Photo by Laura Barisonzi.
Omar Jafri, Of Counsel in Pomerantz’s Chicago office, has a successful practice exclusively focused on plaintiffs’-side securities fraud class actions. His client wins have set several precedents that have fortified the rights of investors, particularly in the areas of class certification and standing.
Jafri originally started his practice in corporate defense, but soon found his calling representing defrauded investors. Much of his work early in his career was focused on investigations and litigation related to the financial crisis of 2008. Always attuned to the demands of the market, his current caseload involves several cases against pharmaceutical and biotech companies concerning nondisclosures.
A graduate of the University of Illinois College of Law, Jafri served as a law clerk at the United States District Court of the Northern District of Georgia before joining Pomerantz.
Lawdragon: What types of cases are on your plate these days?
Omar Jafri: Over the last few years, many of my cases involve emerging biopharmaceutical or biotechnology companies striving to bring novel drugs and medical devices to market. In many instances, these companies choose not to disclose material, adverse information to investors, and the stock price declines significantly upon the revelation of negative information about clinical trial results or negative feedback received from regulators.
Many of these cases turn on the FDA's customary norms and procedures and its guidance for drug and device manufacturers – what the FDA considers problematic, when the FDA communicates with a sponsor during the pendency of an application, and what it usually expects a sponsor to do or not to do before seeking approval for a drug or device. Having worked on many of these types of cases over the years, I have a fairly good understanding of both the industry and the FDA's procedures and policies, and this knowledge helps me spot check issues early in the case to determine how to plead a claim.
LD: Is this part of a larger trend in the industry?
OJ: Yes, securities fraud cases against companies that develop drugs and medical devices continue to proliferate. With increasing frequency, plaintiffs litigate securities fraud cases against biopharmaceutical or biotechnology companies upon the revelation of negative news concerning their products such as serious adverse events experienced during clinical trials or negative feedback received from the FDA. There is now a well-developed body of law on this specific topic.
Defendants often take extreme positions in these cases and contend that they are entitled to hide adverse information in the absence of final and definitive agency actions. However, that position has been rejected by most courts. Whether the failure to disclose the FDA's serious criticisms and concerns is actionable is fact dependent and largely based on the severity and materiality of the negative feedback, both of which are fact-intensive inquiries.
We have been successful in convincing the courts that the information concealed by a defendant was, in fact, profoundly serious and would be material to a reasonable investor's decision to invest or not to invest in a company.
LD: Can you describe a recent matter in this area that you’ve handled?
OJ: For over five years, we have represented the class in a multi-billion-dollar securities fraud action against Perrigo Company plc for misleading investors about the acquisition and integration of Omega Pharma NV, and concealing its participation in a conspiracy to fix the price of generic drugs. Defendants' motions for summary judgment are currently pending, and the case may be headed towards trial later this year.
LD: What successes have you seen in the case so far?
OJ: Pomerantz set historic precedent in November 2019, when the District Court certified parallel classes of investors that purchased Perrigo shares in the U.S. on the NYSE and in Israel on the TASE. This was the very first time that a federal court independently analyzed the market of a security traded on a non-U.S. exchange, and found that it met the standards of market efficiency necessary to allow for class certification, since the U.S. Supreme Court decided Morrison v. National Australia Bank Ltd., which generally prohibits recovery for transactional losses on foreign exchanges.
LD: Is there a matter or client in your career that stands out as a “favorite” or one that is more memorable for certain reasons?
OJ: To date, the most interesting matter that I have worked on was our case against Juno Therapeutics Inc. and its senior officers. It was a securities fraud case against the developer of an immunotherapy to treat a rare form of blood cancer. We had no confidential witnesses or any contradictory documents or admissions from the defendants, nor any similarly meaty things that a securities fraud complaint often includes.
However, I found a specialized blog on immunotherapies, hidden behind a paywall, which contained an interview with an expert on immunotherapies. That expert contradicted defendants' stated reasons concerning why certain patients died in one of the clinical trials. Based on these facts, the court denied defendants' motion to dismiss in full. The claims settled for $24M. This case is an exemplar of how a plaintiff is not required to include any rigid categories in a complaint to meet the pleading standards of the Private Securities Litigation Reform Act, and that the basis to plead falsity and scienter can come from any source. Defendants continue to resist this reality in securities cases in general.
LD: How has your practice changed since the early part of your career?
OJ: I started my career in Big Law where the overwhelming nature of the practice related to defending corporations and their executives. This was never my calling. I joined Pomerantz because I wanted to be on the right side of the V, and I truly believe that that is the case after over six years exclusively dedicated to plaintiffs’-side securities fraud litigation.
LD: What advice do you have now for current law school students?
OJ: I would not recommend that anyone should go to law school or continue to pursue a career in law unless they are passionate about being a lawyer. It appears that many people simply take this path because they are unsure about what to do in life and believe that law may be a safe choice. That is a mistake. It does not benefit either the individual or the profession if those who elect to be in it are not genuinely interested in the law.