the rosen law firm, p.a. laurence m. rosen, esq. · (“ocular therapeutix” or the...

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THE ROSEN LAW FIRM, P.A. Laurence M. Rosen, Esq. 609 W. South Orange Avenue, Suite 2P South Orange, NJ 07079 Tel: (973) 313-1887 Fax: (973) 833-0399 Email: [email protected] Counsel for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

THOMAS GALLAGHER, Individually and on behalf of all others similarly situated,

Plaintiff, v.

OCULAR THERAPEUTIX, INC., AMARPREET SAWHNEY, GEORGE MIGAUSKY, ANDREW HURLEY, and ERIC ANKERUD,

Defendants.

Case No. 17-cv-5011 CLASS ACTION COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS JURY TRIAL DEMANDED

Plaintiff Thomas Gallagher (“Plaintiff”), individually and on behalf of all other persons

similarly situated, by Plaintiff’s undersigned attorneys, for Plaintiff’s complaint against

Defendants (defined below), alleges the following based upon personal knowledge as to

Plaintiff and Plaintiff’s own acts, and information and belief as to all other matters, based upon,

inter alia, the investigation conducted by and through Plaintiff’s attorneys, which included,

among other things, a review of the Defendants’ public documents, conference calls and

announcements made by Defendants, United States Securities and Exchange Commission

(“SEC”) filings, wire and press releases published by and regarding Ocular Therapeutix, Inc.

(“Ocular Therapeutix” or the “Company”), analysts’ reports and advisories about the Company,

Case 2:17-cv-05011-SDW-LDW Document 1 Filed 07/07/17 of 19 PageID: 1

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and information readily obtainable on the Internet. Plaintiff believes that substantial evidentiary

support will exist for the allegations set forth herein after a reasonable opportunity for

discovery.

NATURE OF THE ACTION

1. This is a federal securities class action on behalf of a class consisting of all

persons and entities other than Defendants who purchased or otherwise acquired the publicly

traded securities of Ocular Therapeutix from May 5, 2017 through July 6, 2017, both dates

inclusive (the “Class Period”). Plaintiff seeks to recover compensable damages caused by

Defendants’ violations of the federal securities laws and to pursue remedies under Sections 10(b)

and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5

promulgated thereunder.

JURISDICTION AND VENUE

2. The claims asserted herein arise under and pursuant to §§10(b) and 20(a) of the

Exchange Act (15 U.S.C. §§78j(b) and §78t(a)) and Rule 10b-5 promulgated thereunder by the

SEC (17 C.F.R. §240.10b-5).

3. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§1331 and §27 of the Exchange Act.

4. Venue is proper in this judicial district pursuant to §27 of the Exchange Act (15

U.S.C. §78aa) and 28 U.S.C. §1391(b) as the Company conducts business and a significant

portion of Defendants’ actions and subsequent damages took place within within this judicial

district.

5. In connection with the acts, conduct and other wrongs alleged in this Complaint,

Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,


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including but not limited to, the United States mail, interstate telephone communications and the

facilities of the national securities exchange.

PARTIES

6. Plaintiff, as set forth in the accompanying Certification, purchased Ocular

Therapeutix securities at artificially inflated prices during the Class Period and was damaged

upon the revelation of the alleged corrective disclosure.

7. Defendant Ocular Therapeutix focuses on the development and commercialization

of therapies for diseases and conditions of the eye using its proprietary hydrogel platform

technology in the United States. The Company is incorporated in Delaware and its principal

executive offices are located at 34 Crosby Drive, Suite 105 Bedford, Massachusetts. The

Company is registered to do business in New Jersey. Ocular Therapeutix’s securities are traded

on the NASDAQ Global Market (“NASDAQ”) under the ticker symbol “OCUL.”

8. Defendant Amarpreet “Amar” Sawhney (“Sawhney”) has been the Company’s

Chief Executive Officer throughout the Class Period.

9. Defendant George Migausky (“Migausky”) has been the Company’s Chief

Financial Officer throughout the Class Period.

10. Defendant Andrew “Andy” Hurley (“Hurley”) has been the Company’s Chief

Commercial Officer throughout the Class Period.

11. Defendant Eric Ankerud (“Ankerud”) has been the Company’s Executive Vice

President of Regulatory, Quality, and Compliance throughout the Class Period.

12. Defendants Sawhney, Migausky, Hurley, and Ankerud are sometimes referred to

herein as the “Individual Defendants.”

13. Each of the Individual Defendants:


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(a) directly participated in the management of the Company;

(b) was directly involved in the day-to-day operations of the Company at the highest

levels;

(c) was privy to confidential proprietary information concerning the Company and its

business and operations;

(d) was directly or indirectly involved in drafting, producing, reviewing and/or

disseminating the false and misleading statements and information alleged herein;

(e) was directly or indirectly involved in the oversight or implementation of the

Company’s internal controls;

(f) was aware of or recklessly disregarded the fact that the false and misleading

statements were being issued concerning the Company; and/or

(g) approved or ratified these statements in violation of the federal securities laws.

14. The Company is liable for the acts of the Individual Defendants and its employees

under the doctrine of respondeat superior and common law principles of agency because all of

the wrongful acts complained of herein were carried out within the scope of their employment.

15. The scienter of the Individual Defendants and other employees and agents of the

Company is similarly imputed to the Company under respondeat superior and agency principles.

16. The Company and the Individual Defendants are referred to herein, collectively,

as the “Defendants.”


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SUBSTANTIVE ALLEGATIONS

Background

17. The Company’s lead product is DEXTENZA, which is in Phase III clinical trial

for the treatment of post-surgical pain and inflammation, allergic conjunctivitis; and in Phase II

clinical trial for the treatment of inflammatory dry eye disease.

18. Form FDA 483 is a form used by the U.S. Food and Drug Administration

(“FDA”) to document and communicate concerns discovered during inspection.

Materially False and Misleading Statements

19. On May 5, 2017, the Company issued a press release disclosing that is had

received a Form 483 related to DEXTENZA, stating in part:

Ocular Therapeutix™ Reports First Quarter 2017 Financial Results

PDUFA Target Action Date of July 19, 2017 for the DEXTENZA™ NDA for the Treatment of Ocular Pain Following Ophthalmic Surgery; Commercial

Launch Preparation Activities Underway

Enrollment Continues in First Phase 3 Clinical Trial of OTX-TP (travoprost insert) for the Treatment of Glaucoma and Ocular Hypertension

Conference Call Today at 8:30 am Eastern Time

May 05, 2017 07:30 AM Eastern Daylight Time BEDFORD, Mass.--(BUSINESS WIRE)--Ocular Therap eutix, Inc. (NASDAQ: OCUL), a biopharmaceutical company focused on the development, manufacturing and commercialization of innovative therapies for diseases and conditions of the eye, today announced financial results for the first quarter ended March 31, 2017. “This is an important time for Ocular Therapeutix as we approach the PDUFA target action date for our lead product candidate, DEXTENZA, for the treatment of ocular pain following ophthalmic surgery,” said Amar Sawhney, Ph.D., President, Chief Executive Officer and Chairman. “Should DEXTENZA be approved, its commercial launch will enable our transition into a fully-integrated, commercial-stage, revenue-generating company. DEXTENZA has now been extensively studied for the treatment of post-surgical ocular pain and inflammation in over 550 clinical trial participants. If approved, we believe


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DEXTENZA will address the compliance issues associated with steroid eyedrops and serve as an attractive alternative for both patients and ophthalmologists.” Recent Highlights and Anticipated Near-Term Milestones for Key Development Programs DEXTENZA™

• A New Drug Application (NDA) for DEXTENZA (dexamethasone insert) 0.4mg for intracanalicular use is currently under review by the U.S. Food and Drug Administration (FDA) for the treatment of ocular pain following ophthalmic surgery. The FDA has set a target action date under the Prescription Drug User Fee Act (PDUFA) of July 19, 2017 for a decision regarding the potential approval of DEXTENZA. Following a re-inspection of manufacturing operations by the FDA which was completed earlier this week, Ocular Therapeutix received an FDA Form 483 containing inspectional observations focused on procedures for manufacturing processes and analytical testing, related to manufacture of drug product for commercial production. The Company plans to evaluate and respond to the FDA within 15 days with corrective action plans to complete the inspection process. Adequate resolution of the outstanding Form 483 inspectional observations is a prerequisite to the approval of the NDA for DEXTENZA.

o Subject to the approval of the NDA for post-surgical ocular pain by the FDA, Ocular Therapeutix intends to submit an NDA supplement for DEXTENZA to broaden its label to include an indication for post-surgical ocular inflammation.

• Ocular Therapeutix plans to present additional data from its most recent Phase 3 study evaluating the efficacy and safety of DEXTENZA for the treatment of ocular pain and inflammation following cataract surgery, at the upcoming American Society of Cataract and Refractive Surgery (ASCRS) Annual Meeting, being held today through Tuesday, May 9, in Los Angeles, CA.

o Additional presentations will be made at the meeting regarding recent positive results of a patient experience study of DEXTENZA as well as the importance of the assessment of ocular pain.

• In addition, DEXTENZA is in Phase 3 clinical development for the treatment of allergic conjunctivitis. In May 2017, the Company initiated a non-significant risk device study to confirm the effect on efficacy of the placebo insert used in previous studies compared with a rapidly resorbing placebo insert.

o Subject to favorable results from this study, the Company plans to conduct an additional Phase 3 clinical trial to further evaluate DEXTENZA for the treatment of allergic conjunctivitis.


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(Emphasis added). 20. On that same day, the Company held an earnings conference call, during which

Defendant Ankerud stated the following regarding the Form 483:

Eric Ankerud Good morning, Ken. Thanks for the question. FDA completed the re-inspection of our facility as part of the NDA review late yesterday afternoon. As Amar mentioned, 43 was issued. We were pleased during the re-inspection that the FDA investigator was able to confirm our corrective action plan from prior observations, and indicated that there was no further follow-up necessary to close out those issues. This was a new investigator not the same investigator from prior inspections, and their primary focus in the 43 relates to a particular matter issue as part of our manufacturing process. The issue relates primarily to completion of an investigation that we have underway in regard to the particular matter solidifying specifications for in process, 100% visual inspection of our inserts, as well as enhancing our operator training. We feel quite comfortable that we have the situation under control and we are preparing responses to the 43 as of this morning in anticipation of responding within 15 calendar days to the agency. In addition to the particular matter issue, FDA raised a couple of observations in regard to analytical method, testing to be completed, as well as some other issue related to quality oversight of batch records. So in summary, we believe that each of the observations raised by FDA during this continuous improvement review of our fully developed manufacturing process are handled well and will be resolved in our response to FDA. We’re also pleased that the collaborative nature of our NDA review has continued between the various offices of FDA, and we’re marching toward that PDUFA date and expect that we can resolve the 43 issues in a timely manner. (Emphasis added). 21. During the earnings conference call, Defendant Sawheny had the following

exchange with an analyst regarding the Form 483:

Andrew Berens Okay. Is there anything in their observations that you think could delay the action date specifically? Amar Sawhney Nothing that we can currently see. I think these -- as you know, probably 90% plus inspections have 483. The question is one of the nature of the issues in the


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483, we think these are resolvable issues, and we have responses. Some already prepared and some being prepared to address them in a timely fashion. (Emphasis added). 22. The statements referenced in ¶¶ 19 - 21 above were materially false and/or

misleading because they misrepresented and failed to disclose the following adverse facts

pertaining to the Company’s business, operational and financial results, which were known to

Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or

misleading statements and/or failed to disclose that: (1) Ocular Therapeutix’s management has

been misleading investors about DEXTENZA manufacturing issues, including that more than

50% of lots manufactured by Ocular Therapeutix contain bad product; (2) such manufacturing

issues could imperil the approval of DEXTENZA by the FDA; and (3) as a result, Defendants’

public statements were materially false and misleading at all relevant times.

The Truth Emerges

23. On July 6, 2017, Seeking Alpha published an article on the Company concerning

DEXTENZA manufacturing issues, stating in pertinent part:

Ocular: A Poke In The Eye Jul. 6, 2017 3:09 PM ET66 comments by: TripleGate Summary

• Dextenza unlikely to get approved by the FDA on July 19 PDUFA date.

• Management has been misleading investors about manufacturing.

• OCUL’s hydrogel technology is worthless at the moment. I used to be an investor in Ocular Therapeutix (NASDAQ:OCUL) because the risk/reward was highly attractive and the company had a lot of potential. Unfortunately, management has failed to execute and brought the company to


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the brink of collapse. It is not surprising to me that the ENTIRE senior management has resigned recently (CFO, CMO and CEO). Dextenza Manufacturing Issues OCUL has disclosed that they received a second 483 from the FDA after their facility re-inspection. Even a layperson reading this can tell that the company is having serious manufacturing issues, and their whole approach to manufacturing and patient safety is highly questionable. What’s more troubling is that either management doesn’t fully understand the letter, or they have been misleading investors. Both are bad. On their last earnings call. management made a number of statements regarding the 483 and the company’s manufacturing process:

“We were pleased during the re-inspection that the FDA investigator was able to confirm our corrective action plan from prior observations, and indicated that there was no further follow-up necessary to close out those issues.” Ocular Therapeutix’s CEO Amar Sawhney on Q1 2017 Results - Earnings Call Transcript. “So I think that’s a strong sign that the manufacturing process has move forward significantly, and is in a fully developed mode.”

The CEO concluded:

“Also remembering that this is a new investigator, different one that came last time. So when you have a different one coming, they confirm what the prior one did, and then they probably have some additional helpful suggestions.”

Now, let’s look at reality:

First, OCUL has REPEAT observations. Not only did they not resolve prior issues, but have committed worse transgressions. Here is a copy of the first 483 Observation 6 reads: “Laboratory controls do not include the establishment of scientifically sound and appropriate test procedures designed to assure that drug products conform to appropriate standards of identity, strength, quality and purity.” Observation 5 of the second 483 reads: “Laboratory controls do not include the establishment of scientifically sound and appropriate specifications and test procedures designed to assure that drug products conform to appropriate standards of identity, strength, quality and purity.” Sounds familiar?


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Observation 3 of the second 483 reads: “There are no written procedures for production and process controls designed to assure that the drug products have the identity, strength, quality, and purity they purport or are represented to possess. Specifically, your firm lacks documentation to show that your product can consistently meet specifications as you have not systemically evaluated the [redacted] lots manufactured from FEB2016 to present, of which [redacted] failed specification and were disposed of in-process” In plain English, this means, OCUL still doesn’t know to make their product consistently. How does OCUL deal with instances when product doesn’t meet specifications? They have been discarding bad manufacturing lots without investigation. Second, OCUL has characterized their manufacturing as “in a fully developed mode.” Well, Observation 1 of the second 483 reads: “Particulate matter has been noted in 10/23 lots (intended use clinical, R&D, stability, etc.) manufactured from FEB2016 to date. The remaining [redacted] lots were scrapped prior to the visual inspection therefore their particulate status remains unknown.” In plain English, this means that more than 50% of lots manufactured by OCUL contain bad product. That leaves plenty of room for additional development. Sometimes, OCUL has had to discard entire lots because they were out of spec!! Third, if OCUL only discarded bad product without investigation, that would be a bad thing. But in fact, they have been using bad product in clinical trials and have released some into their commercial supply! Observation 1 continues: “Particulates were not logged as product defects prior to FEB2016, therefore lots released prior to that date, such as clinical trial lots [redacted], released [redacted]respectively and used in human clinical trials are unknown with respect to particulate status.” Observation 2 reads: “The following batches were released without an understanding of the defects present, more specifically, particulate matter of unknown origin and composition at the time of release: ....all three lots were released for intended commercial use on 12JAN2017 without critical defect limits” OCUL believes that their manufacturing is “fully developed” and remaining issues can be resolved quickly. The reality is, IF Dextenza is possible to manufacture on a mass scale, something which hasn’t been done before, OCUL needs to revamp their entire process from the ground up, which can take years to do. They need to use the proper scientific tools and procedures.


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(Observation 5 of the second 483 says that the scales OCUL has been using aren’t sensitive enough to weigh the “full range of materials”) Fourth, calling 483 observations “helpful suggestions,” reflects a lack of understanding of the FDA compliance function. I have a lot of respect for OCUL’s now-former CEO. He is a brilliant person and a highly successful entrepreneur. However, the pharmaceutical world is not his, and he finally recognized that he is not the right person to develop the company further. (Emphasis in original).

24. On that same day, STAT published an article on the Company asserting that

DEXTENZA could be rejected by the FDA because of product contamination, including

aluminum, found by an FDA inspector during a visit to the company’s manufacturing facility.

25. On this news, shares of Ocular Therapeutix fell $3.06 per share or over 30% over

two trading days to close at $7.12 per share on July 7, 2017, damaging investors.

26. As a result of Defendants’ wrongful acts and omissions, and the precipitous

decline in the market value of the Company’s securities, Plaintiff and other Class members have

suffered significant losses and damages.

PLAINTIFF’S CLASS ACTION ALLEGATIONS

27. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil

Procedure 23(a) and (b)(3) on behalf of a Class, consisting of all those who purchased or

otherwise acquired the publicly traded securities of Ocular Therapeutix during the Class Period

(the “Class”) and were damaged upon the revelation of the alleged corrective disclosures.

Excluded from the Class are Defendants herein, the officers and directors of the Company, at all

relevant times, members of their immediate families and their legal representatives, heirs,

successors or assigns and any entity in which Defendants have or had a controlling interest.

28. The members of the Class are so numerous that joinder of all members is

impracticable. Throughout the Class Period, Ocular Therapeutix securities were actively traded


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on the NASDAQ. While the exact number of Class members is unknown to Plaintiff at this time

and can be ascertained only through appropriate discovery, Plaintiff believes that there are

hundreds or thousands of members in the proposed Class. Record owners and other members of

the Class may be identified from records maintained by the Company or its transfer agent and

may be notified of the pendency of this action by mail, using the form of notice similar to that

customarily used in securities class actions.

29. Plaintiff’s claims are typical of the claims of the members of the Class as all

members of the Class are similarly affected by Defendants’ wrongful conduct in violation of

federal law that is complained of herein.

30. Plaintiff will fairly and adequately protect the interests of the members of the

Class and has retained counsel competent and experienced in class and securities litigation.

Plaintiff has no interests antagonistic to or in conflict with those of the Class.

31. Common questions of law and fact exist as to all members of the Class and

predominate over any questions solely affecting individual members of the Class. Among the

questions of law and fact common to the Class are:

• whether the federal securities laws were violated by Defendants’ acts as alleged

herein;

• whether statements made by Defendants to the investing public during the Class

Period misrepresented material facts about the financial condition, business,

operations, and management of the Company;

• whether Defendants’ public statements to the investing public during the Class

Period omitted material facts necessary to make the statements made, in light of

the circumstances under which they were made, not misleading;


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• whether the Individual Defendants caused the Company to issue false and

misleading SEC filings and public statements during the Class Period;

• whether Defendants acted knowingly or recklessly in issuing false and misleading

SEC filings and public statements during the Class Period;

• whether the prices of Ocular Therapeutix securities during the Class Period were

artificially inflated because of the Defendants’ conduct complained of herein; and

• whether the members of the Class have sustained damages and, if so, what is the

proper measure of damages.

32. A class action is superior to all other available methods for the fair and efficient

adjudication of this controversy since joinder of all members is impracticable. Furthermore, as

the damages suffered by individual Class members may be relatively small, the expense and

burden of individual litigation make it impossible for members of the Class to individually

redress the wrongs done to them. There will be no difficulty in the management of this action as

a class action.

33. Plaintiff will rely, in part, upon the presumption of reliance established by the

fraud-on-the-market doctrine in that:

• Defendants made public misrepresentations or failed to disclose material facts

during the Class Period;

• the omissions and misrepresentations were material;

• Ocular Therapeutix securities are traded in efficient markets;

• the Company’s securities were liquid and traded with moderate to heavy volume

during the Class Period;

• the Company traded on the NASDAQ, and was covered by multiple analysts;


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• the misrepresentations and omissions alleged would tend to induce a reasonable

investor to misjudge the value of the Company’s securities; and

• Plaintiff and members of the Class purchased and/or sold Ocular Therapeutix

securities between the time the Defendants failed to disclose or misrepresented

material facts and the time the true facts were disclosed, without knowledge of the

omitted or misrepresented facts.

34. Based upon the foregoing, Plaintiff and the members of the Class are entitled to a

presumption of reliance upon the integrity of the market.

35. Alternatively, Plaintiff and the members of the Class are entitled to the

presumption of reliance established by the Supreme Court in Affiliated Ute Citizens of the State

of Utah v. United States, 406 U.S. 128, 92 S. Ct. 2430 (1972), as Defendants omitted material

information in their Class Period statements in violation of a duty to disclose such information,

as detailed above.

COUNT I

Violation of Section 10(b) of The Exchange Act and Rule 10b-5 Against All Defendants

36. Plaintiff repeats and realleges each and every allegation contained above as if

fully set forth herein.

37. This Count is asserted against the Company and the Individual Defendants and is

based upon Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated

thereunder by the SEC.

38. During the Class Period, the Company and the Individual Defendants,

individually and in concert, directly or indirectly, disseminated or approved the false statements

specified above, which they knew or deliberately disregarded were misleading in that they


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contained misrepresentations and failed to disclose material facts necessary in order to make the

statements made, in light of the circumstances under which they were made, not misleading.

39. The Company and the Individual Defendants violated §10(b) of the 1934 Act and

Rule 10b-5 in that they:

• employed devices, schemes and artifices to defraud;

• made untrue statements of material facts or omitted to state material facts

necessary in order to make the statements made, in light of the circumstances

under which they were made, not misleading; or

• engaged in acts, practices and a course of business that operated as a fraud or

deceit upon plaintiff and others similarly situated in connection with their

purchases of Ocular Therapeutix securities during the Class Period.

40. The Company and the Individual Defendants acted with scienter in that they knew

that the public documents and statements issued or disseminated in the name of the Company

were materially false and misleading; knew that such statements or documents would be issued

or disseminated to the investing public; and knowingly and substantially participated, or

acquiesced in the issuance or dissemination of such statements or documents as primary

violations of the securities laws. These defendants by virtue of their receipt of information

reflecting the true facts of the Company, their control over, and/or receipt and/or modification of

the Company’s allegedly materially misleading statements, and/or their associations with the

Company which made them privy to confidential proprietary information concerning the

Company, participated in the fraudulent scheme alleged herein.

41. Individual Defendants, who are the senior officers and/or directors of the

Company, had actual knowledge of the material omissions and/or the falsity of the material


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statements set forth above, and intended to deceive Plaintiff and the other members of the Class,

or, in the alternative, acted with reckless disregard for the truth when they failed to ascertain and

disclose the true facts in the statements made by them or other personnel of the Company to

members of the investing public, including Plaintiff and the Class.

42. As a result of the foregoing, the market price of Ocular Therapeutix securities was

artificially inflated during the Class Period. In ignorance of the falsity of the Company’s and the

Individual Defendants’ statements, Plaintiff and the other members of the Class relied on the

statements described above and/or the integrity of the market price of Ocular Therapeutix

securities during the Class Period in purchasing Ocular Therapeutix securities at prices that were

artificially inflated as a result of the Company’s and the Individual Defendants’ false and

misleading statements.

43. Had Plaintiff and the other members of the Class been aware that the market price

of Ocular Therapeutix securities had been artificially and falsely inflated by the Company’s and

the Individual Defendants’ misleading statements and by the material adverse information which

the Company’s and the Individual Defendants did not disclose, they would not have purchased

Ocular Therapeutix securities at the artificially inflated prices that they did, or at all.

44. As a result of the wrongful conduct alleged herein, Plaintiff and other members

of the Class have suffered damages in an amount to be established at trial.

45. By reason of the foregoing, the Company and the Individual Defendants have

violated Section 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder and are liable to

the Plaintiff and the other members of the Class for substantial damages which they suffered in

connection with their purchases of Ocular Therapeutix securities during the Class Period.


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COUNT II

Violation of Section 20(a) of The Exchange Act Against The Individual Defendants

46. Plaintiff repeats and realleges each and every allegation contained in the

foregoing paragraphs as if fully set forth herein.

47. During the Class Period, the Individual Defendants participated in the operation

and management of the Company, and conducted and participated, directly and indirectly, in the

conduct of the Company’s business affairs. Because of their senior positions, they knew the

adverse non-public information regarding the Company’s business practices.

48. As officers and/or directors of a publicly owned company, the Individual

Defendants had a duty to disseminate accurate and truthful information with respect to the

Company’s financial condition and results of operations, and to correct promptly any public

statements issued by the Company which had become materially false or misleading.

49. Because of their positions of control and authority as senior officers, the

Individual Defendants were able to, and did, control the contents of the various reports, press

releases and public filings which the Company disseminated in the marketplace during the Class

Period. Throughout the Class Period, the Individual Defendants exercised their power and

authority to cause the Company to engage in the wrongful acts complained of herein. The

Individual Defendants therefore, were “controlling persons” of the Company within the meaning

of Section 20(a) of the Exchange Act. In this capacity, they participated in the unlawful conduct

alleged which artificially inflated the market price of Ocular Therapeutix securities.

50. Each of the Individual Defendants, therefore, acted as a controlling person of the

Company. By reason of their senior management positions and/or being directors of the

Company, each of the Individual Defendants had the power to direct the actions of, and


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exercised the same to cause, the Company to engage in the unlawful acts and conduct

complained of herein. Each of the Individual Defendants exercised control over the general

operations of the Company and possessed the power to control the specific activities which

comprise the primary violations about which Plaintiff and the other members of the Class

complain.

51. By reason of the above conduct, the Individual Defendants are liable pursuant to

Section 20(a) of the Exchange Act for the violations committed by the Company.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendants as follows:

A. Determining that the instant action may be maintained as a class action under

Rule 23 of the Federal Rules of Civil Procedure, and certifying Plaintiff as the Class

representative;

B. Requiring Defendants to pay damages sustained by Plaintiff and the Class by

reason of the acts and transactions alleged herein;

C. Awarding Plaintiff and the other members of the Class prejudgment and post-

judgment interest, as well as their reasonable attorneys’ fees, expert fees and other costs; and

D. Awarding such other and further relief as this Court may deem just and proper.


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DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury.

Dated: July 7, 2017 Respectfully submitted,

THE ROSEN LAW FIRM, P.A. By: /s/ Laurence M. Rosen Laurence M. Rosen 609 W. South Orange Avenue, Suite 2P South Orange, NJ 07079 Tel: (973) 313-1887 Fax: (973) 833-0399 Email: [email protected] Counsel for Plaintiff


Case 2:17-cv-05011-SDW-LDW Document 1-1 Filed 07/07/17 Page 1 of 2 PagelD: 20

Certification and Authorization of Nam ed Plaintiff Pursuant toFederal Securities Laws

The individual or institution listed below (the "Plaintiff") authorizes and, upon execution of the

accompanying retainer agreement by The Rosen Law Firm P.A., retains The Rosen Law Firm P.A.to file an action under the federal securities laws to recover damages and to seek other relief

against Ocular Therapeutix, Inc..The Rosen Law Firm P.A. will prosecute the action on a contingentfee basis and will advance all costs and expenses.The Ocular Therapeutix, Inc.. Retention

Agreement provided to the Plaintiff is incorporated by reference, upon execution by The Rosen LawFirm P.A.

First nam e: ThomasM id d le in itia I:Last nam e:

Address:C ity:S tate:

Zip:Country:Facsim ile:Phone:Em ail:

Plaintiff certifies that:

1. Plaintiff has reviewed the complaint and authorized its filing.2. Plaintiff did not acquire the security that is the subject of this action at the direction of plaintiff's

counsel or in order to participate in this private action or any other litigation under the federalsecurities laws.

3. Plaintiff is willing to serve as a representative party on behalf of a class, including providingtestimony at deposition and trial, if necessary.

4. Plaintiff represents and warrants that helshelit is fully authorized to enter into and execute thiscertification.

5. Plaintiff will not accept any payment for serving as a representative party on behalf of the class

beyond the Plaintiff's pro rata share of any recovery, except such reasonable costs and

expenses (including lost wages) directly relating to the representation of the class as ordered or

approved by the court.

6. Plaintiff has made no transaction(s) during the Class Period in the debt or equity securities thatare the subject of this action except those set forth below:

Acquisitions:

Type of Security B u y Date of Shares P r i c e per ShareCommon Stock 0512212017 24800 11.26Common Stock 0512212017 200 11.25

Sales

Type of Security Sale Date of Shares P ric e per Share

Common Stock 0710712017 25000 7.36

u a iia nerREDACTED

Case 2:17-cv-05011-SDW-LDW Document 1-1 Filed 07/07/17 Page 2 of 2 PagelD: 21

Certification forThom as Gallagher (cont.)

7. I have not served as a representative party on behalf of a class under the federal securities laws

during the last three years, except if detailed below. I

I declare under penalty of perjury, under the laws of theUnited States, that the information entered is accurate: YES

By clicking on the button below, I intend to sign and executethis agreement and retain the Rosen Law Firm, P.A. to

proceed on Plaintiff's behalf, on a contingent fee basis. Y E S

Signed pursuant to California Civil Code Section 1633.1, et seq.- and the Uniform ElectronicTransactions Act as adopted by the various states and territories of the United States.

Date of signing:0710712017

JS 44 (Rev. 0 /16) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation

Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations

153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts

362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision245 Tort Product Liability Accommodations 530 General 950 Constitutionality of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions448 Education 555 Prison Condition

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court4 Reinstated or

Reopened 5 Transferred from

Another District(specify)

6 MultidistrictLitigation -Transfer

8 Multidistrict Litigation -

Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

I. (a) PLAINTIFFSTHOMAS GALLAGHER, Individually and on behalf of all others similarlysituated,

Bergen County

The Rosen Law Firm, P.A., Laurence M. Rosen,609 W. South Orange Avenue, Suite 2P, South Orange, NJ 07079Tel.: (973) 313-1887, [email protected]

DEFENDANTSOCULAR THERAPEUTIX, INC., AMARPREET SAWHNEY, GEORGE MIGAUSKY, ANDREW HURLEY, and ERIC ANKERUD,

15 U.S.C. 78j(b) and 78t(a), and 17 C.F.R. 240.10b-5

Violations of the federal securities laws

07/07/2017 /s/Laurence M. Rosen

Case 2:17-cv-05011-SDW-LDW Document 1-2 Filed 07/07/17 Page 1 of 2 PageID: 22

JS 44 Reverse (Rev. 0 /16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, useonly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takesprecedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thecitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more thanone nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.Section 1407.Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due tochanges in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docketnumbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 2:17-cv-05011-SDW-LDW Document 1-2 Filed 07/07/17 Page 2 of 2 PageID: 23

ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Lawsuit: Investors Blind to Ocular Therapeutix’s Quality Issues

https://www.classaction.org/news/lawsuit-investors-blind-to-ocular-therapeutixs-quality-issues

the rosen law firm, p.a. laurence m. rosen, esq. · (“ocular therapeutix” or the...

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