Heather Carlson, et al. v. Ovascience, Inc ... - Class actionsecurities.stanford.edu/.../2015127_f01c_15CV14032.pdf · conneCtion with the Company's January 8, 2015 Seca ndary Offering,

Case 1:15-cv-14032-WGY Document 1-1 Filed 12/07/15 Page 1 of 29

EXHIBIT A


COPY CIVIL ACTION COVER I ixoB. L. S. I Trial Court Of M.m icltuett.Suj'eriur couri Dep.trInenI County:

SHEET l•5_ V SUFFOLK

PHILIPP HOFMAIN, HEATHER CARLSON, and CARLOS RIVAS, IndivtduaII'

and on Behalf of All Others Similarly Situated,

t1..tN.t\tF.A JAL,5 )rIL.FI'II ONE rt,!aI Ral 06

Theodore M. Hess-Mahan (UBO #557109) Hutchings, barsamian, Mandelcorn & Robinson, LLP no Cedar Street, Suite 250, Wellesley Hills, MA 02431

LThfl 431-2231 Origin Code Original Complaint

OVASCIENCE, INC., MICHELLE DIPP M.D., PH. IL, JEFFREY E.YOUNG, RICHARD II. ALDRICH, JEFFREY D. CAPELLO. MARY FISHER, MARC tIOZIN, STEPHEN KRAUSS, THOMAS MALLET, HARALD F. STOCK, PH. 0., 1. P. MORGAN

SECURITIES LIC. CREDIT SUIS5E SECURITIES (USA) LIC, LEERINIC PARTNERS LIC Aflt)C4.Y I I.., ..r1 ei,n.rs iiIlT't'r

I'rPF OF ACTION AND TRACK DESIGNATION (See reverse side) CODE NO, TYPE OF ACTION (specify) TRACK IS TIlLS A JURY CASE?' 3

he lolIwiIli; j i, a lull and det.liled st,uiiitcnt Of the facts on tvhikli plaintiff rehk In ileIerInir.eeligibihil in to The lIusintrs Litigation Stion.

PlalnElils oring tnis act ion unoer 99 ii., .LL ( a )( L J , ana .i. or me ziecuriues A CT 01 Jii (thiC ri ti cr j against

'OvaScience. certain of Ova5cience's senior executives and directors who signed the Registration Statement in

conneCtion with the Company's January 8, 2015 Seca ndary Offering, and each of the investment banks that acted as

'underwriter5 for the Offering. Plaintiffs claim violations of Sections 11, 12a)(2) and 15 of the Securities Act of 1933

resulting from materially untrue statemerns of fact or the On1iS5Ofl of material facts which rendered the Registration

Statement misleading.

A Special Track in Order s iiail be created by the Presiding jw'tice of the Dwiziess U tigz Iit}fl&tsi0rt at the Rule lo Conference .

PLEASE IDENTIFY, DY CASE NUMBER. NAME AND COUNT'i'. ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT.

I - 1 hiiebv certify that 1 have complied with the requirernenti. of Rule 5 of IhL' 5uPrensrJudicialC&tIZ,

Uniform Ruli'ti on Disputu requiring thai 1 provide n clients with iriliunut ion .ibout cOurt-connL'cWtI di*

Met hod.." SinaturL or Attorney of Rtord t.

dith r ges and

C~4 IN iN

I I—


COPY COMMONWEALTH OF MASSACHUSETTS

SUFFOLK COUNTY, ss.

HEATHER CARLSON, PHILIPP HOFMANN, and CARLOS RIVAS, Individually and on Behalf of All Others Similarly Situated,

SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT

Civil Action No.

Plaintiffs,

LIP

OVASCIENCE, INC., MICHELLE DIPP M.D., PH. D., JEFFREY E. YOUNG, RICHARD H. ALDRICH, JEFFREY D. CAPELLO, MARY FISHER, MARC KOZIN, STEPHEN KRAUSS, THOMAS MALLEY, HARALD F. STOCK, PH. D., J.P. MORGAN SECURITIES LLC, CREDIT SU1SSE SECURITIES (USA) LLC, and LEERENK PARTNERS LLC,

Defendants.

CLASS ACTION COMPLAINT

14..I

uli D IJ (=~

JURY TRIAL DEMANDED

Plaintiffs Heather Carlson ("Carlson"), Philipp Hofmann ("Hofmann"),

("Rivas") (collectively, "Plaintiffs"), individually and on behalf of all others similarly situated,

by Plaintiffs' undersigned attorneys, allege the following based upon personal knowledge as to

Plaintiffs and Plaintiffs' own acts, and upon information and belief as to all other matters based

on the investigation conducted by and through Plaintiffs' attorneys, which include, among other

things, a review of Securities and Exchange Commission ("SEC") filings made by OvaScience,

Inc. (OvaScicnce" or the "Company"), analyst and media reports, and other commentary

analysis concerning OvaScience. Plaintiffs' investigation into the matters alleged herein is

continuing and many relevant facts are known only to, or are exclusively within the custody and


iF L1J

1.


control of, the Defendants. Plaintiffs believe that substantial additional evidentiary support will

exist for the allegations set forth herein after a reasonable opportunity for formal discovery.

NATURE AND SUMMARY OF THE ACTION

1. Plaintiffs bring this action under §l I, 12(a)(2), and 15 of the Securities Act of

1933 (the "Securities Act") against (I) OvaScience; (2) certain of OvaScience's senior

executives and directors who signed the Registration Statement (as defined below) in connection

with the Company's January 8, 2015 Secondary Offering (the "Offering"), and (3) each of the

investment banks that acted as underwriters for the Offering. In the Offering, the Company and

the underwriters sold 2,300,000 shares of common stock at an offering price of $50.00 per share.

2. Defendant OvaScience is a life science company that engages in the discovery,

development, and commercialization of new treatments for infertility. The Company develops

various fertility treatment options purported to enhance egg health and revolutionize in vitro

fertilization ("IVF"). The Company's AUGMENT treatment, designed to improve the energy

and health of the woman's eggs by using mitochondria from a woman's egg precursor cells

("EggPCs"), is available in certain IVF clinics in select international regions.

3. In violation of the Securities Act, Defendants negligently issued untrue statements

of material facts and omitted to state material facts required to be stated from the Registration

Statement and incorporated Offering Materials that the Company filed with the SEC in support

of the Offering. Defendants are strictly liable for any and all material untrue statements or

omissions in the Offering Materials. Furthermore, because this case involves a Registration

Statement, Defendants also had an independent, affirmative duty to provide adequate disclosures

about adverse conditions, risks, and uncertainties. See item 303 of SEC Reg. S-K, 17 C.F.R.

§229.303(a)(3)(ii). Thus, Defendants had an affirmative duty to ensure that the Registration


ri

Statement and the materials incorporated therein disclosed material trends and uncertainties that

they knew, or should have reasonably expected, would have a materially adverse impact on

OvaScience's business. Defendants failed to fulfill this obligation as well.

4. Unbeknownst to investors, the Registration Statement's representations were

materially untrue, inaccurate, misleading, and/or incomplete because they failed to disclose that

the approximately 150 patients that had received OvaScience's AUGMENT procedure in 2014

did not achieve a pregnancy success rate that was significantly higher than the rate achieved

without the Company's AUGMENT procedure. Accordingly, the price of the Company's shares

was artificially and materially inflated at the time of the Offering.

5. Unfortunately for investors, the truth concerning the nature and extent of the

problems facing the Company did not begin to emerge until the Offering was complete when, on

March 26 and 28, 2015, the Company reported results of IVF clinics utilizing the AUGMENT

procedure. On March 26, 2015, it was disclosed that of the 26 woman who received the

AUGMENT treatment in Canada, nine woman achieved a pregnancy, a success rate of

approximately 35%. On March 28, 2015, it was disclosed that of the eight woman who received

the AUGMENT treatment in Turkey, two achieved a pregnancy, a success rate of 25%. These

success rates were comparable to the success rate achieved for woman using IVF without

AUGMENT. For example, according to the Centers for Disease Control and Prevention

(CDC"), in 2012, of the women studied who were 35 and under who failed two prior IVF

treatment cycles and received IVF with fresh non-donor eggs or embryos, 33% were expected to

deliver a live birth.

6. Market participants highlighted the disappointing results associated with the

AUGMENT treatment. For example, on March 27, 2015, Leerink Partners LLC analysts Gena

3


(1

Wang, Ph.D., CFA and Howard Liang, Ph.D., stated that AUGMENT's "[o]verall pregnancy rate

appears less robust with a different denominator" and "the magnitude of AUGMENT benefit is

unclear given no clear benchmarks and lack of standardized metrics."

7. On March 30, 2015, Andrew S. Fein, H.C. Wainwright & Co. analyst, questioned

the Company's AUGMENT data pregnancy rate calculation stating that "the data raised

interesting questions: (1) the use of embryo transfer as the denominator in calculating success

rates.. . ." Fein further explained that an alternative representation of the data would result in a

35% success rate rather than the 53% success rate declared by OvaScience. In addition, this

method is utilized by the Society for Assisted Reproductive Technology ("SART").

8. Following news of the AUGMENT results, shares of OvaScience fell from $48.29

to $31.15 over four days of trading, March 26 - April 1, or over 35%.

9. On April 2, 2015, Oppenheimer analyst Rohit Vanjani, opined that "[s]hares of

OvaScience have traded down over 40% over the last week" because investors were stuck on one

metric, AUGMENT's reported pregnancy rate. Vanjani also stated that "[w]e certainly

understand why investors have put the pregnancy rate metric in focus. Investors are still trying to

understand if the AUGMENT technology works and if it will get adopted, and that metric is

undoubtedly important."

10. Then, on April 6, 2015, the Southern Investigative Reporting Foundation

("SIRF") published an article that challenged the reported 53% clinical pregnancy rate observed

from the Canadian physician's data and countered that "26 women got the treatment

(AUGMENT) and, of them, 7 were able to successfully maintain a pregnancy for just under a 27

percent success rate." Additionally, the SIRF article asserted that the AUGMENT procedure

data presented did not achieve a significant success rate of clinical pregnancies compared to

4


previous rates achieved without the Company's AUGMENT procedure (rates provided by the

CDC). On this news, the Company's shares fell from $35.06 on April 2 to $29.59 on April 7, a

drop of over 15%.

11. The stock has plummeted by over 77% since its Offering. As of October 8, 2015,

the last trading day before this complaint was filed, the Company's shares closed at $11.25 per

share. For all of the claims stated herein, Plaintiffs expressly exclude any allegation that could

be construed as alleging fraud or intentional or reckless misconduct. Plaintiffs' claims are based

solely on claims of strict liability under the Securities Act. By this action, Plaintiffs, on behalf of

themselves and the other Class members who also acquired the Company's shares pursuant or

traceable to the Offering, now seek to obtain a recovery for the damages they have suffered as a

result of Defendants' violations of the Securities Act, as alleged herein.

JURISDICTION AND VENUE

12. This Court has original jurisdiction pursuant to Mass. Gen. Laws Ann. Ch. 212, §3

and Section 22 of the federal Securities Act, 15 U.S.C. §77v. The action is for money damages

and there is no reasonable likelihood that recovery by the plaintiff class will be less than or equal

to $25,000. In addition, Defendants' principal place of business is located in the Commonwealth

of Massachusetts, and many of the Defendants have offices in Massachusetts.

13. This action is not removable. The claims alleged herein arise under §l1,

12(a)(2), and 15 of the Securities Act. See 15 U.S.C. §77k, 771(a)(2), and 77o. Section 22 of the

Securities Act, 15 U.S.C. §77v, expressly states that "[c]xcept as provided in [section 16(c)], no

case arising under this subchapter and brought in any State court of competent jurisdiction shall

be removed to any court of the United States." Section 16(c) refers to "covered class actions

brought in any State court involving a covered security, as set forth in subsection (b);" and


subsection (b) of Section 16, in turn, includes within its scope only covered class actions "based

upon the statutory or common law of any State or subdivision thereof." See 15 U.S.C. §77p. This

is an action asserting only federal law claims. Thus, this action is not removable to federal court.

14. This Court has personal jurisdiction over each of the Defendants, because they are

either citizens of the Commonwealth of Massachusetts and/or the claims and allegations asserted

herein arise from conduct and actions taken by the Defendants which occurred within the

Commonwealth of Massachusetts, including the operations of OvaScience and various Board

meetings, such that due process of law will not be offended by this Court's exercise of personal

jurisdiction over each of the Defendants. See Mass. Gen. Laws Ann. Ch. 223 A, §3.

15. Moreover, pursuant to Superior Court Administrative Directive No. 09-1,

Plaintiffs are seeking admission into the Business Litigation Section of the Massachusetts

Superior Court based on the fact that the litigation involves claims relating to liability of officers

and directors of a publicly traded company headquartered in the Commonwealth.

16. Venue is proper pursuant to Mass. Gen. Laws Ch. 223, §1, 8 because many of

the Defendants have places of business in Middlesex County, OvaScience has its principal place

of business located within Middlesex County, and numerous actions relating to the claims at

issue in this action occurred within this Court's venue, including the preparation and

dissemination of the materially inaccurate, misleading, and incomplete Registration Statement

and Prospectus (which were prepared by Defendants, or with their participation, acquiescence,

encouragement, cooperation, and/or assistance) which occurred in whole or in substantial part in

this county.

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PARTIES

A. Plaintiffs

17. Plaintiff Heather Carlson purchased shares of the Company's common stock

pursuant and/or traceable to the untrue and misleading Registration Statement and was damaged

thereby. Between the date of the Offering and the filing of this complaint, Carlson purchased 39

shares at $50.68 on January 14, 2015.

18. Plaintiff Philipp Hofmann purchased shares of the Company's common stock

pursuant and/or traceable to the untrue and misleading Registration Statement and was damaged

thereby. Between the date of the Offering and the filing of this complaint, Hofmann purchased

823 shares at $42.1 1 on February 5, 2015; 1,515 shares at $32.92 on April 10, 2015; and 14

shares at $31.83 on April 10, 2015.

19. Plaintiff Carlos Rivas purchased shares of the Company's common stock pursuant

and/or traceable to the untrue and misleading Registration Statement and was damaged thereby.

Between the date of the Offering and the filing of this complaint, Rivas purchased 120 shares at

$41.49 on March 9, 2015; 24 shares at $40.01 on March 30, 2015; 90 shares at $31.96 on

April 1, 2015; 116 shares at $25.67 on April 30, 2015; 116 shares at $24.32 on April 30, 2015;

180 shares at $27.47 on August 6, 2015; and 180 shares at $25.60 on August 7, 2015.

B. Defendants

20. Defendant OvaScience is a global fertility company. The Company is focused on

the discovery, development, and commercialization of new fertility treatments based on egg

precursor cells or EggPCs, which are immature egg cells found in the protective outer layer of a

woman's own ovaries. The Company was formerly known as Ovastem, Inc. and changed its

name to OvaScience, Inc. in May 2011. OvaScience, Inc. was founded in 2011 and is

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headquartered in Cambridge, Massachusetts. Its shares are listed and trade on the NASDAQ

under the ticker symbol "OVAS."

21. Defendant Michelle Dipp M.D., Ph.D. ("Dipp") was, at all relevant times, the

Chief Executive Officer ("CEO"), President, and director of the Company. Defendant Dipp

signed or authorized the signing of the Registration Statement.

22. Defendant Jeffrey E. Young ("Young") was, at all relevant times, Chief Financial

Officer ("CFO") and Treasurer (Principal Financial Officer and Principal Accounting Officer).

Defendant Young signed or authorized the signing of the Registration Statement.

23. Defendant Richard H. Aldrich ("Aldrich") was, at all relevant times, a director of

the Company. Defendant Aldrich signed or authorized the signing of the Registration Statement.

24. Defendant Jeffrey D. Capello ("Capello") was, at all relevant times, a director of

the Company. Defendant Capello signed or authorized the signing of the Registration Statement.

25. Defendant Mary Fisher ("Fisher") was, at all relevant times, a director of the

Company. Defendant Fisher signed or authorized the signing of the Registration Statement.

26. Defendant Marc Kozin ("Kozin") was, at all relevant times, a director of the

Company. Defendant Kozin signed or authorized the signing of the Registration Statement.

27. Defendant Stephen Kraus ("Klaus") was, at all relevant times, a director of the

Company. Defendant Kraus signed or authorized the signing of the Registration Statement.

28. Defendant Thomas Malley ("Malley") was, at all relevant times, a director of the

Company. Defendant Malley signed or authorized the signing of the Registration Statement.

29. Defendant Harald F. Stock, Ph.D. ("Stock") was, at all relevant times, a director

of the Company. Defendant Stock signed or authorized the signing of the Registration

Statement.

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30. Defendants Dipp, Young, Aldrich, Capello, Fisher, Kozin, Kraus, Malley, and

Stock are collectively referred to herein as the "Individual Defendants."

31. The Individual Defendants each participated in the preparation of and signed (or

authorized the signing of) the Registration Statement. Defendant OvaScience and the Individual

Defendants who signed (or authorized the signing of) the Registration Statement are strictly

liable for the materially untrue and misleading statements incorporated into the Registration

Statement. The Individual Defendants, because of their positions with the Company, possessed

the power and authority to control the contents of OvaScience's reports to the SEC, press

releases, and presentations to securities analysts, money and portfolio managers, and institutional

investors, i.e., the market.

32. Defendant J.P. Morgan Securities LLC ("J.P. Morgan") was an underwriter for

the Offering. In the Offering, J.P. Morgan agreed to purchase 977,500 OvaScience shares. J.P.

Morgan acted as lead book-running manager of the Offering and as representative of the

underwriters.

33. Defendant Credit Suisse Securities (USA) LLC ("Credit Suisse") was an

underwriter for the Offering. In the Offering, Credit Suisse agreed to purchase 747,500

OvaScience shares. Credit Suisse acted as ajoint book-runner in the Offering.

34. Defendant Leerink Partners LLC ("Leerink") was an underwriter for the Offering.

In the Offering, Leerink agreed to purchase 575,000 OvaScience shares.

35. Defendants J.P. Morgan, Credit Suisse, and Leerink are referred to collectively as

the "Underwriter Defendants." The Underwriter Defendants each served as a financial advisor

for and assisted in the preparation and dissemination of the Company's materially untrue and

misleading Registration Statement and Prospectus.

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36. The Underwriter Defendants are primarily investment banking houses which

specialize, inter a/ia, in underwriting public offerings of securities. As the underwriters of the

Offering, the Underwriter Defendants earned lucrative underwriting fees as a result of their

participation in the Offering.

37. In addition, the Underwriter Defendants met with potential investors and

presented highly favorable but materially incorrect and/or materially misleading information

about the Company, its business, products, plans, and financial prospects, and/or omitted to

disclose material information required to be disclosed under the federal securities laws and

applicable regulations promulgated thereunder.

38. Representatives of the Underwriter Defendants also assisted the Company and the

Individual Defendants in planning the Offering. They also purported to conduct an adequate and

reasonable investigation into the business, operations, products, and plans of the Company, an

undertaking known as a "due diligence" investigation. During the course of their "due

diligence," the Underwriter Defendants had continual access to confidential corporate

information concerning the Company's business, financial condition, products, plans, and

prospects.

39. In addition to having unlimited access to internal corporate documents, the

Underwriter Defendants and/or their agents, including their counsel, had access to the

Company's lawyers, management, directors, and top executives to determine: (I) the strategy to

best accomplish the Offering; (ii) the terms of the Offering, including the price at which the

Company's common stock would be sold; (iii) the language to be used in the Registration

Statement; (iv) what disclosures about the Company would be made in the Registration

Statement; and (v) what responses would be made to the SEC in connection with its review of

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the Registration Statement. As a result of those constant contacts and communications between

the Underwriter Defendants' representatives and the Company's management and top

executives, at a minimum, the Underwriter Defendants were negligent in not knowing of the

Company's undisclosed existing problems and plans and the materially untrue statements and

omissions contained in the Registration Statement as detailed herein.

40. The Underwriter Defendants caused the Registration Statement to be filed with

the SEC and to be declared effective in connection with the offer and sales of the Company's

shares pursuant and/or traceable to the Offering and relevant offering materials, including to

Plaintiffs and the Class.

41. Pursuant to the Securities Act, the Underwriter Defendants are liable for the

untrue and misleading statements in the Offering's Registration Statement and Prospectus. The

Underwriter Defendants' negligent due diligence investigation was a substantial factor leading to

the harm complained of herein.

SUBSTANTIVE ALLEGATIONS

I. OVASCIENCE AND ITS PRIMARY FERTILITY TREATMENT, AUGMENT

42. OvaScience is a life science company focused on the discovery, development, and

commercialization of new fertility treatments. The Company's patented technology is based on

the discovery of egg precursor cells, EggPCs, which are found in the ovaries. By applying

proprietary technology to identify and purify EggPCs, OvaScience is developing potential next

generation IVF treatments. The Company currently has three fertility treatments in

development: AUGMENT, which aims to improve egg quality and increase the success of IVF;

OvaPrime, designed to boost a woman's egg reserve using her own EggPCs; and OvaTure,

Ii


I,

which seeks to create mature fertilizable eggs from a woman's own EggPCs without the need for

hormone injections.

43. Prior to the discovery of EggPCs, JVF specialists used mitochondria from other

sources (donor eggs) to supplement the energy needs in the egg. These doctors saw an

improvement in embryo development and IVF success rates. The Company's AUGMENT

fertility treatment is specifically designed to improve egg health by supplementing a

mitochondrial deficiency which may, in turn, offer the potential for enhanced IVF. With the

AUGMENT treatment, energy-producing mitochondria from a patient's own EggPCs are added

to the patient's mature eggs during the IVF process to supplement the existing mitochondria.

H. OVASCIENCE SUSPENDS AUGMENT U.S. ENROLLMENT

44. On September 10, 2013, in a press release entitled "OvaScience Provides Update

on AUGMENT," the Company announced that it "has chosen to suspend enrollment of

AUGMENT in the U.S. while moving forward with its plans for enrollment outside of the U.S."

The Company previously had received an "untitled" letter on September 6, 2013 from the Food

and Drug Administration ("FDA"), advising that the Company should file an Investigational

New Drug ("IND") application required for drug candidates. The IND application would mean

the trial would need to meet much more stringent approval standards. Instead of conforming to

the more stringent standards for approval, OvaScience took its IVF clinics outside of the U.S.

45. On February 12, 2014, the Company announced the issuance of two United States

patents covering its AUGMENT fertility treatment. The newly issued patents broadly cover the

AUGMENT process, including: IVF by AUGMENT; preparing an egg for use with assisted

reproductive technologies ("ART'); and increasing the energy-generating capacity of an egg by

AUGMENT.

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46. On November 10, 2014, OvaScience announced the filing of a Registration

Statement on Form S-3 with the SEC for a proposed offering of shares of its common stock. On

November 21, 2014, the Registration Statement was declared effective with the SEC.

47. On December 17, 2014, the Company announced that the "AUGMENT fertility

treatment is available in select in vitro fertilization (IVF) clinics in Canada, the United Kingdom

(UK), the United Arab Emirates (UAE) and Turkey." The Company also stated it "exceeded its

AUGMENT patient treatment goal with more than 150 patients now receiving the treatment.

The Company has started transitioning some of the IVF clinics to commercial centers."

48. On January 8, 2015, the Company issued SEC Form 424B5, a Prospectus

Supplement that announced the pricing of its Offering of 2,300,000 shares of common stock at

an Offering price of $50.00 per share. Underwriter Defendants J.P Morgan and Credit Suisse

acted as joint book-runners and Leerink acted as a co-manager for the Offering.

49. On January 13, 2015, the Company announced the closing of the Offering,

including the exercise in full by the underwriters of their option to purchase an additional

345,000 shares of common stock at the public offering price of $50.00 per share. The exercise of

the underwriters' option brought the total number of shares of common stock sold by

OvaScience to 2,645,000 shares and increased the total gross proceeds raised in the Offering to

$132.3 million, before deducting the underwriting discounts, commissions, and estimated

expenses.

III. THE OFFERING AND THE COMPANY'S MATERIALLY UNTRUE AND INCOMPLETE REGISTRATION STATEMENT AND PROSPECTUS

50. The Registration Statement omitted material information regarding the poor

results among women who participated in the AUGMENT fertility treatment, particularly, that

the Company's AUGMENT procedure did not achieve a significant success rate of clinical

13


pregnancies compared to previous rates achieved without the Company's AUGMENT

procedure.

51. Therefore, the Registration Statement was negligently prepared and, as a result,

contained untrue statements of material facts or omitted to state other facts necessary to make the

statements made not misleading, and was not prepared in accordance with the rules and

regulations governing its preparation.

52. The Registration Statement emphasized that its AUGMENT treatment had been

launched in select international clinics as early as 2014. The Registration Statement states the

following in pertinent part:

The A UGMENT treatment

In 2014, we launched the AUGMENT treatment in select international IVF clinics through AUGMENT Centers of Excellence, or ACE clinics, in Canada, the United Kingdom, Turkey and the United Arab Emirates.

53. The above statements were materially untrue and misleading and omitted material

information because the Company failed to disclose that OvaScience's AUGMENT procedure

did not achieve a significant success rate of clinical pregnancies compared to previous rates

achieved without the Company's AUGMENT procedure.

54. In addition, pursuant to Item 303 of Regulation S-K (17 C.F.R. §229.303), and the

SEC's related interpretive releases thereto, including any known trends, issuers are required to

disclose events or uncertainties that have had or are reasonably likely to cause the registrant's

financial information not to be indicative of future operating results. Any adverse events and/or

uncertainties associated with the success rate of the AUGMENT treatment were reasonably

likely to have a material impact on OvaScience's profitability, and, therefore, were required to be

(but were not) disclosed in the Registration Statement under Item 303.

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THE TRUTH BEGINS TO EMERGE

55. Unfortunately for investors, however, it was not until approximately three months

after the Offering that the investors first began to learn the truth concerning the success rate of

the Company's AUGMENT fertility treatment. When the results were fully disclosed in press

releases on March 26, 2015, and March 28, 2015, the "truth was revealed" and the market

responded to the dual releases.

56. On March 26, 2015, the Company issued a press release entitled "OvaScience

AUGMENT Fertility Treatment Shows Improved Pregnancy Rates in Women with Prior Failed

IVF Cycles." The Toronto clinic tested the use of AUGMENT in 28 women under the age of 40

who had failed one or more IVF procedures, many due to poor embryo quality. The Company

stated that "ti] 26 women who received the AUGMENT treatment, there were 9 clinical

pregnancies out of 17 embryo transfers (53%)." The press release stated the following, in

pertinent part:

Robert F. Casper, M.D., F.R.C.S.(C), Medical Director of WART Fertility Partners of Toronto, Canada, a mitochondrial expert and one of the first IVF specialists to use the AUGMENT treatment in clinical practice, reported initial patient experiences in women whose ages ranged from 28 to 40 years and who had one to three previous failed IVF cycles, often with poor embryo quality. In 26 women who received the AUGMENT treatment, there were 9 clinical pregnancies 0111 of 17 embryo transfers (53%).

"We are impressed with the pregnancy rates that we have seen pvith the A UGMENT treatment In women who tried IVF multiple limes and never had a successful pregnancy," said Dr. Casper. "We are encouraged by these results and believe the AUGMENT treatment may offer a much, needed fertility trealniel:t for women who are seeking new options. We Look forward to continuing to report our clinical experiences in a wide range of patients who may benefit from the AUGMENT treatment."

The results reported in the poster presentation represent experiences from a small number of patients with different diagnoses, ages and prior !VF history. As of this reporting, pregnancy rates across IVF clinics that offer the AUGMENT treatment currently range from 25% - 53%, which includes clinics that are treating some of the more challenging Infertility patients. OvaScience is collecting AUGMENT patient experience in a first-of-its-kind international registry, and anticipates sharing information from a broader patient experience when it is available.

15


[Emphasis added.]

57. On March 27, 2015, according to Leerink analysts Gena Wang, Ph.D., CFA and

Howard Liang, Ph.D., AUGMENT's "[o]verall pregnancy rate appears less robust with a

different denominator" and "the magnitude of AUGMENT benefit is unclear given no clear

benchmarks and lack of standardized metrics."

58. On March 28, 2015, the Company issued a press release entitled "Additional

Clinical Reports of OvaScience AUGMENT Fertility Treatment Show Improved Pregnancy

Rates in Women with Multiple Prior Failed IVF Cycles." The Turkey clinic tested the use of

AUGMENT "in eight women whose ages ranged between 27 and 41 years with three or more

IVF failures and poor egg and embryo quality. In eight women who received the AUGMENT

treatment, there were two clinical pregnancies out of eight embryo transfers (25%)." The press

release stated the following:

Kutluk Oktay, M.D., F.A.C.O.G, of Gen-art IVF in Ankara, Turkey, and one of the initial IVF specialists to use the AUGMENT treatment in clinical practice, presented initial clinical experience in eight women whose ages ranged between 27 and 41 years with three or more IVF failures and poor egg and embryo quality. In eight women who received the AUGMENT treatment, there were two clinical pregnancies 0111 of eight embryo transfers (25%). Most notably, the two pregnancies occurred with single embryo transfers in women aged 34 and 41 who had previously failed to become pregnant following seven and three IVF cycles, respectively. One patient has an ongoing clinical pregnancy.

[Emphasis added.]

59. On March 30, 2015, Andrew S. Fein, H.C. Wainwright & Co. analyst, questioned

the Company's AUGMENT data pregnancy rate calculation stating that "the data raised

interesting questions regarding: (I) the use of embryo transfer as the denominator in calculating

success rates . . ." Fein further explained that an alternative representation of the data would

16


result in a 35% success rather than the 53% success rate declared, and this method is utilized by

SARI. Fein stated the following:

Success rates for AUGMENT were presented as a fraction of the total number of embryo transfers, reporting a 53% pregnancy rate (9 pregnancies of 17 embryo transfers) for the Canadian site and 25% (2 pregnancies of 8 embryo transfers) at the site in Turkey. However, we note that an alternative representation of me data would have included all IVF cycles as the denominator (9 pregnancies from 26 cycles; 35% success rate). Due to the nature of the technology (requiring additional manipulation of the oocyte at time of ICS!), the denominator could have reflected those patients that failed fertilization and failed to produce viable blastocysts. This method Is not wit/soul precedent: we note that The Society for Reproductive Technology (SART, which represents tile majority of IVF clinics In the US, reports IVF pregnancy rates as a percentage of JVF cycles, which are further delineated by fresh and frozen transfers.

[Emphasis added.)

60. On this news, OvaScience shares fell from $48.29 to $31.15 over four days of

trading, March 26 - April 1, or over 35%.

61. On April 2, 2015, Oppenheimer analyst Rohit Vanjani, opined that "[s]hares of

OvaScience have traded down over 40% over the last week" because investors were stuck on one

metric, AUGMENT's reported pregnancy rate. Vanjani also added that "[m]uch has been made

about the correct denominator to use in calculating the AUGMENT pregnancy rate. . ." and

"[w]e certainly understand why investors have put the pregnancy rate metric in focus. Investors

are All trying to understand if the AUGMENT technology works and if it will get adopted, and

that metric is undoubtedly important."

62. On April 6, 2015, SIRF published an article "Irreproducible Results, Inc." The

SIRF article challenged the reported 53% clinical pregnancy rate observed from the Canadian

physician's data and countered that "26 women got the treatment (4UGMENT) and, of them, 7

were able to successfully maintain a pregnancy for just under a 27 percent success rate."

[Emphasis added.]

17


C

63. In addition, the SIRF article suggests that the AUGMENT procedure data

presented did not achieve a significant success rate of clinical pregnancies compared to previous

rates achieved without the Company's AUGMENT procedure (rates provided by the CDC). The

article stated the following, in pertinent part:

the Centers for Disease Control's archive of assisted reproductive technology statistics suggests at least a broad idea of what the press release's reported effects mean.

The median age of the women receiving OvaScience's treatment in the Toronto clinic was 33 years old, with an average of two previous IVF treatment cycle failures.

According to the CDC in 2012 - the most recent year available for data - of the women studied who were 35 and under who failed two prior IVF treatment cycles and received IVF with fresh non-donor eggs or embryos, 33 percent were expected to deliver a live birth.

[Emphasis added.]

64. Other analyst reports opined that the SIRF article was partly responsible for

investor doubt that led to material drops in the price of OvaScience stock. As a result, the

Company's shares fell from $35.06 on April 2 to $29.59 on April 7, a drop of over 15%.

65. Then, on September 28, 2015, the Company issued a press release entitled

"OvaScience Provides Update on Corporate Goal for AUGMENT Treatment" announcing "the

Company does not expect to meet the 2015 goal of 1,000 AUGMENT treatment cycles."

Previously, the Company was guiding for investors to expect 1,000 AUGMENT treatment cycles

this year. OvaScience blamed the shortfall on marketing and acquisitions activity within clinics

offering AUGMENT, stating "we recently became aware of M&A activities in our key clinics.

We believe these factors will prevent us from achieving our goal as we had anticipated the

majority of AUGMENT treatment cycles would initiate in the fourth quarter."

18


66. On this news, the Company's shares fell from $14.52 on September 28 to $8.57

on September 29, a drop of over 40%.

PLAINTIFFS' CLASS ACTION ALLEGATIONS

67. Plaintiffs bring this action as a class action on behalf of a Class consisting of all

those who purchased the Company's common stock pursuant or traceable to the Company's

Offering and Registration Statement and who were damaged thereby (the "Class"). Excluded

from the Class are Defendants; the officers and directors of the Company at all relevant times;

members of their immediate families, and their legal representatives, heirs, successors, or

assigns; and any entity in which Defendants have or had a controlling interest.

68. The members of the Class are so numerous that joinder of all members is

impracticable. While the exact number of Class members is unknown to Plaintiffs at this time

and can only be ascertained through appropriate discovery, Plaintiffs believe that there are

thousands of members of the proposed Class. The members of the proposed Class may be

identified from records maintained by the Company or its transfer agent and may be notified of

the pendency of this action by mail, using customary forms of notice that are commonly used in

securities class actions.

69. Plaintiffs' claims are typical of the claims of the members of the Class as all

members of the Class are similarly affected by Defendants' wrongful conduct.

70. Plaintiffs will fairly and adequately protect the interests of the members of the

Class and have retained counsel competent and experienced in class and securities litigation.

71. Common questions of law and fact exist as to all members of the Class and

predominate over any questions solely affecting individual members of the Class. Among the

questions of law and fact common to the Class are:


a. whether the federal securities laws were violated by Defendants'

acts as alleged herein;

b. whether the Prospectus and Registration Statement contained

materially false and misleading statements and omissions; and

C. to what extent Plaintiffs and members of the Class have sustained

damages and the proper measure of damages.

72. A class action is superior to all other available methods for the fair and efficient

adjudication of this controversy since joinder of all members is impracticable. Furthermore, as

the damages suffered by individual Class members may be relatively small, the expense and

burden of individual litigation make it impossible for members of the Class to individually

redress the wrongs done to them. There will be no difficulty in the management of this action as

a class action.

Fl RSLCLAIM Violations of §11 of the Securities Act

Against All Defendants

73. Plaintiffs repeat and reallege each and every allegation contained above as if fully

set forth herein.

74. This Claim is brought pursuant to § 11 of the Securities Act, 15 U.S.C. §77k, on

behalf of the Class, against each of the Defendants.

75. The Registration Statement was inaccurate and misleading, contained untrue

statements of material facts, omitted facts necessary to make the statements made therein not

misleading, and omitted to state material facts required to be stated therein.

20

- Case 1:15-cv-14032-WGY Document 1-1 Filed 12/07/15 Page 24 of 29

M

76. The Company is the issuer of the securities purchased by Plaintiffs and the Class.

As such, the Company is strictly liable for the materially untrue statements contained in the

Registration Statement and the failure of the Registration Statement to be complete and accurate.

77. The Individual Defendants each signed the Registration Statement. As such, each

is strictly liable for the materially inaccurate statements contained in the Registration Statement

and the failure of the Registration Statement to be complete and accurate, unless they are able to

carry their burden of establishing an affirmative "due diligence" defense. The Individual

Defendants each had a duty to make a reasonable and diligent investigation of the truthfulness

and accuracy of the statements contained in the Registration Statement, and to ensure that they

were true and accurate, that there were no omissions of material facts that would make the

Registration Statement misleading, and that the document contained all facts required to be

stated therein. In the exercise of reasonable care, the Individual Defendants should have known

of the material misstatements and omissions contained in the Registration Statement and also

should have known of the omissions of material fact necessary to make the statements made

therein not misleading. Accordingly, the Individual Defendants are liable to Plaintiffs and the

Class.

78. The Underwriter Defendants each served as underwriters in connection with the

Offering. As such, each is strictly liable for the materially inaccurate statements contained in the

Registration Statement and the failure of the Registration Statement to be complete and accurate,

unless they are able to carry their burden of establishing an affirmative "due diligence" defense.

These Defendants each had a duty to make a reasonable and diligent investigation of the

truthfulness and accuracy of the statements contained in the Registration Statement. They had a

duty to ensure that they were true and accurate, that there were no omissions of material facts

21


that would make the Registration Statement misleading, and that the documents contained all

facts required to be stated therein. In the exercise of reasonable care, the Underwriter

Defendants should have known of the material misstatements and omissions contained in the

Registration Statement and also should have known of the omissions of material facts necessary

to make the statements made therein not misleading. Accordingly, each of the Underwriter

Defendants is liable to Plaintiffs and the Class.

79. By reasons of the conduct herein alleged, each Defendant violated §11 of the

Securities Act.

80. Plaintiffs acquired the Company's common stock pursuant or traceable to the

Registration Statement, and without knowledge of the untruths and/or omissions alleged herein.

Plaintiffs sustained damages, and the price of the Company's common stock declined

substantially due to material misstatements in the Registration Statement.

81. This claim was brought within one year after the discovery of the untrue

statements and omissions and within three years of the date of the Offering.

82. By virtue of the foregoing, Plaintiffs and the other members of the Class are

entitled to damages under § 11 as measured by the provisions of § 11(e), from the Defendants and

each of them, jointly and severally.

SECOND CLAIM Violations of §12(a)(2) of the Securities Act

Against All Defendants


set forth herein.

84. Defendants were sellers, offerors, and/or solicitors of purchasers of the

Company's securities offered pursuant to the Offering. Defendants issued, caused to be issued,

and signed the Registration Statement in connection with the Offering. The Registration

22


Statement was used to induce investors, such as Plaintiffs and the other members of the Class, to

purchase the Company's shares.

85. The Registration Statement contained untrue statements of material facts, omitted

to state other facts necessary to make the statements made not misleading, and omitted material

facts required to be stated therein. Defendants' acts of solicitation included participating in the

preparation of the materially untrue and incomplete Registration Statement.

86. As set forth more specifically above, the Registration Statement contained untrue

statements of material facts and omitted to state material facts necessary in order to make the

statements, in light of circumstances in which they were made, not misleading.

87. Plaintiffs and the other Class members did not know, nor could they have known,

of the untruths or omissions contained in the Registration Statement.

88. The Defendants were obligated to make a reasonable and diligent investigation of

the statements contained in the Registration Statement to ensure that such statements were true

and that there was no omission of material fact required to be stated in order to make the

statements contained therein not misleading. None of the Defendants made a reasonable

investigation or possessed reasonable grounds for the belief that the statements contained in the

Registration Statement were accurate and complete in all material respects. Had they done so,

these Defendants could have known of the material misstatements and omissions alleged herein.

89. This claim was brought within one year after discovery of the untrue statements

and omissions in the Registration Statement and within three years after the Company's shares

were sold to the Class in connection with the Offering.

23


a

THIRD CLAIM For Violations of §15 of the Securities Act

Against the Individual Defendants


set forth herein.

91. The Individual Defendants were controlling persons of the Company within the

meaning of §15 of the Securities Act. By reason of their ownership interest in, senior

management positions at, and/or directorships held at the Company, as alleged above, these

Defendants invest in, individually and collectively, had the power to influence, and exercised the

same, over the Company to cause it to engage in the conduct complained of herein.

92. By reason of such wrongful conduct, the Individual Defendants are liable

pursuant to § 15 of the Securities Act. As a direct and proximate result of the wrongful conduct,

Class members suffered damages in connection with their purchases of the Company's shares.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment as follows:

A. Declaring this action to be a proper class action and certifying Plaintiffs as Class

representatives;

B. Awarding Plaintiffs and the other members of the Class compensatory damages;

C. Awarding Plaintiffs and the other members of the Class rescission on their

§l2(a)(2) claims;

24


I). Awarding Plaintiffs and the oilier members of the Class pre-judgment and post-

judgment interest, as well as reasonable attorneys' lcs, expert witness fees, and other costs and

disbursements: and

F. Awarding Plaintiffs and the other members of the Class such other and further

relief as the Court may deem just and proper.

JURY TRIAL DEMANDED

Plaintiffs hereby demand a trial by jury.

l)M1iD: October 9. 2015 HUTCH INGS J3ARSAMIAN MANDELCORN & ROBINSON, LLP

110 Cedar Street gtal~~O, 109)

Wellesley Hills. MA 02481 Telephone: 781-207-1717 Facsimile: 781-431-8726 Email: Ihess-mahan@hutch ingsbarsamian.corn

Ihonias L. Laughlin Joseph P. Guglielmo (B!30# 671410) Joseph V. Halloran SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Chrysler Building 405 Lexington Avenue. 40th Floor New York, NY 10174 Telephone: 212-223-6444 Facsimile: 212-223-6334 Email: tlaughlinscou-scou.com

jgugl [email protected] j [email protected]

David R. Scott SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 156 South Main Street P.O. Box 192 Colchestcr, CT 06415 Telephone: 860-537-5537 Facsimile: 860-537-4432 Email: david.scott@scou-scott,corn

25


Jesse Strauss STRAUSS LAW PLLC 305 Broadway, 7th Floor New York, NY 10007 Telephone: 212-822-1496 Email: jessestrausslawplle.com

Attorneysfor Plain ifff Heather car/son, Philipp Hofmann, and Carlos Rivas

Heather Carlson, et al. v. Ovascience, Inc ... - Class actionsecurities.stanford.edu/.../2015127_f01c_15CV14032.pdf · conneCtion with the Company's January 8, 2015 Seca ndary Offering,

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