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EFiled: Apr 21 2014 05:43PTransaction ID 55330839Case No.
9563-
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ORGANOVO HOLDINGS, INC., aDelaware Corporation,
Plaintiff,
SIMEON RESEARCH, LLC, aDelaware limited liability company,
andDoes 1 through 25, inclusive,
Defendants.
CA. No.
VERIFIED COMPLAINT
Plaintiff Organovo Holdings, Inc. ("Plaintiff), by and through
its counsel,
hereby brings this Verified Complaint against Defendant Simeon
Research, LLC,and unnamed Does 1-25 (referred to herein,
collectively, as "Defendant"), and in
support thereof alleges as follows:NATURE OF THE CASE
1. Defendant has undertaken a smear campaign against Plaintiff
by
reporting and disseminating to the public a series of false,
misleading andinaccurate reports and statements regarding
Plaintiffs viability and the viability of
Plaintiffs products. Defendant's false, misleading and
inaccurate reports were
made for the purpose of injuring Plaintiff and reducing the
value of Plaintiff as a
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company. Defendant may have also sought to injure Plaintiff for
its own pecuniary
gain in the form of deriving profits from "short selling"
Plaintiffs securities byDefendant or others that would result from
any decrease in Plaintiffs stock trading
price.2. Defendant's conduct has caused substantial injury to
Plaintiff in the
form of tarnished reputation, interference with Plaintiffs
relationships with clients,
vendors, and current and prospective investors, among others,
and it will result in
continued and irreparable harm to Plaintiff if it does not stop.
Defendant's conduct
therefore gives rise to claims for libel, libel per se, and
intentional interference
with prospective economic advantage.
3. As a result, Plaintiff seeks a final order: (i) permanently
enjoining
Defendant from publishing or making any false and defamatory
statements
regarding Plaintiff; (ii) compelling Defendants to immediately
remove all false and
defamatory statements regarding Plaintiff from Defendant's
website and any socialmedia accounts maintained by Defendant; and
(iii) awarding damages to
compensate Plaintiff for Defendant's conduct. Plaintiff also
seeks all such furtherrelief at law or in equity to which it may be
entitled.
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JURISDICTION AND VENUE
4. Plaintiff seeks, among other things, permanent injunctive
relief.
Therefore, this Court has jurisdiction over all causes of action
asserted in this
Complaint pursuant to 10 Del C. 341.5. Plaintiff was
incorporated in the State of Delaware in accordance with
the Delaware General Corporation Law and remains an active
corporation pursuant
to the laws of the State of Delaware. Defendant was also
incorporated in the State
of Delaware in February 2014 and remains an active corporation.
Accordingly, the
Court has jurisdiction over all parties and all claims in this
action.
THE PARTIES
6. Plaintiff is a Delaware corporation with its principal place
of business
located at 6275 Nancy Ridge Drive, San Diego, CA 92121.
Plaintiffs common
stock trades on the New York Stock Exchange MKT ("NYSE") under
the symbol
"ONVO." Plaintiff designs and creates functional human tissues,
with the goal of
building living human tissues that function like native
tissues.7. Defendant is a Delaware limited liability company, with
a designated
agent for service of process, the Company Corporation, which is
located in
Wilmington, Delaware. Its principal place of business is unknown
to Plaintiff.Defendant is purportedly an independent stock research
firm which disseminates
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its research reports to the public at-large throughout Delaware
and the United
States.
8. Plaintiff is ignorant of the true names and capacities,
whether
individual, associate, partnership, corporate, or otherwise, of
Defendants
designated herein as Does 1 through 25, inclusive, and therefore
sues thoseDefendants by these fictitious names. Plaintiff is
informed and believes, and on
that basis alleges, that Does 1 through 25, in some way unknown
to Plaintiff, are
responsible for the acts alleged in this Complaint, are the
affiliates, partners, co-
venturers, co-conspirators and/or aiders and abettors of
Defendant, and have
incurred liability to Plaintiff therefor. Plaintiff will amend
this Complaint to allege
the true names and capacities of Does 1 through 25 upon
discovery thereof.
FACTUAL BACKGROUND
9. The sole subsidiary and operating company of Plaintiff was
founded
in 2007. Plaintiff is in the business of designing and creating
functional human
tissues through use of its proprietary three-dimensional
bio-printing technology.
Plaintiff's goal is to improve the lives of individuals by
building living human
tissues that are proven to function like native tissues.
10. By creating three-dimensional tissues that accurately
represent human
biology, the following goals are achieved: (1) the creation of
functional, threedimensional tissues that can be implanted or
delivered into the human body to
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repair or replace damaged or diseased tissues; (2) assisting
biopharmaceutical
companies and academic medical centers to design, build, and
validate more
predictive in vitro tissues for disease modeling and toxicology;
(3) providingresearchers the opportunity to test drugs on
functional human tissues before ever
administering the drug to a living person; and (4) bridging the
gulf between
preclinical testing and clinical trials.11. Starting in July
2013, Plaintiff entered the NYSE MKT under the
symbol "ONVO" and its shares began to be publicly traded at that
time.12. Defendant's libelous campaign against Plaintiff started
soon after that.
In February 2014, Simeon Research, LLC formed for the apparent
purpose of
destroying Plaintiffs reputation and causing harm to Plaintiffs
business. Indeed,Defendant undertook to appear to the public as a
reputable equity research firm by
creating an entity with the term "Research" in the name,
referring to itself asinvolved in "long/short analytical equity
research," purporting to undertake
extensive inquiry into Organovo's operations, and issuing
reports with a specific
price target. Legitimate equity research firms do not attempt to
hide or conceal theauthors of their work, are typically affiliated
with an investment bank or seek to
engage clients to receive ongoing research reports directly by
subscription, and donot seek to hide the compensation they might
receive as a result of issuing reports.
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13. Defendant's own documents of incorporation filed with the
Delaware
Secretary of State are devoid of any information relating to
Defendant's businessaddress or acting principals. Rather,
Defendant's incorporation documents
comprise a single document, and identify only Defendant's agent
for service of
process, demonstrating the haste with which Defendant was formed
as an entity forthe sole purpose of exacting harm upon
Plaintiff.
14. Next, Defendant rushed to put together a website,
http://www.simeonresearch.com. The website lacks any contact
information forDefendant's principals, and has no content other
than links to two libelous reports
discussed herein, relating to Plaintiff.
15. Shortly thereafter, Defendant posted its first defamatory
statements
that were intended to damage and injure Plaintiff. On or about
March 20, 2014,
Defendant posted a report via its website entitled "Organovo:
Dissecting the Fairy
Tale - Full Report." (hereinafter the "March Report.") Defendant
then circulated
the March Report to investor websites. The March Report did not
name an
individual author and did not provide any method for contacting
Defendant for
comment. The March Report also made numerous statements about
Plaintiff
which were false, misleading and/or inaccurate which include,
but are not limited
to, the following:
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a. "Organovo has a history of serial dilution and insider sales
in the last
half-year exceed the amount of money the company invested
inResearch & Development."
b. "[Organovo] has failed to achieve renewal from its 2 key
pharmaceutical partners and secured fluff PR pieces instead."c.
"Even worse, Keith Murphy tells investors that Organovo can
leverage its platform to achieve partnership deals that bring
in
$10,000,000-$30,000,000 per deal plus a 3%-7% royalty. That is
7times to 22 times greater than Organovo's largest deal to-date, a
deal
that has not been renewed."
d. "The company publicizes any thread of good news while
sweeping
detrimental events under the rug without mention."
e. "But no one bought the bioprinter. The reason, of course, is
obvious.
No researcher will shell out $200,000 to buy Organovo's
bioprinter
when they can make a comparable or better bioprinter on their
own
for a fraction of the price. Organovo has placed 6of these
bioprinters
with academic centers since 200979, or -1 bioprinter per year.
And
they didn't receive a cent - they loaned the printers at no
cost."
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f. "Compare this to Organovo, which has placed only 6 printers
to date
since 2009, a little over 1 printer a year. And, Organovo loaned
these
printers."
g. "Of course, Organovo knows all of this, because it worked
with
nScrypt to develop its own bioprinter."h. "Leapfrogging
Organovo, researchers at Scotland's Herriot-Watt
University have made a revolutionary breakthrough in tandem
with
privately-held Rodin Cellab by bioprinting human embryonic
stemcells with high levels of viability (>95% with identical
physiology
post-printing) using a modified MakerBot printer. The work,
unlikethe claims of Organovo, has been published in the journal
Biofabrication - it has been called "the greatest breakthrough
in 3D
bioprinting to date."i. Defendant claims that Plaintiff
initially based its commercialization
strategy on selling its bioprinters.
j. Defendant claims that Plaintiff misled investors or did not
meet its
promises to investors in regards to advancing projects from 2010
toclinical trials, stating, among other things, that, "either
Organovo's
management made dubious claims to raise money from investors,
orits employees and technology failed to achieve the targets."
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k. "Back in 2012, every private investor in Organovo sold their
shares
into the market, liquidating 32.1M shares (99.7% of their
holdings) at
a blended price of $3.02/share."
16. None of those statements in the March Report are true. Each
of the
above-referenced statements, among others, is patently false,
misleading and/or
inaccurate.
17. On or about April 8, 2014, Defendant posted a second report
via its
website, http://www.simeonresearch.com, entitled "Bargaining
with the Devil:How Organovo Used Fraudulent Brokers and Promoters
to Sell its Shares and
Story" (hereinafter the "April Report.") The April Report was
disseminated tothird party investors. The April Report did not name
an individual author and did
not provide any method for contacting Defendant for comment. The
April Report
also made numerous statements about Plaintiff which were false,
misleading and/or
inaccurate which include, but are not limited to, the
following:
a. "Organovo has spent triple its entire R&D budget since
inception on
raising money from small-time investors and stock
promotiondemonstrates that Organovo is more penny-stock promotion
than
legitimate company."b. "Organovo has spent nearly three times as
much money ($36.5
million) compensating its brokers and discounting shares in a
follow-
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on as it has on Research & Development ($13.5 million) since
the
company's inception."c. "ProActive provided Organovo a number of
stock promotion services
in exchange for Organovo's business - many had none of the
legally-
required disclosures."d. "ProActive Capital and DreamTeamGroup
have absolutely no
disclosures on any of their operated websites that they were
compensated by Organovo."e. "Organovo paid these brokers more
than $1 in cash, stock, and
warrants for every $1 raised from investors."
18. None of those statements in the April Report are true. Each
of the
above-referenced statements, among others, is patently false,
misleading and/or
inaccurate.
19. Defendant also published numerous statements in the March
and April
Reports that constituted half-truths at best; statements which
contained sometruthful information in addition to misleading
information, which were designed to
cast aspersions upon Plaintiff while appearing to be truthful
and accurate
statements. They were neither.
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20. Defendant also intentionally provided misleading
information, by
taking information relating to Plaintiffs products and financial
well-being out of
context in order to cause damage and injury to Plaintiff. In
addition, Defendant
alludes to wrongdoing by third parties and insinuates wrongdoing
by Plaintiff by
association. Like its defamatory reports, Defendant's
insinuations are false.
21. Once the March Report and the April Report were published,
those
reports were referenced by numerous financial bloggers and
websites. Followingthe publishing of those reports, Plaintiffs
stock price dropped precipitously, and it
continues to drop. Moreover, Plaintiff believes it has lost
potential investors and
has suffered injury to its reputation based upon Defendant's
publications.
22. In addition to the website, a Twitter account with the
address
"@SimeonResearch" is currently active on Twitter - an account
that has publishedat least 65 individual comments or "tweets." The
content of the 65 tweets on that
Twitter account are directed solely at Plaintiff, and those
tweets appear to be an
attempt to negatively impact Plaintiffs stock price. For
example, in an April 8,2014 tweet, @SimeonResearch states, "Simeon
Research reiterates $1.35 price
target for Organovo shares ..." In another tweet from April 8,
2014,
@SimeonResearch states, "ONVO is down 4% today and 12% since our
first
report in March. We believe downside exists to $1.35/share."
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23. Defendant's acts in publishing the reports and potentially
the Twitter
communications are intended solely to drive down the price of
Plaintiff's common
stock, so that Defendant or others acting.in concert with
Defendant may effectuate
profitable short sales of that stock.24. To this end, Defendant
sought to have the reports it published
distributed as widely as possible by providing them freely to
investor news
services on the internet.
25. Defendant will likely continue to publish false and
defamatory
statements on its website.
26. As a result of Defendant's conduct, Plaintiff has been
irreparably
harmed. Defendant's false and misleading statements have caused
some readers
and potential investors to view Plaintiffs business as
non-viable, dishonest, and
non-reputable.27. Moreover, Plaintiff has suffered and will
continue to suffer irreparable
harm absent an order requiring Defendant to cease making false
and misleading
statements about Plaintiff, and requiring that all such
statements be removed from
Defendant's website.
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COUNT I-LIBEL(Against All Defendants)
28. Plaintiff re-alleges and fully incorporates by reference
paragraphs 1
through 27 as though fully set forth herein.29. Defendant made
false and defamatory statements as alleged herein
about Plaintiff.
30. Defendant made these negative defamatory statements with the
intent
and import that the statements were assertions of fact and not
merely opinion, and
with knowledge of their falsity and/or with reckless disregard
for the truth or
falsity thereof.31. Defendant published these statements, in
writing, to unprivileged third
parties including, but not limited to, readers and purchasers of
online and printfinancial publications.
32. Defendant's statements cased its readers, including
investors and the
community, to view Plaintiffs business as non-viable, dishonest,
non-reputable,
and engaging improper conduct, and thus have diminished the
esteem, respect,
goodwill or confidence in which Plaintiff was held. Moreover,
upon informationand belief, Defendant's statements have deterred
third parties, including potential
investors, from doing business with or investing in Plaintiffs
business.
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33. Defendant knew such statements disparaged the quality of
Plaintiff s
business and its stock, and intended these statements to cause
Plaintiff pecuniary
loss and harm to reputation.
34. Defendant made its defamatory and libelous statements with
malice,
malicious intent, and with intent to cause the foregoing harm to
Plaintiff.
Accordingly, Plaintiff is entitled to and should be awarded
damages againstDefendant.
35. It was foreseeable that the defamatory statements would be
repeated
by second parties. Defendant, as the originator, is therefore
liable for each
repetition of the defamatory matter by second parties.36.
Defendant's libelous statements caused harm to Plaintiff, and
will
continue to cause harm to Plaintiff, including without
limitation: harm to Plaintiffs
reputation and good will; loss of product sales and the profits
therefrom;interference with and damage to Plaintiffs relationships
with its bankers, lenders,
institutional investors, and the media; loss of market share and
business
opportunity for its products; loss of investment capital; loss
of operating capital;and impairment of Plaintiff s ability to
continue to grow.
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COUNT H - LIBEL PER SE(Against All Defendants)
37. Plaintiff re-alleges and fully incorporates by reference
paragraphs 1
through 36 as though fully set forth herein.38. Defendant made
false and defamatory statements as alleged herein
about Plaintiff.
39. Defendant made these defamatory statements with the intent
and
import that the statements were assertions of fact and not
merely opinion, and with
knowledge of their falsity and/or with reckless disregard for
the truth or falsitythereof.
40. Defendant published these statements, in writing, to
unprivileged third
parties including, but not limited to, readers and purchasers of
online and printfinancial publications.
41. Defendant's false statements malign Plaintiff in its
business, trade and
profession.42. Defendant's false statements also impute improper
and unlawful
conduct to Plaintiff.
43. Defendant's statements cased its readers, including
investors and the
community, to view Plaintiffs business as non-viable, dishonest,
non-reputable,and engaging improper conduct, and thus have
diminished the esteem, respect,
goodwill or confidence in which Plaintiff was held. Moreover,
upon information15
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and belief, Defendant's statements have deterred third parties,
including potential
investors, from doing business with or investing in Plaintiffs
business.
44. Defendant knew such statements disparaged the quality of
Plaintiff s
business and its stock, and intended these statements to cause
Plaintiff pecuniary
loss and harm to reputation.
45. Defendant made its defamatory and libelous statements with
malice,
malicious intent, and with intent to cause the foregoing harm to
Plaintiff.
Accordingly, Plaintiff is entitled to and should be awarded
damages againstDefendant.
46. It was foreseeable that the defamatory statements would be
repeated
by second parties. Defendant, as the originator, is therefore
liable for each
repetition of the defamatory matter by second parties.47.
Defendant's libelous statements caused harm to Plaintiff,
including
without limitation: harm to Plaintiffs reputation and good will;
loss of product
sales and the profits therefrom; interference with and damage to
Plaintiffs
relationships with its bankers, lenders, institutional
investors, and the media; lossof market share and business
opportunity for its products; loss of investment
capital; loss of operating capital; and impairment of Plaintiff
s ability to continueto grow.
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COUNT m - INTERFERENCE WITHPROSPECTIVE ECONOMIC ADVANTAGE
(Against All Defendants)48. Plaintiff re-alleges and fully
incorporates by reference paragraphs 1
through 47, as though fully set forth herein.49. Plaintiff has
or had valuable prospective economic relationships and
business opportunities with its bankers, customers, lenders,
investors and
prospective investors, from which Plaintiff derived economic
gain, and from whichPlaintiff had a reasonable expectancy of
deriving future economic gain.
50. Defendant was and is aware of these relationships.
Defendant,
through the acts alleged herein, has and continues to,
wrongfully, knowingly and
intentionally act to interfere with and destroy or harm
Plaintiffs existing and/or
prospective business relationships.51. Defendant's wrongful acts
alleged herein have actually interfered with
and disrupted Plaintiffs relationships and/or prospective
relationships, and these
acts designed to interfere with and disrupt these relationships
have been a
substantial factor in causing Plaintiffs harm through the loss
of prospective
economic advantage.
52. Plaintiff is entitled to, and should be, awarded damages
caused by
Defendant's actions, including without limitation, monetary loss
from: harm to
Plaintiffs reputation and good will; loss of product sales and
the profits therefrom;
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interference with and damage to Plaintiffs relationships with
its bankers lenders,
institutional investors, and the media; loss of market share and
business
opportunity for its products; and impairment of Plaintiffs
ability to continue to
grow.53. Defendant acted with malice, malicious intent, and with
intent to
cause the foregoing harm to Plaintiff,
COUNT IV - PERMANENT INJUNCTION(Against All Defendants)
54. Plaintiff re-alleges and fully incorporates by reference
paragraphs 1
through 53, as though fully set forth herein.55. Defendant's
statements are false and defamatory.
56. As a result of Defendant's libelous statements, Plaintiff
has suffered
and will continue to suffer irreparable harm including, but not
limited to, harm to
its reputation.
57. Absent a permanent injunction barring Defendant from making
any
further false and defamatory statements, Plaintiff will suffer
irreparable harm.
58. The harm caused by Defendant's destructive and knowingly
false
statements regarding Plaintiff outweighs any harm to Defendant
if the injunction is
granted.59. Plaintiff lacks an adequate remedy at law.
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60. Accordingly, the Court should enter a permanent injunction
(i)
enjoining Defendant from making or publishing any further false
and defamatorystatements regarding Plaintiff, and (ii) compelling
Defendant to remove any and all
defamatory and violative statements from its website and Twitter
account.
PRAYER FOR RELIEF
WHEREFORE, respectfully requests that the Court enter an
Order:
A. granting judgment in favor of Plaintiff and against
Defendant;
B. awarding Plaintiff general and special damages in an amount
tobe determined;
C. awarding Plaintiff the reasonable attorneys' fees, costs,
andexpenses it incurred in this action;
D. permanently enjoining Defendant from making any false
anddefamatory statements against Plaintiff;
E. compelling Defendant to remove any and all libelousstatements
from its website; and
D. granting such other and further relief as this Court shall
deemproper and just.
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Dated: April 21,2014
DLA PIPER LLP (US)
Of Counsel:Nicolas MorganGrant P. AlexanderDLA PIPER LLP
(US)2000 Avenue of the StarsSuite 400 North TowerLos Angeles, CA
90067-4704Phone:(310)595-3000Fax:(310)[email protected]@dlapiper.com
/s/ John L. ReedJohn L. Reed (I.D. No. 3023)Laura D. Hatcher
(I.D. No. 5098)1201 North Market Street, Suite 2100Wilmington, DE
19801(302) 468-5700(302) 394-2341
(Fax)[email protected]@dlapiper.com
Attorneys for Plaintiff OrganovoHoldings, Inc.
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