10-4428-cv
Koncelik v. Savient Pharm., Inc.

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 13th day of January, two thousand twelve.

Present:         ROGER J. MINER,
                 ROSEMARY S. POOLER,
                 BARRINGTON D. PARKER,
                            Circuit Judges.

_______________________________________________________

LAWRENCE J. KONCELIK,

                 Plaintiff-Appellant,

RICHARD SAGALL, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,

                 Plaintiff,

                                   v.                                      10-4428-cv

SAVIENT PHARMACEUTICALS, INC., CHRISTOPHER G.
CLEMENT, PHILIP K. YACHMETZ, ZEBULUN D. HOROWITZ,
BRIAN J. HAYDEN, PAUL HAMELIN, ROBERT LAMM,

            Defendants-Appellees.
_______________________________________________________
For Appellant:                Marc I. Gross, Shaheen Rushd & Tamar A. Weinrib, Pomerantz
                              Haudek Grossman & Gross LLP, New York, N.Y.

For Appellees:                Peter J. Macdonald, Paul M. Winke & Brian A. Sutherland,
                              Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Daniels, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Lawrence J. Koncelik appeals from the district court’s dismissal of his lawsuit pursuant
to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the
underlying facts of the case and the issues raised on appeal.

       “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, 282 F.3d
147, 152 (2d Cir. 2002).

       Koncelik has not alleged facts that raise “a strong inference that the defendant[s] acted
with the required state of mind,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314
(2007) (internal quotation mark omitted)—that is, “conscious misbehavior or recklessness,” ECA
& Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 198 (2d
Cir. 2009).

         To survive a motion to dismiss, Koncelik need not allege that defendants knew of
statistically significant evidence that pegloticase caused cardiac-related adverse events. See
Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1324 (2011).

       Rather, the complaint must raise an inference—“cogent and at least as compelling as any
opposing inference of nonfraudulent intent”—that defendants recklessly or intentionally
disregarded the risk that a causal connection might exist between pegloticase and cardiac-related
adverse events. Tellabs, 551 U.S. at 314.

        Koncelik has not alleged facts sufficient to raise such an inference. Cf. Matrixx, 131 S.
Ct. at 1324-25 & n.15 (concluding that the complaint’s allegations—including that “Matrixx was
sufficiently concerned about the information it received that it . . . hired a consultant to review
the product,” “convened a panel of physicians and scientists,” and even issued a “misleading . . .
press release” denying a causal connection in the face of inconclusive evidence—“g[a]ve rise to
a ‘cogent and compelling’ inference that Matrixx elected not to disclose the reports of adverse
events not because it believed they were meaningless but because it understood their likely effect
on the market”).

                                                 2
Accordingly, the order of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk




                                       3
