One of the most distinct securities class action lawsuit filing phenomena since the outbreak of COVID-19 in the U.S. in March 2020 has been the surge of pandemic-related securities suits, particularly during the period 2020 through 2022. This securities suit filing trend even continued into 2023, although the incidence of COVID-related suits dwindled during the year. However, in an unexpected development, a plaintiff shareholder has now filed yet another COVID-related securities suit against BioNTech, the German biotechnology company that, along with its partner Pfizer, was lionized for helping to develop a COVID-19 vaccine. The company was hit with a securities suit after its share price declined following a sizeable inventory write-off. A copy of the January 12, 2024, complaint against the company can be found here.
As has become a part of the lore surrounding the recent pandemic, in 2020, German-based biotech company and U.S.-based Pfizer worked together to co-develop an mRNA-based vaccine for COVID-19 known as Comirnaty. After the vaccine was developed and approved, it was widely distributed and the company’s fortunes soared.
As part of BioNTech’s collaboration with Pfizer, the two companies agreed to share gross profits from COVID-19 vaccine sales. Over time, COVID evolved and new variants, including the Omicron XBB 1.5 subvariant, began to develop and eventually represented the majority of COVID cases. The new securities lawsuit alleges that despite not having a version of Comirnaty approved to treat the subvariant, BioNTech continued to represent to investors that Comirnaty remained relevant and in-demand.
On October 13, 2023, Pfizer announced that due to lower-than-expected utilization of its COVID-related vaccine products, it was taking a $5.5 billion charge related to inventory write-offs. On October 16, 2023, BioNTech announced that as a result of Pfizer’s inventory write-offs, it would take a €0.9 write-off, representing half of the company’s take under the gross profit sharing agreement and reducing the company’s expected 2023 revenues. According to the subsequently filed securities lawsuit, the company’s share price declined over 6% on the news.
On January 12, 2024, a plaintiff shareholder filed a securities class action lawsuit in the Central District of California against BioNTech and certain of its directors and officers. The complaint purports to be filed on behalf of investors who purchased BioNTech securities in the U.S. March 30, 2022, and October 13, 2023.
The complaint alleges that during the class period the defendants made false or misleading statements or failed to disclose that: “(i) BioNTech overstated demand for Comirnaty and/or its commercial prospects; (ii) the Company and/or Pfizer had accumulated excess inventory of raw materials for Comirnaty, as well as COVID-19 vaccine doses adapted to other non-XBB.1.5 variants that were produced at risk; (iii) accordingly, BioNTech was at an increased risk of recording significant inventory write-offs and other charges related to Comirnaty; and (iv) as a result, Defendants’ public statements were materially false and/or misleading at all relevant times.”
The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint seeks to recover damages on behalf of the class.
It is striking that BioNTech is now the subject of a securities class action lawsuit and that the lawsuit relates to the company’s COVID vaccine. The company’s development with Pfizer of the vaccine using the mRNA technology was and remains one of the great achievements of the global pandemic. Indeed, medical scholars have called the development of the vaccine “one of the greatest accomplishments of modern medicine.”
But the development of the vaccine not only had technological and medical significance; it also had commercial significance. BioNTech rode the wave as demand for the vaccine it developed with Pfizer soared. But just as the coronavirus itself evolved and the medical circumstances underlying the pandemic changed, the commercial circumstances changed as well. The great wheel of fortune that the company rode as demand for the vaccine surged eventually turned and the company’s fortunes ebbed.
While there are probably many lessons to be told from this story, there is nothing about these changes in fortune that necessarily turn this sequence of events into securities fraud. Specifically, when the time comes for the court to assess the adequacy of the complaint’s allegations, the court is going to have to look long and hard to find anything in this complaint that even arguably would satisfy the plaintiff’s obligation to plead scienter.
All of that said, there is still the interesting fact that even at this late date, the plaintiff has filed a COVID-related securities lawsuit.
As I noted at the outset, the filing of COVID-related securities suits followed closely after the outbreak of the coronavirus in the U.S. in March 2020, and COVID-related securities suits were an important part of securities class action lawsuit filings in each of the years 2020, 2021, and 2022. Indeed, COVID-related securities suit filings continued into 2023 – according to my tally, there were nine COVID-related securities suits filed in 2023. However, the COVID-related securities suit filings dwindled as 2023 progressed; there were not COVID-related securities suits filed during 2023 after late August.
This new COVID-related securities suit is not only the first COVID-related securities suit of 2024, but also it is the first to be filed since August 2023.
By my count, there have now been a total of 72 COVID-related securities suits filed since the initial COVID outbreak in the U.S. in March 2020. Most of these lawsuits fell into one of several well-identified categories. The new lawsuit against BioNTech falls clearly falls into a relatively late-developing category involving companies who prospered at the outset of the pandemic but whose fortunes waned as the pandemic progressed and evolved. That story arc clearly describes what appears to have happened with BioNTech.
The New Year has only just begun, and it remains to be seen what patterns and trends will develop with respect to securities class action lawsuit filings during the year, but it is interesting to see that relatively long-standing patterns from recent years are still coming into play.