Jane Kober is no stranger to the disclosure requirements for public companies. In her seven years as general counsel of Biopure Corp., a small Massachusetts-based drug company, she’s regularly signed off on scores of filings with the Securities and Exchange Commission. But disclosure questions always boil down to judgment calls, and now Kober’s judgment has been seriously second-guessed.
In a civil fraud action set for trial in May, the SEC argues that Biopure, Kober and two former executives misled investors about the prospects for Hemopure, a blood substitute that is the company’s flagship product. Biopure’s application for Hemopure ran into mounting problems at the Food and Drug Administration in 2003, according to the SEC. Yet during an eight-month period that year in which Biopure raised $35 million from stock offerings, the company allegedly failed to disclose the bad news. The SEC contends that Biopure withheld some material information about the Hemopure application from investors and put a falsely positive spin on other negative news from the FDA.
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