TCT Magazine
Murchinson, a Nano Dimension shareholder with approximately 5.9% of the outstanding shares of the company, has announced that the U.S. District Court for the Southern District of New York dismissed the Section 13(d) claims filed by Nano Dimension against Murchinson and other Nano shareholders with prejudice. The company says the state law claims were also dismissed by the Court without prejudice.
With prejudice, in legal terms, means that the plaintiff (Nano Dimension in this case) cannot refile the same claim again in that court, and without prejudice means that the plaintiff is free to bring a subsequent suit based on the same grounds as the dismissed claim, according to the Cornell Law School.
According to the Court’s decision, which can be found here, Nano Dimension’s section 13(d) claims against Murchinson and Anson Advisors, Inc. were rendered “moot”, meaning that there is no basis for argument or discussion at the current time.
Murchinson commented the following: “We are gratified by the Court’s decision to dismiss all claims made by Nano Dimension against us and other significant shareholders. In our view, the frivolous lawsuit filed by Nano Dimension in March was a transparent attempt to silence our voice as well as the voice of other shareholders, who ultimately voted overwhelmingly in favour of Murchinson’s proposals, including to remove Chairman Yoav Stern, at the company’s Special General Meeting of Shareholders held on March 20.
“Despite this very clear message, Nano Dimension continues to desperately try to preserve the status quo of underperformance and terrible corporate governance that has plagued the company under Mr. Stern’s leadership. Though we view the Court’s decision as a win for shareholders and a step in the right direction, Murchinson is committed to holding Mr. Stern and the incumbent directors accountable for attempting to silence shareholders, that is why we have filed an Anti-SLAPP lawsuit, which includes $5 million in damages to be paid by the incumbent directors personally.
“Finally, it is telling that Nano Dimension as quick to publish a press release upon filing this baseless litigation in March but has not yet addressed or disclosed this outcome. Further, Mr. Stern misleadingly stated on the company’s most recent earnings call that, ‘We are winning in every way possible in all of their attempts to [make] silly complaints to courts.’ In our view, this lack of transparency and selective disclosure is not consistent with a board of directors that is acting in the best interests of all stakeholders.”
Anti-SLAPP lawsuits are intended to provide a remedy to SLAPP suits. According to the Reporters Committee for Freedom of the Press, SLAPP is short for strategic lawsuits against public participation, and is often a tool for “intimidating and silencing criticism through expensive, baseless legal proceedings”. The committee also states that Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising First Amendment rights.
The article from the committee about understanding Anti-SLAPP laws also says that under most statutes, the person sued makes a motion to strike the case due to it involving speech on a matter of public concern. The plaintiff then must show a probability that they will prevail in the lawsuit, meaning evidence must be shown that could result in a favourable verdict. If the plaintiff cannot meet these rules and the suit is dismissed through Anti-SLAPP proceedings, many statutes allow for defendants to collect attorney’s fees from the plaintiff.
More information on Anti-SLAPP laws can be found on the Reporters Committee for Freedom of the Press website here.
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Shortly after the Murchinson statement detailing the outcome of the Court's ruling, Nano Dimension issued a response, "setting the record straight" according to the company.
Nano Dimension says that it filed the complaint with the court in March 2023, asking the Court to address Murchinson's and Anson Advisors Inc.'s "failure to make disclosures required by U.S. securities laws". Nano says that as a direct result of the complaint, Murchinson and Anson amended their respective securities disclosures on May 2, 2023, and June 23, 2023, both times attaching the Nano complaint, which said that the two shareholders had 'together obtained' more than 10% interest in Nano's American Depository Shares (ASDs) and were "working together" to attempt to take control of Nano and obtain its assets.
Nano claims that Murchinson's description of Nano's suit as "frivolous" is wrong and mischaracterised the Court's decision.
Nano Dimension claims that the Court found its suit "achieved the goals of Section 13(d)" as the amended disclosures filed by Murchinson and Anson "alerted the public to pertinent information about defendants". Nano says the court dismissed the Section 13(d) claims against Murchinson and Anson as 'moot' because as a result of the suit, the "coordination" of the two companies was revealed.
Nano Dimension says it fully intends to pursue its claims concerning the "misconduct" of Murchinson and Anson. Nano reiterated its allegation that Murchinson and Anson breached the depositary agreement by staging an "illegal shareholder meeting" and attempted to "unlawfully" replace Nano's "rightful board members".
Nano says that it also intends to pursue other state law claims against Murchinson and Anson, and to ask the New York State Court to redress the steps the companies have taken to "unjustly enrich themselves at the expense of Nano and its investors".
Nano says that the company plans to file the state court complaint this week. The company's response to the Court's ruling can be found here.
Nano Dimension has also been involved in an attempted takeover of Stratasys, with multiple takeover bids and special tender offers being rejected.
