Category Archives: Organon Qui Tam FCA Update Lowenstein Sandler Arent Fox

Organon’s Raplon® Debacle: Of Lowenstein Sandler’s Most Recent Inconsistent Arguments in an August 25, 2008 Memorandum of Law

You’ll recall that another well-regarded, largely successful litigation law firm was ultimately vexed by asserting, in an earlier reply memorandum of law, in this very case, that Schering may not have had the requisite level of notice/knowledge about the pre-acquisition Organon Raplon® woes, in order to render Schering a proper defendant in USA, et al. v. Organon, Inc., et al.

You’ll also recall that that firm no longer represents Schering in the above Organon-Raplon matter. In papers filed with Judge Cavanaugh yesterday, Lowenstein Sandler, Schering’s new counsel in the Raplon matter, once again argued that Dr. Feldstein has failed to allege that Schering had adequate notice of these pre-acquisition Raplon troubles (so as to ultimately be held liable for them).

Surprisingly, however, the first 15 or so pages of yesterday’s filing essentially argue that three other civil suits (now settled) covered all this same ground — and that those matters were so well-known to all the parties here, that Dr. Feldstein ought not be allowed to “stand on their shoulders“, and allege the very same facts, in order to recover in his suit.

Well, that leads me to ponder — “Which is it, folks“?

Did Schering not discover the Dr. Feldstein/Raplon/Organon troubles while conducting due diligence, during the Summer of 2007 — before Schering paid almost $16 billion (as adjusted for less favorable currency exchange rates), in November 2007 for Organon’s businesses — or, were these earlier suits (and, by inference, Dr. Feldstein’s putative claims) so well-known to the world — Schering included — that no suit should proceed? Take a look:

Me? I am shrugging, here.

I won’t go on at any great length about it here, boring you with the “legalese” of how, in my opinion, Lowenstein is also conflicted about whether Dr. Feldstein should have to plead — under federal Rule 9(b) — with great particularity, about all these matters — or whether it is enough, under the so-called “relaxed” 9(b) pleading standard, that Dr. Feldstein avers that essentially all of the most-important facts about what Organon knew (and did) relative to getting FDA approval for Raplon, despite some potentially very-lethal side effects. I’ll simply note that Schering’s position seems internally inconsistent on this front, as well.

Lowenstein Sandler argues, on the one hand, that Dr. Feldstein was an “insider” at Organon, and thus he should be required to provide, and prove, all the material factual details about what happened with Raplon, prior to and after, FDA approval (that would be the “with particularity” version of Rule 9(b)). On the other hand, Schering’s firm, Lowenstein, argues that three other suits have resolved this matter — at least one of those resulted in liability for Organon. So, again, which is it, folks? Is Dr. Feldstein allowed to assert at least some of what was found in the other suits to prove his, or must he provide all the evidence himself, without the benefit of any discovery from Organon’s (now Schering’s) files?

Finally, Lowenstein argues that during the over four-year criminal investigation of these matters, by the U.S. Attorneys’ Office out of Boston (and later, Manhattan), nothing apparently worthy of criminal indictments (or at least convincingly-provable) was uncovered. That should be rather “cold-comfort” for Judge Cavanaugh, given that this present version of the case is simply a civil matter — thus, the heightened standards of proof, and specific-intent to defraud, applicable to criminal matters will not be applicable here — in a civil matter.