Today, the lawyers for the new ERISA plaintiffs — in the putative class-action against Schering (in addition to many Schering officers, and directors, personally — see pleading at right — click it, to enlarge), filed papers to have that case, Oettinger v. Schering-Plough, et al., deemed “related to” — or aligned with — the new ERISA case against Merck — the case called Cobb v. Merck, et al. I’ve written a fair amount on both of these cases — follow those case name links to see all that background.
That would be decidely-unwelcome news for the lawyers defending Schering-Plough, and its officers and directors. These are each of the cases, respectively, that advance rather novel — but in my estimation, rather persuasive — theories of inherent conflicts of interest, as all-new ERISA violations. And they each seek damages from the officers and directors, personally.
Should those arguments win the day, even the officers’ and directors’ liability insurance carried by the companies would likely be unavailable to these individual defendants, as most such policies exclude acts of “gross negligence” from coverage. These cases allege claims that radiate well beyond the standard of gross negligence — to “wilfull blindness.” Wow. These emerging-twins bear watching, regardless of whether federal District Court Judge Cavanaugh ultimately deems them “related“.
I strongly suspect the two will be deemed related, though — for what it is worth.