The Facebook Flap — And Why “Naming Names” Might Well Matter — In Merck’s Defense

In the comments below, an anonymous commenter asked a very cogent set of questions — and I thought all might benefit from seeing them — so here they are:

. . . .Anonymous said. . .

What will getting the name(s) of the Merckies who may have strong armed FB into giving them page rights do? I’m not trying to be a jerk, I’m just curious. It’s clear that it would have had to be someone from Merck US who called on FB to get the access and that FB should not have given it – but they did.

Am I surprised that Merck US would hijack Merck Germany’s page? Absolutely not. Since this took place back in 10/2011, chances are good that the person(s) directly engaged with FB on the matter are gone. There have been massive layoffs during the interim and Corporate Communications, the shared service responsible for this type of thing, was gutted just after that time. Their 60-day WARN period is up in just the next week or so.

So clamor for names if you like, what it will reveal, other than Merck believes it operates above the rules yet again, I’m really not sure. I am sure that it would stymie the chances of said people to find a new job.

November 29, 2011 12:21 PM.

[I] said. . .

I do hear you, Anon. —

Here’s why I think it matters. First, Merck (US) could make a defense — especially if the involved parties have been restructured out, already (as you posit) — that whatever was done, was outside the scope of their employment with Merck (US). It was, in short, a Palin-esque “rogue” campaign.

In that case, by outing the names, and allowing German Merck to pursue the (alleged) malfeasors personally, Merck US is very-likely off the hook for damages for misappropriation of intellectual property (see ensuing paragraphs).

Alternatively, in the event that Merck US takes the position that the acts were “within scope of employment” — and “authorized” — by senior management (by hiding the names from German Merck), then Merck KGaA probably will be able to at least plead a case to recover damages from Merck US, as a matter of corporate law.

Remember, we aren’t talking about two teenagers arguing over a garage-band-fan page. There are likely some very-readily available, and significant stat-logs — of Facebook-referred visits — to the Merck KGaA site, by customers, doctors and patients, prior to October 2011.

The decrease in visits (likely a cliff-fall, in those same stat-logs) — from Facebook referrals, now usurped by Merck & Co. (US) — makes out a claim of “misappropriated” commercial relationships, and valuable intellectual property. Property Merck KGaA contracted with Facebook in 2010, to procure, on an exclusive basis.

Thus Merck US might also be liable for intentional interference with German Merck’s contractual relationships (i.e., with Facebook).

So — if CEO/Chairman Ken Frazier wants to end this cleanly, and quickly — he will name the names (at least privately, to Merck KGaA’s lawyers at Baker & Hostetler, LLP).

In sum, see no percentage in Frazier’s arguing that Merck US had the right to “squat” on the Facebook page vanity URL — because then (as you point out) Merck US once again looks the bully, or at least the oaf.

“Conduct unbecoming” a company that claims it is all about saving lives, right?

Unless Frazier is far less sophisticated about online social media than I suspect he is, he will cut a deal with German Merck to provide the names, and let German Merck have the vanity address — perhaps with the negotiated trade-out, toward the top of the page, something like “Looking for US Merck?” (then click here!). . .

But as ever, we shall wait to see.

Namaste, and thanks for your input!

Do stop back.

November 29, 2011 1:35 PM

Anonymous said…

Thank you for your thoughtful response. I agree to your points now that they’ve been expressed more fully.

November 29, 2011 3:41 PM. . . .

So there you have it.


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