Oklahoma Firefighters Pension and Retirement System v. Biogen Inc. et al

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Case 1:22-cv-10200-WGY Document 208 Filed 03/30/26 Page1of12

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

OKLAHOMA FIREFIGHTERS PENSION
AND RETIREMENT SYSTEM,

Plaintiff,

CIVIL ACTION
NO. 22-10200-WGY

Vv.

BIOGEN INC., MICHEL VOUNATSOS,
AND ALISHA ALAIMO,

Defendants.

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YOUNG, D.J. March 30, 2026

MEMORANDUM AND ORDER

This dispute stems from statements that pharmaceutical
executives made during the launch of the drug Aduhelm. The lead
plaintiff is the Oklahoma Firefighters Pension and Retirement
System (“the Firefighters”), and the defendants are Biogen, Inc.
(“Biogen”), Michel Vounatsos (“Vounatsos”), and Alisha Alaimo
(“Alaimo”). Vounatsos was the Chief Executive Officer of
Biogen, and Alaimo was the President of Biogen U.S. at all
relevant times. Assented Conforming Compl. {1 24-25, ECF No.
203. After extensive briefing, this Court certified a class
under Federal Rule of Civil Procedure 23 for the period from
June 8, 2021, through July 12, 2021, based on statements

concerning Medicare Coverage. Electronic Order, ECF No. 100;

[1]

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

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Electronic Order, ECF No. 108; see Pl.’s Mem. Supp. Mot. Cert.
Class 1, ECF No. 80.

Biogen filed the instant motion for summary judgment and
memorandum in support on February 2, 2026. Defs.’ Mot. Summ. J.,
ECF No. 177; Mem. Supp. Defs.’ Mot. Summ. J. (“Defs.’ Mem.”),
ECF No. 178.

On February 11, 2026, this Court ALLOWED the addition of
“Payor Statements,” but DENIED the Firefighters’ request to
modify the class period. Electronic Clerk’s Notes, ECF No. 185;
see Mem. Supp. Pl.’s Renewed Mot. Am., ECF No. 153.

In its motion for summary judgment, Biogen argues that the
Firefighters have failed to carry its burden to demonstrate
“loss causation” as required by the Securities Exchange Act of
1934 and Rule 10b-5.! The Firefighters counter that its expert
report, prepared by Professor Steven P. Feinstein, establishes

loss causation as required to make its prima facie case.2 See

1 Biogen includes arguments throughout the motion for
summary judgment that assume that the third amended complaint,
ECF No. 187, was denied in its entirety and that the Payor
Statements were not added, as the Motion was filed before this
Court ruled on the Third Amended Complaint. The Court
disregards the arguments relating to the Payor Statements as
they are now moot.

2 The Court acknowledges and, at this time, expressly
declines to rule on the pending motion to exclude, in part, the
opinions and testimony of Professor Steven P. Feinstein and
response. Defs.’ Mot. Exclude Part Op. Test. Professor Steven
P. Feinstein, ECF No. 175; Lead Pl.’s Opp’n Defs.’ Mot. Exclude
Part Op. Test. Prof. Steven P. Feinstein, ECF No. 192.

[2]

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Lead Pl’s. Opp’n Defs.’ Mot. Summ. J. (“P1l.’s Opp’n”), ECF No.
193; Report Loss Causation Damages Professor Steven P.
Feinstein, dated January 21, 2025 (the “Feinstein Report” or
“the Report”), ECF No. 180-1. The motion has been fully
briefed. See Reply Mem. Supp. Defs.’ Mot. Exclude Part Op. &
Test. Professor Steven P. Feinstein & Mot. Summ. J., ECF No.
200. This Court held a hearing on the matter on March 25, 2026.
See Electronic Clerk’s Notes, ECF No. 205. Having heard the
parties, Biogen’s motion for summary judgment is DENIED.

A. The Summary Judgment Standard

Summary judgment is appropriate only where “there is no

genuine dispute of material fact.” Quintana-—Dieppa v.

Department of Army, 130 F.4th 1, 7 (lst Cir. 2025) (citing Pena

v. Honeywell Int'l, Inc., 923 F.3d 18, 26-27 (lst. Cir. 2019);

Fed. R. Civ. P. 56(a)). “The moving party bears the initial
burden of demonstrating that ‘the nonmoving party has failed to
make a sufficient showing on an essential element of her case

with respect to which she has the burden of proof.’” Securities

& Exch. Comm'n v. Sharp, 692 F. Supp. 3d 9, 10-11 (D. Mass.

2023) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The Court must “draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

[3]

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“To plead a viable cause of action under Section 10(b)-5 of
the Securities Exchange Act of 1934, plaintiffs must plead: ‘(1)
a material misrepresentation or omission; (2) scienter, or a
wrongful state of mind; (3) a connection with the purchase or
sale of a security; (4) reliance; (5) economic loss; and (6)

loss causation.’” Quinones v. Frequency Therapeutics, Inc., 665

F. Supp. 3d 156, 167 (D. Mass. 2023) (citing Hill v. Gozani, 638

F.3d 40, 55 (lst Cir. 2011)), aff'd, 106 F.4th 177 (1st Cir.
2024). The present motion for summary judgment argues that the
Firefighters have failed to proffer sufficient evidence to prove
the element of loss causation.

B. The Feinstein Report

The Feinstein Report, at issue in the current motion, is
the third expert report produced by Professor Feinstein.? No
concerns have yet been raised concerning the two previous
reports created by Professor Feinstein. The instant report
focuses on loss causation, as well as the quantification of per-
share damages. Feinstein Report 9 6. It utilizes an incorrect
class period, June 7, 2021 to September 8, 2021, which this

Court rejected in its ruling on the third amended complaint.4

3 Feinstein produced an initial report in May of 2024, ECF
No. 79-1, and a reply report to Biogen’s expert report in July
of 2024, ECF No. 90-2.

4 The operative class period is June 8, 2021, through July
12, 2021. See Electronic Clerk’s Notes, ECF No. 185.

[4]

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The Report also analyzes statements that the Court excluded from
the third amended complaint.5

C. Loss Causation

The First Circuit holds that an expert report, specifically
an event study, is the “usual” and “preferred” manner to prove
to the factfinder (here, the jury) the element of loss causation

in a securities action. See Bricklayers & Trowel Trades Int'l

Pension Fund v. Credit Suisse Sec. (USA) LLC, 752 F.3d 82, 86

(lst Cir. 2014). A plaintiff may establish loss causation
through an expert witness by:

(1) identifying a “corrective disclosure” (a release of
information that reveals to the market the pertinent
truth that was previously concealed or obscured by the
company's fraud);

(2) showing that the stock price dropped soon after the
corrective disclosure; and

(3) eliminating other possible explanations for this
price drop, so that the factfinder can infer that it is
more probable than not that it was the corrective
disclosure -- as opposed to other possible depressive
factors -- that caused at least a “substantial” amount
of the price drop.

Shash v. Biogen, Inc., 84 F.4th 1, 20 (lst Cir. 2023) (quoting

Massachusetts Ret. Sys. v. CVS Caremark Corp., 716 F.3d 229,

237-38 (lst Cir. 2013)). Biogen argues that the Firefighters

have failed to establish the third factor, as the Feinstein

5 The Court has allowed the “Payor Statements” and
“Automatic Medicare Coverage Statements” to move forward and
denied the “Interim Coverage” statements. See Feinstein Report
QI 37-38, 40-41, 120, 122.

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Report did not appropriately disaggregate “other possible
explanations” for the price drop on June 24, 2021. See Defs.’
Mem. 14-18.

The loss causation analysis here focuses on event studies,
which measure how much a “stock price rises or falls in response
to new, company-specific information.” Feinstein Report 7 131.
The Feinstein Report identifies three individual dates and
corresponding disclosures for the event study. Of these three
dates, only one -- June 24, 2021 -- falls within the approved
class period.® Feinstein Report 7 177. The Court considers only
the one date included in the class period, as each date is
analyzed independently.

Biogen argues that the Feinstein Report does not
sufficiently establish loss causation because the report fails
to disaggregate the allegedly fraudulent statements made by
Biogen executives on June 24, 2021, from other market factors on
that date that may have affected the stock price.’ Defs.’ Mem.
15-18. The market factor that Biogen alleges the Feinstein

Report improperly accounts for is Eli Lilly (a competitor)

6 The other two dates are July 15, 2021, and September 9,
2021. See Feinstein Report (If 179, 181.

7 The statements made on June 24, 2021, by Senators
Elizabeth Warren, Bill Cassidy, and Secretary Becerra were
identified as correcting allegedly fraudulent representations
relating to the Payor Statements and Medicare Coverage
Statements. See Feinstein Report 9 162.

[6]

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announcing the Food and Drug Administration designation of
“Breakthrough Therapy” for its competing Alzheimer’s drug. See
Defs.’ Mem. 15, 17. Biogen argues that the Feinstein Report, in
the event study for June 24, 2021, relied solely on a Guggenheim
report that accounted for both (1) the Eli Lilly announcement
and (2) a survey of neurologists, and failing to disaggregate
these two factors. Id. at 17. Biogen argues that the Feinstein
Report’s exclusive reliance on this Guggenheim report is
incapable of demonstrating loss causation as matter of law.

The Firefighters argue that the Feinstein Report does, in
fact, disaggregate the effect of the allegedly fraudulent Biogen
statements from the Eli Lilly announcement.® See Pl.’s Opp’ n 7.
They point to the Feinstein Report, where the Eli Lilly

announcement is discussed extensively. See Feinstein Report 1

8 The Firefighters also argue for the application of a test
that has not been utilized in the First Circuit, which would
place the burden of disproving the effect of confounding factors
on Biogen. See Pl.’s Opp’n 9 (citing Caremark, Inc. v. Coram
Healthcare Corp., 113 F.3d 645 (7th Cir. 1997); Hsingching Hsu
v. Puma Biotechnology, Inc., No. SACV1500865AGJCGX, 2018 WL
4945703, at *9 (C.D. Cal. Oct. 5, 2018)). Under the
Firefighters’ preferred framework, Biogen would bear the burden
of showing that the depreciation in stock was entirely
attributed to factors other than the allegedly false statements.
Id. The Firefighters do not cite any First Circuit case law to
support the application of this test in either the Court of
Appeals or any in-circuit district courts. This test appears to
represent a departure from the existing First Circuit precedent,
and therefore the Court does not adopt it.

(7)

Case 1:22-cv-10200-WGY Document 208 Filed 03/30/26 Page 8of12

62-66, 197-201. Feinstein’s treatment of the Guggenheim report
reads as follows:

Guggenheim reported that it performed a valuation
of Biogen stock that was based on market conditions
before the 24 June 2021 developments, but was adjusted
to incorporate the news of the earlier-than-expected Eli
Lilly competition. Based on this valuation, Guggenheim
reduced its price target for Biogen stock by $9.00 per
share .

It is noteworthy that Eli Lilly’s efforts to
advance its competition to Biogen could have been due at
least in part to the unfolding resistance to Biogen’s
product, which would mean that that competition news was
not entirely confounding, but rather a consequence of
the allegation-related corrective disclosures. As such,
less than the $9.00 per share amount attributed to the
Eli Lilly news is truly the effect of confounding
information. I understand that Lead Plaintiff will
present evidence supporting that some of this $9.00 per
share decline attributable to the Eli Lilly news
constitutes damages caused by the alleged
misrepresentations and omissions. However, to provide
a conservative measure of damages, in this report I treat
all of the $9.00 as stemming from confounding
information.

Id. 417 198, 200. As a factual matter, the Feinstein Report does
consider and address the Eli Lilly announcement. The Report
also includes quotes from the Guggenheim report that discuss the
survey of neurologists as being incorporated into the price.

See Feinstein Report 7 198. The Firefighters further argued at
the hearing that the question of whether Feinstein appropriately
relied on the Guggenheim report, which considered both the Eli
Lilly announcement and the survey of neurologists, is a classic
question for the trier of fact. For example, a reasonable jury

may ultimately find, contrary to Feinstein’s assertions, that

[8]

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Guggenheim’s $9.00 price reduction was too low, as the $9.00
price reduction included a decrease in price due to the Eli
Lilly announcement that was mitigated by the positive news from
the neurologist survey.

Biogen relies heavily on Bricklayers & Trowel Trades Int'l

Pension Fund v. Credit Suisse Sec. (USA) LLC, 752 F.3d 82 (lst

Cir. 2014), and argued at the hearing that the Firefighters bear
the burden of absolutely ruling out any confounding market

factors. Under this Court’s reading of the First Circuit’s

analysis in Bricklayers, the required proof of disaggregation
does not go this far, and the case is factually distinguishable
from the expert report at issue here.

In Bricklayers, the First Circuit affirmed Judge Gorton’s

exclusion of an expert report based partially upon its failure
to disaggregate factors as required to prove loss causation.

752 F.3d at 95-96. The First Circuit stated that “when
conducting an event study, an expert must address confounding
information that entered the market on the event date.” Id. at
95 (emphasis added). The First Circuit found that the expert in

Bricklayers “seemingly made a judgment call as to confounding

information without any methodological underpinning.” Id. The
District Court described the methodology as such: the expert’s
“principal approach [] to read all the AOL-related news released

on a given day and to make subjective judgments about which news

[9]

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impacted the stock price” was insufficient. Bricklayers &

Trowel Trades Int'l Pension Fund v. Credit Suisse First Boston,

853 F. Supp. 2d 181, 190 (D. Mass. 2012) (Gorton, J.), aff'd sub

nom. Bricklayers, 752 F.3d 82, 90 (lst Cir. 2014). The First

Circuit ruled that this methodology was improperly “subjective”
because, aS an example, the expert did not utilize tools like

intra-day trading analysis or content analysis. Bricklayers,

752 F.3d at 95-96, n.12. Importantly, Judge Gorton and the
First Circuit found several other issues with the expert report
before excluding it, including overusing dummy variables,
selecting event dates to backfill the regression, and
considering disclosures prior to the event dates. See id. at
91-96.

Conversely, here, there is only a single, relatively minor
issue with an expert report that relied on a report neither
party seems to characterize as “cherry-picked” or “subjective.”

Id. at 92, 95. Thus, Bricklayers does not create the stringent

exclusion requirement that Biogen claims nor does it represent a
mirror-image factual comparison for the instant case. Feinstein
certainly, at a minimum, “addressed” the Eli Lilly announcement
throughout the report. By utilizing the Guggenheim report,
which accounts for the Eli Lilly announcement, Feinstein was not
merely making unsupported “subjective judgments” about how that

announcement impacted Biogen’s stock price. Unlike in

[10]

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Bricklayers, in this Court’s view, Biogen has not persuasively

demonstrated that the Feinstein Report is “a judgment call as to
confounding information without any methodological
underpinning.” Id. at 95. Ultimately, if qualified as an
expert at trial, the jury will assess the weight and credibility
of Feinstein’s testimony with respect to loss causation.
Summary judgment is therefore unwarranted.

D. Conclusion

Under Bricklayers, the Feinstein Report need not absolutely

rule out other confounding events. Rather, it must “address”
them. 752 F.3d at 95. The Feinstein Report does so. Taking
every reasonable inference in favor of the Firefighters, a
reasonable jury could find that loss causation could be
established from Feinstein’s eventual testimony based on the
Feinstein Report. For these reasons, the motion for summary
judgment (ECF No. 177) is DENIED.

This memorandum and order only addresses and rejects the
legal interpretations proffered by the parties (see n. 8 supra):
The Court expresses no opinion as to whether Feinstein can
express an opinion concerning the actual per share dollar impact
of these various market influences, or, indeed, whether he is
qualified to opine on the relative market impacts of these
influences. The Court accepts that Feinstein has adequately

“addressed” this issue at summary judgment because it must draw

[11]

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all reasonable inferences in favor of the non-moving party, the

Firefighters.

SO ORDERED.

WILLIAM G. OUNE

JUDG
of tHe
UNITED STATES?

9 This is how my predecessor, Peleg Sprague (D. Mass. 1841-
1865), would sign official documents. Now that I’m a Senior
District Judge I adopt this format in honor of all the judicial
colleagues, state and federal, with whom I have had the
privilege to serve over the past 48 years.

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