Mediation Scheduled — In Cobb v. Merck, A Federal ENHANCE ERISA Suit


It is becoming increasingly clear that New Merck no longer intends to fight it out (“. . .until the last dog is hung“), as to these now nearly four-year old allegations.

All of the federal court proceedings have been temporarily stayed as of January 11, 2012, in Cobb v. Merck, et al., a federal ERISA would-be class action, to allow for a February 13, 2012 mediation session. Cobb is a case echoing the earlier Gradone v. Schering-Plough, et al. claims — and thus pleading the ENHANCE disclosure delay facts, as ERISA violations. Cobb personally names Merck officers and directors as defendants (including Messrs. Clark, Kellogg and Frazier), while Gradone personally names legacy Schering-Plough ones, including Hassan, Bertolini, Cox, Sabatino and Becherer.

Recall that the legacy Schering-Plough version of this suit (Gradone), is now pending a final settlement order — in fact, on January 13th, Judge Cavanaugh signed an order granting another 60 days to finish the paperwork on that agreement in principle — to settle the matter.

All of that said, I do think it a sign of emerging wisdom on Mr. Frazier’s part — that he no longer seeks to litigate these claims (recall his directly contrary stance, as General Counsel, on the Vioxx® claims). First, in my estimation, there is arguable merit to each of them — and second, even if one believes there is not — it is high time to put the ENHANCE matter in Whitehouse Station’s rear-view mirror, and permanently so. Little might be gained, even in a complete victory, here — and each time a court date is scheduled, a rehash of the facts will likely run in the popular press. Just no longer worth it.

On an at least marginally-related note, Jami Rubin opined — in the form of a leading question, to Ken Frazier, about ten days ago, at the Goldman conference — that there could be no real stock upside to even a complete “win” in the IMPROVE-IT outcomes trial (see left side bar for background on that). While Mr. Frazier suggested that there might be some upside left, he also essentially conceded that anything short of a clear win would present new downside risk for the Vytorin® franchise (now clocking about $3.8 billion in annual sales).

So it goes.

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