinical trials.
We in-license all of the intellectual property related to our drug candidates from Ligand pursuant to the Master License Agreement. All
clinical trials, preclinical studies and other analyses performed to date with respect to our drug candidates have been conducted by
Ligand. Therefore, as a company, we do not have any experience in conducting clinical trials for our drug candidates. Since our
experience with our drug candidates is limited, we will need to train our existing personnel and hire additional personnel in order to
successfully administer and manage our clinical trials and other studies as planned, which may result in delays in completing such
planned clinical trials and preclinical studies. Moreover, to date our drug candidates have been tested in less than the number of
patients that will likely need to be studied to obtain regulatory approval. The data collected from clinical trials with larger patient
populations may not demonstrate sufficient safety and efficacy to support regulatory approval of these drug candidates.
We currently do not have strategic collaborations in place for clinical development of any of our current drug candidates. Therefore, in
the future, we or any potential future collaborative partner will be responsible for establishing the targeted endpoints and goals for
development of our drug candidates. These targeted endpoints and goals may be inadequate to demonstrate the safety and efficacy
levels required for regulatory approvals. Even if we believe data collected during the development of our drug candidates are
promising, such data may not be sufficient to support marketing approval by the FDA, EMA or comparable foreign authorities. Further,
data generated during development can be interpreted in different ways, and the FDA, EMA or comparable foreign authorities may
interpret such data in different ways than us or our collaborators. Our failure to adequately demonstrate the safety and efficacy of our
drug candidates would prevent our receipt of regulatory approval, and ultimately the potential commercialization of these drug
candidates.
Since we do not currently possess the resources necessary to independently develop and commercialize our drug candidates, including
our core metabolic and endocrine disease assets, VK0612 and VK5211, our earlier-stage assets, VK0214 and the EPOR and DGAT-1
programs, or any other drug candidates that we may develop, we may seek to enter into collaborative agreements to assist in the
development and potential future commercialization of some or all of these assets as a component of our strategic plan. However, our
discussions with potential collaborators may not lead to the establishment of collaborations on acceptable terms, if at all, or it may take
longer than expected to establish new collaborations, leading to development and potential commercialization delays, which would
adversely affect our business, financial condition and results of operations.
We expect to continue to incur significant research and development expenses, which may make it difficult for us to attain
profitability.
We expect to expend substantial funds in research and development, including preclinical studies and clinical trials of our drug
candidates, and to manufacture and market any drug candidates in the event they are approved for commercial sale. We also may need
additional funding to develop or acquire complementary companies, technologies and assets, as well as for working capital
requirements and other operating and general corporate purposes. Moreover, our planned increases in staffing will dramatically
increase our costs in the near and long-term.
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• recruiting and enrolling patients to participate in one or more clinical trials; and
• the failure of our collaborators to adequately resource our drug candidates due to their focus on other programs or as a result of
general market conditions.
In addition, once a clinical trial has begun, it may be suspended or terminated by us, our collaborators, the institutional review boards
or data safety monitoring boards charged with overseeing our clinical trials, the FDA, EMA or comparable foreign authorities due to a
number of factors, including:
• failure to conduct the clinical trial in accordance with regulatory requirements or clinical protocols;
• inspection of the clinical trial operations or clinical trial site by the FDA, EMA or comparable foreign authorities resulting in the
imposition of a clinical hold;
• unforeseen safety issues; or
• lack of adequate funding to continue the clinical trial.
If we experience significant delays in the commencement or completion of clinical trials, our drug development costs may increase, we
may lose any competitive advantage associated with early market entry and our ability to establish strategic collaborations may be
delayed or limited. In addition, many of the factors that cause, or lead to, a delay in the commencement or completion of clinical trials
may also ultimately lead to the denial of regulatory approval of a drug candidate.
We intend to rely on third parties to conduct our preclinical studies and clinical trials and perform other tasks for us. If these
third parties do not successfully carry out their contractual duties, meet expected deadlines, or comply with regulatory
requirements, we may not be able to obtain regulatory approval for or commercialize our drug candidates and our business,
financial condition and results of operations could be substantially harmed.
Ligand, the licensor of our development programs, has relied upon and plans to continue to rely upon third-party CROs, medical
institutions, clinical investigators and contract laboratories to monitor and manage data for our licensed ongoing preclinical and clinical
programs. We have relied and expect to continue to rely on these parties for execution of our preclinical studies and clinical trials, and
we control only certain aspects of their activities. Nevertheless, we maintain responsibility for ensuring that each of our clinical trials
and preclinical studies is conducted in accordance with the applicable protocol, legal, regulatory, and scientific standards and our
reliance on these third parties does not relieve us of our regulatory responsibilities. We and our CROs and other vendors are required to
comply with current requirements on good manufacturing practices, or cGMP, good clinical practices, or GCP, and good laboratory
practice, or GLP, which are a collection of laws and regulations enforced by the FDA, EMA or comparable foreign authorities for all of
our drug candidates in clinical development. Regulatory authorities enforce these regulations through periodic inspections of
preclinical study and clinical trial sponsors, principal investigators, preclinical study and clinical trial sites, and other contractors. If we
or any of our CROs or vendors fails to comply with applicable regulations, the data generated in our preclinical studies and clinical
trials may be deemed unreliable and the FDA, EMA or comparable foreign authorities may require us to perform additional preclinical
studies and clinical trials before approving our marketing applications. We cannot assure you that upon inspection by a given
regulatory authority, such regulatory authority will determine that any of our clinical trials comply with GCP regulations. In addition,
our clinical trials must be conducted with products produced consistent with cGMP regulations. Our failure to comply with these
regulations may require us to repeat clinical trials, which would delay the development and regulatory approval processes.
If any of our relationships with these third-party CROs, medical institutions, clinical investigators or contract laboratories terminate,
we may not be able to enter into arrangements with alternative CROs on commercially reasonable terms, or at all. In addition, our
CROs are not our employees, and except for remedies available to us under our agreements with such CROs, we cannot control
whether or not they devote sufficient time and
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Capitalization
The following table sets forth our cash and capitalization as of March 31, 2014:
• on an actual basis;
• on a pro forma basis to reflect (1) the conversion of our outstanding convertible notes in an aggregate principal amount of
$310,350 and accrued interest of approximately $9,083 into an aggregate of shares of our common stock upon the closing
of this offering, based on an assumed initial public offering price of $ , the midpoint of the price range set forth on the
cover page of this prospectus, (2) the issuance of an aggregate of shares of our common stock to Ligand pursuant to the
Master License Agreement and the Note upon the consummation of this offering, based on shares of common stock
outstanding as of immediately prior to the closing of this offering (excluding shares issued in this offering) and an assumed initial
public offering price of $ , the midpoint of the price range set forth on the cover page of this prospectus, and (3) the filing
of our amended and restated certificate of incorporation in Delaware, which will occur immediately prior to the completion of this
offering; and
• on a pro forma as adjusted basis to give further effect to our issuance and sale of shares of common stock in this offering
at an assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this
prospectus, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable
by us.
The information in this table should be read in conjunction with the sections of this prospectus entitled “Use of Proceeds,” “Selected
Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial
statements and related notes thereto included elsewhere in this prospectus.
(1) The pro forma and pro forma as adjusted information is illustrative only and following the completion of this offering will be adjusted based on the actual initial
public offering price and other terms of this offering determined at pricing.
(2) Each $1.00 increase or decrease in the assumed initial public offering price of $ , the midpoint of the price range set forth on the cover page of this
prospectus, would increase or decrease each of the pro forma as adjusted cash, additional paid-in capital, total stockholders’ equity (deficit) and total capitalization
by approximately $ million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after
deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of
shares we are offering. An
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The following selected statement of operations data and comprehensive loss data for each of the periods from September 24, 2012
(Inception) through December 31, 2012, the year ended December 31, 2013 and the cumulative period from September 24, 2012
(Inception) through December 31, 2013, and the selected balance sheet data as of December 31, 2013, have been derived from our
audited financial statements included elsewhere in this prospectus. The following selected statement of operations data and
comprehensive loss data for the three months ended March 31, 2013 and 2014, the cumulative period from September 24, 2012
(Inception) through March 31, 2014, and the selected balance sheet data as of March 31, 2014, are derived from our unaudited
financial statements included elsewhere in this prospectus. Our unaudited financial statements have been prepared on the same basis
as the audited financial statements and, in the opinion of our management, include all adjustments, consisting of normal recurring
adjustments and accruals, necessary for a fair statement of the information for the interim periods.
The historical results presented below are not necessarily indicative of the results to be expected for any future period and our interim
results are not necessarily indicative of the results that may be expected for a full year. You should read the selected financial and
operating data for the periods presented in conjunction with the sections of this prospectus entitled “Risk Factors,” “Capitalization,”
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the
related notes included elsewhere in this prospectus.
Cumulative
Period from Period from
September 24, September 24,
2012 Three Three 2012
(Inception) Year Months Months (Inception)
through Ended Ended Ended through
December 31, December 31, March 31, March 31, March 31,
2012 2013 2013 2014 2014
(Unaudited) (Unaudited) (Unaudited)
Statement of Operations
Revenues $ – $ – $ – $ – $ –
Operating expenses
Research and development 68,871 11,613 575 50,000 130,484
General and administrative 40,770 89,463 2,615 159,737 289,970
Total operating expenses 109,641 101,076 3,190 209,737 420,454
Loss from operations (109,641) (101,076) (3,190) (209,737) (420,454)
Other expenses
Loss from change in fair value of debt
conversion feature – 20,622 37 10,249 30,871
Interest expense 1,386 24,549 1,356 8,955 34,890
Total other expenses 1,386 45,171 1,393 19,204 65,761
Net loss $ (111,027) $ (146,247) $ (4,583) $ (228,941) $ (486,215)
Basic and diluted net loss per share $ (0.07) $ (0.07) $ (0.00) $ (0.07) $ (0.24)
Weighted-average shares used to compute basic
and diluted net loss per share 1,482,625 2,043,295 1,794,444 3,191,666 2,026,311
Pro forma basic and diluted net loss per share
(unaudited) $ $
Weighted-average pro forma shares used to
compute basic and diluted net loss per
common share (unaudited)
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Cumulative
Period from
Period from September 24,
September 24, 2012 Three Months Three Months 2012 (Inception)
(Inception) through Year Ended Ended Ended through
December 31, 2012 December 31, 2013 March 31, 2013 March 31, 2014 March 31, 2014
(Unaudited) (Unaudited) (Unaudited)
Research and development $ – $ 750 $ – $ – $ 750
General and administrative 5,612 2,804 965 904 9,320
Total $ 5,612 $ 3,554 $ 965 $ 904 $ 10,070
At March 31, 2014, there were 2,912,500 unvested shares and $173,547 of total unrecognized compensation costs related to the
6,000,000 shares of common stock outstanding, which is expected to be recognized over a weighted average period of 1.05 years.
Results of Operations
Comparison of the Three Months Ended March 31, 2013 and 2014
The following table summarizes our research and development expenses for the three months ended March 31, 2013 and 2014.
During the three months ended March 31, 2013, we incurred minimal research and development expenses, since we were in the process
of negotiating to license certain technology from Ligand and had not engaged in any significant research or development during such
time. During the three months ended March 31, 2014, we expensed a $50,000 payment made to Ligand to extend our option to license
certain technology from Ligand.
The following table summarizes our general and administrative expenses for the three months ended March 31, 2013 and 2014.
The increase in general and administrative expenses was primarily due to an increase of $77,403 in legal fees and an increase in
salaries and wages, including stock-based compensation expense of $29,939, during the three months ended March 31, 2014 as
compared to the same period in 2013. We began paying salaries to our founders during the second half of 2013. No salaries were paid
by us during the three months ended March 31, 2013. The increase also reflects $40,769 in accounting fees incurred during the three
months ended March 31, 2014 as we prepared for and commenced our financial audits during the three months ended March 31, 2014,
as compared to no accounting fees incurred during the three months ended March 31, 2013.
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Other Expenses
The following table summarizes our other expenses for the three months ended March 31, 2013 and 2014.
Other expenses increased during the three months ended March 31, 2014 primarily due to an increase in the fair value of the debt
conversion feature of the Convertible Notes and an increase in interest expense under the Convertible Notes. The increase in loss from
change in fair value of debt conversion feature of $10,212 during the three months ended March 31, 2014 relative to the three months
ended March 31, 2013 was due primarily to our issuance of additional Convertible Notes in an aggregate principal amount of $260,350
after March 31, 2013, which carried their own additional loss from change in debt conversion feature charge. In addition, interest
expense during the three months ended March 31, 2014 increased by $7,599 as compared to the same period in 2013, due primarily to
an increase in amortization of the debt discount and additional interest expense accrued on Convertible Notes issued after March 31,
2013.
Comparison of the Period from September 24, 2012 (Inception) through December 31, 2012 to the Year Ended December 31, 2013
The following table summarizes our research and development expenses for the period from September 24, 2012 (Inception) through
December 31, 2012 and the year ended December 31, 2013.
Period from
September 24, 2012 %
(Inception) through Year Ended Increase Increase
December 31, 2012 December 31, 2013 (Decrease) (Decrease)
Research and development expenses $ 68,871 $ 11,613 $(57,258) (83%)
Research and development expenses for the period from September 24, 2012 (Inception) through December 31, 2012 related primarily
to costs associated with an option to license intellectual property from Ligand and other legal costs related to negotiation discussions.
We paid an option fee of $50,000 in the period ended December 31, 2012. We did not make any option or similar payments in 2013
and did not engage in significant research and development efforts during this period.
The following table summarizes our general and administrative expenses for the period from September 24, 2012 (Inception) through
December 31, 2012 to the year ended December 31, 2013.
Period from
September 24, 2012 %
(Inception) through Year Ended Increase Increase
December 31, 2012 December 31, 2013 (Decrease) (Decrease)
General and administrative expenses $ 40,770 $ 89,463 $ 48,693 119%
The increase in general and administrative expenses during the year ended December 31, 2013 as compared to the period from
September 24, 2012 (Inception) through December 31, 2012 was primarily due to the payment of salaries and wages, including stock-
based compensation expense of $53,054 in 2013, an increase in rent for
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The following table summarizes our cash flows for the periods indicated below:
During the period from September 24, 2012 (Inception) through December 31, 2012, cash used in operating activities was $50,000.
Cash used in operating activities primarily reflected our net losses for the period, offset by changes in our working capital accounts,
primarily an increase in accounts payable.
During the year ended December 31, 2013, cash used in operating activities was $78,235. Cash used in operating activities primarily
reflected our net losses for the period, offset by non-cash charges such as amortization of discount charged to interest expense on
Convertible Notes and an increase in change in fair value of debt conversion feature as well as changes in our working capital
accounts, primarily an increase in accounts payable and accrued expenses.
During the three months ended March 31, 2013, cash used in operating activities was $0. Cash used in operating activities was $0 as a
result of our net losses for the period being offset by non-cash charges such as amortization of discount charged to interest expense on
Convertible Notes as well as changes in our working capital accounts, primarily an increase in accounts payable and accrued expenses.
During the three months ended March 31, 2014, cash used in operating activities was $100,768. Cash used in operating activities
primarily reflected our net losses for the period, offset by non-cash charges such as amortization of discount charged to interest expense
on Convertible Notes and an increase in change in fair value of debt conversion feature as well as changes in our working capital
accounts, primarily an increase in accounts payable and accrued expenses and an increase in deferred IPO financing costs.
During the period from September 24, 2012 (Inception) through March 31, 2014, cash used in operating activities was $229,003. Cash
used in operating activities primarily reflected our net losses for the period, offset by non-cash charges such as amortization of discount
charged to interest expense on convertible notes and an increase in change in fair value of debt conversion feature as well as changes in
our working capital accounts, primarily an increase in accounts payable and accrued expenses and an increase in deferred IPO
financing costs.
During the period from September 24, 2012 (Inception) through December 31, 2012, cash provided by financing activities was $50,000
and consisted of proceeds from the issuance of Convertible Notes.
During the year ended December 31, 2013, cash provided by financing activities was $257,854, which consisted of proceeds from the
issuance of Convertible Notes in the amount of $260,350, offset by the repurchase of shares of restricted common stock for an
aggregate purchase price of $2,503.
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Legal Matters
Paul Hastings LLP, Palo Alto, California, which has acted as our counsel in connection with this offering, will pass upon the validity of
the shares of common stock being offered by this prospectus. The underwriters have been represented by Goodwin Procter LLP, New
York, New York.
Changes in and Disagreements with Independent Registered Public Accounting Firm on Accounting and
Financial Disclosure
On March 4, 2014, we engaged MaloneBailey LLP, or MaloneBailey, to audit our financial statements as of and for the fiscal years
ended December 31, 2012 and 2013. On April 7, 2014, our board of directors approved the dismissal of MaloneBailey as our
independent registered public accounting firm, effective immediately.
MaloneBailey did not issue any reports with respect to our financial statements. Accordingly, there were no reports issued by
MaloneBailey with respect to us that contained an adverse opinion or disclaimer of opinion and MaloneBailey did not issue any report
that was qualified or modified as to uncertainty, audit scope or accounting principles.
From September 24, 2012 (Inception) through April 7, 2014: (1) there were no disagreements between us and MaloneBailey on any
matters of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which, if not resolved to the
satisfaction of MaloneBailey, would have caused MaloneBailey to make reference to the matter in any report they would have issued;
and (2) there were no “reportable events” as that term is described in Item 304(a)(1)(v) of Regulation S-K.
We provided MaloneBailey with a copy of the foregoing disclosures and requested that MaloneBailey provide a letter addressed to the
SEC stating whether it agrees with the foregoing statements. MaloneBailey furnished such a letter, dated July 1, 2014, and a copy of
such letter is filed as Exhibit 16.1 to the registration statement of which this prospectus forms a part.
Effective as of April 7, 2014, our board of directors appointed Marcum LLP, or Marcum, as our independent registered public
accounting firm to audit our financial statements as of and for the fiscal years ended December 31, 2012 and 2013, and for the fiscal
year ending December 31, 2014. From September 24, 2012 (Inception) through April 7, 2014, neither we nor anyone on our behalf
consulted with Marcum regarding (1) the application of accounting principles to a specified transaction, either completed or proposed,
(2) the type of audit opinion that might be rendered on our financial statements, or (3) any matter that was either the subject of a
disagreement, as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions thereto, or a “reportable event” as
described in Item 304(a)(1)(v) of Regulation S-K.
Experts
The audited financial statements for the period from September 24, 2012 (Inception) through December 31, 2012 and for the year
ended December 31, 2013 have been included herein in reliance upon the report of Marcum LLP, an independent registered public
accounting firm, and upon the report of such firm given upon their authority as experts in accounting and auditing.
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock
offered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the
information set forth in the registration statement, some of which is
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1. Organization, Liquidity and Management’s Plan, and Summary of Significant Accounting Policies
(Information as of March 31, 2014 and thereafter and for the three months ended March 31, 2013 and 2014 is unaudited)
The Company
Viking Therapeutics, Inc., a Delaware corporation (the “Company”), is a clinical-stage biopharmaceutical company focused on the
development of novel, first-in-class or best-in-class therapies for metabolic and endocrine disorders.
The Company was incorporated under the laws of the State of Delaware on September 24, 2012 and its principal executive offices are
located in San Diego, CA.
Development Stage
Through March 31, 2014, the Company has devoted substantially all of its efforts to raising capital, building infrastructure and
acquiring rights to intellectual property, and has not realized revenues from its planned principal operations. Accordingly, the Company
is considered to be in the development stage.
Basis of Presentation
The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United
States of America (“GAAP”).
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect
the amounts reported in the accompanying financial statements. Significant estimates made in preparing these financial statements
relate to determining the fair value of the debt conversion liability and accounting for certain commitments. Actual results could differ
from those estimates.
Financial instruments that potentially subject the Company to a concentration of credit risk principally consist of cash. The Company
maintains its cash balances at what it believes are high credit-quality financial institutions. At times, balances at a single financial
institution may exceed federally insured limits of $250,000.
As of March 31, 2014, the Company did not have sufficient working capital to fund its planned operations without additional
financing. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. The accompanying
financial statements have been prepared assuming that the Company will continue as a going concern. This basis of accounting
contemplates the recovery of the Company’s assets and the satisfaction of its liabilities in the normal course of business. A successful
transition to attaining profitable operations is dependent upon achieving a level of positive cash flows adequate to support the
Company’s cost structure. In order to continue its operations, the Company must raise additional funds through equity or debt
financings or generate revenues from collaborative partners. There can be no assurance that the Company will be able to obtain
additional equity or debt financing on terms acceptable to the Company, or at all. If the Company is unable to obtain sufficient funding,
it may be required to significantly curtail its planned operations, which may have a material, adverse impact on its ability to continue as
a going concern. The financial statements do not include any adjustments relating to the recoverability and classification of recorded
asset amounts and classification of liabilities that might be necessary should the Company be forced to take any such actions.
F-6
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Case 1:18-cv-11926-PBS Document 127-19
Table of Contents
The financial statements as of March 31, 2014, for the three months ended March 31, 2013 and 2014, and for the cumulative period
from September 24, 2012 (Inception) through March 31, 2014 are unaudited. The unaudited financial statements have been prepared on
the same basis as the audited financial statements and, in the opinion of management, include all adjustments, consisting of normal
recurring adjustments, considered necessary to state fairly the financial information set forth therein, in accordance with GAAP.
The results of operations for the unaudited interim period ended March 31, 2014 are not indicative of the results which may be reported
for the year ending December 31, 2014.
The Company’s financial instruments consist of cash, accounts payable, debt and its related debt conversion feature liability. The
carrying amount reported in the accompanying balance sheets for cash and accounts payable approximates fair value because of the
short-term maturity of those instruments. The Company’s convertible notes are convertible into capital stock, and this debt conversion
feature (see Note 2) has been recorded as a liability based on “Level 3” fair value inputs, which consist of unobservable inputs and
generally reflect management’s estimate of assumptions that market participants would use in pricing the liability. The fair value of the
debt conversion feature required management to make assumptions about the probability of the occurrence of a Qualifying Financing
and the convertible notes being converted based on the applicable conversion terms. Alternate probabilities would have resulted in
increases or decreases in the fair value of the debt conversion feature. The Company did not have any assets or liabilities categorized as
Level 1 or Level 2 in the fair value hierarchy as of December 31, 2012, December 31, 2013 or March 31, 2014. There have been no
changes in the methodologies used at December 31, 2012, December 31, 2013 or March 31, 2014.
The fair values of the Company’s financial instruments are presented below:
F-7
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Case 1:18-cv-11926-PBS Document 127-19
Table of Contents
The table below presents a summary of changes in the Company’s debt conversion feature measured at fair value on a recurring basis
using significant unobservable inputs (Level 3) for the period from September 24, 2012 (Inception) through March 31, 2014:
Revenue Recognition
The Company has not recorded any revenues since its inception. However, in the future the Company may enter into collaborative
research and licensing agreements, under which the Company could be eligible for payments made in the form of upfront license fees,
research funding, cost reimbursement, contingent event-based payments and royalties.
Revenue from upfront, nonrefundable license fees is recognized over the period that any related services are to be provided by the
Company. Amounts received for research funding are recognized as revenue as the research services that are the subject of such
funding are performed. Revenue derived from reimbursement of research and development costs in transactions where the Company
acts as a principal are recorded as revenue for the gross amount of the reimbursement, and the costs associated with these
reimbursements are reflected as a component of research and development expense in the statements of operations.
Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 605-28, Revenue Recognition –
Milestone Method (“ASC 605-28”), established the milestone method as an acceptable method of revenue recognition for certain
contingent event-based payments under research and development arrangements. Under the milestone method, a payment that is
contingent upon the achievement of a substantive milestone is recognized in its entirety in the period in which the milestone is
achieved. A milestone is an event (1) that can be achieved based in whole or in part on either the Company’s performance or on the
occurrence of a specific outcome resulting from the Company’s performance, (2) for which there is substantive uncertainty at the date
the arrangement is entered into that the event will be achieved, and (3) that would result in additional payments being due to the
Company. The determination that a milestone is substantive is judgmental and is made at the inception of the arrangement. Milestones
are considered substantive when the consideration earned from the achievement of the milestone is (a) commensurate with either the
Company’s performance to achieve the milestone or the enhancement of value of the item delivered as a result of a specific outcome
resulting from the Company’s performance to achieve the milestone, (b) relates solely to past performance, and (c) is reasonable
relative to all deliverables and payment terms in the arrangement.
F-8
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Case 1:18-cv-11926-PBS Document 127-19
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on July 1, 2014.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian
Lian, Ph.D. and Michael Dinerman, M.D., and each of them, as his true and lawful attorneys-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign the Registration Statement on
Form S-1 of Viking Therapeutics, Inc., and any or all amendments (including post-effective amendments) thereto and any new
registration statement with respect to the offering contemplated thereby filed pursuant to Rule 462(b) of the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agent, or
his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-1 has been signed by the
following persons in the capacities and on the dates indicated.
/s/ Brian Lian, Ph.D. President, Chief Executive Officer and Director July 1, 2014
Brian Lian, Ph.D. (Principal Executive Officer)
II-8
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Case 1:18-cv-11926-PBS Document 127-20 Filed 09/30/20 Page 1 of 19
BRIAN LIAN, PH.D. December 12, 2019
Reported by:
Veronica S. Thompson
CSR 6056, RPR, CRR, CCRR
KEY Discovery
Page 2
United States District Court
District of Massachusetts
Page 3
APPEARANCES
For Plaintiff:
U.S. Securities and Exchange Commission
By: Alfred A. Day, Sr. Trial Counsel
33 Arch Street
Boston, Massachusetts 02110
617-573-4537
[email protected]
For Defendants:
Libby Hoopes
By: Douglas A. Brooks, Esq.
399 Boylston Street
Boston, Massachusetts 02116
617-338-9300
[email protected]
Page 4
INDEX
EXAMINATION PAGE
By Mr. Brooks 7
Lunch recess 52
EXHIBITS
Agreement
VKTX_0001058-0001064
Ligand Pharmaceuticals;
LGND_0041028-0041031
VKTX_0000386-0000387
VKTX_0000278-0000289
Page 5
Exhibit 165 Email string ending 05/02/14 from 119
VKTX_0000422
LGND_0074148-0074149
Exhibit 117 97 23
Exhibit 118 60 9
Page 6
SAN DIEGO, CALIFORNIA, DECEMBER 12, 2019, 11:10 AM
California 92101.
the witness.
witness.
Page 7
1 Reindel on behalf of Mr. Lian and Viking Therapeutics.
2 MR. BONDI: Excuse me. Viking Therapeutics.
5 BRIAN LIAN,
6 having been duly sworn, testified as follows:
7 EXAMINATION
8 BY MR. BROOKS:
14 this matter.
16 A. No.
19 A. No.
21 been deposed.
22 You and I should do our best, and I'll do my
23 best, not to talk over each other because it's hard for
24 the stenographer to get it down. All responses should
Page 56
1 met with the SEC in 2015?
4 may proceed with the SEC, and that was it, but nothing,
7 Fr. Lemelson?
23 shown to you.
24 ///
Page 76
1 that it was part of the risk language. We certainly had
3 trials.
5 A. Uh-huh.
20 BY MR. BROOKS:
Page 77
1 manufacturing of drug product, it would be that
2 manufacturer. If it's conducting some assay -- so
4 vendors.
15 BY MR. BROOKS:
17 vendors?
18 A. The names that -- sure. The -- WuXi had
Page 129
1 VIDEOGRAPHER: We're on the record at 3:30 PM.
2 BY MR. BROOKS:
14 sort of depth.
21 to Viking.
Page 130
1 the initial report from someone at Ligand, but I just
6 on our board.
14 occurred, no.
17 Q. Okay.
Page 131
1 that's what I saw.
3 of the report?
11 report?
16 of it, yeah.
21 that report?
Page 132
1 July 2014 report?
9 A. No.
15 BY MR. BROOKS:
20 changed hands?
21 BY MR. BROOKS:
22 Q. Yeah.
23 A. Between whom?
·4· before me at the time and place herein set forth; that
19
21
22
23
· · · · · · · ____________________________
24· · · · · · Veronica S. Thompson
· · · · · · · CSR 6056, RPR, CRR, CCRR
Case 1:18-cv-11926-PBS Document 127-20 Filed 09/30/20 Page 16 of 19
BRIAN LIAN, PH.D. December 12, 2019
Page 140
1 DECLARATION UNDER PENALTY OF PERJURY
11 20______, at ______________________.
12
13
14 ____________________________
16
17
18
19
20
21
22
23
24
Page 141
1 DEPOSITION ERRATA SHEET
7 2. To conform to facts.
Page 142
1 From _______________________ to ________________________
Page 143
1 transcript is true and correct.
5 ___________ __________________________________________
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Highly Confidential
30(b)(6) Video Deposition of LIGAND PHARMACEUTICALS
JOHN HIGGINS
San Diego, California
December 11, 2019
Reported by:
Veronica S. Thompson
CSR 6056, RPR, CRR, CCRR
KEY Discovery Job 371
Page 2
United States District Court
District of Massachusetts
Highly Confidential
30(b)(6) Video Deposition of Ligand Pharmaceuticals
JOHN HIGGINS
was taken on behalf of Defendants at 600 West Broadway,
Suite 300, San Diego, California 92101, commencing at
9:03 AM and ending at 7:03 PM, on Wednesday,
December 11, 2019, before Veronica S. Thompson,
CSR 6056.
Page 3
APPEARANCES
For Plaintiff:
U.S. Securities and Exchange Commission
By: Alfred A. Day, Sr. Trial Counsel
33 Arch Street
Boston, Massachusetts 02110
617-573-4537
[email protected]
For Defendants:
Libby Hoopes
By: Douglas A. Brooks, Esq.
399 Boylston Street
Boston, Massachusetts 02116
617-338-9300
[email protected]
Page 4
INDEX
EXAMINATION PAGE
By Mr. Brooks 9
EXHIBITS
Meeting, 09/18/13;
LGND_0078931-0079032
Fitzgerald; LGND_009625-009633
LGND_0037632-36633
Silva; LGND_0000051-0000053
Page 5
Exhibit 144 Email string ending 10/28/15 from 203
LCM_SEC0001360-0001361
09/25/14; LGND_0080678-0080737
06/08/15; LGND_0080738-0080799
LGND_0041839-0041841
LGND_00375666
LGND_0039378-0039409
Page 6
FIRST REFERENCE TO PREVIOUSLY MARKED EXHIBITS
Exhibit 4 85 4
Exhibit 75 97 22
Exhibit 76 108 2
Exhibit 77 122 4
Exhibit 79 125 10
Exhibit 80 129 5
Exhibit 84 148 4
Exhibit 85 149 12
Exhibit 88 161 17
Exhibit 89 160 23
Exhibit 90 161 17
Exhibit 91 162 20
Exhibit 96 165 19
Exhibit 98 173 16
Exhibit 99 179 6
Exhibit 116 12 12
Exhibit 128 64 19
Page 7
QUESTIONS INSTRUCTED NOT TO ANSWER
PAGE LINE
217 10
271 17
282 7
320 20
Page 8
1 SAN DIEGO, CALIFORNIA, DECEMBER 11, 2019, 9:03 AM
4 9:04 AM.
12 California 92101.
18 Exchange Commission.
21 the witness.
Page 9
1 Reindel on behalf of Ligand Pharmaceuticals and
2 Mr. Higgins.
5 JOHN HIGGINS,
18 EXAMINATION
19 BY MR. BROOKS:
24 A. Yes.
Page 99
1 Q. And have you spoken with Mr. Foehr about his
2 deposition?
3 A. No.
8 A. Yes.
15 A. Yes.
17 Mr. Voss?
20 Q. Okay.
Page 100
1 company?
5 statement?
6 A. No.
7 Q. Why not?
19 A. No.
24 the lies but writing new lies, that this was illegal,
Page 116
1 there's near $12,000 versus -- of debt versus one dollar
2 of value.
Page 212
1 VIDEOGRAPHER: This marks the end of media
8 BY MR. BROOKS:
10 A. Yes.
18 A. Yes.
21 de Silva.
Page 213
1 Latham & Watkins?
8 BY MR. BROOKS:
11 involved in this?
15 BY MR. BROOKS:
23 worked from.
Page 254
1 place at that SEC meeting in September 2014 in Boston?
2 A. No.
14 A. Correct.
16 purpose?
17 A. I do not recall.
24 capacity before?
Page 255
1 A. Ligand -- members of Ligand's board had, but
2 Ligand --
3 Q. Correct.
7 A. No.
8 Q. -- Cahill?
14 A. I -- I do not recall.
16 A. The board.
17 Q. Okay.
18 A. Board of directors.
Page 278
1 discussed Fr. Lemelson's second report having been
10 BY MR. BROOKS:
17 July 3 report?
20 statements, yes.
21 BY MR. BROOKS:
24 report?
Page 279
1 MR. BONDI: Object to the form.
3 BY MR. BROOKS:
6 A. Yep.
9 A. Yes.
17 Q. Sure.
·4· before me at the time and place herein set forth; that
19
21
22
23
· · · · · · · ____________________________
24· · · · · · Veronica S. Thompson
· · · · · · · CSR 6056, RPR, CRR, CCRR
Case 1:18-cv-11926-PBS Document 127-21 Filed 09/30/20 Page 20 of 22
JOHN HIGGINS December 11, 2019
Page 350
1 DECLARATION UNDER PENALTY OF PERJURY
11 20______, at ______________________.
12
13
14 ____________________________
15 JOHN HIGGINS
16
17
18
19
20
21
22
23
24
Page 351
1 DEPOSITION ERRATA SHEET
2 Case Name: SEC v. Lemelson
Name of Witness: JOHN HIGGINS
3 Date of Deposition: 12/11/19
KEY Discovery Job 371
4 Reason Codes: 1. To clarify record.
2. To conform to facts.
5 3. To correct transcription errors.
6
7 Page ______ Line ______ Reason ______
8 From _______________________ to ________________________
9 Page ______ Line ______ Reason ______
10 From _______________________ to ________________________
11 Page ______ Line ______ Reason ______
12 From _______________________ to ________________________
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14 From _______________________ to ________________________
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16 From _______________________ to ________________________
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18 From _______________________ to ________________________
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20 From _______________________ to ________________________
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24 From _______________________ to ________________________
Page 352
1 Page ______ Line ______ Reason ______
2 From _______________________ to ________________________
3 Page ______ Line ______ Reason ______
4 From _______________________ to ________________________
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6 From _______________________ to ________________________
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8 From _______________________ to ________________________
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10 From _______________________ to ________________________
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12 From _______________________ to ________________________
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14 From _______________________ to ________________________
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18 From _______________________ to ________________________
19 Page ______ Line ______ Reason ______
20 From _______________________ to ________________________
21 ______ Subject to the above changes, I certify that the
transcript is true and correct.
22 ______ No changes have been made. I certify that the
transcript is true and correct.
23
___________ __________________________________________
24 Date John Higgins
Table of Contents
Overview ................................................................................................................................................... 1
Disclaimer.................................................................................................................................................. 2
Q2 2014 EPS Plunges 76 Percent .............................................................................................................. 3
Collaborative Research and Development Revenue Continues to Plummet ........................................... 3
When Non-Cash Items are Removed, Q2 2014 Revenue Has Decreased ................................................ 3
Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based Compensation......... 4
Competitive Threat to Promacta and Kyprolis Not Yet Realized .............................................................. 5
Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent Downside
Risk Reaffirmed ......................................................................................................................................... 6
Full Disclaimer ........................................................................................................................................... 7
Overview
o Lemelson Capital’s original June 16, 2014 report can be found here.
o Lemelson Capital’s appended 12-page update published on July 3, 2014, can be found
here.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 2 of 8
2
Between June 16, 2014 and August 1, 2014, a period of approximately six weeks, shares in
Ligand Pharmaceuticals have plunged roughly 35 percent, losing approximately $490 million in
market capitalization.
Collaborative Research and Development continue a multi-year slide with the release of the
company’s Q2 earnings report, dropping ~80% in just a matter of four years.
When non-cash items are excluded, Q2 2014 revenue actually declined year over year.
Ligand’s press releases and communications with investors continue to paint an exceedingly and
deceptively optimistic picture, including in its Q2 2014 earnings release this morning. Yet, the
firm’s SEC filings reveal a business whose key revenue streams and earnings continue to decline,
or are likely to diminish entirely. Revenue and earnings are down 76 percent year over year,
contingent liabilities are up roughly 148 percent while management continues a policy of
extraordinary shareholder dilution through stock-based compensation that exceeds by a
significant margin the company’s net income from continuing operations.
Once intangibles are removed from balance sheet, company shareholder equity is just $21,000
to shield the common shareholder from the litany of growing liabilities and severe competitive
threats the company faces.
Promacta sales have not yet been impaired by new Hep C regimens that address multiple
genotypes, but will be. Kyprolis, the company’s other major royalty generating program also
faces severe competitive threats.
The financial condition of the company continues to erode rapidly offering essentially zero
margin of safety to common shareholders.
Disclaimer
Following publication, Lemelson Capital may transact in the securities of the company. Lemelson
Capital has obtained all information herein from sources it believes to be accurate and reliable.
However, such information is presented “as is,” without warranty of any kind whether express
or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy,
timeliness, or completeness of any such information or with regard to the results obtained from
its use. All expressions of opinion are subject to change without notice, and Lemelson Capital
does not undertake to update this report or any information contained herein.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 3 of 8
3
Q2 2014 EPS has plunged 76 percent year over year. Net income attributable to common shareholders
for the second quarter of 2014 was just $1.6 million, or $0.07 per diluted share, compared with net
income attributable to common shareholders for the second quarter of 2013 of $6.1 million,
or $0.30 per diluted share.
Net income attributable to common shareholders for the first six months of 2014 was $3.7 million,
or $0.17 per diluted share, compared with net income attributable to common shareholders of $7.6
million, or $0.37 per diluted share, for the same period in 2013, representing a decrease of 54.1 percent.
Collaborative research and development and other revenues declined to just ~$4.3 million from ~$5.0
million for the same period in 2013, a decrease of 14 percent year over year and continuing a multi-year
trend.
Once the TG Therapeutics non-cash licensing agreement is backed out of revenue, collaborative
research and development revenue declined even further, to just $3 million for all of 1H 2014, or a
decline of some 38 percent over the same period in 2013.
Collaborative R & D revenues (a substantial part of Ligand’s overall sales and business model), have
already declined 79 percent in just the last four years, continuing to further concentrate the Company’s
business into just two precariously fragile revenue streams.
The company reported in the Q2 earnings release that revenues for the second quarter of 2014
were $10.6 million, an increase of 11 percent compared with $9.6 million for the same period in 2013.
However, this presentation of the data is potentially misleading.
An upfront, non-cash license fee was received by Ligand from TG Therapeutics for the licensing of IRAK-4
in the second quarter of 2014. Under the terms of the agreement, Ligand received 125,000 shares of TG
common stock, valued at approximately $1.2 million at signing. As of the close of market on August 1,
2014, the 125,000 shares had a value of just $917,500, a decrease in value to the company of some
$300,000.
Once this non-cash licensing fee is removed from the Q2 revenue figures, the company’s revenue was
only $9.4 million, which is 2.1 percent less than the $9.6 million of revenue the company had in Q2
2013.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 4 of 8
4
A statement of cash flows would have revealed this, but cash flow reporting was oddly omitted from the
company’s Q2 2014 earnings release.
Material sales decreased approximately $500,000, or 13 percent, to $3.5 million from $4.0 million for
the same period in 2013, representing a drop of some 13 percent.
Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based
Compensation
Net income from continuing operations dropped from $3,694,000 in Q2 of 2013 to just $1,592,000 in Q2
2014, representing a drop of approximately 57 percent (a decline of approximately 76 percent in EPS
when accounting for continued dilution).
Contingent liabilities to the company increased an extraordinary 147 percent during the same time
period from $-2,741,000 to $1,312,000, while mark-to-market adjustments for investments would have
taken another $797,000 off the income statement had the company reported the more correct and
accurate GAAP figures.
Despite the drop in revenues and the plunge in EPS, management continued to siphon off shareholder
value through an extraordinary increase of approximately 100 percent in stock-based compensation
during the first six months of 2014 alone.
“…Ligand which has only speculative value and virtually no perceptible insight into
future revenue or profitability, while maintaining a spectrum of significant liabilities,
including from the Company itself vis-à-vis spectacular dilution.
LIGAND PHARMACEUTICALS - SEVERE COMPETITIVE THREAT TO KEY ROYALTY PROGRAM AND “GOING CONCERN”
RISK DRIVE 100 PERCENT DOWNSIDE
While net income attributable to Ligand common shareholders fell by approximately 53 percent from 1H
2013 ($7.6 million) to 1H 2014 ($3.7 million), management increased their awards by more than 100
percent, to approximately $5.1 million, or 27 percent greater than the company’s entire 1H 2014
earnings, with the lions share likely going to the company’s top two executives, validating the original
research report that one of the greatest risk to Ligand earnings is from management itself.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 5 of 8
5
Promacta revenues (as was previously reported) from Hepatitis C patients are dependent on the use of
interferon in Hepatitis C therapeutic regimens, which Lemelson Capital’s industry sources expect to be
reduced significantly, if not entirely, in the future due to approvals of the new oral Hepatitis C
treatments including but not limited to Gileand’s blockbuster therapy, Sovaldi.
In its first two industry record shattering quarters on the market, Sovaldi has racked
up sales of $5.8 billion despite reports that thousands of patients are still waiting for
Gilead's two drugs in one pill combination treatment expected to gain U.S. approval
in October.
It was only last December 2013 that the U.S. Food and Drug Administration (FDA) approved Sovaldi, an
oral treatment for chronic Hepatitis C, for use with Ribavirin and interferon. Solvaldi also appears to be
used “off label” with Johnson and Johnson’s (NYSE:JNJ) Olysio. These new oral combination regimens
present a severe competitive threat to future Promacta sales as outlined in the original June 16,
research report. However, this has not yet shown up in GlaxoSmithKline’s (NASDAQ: GSK) Promacta
sales figures since prescribing physicians, as part of the initial regiments, have continued to prescribe
the new treatments in combination with interferon (a point also outlined in the original June 16 report),
a practice set to change.
Further, Solvaldi will gain additional future competition from drugs in development by AbbVie Inc.
(NASDAQ:ABBV) and Merck & Company (NYSE:MRK), creating a more competitive market for the oral
Hepatitis C drug market that will undoubtedly drive future promotional efforts, price points and
parenthetically further pressure legacy indications such as Promacta, which without interferon have no
commercially viable application in Hepatitis C treatment.
The key point is that doctors will eliminate interferon (an expensive indication) in the future when
prescribing Sovaldi and other oral combination regimens.
Further clouding the issue is the fact that at least one vocal analyst has repeatedly promoted the idea
that interferon will continue to be a mainstay of Hepatitis C treatment for certain genotypes outside of
the U.S. However, prescribing information for Solvadi contradicts and invalidates such a suggestion.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 6 of 8
6
Like Promacta, Kyprolis also faces an extraordinary competitive threat from two entrenched multiple
myloma (MM) indications, Celgene’s (NASDAQ:CELG) Revlimid and Takeda Pharmaceutical Company
Limited’s (OTC:TKPYY) Velcade. Celgene also markets Pomalyst (Pomalidomide), another thalidomide
analogue, which was approved in 2013 for the treatment of MM patients who have received at least
two prior therapies including Revlimid and Velcade and have demonstrated disease progression on or
within 60 days of completion of the last therapy.
Although Kyprolis has U.S. Orphan Drug designation with exclusivity through July 2019 and U.S. patents
that extend until at least 2025, Velcade patent expires in the U.S. in 2017 and 2019 in the E.U, opening
the door for much less expensive generics. Kyprolis’ future competition may also include Amgen’s
pipeline product, Oprozomib, that is in Phase II development.
Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent
Downside Risk Reaffirmed
EPS has plunged 76 percent year-over year through Q2 2014 without explanation from
management.
Collaborative research and development revenue has fallen 38 percent year-over-year (when
non-cash items are backed out), continuing a multi-year trend.
The company has awarded its executives 47.4 percent more in stock-based compensation than
the company has earned in Q2 2014, and ~27 more than the company earned in 1H 2014.
The company’s tangible equity is just $21,000 against a comparatively monstrous market
capitalization of approximately $1.1 billion, while the company’s net earnings were just $1.59
million in Q2 2014.
Liabilities continue to grow at a fast pace, while all of the company’s insipid earnings continue to
be entirely eliminated by ever-increasing stock-based compensation.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 7 of 8
7
The Company’s business model as a “broker” of obscure, third-line, unknown and largely
untested indications is inherently flawed and filled with extraordinary risk. It is worth
considering why so much time, energy and resources are invested by the company in
extraordinarily complex transactions that are often presented to the public in a different light
than they are to the SEC.
Common shareholders of Ligand now have just $21,000 in tangible equity to shield them from
the slightest bad news which could send the company’s $1.1 billion market capitalization
tumbling substantially further. Indeed the company’s intangible and contingent liabilities could
easily exceed $21,000 in a day.
For this reason, as well as those enumerated in LCM’s previous reports, the intrinsic value of
Ligand shares must be reaffirmed as $0 with downside risk justifiably calculated at 100 percent.
Full Disclaimer
As of the publication date of this report, Lemelson Capital Management LLC has a short position
in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains in the event
that the price of the stock declines. Following publication of the report, Lemelson Capital may
transact in the securities of the Company covered herein. All content in this report represents
the opinions of Lemelson Capital. Lemelson Capital has obtained all information herein from
sources it believes to be accurate and reliable. However, such information is presented “as is,”
without warranty of any kind, whether express or implied. Lemelson Capital makes no
representation, express or implied, as to the accuracy, timeliness, or completeness of any such
information or with regard to the results obtained from its use. All expressions of opinion are
subject to change without notice, and Lemelson Capital does not undertake to update or
supplement this report or any information contained herein.
This document is for informational purposes only and it is not intended as an official
confirmation of any transaction. All market prices, data and other information are not
warranted as to completeness or accuracy and are subject to change without notice. The
information included in this document is based upon selected public market data and reflects
prevailing conditions and Lemelson Capital’s views as of this date, all of which are accordingly
subject to change. Lemelson Capital’s opinions and estimates constitute a best efforts judgment
and should be regarded as indicative, preliminary and for illustrative purposes only.
Case 1:18-cv-11926-PBS Document 127-22 Filed 09/30/20 Page 8 of 8
8
Any investment involves substantial risks, including, but not limited to, pricing volatility,
inadequate liquidity, and the potential complete loss of principal. This report’s estimated
fundamental value only represents a best efforts estimate of the potential fundamental
valuation of a specific security, and is not expressed as, or implied as, assessments of the quality
of a security, a summary of past performance, or an actionable investment strategy for an
investor.
This document does not in any way constitute an offer or solicitation of an offer to buy or sell
any investment, security, or commodity discussed herein or of any of the affiliates of Lemelson
Capital. Also, this document does not in any way constitute an offer or solicitation of an offer to
buy or sell any security in any jurisdiction in which such an offer would be unlawful under the
securities laws of such jurisdiction. To the best of Lemelson Capital’s abilities and beliefs, all
information contained herein is accurate and reliable.
Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash or
derivative positions in any Company discussed in this document at any time. As of the original
publication date of this document, investors should assume that Lemelson Capital is short
shares of Ligand and may have positions in financial derivatives that reference this security and
stand to potentially realize gains in the event that the market valuation of the Company’s
common equity is lower than prior to the original publication date. These affiliates, officers, and
individuals shall have no obligation to inform any investor about their historical, current, and
future trading activities. In addition, Lemelson Capital may benefit from any change in the
valuation of any other companies, securities, or commodities discussed in this document.
Amvona - Lemelson Capital Says Ligand Pharmaceuticals’ (NASDAQ:... https://www.amvona.com/featured/finding-alpha/item/37365-lemelson-ca...
Case 1:18-cv-11926-PBS Document 127-23 Filed 09/30/20 Page 1 of 5
Lemelson Capital short stake built as share price collapses on insolvency and bankruptcy risk
Rev. Father Emmanuel Lemelson, Founder and President of the Lantern Foundation and Chief Investment
Officer of Lemelson Capital Management, appeared yesterday on Benzinga’s Pre-Market Prep show in
which he addressed recent geopolitical and global market developments and the firm’s existing long and
short investment positions, including Lemelson Capital’s short position in Ligand Pharmaceuticals
(NASDAQ: LGND), which the firm first announced on June 16, 2014. Lemelson Capital has continued to sell
the stock short even as its share price has collapsed over the last six weeks.
Lemelson told Benzinga yesterday that Ligand’s recent August 11, 2014 announcement that it would
assume $225 million in convertible debt to finance a $200 million share repurchase further deepens the
already significant concerns about Ligand’s imminent insolvency and the company’s substantial risk of
bankruptcy.
1 of 5 10/23/2018, 2:48 PM
Amvona - Lemelson Capital Says Ligand Pharmaceuticals’ (NASDAQ:... https://www.amvona.com/featured/finding-alpha/item/37365-lemelson-ca...
Case 1:18-cv-11926-PBS Document 127-23 Filed 09/30/20 Page 2 of 5
Lemelson’s August 13 Benzinga interview, including his comments on Ligand, can be heard here
(https://www.youtube.com/watch?v=V8UX2X24R1s&feature=youtu.be).
Lemelson Capital’s previous research reports (PDF versions) on Ligand can be found here (/images
/blog-images/The%20Short%20Case%20for%20LGND.pdf), here (/images/blog-images
/Ligand%20Pharmaceuticals%20-%20Appendix.pdf) and here (/images/blog-images
/Ligand%20Pharmaceuticals%20-%20Update.pdf)
Lemelson Capital today raises several new points and concerns regarding Ligand’s recently announced
issuance of $225 million in convertible senior debt, including
1. July 17, 2014 announcement: On July 17, Ligand announced that the company had authorized a $10
million share repurchase. At that time, the company’s cash position was a mere $12.98 million and its
current portion of long term debt totaled $5.77 million. When Ligand announced its Q2 2014 earnings on
August 4, however, the company had not repurchased any shares under this authorization.
2. Debt issuance and large shareholders’ sale of stock: Less than four weeks later, on August 14,
2014, the company announced it intended to assume $225 million in convertible notes to purchase, with
proceeds from the debt, roughly $200 million of shares of its stock. Included in the release was the
following statement:
"Ligand intends to use a portion of the net proceeds from the offering of the
notes to pay the cost of certain convertible note hedge transactions, taking
into account the proceeds to Ligand of certain warrant transactions and to
repurchase up to $45 million of shares of Ligand’s common stock in privately
negotiated transactions…"
“LIGAND ANNOUNCES PROPOSED OFFERING OF $225 MILLION OF CONVERTIBLE SENIOR NOTES AND
ANNOUNCES $200 MILLION SHARE REPURCHASE PROGRAM,”
AUGUST 12, 2014
3. Tangible equity: On August 4, 2014, Ligand released their Q2 earnings report and financial statements
in which the company boasted that it was debt free. Prior to this August 4 release, the company’s liabilities
exceeded tangible assets, meaning the company was insolvent. With the August 4, 2014 earnings release
and its updated financials, the company presented tangible equity of just $21,000 upon which rested an
extraordinary market capitalization of approximately $1.1 billion.
4. Debt service expense and prospective dilution likely to increase exponentially: On August 11,
the company announced that they would be taking on $225 million in new debt, vis–à–vis a new
convertible debt offering. If the bond offering succeeds, the company’s liabilities will again far exceed its
assets, and the company will be technically insolvent once more. This means that the debt-free financial
condition that Ligand boasted on August 4 will have lasted, according to its publicly-available financial
reports, less than two weeks.
• Hypothetically, a reasonable coupon on the bond would be 5.5 percent, meaning debt service on the
proposed notes should be roughly $12 million. Under this hypothetical scenario, the addition of $12
million in interest payments would be payable with the company’s average net earnings from
continuing operations over the last ten years of minus $23.74 million. During the last twelve month
alone, the company’s EPS has declined some 76 percent.Trailing twelve month EPS through June was
just $7.52 million. The increased debt service will dramatically intensify going concern risk, which the
company discussed at length in its 2013 annual report, and its prospects for bankruptcy.
5. Real cost of debt disguised in up-front derivative hedge: On August 13, two days after its
announcement that it intended to assume $225 million in convertible note debt to repurchase $200 million
worth of its shares, the company announced that merely $40 million of the debt proceeds would be used
2 of 5 10/23/2018, 2:48 PM
Amvona - Lemelson Capital Says Ligand Pharmaceuticals’ (NASDAQ:... https://www.amvona.com/featured/finding-alpha/item/37365-lemelson-ca...
to repurchase shares.
CaseIt announced further that the
1:18-cv-11926-PBS convertible
Document notes had
127-23 been
Filed priced atPage
09/30/20 0.75 3
percent
of 5
interest. However, this pricing is misleading because (as the company had failed to note in its August 11
release) the company has been further required to insure the $225 million debt offering with $33.5 million
in convertible hedge transactions, apparently in order to insure the debt issuers.
Convertible option of notes, if exercised, will substantially further dilute common shareholders. As Ligand
stated in its announcement yesterday:
"Holders of the notes will have the right to require Ligand to repurchase all or
some of their notes at 100% of their principal amount, plus any accrued and
unpaid interest, upon the occurrence of certain corporate events."
• Large, institutional common equity holders are trading in unsecured securities for secured debt
instruments, which have an upfront payment of 15 percent. Between the derivative hedge transaction
($33.5 million), the private transaction ($45 million), and the $40 million repurchase, $118.5 million of
the $225 million, or 53 percent, will be used immediately, therefore making it impossible for the
company to make “repurchases up to a total of $200 million” as it had stated in its press release just
two days previously.
• While the vast majority of the $118 million will not benefit the common shareholder, the common
shareholder will be left with the tangible costs of the full $225 million in new debt and its associated
risks.
Full Disclaimer
As of the publication date of this report, Lemelson Capital Management LLC has a short
position in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains
in the event that the price of the stock declines. Following publication of the report, Lemelson
Capital may transact in the securities of the Company covered herein. All content in this
report represents the opinions of Lemelson Capital. Lemelson Capital has obtained all
information herein from sources it believes to be accurate and reliable. However, such
information is presented “as is,” without warranty of any kind, whether express or implied.
Lemelson Capital makes no representation, express or implied, as to the accuracy, timeliness,
or completeness of any such information or with regard to the results obtained from its use.
All expressions of opinion are subject to change without notice, and Lemelson Capital does
not undertake to update or supplement this report or any information contained herein.
This document is for informational purposes only and it is not intended as an official
confirmation of any transaction. All market prices, data and other information are not
warranted as to completeness or accuracy and are subject to change without notice. The
information included in this document is based upon selected public market data and reflects
3 of 5 10/23/2018, 2:48 PM
Amvona - Lemelson Capital Says Ligand Pharmaceuticals’ (NASDAQ:... https://www.amvona.com/featured/finding-alpha/item/37365-lemelson-ca...
prevailing conditions
Caseand Lemelson Capital’s views
1:18-cv-11926-PBS as of 127-23
Document this date,Filed
all of09/30/20
which arePage
accordingly
4 of 5
subject to change. Lemelson Capital’s opinions and estimates constitute a best efforts
judgment and should be regarded as indicative, preliminary and for illustrative purposes only.
Any investment involves substantial risks, including, but not limited to, pricing volatility,
inadequate liquidity, and the potential complete loss of principal. This report’s estimated
fundamental value only represents a best efforts estimate of the potential fundamental
valuation of a specific security, and is not expressed as, or implied as, assessments of the
quality of a security, a summary of past performance, or an actionable investment strategy
for an investor.
This document does not in any way constitute an offer or solicitation of an offer to buy or sell
any investment, security, or commodity discussed herein or of any of the affiliates of
Lemelson Capital. Also, this document does not in any way constitute an offer or solicitation
of an offer to buy or sell any security in any jurisdiction in which such an offer would be
unlawful under the securities laws of such jurisdiction. To the best of Lemelson Capital’s
abilities and beliefs, all information contained herein is accurate and reliable.
Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash
or derivative positions in any Company discussed in this document at any time. As of the
original publication date of this document, investors should assume that Lemelson Capital is
short shares of Ligand and may have positions in financial derivatives that reference this
security and stand to potentially realize gains in the event that the market valuation of the
Company’s common equity is lower than prior to the original publication date. These
affiliates, officers, and individuals shall have no obligation to inform any investor about their
historical, current, and future trading activities. In addition, Lemelson Capital may benefit
from any change in the valuation of any other companies, securities, or commodities
discussed in this document.
/USER/87-AMVONANEWS)
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Amvona - Lemelson Capital Says Ligand Pharmaceuticals’ (NASDAQ:... https://www.amvona.com/featured/finding-alpha/item/37365-lemelson-ca...
ligand-pharmaceuticals-for-3-8-billion)
Case 1:18-cv-11926-PBS Documentligand-pharmaceuticals-for-3-8-billion)
127-23 Filed 09/30/20 Page 5 of 5
Rev. Fr. Emmanuel Lemelson Calls on Rev. Fr. Emmanuel Lemelson Calls on
Copyright © 2017 Amvona
Congress, Office of Inspector General to Congress, Office of Inspector General to
Investigate SEC Failures (/featured/finding- Investigate SEC Failures (/featured/finding-
alpha/item/43521-rev-fr-emmanuel-lemelson- alpha/item/43521-rev-fr-emmanuel-lemelson-
calls-on-congress-office-of-inspector-general- calls-on-congress-office-of-inspector-general-
to-investigate-sec-failures) to-investigate-sec-failures)
5 of 5 10/23/2018, 2:48 PM
Case 1:18-cv-11926-PBS Document 127-24 Filed 09/30/20 Page 1 of 6
Overview
Raising prospects for a continued deterioration in the stock price of Ligand Pharmaceuticals
(NASDAQ: LGND), the largest shareholder in the company has moved to unload shares of the troubled
company in a private transactions. Earlier this week, on August 19, BVF, Inc., the company’s largest
shareholder, offloaded 484,524 shares in a private transaction, the terms of which are both costly and
Lemelson Capital has built a substantial short position in Ligand since the firm’s original June 16,
2014 research report, which recounted that the company was essentially insolvent, offensively
overvalued and facing severe competitive threats to its limited and contracting revenue streams. As
predicted in Lemelson Capital’s June 16 and subsequent reports, large institutional shareholders, likely
fearing imminent substantial downward corrections in the stock and possible bankruptcy, are moving to
sell in non-open market transactions at extraordinary cost to remaining shareholders. The BVF sale is
Lemelson Capital’s previous research reports (PDF versions) on Ligand can be found here, here
and here.
A Prescient Interview
Case 1:18-cv-11926-PBS Document 127-24 Filed 09/30/20 Page 2 of 6
Last week, on August 13, 2014, Rev. Father Emmanuel Lemelson, Founder and President of the
Lantern Foundation and Chief Investment Officer of Lemelson Capital Management, appeared on
Benzinga’s Pre-Market Prep show in which he discussed and reiterated the firm’s short position in
Ligand Pharmaceuticals (NASDAQ: LGND), which the firm first announced on June 16, 2014.
You read these press releases carefully, and you have to ask yourself, why is the
company doing press releases? Do you think it is for institutional holders? I don’t
think so. These guys have a direct line to the CEO and the board of directors. Those
things are for retail investors. If you read it carefully, it looks a lot like institutional
holders trying to get out of the common equity.
Lemelson’s August 13 Benzinga interview, including his comments on Ligand, can be heard here.
On August 14, 2014, Lemelson Capital published its report on LGND’s new debt issuance, which
concluded that:
The real purpose of the transaction appears to be to enable large institutional Ligand
shareholders to unload large numbers of shares in private transactions that will not
negatively affect the prices of the shares traded in public markets…
Large, institutional common equity holders are trading in unsecured securities for
secured debt instruments, which have an upfront payment of 15 percent.
“LEMELSON CAPITAL SAYS LIGAND PHARMACEUTICALS’ (NASDAQ: LGND) $225M DEBT ISSUANCE SOLIDIFIES
COMPANY’S INSOLVENCY, SUBSTANTIALLY RAISES SPECTER OF BANKRUPTCY”
AUGUST 14, 2014
Case 1:18-cv-11926-PBS Document 127-24 Filed 09/30/20 Page 3 of 6
On August 18, Ligand filed a form 8-K with the Securities and Exchange Commission (SEC),
revealing that the company had issued $245 million in new debt against the company’s tangible equity
of just $21,000, giving rise to a debt to tangible equity ratio of 11,667-to-1 (that is to say, $11,667 dollars
Ligand intends to use a portion of the net proceeds from the offering of the notes to
pay the cost of certain convertible note hedge transactions, taking into account the
proceeds to Ligand of certain warrant transactions and to repurchase up to $45
million of shares of Ligand’s common stock in privately negotiated transactions…
“LIGAND ANNOUNCES PROPOSED OFFERING OF $225 MILLION OF CONVERTIBLE SENIOR NOTES AND ANNOUNCES $200
MILLION SHARE REPURCHASE PROGRAM,”
AUGUST 12, 2014
According to Ligand’s August 18 SEC filing, the company spent $6 million of the $245 Million of
debt (approximately 2.4%) on initial purchaser’s discounts and commissions. The company then spent a
further $36.5 million of the proceeds (a figure substantially higher than the $32.5 million the company
originally reported in its August 12 release on the terms of the debt offering) to pay the cost of privately-
expense of approximately 15 percent of the total proceeds, afford no benefit to either the note or
common equity holder. When combined with the 2.4 percent in commission and the 0.75 percent
annual coupon, they create a sum total transaction cost of the bond offering in the first year of a
The Convertible Note Hedge Transactions and the Warrant Transactions are separate
transactions, in each case, entered into by the Company with the Option
Counterparties, and are not part of the terms of the Notes and will not affect any
holder’s rights under the Notes. Holders of the Notes will not have any rights with
respect to the Convertible Note Hedge Transactions or the Warrant Transactions.
The real upfront cost of the new debt was $45.3 million, or six times the company’s trailing
twelve months (TTM) net earnings, which had already been fully consumed (and then some) by stock
awards to Ligand management. As such, it would take six years of operations at current profitability
(which itself is unsustainable) to pay for just the transaction costs of the new debt issued by the
company.
Alternatively, Ligand could have simply contacted Capital One and applied for a consumer credit
card with a very large line of credit, which undoubtedly would have had a lower lending cost. Indeed,
the cost of Ligand’s debt issuance exceeds that offered by most loan sharks and payday lenders, both of
Why then did the company go through all of the trouble of a formal bond offering with
large institutional shareholders in private, out-of-market transactions, that would not affect Ligand’s
quoted prices in the open market while allowing large blocks of Ligand shares to be unloaded and a
select group of common shareholders to get out of the troubled company at great expense ($45.3
As the August 14 Lemelson Capital research report anticipated, buyers of the Ligand bonds
would be the very same common shareholders who want to hastily unload Ligand shares. In other
words, the institutions lending Ligand the money through the bond offering have done so with a
mandate that the company use these funds to buy out their shares. This leaves Ligand’s remaining
common shareholders, mostly retail investors, to pay a premium ~$45 million to facilitate the
company’s intent to permit a few large institutions to sell their shares in private, out-of-market
transactions. In case there is any doubt regarding the drivers of Ligand’s recent high cost debt offering,
…approximately $37.8 million of the net proceeds [from the bond offering] to
repurchase shares of the Company’s common stock from purchasers of the Notes in
privately negotiated transactions concurrently with the offering
Wasting No Time
On August 21, the SEC published form 13G/A filed by BVF, Inc., which revealed that Ligand’s
largest shareholder was reporting that, pursuant to SEC rule 13-d, the company had sold 484,524 shares
of Ligand stock as of August 19, the first date that funds from Ligand’s new debt became available.
Holders of the notes will have the right to require Ligand to repurchase all or some of
their notes at 100% of their principal amount, plus any accrued and unpaid interest,
upon the occurrence of certain corporate events.
There is no question that the cost of this preferential treatment of a few large Ligand
shareholders at the expense of remaining investors places a burden on Ligand and its shareholders that
is both unsustainable and further deepens the company’s insolvency and likelihood of liquidation or
reorganization under Chapter 7 or Chapter 11 of the bankruptcy code under which remaining Ligand
common shareholders have only the protection of $21,000 in tangible equity to shield them from $245
million in debt.
Should the call feature of Ligand’s debt be exercised, as is possible and even likely, common
David Becker
August 06, 2020
Case 1:18-cv-11926-PBS Document 127-25 Filed 09/30/20 Page 2 of 15
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13· ·and except for any corrections or changes noted above, I hereby
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________________________________________
)
Securities and Exchange Commission, )
)
Plaintiff, )
)
v. )
)
Gregory Lemelson and Lemelson ) Civil Action
Capital Management, LLC, ) No. 18-11926-PBS
)
Defendants, )
and )
)
The Amvona Fund, LP, )
)
Relief Defendant. )
________________________________________)
Saris, C.J.
INTRODUCTION
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(Count II). The SEC also brings a claim for unjust enrichment or
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DISCUSSION
McConville v. SEC, 465 F.3d 780, 786 (7th Cir. 2006). “Unlike
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ORDER
Court will allow the SEC leave to amend its complaint as to the
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Case 1:18-cv-11926-PBS Document 127-27 Filed 09/30/20 Page 2 of 2
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 1 of 24
Home / Home / Finding Alpha / The Short Case for World Wrestling Entertainment
Tweet SHARE
The business World Wrestling Entertainment (WWE) is engaged in is sport or show (or maybe
both) designed to manufacture emotions - to this end, the shows are replete with the kind of
drama that apparently opens wallets.
If the production of emotions however is transferred to the investing public and elicits the same
visceral response to the stock as it does to the company's events, then there ought to be
significant reason for caution on the long side, for sound investment policy has nothing to do
with emotions.
Yet, when examining not only the stock price, but the commentary that can be found online
regarding the justification for the significant premium the shares currently command, it is hard
to characterize the sentiment as anything other than speculation based on what appears to be
the very temporal popularity of the issue.
1. If one projects into the future ten years and looks back at WWE shares today and the
corresponding premium, how would the opportunity look? Will WWE as a company seem
as promising then as it does now? For that matter, is the company really as auspicious as
it seems today?
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 2 of 24
Is the company going to bring about a significant change (against historical averages) in
its profitability with either its direct model or with a renewed network contract?
3. Even with a more lucrative network contract, say for example at 2x current revenue run
rates, will the model translate into 2x profitability? And if so, would the valuation ratios
make sense at such levels?
Putting aside the rising COGS which is at about ~64%, or nearly a ten year high, and
somewhere around 10 points higher than historical norms consider the following:
- The 10 year average net profit of the company is about 39 M per year. Free Cash
Flow has averaged a bit less at around 37 M per year.
- Assuming that 2x revenue still translates to 2x free cash flow (which is probably a
stretch given rising operating costs amongst other things), and the company returns
to its average historical profitability
– than such an increase in revenue would equate to about 73 M per year in free cash
flow.
In such a case, the P/E ratio would come out to just under 32. The current S & P 500
PE Ratio after 5 years of a continuous rise in the market is 19.51.
a. The company returns to at least average profitability even though its net
income as a percentage and as a dollar figure has been steadily declining for
years.
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 3 of 24
b. From this "normalized" base, the company would then increase net earnings
dramatically
The company stated in their recent conference call and press release:
"...we continue to believe that we can double or triple our 2012 OIBDA
results by 2015"
If understood correctly 2012 OIBDA was 63 M (importantly free cash flow was only 29 M),
if that is doubled the total would be 126 M (and free cash flow 58 M) – the soonest such an
outcome could come to fruition is apparently 2015, and the high cost (i.e. losses) of getting
to this speculative figure is growing quarter by quarter, diminishing the company's current
assets.
So a reasonable question to ask might be what 2014 losses may possibly need to be
applied to the potential 2015 gain. What is known from the Q4 2013 conference call is:
i. The loss in Q1 2014 will result "in a net loss of 12 M" (see comments below)
ii. There is a "wide range of outcomes" possible in 2014 (se comments below)
Q1 2014 alone then would reduce the company's projection of 126 M of OIBDA by 2015 (a
doubling of 2012 OIBDA) down to 114 M (the net change in cash is likely to be even more
substantial). The optimistic scenario is that the company does not report any more minus
figures in the next three quarters of the year - but that would be contrary to the company's
ten year earnings trend (see section 2 below on the price-to-earnings ratio).
In sum, the company's average net income over the last four quarters was 688k per
quarter (a positive figure). Yet, the company's net change in cash was depleted on
average by 8.3 M per quarter (a negative showing every quarter), as the company
hemorrhaged.
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 4 of 24
"At a proposed price per month between $12.99 and $14.99, this would
represent incremental revenue to WWE of between $125 million and $250
million and incremental EBITDA between $50 million and $150 million."
However, when the company finally did release the direct network product (about a year
later), the price for the monthly subscription had dropped by as much as 33% of the
projection down to just $9.99 per month. Presumably this would mean EBITDA would be
reduced also by the same factor putting EBITDA projections between $33 and $90 Million.
If the average of the two figures is 66 Million then the company would produce about the
same EBITDA figure as it did in 2012. If the 2013 base line is only 30.8 M, then the
increase would about .5 and not 2 - 3x, a scenario which assumes no cannibalization.
"Although our key strategic initiative holds significant potential our financial
performance for 2014 could fall within a wide range of outcomes..."
5. What evidence exists that the WWE direct channel (while perhaps a great idea) will be
more profitable than the historical network agreements? That is to say, how can the direct
network costs be correctly understood when it is yet a "start-up"? And if successful, what
will the impact be to legacy broadcast network revenue?
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 5 of 24
6. Why was the stock on the (HTB) or "Hard-to-Borrow" list of brokerages by Friday March
14th, 2014? If the price made sense, or had upside, surely large institutional holders, and
brokerages alike would make their shares available to short-sellers in exchange for the
additional income such a transaction provides.
By Monday March 17th, 2014 the cost of borrowing the shares had continued to rise.
If this were "Texas hold'em" wouldn't the appearance on HTB lists be a "tell"?
Even if all the stars align, and the company performs an operational and fiscal miracle (even
though it has never exactly done so before), is the WWE brand premium (at a forward P/E of
>30) worth 64% more than the S & P 500 which itself is priced in the midst of an incredible bull
market? Should the pricing premium be 145% of the Apple brand, and if so, why?
Sans miracles, is the brand worth 4,226% more than the S & P 500?
1. The share price is at an all-time high (15 years since IPO) – in fact, the price is even
higher than it was in the late IPO / Stock market mania years of the late nineties / early
2000.
It may also be worth stressing again that the price is achieving all-time highs in lock-step
with a 5 year bull run. If it is true as John F. Kennedy once said that "a rising tide will lift all
boats" then, the physics of rising tides ought to be included in any examination of the stock
price's "metacentric height".
2. The trailing Price-to-Earnings Ratio (the only one based on fact vs. estimation) might
be considered, by value-oriented investors as a little rich at something like 844.
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 6 of 24
ratio of just 13 – and this despite an extraordinarily consistent track record of generating
consistent profits and free cash flow. Last year around this time, Apple was taken to task
for reporting another record quarter of profits and unit sales – an event that was discussed
in the Amvona article "Apple's Crime and Punishment" – the same psychology discussed
in that article probably applies to the present discussion.
If you go ex-cash on Apple's share price, then the PE ratio is something around 8.4. this is
valid reasoning for companies that print cash, but for companies that burn it, the aggregate
loss over a measured period of time ought to be added to the share price (vs. subtracted)
when trying to determine a realistic PE ratio. In the case of WWE they've been losing
about 8.3 M per quarter (see above), and the situation appears set to worsen before it
improves. If the company loses just 12 M in 2014 (or ~.16 per share) which apparently is
a foregone conclusion, then a more accurate PE ratio might be 848.
If a company with Apple's brand strength and virtually unmatched fiscal record can be
"taken down a few notches" for reporting good news, and even though it wasn't trading at
a particularly rich premium, then isn't it within the realm of possibility that investors (or
perhaps more accurately speculators) in concerns such as WWE might also eventually
come to the conclusion that there is such thing as a price that is too high?
Stated in another way, it would take just 831 fewer years for apple to recover its entire
market cap. through profits than it would take WWE.
The 10-Year earnings growth rate of the company is -17.3%. The 5 year earnings growth
rate is something more substantial at -46.2%. The one year earnings growth rate is a
remarkable -91.6%. According to the measurable data there is a faithful "trend" in the
wrong direction which has existed for some time.
That is to say, the rate at which earnings are diminishing has been accelerating, yet in the
last year the share price has appreciated ~262%.
3. Earnings Per Share and Free Cash Flow have been declining meaningfully in recent
years. Dilution has not helped - shares outstanding have increased from roughly 69 Min
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 7 of 24
higher, closing Friday March 14th, 2014 at $30.94.
The following chart illustrates the point (gray areas represent recessions):
Fig. 1
4. The Short Interest ratio and the possibility of a squeeze are real. Given the extreme
nature of the share price run-up (almost 32% in the last month in the absence of tangible
data that would support a sea change in the company's outlook) and given the fact that
about 16% of the float (an increase of about 30% from the prior month) was short as of
February 14th, 2014, it is possible that some short sellers may have been covering adding
to the apparent adulation surrounding the stock.
At the current price the value of the 4.09 M shares short as of Feb. 14th, 2014 is almost
127 M. The sellers of these 4.09 M share have lost an astounding ~32% in just 30 days,
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 8 of 24
That is to say, there may be a dual prong cause for the extreme valuation, which cannot
last. If the short interest ratio is 3.9, then it would take less than 4 days of trading volume
for all of the shorts to be covered. If short covering ends, then buying would be notably
diminished by this group at more or less the same time the stock was reaching for the
stratosphere – and it's not hard to imagine that it would only take a whisper for sentiment
to change at such highs.
If the most recent short sellers are right, than day traders, technical analysts, chartists,
momentum buyers, astrologers, palm readers and all others groups notable for their stable
and rational approaches to selecting stocks will have joined faithful WWE fans in counting
themselves amongst the group of happy new owners of the shares by the time this article
is published.
5. EV/EBITDA and Short Interest Ratio have both increased dramatically. Enterprise
Value divided by EBITDA (a rough proxy for free cash flow) is a quick way of looking at the
real value of the enterprise to a prospective acquirer based on about how much cash the
company is generating.
In this case, the EV/EBITDA ratio is currently at just over 51, but was recently even higher
(~71) as can be seen below. In short (no pun intended), it would take just over a half of a
century for a buyer of the entire business to cover the costs of the acquisition through
EBITDA earnings (and much, much longer if free cash flow is the divisor). Such ratios
have never been seen in the company's history.
Fig. 2
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 9 of 24
It would have been more accurate to use P/FCF (Price to Free Cash Flow) for such a
purpose, but since the company has recently had a negative free cash flow position, such
a calculation is impossible.
Is 2.3 Billion a fair price for a company that earned 2.76 M last year, and reduced its cash
position by about 33 M? The answer may not be clear, and perhaps the problem
described is not a trend afterall... conceivably the following quotes will aid in answering the
question:
"Unallocated SG&A expenses increased $3.1 million to $35 million from the
prior year quarter..."
"For the full year, our net income declined nearly $29 million..."
"For the first quarter of 2014, we expect net income to decline on a year-
over-year basis by $15 million to $18 million resulting in net loss of $12
million"
Not to fret, the most pressing corporate issues were still prudently attended to, using debt
of course (since the price tag would have represented about 30% of cash) – unfortunately
this largest outlay of capital (30 M) did not include references to any sort of future ROI or
ROA.
"Page 16, shows our free cash flow which declined about $30 million from the prior
year..."
Actually the decline is closer to 33 M – rough numbers are usually ok, but 10% is a little
more than a rounding error - it is more than the company's entire 2013 profit?
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 11 of 24
6. .59 Cents. Value investors like Discounted Cash Flow models because they provide
some guidance on what the future earnings power of a concern is based on available data
(versus sales projections). A look at a discounted cash flow model for WWE based on
10% growth for the next ten years, 4% terminal growth for another ten years and a 12%
discount rate produces a fair value for the stock of .59 cents, and a margin of safety of
-5,144%.
As a note on assets - Intangible assets (the kind you can't sell easily when things turn
south) increased from roughly 100k in 2010 to just under 27 M in 2013, an increase of 268
fold in 3 years – these "ghost assets" of course can bolster a balance sheet nicely.
The Dividend Payout Ratio is 1200%. Why the company would maintain such a high
Cash and marketable securities have declined from 280 M in 2006 to just 109 M in the
If the comments above regarding Q1 2014 are an indicator, cash will be meaningfully
In 2013 for the first time in at least ten years the company's net cash position went
negative, while the NCAV (Net Current Asset Value) has dropped precipitously to just .57
cents or slightly below the firms discounted cash flow value.
In fact, the NCAV value has declined every year since it reached a high of 3.56 per share
in 2006.
Perhaps Amvona being called out by SeekingAlpha again has led to some sort of complex
about being right... and maybe the present thesis will be wrong... after all there is a first time
for everything and it (being wrong) is bound to happen sooner or later.
That having been said, the odds seem handicapped in favor of the current proposition.
Wealth is never "destroyed" in the stock market. It is only transferred. This is important. A
large gain by a few is almost always paid by the loss of a large number of others – these
transactions take place with varying degrees of unpleasantness.
The average retail investor has access to a huge variety online brokerages that continuously
encourage a great deal of fee-generating "activity". Indeed entering "orders" has become so
easy, that executing on a mobile device should be no problem while driving and brushing your
teeth simultaneously if needed – there's a reason for this "ease" – its' so that the slightest
change in state of mind can be acted on.
Perhaps it is a question for behavioral psychologists, but it's worth contemplating what happens
when you cross the DNA of a WWE fan in all of their adrenaline-filled glory, with the DNA of a
highly profitable (to the brokerage) e-trade mobile app. - perhaps the love-child is a stock with
a PE ratio north of 800?
In case any doubts exist about the coalescence of the two desperate parties, that is to say
whether or not a marriage can really be made... just consider how and where the company
intends to report critical fiscal data:
The average retail investor does not usually grasp the concept of short selling very well, and
rarely has access to the appropriate tools to execute on short ideas even if he does.
What could the numerical imbalance between long and short participants mean? What if only a
drastically smaller number of participants can benefit in the case of the latter?
Imaginably every CEO promotes their own stock, it seems reasonable, especially if they believe
in their company. However, not every CEO is by profession a professional promoter - so some
may be better at the task than others.
Any discussion of the ethics of the WWE business model and its founder are not necessary –
they have been indited enough.
The central question the present article deals with is, has the management team delivered
consistent profits in the past that would be indicative of the ability to deliver profoundly
improved profits in the future, such that even the current rich forward P/E might be justified?
That isn't to say judging by the ubiquitously bullish sentiment, that the stock hasn't been
masterfully promoted – but that of course is a separate issue.
a. The cost associated with borrowing shares is typically higher than the cost of capital
when going long – this is particularly true in HTB situations.
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 14 of 24
c. The company will announce a new distribution agreement with a major network
(probably at a higher rate than before), and possibly a large number of subscribers for their
direct network (given their customer loyalty) – how the market will react to such news is
unknown given the pre-existent run up in stock price. However, as far as the direct
network is concerned it seems while initial subs. are likely to be strong, it is hard to foresee
large numbers signing up on an ongoing basis.
e. For example, if the company delivered 3x 2012 OIBDA (189 M – or the high end of
company estimates) in 2015, and did not sustain a net loss again in 2014, then the forward
PE ratio at today’s price would be only 12.3. The Price to Free Cash Flow (PFCF), a more
important ratio, at 3x 2012 FCF (or 87 M) would be 27.
The current PFCF ratio of Apple is 10.6, almost a third of what WWE’s would be in the
aggressive outcome scenario.
Using your children's college tuition fund to short the stock may require above average
conviction.
The short thesis rest on whether or not execution will approximate Managements projections.
"...we expect that our 2013 EBITDA performance will be flat with 2012 plus
or minus 10%"
Q4 2012 WWE Earnings Conference Call
"... it is expected that WWE's 2013 EBITDA will approximate 2012 results"
The first comment made in the earnings conference call proved to be about 110% wrong. 2013
EBITDA arrived at 30.8 M, or ~52% below the 64.4 M 2012 figure.
The follow up comment in the press release was even more problematic, not only because it
affirmed the 2013 guidance, but because by the time it was made (2 months into the first
quarter), the company would have known that based on how Q1 was already progressing, it
was probably a good idea to temper expectations for the full year 2013 performance.
That is to say, Q1 2013 came in at just 10.4 M in EBITDA and only 3 M in net earnings. Looking
back over the years, the first two quarters of the year are typically the strongest from an
EBITDA and Net Income perspective. By Feb. 28th the company would have known things
were not great, and that coming within +/- 10% of 2012 EBITDA was increasingly a long shot –
in fact, Q1 EBITDA was less than half of Q1 2012, while Net Income on a year over year basis
would fall by ~80% from 15.33 to just 3.03 - yet the company affirmed guidance.
"If the network is launched within a year, we would also expect a further $10
million to $15 million reduction of EBITDA and a corresponding reduction of
net income for the year"
company) as noted above while Q1 2013 EBITDA dropped by almost 11 M.
2013 was the lowest EBIDTA and Net Earnings Figure going back 10 Years – and continued a
multi-year trend. Yet, despite the comment above from the Q4 2012 Conference Call, the
company seemed to indicate during the Q4 2013 Conference Call that the increased spending
was in no way abating.
"We have not met the longer term growth target that we communicated in February
2010"
It might have been worth going back further to get quotes, but what would be the point? In the
above comment the company is admitting to not meeting targets previous communicated going
at least back to 2010.
Without a clear explanation the company also shifted in 2013 from references to the more
common EBITDA to OIBDA (Operating Income Before Depreciation and Amortization). These
two measures are similar except for the income numbers they use. In the case of OIBDA, the
calculation begins with GAAP net operating income. In the case of EBITDA, the calculation
begins with GAAP net income.
The matter is probably not significant in this case, but it does add an additional aspect of
complexity when tracking managements historical comments and references.
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 17 of 24
pattern - financially, the company consistently over-promises and under-delivers.
Conclusion
WWE from a business perspective may be suddenly full of possibilities. It could be that the
company will deliver on an extraordinary increase in profits, change the way sports content is
distributed and become a model for other sports syndicates to follow.
However, such theory can only be considered speculation at this time, and cannot be
reasonably deduced from management's track-record.
In fact the flip side of the argument might ask about the wisdom of competing with a large
number of established networks versus trying to cooperate with them. It may be that the direct
content delivery model is the future, but how likely is it that WWE of all companies will be the
one to effect such change? Is creating disruptive technology models counted amongst their
core competencies?
Indeed, there is almost no tangible evidence in the company's financial track record that would
indicate such an aptitude – and importantly for shareholders, if private jets are used as a proxy,
management cannot be designated as "brilliant" when it comes to allocating capital.
Reviewing the sentiment of buyers of the stock seems to indicate, as is often the case in
technology shares, that strong feelings about the company's product may have confused
thoughts on earnings and its relation to share price, without regard to underlying fundamentals
or history.
It is also worth asking if the company's best case scenario does materialize by 2015, if the
enlarged capital base will be wisely managed by the company going forward (particularly in
light of the near complete absence of shareholder rights).
Recent rumors regarding a possible buy-out of WWE by AMC (AMCX) networks is hard to
imagine given AMC's own financial profile which would make it very difficult for the company to
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 18 of 24
acquisition would hardly be accretive to AMC. It is also hard to imagine that other possible
acquirers would be willing to pay such a significant premium over their own valuation ratios.
Fig. 3
5-Yr Rvn. Growth (%) 1.20 0 20.70 0 7.10
a. If WWE's terrible 2013 performance is omitted as an anomaly (even though it fits nicely
into a trend) and the EPS for the 5 years between 2008 and 2012 is averaged, the result is
.55 cents.
b. If again the 2013 figures are wholly disregarded in reviewing historical PE ratios, and
the PE ratio between 2008 and 2012 is averaged the result is 21.6 (still higher than the S
& P 500)
Based on the historical average, and giving the company the benefit of the doubt by excluding
2013, the share price should be around $11.88.
However, given what has been outlined above, the company isn't worth a PE greater than 15
(which is still higher than Apple). A PE ratio of 15 would place the share price, based on
average historical performance, at about $8.25.
The shares are probably overpriced by at least 275% (and maybe more).
DISCLOSURE
Lemelson Capital Management and its clients are short shares of WWE as of the publication of this article
THIS REPORT INCLUDES INFORMATION BASED ON DATA FOUND IN FILINGS WITH THE SECURITIES AND
BELIEVE THAT THE DATA IS RELIABLE, WE HAVE NOT SOUGHT, NOR HAVE WE RECEIVED, PERMISSION FROM ANY
THIRD-PARTY TO INCLUDE THEIR INFORMATION IN THIS PRESENTATION. MANY OF THE STATEMENTS IN THIS
THE INFORMATION CONTAINED ABOVE IS NOT AND SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE, AND
DOES NOT PURPORT TO BE AND DOES NOT EXPRESS ANY OPINION AS TO THE PRICE AT WHICH THE
SECURITIES OF WORLD WRESTLING ENTERTAINMENT MAY TRADE AT ANY TIME. THE INFORMATION AND
OPINIONS PROVIDED ABOVE SHOULD NOT BE TAKEN AS SPECIFIC ADVICE ON THE MERITS OF ANY INVESTMENT
DECISION. INVESTORS SHOULD MAKE THEIR OWN DECISIONS REGARDING WORLD WRESTLING
ENTERTAINMENT AND ITS PROSPECTS BASED ON SUCH INVESTORS' OWN REVIEW OF PUBLICALLY AVAILABLE
INFORMATION AND SHOULD NOT RELY ON THE INFORMATION CONTAINED ABOVE. NEITHER LEMELSON CAPITAL
MANAGEMENT, LLC NOR ANY OF ITS AFFILIATES ACCEPTS ANY LIABILITY WHATSOEVER FOR ANY DIRECT OR
CONSEQUENTIAL LOSS HOWSOEVER ARISING, DIRECTLY OR INDIRECTLY, FROM ANY USE OF THE INFORMATION
CONTAINED ABOVE.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this letter are forward-looking statements including, but not limited to, statements that are
predications of or indicate future events, trends, plans or objectives. Undue reliance should not be placed on such statements
because, by their nature, they are subject to known and unknown risks and uncertainties. Forward-looking statements are not
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 21 of 24
such forward-looking statements. Forward-looking statements can be identified by the use of the future tense or other
forward-looking words such as "believe," "expect," "anticipate," "intend," "plan," "estimate," "should," "may," "will," "objective,"
"projection," "forecast," "management believes," "continue," "strategy," "position" or the negative of those terms or other
variations of them or by comparable terminology. Important factors that could cause actual results to differ materially from the
expectations set forth in this letter include, among other things, the factors identified under the section entitled "Risk Factors"
in World Wrestling Entertainment’s Annual Report on Form 10-K for the year ended September 28, 2013. Such forward-
looking statements should therefore be construed in light of such factors, and Lemelson Capital is under no obligation, and
expressly disclaims any intention or obligation, to update or revise any forward-looking statements, whether as a result of new
AMVONA NEWS
Watch Rev.Emmanuel Lemelson, CIO of Big Lots (NYSE: BIG) Soars Over 29% Post-
Lemelson Capital Management - PreMarket Earnings
Prep for August 12, 2015 Palo Alto Networks (NASDAQ: PANW)
Lemelson Capital featured in Barron's WWE Plummets, Geospace Technologies
article (NASDAQ: GEOS) CFO Heads For The Door
Fr. Emmanuel Lemelson Discusses Apple's Ligand Pharmaceuticals (NASDAQ: LGND)
iPhone Sales, World Wrestling Stock Gaps Down, Fr. Emmanuel Speaks Out
Entertainment's Strategy And Other Issues
Case 1:18-cv-11926-PBS Document 127-28 Filed 09/30/20 Page 22 of 24
« Update: American Greetings Corp. and the Triple “W” Update: The Short Case for
ABOUT AMVONA
WSJ WWE
Sun Oct 27 19:05:10 +0000 2019
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Case 1:18-cv-11926-PBS Document 127-30 Filed 09/30/20 Page 1 of 21
may gain marketing approvals in 2014. LGND maintains a relatively low-fixed 1Q 5.6 11.7 16.0
2Q 5.7 9.6 10.6
cost structure and has only 19 employees. 3Q 6.4 13.0 17.2
4Q 13.6 14.7 20.6
FY 31.4 49.0 64.4
The Hepatitis C (HepC) market is large, and since late 2012, Promacta sales
have increased substantially as a result of entering this market. Specific medications used to treat HepC depend on a
number of factors that include the virus genotype (genetic structure), liver transplant status, past treatment and
eligibility to take interferon. Promacta is a supportive therapy for the administration of interferon to HepC patients with
low platelet counts. Interferon therapy has numerous negative side effects, one being thrombocytopenia (low platelet
count). Gilead Sciences Inc.’s (NASDAQ.GILD) oral drug, Sovaldi (sofosbuvir), entered the HepC market in December
2013 and has created a lot of enthusiasm over its clinical results demonstrating cure rates of 85%-95% in about 12 weeks
- 24 weeks. Solvaldi’s cost is $1,000 per pill still GILD sold about $2.3 billion in 1Q2014, generally believed to be more
than any drug’s entire first year on the market. In February 2014, GILD filed for a Food and Drug Administration (FDA)
approval of its once-a-day, single-tablet, fixed-dose regimen of Sovaldi and its NS5A inhibitor, ledipasvir. An FDA
response to this filing is expected by October 10, 2014. The filing for this product is for treatment of HepC patients with
Genotype 1 (~75% of the U.S. market), but doctors may prescribe it off-label because past clinical results demonstrated
that when added to ribavirin (a nucleoside inhibitor), it cured 100% of genotype 3 HepC patients. We anticipate
additional competitive pressures in the HepC market starting in 4Q2014 between GILD, AbbVie (NASDAQ.ABBV) and
Bristol-Myers Squibb (NYSE.BMY) because the last two companies are close to gaining approvals for their similar
products. BMY may gain further strength in this market if its non-nucleoside polymerase inhibitor, BMS-791325, is
approved about a year later. These drug approvals all guide away from the use of interferon for HepC patients and the
requisite Promacta therapy.
Empire Asset Management Company 2 Rector Street, 15th Floor New York NY 10006
Dr. Cathy Reese [email protected] 212-417-7777
Important Disclosures & Regulation AC Certification(s) are located on the last two pages of this report.
Case 1:18-cv-11926-PBS Document 127-30 Filed 09/30/20 Page 2 of 21
Promacta sales grew 42% year-over-year in 2013, which we believe was primarily a result of Promacta’s use in HepC
patients. Once the use of interferon therapy in HepC patients noticeably declines (as expected by our industry sources),
we expect Promacta sales to also decrease. Due to the recent large increase in Promacta sales from its use in HepC
patients, we anticipate a comparatively rapid decrease. We do not believe LGND’s currently approved products or
pipeline products will be capable of generating adequate revenues to offset a substantial reduction in Promacta’s
royalty revenue.
Investment Highlights
Promacta sales are confronted with the new oral HepC market. The oral HepC drugs, Solvaldi and Olysio
(simeprevir), are approved and expected to control the imminent market for this disease. Solvaldi is sold by GILD
and Olysio is sold by Johnson and Johnson (NYSE.JNJ). Despite the usual 12-week course of treatment for these two
products costing $84,000 for Sovaldi and $66,000 for Olysio (total of $150,000), the uptake in these medication for
HepC treatment has been brisk. This brisk uptake seems due to the belief that these drugs will have a positive
impact in reducing future health care costs due to fewer long-term liver disease complications. The potential impact
of the oral HepC treatment regimens on Promacta sales is that they can reduce the need for interferon, therefore
reducing the need for Promacta to treat the low blood platelet counts that result from interferon. LGND receives
tiered Promacta royalties that range from 4.7%-9.4%.
Promacta’s use outside HepC and ITP should be limited in its ability to produce revenues. Promacta is expected
to gain an FDA approval for use in aplastic anemia, which only includes about 10,000 patients in the U.S. We do not
believe that this relatively small number of patients can replace the Promacta revenues that we believe will be lost
as a result of the new oral HepC therapeutics.
GSK recently announced that it is selling its division that currently markets Promacta to Novartis (NYSE.NVS).
This presents an unknown for the future of marketing efforts for Promacta.
Promacta may encounter new competition for its ITP indication. On July 16, 2014, Rigel Pharmaceuticals, Inc.
(NASDAQ.RIGL) announced the initiation of a Phase III for its oral SYK inhibitor, fostamatinib, in patients with
Immune thrombocytopenic purpura (ITP). Fostamatinib is expected to address the autoimmune origin of ITP.
Kyprolis should continue to face tough competition. Kyprolis competes directly with Velcade (bortezomib),
another proteasome inhibitor used in the treatment of Multiple Myeloma (MM). Velcade was approved by the FDA
in May 2003 and by the European Medicines Agency (EMA) in April 2004. Although Velcade is known to commonly
cause peripheral neuropathy, new Velcade dosing techniques reduce this side effect, which eliminates a Kyprolis
potential advantage. Cardiovascular side effects potentially caused by Kyprolis are now manageable but initially
created a marketing hurdle that has remained to some extent, according to our industry sources. In late 2012,
Watson Pharmaceuticals (NYSE.ACT) filed an Abbreviated New Drug Application (ANDA) with the FDA for approval
of a generic Velcade. Velcade’s patent has been extended for composition of matter until May 2017, from October
2014. Velcade patents in the rest of the world should expire in 2015 with extensions obtained in several E.U.
countries through 2019 and pending in other countries. We believe Kyprolis sales could ramp from the current level
because our industry sources stated that “sooner or later, patients will be treated by every available drug due to
the course of MM.” But, we do not believe Kyprolis will replace current first line therapies, particularly considering
the novel drug combinations in development for MM patients.
Avinza (extended-release morphine sulfate) should encounter increasing generic competition. King
Pharmaceuticals, Inc. (NYSE.PFE) sells Avinza for patients with moderate to severe chronic pain who require around-
the-clock pain relief for an extended period of time. On February 6, 2014, Actavis plc (NYSE.ACT) launched an AB-
rated Avinza.
Captisol revenues should remain relatively flat. Captisol revenues in 2013 were $19.1 million. Captisol revenues
in 1Q2014 were $5.7 million “due to timing of customer purchases of Captisol for both clinical and commercial
uses.” LGND’s management has stated that quarterly Captisol sales will be “lumpy” and should be analyzed on an
annual basis.
Duavee’s revenue contribution to LGND should be minor. Pfizer Inc.’s (NYSE.PFE) Duavee (conjugated estrogens /
bazedoxifene) was approved in October 3, 2013 for women who suffer from moderate-to-severe hot flashes
(vasomotor symptoms) associated with menopause and to prevent osteoporosis. The current market for treatment
of moderate-to-severe hot flashes is about $2 billion. LGND’s royalty rate for Duavee is 0.5% up to $400 million,
1.5% from $400 million to $1 billion and $2.5% over $1 billion. So, if Duavee sales are $250 million, LGND royalties
would only be $1.25 million, and if Duavee sales are $500 million, LGND royalties would be $7.5 million.
Upcoming 2014/2015 potential product approvals:
o Promacta (aplastic anemia) - 2014
o Hospira (NYSE.HSP) undisclosed product) - 2014
o Carbella (neurology) - 2014
o CE‐Melphalan (oncology) - 2015
o Delafloxacin (IV anti‐infective) - 2015
o Fablyn (metabolic) – 2015
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TABLE OF CONTENTS
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LGND is a biotechnology company with a business model of attaining and developing assets that generate royalty
revenue. LGND's primary technology platform is Captisol, a product that was designed to optimize the solubility and
stability of drugs. The technology was acquired in early 2011 when LGND acquired CyDex Pharmaceuticals for about
$35.5 million. LGND’s product portfolio consists of 90+ fully funded programs and 6 royalty generating products.
LGND’s royalty revenues are currently driven by Promacta and Kyprolis sales. Other revenue generating products
include Baxter’s (NYSE.BAX) Nexterone, Pfizer’s (NYSE.PFE) Avinza, Viviant (Conbriza; bazedoxifene) and Duavee
(bazedoxifene / conjugated estrogens). Additional LGND revenue generating assets may gain marketing approvals
in 2014. LGND maintains a relatively low-fixed cost structure with 19 employees.
Our opinion on LGND is based primarily on Promacta’s potential future royalty revenue’s ability to justify LGND's
current valuation. Industry sources have informed us that the HepC market is rapidly changing toward oral treatment
regimens that will not include interferon. This changing HepC market should substantially reduce the need for
Promacta’s use in HepC patients. Additionally, we view LGND's potential royalty revenue from its pipeline as
speculative.
The changing HepC market, the increasingly competitive MM market, Velcade’s potential generic competition,
Avinza’s generic competition and the scarcity of revenues from sources other than Captisol material sales and
royalties drive in our revenue estimates and price target. We view LGND as a drug delivery company and due to its
minimal tangible assets, believe a price-to-sales ratio is an appropriate valuation method. Our comparative analysis
of public companies (below) that address drug delivery provides an average price-to-sales multiple of 4x. Our price
target for LGND is $16.00 or 4x our 2020 revenue estimate of $83 million. We do not utilize a discount because our
belief is that Captisol related products and material sales will continually provide revenues to achieve our estimates.
CAPTISOL
LGND acquired its Captisol drug formulation technology in early 2011 when it acquired CyDex Pharmaceuticals for
about $35.5 million. Captisol revenues were $19.1 million in 2013 (slightly less than 40% of total revenues). Captisol
was invented in 1990 by scientists at the University of Kansas Higuchi Biosciences Center for use in drug development
and formulation. Captisol is modified β-cyclodextrin (SBE-CD) that is a ring-shaped sugar-based molecule that
eliminates harmful clinical outcomes (i.e., kidney toxicity) caused by β -cyclodextrin. Captisol provides a “casing” for
an active pharmaceutical ingredient (API) with its lipophilic (affinity for fats) cavity and a hydrophilic (affinity for
water) exterior that provides solubility in water. A Captisol-enabled (CE) API splits from the Captisol once the drug
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has been administered, and the Captisol component does not affect the pharmacokinetics and pharmacodynamics
(PK/PD) properties of the API. Drugs with a Captisol formula can be parenteral (injected), oral, ophthalmic, nasal,
topical and through inhalation.
In 2013, Captisol’s material, royalties, licenses and milestones generated $19.1 million. Examples of drugs
formulated with Captisol are Amgen Inc.’s (NASDAQ.AMGN) carfilzomib (Kyprolis) and Baxter International Inc.’s
(NYSE.BAX) CE IV amiodarone (Nexterone). Spectrum Pharmaceuticals Inc.’s (NASDAQ.SPPI) CE IV Melphalan is in
clinical development and expects to file a New Drug Application (NDA) in 3Q2014.
LGND plans to sign additional Captisol licensing deals and has partners pursuing additional indications. The company
stated that Captisol-related quarterly revenues are currently “lumpy” and should be analyzed on an annual basis. As
more customers advance their products to commercialization, LGND’s management expects to have more visibility
and provide a firmer forecast.
GlaxoSmithKline plc.’s (NYSE.GSK) Promacta (eltrombopag) is an oral thrombopoietin (TPO) receptor agonist. It
functions by stimulating bone marrow to produce more platelets that help reduce bruising and bleeding. LGND and
GSK have been in a collaboration since 1997 to discover small-molecule drugs to control hematopoiesis (formation,
development, and differentiation of blood cells). Promacta received an accelerated FDA approval for treatment of
Immune thrombocytopenic purpura (ITP) in patients with an insufficient response to corticosteroids,
immunoglobulins, or splenectomy in November 2008 and gained full approval in February 2011. In November 2012,
Promacta received a FDA approval as a therapy for thrombocytopenia in patients with chronic HepC to allow the
initiation and maintenance of interferon-based therapy. Revolade (Promacta) was approved in the E.U. and Japan
for ITP in 2010 and is currently marketed in about 95 countries for this indication and about half that number of
countries for its HepC indication. GSK is expected to present Phase III data for Promacta’s use in pediatric ITP in 2014.
Pediatric ITP accounts for about half of the newly diagnosed ITP patients, but we do not expect a large royalty
revenue increase from these patients because most of these cases resolve without therapy. Principal treatments for
adults with chronic ITP are either immune suppressing medications (i.e., corticosteroids) or Roche Holding AG’s
(OTC.RHHBY) Rituxan (Rituximab). If ITP symptoms continue, surgical removal of the spleen (splenectomy) may be
required.
Amgen Inc.’s (NASDAQ.AMGN) Nplate (romiplostim) is also a TPO receptor agonists but is dosed by a subcutaneous
injection. It was approved by the FDA in August 2008. Promacta and Nplate both drugs have Orphan Drug status for
their ITP indications. Although Nplate initially controlled the market, Promacta’s approval as a supportive therapy
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for HepC patients significantly improved its sales. Promacta sales achieved $292 million in FY2013 and were about
$84 million in 4Q2013 but showed a decline to about $80 million in 1Q2014.
Promacta may also compete against novel therapies for its other indication, the treatment of ITP. On July 16, 2014,
Rigel Pharmaceuticals, Inc. (NASDAQ.RIGL) announced the initiation of a Phase III for its oral SYK inhibitor,
fostamatinib, in patients with ITP. Fostamatinib is expected to address the autoimmune basis of the disease.
Promacta sales are generally expected to grow as a result of its indication for treatment of thrombocytopenia
associated with HepC. The World Health Organization (WHO) states that there may be 2 million - 4 million chronically
infected people in the U.S., 5 million - 10 million people in the E.U. and nearly 12 million people in India. Most people
are not aware that they have a HepC infection, and nearly 150,000 new cases are diagnosed annually in the U.S. and
Western E.U. and about 350,000 new cases in Japan.
Promacta revenues from HepC patients will depend significantly on the use of interferon in HepC therapeutic
regimens, which our industry sources expect to be reduced significantly due to approvals of new oral HepC
treatments. Promacta’s use should continue for those HepC patients where minimal clinical data exists for the new
oral treatment regimens and for patients with liver damage that have inadequate platelet production.
In December 2013, the FDA approved Sovaldi, an oral treatment for chronic HepC for use with ribavirin and
interferon alpha. Solvaldi also seems to be used “off label” with Johnson and Johnson’s (NYSE.JNJ) Olysio in an “all
oral” triple drug regimen for certain HepC patients. These new oral combination regimens present a threat to future
Promacta sales. Solvaldi is marketed by Gilead (NASDAQ.GILD) and is expected to face additional future competition
from drugs in development by AbbVie Inc. (NASDAQ.ABBV) and Merck & Company (NYSE.MRK). We expect the oral
HepC drug market to become more competitive and drive promotional efforts by all companies involved, which
should further pressure Promacta sales. Also, GSK recently announced that it is selling the division that currently
markets Promacta to Novartis (NYSE.NVS), which presents an unknown for future Promacta marketing efforts.
Solvaldi Indications
In mid-February 2014, GSK announced a FDA Breakthrough Therapy designation for Promacta for the treatment of
cytopenias in patients with severe aplastic anemia (SAA). SAA is rare and result’s from bone marrow failing to create
adequate amounts of new blood cells. There are currently no approved therapies for SAA patients once they do not
respond to immunosuppressive treatment. Nearly 40% of unresponsive patients die from infection or bleeding
within five years of diagnosis. GSK is pursuing additional new cancer indications for Promacta, but we do not believe
these will be able to take the place of the loss of Promacta revenues to HepC patients.
Promacta Royalties
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KYPROLIS (carfilzomib)
Multiple Myeloma (MM) is a disease caused by a type of white blood cell (a plasma cell) that reproduces without
stopping, resulting in damage to organs. Most patients have myeloma in more than one location, so this disease is
named Multiple Myeloma. Plasma cells normally produce a variety of antibodies for a person’s immune system, but
MM’s cancerous cells consume space in the bone marrow cavity, which reduces the area for normal marrow cells.
MM cells cannot generate the antibodies required to protect a person from infection. Myeloma cells may also
infiltrate the cortex (hard outer layer) of bones, which may cause the bone to be prone to breakage. People may
have their MM diagnosed due to a broken bone that resulted from minimal activity. MM can produce such a large
amount of antibodies (or malformed antibodies) and they block a kidney’s structure and cause permanent damage.
Kyprolis is a selective proteasome inhibitor approved by the FDA in July 2012. Kyprolis is an injectable agent and
manufactured using Captisol. It is used as a treatment for MM patients who have received at least two prior
therapies (third-line therapy) that include bortezomib (Velcade) and an immunomodulatory agent, and have disease
progression on or within 60 days of completion of the last therapy. LGND’s tiered royalties are based on Kyprolis’
net sales and range from 1.5% - 3%. LGND also receives milestones and revenues for associated Captisol material
sales, and has received a $1 million milestone for Kyprolis sales exceeding $250M in 2013. In 4Q2013, Kyprolis’
worldwide sales were $73M ($71 million in the U.S. but decreased to $62 in 1Q2014). Kyprolis sales were originally
hindered by the medical community’s concern about its risk of cardiovascular adverse events, but this has been
appeased by adequate prophylactic measures.
On October 1st 2013, AMGN completed a tender offer to acquire Onyx Pharmaceuticals for about $10.4 billion ($125
per share). Kyprolis was regarded as the primary rationale for AMGN’s acquisition of Onyx. Additional data from
ongoing Phase III trials (ASPIRE, FOCUS, ENDEAVOR, and CLARION) for Kyprolis’ use earlier in the treatment of MM
patients are expected in 2014-2016.
The ASPIRE trial is investigating Kyprolis added to Celgene Corporation’s (NASDAQ.CELG) Revlimid (lenalidomide)
plus dexamethasone in patients with relapsed MM who received one to three prior therapies. An interim analysis
by an Independent Data Monitoring Committee is expected during 2014. ASPIRE is the confirmatory trial for full U.S.
approval as well as a registration-enabling study for relapsed MM in the U.S. and E.U.
http://clinicaltrials.gov/ct2/show/NCT01080391?term=kyprolis+revlimid&rank=7
FOCUS trial is a Phase III for relapsed/refractory MM patients with final data possible in 2014. This trial may support
an E.U. filing for this indication.
http://clinicaltrials.gov/ct2/show/NCT01302392?term=focus+kyprolis&rank=1
ENDEAVOR trial is a Phase III that compares Kyprolis to Velcade in patients with relapsed MM who received one to
three prior therapies. ENDEAVOR may be completed in 2015.
http://clinicaltrials.gov/ct2/show/NCT01568866?term=kyprolis&rank=11
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CLARION trial is a Phase III trial comparing Kyprolis to Velcade in newly diagnosed MM patients. CLARION’s results
are expected in 2016.
http://clinicaltrials.gov/ct2/show/NCT01818752?term=clarion&rank=1
Kyprolis faces strong competition from two entrenched MM products, CELG’s Revlimid and Takeda Pharmaceutical
Company Limited’s (OTC.TKPYY) Velcade. CELG also markets Pomalyst (pomalidomide), another thalidomide
analogue. It was approved in 2013 for the treatment of MM patients who have received at least two prior therapies
including Revlimid and Velcade and have demonstrated disease progression on or within 60 days of completion of
the last therapy. Although Kyprolis has U.S. Orphan Drug designation with exclusivity through July 2019 and U.S.
patents that extend until at least 2025, Velcade comes off patent in the U.S. in 2017, and 2019 in the E.U. Kyprolis
future competition may also include AMGN’s pipeline product, oprozomib, that is in Phase II development.
Kyprolis Royalties
In October 2013, the FDA approved Duavee for treatment of moderate-to-severe vasomotor symptoms (hot flashes)
associated with menopause and prevention of postmenopausal osteoporosis. Duavee combines a low dose of
conjugated estrogen with a low dose of a selective estrogen receptor modulator (SERM) so is progesterone-free and
expected to protect the uterine lining from hyperplasia. Hyperplasia increases the risk for uterine cancer that may
result from estrogen-only treatment. In mid-2012, PFE received the E.U. Medicines Agency’s (EMA) acceptance for
review for its Marketing Authorization Application (MAA).
Duavee (previously named Aprela) was developed by Wyeth (NYSE.PFE) in a collaboration with LGND that began in
1999. Analysts’ predict peak annual sales of $200 million - $400+ million that would result in about $1-2 million in
annual royalties to LGND. Duavee’s label contains a Black Box warning that may affect PFE’s marketing efforts, and
fears about breast cancer risk have significantly reduced the market for menopausal drugs.
http://labeling.pfizer.com/ShowLabeling.aspx?id=1174
Duavee competes against Brisdelle that is sold by Noven Therapeutics (unit of Hisamitsu Pharmaceutical). Brisdelle
was approved about 4 months prior to Duavee’s FDA approval and is the first non-hormonal hot flash treatment.
Brisdelle contains paroxetine, the same active ingredient that is in in Paxil, an antidepressant and antianxiety drug
with a boxed warning for risk of suicidal thoughts and behaviors. Duavee is also expected to compete with Eli Lilly
and Company’s (NYSE.LLY) Evista (raloxifene) that was recently launched as a generic by Teva Pharmaceuticals
Industries Limited (NYSE.TEVA). Evista is an estrogen agonist/antagonist indicated for treatment and prevention of
osteoporosis in postmenopausal women and reduction in risk of invasive breast cancer in postmenopausal women
with osteoporosis. Evista had annual U.S. sales of about $824 million (IMS data) in 2013.
Duavee Royalties
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ADDITIONAL COLLABORATIONS
LGND states that it has 56 different partners. We highlight the ones we consider to have the most current promise
of being additive to LGND’s revenue.
Pfizer (NYSE.PFE): PFE’s collaboration with LGND began in 1991 as a R&D collaboration for osteoporosis
therapeutics.
Viviant (bazedoxifene; Conbriza): Viviant is a synthetic drug designed to lessen the risk of osteoporotic fractures
while protecting breast and uterine tissue. In mid-2006, a New Drug Application (NDA) for Viviant was filed with the
FDA for prevention of postmenopausal osteoporosis, and another NDA was filed in July 2007 for treatment of
osteoporosis. The FDA has requested additional data. In early 2009, Conbriza was given a positive Committee for
Medicinal Products for Human Use (CHMP) opinion in the E.U. for treatment of postmenopausal osteoporosis in
women at increased risk of fracture. In July 2010, Viviant gained approval in Japan. Almirall SA (MC.ALM) co-
promotes Conbriza with PFE in Spain.
Avinza: Avinza is morphine sulfate extended-release capsules that is dosed once-per-day for treatment of moderate-
to-severe chronic pain in adults who require around-the-clock pain relief for an extended period of time. LGND
receives a 5% royalty on net Avinza sales. Generic Avinza is now available in the U.S.
Vivant Royalties
0.5% Less than $400M annual sales
1.5% Sales in range of $400M - $1.0B
2.5% annually
Sales greater than $1B annually
Source: Ligand Pharmaceuticals, Inc.
Avinza Royalties
5% If sales are less than $200M annually
Higher royalties paid if sales exceed
$200M
Source: Ligand Pharmaceuticals, Inc.
Merck & Co (NYSE.MRK): LGND and MRK (Schering-Plough) began collaborating in 1994. The collaboration
initially focused on discovery of small molecule drugs for treatment of asthma and cancer, and later expanded into
other therapeutic areas.
Alzheimer's disease is characterized by plaques of the β-amyloid protein within the brain. β-amyloid forms when the
amyloid precursor protein (APP) is cleaved by two enzymes, β-secretase and γ-secretase, which releases the β-
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amyloid fragment. A β-APP site-cleavage enzyme (BACE) inhibitor is expected to reduce β-amyloid generation in
Alzheimer's disease patients.
MK-8931 is an oral BACE inhibitor. LGND and MRK entered into the agreement to develop this drug in 2009, and
LGND will receive royalties on future sales. MRK started MK-8931’s Phase II/III (EPOCH) trial in late 2012.
The EPOCH trial is evaluating patients with mild-to-moderate Alzheimer’s and is expected to enroll up to 1,960
patients. The primary endpoints are the change from baseline in Alzheimer’s disease Assessment Scale Cognitive
Subscale (ADAS-Cog) score and change from baseline in the Alzheimer’s disease Cooperative Study – Activities of
Daily Living (ADCS-ADL) score after 78 weeks of treatment. In December 2013, the Data Monitoring Committee
completed the interim safety analysis and endorsed the study to continue without protocol changes. This study is
expected to complete by April 2017.
MRK started another Phase III (APECS) in January 2014 for patients with amnestic (loss of memory) mild cognitive
impairment (prodromal Alzheimer’s). APECS will enroll 1500 patients with its primary efficacy endpoint the change
in from baseline in the Clinical Dementia Rating Scale-Sum of Boxes (CDR-SB) score after 104 weeks. The study is
expected to complete in March 2018.
EPOCH: http://clinicaltrials.gov/ct2/show/NCT01739348?term=EPOCH&rank=3
APECS: http://clinicaltrials.gov/ct2/show/NCT01953601?term=APECS&rank=2
LNGD licensed Captisol to MRK for use in an IV formulation of posaconazole (Noxafil), an antifungal drug. MRK's IV
Noxafil program will compensate LGND through the purchase of Captisol material. IV Noxafil has an FDA approval
and an E.U. marketing application has been filed. IV Noxafil is intended for treatment of invasive fungal infections in
hospital settings because the oral formulation may not be adequately absorbed to provide the necessary drug level
for these patients.
Exelixis Inc. (NASDAQ.EXEL): LGND’s license with EXEL originated in 1999 when LGND invested in and licensed
certain technologies to X-Ceptor, a private company subsequently acquired by EXEL. EXEL has three partnered
programs based on the X-Ceptor technologies that include XL-652 (a LXR agonist), FXR-450 (Farnesoid X receptor
modulator in early development for hyperlipidemia) and Xl-550 (mineralocorticoid receptor modulator in early
development with Daiichi-Sankyo (OTC.DSNKY) for treatment of metabolic disorders and cardiovascular diseases.
LGND will receive royalties on net sales.
Chiva Pharmaceuticals, Inc.: In early 2011, LGND began a strategic relationship with Chiva to develop LNGD assets
and technology in China. Chiva has licenses for two of LGND’s clinical-stage HepDirect programs. HepDirect is a pro-
drug technology that targets delivery of certain drugs to the liver by utilizing chemical modification that inactivates
a drug until it is cleaved by a liver-specific enzyme. The two licensed drugs are pradefovir for hepatitis B (HepB) and
MB01733 for treatment of hepatocellular carcinoma. Pradefovir is a pro-drug of Hepsera, an FDA approved drug
that allows a higher drug concentration in the liver and lower kidney drug concentrations to reduce dose-limiting
toxicities. A U.S. Phase II in HepB patients has been completed. MB07133 is a pro-drug of an intermediate form of
an approved cancer drug and is designed to transport a high concentration of the drug’s active form. A U.S. Phase
I/II in hepatocellular carcinoma is complete.
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Baxter International Inc. (NYSE.BAX): In 2006, Captisol was licensed to Prism Pharmaceuticals (BAX) for
amiodarone (Nexterone), an approved antiarrhythmic drug for treatment of a fast irregular heartbeat (ventricular
tachyarrhythmia). LGND receives milestones, royalties and material sales from this partnership.
SAGE Therapeutics: In 2011, LGND and Sage entered into an agreement that provides LGND with revenue from
Captisol material sales for clinical and commercial activities, upfront and research support payments, potential
milestones and royalties.
H. Lundbeck A/S (OTC.HLUYY): In 2004, Ovation Pharmaceuticals (Lundbeck) and Cydex (LGND) began
development of CE carbamazepine-IV (Carbella) for acute seizure disorder in hospital or emergency sites. This
product has completed Phase III and is in registration with an action letter before YE2014. The filing triggered a
milestone payment of $200,000 to LGND.
Retrophin Inc. (NASDAQ.RTRX): In early 2012, LGND licensed RE-021’s (Sparsentan; DARA) worldwide rights to
RTRX. RE-021 is a dual acting receptor antagonist of angiotension and endothelin receptors and may help reduce
proteinuria in indications with no approved therapies. LGND may receive more than $75 million in milestones and
9% in royalties. RTRX has initiated a Phase II study for treatment of focal segmental glomerulosclerosis (FSGS; rare
disease that attacks a kidney's filtering system).
http://clinicaltrials.gov/show/NCT01613118
Spectrum Pharmaceuticals (NASDAQ.SPPI): LGND licensed CE-Melphalan’s worldwide rights to SPPI. Melphalan
is a generic drug utilized in the MM transplant setting, CE-Melphalan has an FDA Orphan designation by the FDA that
avoids the use of propylene glycol that is believed to cause renal and cardiac side effects. CE-Melphalan is in a Phase
II/III pivotal trial. LGND’s CE-Melphalan royalty will range 15-25%. SPPI expects to file for U.S. approval in 3Q2014.
Due to availability of generic melphalan, we view this product’s ability to produce notable royalties as speculative.
MEI Pharma, Inc. (NASDAQ.MEIP): LGND’s license and supply agreement with MEIP started in September 2012.
MEIP’s lead isoflavone-based drug compounds, ME-143 and ME-344, are in development for treatment of solid
tumors. A Phase Ib trial in small cell lung cancer and ovarian cancer patients was started in May 2014.
Sanofi (NYSE.SNY): SNY has a license agreement for Captisol technology. SNY began development of SAR125844
for the treatment of solid tumors in 2010. This product is still in early clinical development studies.
Melinta Therapeutics: Melinta Therapeutics (Rib-X Pharmaceuticals) and LGND entered a development and
commercialization agreement in 2008. Delafloxacin is a fluoroquinolone antibiotic against quinolone-resistant Gram-
positive and Gram-negative bacteria. Melinta announced in May 2013 that it initiated the first of two Phase III trials
for acute bacterial skin and skin structure infections (ABSSSI) that include MRSA (Methicillin-resistant Staphylococcus
aureus) infections. Phase III data is expected in 2H2014.
AstraZeneca PLC (NYSE.AZN): In May 2014, LGND signed a licensing and research deal with AZN’s subsidiary,
Omthera Pharmaceuticals, to develop LGND’s LTP technology platform for the treatment of dyslipidemia. The
research collaboration will utilize the LTP Technology to improve the lipid-lowering activity of certain omega-3 fatty
acids. LGND could receive payments up to $44.5 million in milestones and tiered royalties from mid-to-high single
digits of net sales. Omthera is responsible for research and clinical development costs and commercialization of
products from this collaboration.
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TG Therapeutics (NASDAQ.TGTX): TGTX will develop and commercialize LGND’s Interleukin-1 Receptor
Associated Kinase-4 (IRAK-4) inhibitors for treatment of cancer and autoimmune diseases. IRAK-4 has an important
function in the innate immune system, as a signaling factor downstream of toll-like receptors (TLRs) and interleukin-
1 receptor (IL-1), so it may be beneficial in autoimmune and inflammatory disease and oncology. This program is in
pre-clinical development. LGND received 125,000 unregistered shares of TGTX’s stock (valued at ~$1 million) and
could receive $207 million in milestones and tiered royalties of 6%−9.5% on net sales.
Viking Therapeutics, Inc.: In late June 2014, LGND licensed the rights to five of its programs to Viking. The programs
include a FBPase (enzyme involved in glucose generation) inhibitor program for type 2 diabetes, a Selective
Androgen Receptor Modulator (SARM) program for muscle wasting, a Thyroid Hormone Receptor-ß (TRß) Agonist
program for dyslipidemia, an Erythropoietin Receptor (EPOR) Agonist program for anemia and an Enterocyte-
Directed Diacylglycerol Acyltransferase-1 (DGAT-1) Inhibitor program for dyslipidemia. The FBPase Inhibitor program
was involved in an option granted to Viking in 2012. As part of this transaction, LGND will provide a $2.5 million
convertible loan facility to Viking to pay operating and financing expenses.
ADDITIONAL PROGRAMS
In April 2013, LGND acquired 15 programs for $3.5 million (plus an additional $1 million) from Selexis SA. Five of the
programs are with Merrimack Pharmaceuticals Inc. (NASDAQ.MACK) and Baxter International Inc. (NYSE.BAX), other
programs are with Aveo Pharmaceuticals, Inc. (NASDAQ. AVEO), CSL Ltd, and Glenmark Pharmaceuticals Ltd and
biosimilar programs with Coherus Biosciences and BIOCAD Biopharmaceutical Company. MM-121 (SAR256212) is a
fully human monoclonal antibody designed to block ErbB3 (HER3) that appears to be the most developed of the
Selexis programs. http://www.selexis.com/#!sells-rights-to-royalty-paymen/ctvn
LGND has an oral granulocyte colony stimulating factor (GCSF), LGD-7455, in development. G-CSF stimulates the
production of white blood cells. LGD-7455 seems to activate the receptor in a different method than natural G-CSF.
This compound has demonstrated an ability to cause increases in peripheral blood neutrophils (type of white blood
cell).
LGND has a non-steroidal selective androgen receptor modulator (SARM), LGD-4033, that is expected to provide the
benefits of testosterone but with improved safety, tolerability and patient acceptance. The safety of testosterone
therapy has received increased visibility, and LGND believes this SARM may prove to be an improved, next-
generation product. This product may compete with GTx, Inc.’s Enobosarm (Osterine; Gtx-024) that is in Phase III.
LGND’s LGD-6972 (MB11262) is an oral glucagon receptor (GCGR) antagonist for treatment of type 2 diabetes. GCGR
antagonists decrease glucose production in the liver. The company’s diabetes program also has a liver specific
glucokinase activator (GKS) in preclinical testing and an enterocyte-directed DGAT-1 (essential for fat tissue
formation) inhibitor in preclinical testing. LGD-6972’s interim Phase I data was presented at the 2014 American
Diabetes Association (ADA) annual meeting held in from June. LGND expects to conduct a multiple ascending dose
study and then attempt to partner this product. LGD-6972 is expected to compete with Eli Lilly’s (NYSE.LLY)
developmental drug (LY2409021) in Phase II. LGD-6972 should obtain a marketing approval after LY2409021 so the
value of this program is difficult to evaluate. It is interesting that LGND’s management has stated that LGD-6972 is
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one of its “most promising un-partnered assets in a very large therapeutic area with significant unmet medical
needs.”(LGND corporate press release, June 16, 2014)
MANUFACTURING
LGND does not have manufacturing facilities and relies on third parties (including its partners) to produce products
or compounds. It outsources Captisol production to Hovione FarmaCiencia SA, located in Loures, Portugal. Hovione
is LGND’s exclusive Captisol supplier and is restricted from supplying Captisol to third parties. LGND has minimum
purchase commitments. In 2012, the Hovione site in Cork, Ireland was qualified to perform certain manufacturing
steps to provide back-up and increased capacity to the Loures site. The initial term of the companies’ agreement
expires in December 2019 and will automatically renew for successive two year renewal terms unless either party
gives written notice of its intention to terminate the agreement no less than two years prior to the expiration of the
initial term or renewal term.
INTELLECTUAL PROPERTY
Captisol’s patents and pending patent applications are owned by LGND. Other patents and pending patent
applications that cover methods of manufacturing are owned by LGND or by PFE. LGND believes that its patents that
cover Captisol (if issued, with the latest expiration date) will not expire until 2033. LGND also owns several patents
and pending patent applications that cover drug products that contain Captisol.
The initially filed patents relating to Captisol expired starting in 2010 in the U.S. and will expire by 2016 in most
countries outside the U.S. If LGND’s other intellectual property rights are not sufficient to prevent a generic form of
Captisol from coming to market, its Captisol-related revenue could be significantly reduced. Patents that cover
Promacta are owned by GSK. The latest patent expiration date is not expected until 2027. Patents that protect
Kyprolis comprise those owned by AMGN and those owned by LGND. The latest patent expiration date is not
expected to expire until 2027. Patents and applications owned by LGND relating to the Captisol component of
Kyprolis are not expected to expire until 2033.
MANAGEMENT
John Higgins is President, Chief Executive Officer and a member of the Board of Directors of LGND. Prior to joining
LGND, Mr. Higgins served as Chief Financial Officer and Executive Vice President, Finance and Administration and
Corporate Development, of Connetics Corporation, a specialty pharmaceutical company acquired by Stiefel
Laboratories (GSK) in 2006. Before joining Connetics, he was a member of the executive management team at
BioCryst Pharmaceuticals. Currently, he is a Director on the Boards of Techne Corporation, CoMentis and BioCryst
and serves as Chairperson of the Techne Audit Committee. Prior to BioCryst, Mr. Higgins was a member of the
healthcare banking team of Dillon, Read & Co. Inc., an investment banking firm. He graduated Magna Cum Laude
from Colgate University with an AB in economics.
EMPIRE
ASSET MANAGEMENT COMPANY
Matthew W. Foehr has more than 18 years of experience managing global research and development programs.
Prior to joining LGND in 2011, he was Vice President and Head of Consumer Dermatology R&D, as well as Acting
Chief Scientific Officer of Dermatology, in the Stiefel division of GSK. Following GSK's $3.6 billion acquisition of Stiefel
in 2009, Mr. Foehr led the R&D integration of Stiefel into GSK. At Stiefel Laboratories, Inc., Mr. Foehr served as Senior
Vice President of Global R&D Operations, Senior Vice President of Product Development & Support, and Vice
President of Global Supply Chain Technical Services. Prior to Stiefel, Mr. Foehr held various executive roles at
Connetics Corporation including Senior Vice President of Technical Operations and Vice President of Manufacturing.
Mr. Foehr is the author of multiple scientific publications and is named on numerous U.S. patents. He received his
Bachelor of Science degree in Biology from Santa Clara University.
Nishan de Silva, MD, Vice President of Finance & Strategy and Chief Financial Officer
Nishan de Silva, M.D. has more than thirteen years of healthcare experience across healthcare investing and
management consulting. Prior to joining LGND, Dr. de Silva served as a Principal of private equity firm Warburg
Pincus LLC, where he was responsible for sourcing late-stage biopharmaceutical investments. Over the previous
eight years, he evaluated hundreds of biopharmaceutical company investment opportunities, negotiated and
structured major equity positions for several companies and served on the Board of Directors for several public and
private biopharmaceutical companies. Prior to joining Warburg Pincus, Dr. de Silva worked in healthcare venture
capital at Sprout Group and as a management consultant at McKinsey & Company, where he focused on growth
strategy projects for senior management at leading global pharmaceutical and healthcare services companies. Dr.
de Silva holds an M.D. from The University of Pennsylvania School of Medicine, an M.B.A. in Healthcare Management
from The Wharton School, and an A.B. in Biology from Harvard College.
INVESTMENT RISKS
LGND may acquire attractive assets or platform technologies that we do not expect, and these may be capable of
generating revenues that we have not anticipated. LGND may also form additional strategic alliances that could
positively affect its stock price and/or operating results
If LGND’s current products have more commercial success than we anticipate, the company may have a significant
increase in revenues that we do not expect. If physicians prescribe LGND’s products “off label” in a manner that we
do expect, its products may generate greater revenues than we anticipate.
The majority of LGND’s projected revenues are connected to Captisol. If the Captisol technology proves more
efficacious than we anticipate in its commercial and developmental programs, product revenues could be
significantly greater than we anticipate.
Marketed and developmental products considered competitors to LGND’s products may prove to not be as effective
or safe, which could add to LGND’s market potential and the sales revenues upon which we derived our price target.
If LGND experiences reduced corporate expenses, it may add to the company’s profitability in a manner that we do
not anticipate.
EMPIRE
ASSET MANAGEMENT COMPANY
LGND’s pipeline of programs may produce positive future clinical data that are unexpected or greater than we
anticipate. LGND’s pipeline of assets may be more successful in gaining or maintaining market share versus
existing drugs or drugs in various stages of development than we anticipate.
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EMPIRE
ASSET MANAGEMENT COMPANY
ADDENDUM
* For people with either HCV genotype 1b or HCV genotype 1a and in whom the Q80K polymorphism is not detected before treatment
** Physicians must prescribe this regimen “off label” because the combination of Solvaldi, Olysio and ribavirin has not been approved by the U.S.
Food and Drug Administration (FDA). Research of this drug regimen among those with genotype 1 has been promising
*** Preliminary data suggest this regimen may be less effective than the recommended regimen, particularly among those with cirrhosis
EMPIRE
ASSET MANAGEMENT COMPANY
Revenues:
Royalties $ 9.2 $ 14.1 $ 23.6 $ 7.9 $ 5.9 $ 7.6 $ 9.7 $ 30.9 $ 28.9 $ 30.3 $ 31.8 $ 33.4 $ 35.1 $ 36.9
Material Sales 12.1 9.4 19.1 5.7 2.8 6.2 7.0 21.6 22.6 23.7 24.9 26.1 27.3 28.7
Collaborative R&D and other revenues 8.7 7.9 6.3 2.4 2.0 3.5 4.0 11.9 13.8 14.4 15.2 15.9 16.7 17.5
Total Revenues 30.0 31.4 49.0 16.0 10.6 17.2 20.6 64.4 65.2 68.5 71.9 75.4 79.2 83.1
Operating expenses:
Cost of sales 4.9 3.6 5.7 2.5 1.1 2.2 2.0 7.8 8.2 8.6 9.1 9.5 10.0 10.4
Research and development 10.3 10.8 9.3 3.1 2.8 3.0 3.1 11.9 11.4 11.9 13.7 14.6 16.4 17.6
General and administrative 14.6 15.8 18.0 5.1 3.8 4.3 4.7 17.8 18.3 19.0 19.7 21.9 22.8 23.6
Lease exit and termination costs 0.6 1.0 0.6 0.2 0.2 0.2 0.2 0.8 - - - - - -
Write-off of in-process R&D 2.3 - 0.5 - - - - - - - - - - -
Total operating expenses 32.6 31.2 34.0 10.9 7.9 9.7 10.0 38.3 37.9 39.5 42.4 45.9 49.1 51.6
Accretion of deferred gain on sale of leasebac 1.7 - - - - - - - - - - - - -
Loss from operations (0.9) 0.2 14.9 5.1 2.7 7.5 10.6 26.0 27.3 28.9 29.5 29.5 30.1 31.4
Interest and other income (expense), net (2.7) (4.1) (5.7) (3.0) (1.0) (1.0) (1.0) (6.0) (4.0) (4.0) (4.0) (4.0) (4.0) (4.0)
Loss from continuing operations before incom (3.6) (3.9) 9.2 2.2 1.7 6.5 9.6 20.1 23.3 24.9 25.5 25.5 26.1 27.4
Income tax (expense) benefit 13.3 1.2 (0.4) (0.1) (0.0) (0.1) (0.2) (0.4) (0.5) (0.5) (0.5) (0.5) (0.5) (0.5)
Income (loss) from continuing operations 9.7 (2.7) 8.8 2.1 1.7 6.4 9.5 19.7 22.8 24.4 24.9 25.0 25.6 26.9
Income from discontinued operations 0.0 2.1 2.6 - - - - - - - - - - -
Net income (loss) 9.7 (0.5) 11.4 2.1 1.7 6.4 9.5 19.7 22.8 24.4 24.9 25.0 25.6 26.9
Diluted per share amounts:
Income (loss) from continuing operations $ 0.49 $ (0.13) $ 0.43 $ 0.10 $ 0.08 $ 0.30 $ 0.43 $ 0.92 $ 1.06 $ 1.12 $ 1.13 $ 1.12 $ 1.13 $ 1.17
Income from discontinued operations $ 0.00 $ 0.11 $ 0.12 $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ -
Earnings per share - diluted $ 0.49 $ (0.03) $ 0.55 $ 0.10 $ 0.08 $ 0.30 $ 0.43 $ 0.92 $ 1.06 $ 1.12 $ 1.13 $ 1.12 $ 1.13 $ 1.17
WA shares outstanding - diluted 19,713 19,853 20,745 21,208 21,450 21,600 21,850 21,463 21,600 21,750 22,100 22,400 22,700 23,000
Source: Company Reports and Empire Asset Management Co. Estimates
EMPIRE
ASSET MANAGEMENT COMPANY
Current liabilities:
Accounts payable 11.1 5.9 5.5 4.8 4.3 4.0 3.7
Accrued liabilities and other 22.6 14.8 14.3 14.2 15.8 15.9 11.6
Note payable 10.0 14.8 13.2 13.6 12.4 9.1 5.8
Total current liabilities 43.6 35.4 33.0 32.6 32.5 28.9 21.0
Long-term portion of note payable 20.3 13.4 5.5 2.0 - - -
Long-term portion of co-promote termination lia 15.3 8.2 7.9 8.6 8.4 7.4 0.4
Long-term portion of liability for contingent valu 11.4 10.5 12.4 9.2 8.6 11.795 12.7
Other long-term liabilities 14.7 10.1 9.0 8.0 7.5 6.9 6.3
Total liabilities 105.4 77.8 67.8 60.3 56.9 55.1 40.5
Common stock subject to conditional redemption 8.3
Total stockholders equity 8.6 26.5 30.6 39.3 44.8 49.6 65.0
Total liabilities and stockholders equity 122.4 104.3 98.4 99.6 101.7 104.7 105.5
Source: Company Reports and Empire Asset Management Co. Estimates
EMPIRE
ASSET MANAGEMENT COMPANY
Disclosures
Regulation Analyst Certification ("Reg AC"): The research analyst primarily responsible for the content of this
report certifies the following under Reg AC: I hereby certify that all views expressed in this report accurately reflect
my personal views about the subject company or companies and its or their securities. I also certify that no part of
my compensation was, is or will be, directly or indirectly, related to the specific recommendations or views
expressed in this report. The Analyst responsible for preparing this report does not maintain a position in Ligand
Pharmaceuticals Incorporated stock.
Within the last twelve months, Empire Asset Management Co. has NOT received compensation for investment
banking services from Ligand Pharmaceuticals Incorporated.
Empire Asset Management Co. does not make a market in shares of Ligand Pharmaceuticals Incorporated.
Shares of Ligand Pharmaceuticals Incorporated may be subject to the Securities and Exchange Commission's Penny
Stock Rules, which may set forth sales practice requirements for certain low-priced securities.
Within the last twelve months, Empire Asset Management Co. has NOT managed or co-managed a public offering
for Ligand Pharmaceuticals Incorporated.
Price Chart
Each box on the Rating and Price Target History chart above represents a date on which an Empire Asset
Management Co. analyst made a change to a rating or price target, except for the first box, which may only represent
the first note written during the past three years.
EMPIRE
ASSET MANAGEMENT COMPANY
Distribution of Ratings/IB Services shows the number of companies in each rating category from which Empire Asset
Management Co. or an affiliate received compensation for investment banking services in the past 12 months.
Our rating system attempts to incorporate industry, company and/or overall market risk and volatility. Consequently,
at any given point in time, our investment rating on a stock and its implied price movement may not correspond to
the stated 12-month price target.
Ratings System Definitions - Empire Asset Management Co. employs a rating system based on the following:
Buy [B]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected rise in stock price of
at least 10% over the next 12 months.
Hold [H]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected total return between
negative 10% and 10% over the next 12 months.
Sell [S]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected decline in stock price
of more than negative 10% over the next 12 months.
Under Review [UR]: A rating, which at the time it is instituted and/or reiterated, that indicates the temporary
removal of the prior rating, price target and estimates for the security. Prior rating, price target and estimates should
no longer be relied upon for UR-rated securities.
Not Rated [NR]: Empire Asset Management Co. does not publish research or have an opinion about this security.
As is the case with all Empire Asset Management Co., employees, the analyst(s) responsible for the coverage of the
financial instruments discussed in this report receive compensation based in part on the overall performance of the
firm, including investment banking income. We seek to update our research as appropriate, but various regulations
may prevent us from doing so. Aside from certain industry reports published on a periodic basis, the large majority
of reports are published at irregular interviews as appropriate in the analyst’s judgment
The material information and facts discussed in this report other than the information regarding Empire Asset
Management Co. and its affiliates, are from sources believed to be reliable, but are in no way guaranteed to be
complete or accurate. This report should not be used as a complete analysis of the company, industry or security
discussed in the report. Additional information is available upon request. This is not, however, an offer or solicitation
of the securities discussed. Any opinions or estimates in this report are subject to change without notice. An
investment in the stock may involve risks and uncertainties that could cause actual results to differ materially from
the forward-looking statements. Additionally, an investment in the stock may involve a high degree of risk and may
not be suitable for all investors. No part of this report may be reproduced in any form without the express written
permission of Empire Asset Management Co. Copyright 2014. Member: FINRA/SIPC.
August 5, 2014
EMPIRE Investment Rating: Sell
Action: Earnings Note
ASSET MANAGEMENT COMPANY
Stock Information
LGND reported 2Q2014 revenue of $10.6 million and an EPS of $0.7 compared to Ra ti ng: Buy
2Q2013 revenue of $9.6 million and an EPS of $0.30. Total cash and cash Curre nt Pri ce (i ntra da y): $52.81
12-Month Pri ce Ta rge t: $16.00
equivalents at the end of 2Q2014 were $23.3 million. LGND paid down $3.5 million Pote nti a l Downs i de s i de -70%
of debt during 2Q2014 and eliminated the debt in 3Q2014. Financial guidance Se ctor: He a l thca re Di a gnos ti cs
Ma rke t Ca p (i n bi l .): $1.1
provided by LGND’s management for 2014 is total revenue of $64 million -$66 52-We e k H/L: $80.42 -$39.75
million (previously $62 million - $64 million). We are not adjusting our 2014 Sha re s Out (i n mi l .): 20.7
ADTV (i n mi l .) 302.0
revenue estimate because it is within the company’s revised guidance. Revenue Ca s h (i n mi l .) $23.3
guidance provided by LGND for 3Q2014 is $13 million - $14 million. We believe De bt (i n mi l .) $0.0
Ente rpri s e Va l ue (bi l .) $1.0
4Q2014 revenues necessary to achieve the company’s 2014 total revenue guidance
Key Financials
could be difficult to achieve
EPS
$ F2012A F2013A F2014E
On the 2Q2014 conference call, LGND’s management was focused on pipeline 1Q 0.06 0.07 0.10
2Q (0.13) 0.30 0.07
programs more than on products that currently generate royalties or Captisol sales. 3Q (0.01) 0.09 0.30
Royalty revenue in 2Q2014 was $5.2 million or slightly less than 50% of total 4Q FY
0.05
(0.03)
0.09
0.10
0.43
0.92
revenues. We regard LGND’s Captisol technology as a drug delivery technology that Revenue
principally provides only material sales and low single digit royalties. LGND now has $ mn F2012A F2013A F2014E
~100 partnered development programs, but we do not believe that these are 1Q 5.6 11.7 16.0
2Q 5.7 9.6 10.6
capable of replacing lost Promacta royalties once this drug is no longer extensively 3Q 6.4 13.0 17.2
utilized in Hepatitis C (HepC) patients. Promacta does not contain Captisol and 4Q 13.6 14.7 20.6
provides LGND somewhat higher royalties (4.7% - 9.3%) than the Captisol-enabled FY 31.4 49.0 64.4
products. What seems to be ignored by many investors is the GlaxoSmithKline, Inc.’s (NYSE.GSK) sale to Novartis
(NYSE.NVS) of its division that markets Promacta. This sale adds to our skepticism of Street estimates for peak Kyprolis’
sales in the range of $700 million – $2.5 billion (from LGND’s management public comments on August 4, 2014).
We believe the scarcity of comments during LGND’s 2Q2014 conference call regarding approved products that provide
royalties to LGND is a direct result of the minimal royalty revenues that these products provide. LGND’s management
did provide Promacta’s and Kyprolis’ total 2Q2014 sales revenues but did not provide the amount these products each
contributed to LGND’s total revenues.
On August 4, 2014, Amgen announced the planned interim analysis of Kyprolis’ Phase III clinical trial, ASPIRE
(CArfilzomib, Lenalidomide, and DexamethaSone versus Lenalidomide and Dexamethasone for the treatment of
PatIents with Relapsed Multiple MyEloma). The data demonstrated that the trial met its primary endpoint of
progression-free survival (PFS). Patients treated with Kyprolis in combination with Revlimid (lenalidomide) and low-dose
dexamethasone lived 26.3 months without the disease worsening compared to 17.6 months in patients treated with
Revlimid and low-dose dexamethasone. Patients included in the trial had relapsed multiple myeloma following
Empire Asset Management Company 2 Rector
Street, 15th Floor New York NY 10006
Dr. Cathy Reese [email protected] 212-417-7777
Important Disclosures & Regulation AC Certification(s) are located on the last two pages of this report.
Case 1:18-cv-11926-PBS Document 127-31 Filed 09/30/20 Page 2 of 5
August 5, 2014
EMPIRE Investment Rating: Sell
Action: Earnings Note
ASSET MANAGEMENT COMPANY
treatment with one to three prior regimens. Kyprolis’ current indication is for patients who received at least two prior
therapies including bortezomib (Velcade) and an immunomodulatory agent and have demonstrated disease progression
on or within 60 days of completion of the last therapy. In the U.S., the ASPIRE data may support the conversion of
Kyprolis’ current accelerated approval to a full approval and expand its current indication. We do not expect a large
increase in Kyprolis-related U.S. royalties based in the ASPIRE data. This expectation is based on our industry sources
stating that multiple myeloma patients typically utilize all products during the course of their disease, and Kyprolis has
been slotted by the medical community as a good third line drug, so it should be difficult to shift it from this position.
Finally, we were unimpressed by LGND’s management stating that it “informs” its opinion of Kyprolis’ sales potential
from analysts that cover Amgen Inc. (NASDAQ.AMGN). This does not give us confidence that communications between
LGND and AMGN are strong, and Street estimates are made by persons not directly associated with Kyprolis’
commercialization.
We believe interferon’s use in hepatitis C (HepC) patients will decline as new HepC drugs gain momentum and additional
pipeline drugs gain approvals. We believe the reduction in interferon therapy will result in Promacta’s 42% year-over-
year sales growth in 2013 being reversed in the upcoming quarters, and we anticipate this decrease to be relatively
rapid. We do not believe LGND’s current or future approved products will be capable of generating adequate revenues
in a timely approach, if at all, to offset our estimated revenue decline in Promacta royalties.
LGND continues to expect Captisol revenues to remain “lumpy” quarter to quarter. Captisol material sales in 2013 were
$19.1 million. Captisol sales in 2014 through June 30, 2014 were $14.9 million ($5.7 million in 1Q2014 and $ 9.2 million
in 2Q2014).
LGND’s internal pipeline and licensing deals, such as its IRAK-4 with TG Therapeutics Inc. (NASDAQ.TGTX) and its LTP
Technology recently licensed to Omthera (division of AstraZeneca PLC; NYSE.AZN) and the five programs licensed to
Viking Therapeutics Inc. are all relatively early in development and do not alter our current outlook for LGND’s
foreseeable revenue prospects.
The changing HepC market, the increasingly competitive multiple myeloma market, Velcade’s potential generic
competition, Avinza’s generic competition and the scarcity of revenues from sources other than Captisol material sales
and royalties drive our revenue estimates and price target.
Revenues:
Royalties $ 9.2 $ 14.1 $ 23.6 $ 7.9 $ 5.2 $ 7.6 $ 9.7 $ 30.3 $ 28.9 $ 30.3 $ 31.8 $ 33.4 $ 35.1 $ 36.9
Material Sales 12.1 9.4 19.1 5.7 3.5 6.2 7.0 22.3 22.6 23.7 24.9 26.1 27.3 28.7
Collaborative R&D and other revenues 8.7 7.9 6.3 2.4 1.9 3.5 4.0 11.8 13.8 14.4 15.2 15.9 16.7 17.5
Total Revenues 30.0 31.4 49.0 16.0 10.6 17.2 20.6 64.4 65.2 68.5 71.9 75.4 79.2 83.1
Operating expenses:
Cost of sales 4.9 3.6 5.7 2.5 1.2 2.2 2.0 7.9 8.2 8.6 9.1 9.5 10.0 10.4
Research and development 10.3 10.8 9.3 3.1 2.7 3.0 3.1 11.8 11.4 11.9 13.7 14.6 16.4 17.6
General and administrative 14.6 15.8 18.0 5.1 5.2 4.3 4.7 19.3 18.3 19.0 19.7 21.9 22.8 23.6
Lease exit and termination costs 0.6 1.0 0.6 0.2 0.1 0.1 0.1 0.6 - - - - - -
Write-off of in-process R&D 2.3 - 0.5 - - - - - - - - - - -
Total operating expenses 32.6 31.2 34.0 10.9 9.3 9.6 9.9 39.6 37.9 39.5 42.4 45.9 49.1 51.6
Accretion of deferred gain on sale of leaseback 1.7 - - - - - - - - - - - - -
Loss from operations (0.9) 0.2 14.9 5.1 1.4 7.6 10.7 24.8 27.3 28.9 29.5 29.5 30.1 31.4
Interest and other income (expense), net (2.7) (4.1) (5.7) (3.0) (0.1) (1.0) (1.0) (5.1) (4.0) (4.0) (4.0) (4.0) (4.0) (4.0)
Loss from continuing operations before income t (3.6) (3.9) 9.2 2.2 1.2 6.6 9.7 19.7 23.3 24.9 25.5 25.5 26.1 27.4
Income tax (expense) benefit 13.3 1.2 (0.4) (0.1) 0.0 (0.1) (0.2) (0.3) (0.5) (0.5) (0.5) (0.5) (0.5) (0.5)
Income (loss) from continuing operations 9.7 (2.7) 8.8 2.1 1.3 6.5 9.5 19.4 22.8 24.4 24.9 25.0 25.6 26.9
Income from discontinued operations 0.0 2.1 2.6 - - - - - - - - - - -
Net income (loss) 9.7 (0.5) 11.4 2.1 1.3 6.5 9.5 19.4 22.8 24.4 24.9 25.0 25.6 193.6
Net loss attributable to noncontrolling interests - - - - 0.3 - - 0.3 - - - - - -
Net income (loss) to Ligand common shareholde 9.7 (0.5) 11.4 2.1 1.6 6.5 9.5 19.7 22.8 24.4 24.9 25.0 25.6 193.6
Diluted per share amounts:
Income (loss) from continuing operations $ 0.49 $ (0.13) $ 0.43 $ 0.10 $ 0.07 $ 0.30 $ 0.44 $ 0.92 $ 1.06 $ 1.12 $ 1.13 $ 1.12 $ 1.13 $ 1.17
Income from discontinued operations $ 0.00 $ 0.11 $ 0.12 $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ -
Earnings per share - diluted $ 0.49 $ (0.03) $ 0.55 $ 0.10 $ 0.07 $ 0.30 $ 0.44 $ 0.92 $ 1.06 $ 1.12 $ 1.13 $ 1.12 $ 1.13 $ 1.17
WA shares outstanding - diluted 19,713 19,853 20,745 21,208 21,780 21,600 21,850 21,463 21,600 21,750 22,100 22,400 22,700 23,000
Disclosures
Regulation Analyst Certification ("Reg AC"): The research analyst primarily responsible for the content of this report
certifies the following under Reg AC: I hereby certify that all views expressed in this report accurately reflect my
personal views about the subject company or companies and its or their securities. I also certify that no part of my
compensation was, is or will be, directly or indirectly, related to the specific recommendations or views expressed
in this report. Neither my family nor I have any financial interest in the securities discussed in the report.
Within the last twelve months, Empire Asset Management Co. has NOT received compensation for investment
banking services from Ligand Pharmaceuticals, Inc.
Empire Asset Management Co. does not make a market in shares of Ligand Pharmaceuticals, Inc.
Shares of Ligand Pharmaceuticals, Inc., may be subject to the Securities and Exchange Commission's Penny Stock
Rules, which may set forth sales practice requirements for certain low-priced securities.
Within the last twelve months, Empire Asset Management Co. has NOT managed or co-managed a public offering
for Ligand Pharmaceuticals, Inc.
Price Chart
Each box on the Rating and Price Target History chart above represents a date on which an Empire Asset
Management Co. analyst made a change to a rating or price target, except for the first box, which may only represent
the first note written during the past three years.
Distribution of Ratings/IB Services shows the number of companies in each rating category from which Empire Asset
Management Co. or an affiliate received compensation for investment banking services in the past 12 months.
Our rating system attempts to incorporate industry, company and/or overall market risk and volatility. Consequently,
at any given point in time, our investment rating on a stock and its implied price movement may not correspond to
the stated 12-month price target.
Ratings System Definitions - Empire Asset Management Co. employs a rating system based on the following:
Buy [B]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected rise in stock price of
at least 10% over the next 12 months.
Hold [H]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected total return between
negative 10% and 10% over the next 12 months.
Sell [S]: A rating, which at the time it is instituted and/or reiterated, that indicates an expected decline in stock price
of more than negative 10% over the next 12 months.
Under Review [UR]: A rating, which at the time it is instituted and/or reiterated, that indicates the temporary
removal of the prior rating, price target and estimates for the security. Prior rating, price target and estimates should
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On July 30, 2014, the data in figure 17 were corrected to extend through 2014:Q1,
as originally noted.
Case 1:18-cv-11926-PBS Document 127-32 Filed 09/30/20 Page 3 of 15
LETTER OF TRANSMITTAL
The Board of Governors is pleased to submit its Monetary Policy Report pursuant to
section 2B of the Federal Reserve Act.
Sincerely,
Productivity growth has been modest 28. Change in output per hour
A. Private housing starts and permits B. Pending home sales index and existing home sales
Monthly Millions of units, annual rate Thousands, annual rate Index, 2001 = 100
1.0 100
Single-family 5,000
permits
.6 90
4,000
Multifamily starts .2 80
2006 2008 2010 2012 2014 2002 2004 2006 2008 2010 2012 2014
NOTE: The data extend through May 2014. NOTE: The data are monthly and extend through May 2014. Total existing
SOURCE: Department of Commerce, Bureau of the Census. home sales includes single-family and condo and co-op sales.
SOURCE: National Association of Realtors.
Case 1:18-cv-11926-PBS Document 127-32 Filed 09/30/20 Page 6 of 15
20
15
10
5
+
0_
Single-family 10
Multifamily
Commissions 15
Improvements
Other 20
Sum
25
While the most obvious explanation for the would be suggested by historical experience, especially
weakness in the housing market over the past year is because an interest rate rise of that magnitude, with
the run-up in mortgage rates during the spring and rates so low and housing activity so depressed, is
summer of 2013, it seems unlikely that interest rates unprecedented. Alternatively, ongoing increases in
are the whole story. Historical correlations between house prices may indicate that constraints on the
mortgage rates and residential investment suggest that supply of new housing are binding more significantly
the effects of last year’s run-up should have begun to than seemed to be the case in 2012, when residential
fade by now, but housing activity has yet to pick up. investment rose fairly rapidly. Finally, the downturn
Moreover, since last summer, mortgage rates have in existing home sales, which has had a particularly
retraced a portion of their earlier increases without any pronounced effect on total residential investment via
noticeable improvement in activity. brokers’ commissions, may reflect factors specific to
Even so, it is possible that the interest rate spike the resale market; in particular, short sales and sales of
may have had a larger and longer-lasting effect than foreclosed properties have declined markedly over the
past couple of years.
D. Mortgage rates and housing affordability Regardless of what explains the recent weakness,
the level of new home construction likely remains
Percent Index
much too low to be sustainable. Prior to the housing
Mortgage rate
boom and bust, an average of roughly 1¾ million
205
7 housing units were started per year.1 In comparison,
185 only about 1 million units were started in 2013, despite
6
Housing
the recovery of multifamily starts to pre-recession
165
affordability levels. It is difficult to judge when construction will
index
5 145 resume its upward trend or, given all of the changes in
125
the housing market in recent years, at what level it will
4 stabilize. That said, the Census Bureau projects that
105 the adult population will continue to grow by roughly
3
85
2 million per year over the next two decades; with that
rate of population growth, the pace of construction
2006 2008 2010 2012 2014
seems likely to rise from current levels.
NOTE: The housing affordability index data are monthly through April
2014 and the mortgage rate data are weekly through July 9, 2014. At an index
value of 100, a median-income family has exactly enough income to qualify
for a median-priced home mortgage. Housing affordability is seasonally 1. This figure is calculated using data from 1960 to 2000
adjusted by Board staff. and includes single-family and multifamily construction as
SOURCE: For housing affordability index, National Association of Realtors; well as shipments of new mobile homes.
for mortgage rate, Freddie Mac Primary Mortgage Market Survey and
Loansifter.
Case 1:18-cv-11926-PBS Document 127-32 Filed 09/30/20 Page 7 of 15
29. Yields on nominal Treasury securities Finally, while some forward measures of policy
rate uncertainty have risen, overall policy rate
Daily Percent
uncertainty has generally remained relatively low.
7
6
However, Treasury yields declined
10-year 30-year 5
significantly, especially at longer
maturities, as have sovereign bond yields
4
in other advanced economies
5-year 3
2
After rising notably over the spring and
summer months of 2013, yields on longer-
1
term Treasury securities drifted down over the
0
first half of 2014 and now stand at fairly low
2000 2002 2004 2006 2008 2010 2012 2014 levels by historical standards (figure 29). In
NOTE: The Treasury ceased publication of the 30-year constant maturity particular, while the yield on 5-year nominal
series on February 18, 2002, and resumed that series on February 9, 2006. Treasury securities edged down only about
SOURCE: Department of the Treasury.
5 basis points from its level at the end of
December 2013, the yields on the 10- and
30-year securities decreased about 50 basis
30. Yield and spread on agency mortgage-backed
securities points and 60 basis points, respectively. The
decline in longer-term yields reflects a notable
Percent Basis points
reduction in longer-horizon forward rates, with
9 400 the 5-year-forward rate 5 years ahead dropping
8 350 about 105 basis points since year-end. Five-
Yield year-forward inflation compensation over this
300
7
250 period declined 20 basis points, implying that
6
200
much of this reduction in nominal forward
5
150
rates was concentrated in forward real rates.
4
100
Yields on 30-year agency mortgage-backed
3
Spread
50
securities (MBS) decreased about 35 basis
2 0
points, on balance, over the same period
(figure 30).
2000 2002 2004 2006 2008 2010 2012 2014
NOTE: The data are daily. Yield shown is for the Fannie Mae 30-year Long-term benchmark sovereign yields in
current coupon, the coupon rate at which new mortgage-backed securities
would be priced at par, or face, value. Spread shown is to the average of the advanced foreign economies (AFEs) have
5- and 10-year nominal Treasury yields. also moved down since late last year, with
SOURCE: Department of the Treasury; Barclays Live.
particularly marked reductions in the euro
area (figure 31). Market participants have
pointed to several potential explanations
for the declines in U.S. and foreign yields.
One possible explanation is that market
participants have lowered their expectations
for future short-term interest rates around
the globe. This downward adjustment in
expectations may be due to a combination of
a lower assessment of the global economy’s
long-run potential growth rate and a decrease
in long-run inflation expectations. Indeed, the
lower yields in the euro area are consistent
Case 1:18-cv-11926-PBS Document 127-32 Filed 09/30/20 Page 8 of 15
with indications of declining inflation and 31. 10-year nominal benchmark yields in advanced
weak growth in the euro area in recent foreign economies
months, bolstering expectations that the Daily Percent
European Central Bank (ECB) would loosen
its monetary policy, as it eventually did at its 3.5
meeting in early June. 3.0
2.5
In addition, term premiums—the extra return United Kingdom
Germany
investors expect to obtain from holding 2.0
longer-term securities as opposed to holding 1.5
and rolling over a sequence of short-term
1.0
securities for the same period—may have come Japan
140
Broad equity price indexes increased
further, and risk spreads on corporate Dow Jones
bank index
120
of its capital relative to the risks it faces. Under the continue improving the resiliency of the financial
“severely adverse” DFAST scenario, all but one of the system. Some regulatory reforms taken since the
participating BHCs exceeded minimum capital previous Monetary Policy Report are highlighted
requirements. Furthermore, under CCAR, the Federal here. Pursuant to section 165 of the Dodd-Frank
Reserve Board granted nonobjections to the capital Act, the Federal Reserve Board approved a final rule
plans of 24 BHCs.2 strengthening the supervision and regulation of large
Recent results from the Senior Credit Officer U.S. BHCs and foreign banking organizations. The
Opinion Survey on Dealer Financing Terms indicate rule establishes enhanced prudential standards with
that the use of financial leverage by respondents’ respect to capital, liquidity, and risk management. It
counterparties to purchase securities has not changed also requires foreign banking organizations with a
notably in recent quarters, although demand for significant U.S. presence to establish an intermediate
financing commercial mortgage-backed securities holding company over their U.S. subsidiaries, which
and collateralized loan obligations (CLOs) has been will facilitate consistent supervision and regulation of
rising recently. However, aggregate measures of the the U.S. operations of these foreign banks.
use of short-term wholesale funding to finance assets Furthermore, together with other federal agencies,
remained roughly unchanged over the past couple of the Federal Reserve Board adopted a final rule to
years. Similarly, securitization, which continues to be strengthen the leverage ratio standards for the largest,
an important means of financing, has been modest, most interconnected U.S. banking organizations. The
though issuance of CLOs has increased. final rule applies to top-tier U.S. BHCs with more than
Moving beyond recent developments, important $700 billion in consolidated total assets or more than
structural vulnerabilities remain that could leave the $10 trillion in assets under custody and to their insured
U.S. financial system exposed to adverse events. depository institution subsidiaries. These BHCs must
Despite the increase in resilience within the banking maintain a leverage buffer greater than 2 percentage
sector highlighted by the stress tests, the broader points above the minimum supplementary leverage
financial system remains highly interconnected. While ratio requirement of 3 percent, for a total of more than
stronger capital and liquidity positions in the banking 5 percent, to avoid restrictions on capital distributions
sector should help reduce the consequences of this and discretionary employee bonus payments. Insured
structural vulnerability, the Federal Reserve nevertheless depository institution subsidiaries of these BHCs must
continues to encourage firms to better manage their maintain at least a 6 percent supplementary leverage
exposures to large counterparties and to improve their ratio to be considered “well capitalized” under the
recovery and resolution plans. The Federal Reserve agencies’ prompt corrective action framework. The
is also working to strengthen the infrastructure of final rule has an effective date of January 1, 2018. The
derivatives markets—for instance, by working with Federal Reserve Board is also working on proposals for
other agencies on rules to establish initial and variation additional risk-based capital surcharges and long-term
margin requirements for over-the-counter derivatives debt requirements for global, systemically important
transactions. The potential for runs on money market banking organizations based in the United States.
mutual funds in the event of a severe liquidity or credit The Federal Reserve Board also issued a notice
shock remains significant, and this risk will continue to of proposed rulemaking to implement section 622
pose a threat to financial stability until further structural of the Dodd-Frank Act. Section 622 establishes a
reforms are adopted, as recommended by the Financial financial-sector concentration limit that prohibits a
Stability Oversight Council. financial company from merging with, acquiring, or
The Federal Reserve has taken a number of steps to consolidating with another company if the ratio of the
resulting financial company’s liabilities to the aggregate
2. Initially, the Federal Reserve Board granted nonobjections consolidated liabilities of all financial companies
to the capital plans of 25 firms, but the nonobjection granted exceeds 10 percent. The proposed rule spells out the
to the 25th firm was withdrawn after that firm restated its details involved in calculating the limit.
capital position.
Case 1:18-cv-11926-PBS Document 127-32 Filed 09/30/20 Page 13 of 15
measures of the profitability of BHCs have 34. Profitability of bank holding companies
been little changed for the past six months Percent, annual rate Percent, annual rate
(figure 34). Profitability of these companies
Return on assets
remained below its historical average, in part 1.5
20
because of subdued income from mortgage 1.0
and trading businesses and compressed 10
.5
net interest margins at large banks. A few +
Return on equity
+
large banks have also incurred sizable costs 0_ 0_
5
Among nonbank financial institutions, equity +
prices of insurance companies have also 0
_
increased slightly, on net, since the beginning 5
of the year. Nonbank financial institutions
continued to grow at a very strong pace, as 10
highs, reflecting modest increases in asset NOTE: The data are seasonally adjusted and extend through 2014:Q2.
SOURCE: Federal Reserve Board, Statistical Release H.8, “Assets and
values as well as net inflows. Nevertheless, Liabilities of Commercial Banks in the United States.”
in response to the Federal Reserve Board’s
36. Change in use of financial leverage by hedge funds
Senior Credit Officer Opinion Survey on
Dealer Financing Terms for March and June, Quarterly Net percent
International Developments
As in the United States, foreign bond
yields declined and asset prices
increased, on net . . .
As noted earlier, foreign long-term benchmark
sovereign yields have moved significantly
lower since the beginning of the year.
Factors contributing to the decline include
expectations for lower policy interest rates, a
decline in the required compensation for risk,
and increased demand by price-insensitive
investors for these assets. Similarly, foreign
corporate and sovereign yield spreads have
also declined since the start of the year. In
particular, peripheral euro-area sovereign yield
Case 1:18-cv-11926-PBS Document 127-33 Filed 09/30/20 Page 1 of 3
From: Higgins, John L. <[email protected]>
To: Matt Dormer
CC: Foehr, Matt; de Silva, Nishan
Sent: 7/20/2014 9:30:12 PM
Subject: Re: Coverage
Matt - great idea. Definitely a good time to do it given the trading last week, which we
continue to believe is totally unwarranted.
As for sage, huge event for ligand. After it's first day of trading, it has about a half billion
market cap. As you know, sage was formed around its initial licensing deal with ligand. Viking
is up next!
Tuesday is likely better. I will revert tomorrow with some proposed times.
Regards,
John
> On Jul 20, 2014, at 6:05 PM, "Matt Dormer" <[email protected]> wrote:
>
> John-
> Would you have any time tomorrow or Tuesday for a teach-in/update call with our sales team? I
think it could be a great forum to discuss your two recent licensing deals, the recent diabetes
data, Sage's IPO, and the share repurchase program. This will give our sales team the necessary
information to provide our clients with a real-time update which will be great timing given the
recent pullback in the stockprice. Please let me know what times could work.
>
> Best regards-
> Matt
>
> -----Original Message-----
> From: Higgins, John L. [mail to: [email protected]]
> Sent: Friday, July 18, 2014 8:24 AM
> To: Matt Dormer
> Cc: Foehr, Matt; de Silva, Nishan
> Subject: Re: Coverage
>
> Matt - we are aware of the short report. It's been uniformly dismissed as absurd. Investors
are telling us that directly and other analysts who cover us have put out notes with that
message.
>
> We understand trading trends and how computers can take over when you break technical levels.
Obviously the remarks this week by Yellen and now the Ukraine mess is impacting biotech stocks,
further pressing our shares.
>
> Your firm is down an analyst at a time when your investors might want info from Summerstreet.
Ligand is doing great and we believe the big sell-off we have seen the past couple of weeks is
unwarranted.
>
> Recently we have closed two significant licensing deals with major economic terms/royalties.
We announced positive data for our diabetes drug that is in a category that is considered very
promising. Sage, an important partner of ours, just announced they expect to upsize their IPO on
big demand, and we just announced q2 revenue yesterday and that we will beat guidance. Also, we
announced a corporate share repurchase.
>
> Normally Carol would be calling and tracking these details. Without her, I thought I would
relay to you. Given the market pullback and all of our positive announcements lately, your
investors may well find this an excellent time to revisit LGND.
>
> John
>
>
>
>
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Agenda
• Overview of Ligand
Overview of Ligand
John Higgins
Ligand Overview
• Founded 1987 in La Jolla, CA
• Strong history of drug discovery, development and partnering
• Over 60 novel clinical candidates and 14 approved medicines
• 2007 rebuilt management team and Board to focus on new business model
– Early stage research
– Low operating costs
– Focus on partnering to general royalty revenue
100
100 +
In six years…
11x increase in fully-funded programs
80
7x increase in revenue-generating products
60
40
What does this say about the business?
1. Ligand is executing well to expand its
portfolio, adding assets to drive long-
20
9 term value
2. Ligand partners have been successful
0
2008 2014 getting new products to the market
Fully-Funded Programs
(“Shots-on-Goal”)
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
7 17 C.F.R. § 200.83
15% 16%
41% Phase 2
Generic 38%
Biotech Phase 1
Merck Infection
Pfizer Infection
Pfizer Women’s
Health
Captisol
says both major revenue
$30.0 $31.4 Royalties
$30 sources will sharply decline)
$20
$10
$0
2011 2012 2013 2014
Projected
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
12 17 C.F.R. § 200.83
$50
$ millions
$10
$0
2006 2007 2008 2009 2010 2011 2012 2013 2014
Projected
Combined Actual R&D and G&A Cash Expense
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
13 17 C.F.R. § 200.83
$50
$ millions
$40
$30 Revenue
$10
$0
2011 2012 2013 2014
Projected
• Chairman named as one of Six Directors of the Year for 2014 by Corporate
Directors Forum
Lemelson Profile
• Questionable personal history
— Launched social campaign to publicly advocate mortgage default
— Used dubious litigation tactics to support default on ~$2M home mortgage
— Self promotion via Wikipedia, twitter postings and YouTube interviews
“I'm sure there's, you know, more than 100 investors who've expressed interest
recently and it looks like, you know, in the next 24 months from now, perhaps we could
get to 400 or 500 million or something like that.”
- Emmanuel Lemelson (September 16, 2014)
“I think it’s hard sometimes for people to say, well, what role
would a clergyman or … would we have as Christians in the
financial markets? But, I would say how could we not have a
role? It’s incredibly important.”
“Pray and ask God to bless your endeavor, such that your
results will glorify Him. In this way, you are most likely to
pursue what you’re meant to be doing. When you discover this,
your energy will be boundless and financial success will follow.”
"You know, glory to God as I always say. You know, I mean, we asked that our work
would be blessed. And that morning, WWE really tanked . . ."
• Lemelson utilizes at least three Twitter accounts to create digital traffic and
visibility
Uses Amvona Fund Twitter Account to retweet messages
from both his own (@Lemelson) and Lemelson Capital accounts
• “From inception in September 2012 through May 2014 (21 months) - The Amvona
Fund, LP has returned a Compounded Annual Gain of 85.15% (58.51% net) and
an Overall Gain of 193.65% (123.90% net).” – 6/4/14 LCM Press Release
– Over the same period here is what the indexes returned for overall gains
• Dow = 27.7%
• S&P 500 = 36.8%
• Nasdaq = 38.3%
• Lemelson = 193.7%
– The difference between overall (gross) and net gains for the Amvona fund is as follows:
• Fees and expenses annualized: 31.3%
• Fees and expenses since inception: 36.0%
• “The firm also today released the overall and net gains for the fund since inception,
which were, respectively, 257.74 percent and 160.21 percent. The fund’s performance
since inception has outperformed the benchmark S&P 500 Total Returns Index by
209.07 percent (111.54 percent net of all fees and expenses).” – 9/5/14 LCM Press Release
– Difference between Gross and Net returns increasing. Fees and expenses as a percent
of overall returns increased from 36% when reported in June to 38% when reported
two months later in September
– He reports his performance on different days of the month, potentially in order to fix
his returns
Nishan de Silva
• Solvency is defined as the ability to pay for one’s debts as they come due
• “[The convertible note] further deepens the company’s insolvency and likelihood of
liquidation or reorganization under Chapter 7 or Chapter 11 of the bankruptcy code under
which remaining Ligand common shareholders have only the protection of $21,000 in tangible
equity to shield them from $245M in debt”
• “If the bond offering succeeds, the company’s liabilities will again far exceed its assets and the
company will be technically insolvent once more”
• “This was a company that enjoyed six days of solvency (from Aug. 1 to 7)”
• “The increased debt service will dramatically intensify going concern risk, which the
company discussed at length in its 2013 annual report, and its prospects for bankruptcy”
• “Should the call feature of Ligand’s debt be exercised, as is possible and even likely, common
shareholders would be wiped out immediately”
• “The company had issued $245M in new debt against the company's tangible equity of just
$21,000, giving rise to a debt to tangible equity ratio of 11,667-to-1 (that is to say $11,667 in
debt for every $1 in tangible common shareholder equity)”
FOIA CONFIDENTIAL TREATMENT REQUESTED
30 5 U.S.C. § 552
17 C.F.R. § 200.83
Confidential Confidential Treatment Requested by LGND_0080707
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-36 Filed 09/30/20 Page 31 of 60
• At the time Lemelson claims Ligand was insolvent, the Company had $11.6M in
cash on hand, not accounting for future cash flows
— This was more than sufficient to pay for accrued expenses for the following quarter
— Ligand is building cash every quarter and is profitable
• Ligand’s liabilities do NOT exceed it assets, even after the convertible note offering
— As of Q2 2014, Ligand reported total assets of $99.8M and total liabilities of $36.8M
— Pro forma for the convertible note, Ligand has ~$265M in total assets and ~$201M in
total liabilities
• His claim that Ligand “enjoyed solvency for 6 days” does not make sense
— Insolvency does not work this way
— The banks would not have underwritten the Bonds if the very issuance of them made
Ligand insolvent
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
31 17 C.F.R. § 200.83
• Ligand’s auditor Grant Thornton has not issued a going concern opinion
• Lemelson takes boilerplate language from Ligand’s 10-K (“[w]e believe that the
actions presently being taken to generate sufficient operating cash flow provide the
opportunity for us to continue as a going concern”) and misrepresents it as a “going
concern” auditor opinion
• Less than $2M interest due annually- does NOT increase going concern risk
• Ligand recently fully repaid an outstanding $28M principal loan with no late
payments or other creditor complaints
• The company recently qualified to enter into a $245M convertible loan agreement
after intense due diligence by well-known creditors (no principal, and less than
$2M interest due annually)- no bankruptcy risk identified
• 0.75% coupon, $75.05 per share conversion price (35% premium to $55.59 per
share closing price)
• Call spread purchased for $36M, raising conversion price to $125.08 per share
(125% premium over closing price)
— “This [125% premium] represented the highest effective premium achieved via a call
spread from any issuer since 2008”
• Ligand purchased a call spread option for ~$36M to raise the conversion price from $75/share
to $125/share
— Stock price has to more than double to realize ANY dilution
— Increased conversion price further significantly reduces any potential dilution to common
shareholders
• Lemelson claims Ligand paid millions to insure the bonds - we did not
• Lemelson reports Ligand’s annual cash interest expense will be $12M per year but in fact it is
less than $2M
• Lemelson’s “11,667-to-1” debt to tangible equity ratio ignores all the cash proceeds from the
debt
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
36 17 C.F.R. § 200.83
• We, and the majority of profitable companies in our industry, exclude Stock-based
Compensation from our Non-GAAP financials because:
— It is non-cash
— It is based on Black-Scholes Valuation, which requires many market-based inputs
• Ligand’s business model predicated on the value of intangible licenses and royalties
— GAAP requires recording intangible assets- necessary to evaluating financial picture
— Intangibles are main drivers of Ligand’s revenues and profits
— Sophisticated investors do not exclude intangibles- they value strength of a company’s
business model and prospects for future growth
— Especially true for companies such as Ligand focused on revenue-generating
programs based on royalties and licenses
— Many biotech companies have minimal tangible assets and robust market caps for
this exact reason
— Without understanding the value of intangibles, retail investors may be persuaded
they are worthless and Ligand’s assets are minimal
Promacta®:
Ligand’s Largest Asset
Matt Foehr
Promacta
ITP HCV
Thrombocytopenia
AA ORT
Oncology
Idiopathic
Thrombocytopenia Induced by Aplastic Anemia Related
Hepatitis C Virus Thrombocytopenia
95 Markets 49 Markets 1 Market Major clinical
Pediatric ITP filing investment on-going:
Global filing and Recent FDA Approval
planned for year end MDS, AML, CLL, CIT,
launch investment Other Markets Filed Others
HCV
Thrombocytopenia
• Promacta is a supportive care drug used to boost
platelets along with other drugs (that treat the virus)
while the patient’s liver is recovering
Induced by
Hepatitis C Virus
• Promacta has continued to demonstrate growth
49 Markets following the launch of Gilead’s Solvadi in 2013 and is
Global filing and continuing to expand into new markets
launch investment
• “There has never been evidence presented that Promacta® will be able to
generate significant revenue…”
AA •
•
Received Breakthrough Therapy and Fast Track
Designation by the FDA
Data published in New England Journal of Medicine
Aplastic Anemia • Recognized globally as a major medical advancement:
Dr. Danielle Townsley Dr. Phil Scheinberg
1 Market Hospital Sao Paolo, Sao Paolo, Brazil
Sr. Clinical Fellow - NIH
Recent FDA Approval “… we noticed that this drug “…one of the most important
Other Markets Filed was doing something advancements in the area of
absolutely phenomenal.” aplastic anemia”
ORT
Oncology
• Clinical data has been presented at major medical
meetings illustrating Promacta’s use in MDS, AML, CLL,
CIT and other indications
Related — Shown to inhibit leukemia cell growth and boost platelets
Thrombocytopenia — 80% response rate in CLL-associated ITP
Major clinical
• GSK recently initiated a global Phase 3 trial in MDS,
investment on-going: plans have been announced to file for approval in 2015
MDS, AML, CLL, CIT,
Others • Taken together, these potential indications represent
the largest potential market for Promacta
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
47 17 C.F.R. § 200.83
$60
over Q2 2013
$50
• All three commercial regions
$40
are growing
$30
$20
$10
$0
GSK reported quarterly sales. Figures converted from GBP to USD,
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Emerging Markets as defined by GSK quarterly reports
High
Low
Average
$ millions
$ millions
7 GSK/Novartis covering
analysts reports as of 8/4/14
Illegal “Pump-and-Dump”
and Boiler Room Tactics
— “Ligand’s fair value is roughly $0 per share, or 100 percent below the current
stock price.”
— “You know, Ligand is attracting a certain type of investor, I mean, people who
would buy a lottery ticket.”
— “The casual observer might even mistake what Ligand leadership has coined a
‘creative transaction’ as a common game of three-card Monte, played on any
street corner – shills included.”
• The SEC brought a similar case involving a Wall Street short seller who
spread a false rumor to profit on his short position.
— “So I would say to the average shareholder in the most academic and
sophisticated terms I can think of, you know, run, Bambi, run.”
— “Should the call feature of Ligand’s debt be exercised, as is possible and even
likely, common shareholders would be wiped out immediately.”
• Lemelson’s tactics are similar to many of the SEC’s boiler room scheme
enforcement actions.
— “During this period, the fund beat the benchmark S&P 500 Total Returns Index
by 407.95 percent, returning 87.22 percent net of all fees and expenses.”
(referring to LTM performance) – 7/13/14 LCM Press Release
— “Assets under management have grown in about (sic) seven-fold in the last 24
months.”
— His returns include ill-gotten gains from egregiously false and misleading
statements about Ligand
– Ligand issued $245 million in convertible debt. Had Lemelson not been viciously attacking
Ligand and inciting a revolt-like short selling environment, Ligand could have priced its
convertible bonds at a higher stock price, saving the company over $10 million
• Unwitting retail investors are taking bait and being lured into fraudulent scheme
• Investors in his fund and those following his trades; market reaction shows investors
are following his advice and selling at artificially depressed prices
• Classic Ponzi scheme where victims do not even learn of the fraud or damage until
after some intervention
80%
June 19
1st Interview
75%
70%
07/14 08/14 09/14
LGND
BTK
Note: Market data as of 19-Sep-2014
• Like the brothers in SEC v. Hunter, No. 12-CV-3123 (S.D.N.Y) —who told
investors they had a stock picking robot, but really were just acting on
financial incentives — Lemelson’s financial analysis is “in his head” and gets
astounding returns
• But all he does in his head is pick out things to lie about Ligand to cover his
own short position
• The only way to prevent further harm to Ligand investors is for the SEC to
bring an immediate action
FOIA CONFIDENTIAL TREATMENT REQUESTED
5 U.S.C. § 552
60 17 C.F.R. § 200.83
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Bradley J. Bondi - Wikipedia Page 1 of 4
Case 1:18-cv-11926-PBS Document 127-38 Filed 09/30/20 Page 1 of 4
Bradley J. Bondi
Bradley J. Bondi is an American lawyer, law professor[1][2] and partner at Cahill Gordon & Reindel, where he is the Chair of the firm's White Collar and
Government Investigations Practice Group.[3] He has also served on the executive staff of the Securities and Exchange Commission (SEC),[4] he was appointed
to the Financial Crisis Inquiry Commission (FCIC) in the wake of the 2007-2008 financial crisis to investigate its causes[5] and he served in a leadership role
on the 2016-2017 presidential transition team.[6]
He appears regularly as a legal analyst and commentator on television, including CNBC[7][8][9] and Bloomberg Television,[10][11] and is often quoted in the Wall
Street Journal,[12][13][14] the New York Times,[15] the Washington Post,[16] Forbes[17] and others.
Contents
Career
Education
Government Service
Private Sector
Publications
Academic and Journal Articles
References
Career
Education
Bondi received a B.S. degree with highest honors in finance, an M.B.A. in finance and management and a J.D.[21] with highest honors from the University of
Florida Levin College of Law. He earned an L.L.M. with distinction in Securities and Financial Regulations from Georgetown University Law Center where he
received the Thomas Bradbury Chetwood, S.J. Prize for best academic record in his class. He also holds a Certificate in Executive Leadership from Cornell
University and a Certificate in Management Excellence from Harvard Business School.[22]
Upon graduation from law school, he clerked for Judge Edward E. Carnes of the U.S. Court of Appeals for the Eleventh Circuit.[22]
Government Service
Bondi served three years on the executive staff of the Securities and Exchange Commission, working as counsel for enforcement actions and regulatory rule-
making to Commissioners Paul S. Atkins and Troy Paredes,[23] the former of whom Bondi has co-authored op-eds and journal articles on regulatory policy and
securities law.[24][25] While at the SEC, he served as a Special Assistant United States Attorney.[26]
In the wake of the financial crisis, Bondi was appointed from the SEC to the Financial Crisis Inquiry Commission (FCIC), as an assistant director and deputy
general counsel.[27][28] The Commission was signed into law in 2009 and charged with examining “the causes, domestic and global, of the current financial and
economic crisis in the United States."[29] While with the FCIC, Bondi led one of the three teams examining the causes of the financial crisis,[30] and questioned
prominent figures in the financial world including Warren Buffett,[31] former Chairman and CEO of Citigroup Charles Prince, former US Secretary of the
Treasury Robert Rubin, former Citigroup executive John Reed, hedge fund manager William Ackman, then-CEO of Citigroup Vikram Pandit, Eric Kolchinsky,
Thomas Maheras and David Bushnell.[32] He has been credited with assisting Peter Wallison, a commissioner of the Financial Crisis Inquiry Commission, with
research that went into Wallison's dissenting report.[33]
Private Sector
Securities Docket called Bondi “the first choice among Boards of Directors and Audit Committees of the Fortune 500 when their company is faced with SEC or
DOJ problems.”[34] Today, Bondi represents companies and boards of directors in significant legal crises such as enforcement actions involving the SEC and
the Department of Justice (DOJ), internal investigations and significant litigation.[35] He is the Chair of Cahill's White Collar and Government Investigations
Practice Group.[36]
Among his notable clients that are public, Bondi led the representation of Tesla before the SEC in an enforcement case stemming from tweets by its CEO
concerning a potential going-private transaction in 2018.[37][38][39] The Wall Street Journal described the SEC action as, "Among the highest-profile cases in
years."[38]
Bondi also led an internal investigation for the board of directors of the Washington Metropolitan Area Transit Authority that exposed misconduct by a
prominent D.C. Council Member.[40] The Washington Post said the "devastating"[41] and “meticulous report cited incontrovertible evidence” of misconduct.[42]
The paper credited the report for leading to the Council Member's re-election defeat, following his public reprimand.[43]
https://en.wikipedia.org/wiki/Bradley_J._Bondi 9/30/2020
Bradley J. Bondi - Wikipedia Page 2 of 4
Case 1:18-cv-11926-PBS Document 127-38 Filed 09/30/20 Page 2 of 4
Bondi defended the Salix subsidiary of Valeant Pharmaceuticals in a securities class action in 2017.[44] In 2018, Bondi defended Salix before the SEC in an
enforcement action that resulted in no monetary penalties against the company.[45] The SEC's press release stated that, "The settlement with Salix reflects the
company's self-report to the Commission and its significant cooperation with the investigation." The SEC also acknowledged that, "Salix's proactive
remediation included conducting an extensive internal investigation that led to [the CFO's] resignation." [46]
In 2016, Bondi represented Princess Cruise Lines in connection with a criminal case involving the illegal discharge from one of its ships.[47]
Bondi successfully represented the investment bank Morgan Stanley[48] before the Supreme Court of the United States, in the case Credit Suisse First Boston
Ltd. v. Billing (interpreting securities laws as implicitly precluding the application of anti-trust laws in the IPO process). He also served as the counsel of
record for two other Supreme Court amicus curiae briefs: Yates v. United States[49] (construing Sarbanes-Oxley’s criminal provision for document destruction)
and Salman v. United States[50] (concerning the personal benefit element of insider trading law).
Bondi teaches securities law as an adjunct professor at both Georgetown University Law Center[51] and George Mason University's Antonin Scalia Law School.
[52]
In 2016-2017, Bondi served on the transition team for the incoming Trump administration, advising on issues relating to the financial services sector and
leading the landing team to the Export-Import Bank of the United States.[53]
Publications
Bondi has authored numerous academic articles on securities law, criminal law and corporate governance. He also has authored two book chapters on white-
collar criminal defense strategy for the series Inside the Minds (Aspatore Books, 2007).[54] He serves as a regular contributor to Directorship Magazine, a
publication of the National Association of Corporate Directors.[55]
References
6. "Trump Adds Prominent Regulation Critic to Finance 'Landing Team' -
1. School, Scalia Law. "Bondi, Bradley J. | Scalia Law
Morning Consult" (https://morningconsult.com/2016/11/22/trump-adds-
School" (https://www.law.gmu.edu/faculty/directory/adjunct/bondi_bradley).
prominent-regulation-critic-finance-landing-team/). Morning Consult. 2016-
www.law.gmu.edu. Retrieved 2017-09-14.
11-22. Retrieved 2017-09-14.
2. "Profile Bradley Bondi — Georgetown
7. "Bharara: A lot of armchair
Law" (https://www.law.georgetown.edu/faculty/bondi-bradley.cfm).
lawyers" (https://www.cnbc.com/video/2013/07/19/bharara-a-lot-of-
www.law.georgetown.edu. Retrieved 2017-09-14.
armchair-lawyers.html). CNBC. Retrieved 2017-09-14.
3. "Cahill Taps Cadwalader for Securities Enforcement
8. "Corzine on the Hill
Head" (http://www.americanlawyer.com/id=1202721145444/Cahill-Taps-
Highlights" (https://www.cnbc.com/video/2011/12/08/corzine-on-the-hill-
Cadwalader-for-Securities-Enforcement-Head?
highlights.html). CNBC. Retrieved 2017-09-14.
slreturn=20170803235554). The American Lawyer. Retrieved 2017-09-14.
9. "Does US have case against
4. Docket, Securities. "Bradley Bondi Joins Cahill Gordon in D.C. and New
Icahn?" (https://www.cnbc.com/video/2014/06/02/does-us-have-case-
York" (http://www.securitiesdocket.com/2015/03/16/bradley-bondi-joins-
against-icahn-.html). CNBC. Retrieved 2017-09-14.
cahill-gordon-in-d-c-and-new-york/). www.securitiesdocket.com. Retrieved
2017-09-14. 10. Bloomberg (2012-03-23), Bondi Says 'Difficult' to Charge Funds in Insider
Cases (https://www.youtube.com/watch?v=_1mjVEO4G00), retrieved
5. "About the Commission: Staff : Financial Crisis Inquiry
2017-09-14
Commission" (https://fcic.law.stanford.edu/about/staff).
fcic.law.stanford.edu. Retrieved 2017-09-14. 11. Bloomberg (2012-03-23), Bondi Expects More Arrests in Insider-Trading
Probe (https://www.youtube.com/watch?v=NK2yrh9Fors), retrieved
2017-09-14
https://en.wikipedia.org/wiki/Bradley_J._Bondi 9/30/2020
Bradley J. Bondi - Wikipedia Page 3 of 4
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12. Matthews, Christopher M. (2014-02-19). "Appeals Court Ruling 32. "Resource Library: Financial Crisis Inquiry Commission" (http://fcic-
Strengthens SEC's Hand in Insider-Trading static.law.stanford.edu/NARA.FCIC.2016-03-11/SCREENED%
Cases" (https://blogs.wsj.com/law/2014/02/18/appeals-court-ruling- 20Interviews/). fcic-static.law.stanford.edu. Retrieved 2017-09-15.
strengthens-secs-hand-in-insider-trading-cases/). WSJ. Retrieved 33. Wallison, Peter J. (2016-03-29). Hidden in Plain Sight: What Really
2017-09-14. Caused the World's Worst Financial Crisis and Why It Could Happen
13. Eaglesham, Jean (2013-10-18). "SEC Pads Case Tally With Easy Again (https://books.google.com/?
Prey" (https://www.wsj.com/articles/sec-pads-case-tally-with-easy-prey- id=E0vxCwAAQBAJ&pg=PT15&lpg=PT15&dq=Bondi+Peter+Wallison#v=o
1382055430). Wall Street Journal. ISSN 0099-9660 20Peter%20Wallison&f=false). Encounter Books. ISBN 9781594038662.
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d3d28122e6d4_story.html). Washington Post. ISSN 0190-8286 Retrieved 2017-09-14.
(https://www.worldcat.org/issn/0190-8286). Retrieved 2017-09-14. 37. "Tesla's Elon Musk settles with SEC, paying $20 million fine and resigning
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EventID=403565). financialservices.house.gov. Archived from the original Journal. September 29, 2018.
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28. Chan, Sewell; Dash, Eric (2010-08-31). "Staff Losses and Dissent May Retrieved 2018-12-17.
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The New York Times. ISSN 0362-4331 Lying About Distribution Channel" (https://www.sec.gov/news/press-
(https://www.worldcat.org/issn/0362-4331). Retrieved 2017-09-15. release/2018-221). www.sec.gov. Retrieved 2018-12-17.
47. "Princess Cruise Lines To Pay $40M For Deliberate Oil Pollution -
29. "About the Commission : Financial Crisis Inquiry
Law360" (https://www.law360.com/articles/867869/princess-cruise-lines-
Commission" (https://fcic.law.stanford.edu/about). fcic.law.stanford.edu.
to-pay-40m-for-deliberate-oil-pollution). www.law360.com. Retrieved
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30. "Trump Team Taps Proskauer, Cahill Attys For Agency Advice -
Law360" (https://www.law360.com/articles/865252/trump-team-taps- 48. "Reply Brief for Petitioners, Credit Suisse Securities v
Billings" (https://www.americanbar.org/content/dam/aba/publishing/preview
proskauer-cahill-attys-for-agency-advice). www.law360.com. Retrieved
(PDF). American Bar Association. March 2007.
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"TRANSCRIPT: FCIC Interview of Warren Buffett May 26, 2010 - The Big 49.
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31.
Briefs" (https://www.americanbar.org/content/dam/aba/publications/suprem
Picture" (http://ritholtz.com/2016/03/fcic-buffett/). The Big Picture. 2016-
7451_pet_amcu_cato.authcheckdam.pdf) (PDF).
03-28. Retrieved 2017-09-15.
50. "SCOTUS Blog" (http://www.scotusblog.com/wp-
content/uploads/2016/05/15-628-tsac-CATO-Institute.pdf) (PDF).
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51. "Profile Bradley Bondi — Georgetown 60. "Defending the Data – A Director's Cybersecurity Duty : NACD
Law" (https://www.law.georgetown.edu/faculty/bondi-bradley.cfm). Blog" (https://blog.nacdonline.org/2016/03/defending-the-data-a-directors-
www.law.georgetown.edu. Retrieved 2017-09-15. cybersecurity-duty/). blog.nacdonline.org. 2016-03-16. Retrieved
52. School, Scalia Law. "Bondi, Bradley J. | Scalia Law 2017-11-22.
School" (https://www.law.gmu.edu/faculty/directory/adjunct/bondi_bradley). 61. "Gleaning Best FCPA Practices for Directors from Recent Government
www.law.gmu.edu. Retrieved 2017-09-15. Actions : NACD Blog" (https://blog.nacdonline.org/2016/02/gleaning-best-
53. "Trump Adds Prominent Regulation Critic to Finance 'Landing Team' - fcpa-practices-for-directors-from-recent-government-actions/).
Morning Consult" (https://morningconsult.com/2016/11/22/trump-adds- blog.nacdonline.org. 2016-02-08. Retrieved 2017-11-22.
prominent-regulation-critic-finance-landing-team/). Morning Consult. 2016- 62. "Effective Communications During a Crisis : NACD
11-22. Retrieved 2017-09-15. Blog" (https://blog.nacdonline.org/2015/12/effective-communications-
54. "9781596227613 - White Collar Law Client Strategies: Leading Lawyers during-a-crisis/). blog.nacdonline.org. 2015-12-17. Retrieved 2017-11-22.
on Representing Corporations and Individuals in White Collar Criminal 63. "Is the SEC Zeroing In On Directors? : NACD
Matters Inside the Minds by Bradley J Bond... - Blog" (https://blog.nacdonline.org/2015/11/is-the-sec-zeroing-in-on-
AbeBooks" (https://www.abebooks.com/book- directors/). blog.nacdonline.org. 2015-11-12. Retrieved 2017-11-22.
search/isbn/9781596227613/). www.abebooks.com. Retrieved 64. Bondi, Bradley J.; Lofchie, Steven D. (2012-03-24). "The Law of Insider
2017-09-18. Trading: Legal Theories, Common Defenses, and Best Practices for
55. "NACD Directorship Magazine | Bradley J. Ensuring Compliance". Rochester, NY. SSRN 2028459
Bondi" (https://www.nacdonline.org/Magazine/author.cfm? (https://ssrn.com/abstract=2028459).
ItemNumber=21331). www.nacdonline.org. Retrieved 2017-09-15. 65. "Journal
56. Bondi, Bradley (June 12, 2018). "Testimony before House Financial Issue" (https://web.archive.org/web/20150910135430/http://lawlib.wlu.edu/
Services Capital Markets mainid=108). lawlib.wlu.edu. Archived from the original
Subcommittee" (https://web.archive.org/web/20180613234337/https://financ (http://lawlib.wlu.edu/CLJC/index.aspx?mainid=108&issuedate=2010-05-
115-ba16-wstate-bbondi-20180613.pdf) (PDF). House Financial Services 28&homepage=no) on 2015-09-10. Retrieved 2017-09-14.
Committee. Archived from the original 66. Bondi, Bradley J. (Winter 2010). "Don't Tread On Me: Has the United
(https://financialservices.house.gov/uploadedfiles/hhrg-115-ba16-wstate- States Government's Quest for Customer Records from UBS Sounded the
bbondi-20180613.pdf) (PDF) on June 13, 2018. Retrieved June 13, 2018. Death Knell for Swiss Bank Secrecy
57. "Corporate Secretary Guidelines: Taking Notes and Preparing Official Laws?" (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cg
Minutes : NACD Blog" (https://blog.nacdonline.org/2016/08/corporate- article=1700&context=njilb). Northwestern Journal of International Law &
secretary-guidelines-taking-notes-and-preparing-official-minutes/). Politics. 30: 1–21.
blog.nacdonline.org. 2016-08-02. Retrieved 2017-11-22. 67. Bondi, Bradley J. (2010-03-07). "No Secrets Allowed: Congress's
58. (PDF) https://www.cahill.com/publications/published- Treatment and Mistreatment of the Attorney-Client Privilege and the Work-
articles/00140/_res/id=Attachments/index=0/When%20Should%20the% Product Protection in Congressional Investigations and Contempt
20General%20Counsel%20Recommend%20that%20the%20Board% Proceedings". Rochester, NY. SSRN 1566671
20Conduct%20an%20Independent%20Investigation.pdf (https://ssrn.com/abstract=1566671).
(https://www.cahill.com/publications/published- 68. Bondi, Bradley J. (2009-12-31). "Dangerous Liaisons: Collective Scienter
articles/00140/_res/id=Attachments/index=0/When%20Should%20the% in SEC Enforcement Actions". Rochester, NY. SSRN 1530067
20General%20Counsel%20Recommend%20that%20the%20Board% (https://ssrn.com/abstract=1530067).
20Conduct%20an%20Independent%20Investigation.pdf). Missing or
69. J., Bondi, Bradley (1905). "Securities Arbitrations Involving Mortgage-
empty |title= (help) Backed Securities And Collateralized Mortgage Obligations: Suitable For
59. "Surviving a Restatement: Ten Pitfalls to Avoid : NACD Unsuitability Claims?" (http://ir.lawnet.fordham.edu/jcfl/vol14/iss2/1/).
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Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is
a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.
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Case 1:18-cv-11926-PBS Document 127-39 Filed 09/30/20 Page 1 of 4
FYI.
Thanks Scott. That works for us. We will send over a binder of materials several days
in advance.
Best regards,
Brad
Let's shoot for mid-morning on Monday, June 8- how about 10:30? Also, do you
have any materials that you can send over for folks to review beforehand?
Scott
SEC-SEC-E-0000892
Subject to Protective Order in D. Mass. Case No. 18-cv-11926-PBS EPROD-SEC-LIT-E-001189144
Case 1:18-cv-11926-PBS Document 127-39 Filed 09/30/20 Page 2 of 4
Scott,
While Ligand and its prior counsel have had some contact with the
Enforcement Staff (through the Boston office and the Office of Whistleblower
Protection) in the past concerning Lemelson, we wish to discuss new conduct
by Lemelson since those meetings. In addition, those meetings did not
include economic analysis which since has been conducted using forensic
economists, and we also have new facts to share. In other words, we are not
intending to repeat information previously shared with Staff, and this meeting
will include new conduct that previously has not been reported.
SEC-SEC-E-0000893
Subject to Protective Order in D. Mass. Case No. 18-cv-11926-PBS EPROD-SEC-LIT-E-001189145
Case 1:18-cv-11926-PBS Document 127-39 Filed 09/30/20 Page 3 of 4
Thank you in advance for your time and attention to this matter.
Best regards,
Brad Bondi
Yes. We're hoping to schedule a meeting soon with you. We're finalizing
our analyses.
SEC-SEC-E-0000894
Subject to Protective Order in D. Mass. Case No. 18-cv-11926-PBS EPROD-SEC-LIT-E-001189146
Case 1:18-cv-11926-PBS Document 127-39 Filed 09/30/20 Page 4 of 4
Are you still working on the referral that you mentioned to me several
weeks ago? As I recall, it concerned potential misconduct involving a
false rumor, sort of like the Berliner case.
Scott
**********************
SEC-SEC-E-0000895
Subject to Protective Order in D. Mass. Case No. 18-cv-11926-PBS EPROD-SEC-LIT-E-001189147
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 1 of 62
Agenda
• Overview of Ligand
• Significant Dates
• Unanswered Questions
2
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 3 of 62
Overview of Ligand
Ligand Overview
• Founded in 1987 in La Jolla, CA, and went public in 1992 (Ticker: LGND)
• Strong history of drug discovery, development and partnering
• 14 approved medicines and over 60 potential new drug candidates
• Turned profitable and cash flow positive in 2013
4
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 5 of 62
• In 2007, the management team and Board were rebuilt to focus on new
business model
– Early stage research, low costs
– Focus on partnering to generate royalty revenue
5
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 6 of 62
Overview of Ligand
Ligand’s Board of Directors
Ligand benefits from a diversified Board of Directors that
includes two preeminent pharmaceutical R&D executives
• Sunil Patel: CFO, OncoMed. Formerly Gilead, Abgenix, McKinsey & Co.
• Todd Davis: Founder, Healthcare Royalty Partners. Formerly ELAN, Abbott
• David Knott: Chief Investment Officer, Knott Partners
• Steve Sabba, MD: Research Analyst , Knott Partners. Formerly Sturzas Medical
Research, Kilkenny Capital Management
• Jason Aryeh: Partner JALAA Equities, Chairman QLT, Inc.
• John Higgins: CEO, Ligand
6
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 7 of 62
2
20
9 1
0 0
2008 2015 2008 2015
Fully-Funded Programs (“Shots-on-Goal”) Commercial Products Generating Revenue
for Ligand
7
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 8 of 62
Select Generic
Big Pharma
29%
Spec Pharma
10%
Generic
18%
Biotech
Select Spec Pharma
Select Biotech 44%
Pfizer Pain
Pfizer Infection
Women’s
Pfizer
Health
9
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 10 of 62
$60
$50
$49.0
Captisol
$30.0 $31.4 Royalties
$30
$20
$10
$0
2011 2012 2013 2014
10
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 11 of 62
$50
$ millions
$10
$0
2006 2007 2008 2009 2010 2011 2012 2013 2014
11
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 12 of 62
$60
$50
$ millions
$40
$30 Revenue
$10
$0
2011 2012 2013 2014
12
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 13 of 62
• Chairman named as one of Six Directors of the Year for 2014 by Corporate
Directors Forum
13
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 14 of 62
Emmanuel Lemelson,
Lemelson Capital Management, and
the Amvona Fund
Emmanuel Lemelson
Personal Background
• Born Gregory Lemelson in Arizona
• Earned a B.A. in Theology and Religious Studies and a Master of Divinity from
universities in Washington state
• From 1999 to 2010, ran an e-commerce website selling photography equipment
(Amvona.com)
• In 2011, ordained as a Greek Orthodox priest
• Since 2013, assigned to a diocese in Switzerland
Amvona Fund
Year Fund Size
Lemelson claims fund began in: 2012 $2.7 Million
“I'm sure there's, you know, more than 100 investors who've expressed
interest recently and it looks like, you know, in the next 24 months from now,
perhaps we could get to 400 or 500 million or something like that.”
- Emmanuel Lemelson (September 16, 2014)
16
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 17 of 62
• “From inception in September 2012 through May 2014 (21 months) - The Amvona
Fund, LP has returned a Compounded Annual Gain of 85.15% (58.51% net) and
an Overall Gain of 193.65% (123.90% net).” – 6/4/14 LCM Press Release
– Over the same period the indexes returned the following gains:
• Dow: 27.7%
• S&P 500: 36.8%
• Nasdaq: 38.3%
• Amvona “returned a compound annual gain of 81.9% (56.5% net) and overall gain of
284.1% (173.8% net) from Sept 1, 2012 inception through Nov 30, 2014. Consistently
Ranked in top 1% of peer group by Morningstar. Ranked as top or among top hedge
funds globally by Preqin, BarclayHedge and Wall Street Journal.” – LCM Website
17
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Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 18 of 62
Ligand
• There is a statistical correlation between LGND and the NYSE Arca Biotechnology Index (BTK
Index) and the peer group of 13 biotechnology companies (EW Peer Index) that Ligand lists in its
proxy statement
• The chart below shows LGND’s strong performance relative to those two benchmarks from June
13, 2013 to June 13, 2014
$80
$75
$70
$65
Relative Price
$60
$55
$50
$45
$40
$35
$30
20
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080757
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 21 of 62
$85
$80
$75
Relative Price
$70
$65
$60
$55
$50
$45
$40
• This occurred during a strong growth period for Ligand in which there were no market- or
industry-wide developments to explain steep decline
21
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080758
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 22 of 62
What Happened?
• Out of nowhere, on June 16, 2014, Lemelson Capital Management released
a 25-page report saying he was shorting stock and purporting that:
• Lemelson disclosed on November 18 that he had closed out the bulk of his
short position at $43, the price at which LGND traded between October 7
and October 13
22
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080759
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 23 of 62
$55
$50
$45
The Cover
- Majority of short position covered
- Lemelson claimed a 40% gain in
about three and a half months
$40
07/14 08/14 09/14 10/14 11/14 12/14 01/15 02/15
LGND-US
Note: Market data as of 06-Mar-2015 Source: FactSet Prices
23
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080760
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 24 of 62
24
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080761
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 25 of 62
Significant Dates
26
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080763
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 27 of 62
PERIOD ONE
Monday, June 16 to Tuesday, June 24, 2014
27
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080764
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 28 of 62
• Truth: Ligand was clearly solvent. Cash from operations in 2013 increased by
$20 million and was used to retire a $20 million debt. Ligand’s auditor, Grant
Thornton, has never issued a going concern. Ligand is sustainably profitable
and cash-flow positive.
Value:
• Lemelson: “Ligand’s fair value is roughly $0 per share”
• Truth: A $0 price target is patently baseless
30
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080767
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 31 of 62
31
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080768
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 32 of 62
• Posted to Benzinga’s YouTube account that same day, as well as linked through
Lemelson’s Facebook and Twitter accounts
• The host and Lemelson reveled in the impact of the report on LGND
— Host: “Well, you made another big call this week and it made quite a big splash. . .
I mean, you just rocked this stock here.”
— Lemelson: “I have no idea these things are going to happen or not. But the thing
with Ligand short is that [LGND] lost about 11% in just a matter of hours.”
32
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080769
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 33 of 62
Management
• Lemelson: “The management team certainly have stewardship
over investor’s capital. And the point is not just to get return on
capital, but first and foremost to return capital. Ligand has
never done that.”
33
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080770
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 34 of 62
$60.0
$40.0
$20.0
$0.0
Q1 Q2Q3Q4Q1 Q2Q3Q4Q1 Q2Q3Q4Q1 Q2Q3Q4
2011 2012 2013 2014
34
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080771
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 35 of 62
35
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080772
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 36 of 62
• Lemelson: “[T]he Company faces it[s] biggest existential threat in what is likely
to be a momentous impairment of its largest royalty generating asset,
Promacta.”
• Truth: Sovaldi does not replace Promacta, which functions as a supportive care
product used with other drugs to treat Hepatitis C. In addition, Promacta is
used to treat ailments other than Hep C, the vast majority of use is for ITP (not
Hep C) and important other new indications in development.
Solvency
• Lemelson: “In light of the extraordinary risks associated with Ligand as a going
concern . . . Lemelson Capital believes that Ligand’s fair value is roughly $0 per
share.”
• Truth: As shown on earlier slides, Ligand had strong revenue growth, flat costs,
and increasing cash flow. No basis for $0 valuation.
36
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080773
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 37 of 62
37
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080774
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 38 of 62
2.13%
2.00%
0.00%
-0.01%
-0.37%
-2.00%
-1.81% -1.92%
-4.00% -4.13%
-3.75%
-4.06% -4.12%
-6.00% -5.88%
-5.65%
-8.00%
-9.78%
-10.00%
-12.00% -11.69%
-14.00%
t-stat = -1.61
-16.00%
-18.00%
06/16/2014 06/17/2014 06/18/2014 06/19/2014 06/20/2014 06/23/2014 06/24/2014
Excess Returns Cumulative Excess Returns
38
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080775
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 39 of 62
PERIOD TWO
Sunday, July 13 to Thursday, July 17, 2014
• 4 trading days bookended by:
— July 13: Weekend release of Lemelson statement touting the success of his hedge
fund based on LGND short
— July 17: Lemelson reissues press release through social media and it is picked up
by media
• No other negative news about Ligand during this time
— July 14: Ligand Chairman Dr. John Kozarich named director of the year honoree
by Corporate Directors Forum
— July 16: Pfizer-Ligand estrogen drug Duavee expected to receive July approval
opinion from the European Union
— July 17: Ligand announces 2Q results beat estimate; announces share buy back
program
39
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080776
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 40 of 62
40
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080777
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 41 of 62
41
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080778
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 42 of 62
— Valuewalk.com
— Reuters.com
— Marketwatch.com
42
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080779
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 43 of 62
43
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080780
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 44 of 62
2.00%
0.00%
-2.00% -1.19%
-1.91%
-4.00%
-6.00% -5.59%
-8.00%
-8.43%
-9.63%
-10.00%
-12.00%
-14.00%
-15.21%
-16.00% t-stat = -3.12 (*) -17.12%
-18.00%
07/14/2014 07/15/2014 07/16/2014 07/17/2014
44
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080781
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 45 of 62
PERIOD THREE
Thursday, August 7, 2014
Overview
• Lemelson gave an interview about Ligand to Benzinga.com
• No other negative news about Ligand the day prior or that day
45
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080782
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 46 of 62
46
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080783
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 47 of 62
– Ligand, like the majority of profitable companies in the biotech industry, excludes
stock-based compensation from Non-GAAP financials because it is non-cash and
based on Black-Scholes Valuation, which requires many market-based inputs
47
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080784
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 48 of 62
48
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080785
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 49 of 62
PERIOD FOUR
Friday, August 22 to August 25, 2014
Overview
• On Friday, August 22, 2014, Lemelson Capital Management published on
SeekingAlpha.com a report on Ligand: “Institutional Holders Wasting No Time
Dumping Stock In Response To Mounting Insolvency And Bankruptcy Risks”
• Report released at 3:15pm Eastern, and then he put it on his website, and
promoted it through his social media accounts, after market close
• Media outlets reported the story the next day, Saturday, August 23rd
• While the market was open on Monday, August 25th, Lemelson issued a press
release through PR News Wire touting his report
49
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080786
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 50 of 62
— Call spread purchased for $36m, raising conversion price to $125.08 per share
(125% premium over closing price)
• Unrelated to the convertible note, BioTech Value Fund, Inc. (BVF) sold shares
— On August 21st BVF filed 13G/A making public it had divested 1,217,561 shares
50
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080787
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 51 of 62
• Truth: No factual basis to claim BVF sold its shares, and other institutional
investors would follow, because of belief Ligand was purportedly “insolvent.”
Convertible note offering only further improved Ligand’s cash position and
reflected its strong growth. Timing of sale disclosure completely coincided with
offerings. Ligand did not purchase BVF’s holdings or even have discussions with
BVF.
52
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080789
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 53 of 62
53
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080790
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 54 of 62
0.02
-0.02
-2.21%
-0.04
-0.06
-5.68%
-0.08 -7.89%
-0.1
-0.12
-0.14
54
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080791
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 55 of 62
0.00%
-10.00%
Aug 7 Aug 14
June 19 July 3 1st Print 4th Report Aug 25
1st Audio 2nd Report Interview Press
-20.00% Interview Release re
5th Report
July 17
-30.00%
Press Release re
Fund Returns
-40.00%
-50.00%
Road to Recovery
• The day Lemelson first attacked Ligand, June 16, 2014, LGND opened at $67.26
• It did not close above that price again until March 5, 2015
• The chart below shows LGND’s performance relative to the two benchmarks from
November 18, 2014, when Lemelson announced he had covered the bulk of his short
position, to the Present
• Lemelson repeated his cover announcement in March 2015, shortly before LGND
upticked and fully recovered to its pre-Lemelson attack price
$90
$85
$80
Wealth Relative Price
$75
$70
$65
$60
$55
$50
$45
$40
• March 24, 2015: “If you invested anything more than a $1, like you’d
put in a lottery ticket . . . you might have an unhappy outcome with
Ligand”
— March 24 and 25: LGND down both days, 6.5% total loss
• April 27, 2015: “In our opinion it looks like more like an operation
designed to transfer equity from common shareholders to
management through stock awards”
— April 27 and April 28: LGND down both days, 9.2% total loss
59
FOIA CONFIDENTIAL TREATMENT REQUESTED
Confidential Confidential Treatment Requested by LGND_0080796
Ligand Pharmaceuticals, Inc.
Case 1:18-cv-11926-PBS Document 127-40 Filed 09/30/20 Page 60 of 62
Unanswered Questions
9
MOTION HEARING/SCHEDULING CONFERENCE
10
BEFORE THE HONORABLE PATTI B. SARIS
11 UNITED STATES CHIEF DISTRICT JUDGE
12
13
14
15
United States District Court
16 1 Courthouse Way, Courtroom 19
Boston, Massachusetts 02210
17 December 6, 2018, 11:20 a.m.
18
19
20
21
22
LEE A. MARZILLI
23 OFFICIAL COURT REPORTER
United States District Court
24 1 Courthouse Way, Room 7200
Boston, MA 02210
25 (617)345-6787
Case 1:18-cv-11926-PBS Document 127-41 Filed 09/30/20 Page 2 of 6 2
1 A P P E A R A N C E S:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-41 Filed 09/30/20 Page 3 of 6 3
1 P R O C E E D I N G S
4 themselves.
7 me is Marc Jones.
20 action?
8 this case.
25 stage.
Case 1:18-cv-11926-PBS Document 127-41 Filed 09/30/20 Page 6 of 6 52
1 C E R T I F I C A T E
3
UNITED STATES DISTRICT COURT )
4 DISTRICT OF MASSACHUSETTS ) ss.
CITY OF BOSTON )
5
15
16
17
18
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-42 Filed 09/30/20 Page 1 of 3
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL ) Civil Action No. 1:18-cv-11926-PBS
MANAGEMENT, LLC, )
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
Lemelson”) and Lemelson Capital Management, LLC, along with Relief Defendant The Amvona
Civ. P. 33 to the United States Securities and Exchange Commission to be answered in writing
A. The term “Action” shall refer to the above-captioned matter Securities and Exchange
Commission v. Gregory Lemelson, et al., Case No. 1: 18-cv-11926-PBS (D. Mass).
B. The term, “Amended Complaint” shall refer to the operative pleading filed on March 21, 2019
(Dkt. 33) with the U.S. District Court for the District of Massachusetts.
Case 1:18-cv-11926-PBS Document 127-42 Filed 09/30/20 Page 2 of 3
Interrogatory No. 2: Identify all fact witnesses You intend to call as witnesses at
trial in the Action and provide a summary of the anticipated testimony of each such fact witness.
testify
Interrogatory No. 3: State the basis for Your contention that Defendants’
statements influenced or otherwise impacted the stock price for Ligand, including, but not
limited to (i) a detailed description of all data sources and other materials You considered, and
(ii) each alternative cause, influence, or reason for the decline in Ligand’s stock price that You
considered, analyzed, and/or reviewed with a detailed explanation for how you ruled out that
Interrogatory No. 4: Identify all documents that You intend to rely upon as part
Interrogatory No. 5: Do You disagree with the contention that as of June 16,
2014, Promacta was facing competitive pressure from Sovaldi, which would render Promacta
Interrogatory No. 6: Do You disagree with the contention that as of June 16,
2014, Ligand was concerned that Promacta was facing competitive pressure from Sovaldi, which
would render Promacta obsolete; if so, please state the basis for this contention.
Interrogatory No. 7: Describe in detail all steps You took to verify Your
contention, set forth in Paragraph 38 of the Amended Complaint, that the IR Representative
4
Case 1:18-cv-11926-PBS Document 127-42 Filed 09/30/20 Page 3 of 3
Respectfully submitted,
7
Case 1:18-cv-11926-PBS Document 127-43 Filed 09/30/20 Page 1 of 3
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL ) Civil Action No. 1:18-cv-11926-PBS
MANAGEMENT, LLC, )
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
Lemelson”) and Lemelson Capital Management, LLC, along with Relief Defendant The Amvona
Documents pursuant to Fed. R. Civ. P. 34 to the United States Securities and Exchange
Commission.
A. The term “Action” shall refer to the above-captioned matter Securities and
Exchange Commission v. Gregory Lemelson, et al., Case No. 1: 18-cv-11926-PBS (D. Mass).
B. The term, “Amended Complaint” shall refer to the operative pleading filed on
March 21, 2019 (Dkt. 33) with the U.S. District Court for the District of Massachusetts.
Case 1:18-cv-11926-PBS Document 127-43 Filed 09/30/20 Page 2 of 3
Defendants.
13. All Documents or Communications between You and Ligand, or anyone acting on
behalf of Ligand.
Ligand.
Viking.
18. All Documents or Communications that you intend to rely upon as exhibits at trial
in the Action.
19. All Documents or Communications exchanged with any third-party relating to the
drafting and editing of the Amended Complaint and all prior pleadings in the Action.
position that Fr. Lemelson’s statements listed in paragraphs 36 through 43 of the Amended
position that Fr. Lemelson’s statements listed in paragraphs 44 through 50 of the Amended
5
Case 1:18-cv-11926-PBS Document 127-43 Filed 09/30/20 Page 3 of 3
Complaint.
position that Ligand’s intangible assets included intellectual property, as alleged in Paragraph 52
81. All Documents, which You claim contain the allegedly four false and/or
82. All Documents and Communications, including but not limited to notes,
Respectfully submitted,
13
Case 1:18-cv-11926-PBS Document 127-44 Filed 09/30/20 Page 1 of 6
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. )
)
GREGORY LEMELSON and LEMELSON CAPITAL ) Civil Action No. 1:18-cv-11926-PBS
MANAGEMENT, LLC, )
)
Defendants, )
)
and )
)
THE AMVONA FUND, LP, )
)
Relief Defendant )
)
1. The following objections and qualifications are incorporated into the responses to
specific interrogatories set forth below and are deemed continuing as to each, applying to each
and every interrogatory. To the extent that the Commission responds individually to the specific
interrogatories below, with the same, similar or additional objections, it does not waive these
general objections nor limit them, nor concede that the information requested or provided is
relevant to any claims asserted, or defenses that may be asserted, in this matter. These responses
and objections are based on undersigned counsels’ current knowledge and reasonable belief, and
discovery has just begun, and to date, no witnesses have been deposed – nor have Defendants
served any deposition subpoenas. Finally, the Commission objects to Interrogatory No. 2 as
The Commission does not intend to provide a further response to Interrogatory No. 2.
Interrogatory No. 3:
State the basis for Your contention that Defendants’ statements influenced or otherwise
impacted the stock price for Ligand, including, but not limited to (i) a detailed description of all
data sources and other materials You considered, and (ii) each alternative cause, influence, or
reason for the decline in Ligand’s stock price that You considered, analyzed, and/or reviewed
with a detailed explanation for how you ruled out that alternative form of causation.
Interrogatories, and asserts the following specific objections. The Commission objects to
Interrogatory No. 3 as vague, in its use of “influenced or otherwise impacted the stock price.”
The Commission further objects to Interrogatory 3 as a premature request for matter that may be
the subject of expert testimony. The Commission further objects to Interrogatory No. 3 as a
substantial discovery has taken place. The Commission further objects to Interrogatory No. 3 as
it attributes to the Commission a contention that has not been made by the Commission in its
Complaint or elsewhere. While the Commission has contended that Defendants intended to drive
down the price of the stock, and that the price of the stock did fall, the Commission does not
need to prove causality between Defendants’ efforts and the fall of the stock price. In a civil
enforcement case, as opposed to a private action, the Commission is not required to show harm
(or more precisely, actual damages). While private plaintiffs are obligated to plead and prove the
11
Case 1:18-cv-11926-PBS Document 127-44 Filed 09/30/20 Page 3 of 6
element of reliance in securities fraud cases, the Commission is not required to prove reliance by
individual investors in an enforcement action. See United States v. Tagliaferri, 820 F.3d 568, 574
(2d Cir. 2016) (not necessary to prove intent to injure and/or actual injury to client under Section
206 of the Investment Advisers Act); SEC v. Collins & Aikman Corp., 524 F.Supp.2d 477, 490
(S.D.N.Y. 2007) (“the SEC need not plead reliance”). Unlike private plaintiffs who must show
that they relied on particular statements by defendants to their detriment, the Commission is not
limited to seeking redress only when fraudulent schemes are successful in driving down stock
prices. See id. Interrogatory No. 3 seeks to require the Commission to prove that investors and
potential investors a) actually relied on Defendants’ fraudulent statements and b) were harmed as
a result of those statements. The Commission is not required to prove either. Without waiving its
general and specific objections, the Commission responds to this interrogatory as follows:
The Commission states that in considering the decline of Ligand’s stock price over the
relevant time period, it reviewed press and analyst reports about Ligand’s stock, Ligand’s
periodic SEC filings, news and industry articles about Ligand, general industry benchmarks,
publicly available records of historical stock prices and volumes (such as Yahoo Finance) and
conducted internal analyses at the direction of counsel. The Commission also considered the
many statements by the Defendants to investors and prospective in admitting that they had,
through their scheme, driven down to the stock price. Additionally, the Commission also relied,
SEC-Lemelson-E-0041922
SEC-Lemelson-E-0384404
SEC-Lemelson-E-0183999
SEC-Lemelson-E-0366451
Lemelson Inv. Test. 423:6-10
SEC-Lemelson-E-0586481-0586523
EPROD-SEC-LIT-E-001189577-001190117
12
Case 1:18-cv-11926-PBS Document 127-44 Filed 09/30/20 Page 4 of 6
As to answers:
I, David Becker, declare under penalty of perjury under the laws of the United States of
America that the foregoing factual answers are true and correct to the best of my knowledge,
information, and belief.
_______________________________
David Becker
Assistant Director
Securities and Exchange Commission
31
Case 1:18-cv-11926-PBS Document 127-44 Filed 09/30/20 Page 5 of 6
Case 1:18-cv-11926-PBS Document 127-44 Filed 09/30/20 Page 6 of 6
CERTIFICATE OF SERVICE
I hereby certify that, on July 24, 2019, a true and correct copy of the foregoing document
was sent by email to all counsel for all parties.
32
Case 1:18-cv-11926-PBS Document 127-45 Filed 09/30/20 Page 1 of 4
)
)
SECURITIES AND EXCHANGE COMMISSION, )
Plaintiff, )
)
v. ) Civil Action No. 1:18-cv-11926-PBS
GREGORY LEMELSON and LEMELSON CAPITAL )
MANAGEMENT, LLC, )
Defendants, )
and )
THE AMVONA FUND, LP, )
Relief Defendant )
)
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure and Rules 26 and 34
of the Local Rules of the United States District Court for the District of Massachusetts, plaintiff,
the United States Securities and Exchange Commission (“SEC” or “Commission”), hereby
provides responses and objections to Defendants’ First Set of Requests for Production of
General Objections
All of the Commission’s responses to specific document requests are given subject to and
Civ. P. 26(b). Because of the excessive number of individual requests in defendants’ first set of
requests for production of documents, the Commission will treat this request as satisfying
defendants’ two separate sets of requests for production under Local Rule 26.1.
Case 1:18-cv-11926-PBS Document 127-45 Filed 09/30/20 Page 2 of 4
The Commission reasserts and incorporates herein the above general objections. Subject
to and without waiving these objections, the Commission has already produced all non-
position that Fr. Lemelson’s statements listed in paragraphs 36 through 43 of the Amended
The Commission reasserts and incorporates herein the above general objections. The
Commission further objects to this request as vague, in its use of “relating, concerning, or
supporting the position” and “caused any changes.” The Commission further objects to this
Request as vague as to time period. The Commission further objects to this request to the extent
it calls for material subject to the deliberative process, attorney-client or work product privileges.
The Commission further objects to this request as a premature request for matter that may be the
subject of expert testimony. The Commission further objects to this request as it attributes to the
Commission a “position” that has not been made by the Commission in its Amended Complaint
or elsewhere. Subject to and without waiving these objections, the Commission has already
position that Fr. Lemelson’s statements listed in paragraphs 44 through 50 of the Amended
12
Case 1:18-cv-11926-PBS Document 127-45 Filed 09/30/20 Page 3 of 4
The Commission reasserts and incorporates herein the above general objections and its
response to Request No. 20. Subject to and without waiving these objections, the Commission
22. All Documents or Communications that support Your position and the claim that
pharmaceutical products.”
The Commission reasserts and incorporates herein the above general objections. The
Commission further objects to this request to the extent it calls for the production of publicly
incorporates here by reference its objections and response to Defendants’ Interrogatories 9 and
10. Subject to and without waiving these objections, the Commission has already produced all
Viking to develop drugs, including information relating to the equipment, office, and lab space
The Commission reasserts and incorporates herein the above general objections. The
Commission further objects to this request to the extent it calls for the production of publicly
incorporates here by reference its objections and response to Defendants’ Interrogatories 9 and
10. Subject to and without waiving these objections, the Commission has already produced all
13
Case 1:18-cv-11926-PBS Document 127-45 Filed 09/30/20 Page 4 of 4
by the deliberative process privilege, investigative files privilege, attorney-client privilege, and
the attorney work product doctrine. The Commission further objects to this Request as unrelated
to the parties’ claims and defenses in this action as is required by Fed. R. Civ. P. 26(b). The
37
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 1 of 7
Page 361
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Page 362
1 APPEARANCES:
2
3 On behalf of the Securities and Exchange Commission:
4 VIRGINIA M. ROSADO DESILETS, ESQ.
5 JEFFREY FINNELL, ESQ.
6 SONIA TORRICO, ESQ.
7 Securities and Exchange Commission
8 100 F Street Northeast
9 Washington, D.C. 20549
10 (202) 5510-4955
11
12 On behalf of the Witness:
13 DOUGLAS F. MacLEAN, ESQ.
14 Armor Compliance
15 22 Batterymarch Street
16 Boston, Massachusetts 02109
17 (617) 501-2055
18
19 ALSO PRESENT:
20 LUCY GAUTHIER, Intern
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 3 of 7
Page 363
1 C O N T E N T S
2
3 WITNESS EXAMINATION
4 Gregory Lemelson 365
5
6 EXHIBITS DESCRIPTION IDENTIFIED
7 25 E-mail 368
8 26 E-mail 370
9 27 E-mail 389
10 28 E-mail 396
11 29 E-mail 413
12 30 E-mail 414
13 31 E-mail 417
14 32 E-mail 421
15 33 E-mail 422
16 34 E-mail 427
17 35 E-mail 428
18 36 Press Release 453
19 37 10-Q 494
20 38 E-mail 518
21 39 E-mail 520
22 40 E-mail 528
23 41 Statements 539
24 42 Information 556
25 43 Statements 578
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 4 of 7
Page 364
1 C O N T E N T S (CONT.)
2
3 EXHIBITS DESCRIPTION IDENTIFIED
4 44 Article 585
5 45 E-mail 628
6 46 E-mail 629
7 47 E-mail 631
8 48 Transcript 641
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 5 of 7
Page 365
1 P R O C E E D I N G S
2 MS. DESILETS: Back on the record at
3 9:25 a.m.
4 Whereupon,
5 GREGORY LEMELSON
6 was recalled as a witness and, having been
7 previously duly sworn, was examined and testified
8 further as follows:
9 EXAMINATION
10 BY MS. DESILETS:
11 Q Good morning, Father Emmanuel. Welcome
12 back.
13 A Good morning. Thank you.
14 Q Before we continue, I wanted to summarize a
15 conversation that we had after we went off the record
16 last night. You had asked us about the formal order
17 of investigation and whether we are investigating
18 Ligand or any other parties, and I informed you that
19 that wasn't information we were at liberty to share or
20 are really ever at liberty to share.
21 You also asked whether it was customary for
22 us to ask background questions about a witness, and
23 particularly about your wife, and I explained that we
24 do usually ask background questions about the witness,
25 and in this particular case, your wife is the owner of
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 6 of 7
Page 391
1 A I don't know. I think it depends on the
2 tone of the conversation.
3 Q Is it possible that your statement that he
4 said Promacta sales are going to go away is based on
5 his not having disagreed with your statement to that
6 effect on this call?
7 A Not if that's what I said on the radio.
8 What I would have said on the interview would have
9 been an accurate recounting of what happened on the
10 radio -- in the phone conversation.
11 Q Do you recall that on the interview you gave
12 an exact quote of what Bruce Voss told you?
13 A I don't recall that interview. I would have
14 to listen to it.
15 I'm just saying because it was closer in
16 time, it would have been -- my memory would have been
17 fresh. Now my memory is not fresh. I haven't -- for
18 example, I haven't looked at the notes of my call.
19 Probably the notes of my call would give us more
20 information on this, what he actually said.
21 Q Did you respond to Mr. Voss's agreement?
22 A I don't think so.
23 Q Why not?
24 A Well, because at that point if he -- if he's
25 contradicting what he said and he's changing it, and
Case 1:18-cv-11926-PBS Document 127-46 Filed 09/30/20 Page 7 of 7
Page 706
1 PROOFREADER'S CERTIFICATE
2
3 In the Matter of: TRADING IN THE SECURITIES OF
4 LIGAND PHARMACEUTICALS, INC.
5 Witness: Gregory Lemelson
6 File Number: HO-12718-A
7 Date: July 21, 2016
8 Location: Washington, D.C.
9
10
11 This is to certify that I, Nicholas Wagner,
12 (the undersigned), do hereby swear and affirm
13 that the attached proceedings before the U.S.
14 Securities and Exchange Commission were held
15 according to the record and that this is the
16 original, complete, true and accurate transcript
17 that has been compared to the reporting or recording
18 accomplished at the hearing.
19
20
21
22 ____________________ ____________________
23 (Proofreader's Name) (Date)
24
25
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 1 of 10
Page 708
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Page 709
1 APPEARANCES:
2
3 On behalf of the Securities and Exchange Commission:
4 VIRGINIA M. ROSADO DESILETS, ESQ.
5 JEFFREY FINNELL, ESQ.
6 SONIA TORRICO, ESQ.
7 Securities and Exchange Commission
8 Division of Enforcement
9 100 F Street Northeast
10 Washington, D.C. 20549
11 (202) 5510-4955
12
13 On behalf of the Witness:
14 DOUGLAS F. MacLEAN, ESQ.
15 Armor Compliance
16 22 Batterymarch Street
17 Boston, Massachusetts 02109
18 (617) 501-2055
19
20 ALSO PRESENT:
21 LUCY GAUTHIER, Intern
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 3 of 10
Page 710
1 C O N T E N T S
2
3 WITNESS EXAMINATION
4 Gregory Lemelson 712
5
6 EXHIBITS DESCRIPTION IDENTIFIED
7 50 Agreement 721
8 51 Form S-1 722
9 52 Excel Document 794
10 53 Form 8-K 826
11 55 E-mail 851
12 56 Spreadsheet 854
13 57 E-mail 903
14 58 E-mail 913
15 59 E-mail 915
16 61 E-mail 931
17 62 Correspondence 937
18 63 E-mail 958
19 64 Article 968
20 65 Response 969
21 66 Response 970
22 67 Article 974
23
24
25
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 4 of 10
Page 711
1 C O N T E N T S (CONT.)
2
3 EXHIBITS DESCRIPTION IDENTIFIED
4 68 Article 975
5 69 Press Release 989
6 70 E-mail 1001
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 5 of 10
Page 712
1 P R O C E E D I N G S
2 MS. DESILETS: Going back on the record at
3 9:15 a.m.
4 Whereupon,
5 GREGORY LEMELSON
6 was recalled as a witness and, having been
7 previously duly sworn, was examined and testified
8 further as follows:
9 EXAMINATION
10 BY MS. DESILETS:
11 Q Welcome back, Father Emmanuel.
12 A Thank you.
13 Q While we were off the record, did you have
14 any substantive communications with the staff of the
15 SEC?
16 A No. But I did want to say that yesterday
17 off the record, I did have a -- I don't think it's
18 substantive at all, but I did just discuss with our
19 transcriptionist, you know, her work and transcribing
20 and so forth, where she used to work, that kind of
21 thing. I don't think it's substantive, but just in
22 the interest of having full disclosure.
23 Q Sure. Sure. That's not what we would
24 typically consider substantive. I think you're right
25 about that, but it's fine to summarize just so that
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 6 of 10
Page 772
1 already said, I would rather we move along.
2 A Okay. There is one new thing then I just
3 wanted to add.
4 Q Go ahead.
5 A It's not totally new, but I just wanted to
6 say that in regard to any inaccuracies or completeness
7 or errors of omission, unknown errors of omission, I
8 believe our full disclaimer covers those again on
9 page 24 of Exhibit 17 where we specifically speak to
10 that.
11 We say: "Lemelson Capital makes no
12 representations, express or implied, as to the
13 accuracy, timeliness or completeness of any such
14 information or with regard to the results obtained
15 from its use."
16 So we -- we certainly I think made an effort
17 to anticipate that there may be errors or inaccuracies
18 despite our best efforts to avoid them.
19 Q Why did you disclaim the accuracy of your
20 reports?
21 A Well, at all times when I conduct any
22 research I always aim for absolute accuracy, but it's
23 human nature to make errors.
24 Q Were these reports accurate to the best of
25 your ability?
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 7 of 10
Page 773
1 A To the best of my knowledge. To the best of
2 my ability. To the best of my knowledge.
3 Q The disclaimer also notes that your opinions
4 are subject to change without notice.
5 A Yes.
6 Q Are there opinions in these reports?
7 A There may be. I try to keep them as
8 objective as possible, but there may be.
9 I did want to add one other thing I forgot
10 to add earlier, and that is that yesterday you asked
11 me if anyone else had worked on these reports, and I
12 mentioned that Michael Johns edited them, and at least
13 one sentence I was able to attribute to him that we
14 discussed. But I wanted to add that I do believe I
15 did send all of my reports to counsel for review as
16 well. So I wouldn't say he contributed to them, but I
17 did ask counsel to review them.
18 Q Did counsel recommend any changes to your
19 reports?
20 A I don't recall. But I -- I have been in the
21 practice of having counsel review all of my work and
22 my annual and interim reports, and almost everything.
23 Q Did you make any changes to the reports as a
24 result of the advice of counsel?
25 A I don't recall. I don't -- I don't think
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 8 of 10
Page 774
1 so, but I don't recall.
2 Q Your disclaimer also notes that you are not
3 undertaking to update the report.
4 A Yes.
5 Q But you did update the report several times,
6 didn't you?
7 A I don't think I changed the existing
8 reports. I created new reports that were add-ons to
9 it.
10 Q That were updates to the original report?
11 A Well, they continued along the same theme
12 and subject.
13 Q Isn't one of them even called "Update"?
14 A I believe so.
15 Q And one is called "Appendix"?
16 A Yeah, but I don't view them as an update of
17 this report. I view it as a separate update on the
18 topic.
19 Q In the course of updating your readers and
20 investors on the topic of Ligand, if you learned that
21 any information or statements or conclusions that you
22 included in your prior reports were inaccurate, would
23 you have corrected them in those later reports?
24 A Absolutely.
25 Q Did you do that?
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 9 of 10
Page 775
1 A I don't recall finding any inaccuracies or
2 errors.
3 And earlier when you asked me if I had any
4 substantive statements, comments with members of the
5 SEC, I don't think this is substantive either, but
6 just out of an abundance of caution, I want to say
7 that off the record I did apologize to --
8 -- Ms. Torrico; is that correct?
9 MS. TORRICO: Yes.
10 THE WITNESS: -- for what may have come off
11 as a diminutive expression of being your assistant. I
12 didn't mean it in that sense. I meant it in a general
13 sense. I recognize she is a lawyer and a full-time
14 staff member of the SEC. I don't know if that is
15 substantive, but I did express that.
16 MS. DESILETS: Thank you.
17 BY MS. DESILETS:
18 Q If you can turn back to Exhibit 18. That's
19 the July 3rd, 2014 report. Page 10 of that report.
20 A Okay. Okay, I've found it, page 10.
21 Q The fourth paragraph under the section
22 "Speculation has no intrinsic value," that first
23 sentence you refer to Ligand engaging in a creative
24 transaction with an affiliate shell company called
25 Viking Therapeutics.
Case 1:18-cv-11926-PBS Document 127-47 Filed 09/30/20 Page 10 of 10
Page 1008
1 PROOFREADER'S CERTIFICATE
2
3 In the Matter of: TRADING IN THE SECURITIES OF
4 LIGAND PHARMACEUTICALS, INC.
5 Witness: Gregory Lemelson
6 File Number: HO-12718-A
7 Date: July 22, 2016
8 Location: Washington, D.C.
9
10
11 This is to certify that I, Nicholas Wagner,
12 (the undersigned), do hereby swear and affirm
13 that the attached proceedings before the U.S.
14 Securities and Exchange Commission were held
15 according to the record and that this is the
16 original, complete, true and accurate transcript
17 that has been compared to the reporting or recording
18 accomplished at the hearing.
19
20
21
22 ____________________ ____________________
23 (Proofreader's Name) (Date)
24
25
Case 1:18-cv-11926-PBS Document 127-48 Filed 09/30/20 Page 1 of 12
1 APPEARANCES:
2 For the Plaintiff:
3 U.S. Securities and Exchange Commission
BY: Marc Jones, Esq.
4 Alfred A. Day, Esq.
Boston Regional Office
5 Division of Enforcement
33 Arch Street, Suite 2400
6 Boston, Massachusetts 02110
[email protected]/617.573.8947
7 [email protected]/617.573.4537
8
U.S. Securities and Exchange Commission
9 BY: Sonia G. Torrico, Esq.
100 F Street, N.E.
10 Washington, DC 20549
[email protected]
11 202.551.3515
12
For the Defendant and Relief Defendant:
13
Libby Hoopes
14 BY: Douglas S. Brooks, Esq.
399 Boylston Street
15 Boston, Massachusetts 02116
[email protected]
16 617.338.9300
17
18 ALSO PRESENT:
19 David Woodford, legal video
specialist
20
21
22
23
24
25
1 I N D E X
7 E X H I B I T S
23
24
51
52
153
154
1 C E R T I F I C A T E
8 and correct.
11
13 ________________________, ___________________.
14 (City) (State)
15
16 _________________________
17 VOLUME 2
18
19
20
21
22
23
24
25
410
1 ERRATA SHEET
2 Deposition of: GREGORY (EMMANUEL) LEMELSON, VOL. 2
Date taken: November 12, 2019
3 Case: SEC vs. LEMELSON, et al.
PAGE LINE
4 ____ ____ CHANGE: __________________________________
REASON: __________________________________
5
____ ____ CHANGE: __________________________________
6 REASON: __________________________________
7 ____ ____ CHANGE: __________________________________
REASON: __________________________________
8
____ ____ CHANGE: __________________________________
9 REASON: __________________________________
10 ____ ____ CHANGE: __________________________________
REASON: __________________________________
11
____ ____ CHANGE: __________________________________
12 REASON: __________________________________
13 ____ ____ CHANGE: __________________________________
REASON: __________________________________
14
____ ____ CHANGE: __________________________________
15 REASON: __________________________________
16 ____ ____ CHANGE: __________________________________
REASON: __________________________________
17
____ ____ CHANGE: __________________________________
18 REASON: __________________________________
19 ____ ____ CHANGE: __________________________________
REASON: __________________________________
20
____ ____ CHANGE: __________________________________
21 REASON: __________________________________
22 ____ ____ CHANGE: __________________________________
REASON: __________________________________
23
24
Signed ________________________
25 Dated ________________________
411
1 A P P E A R A N C E S :
2
MARC JONES, ESQUIRE
3 ALFRED A. DAY, ESQUIRE
U.S. SECURITIES AND EXCHANGE COMMISSION
4 BOSTON REGIONAL OFFICE
Division of Enforcement
5 33 Arch Street
Boston, Massachusetts 02110
6 [email protected]
[email protected]
7 -- Representing the Plaintiff
8
9
10 DOUGLAS S. BROOKS, ESQUIRE
LIBBY HOOPES
11 399 Boylston Street
Boston, Massachusetts 02116
12 [email protected]
-- Representing the Defendant
13
14
15 ALSO PRESENT: Father Lemelson
16
17
18
19
20
21
22
23
24
1 I N D E X
2 * * *
3 WITNESS: MICHAEL JOHNS
4 QUESTIONED BY: PAGE
5 Mr. Jones 4
6 Mr. Brooks 116
7
8 E X H I B I T S
9 * * *
10
11 NUMBER DESCRIPTION MK'D.
12 Exhibit 50 Phone Call List 41
13 Exhibit 51 E-Mail 41
14 Exhibit 52 Payment Record 41
15 Exhibit 53 Wikipedia Document 87
16 Exhibit 54 E-Mail 91
17 Exhibit 55 E-Mail 98
18 Exhibit 56 Letter 98
19 Exhibit 57 E-Mail 101
20 Exhibit 58 E-Mail 105
21 *Exhibit 59 Voice Mail Message 113
22 (*Exhibit retained by Counsel.)
23
24
1 * * *
2 PROCEEDINGS
3 * * *
4 MICHAEL JOHNS,
5 after having been first duly sworn, was
6 examined and testified as follows:
7 * * *
8 E X A M I N A T I O N
9 * * *
10 BY MR. JONES:
11 Q Good afternoon, Mr. Johns. My name is
12 Marc Jones. I'm with the Securities and Exchange
13 Commission. This is Al Day. He's also with the
14 SEC, and we are going to ask you some questions
15 today in a deposition format. Are you appearing
16 here today pursuant to a subpoena?
17 A Yes.
18 Q Okay. And have you been deposed before?
19 A By the SEC?
20 Q No, just in general. Have you sat for a
21 deposition before?
22 A Yes.
23 Q And how many times?
24 A Half a dozen roughly.
4 publications.
27
12 rarely.
13 BY MR. JONES:
17 representing it?
28
6 Q Right.
29
8 function.
24 about it.
30
4 preserve really.
10 Ligand Pharmaceuticals.
12 document?
49
50
11 ever issued.
14 there?
16 Q Yes.
17 A Yes.
20 articles?
55
24 A Yes.
56
13 the website.
17 published?
18 A No.
23 possible.
59
5 or not?
19 Q Apart from --
60
1 A No.
4 A No.
6 of the document?
16 A (Witness complies.)
19 A Yes.
21 A (Witness complies.)
24 A Right.
64
4 A Happy to do it.
18 saying that?
115
13 Mr. Brooks.
14 * * *
15 E X A M I N A T I O N
16 * * *
17 BY MR. BROOKS:
116
2 Pharmaceuticals?
11 to be the case.
14 Viking?
15 A Yes.
19 A Yes.
22 his reports?
117
1
2 C E R T I F I C A T I O N
3
4
I, Karen A. Stevens, a Court Reporter
5 and Notary Public, do hereby certify the
foregoing to be a true and accurate transcript
6 of the proceedings in this matter, as
transcribed from the stenographic notes taken
7 by me.
8
__________________
9 Karen A. Stevens
Court Reporter
10 Notary Public
11
12
13
14
15 (The foregoing certification of this
transcript does not apply to any reproduction
16 of the same by any means, unless under the
direct control and/or supervision of the
17 certifying reporter.)
18
19
20
21
22
23
24
119
1 CERTIFICATE OF WITNESS
15
18
19
20 Signed
21 ___________________________________
22 MICHAEL JOHNS
24
120
1 ERRATA SHEET
2 Deposition of: MICHAEL JOHNS
Date taken: NOVEMBER 20, 2019
3 Case: SEC v. LEMELSON, et al.
4 PAGE LINE
_____ _____ CHANGE: _______________________________
5 REASON: _______________________________
6 _____ _____ CHANGE: _______________________________
REASON: _______________________________
7
_____ _____ CHANGE: _______________________________
8 REASON: _______________________________
9 _____ _____ CHANGE: _______________________________
REASON: _______________________________
10
_____ _____ CHANGE: _______________________________
11 REASON: _______________________________
12 _____ _____ CHANGE: _______________________________
REASON: _______________________________
13
_____ _____ CHANGE: _______________________________
14 REASON: _______________________________
15 _____ _____ CHANGE: _______________________________
REASON: _______________________________
16
_____ _____ CHANGE: _______________________________
17 REASON: _______________________________
18 _____ _____ CHANGE: _______________________________
REASON: _______________________________
19
_____ _____ CHANGE: _______________________________
20 REASON: _______________________________
21 _____ _____ CHANGE: _______________________________
REASON: _______________________________
22
23 Signed_____________________________
24 Dated______________________________
121
1 APPEARANCES:
2
3 For Plaintiff:
4 UNITED STATES SECURITIES AND EXCHANGE COMMISSION
5 BY: ALFRED A. DAY
Senior Trial Counsel, Division of Enforcement
6 - and -
BY: MARC JONES
7 Senior Trial Counsel
Boston Regional Office
8 33 Arch Street, Suite 2400
Boston, Massachusetts 02110
9 (617) 573-4537
[email protected]; [email protected]
10
11 For Defendants:
12 Libby Hoopes
BY: DOUGLAS S. BROOKS
13 Attorney at Law
399 Boylston Street
14 Boston, Massachusetts 02116
(617) 338-9300
15 [email protected]
16
IN ATTENDANCE:
17
Father Emmanuel Lemelson
18
19
20
21
22
23
24
25
1 I N D E X
2
WITNESS EXAMINATION
3
Nicolas Jabbour
4
BY MR. DAY 7
5
6
7 E X H I B I T S
8
9 NUMBER DESCRIPTION PAGE
10 Exhibit 39 Deposition Subpoena 7
11 Exhibit 40 Email, dated 6/18/15;
12 (SEC-Lemelson-E-0204003-
13 SEC-Lemelson-E-0204006) 32
14 Exhibit 41 Amvona Fund list of
15 investors, 4 double-sided
16 pages
17 (SEC-Lemelson-E-0495890) 35
18 Exhibit 42 Email, dated 6/16/14;
19 (SEC-Lemelson-E-0184019-
20 SE-Lemelson-E-0184020) 62
21 Exhibit 43 Email chain; 20 pages,
22 (SEC-Lemelson-E-0170203,
23 SEC-Lemelson-E-0027559,
24 SEC-Lemelson-E-0092286,
25
1 E X H I B I T S
2
3 NUMBER DESCRIPTION PAGE
4 Exhibit 43 SEC-Lemelson-E-0170204,
5 (cont.) SEC-Lemelson-E-0027562,
6 SEC-Lemelson-E-0234277,
7 SEC-Lemelson-E-0234276,
8 SEC-Lemelson-E-0027560,
9 SEC-Lemelson-E-0170210,
10 SEC-Lemelson-E-0234282,
11 SEC-Lemelson-E-0027564,
12 SEC-Lemelson-E-0092288,
13 SEC-Lemelson-E-0234279,
14 SEC-Lemelson-E-0234281,
15 SEC-Lemelson-E-0170209,
16 SEC-Lemelson-E-0234278,
17 SEC-Lemelson-E-0092306,
18 SEC-Lemelson-E-0234280,
19 SEC-Lemelson-E-0092289,
20 SEC-Lemelson-E-0170208) 74
21 Exhibit 44 Email, dated 6/12/14;
22 (SEC-Lemelson-E-0170211) 82
23 Exhibit 45 Forbes article: Why The
24 Hepatitis C Cost Cutters
25 May Have Already Lost 83
1 E X H I B I T S
2
3 NUMBER DESCRIPTION PAGE
4 Exhibit 46 Email, dated 6/12/14;
5 (SEC-Lemelson-E-0027567) 91
6 Exhibit 47 Forbes article: Why Merck
7 Just Spent $4 Billion On
8 New Drugs for Hepatitis C 91
9 Exhibit 48 Email, dated 6/12/14;
10 (SEC-Lemelson-E-0586673) 94
11 Exhibit 49 Email, dated 6/19/14;
12 (SEC-Lemelson-E-0117738-
13 SEC-Lemelson-E-0117730) 104
14 Exhibit 50 Email, dated 3/18/16;
15 (SEC-Lemelson-E-1166543),
16 with attachment: Answers to
17 Important Concerns about
18 Ligand Pharmaceuticals 109
19
20
21
22
23
24
25
1 Boston, Massachusetts
2 Monday, November 18, 2019
3 11:00 a.m. - 12:54 p.m.
4 --oOo--
5
6 (Plaintiff's Exhibit 39 was
7 marked for identification
8 prior to the start of the
9 proceedings.)
10
11 Nicolas Jabbour,
12 having been satisfactorily identified by
13 the production of his driver's license and
14 duly sworn by the Notary Public, was
15 examined and testified as follows:
16
17 EXAMINATION
18 BY MR. DAY:
19 Q. Good morning, Dr. Jabbour.
20 A. Good morning.
21 Q. My name is Al Day, and here with me is
22 Marc Jones.
23 MR. JONES: Good morning.
24 Q. We represent the Securities and
25 Exchange Commission in this matter.
29
34
85
112
113
1 C E R T I F I C A T E
8 and correct.
11
13 ________________________, ___________________.
14 (City) (State)
15
16 _________________________
NICOLAS JABBOUR
17
18
19
20
21
22
23
24
25
119
1 ERRATA SHEET
2 Deposition of: NICOLAS JABBOUR
Date taken: November 18, 2019
3 Case: SEC vs. LEMELSON, et al.
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Signed ________________________
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