The Final Legal Bill Is In — On Merck’s Ex-Internal Counsel’s Misconduct, In USDC ND CA Case with Gilead…
August 3, 2017

And (as I guessed, exactly one year ago) it did end up a little under $14.3 million. But no one will be paying that amount any time soon, as Merck will soon file an appeal on the fee award, in addition to its overall appeal, in California.

In an overnight order, the able Judge Labson-Freeman has — by agreement of all parties — held that Merck need not file a bond while this particular appeal is pending (of course the company can afford to pay the fees, many times over). Here is the operative part, but do also see my observation below the order — Merck itself is in fact likely owed many times this amount, FROM Gilead — in Delaware.

. . . .Accordingly, the parties stipulate and agree that the Court should order that the total amount of attorney fees to which Gilead is entitled is $14,298,581.53.

STAYING ENFORCEMENT OF AWARDS OF COSTS AND FEES WITHOUT BOND

The due date for a notice of appeal with respect to the Court’s order quantifying the amount of fees, D.I. 489, is August 14, 2017. Merck anticipates filing a notice of appeal by that date with respect to (1) the order quantifying fees, (2) the Court’s underlying order granting fees, D.I. 457, and (3) the Court’s order taxing costs, D.I. 490. Merck previously appealed from the Court’s judgment and its underlying Order Regarding Non-Jury Legal Issues. See D.I. 463 (Aug. 23, 2016). . . .

Because Merck has agreed to take responsibility for any awards of costs and fees remaining after all appeals in the case are resolved and final and further because there is no question as to Merck’s ability to pay the awards of costs and fees, the parties further stipulate and agree that the posting of a supersedeas bond is not necessary to secure Gilead’s rights pending appeal and that the expense required to post the bond would be wasteful under the circumstances. . . .

Accordingly, the parties stipulate and agree that the Court should exercise its discretion and find that no bond is necessary to secure the judgment, and order that any execution or enforcement of the awards of costs and fees be stayed without Merck having posted a supersedeas bond. . .

I might also add that Gilead is now in post-trial motion practice, in the Delaware federal District Courts, against Merck — on a $2.54 billion (yes with a “b”) judgment in FAVOR of Merck, and against Gilead — which is highly likely to be reduced, but likely means that net, net — Gilead will actually be paying Merck a net amount — i.e., not ultimately receiving this $14.3 million in fees incurred, in the West Coast litigation — on many of the same compounds, topics and discoveries — as the Delaware ones. Now you know.

नमस्ते

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