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Darryl Keith Rosencrants, Et Al. V. Danimer Scientific, Inc., Et Al. 21-CV-02708-Class Action Complaint

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Darryl Keith Rosencrants, Et Al. V. Danimer Scientific, Inc., Et Al. 21-CV-02708-Class Action Complaint Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 1 of 30 PageID #: 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK DARRYL KEITH ROSENCRANTS, Case No. Individually and on Behalf of All Others Similarly Situated, CLASS ACTION COMPLAINT Plaintiff, v. JURY TRIAL DEMANDED DANIMER SCIENTIFIC, INC., STEPHEN E. CROSKREY, JOHN A. DOWDY, III, JOHN P. AMBOIAN, RICHARD J. HENDRIX, CHRISTY BASCO, PHILIP GREGORY CALHOUN, GREGORY HUNT, ISAO NODA, and STUART W. PRATT, Defendants. Plaintiff Darryl Keith Rosencrants (“Plaintiff”), individually and on behalf of all others similarly situated, by Plaintiff’s undersigned attorneys, for Plaintiff’s complaint against Defendants, 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 (“U.S.”) Securities and Exchange Commission (“SEC”) filings, wire and press releases published by and regarding Danimer Scientific, Inc. (“Danimer” or the “Company”), analysts’ reports and advisories about the Company, and information readily obtainable on the Internet. Plaintiff believes that substantial additional evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. 1 Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 2 of 30 PageID #: 2 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 that purchased or otherwise acquired Danimer securities between December 30, 2020 and March 19, 2021, both dates inclusive (the “Class Period”), seeking to recover 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, against the Company and certain of its top officials. 2. Danimer was formerly known as “Live Oak Acquisition Corp.” (“Live Oak”), a publicly traded special purpose acquisition company (“SPAC”).1 In December 2020, Live Oak consummated a business combination with Meredian Holdings Group, Inc., doing business as Danimer Scientific (“Legacy Danimer”), a performance polymer company specializing in bioplastic replacements for traditional petrochemical-based plastics (the “Business Combination”). Following the Business Combination, Live Oak changed its name to “Danimer Scientific, Inc.,” changed its business to Legacy Danimer’s business, and replaced its management with Legacy Danimer’s management. 3. Since 2020, Legacy Danimer—and, following the Business Combination, Danimer—has sold polyhydroxyalkanoates (“PHAs”) commercially under its proprietary “Nodax” brand name for usage in a wide variety of plastic applications including water bottles, straws, and food containers, among others. The Company has touted Nodax as a 100% biodegradable, renewable, and sustainable plastic, which is purportedly superior to traditional plastics because of 1 An SPAC is a development stage company that has no specific business plan or purpose or has indicated its business plan is to engage in a merger or acquisition with an unidentified company or companies, other entity, or person. 2 Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 3 of 30 PageID #: 3 its advanced biodegradability. The Company attributes Nodax’s advanced biodegradability to microorganisms in nature that eat the bioplastic. 4. Weighing against the credibility of these claims is a troubled history of dubious business practices by Legacy Danimer’s—now Danimer’s—prior and current management. For example, the Company’s current Chief Executive Officer (“CEO”) and Chairman of the Board of Directors (“Chairman”), Stephen E. Croskrey (“Croskrey”), previously served as president of an armor company that paid $30 million to the U.S. Department of Justice (“DOJ”) to settle claims that the company knowingly manufactured and sold defective bullet-proof vests. Court documents indicate that Croskrey had attempted to cover up this fraud by threatening a supplier. Months before going public, Legacy Danimer also settled a lawsuit with its former CEO, alleging that he had fabricated his resume and entered into a fraudulent side agreement with a former director. Moreover, a Live Oak partner, Gary Wunderlich (“Wunderlich”), was previously accused by the SEC of aiding and abetting an entity’s violations of antifraud and compliance provisions. 5. 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) Danimer had deficient internal controls; (ii) as a result, the Company had misrepresented, inter alia, its operations’ size and regulatory compliance; (iii) Defendants had overstated Nodax’s biodegradability, particularly in oceans and landfills; and (iv) as a result, the Company’s public statements were materially false and misleading at all relevant times. 6. On March 20, 2021, the Wall Street Journal (“WSJ”) published an article entitled “Plastic Straws That Quickly Biodegrade in the Ocean, Not Quite, Scientists Say” addressing, among other things, Danimer’s claims that Nodax breaks down far more quickly than fossil-fuel 3 Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 4 of 30 PageID #: 4 plastics. The WSJ article alleged that, according to several experts on biodegradable plastics, “many claims about Nodax are exaggerated and misleading.” While Danimer reportedly asserts its claims are factual, the article cites at least one expert as stating that making broad claims about Nodax’s biodegradability “is not accurate” and is “greenwashing.” 7. On March 22, 2021, the first trading day following publication of the WSJ article, Danimer’s stock price fell $6.43 per share, or 12.87%, to close at $43.55 per share on March 22, 2021. 8. Following the end of the Class Period, on April 22, 2021, Spruce Point Capital Management (“Spruce Point”) published a report on Danimer, noting, among other red flags, various inconsistencies with Legacy Danimer’s (and Danimer’s) historical and present claims regarding the size of its operations, Nodax’s makeup and degradability, and the Company’s expected profitability. 9. Following publication of the Spruce Point report, Danimer’s stock price fell $2.01 per share, or 8.04%, to close at $22.99 per share on April 22, 2021. 10. Then, on May 4, 2021, Spruce Point published another report on Danimer alleging that the Company had “wildly overstated” production figures, pricing, and financial projections based on documents Spruce Point had acquired from the Commonwealth of Kentucky’s Department of Environmental Protection (“KDEP”) under the Freedom of Information Act (“FOIA”), all of which cast serious doubt on the integrity of the Company’s internal controls. 11. Following publication of this second Spruce Point report, Danimer’s stock price fell $1.49 per share, or 6.31%, to close at $22.14 per share on April 22, 2021. 4 Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 5 of 30 PageID #: 5 12. 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. JURISDICTION AND VENUE 13. The claims asserted herein arise under and pursuant to Sections 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). 14. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and Section 27 of the Exchange Act. 15. Venue is proper in this Judicial District pursuant to Section 27 of the Exchange Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1391(b), as the alleged misstatements entered and the subsequent damages took place in this Judicial District. Pursuant to Danimer’s most recent annual report on Form 10-K, at March 26, 2021, there were 88,327,719 shares of the Company’s Class A common stock outstanding. Danimer’s Class A common stock trades on the New York Stock Exchange (“NYSE”). Accordingly, there are presumably hundreds, if not thousands, of investors in Danimer’s Class A common stock located within the U.S., some of whom undoubtedly reside in this Judicial District. 16. In connection with the acts alleged in this Complaint, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications, and the facilities of the national securities markets. 5 Case 1:21-cv-02708 Document 1 Filed 05/14/21 Page 6 of 30 PageID #: 6 PARTIES 17. Plaintiff, as set forth in the attached Certification, acquired Danimer securities at artificially inflated prices during the Class Period and was damaged upon the revelation of the alleged corrective disclosures. 18. Danimer is a Delaware corporation with principal executive offices located at 140 Industrial Boulevard, Bainbridge, Georgia 39817. The Company’s Class A common stock and warrants trade in an efficient market on the NYSE under the ticker symbols “DNMR” and “DNMR WS,” respectively. 19. Defendant Croskrey has served as Danimer’s CEO and Chairman at all relevant times. 20. Defendant John A. Dowdy, III (“Dowdy”) has served as Danimer’s Chief Financial Officer at all relevant times. 21. Defendant John P. Amboian (“Amboian”) has served as a Director of Danimer at all relevant times. 22. Defendant Richard J. Hendrix (“Hendrix”) has served as a Director of Danimer at all relevant times. 23. Defendant Christy Basco (“Basco”) has served as a Director of Danimer at all relevant times.
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