Bragar Eagel & Squire, P.C. Reminds Investors That Class Action Lawsuits Have Been Filed Against GDS, Arrow, ImmunityBio, and BioXcel and Encourages Investors to Contact the Firm

NEW YORK, Aug. 11, 2023 (GLOBE NEWSWIRE) -- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of GDS Holdings Limited (NASDAQ: GDS), Arrow Financial Corporation (NASDAQ: AROW), ImmunityBio, Inc. (NASDAQ: IBRX), and BioXcel Therapeutics, Inc. (NASDAQ: BTAI). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided.

GDS Holdings Limited (NASDAQ: GDS)

Class Period: April 12, 2021 – April 3, 2023

Lead Plaintiff Deadline: August 21, 2023

On April 4, 2023, GDS announced on Form 20-F that Chief Executive Officer (“CEO”), William Wei Huang, entered into pre-paid forward sale contract transactions, which the Company previously omitted. The Form 20-F states that “Mr. Huang has in the past entered into, and may in the future enter into, certain transactions from time to time, including derivative transactions, that have and could have the effect of reducing Mr. Huang’s beneficial ownership in our company. Mr. Huang informed our company that certain variable pre-paid forward sale contract transactions in respect of 42,457,504 ordinary shares beneficially owned by him, which transactions he originally entered into between May 2020 and June 2022, would expire between March 2023 and December 2023. If Mr. Huang chooses to settle these transactions by transferring ownership of the 42,457,504 ordinary shares to the counterparties, his beneficial ownership interest in our total issued share capital may decrease to below 5%, which would trigger an automatic conversion event, unless the 5% threshold contained in our Articles of Association is reduced or he otherwise acquires beneficial ownership of additional shares to keep his beneficial ownership at or above 5% or such other threshold if so reduced.

Should this happen, all Class B ordinary shares would automatically convert into Class A ordinary shares, and the dual-class share structure would thereby be terminated. This would constitute a change of control for the purposes of certain of our, or our subsidiaries’ and the consolidated entities’, sales agreements and domestic loan facility agreements, and if such provisions under the domestic loan agreements are triggered, which could give the lenders the right to demand early repayment under these domestic loan agreements. Such change of control may result in actual, potential or alleged breaches or early termination of other contracts or agreements. The change of control potentially may also have implications for the purposes of China’s national security review regime and anti-monopoly merger filing requirements, if applicable. The occurrence of any of the foregoing may have a material and adverse effect on our business development, financial condition and future prospects.”

On this news, GDS’ American depositary receipt (“ADR”) price fell $0.74 per ADR, or 3.99%, to close at $17.80 per ADR on April 4, 2023.

According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose, among other things, that: (1) Defendant Huang had engaged in undisclosed pre-paid forward sale contract transactions as early as May 2020; (2) this presented a risk of Defendant Huang’s ownership going below 5% of the Company’s outstanding shares; (3) if Huang’s ownership dipped below 5%, it would result in a change of control of the Company which, as the Company admitted, could result in disastrous consequences; and (4); as a result, Defendants’ statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages.

For more information on the GDS class action go to: https://bespc.com/cases/GDS

Arrow Financial Corporation (NASDAQ: AROW)

Class Period: March 12, 2022 – May 12, 2023

Lead Plaintiff Deadline: August 22, 2023

Arrow is a bank holding company that provides commercial and consumer banking, as well as financial products and services. The Company’s common stock trades on the NASDAQ Global Select Market (“NASDAQ”). Accordingly, the Company is subject to the NASDAQ’s listing and periodic filing requirements, including the requirement to timely file quarterly and annual reports with the U.S. Securities and Exchange Commission (“SEC”).

On March 16, 2023, Arrow disclosed that it could not timely file its annual report on Form 10-K with the SEC for the quarter and year ended December 31, 2022 (the “2022 10-K”) because “[t]he Company requires additional time to complete the assessment of the effectiveness of internal controls over financial reporting as of December 31, 2022.” Arrow also advised that it “believes that the [2022] 10-K will be filed within the extension period provided under Rule 12b-25 of the [Exchange Act], as amended.”

On this news, Arrow’s stock price fell $0.99 per share, or 3.64%, to close at $26.21 per share on March 17, 2023.

On March 31, 2023, Arrow disclosed that “it will not be able to timely file the [2022 10-K]” within the extension period provided under Rule 12b-25 of the Exchange Act, as amended. The same filing also noted that Defendants expect to disclose deficiencies in the Company’s internal controls over financial reporting in the purportedly forthcoming 2022 10-K, which related to, inter alia, the failure to (i) design and maintain an effective risk assessment process, (ii) design and maintain effective monitoring activities to provide sufficient management oversight over the internal control evaluation process to support the internal control objectives, and (iii) assess and communicate the severity of identified deficiencies in a timely manner to those individuals responsible for taking corrective action.

On May 11, 2023, Arrow disclosed that it could not timely file its quarterly report on Form 10-Q with the SEC for the quarter ended March 31, 2023 (the “1Q23 10-Q”) “because the Company continued to require additional time to complete management’s assessment of the effectiveness of internal controls over financial reporting as of December 31, 2022[.]”

On this news, Arrow’s stock price fell $0.33 per share, or 1.66%, to close at $19.59 per share on May 12, 2023.

On April 5, 2023, Arrow disclosed that, on April 3, 2023, it received a notice of non-compliance with the NASDAQ’s periodic filing requirements because of the Company’s failure to timely file the 2022 10-K with the SEC. 

Then, on May 15, 2023, Arrow disclosed that, on May 12, 2023, it received a second notice of non-compliance with the NASDAQ’s periodic filing requirements because of the Company’s failure to timely file the 1Q23 10-Q with the SEC. Arrow also disclosed that the Company’s “President and Chief Executive Officer and a member of the Board of Directors of Arrow . . . terminated his employment as President and CEO and as a director of the Company and from all other positions he holds with the Company and its affiliates, effective May 12, 2023.”

On this news, Arrow’s stock price fell $0.53 per share, or 2.71%, to close at $19.06 per share on May 15, 2023.

The Complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company’s business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Arrow maintained defective disclosure controls and procedures and internal controls over financial reporting; (ii) the foregoing increased the risk that the Company could not timely file one or more of its periodic financial reports with the SEC as required by the NASDAQ’s listing requirements; (iii) accordingly, Arrow was at an increased risk of being delisted from the NASDAQ; (iv) following the disclosure of deficiencies in the Company’s disclosure controls and procedures and internal controls over financial reporting, Arrow downplayed the severity of these issues and the associated risks; and (v) as a result, the Company’s public statements were materially false and misleading at all relevant times.

For more information on the Arrow class action go to: https://bespc.com/cases/AROW

ImmunityBio, Inc. (NASDAQ: IBRX)

Class Period: May 23, 2022 – May 10, 2023

Lead Plaintiff Deadline: August 29, 2023

ImmunityBio is a clinical-stage biotechnology company that engages in developing therapies and vaccines that complement, harness, and amplify the immune system to defeat cancers and infectious diseases in the U.S. and Europe. The Company offers immunotherapy and cell therapy platforms, including, inter alia, antibody cytokine fusion protein N-803, commercially referred to as “Anktiva”. The Company uses third-party contract manufacturing organizations (“CMOs”) to produce certain of its product candidates, including Anktiva.

In May 2022, ImmunityBio submitted a Biologics License Application (“BLA”) for Anktiva to the U.S. Food and Drug Administration (“FDA”). Following submission of its application, ImmunityBio consistently assured investors that “[w]e have established Good Manufacturing Practice (GMP) manufacturing capacity at scale with cutting-edge cell manufacturing expertise and ready-to-scale facilities[.]”

On May 11, 2023, during pre-market hours, ImmunityBio announced that the FDA had rejected the BLA for Anktiva in its present form, citing “deficiencies relat[ing] to the FDA’s pre-license inspection of the Company’s third-party contract manufacturing organizations.”

On this news, ImmunityBio’s stock price fell $3.43 per share, or 55.14%, to close at $2.79 per share on May 11, 2023.

The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company’s business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) ImmunityBio conducted insufficient due diligence to discover, or else did discover and ignored, GMP deficiencies at its third-party CMOs for Anktiva; (ii) one or more of the Company’s third-party CMOs for Anktiva did in fact suffer from GMP deficiencies; (iii) the foregoing deficiencies was likely to cause the FDA to reject the Anktiva BLA in its present form; (iv) accordingly, the Company overstated the regulatory approval prospects for the Anktiva BLA; and (v) as a result, the Company’s public statements were materially false and misleading at all relevant times.

For more information on the ImmunityBio class action go to: https://bespc.com/cases/IBRX

BioXcel Therapeutics, Inc. (NASDAQ: BTAI)

Class Period: December 15, 2021 – June 28, 2023

Lead Plaintiff Deadline: September 5, 2023

On December 15, 2021, the Company announced that it had initiated a program to evaluate BXCL501 for the treatment of acute agitation associated with Alzheimer’s disease. The Company announced that the program consisted of two randomized, double-blind, placebo-controlled studies: TRANQUILITY II and TRANQUILITY III. The studies were purportedly designed to evaluate the safety and efficacy of BXCL501 in adults 65 years and older across the range of illness including mild, moderate, and severe dementia in assisted living or residential facilities and nursing homes.

However, on June 29, 2023, before the market opened, BioXcel disclosed that its principal investigator for the Phase 3 TRANQUILITY II clinical trial had failed to “adhere to the informed consent form approved by the Institutional Review Board” for some subjects and failed to maintain adequate case histories for certain patients whose records were reviewed by the Food and Drug Administration (“FDA”). The Company further disclosed that the same principal investigator “may have fabricated” email correspondence purporting to demonstrate that the investigator timely submitted to the Company’s pharmacovigilance safety vendor a report of a serious adverse event (“SAE”) and purporting to show that the vendor had confirmed receipt. BioXcel further disclosed that the fabricated email correspondence was provided to the FDA during an on-site inspection in December 2022. The Company further disclosed that it was in the process of conducting an investigation into protocol adherence and data integrity at the principal investigator’s trial site and was in the process of retaining an independent third party to audit the data collected at the site. The Company also disclosed that the foregoing “may impact the timing of the Company’s development plans for, and prospects for regulatory approval of, BXCL501 for the acute treatment of agitation associated with dementia in patients with probable Alzheimer’s disease.”

On this news, BioXcel’s stock price fell $11.28 per share, or 63.8%, to close at $6.39 per share on June 29, 2023, on unusually heavy trading volume.

The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company’s business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company lacked adequate internal controls over protocol adherence and data integrity; (2) that, as a result, the Company’s principal investigator failed to adhere to the informed consent form approved by the Institutional Review Board; (3) that the Company’s principal investigator failed to maintain adequate case histories for certain patients whose records were reviewed by the FDA; (4) that the Company’s principal investigator fabricated email correspondence with a pharmacovigilance safety vendor that was then provided to the FDA; (5) that the foregoing would negatively impact the Company’s ability to obtain regulatory approval of BXCL501 for the treatment of agitation associated with dementia in patients with probable Alzheimer’s disease; and (6) that, as a result of the foregoing, Defendants’ positive statements about the Company’s business, operations, and prospects were materially misleading and/or lacked a reasonable basis.

For more information on the BioXcel class action go to: https://bespc.com/cases/BTAI

About Bragar Eagel & Squire, P.C.:

Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes.

Contact Information:

Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Marion Passmore, Esq.
(212) 355-4648
[email protected]
www.bespc.com