Perez v. Progenics Pharmaceuticals, Inc.
2014 WL 4412477
S.D.N.Y.2014Background
- Plaintiff Julio Perez, proceeding pro se, sues Progenies Pharmaceuticals under SOX for retaliation in firing.
- Plaintiff alleges he was terminated for August 4, 2008 Memorandum critiquing a May 22, 2008 Joint Press Release about Relistor Phase 2 results.
- Wyeth and Progenies issued a Wyeth Update and a Joint Press Release; Wyeth Update reportedly recommended against Phase 3 advancement.
- Plaintiff attached five Wyeth Update slides to the August 4 memo and claimed the press release misrepresented trial results as ‘positive activity.’
- The District Court denied summary judgment; Defendant moved for reconsideration; the motion is denied in full with prejudice.
- The opinion analyzes whether Plaintiff’s alleged whistleblowing constitutes protected activity and whether his belief was objectively reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff engaged in protected activity under SOX | Perez contends his disclosures were about securities fraud. | Court previously held disputed; defenses that no protected activity occurred. | Question of protected activity to be resolved by trial; genuine issue of material fact exists. |
| Whether Plaintiff’s belief that the Joint Press Release was fraudulent was objectively reasonable | Plaintiff relied on Wyeth Update, conversations, and work showing misrepresentations. | Belief not reasonable or based on omissions; emphasis on alleged misstatements only. | Reasonable belief could be supported; jury could find it objectively reasonable. |
| Whether Plaintiff relied on Lukacsko and Wong conversations to form the belief | Deposition evidence shows discussions influencing belief. | Testimony downplays reliance on those conversations. | Evidence supports reliance; credibility for trial, not summary judgment. |
| Whether the May 22 press release omission about Phase 3 is a material omission | Omissions could render statements misleading and supportive of a fraud claim. | Omission not proven material; focus on representations. | Court did not rely on materiality at summary judgment; no reversible error in considering the issue. |
| Whether reconsideration is warranted to alter the prior ruling | Motion for reconsideration denied; no clear error or new controlling law shown. |
Key Cases Cited
- Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519 (S.D.N.Y. 2014) (requires identifying specific conduct believed illegal for SOX claims)
- Welch v. Chao, 536 F.3d 269 (4th Cir. 2008) (employee must identify specific conduct believed illegal)
- Heller v. Goldin Restructuring Fund, L.P., 590 F. Supp. 2d 603 (S.D.N.Y. 2008) (materiality not required to prove reasonable belief under SOX)