By Emilie Ruscoe

Law360 (December 22, 2020, 11:06 PM EST ) Biotechnology firm Inovio Pharmaceuticals Inc. and a cohort of company executives shouldn't be allowed to shake off a consolidated class action alleging they misled the public about a coronavirus vaccine they purport to have in the works, Inovio shareholders told a federal court in Philadelphia.

In a Monday opposition brief, lead plaintiff Manuel S. Williams and plaintiff Andrew Zenoff told U.S. District Judge Gerald J. Pappert that he shouldn't grant the November dismissal bid filed in the case.

"Faced with the well-pled allegations of fact in the [suit], defendants attempt to rewrite the pleading, make unpersuasive disavowals of statements they indisputably made, and side-step their own false statements," the investors told Judge Pappert.

The consolidated suit, which launched March 12 and was most recently amended in September, names as defendants Inovio, its chief executive J. Joseph Kim, its chief financial officer Peter D. Kies and its vice president of biological manufacturing and clinical supply management Robert J. Juba Jr.

In the suit, the investors allege that between Feb. 14 and Aug. 10, as the pandemic escalated across the nation, the company made intentionally confusing statements about its work on a COVID-19 vaccine in an attempt to push up its trading price.

"Defendants' ongoing unlawful scheme has caused significant damages to investors and allowed the company to raise over $320 million in stock offerings," the investors claimed in the September version of their suit.

In Inovio's dismissal bid, the company contended that it "has kept investors and the public apprised of its efforts" as it worked on making a vaccine and getting it distributed, saying that the investors hadn't actually shown that anyone was confused by the company's February claim that it was "able to fully construct our vaccine within three hours." The company later clarified that it had "designed a vaccine construct," not a vaccine, within three hours, court records show.

The investors also didn't explain in their suit how that particular vaccine statement was confusing, or that it was intended to be confusing, Inovio contended.

In the Monday opposition brief, the Inovio investors doubled down on their characterization of the company's "three hours" statement, calling it a "lie" and emphasizing that in the context of the global health crisis, the company's word choices carried enormous significance.

"As the pandemic was taking hold across the globe — millions would soon become ill, and over one million would perish — nothing could have been more important to Inovio and its shareholders than [the company's vaccine]," the investors said Monday.

They also reiterated their earlier claim that despite the fact that the company was founded 40 years ago, "it has never obtained approval to market any product."

On Tuesday, attorneys for the investors and a representative for the company declined to comment.

The investors are represented by Darren J. Robbins, Tor Gronborg, Trig R. Smith, Matthew J. Balotta and William J. Edelman of Robbins Geller Rudman & Dowd LLP and Lawrence F. Stengel of Saxton & Stump.

Inovio and its executives are represented by Craig E. TenBroeck, Peter M. Adams, Luke Cadigan and Heather Speers of Cooley LLP and Patrick J. Loftus of Duane Morris LLP.

The case is McDermid v. Inovio Pharmaceuticals Inc. et al., case number 2:20-cv-01402, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Dean Seal, Matthew Santoni, Rachel O'Brien and Reenat Sinay. Editing by Daniel King.

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