Dechert LLP loses — Plaintiffs get "Early Discovery" win from Magistrate Mark Falk — in Polk v. Schering-Plough, et al.: July 18, 2008

Well, we’ll have to wait and see what, exactly, this early “limited” discovery order will actually allow, but as I predicted just a few days ago, the Dechert LLP letter — filed in MDL 1938, the Vytorin/Zetia Marketing, Sales Practices, and Products Liability consolidated litigation — seeking a stay of discovery — has not carried the day. I did not “pop-over” to Newark, to hear the arguments on this motion (now I wish I had!), so I don’t yet know how much early discovery will occur, but I do know that this is very bad news for Schering. . . .

Such bad news, in fact, that Dechert LLP may well move for reconsideration before Judge Cavanaugh. Dechert might even appeal any adverse ruling there (should one be entered by the judge) to the Court of Appeals. But that strategem risks “poisoning the well” with the very people who will ultimately be called upon to try one’s case — and, after-all, if Schering really has “nothing to hide,” it should want depos to be taken sooner, rather than later, so that its executives’ memories will still be very current, right? R-i-i-i-I-i-ight.

Note that what has been granted here is a very important “early-look“: at least for some purposes, factual discovery — perhaps including depositions of officers and directors — may begin very shortly. Take a look at the image of the order — do click it, to enlarge:

Things are going to start poppin’ — on all of this — pretty quickly, now. . . .

Note that the Magistrate has ordered Schering’s lawyers to meet, and confer to start working out the schedules for sharing documents [and the taking of depositions(?)]. . . .

So, were I one Hans Becherer, I’d take my vacation (in Europe?), in the next two weeks — after that, it may be back-to-back for quite a while, defending all those compensation decisions — in depositions, day-after-agonizing-day. . . .

Oh, and, “Buckle-up,” Mr. Hassan — Monday’s earnings call may get very “interesting“.

Monday, July 21, 2008 will be a busy day for various developments at Schering-Plough — including Clarinex®

I’ll be out-of-pocket — in Northern California, for a quick in-and-out, on various meetings — but (owing to the time differences), I intend to live-blog highlights of the Merck, and the Schering Q2 calls, on Monday morning, from my hotel. We should learn quite a bit more from Merck’s call, as Merck will likely need to update its projection of $700 million in lost 2008 profits, solely from the Vytorin Joint Venture with Schering, due to these latest Schering-provided, IMS-generated, monthly scrips disclosures.

Will Merck CEO Dick Clark simply ante-up, and re-set it at a nice, round $1 billion? We’ll know a lot more — on Monday.

[An aside -- today Citigroup initiated coverage on Schering. And, before you ask -- the answer is "Yes". Yes, yes, yes -- Citi-controlled entities had over $860 million at stake in the August and September 2007 Schering public offerings it helped co-lead -- offerings priced at $27.50 -- Hmmmmm. . . just how independent is that coverage? I wonder. You should, too. But I digress. . . .] UPDATING, here: I just noticed that Citi initiated at “Hold” — that is a very-ominous sign — it would suggest that Citi sees almost no upside from here. It would suggest Citi thinks Schering is now fully- to over-, valued. Wow. And this, from a bank already showing a $5.50 per share (albeit unrealized) loss on its clients’ earlier purchases in the Schering public offerings, in Q3 2007.

I’ll have much more on what it will all mean for Schering, proper, on Monday, but now the real reason I foresee a log-jam of events:

I have been (quietly) watching the numerous pieces of Descloratadine (marketed as Clarinex^® tablets) patent litigation (particularly Case No. 06-04715 against Zydus) that Schering brought against various would-be generic manufacturers of Clarinex^®-equivalent tablets — back in 2007, and in some cases, back as far as 2006. These have now progressed to an important series of deadlines — many of which also fall on this Monday morning. Odd convergence, eh?

On Monday, the Briefs in Opposition — to Watson Laboratories, Inc.’s and Watson Pharmaceuticals, Inc.’s Motions to Dismiss chunks of Schering’s patent infringement suit — are due, from Schering’s Counsel, McCarter and English. Also on Monday, responsive pleadings and motions — as to other defendants in these Schering-intitiated lawsuits (now consolidated with the suits against Orchid, Sun, Barr, Sandoz, Watson and other would-be generic manufacturers — in the face of Schering’s claims about the broad coverage, and applicability of its so-called “Patent No. ‘274″), will be filed.

[Oh, and fascinatingly, Winston and Strawn has beefed up its defense team, adding lawyers from its Chicago office (on behalf of Sun, one of the other generic companies sued by Schering) to its roster, last night -- which often suggests an imminent, and large, filing -- authored by one (or more) of those newly-added lawyers. We'll see.]

Finally, the decision of the federal District Court, in Newark, New Jersey — from United States Magistrate Judge Tonianne J. Bongiovanni, on Schering’s attempt to hide from public inspection most of its substantive papers in these consolidated actions — actions Schering, itself, brought — was earlier-scheduled for Monday, as well, but will now be held over until September 2, 2008, thus:

“. . . .Motion to Seal certain materials submitted in Opposition to Defendants Watson Laboratories, Inc.’s and Watson Pharmaceuticals, Inc.’s Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Motion Hearing set for September 2, 2008 before Magistrate Judge Tonianne J. Bongiovanni. . . .“

We may decide to file some sort of amici materials, on this issue — these are public documents [the federal courts are presumtively open to all, regardless of some usually-remote potential for business advantage, or dis-advantage -- the Clarinex^® (descloratadine) patents at issue, here, are likewise entirely public documents -- as are the formulae by under which Schering (and the generic companies) make the tablets] and, except for the relatively-few paragraphs that might contain core Clarinex^® trade secrets, there is little legal basis for Schering-Plough to seal papers in a suit it made a conscious-choice to bring.

I may not get to a lot of this until I return, on Tuesday-evening, July 22, 2008.

But I can confidently predict there will be a lot of new information on whether Orchid Pharmaceuticals (based in India) will be in a position to attempt an “at-risk“, late-2008, launch of its generic version of Clarinex^® tablets. If nothing else, it should all be rather droll — entertaining fare — assuming the court orders at least the non-trade-secret portions of these presumptively-public documents to appear in the electronic court files — and soon.

At the moment, one of Schering’s heftiest briefs is visible only as a summary — the actual brief (or statements of, and arguments on, the laws — entirely public laws) is now sealed, temporarily, from the public’s prying eyes (and iPhone^®-G3’s). Heh.

Monday, July 21, 2008 will be a busy day for various developments at Schering-Plough — including Clarinex®

I’ll be out-of-pocket — in Northern California, for a quick in-and-out, on various meetings — but (owing to the time differences), I intend to live-blog highlights of the Merck, and the Schering Q2 calls, on Monday morning, from my hotel. We should learn quite a bit more from Merck’s call, as Merck will likely need to update its projection of $700 million in lost 2008 profits, solely from the Vytorin Joint Venture with Schering, due to these latest Schering-provided, IMS-generated, monthly scrips disclosures.

Will Merck CEO Dick Clark simply ante-up, and re-set it at a nice, round $1 billion? We’ll know a lot more — on Monday.

[An aside -- today Citigroup initiated coverage on Schering. And, before you ask -- the answer is "Yes". Yes, yes, yes -- Citi-controlled entities had over $860 million at stake in the August and September 2007 Schering public offerings it helped co-lead -- offerings priced at $27.50 -- Hmmmmm. . . just how independent is that coverage? I wonder. You should, too. But I digress. . . .] UPDATING, here: I just noticed that Citi initiated at “Hold” — that is a very-ominous sign — it would suggest that Citi sees almost no upside from here. It would suggest Citi thinks Schering is now fully- to over-, valued. Wow. And this, from a bank already showing a $5.50 per share (albeit unrealized) loss on its clients’ earlier purchases in the Schering public offerings, in Q3 2007.

I’ll have much more on what it will all mean for Schering, proper, on Monday, but now the real reason I foresee a log-jam of events:

I have been (quietly) watching the numerous pieces of Descloratadine (marketed as Clarinex^® tablets) patent litigation (particularly Case No. 06-04715 against Zydus) that Schering brought against various would-be generic manufacturers of Clarinex^®-equivalent tablets — back in 2007, and in some cases, back as far as 2006. These have now progressed to an important series of deadlines — many of which also fall on this Monday morning. Odd convergence, eh?

On Monday, the Briefs in Opposition — to Watson Laboratories, Inc.’s and Watson Pharmaceuticals, Inc.’s Motions to Dismiss chunks of Schering’s patent infringement suit — are due, from Schering’s Counsel, McCarter and English. Also on Monday, responsive pleadings and motions — as to other defendants in these Schering-intitiated lawsuits (now consolidated with the suits against Orchid, Sun, Barr, Sandoz, Watson and other would-be generic manufacturers — in the face of Schering’s claims about the broad coverage, and applicability of its so-called “Patent No. ‘274″), will be filed.

[Oh, and fascinatingly, Winston and Strawn has beefed up its defense team, adding lawyers from its Chicago office (on behalf of Sun, one of the other generic companies sued by Schering) to its roster, last night -- which often suggests an imminent, and large, filing -- authored by one (or more) of those newly-added lawyers. We'll see.]

Finally, the decision of the federal District Court, in Newark, New Jersey — from United States Magistrate Judge Tonianne J. Bongiovanni, on Schering’s attempt to hide from public inspection most of its substantive papers in these consolidated actions — actions Schering, itself, brought — was earlier-scheduled for Monday, as well, but will now be held over until September 2, 2008, thus:

“. . . .Motion to Seal certain materials submitted in Opposition to Defendants Watson Laboratories, Inc.’s and Watson Pharmaceuticals, Inc.’s Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Motion Hearing set for September 2, 2008 before Magistrate Judge Tonianne J. Bongiovanni. . . .“

We may decide to file some sort of amici materials, on this issue — these are public documents [the federal courts are presumtively open to all, regardless of some usually-remote potential for business advantage, or dis-advantage -- the Clarinex^® (descloratadine) patents at issue, here, are likewise entirely public documents -- as are the formulae by under which Schering (and the generic companies) make the tablets] and, except for the relatively-few paragraphs that might contain core Clarinex^® trade secrets, there is little legal basis for Schering-Plough to seal papers in a suit it made a conscious-choice to bring.

I may not get to a lot of this until I return, on Tuesday-evening, July 22, 2008.

But I can confidently predict there will be a lot of new information on whether Orchid Pharmaceuticals (based in India) will be in a position to attempt an “at-risk“, late-2008, launch of its generic version of Clarinex^® tablets. If nothing else, it should all be rather droll — entertaining fare — assuming the court orders at least the non-trade-secret portions of these presumptively-public documents to appear in the electronic court files — and soon.

At the moment, one of Schering’s heftiest briefs is visible only as a summary — the actual brief (or statements of, and arguments on, the laws — entirely public laws) is now sealed, temporarily, from the public’s prying eyes (and iPhone^®-G3’s). Heh.

June 2008 IMS scrips — Bottom line: Vytorin/Zetia STILL losing share — in a “shrinking” US Market. . . .

These are moderate declines, compared to two motnhs ago (still, close to a 5 percent, month-over-month sequential decline), but it is an especially ominous sign that the overall “cholesterol market” in the U.S. is “shrinking” — in this economy, that might well-mean that the under-, and un-insured have stopped taking their meds, altogether.

Or, it could mean that people are being counseled to adopt healthier lifestyles before trying any drug — statin or other — at all.

Overall, a 26.6 percent decline since the start of the year. Wow. [Click to enlarge.]

This is not good news. Meanwhile, 1.09 million shares traded — essentially flat, after-hours — on the NASDAQ, thus far.