OPINION AND ORDER In this litigation, a consolidated putative class action brought on behalf of those who purchased or otherwise acquired Contingent Value Rights (“CVRs”) issued by Bristol-Myers Squibb Company (“BMS” or “Bristol”) as part of a merger, Plaintiffs alleged that Defendants — BMS and current or former BMS executives and directors — violated the Securities Act of 1933, the Securities Exchange Act of 1934 (the “Exchange Act”), and Securities and Exchange Commission (“SEC”) Rules promulgated thereunder. In a prior Opinion and Order, familiarity with which is presumed, the Court granted Defendants’ motion to dismiss the First Amended Complaint, finding that — among other issues — Plaintiffs had failed to plead scienter. See In re Bristol-Myers Squibb Co. CVR Sec. Litig. (“BMS I”), 658 F. Supp. 3d 220 (S.D.N.Y. 2023) (ECF No. 110). With leave of Court, see id. at 239, Plaintiffs thereafter filed the operative Second Amended Complaint (“SAC”), ECF No. 115, adding allegations in an effort to address that defect. Although the SAC includes all of the claims and most of the Defendants from the prior pleading, Plaintiffs confirm that the only claims they are still pressing are those against BMS, Dr. Giovanni Caforio, and Dr. Samit Hirawat under Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§78j(b) and 78t(a), and SEC Rule 10b-5, 17 C.F.R. §240.10b-5. Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss those claims, arguing that, among other things, Plaintiffs still do not plausibly allege scienter. See ECF No. 118. The Court agrees. Thus, and for the reasons that follow, Defendants’ motion is GRANTED, and the SAC is dismissed. BACKGROUND The following facts, taken from the SAC, documents it incorporates by reference, and matters of which the Court may take judicial notice, are construed in the light most favorable to Plaintiffs. See, e.g., Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013); ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (stating that a court may consider “legally required public disclosure documents filed with the SEC”). A. Relevant Facts BMS is a publicly traded global pharmaceutical company. SAC 63. Dr. Caforio is BMS’s Chief Executive Officer, and Dr. Hirawat is its Chief Medical Officer. Id. 13. On January 2, 2019, BMS entered into a preliminary merger agreement with Celgene Corporation (“Celgene”), another pharmaceutical company, pursuant to which each share of Celgene common stock would be exchanged for one share of BMS common stock, fifty dollars in cash, and one CVR. Id. 122; see ECF No. 120-1 (“Joint Proxy”), at 3. According to the agreement, the CVRs would trade on a stock exchange and would pay out nine dollars per CVR — $6.4 billion in total — but only if three drugs that Celgene had been developing, Liso-cel, Ide-cel, and Ozanimod (together, the “Milestone Drugs”), were approved by the FDA by certain deadlines — in the case of Liso-cel, by December 31, 2020 (the “Liso-cel Milestone Deadline”). SAC
112, 123; see also Joint Proxy 4, 217-21. If even one Milestone Drug was approved one day late, the CVRs would expire worthless. See SAC 112. Celgene’s shareholders voted to approve the merger on April 12, 2019. Id. 126. On November 20, 2019, the merger (the “Merger”) closed and the CVRs were issued. Id. 25. Celgene initiated the FDA approval process for Liso-cel before the Merger. Id. 127. After a series of setbacks and delays — the particulars of which are described in the Court’s prior Opinion and Order, see BMS I, 658 F. Supp. 3d at 227-28, and need not be repeated here — the FDA’s inspections of the two manufacturing facilities slated to produce Liso-cel were not completed until early December 2020, only weeks before the Liso-cel Milestone Deadline. Id.
