ENHANCE-Era Institutional Investors’ Opt Out Claims May Proceed Against Merck: USDC, NJ

It has been over a year since last we looked in on this narrative. [And yes, it is — in the main (in my opinion) — yet another bounced check left behind, by one “Fast” Fred Hassan.] Back in April of 2014, we noted that this litigation — by large investors like GIC, North Sound Capital and Colonial First State — each of which declined the agreed $668 million class settlement, choosing to “opt-out“, and sue on their own behalf, would have to wait for a US Supreme Court ruling on whether the claims were now time-barred. Then, in November 2014, the reference case that the Supremes had selected to review (IndyMac, on so-called American Pipe tolling) was largely settled, by an agreement of the parties. So the Supremes removed that case from the docket. And this opt out case went. . . quiet, for a bit.

In the nearly full year since then, though, the very able federal District Court Judge Freda L. Wolfson has been busy — reviewing whether the relevant law would allow these investors’ individual opt-out cases to proceed. She has now ruled (as of last week) that they indeed may. So Merck will presumably have to offer the same defenses, and presumably, end up settling with these investors — as well, for additional sums — due to the alleged acts and ommissions of Fast Fred Hassan, and his band of skallywags, from legacy Schering-Plough. [Background here.] Here is a bit of her opinion (and a PDF file of the whole affiar):

. . . .The tolling doctrine established in American Pipe is legal tolling and applies to the statutes of repose here. Further, the common-law fraud claim sets out sufficient allegations of actual reliance to survive a 12(b)(6) motion to dismiss. For the reasons given above, Defendants’ Motions to Dismiss is DENIED. . . .

As I say — I’d expect a settlement here, eventually. And it will involve Merck paying more money to these three investors. Do recall here that the $668 million earlier settlement exhausted all of Merck’s insurance related to these claims — and Kenilworth keeps no reserve, for these legacy matters, as the SEC filings have long stated. So this will be a hit to quarterly earnings, when the settlement is announced — in my estimation. However, the amount won’t likely be material to Mother Merck (as she’s just too. . . big).

So. . . Onward — on an approaching long holiday weekend. . . with family nuptials in the offing! Big smile, and. . . a gathering of all!

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