Defense Lawyers Hired by Individual Defendants in Cain v. Hassan, et al. -- A Fascinating, and Emerging Set of Alignments

[MAJOR UPDATE (1:10 PM) -- AND REWRITE -- NOW: ALL represented by one firm.]

Well, if nothing else -- the excerpt below, from a Notice of Appearance just filed this morning, in Cain v. Hassan, et. al (Case No. 08-1022 U.S. Dist. Ct., NJ 2008) -- the new Schering-Plough Shareholders' Derivative Action -- now explains why so, so many Lowenstein, Sandler lawyers have been visiting my pages (repeatedly) over the last several weeks. Heh.

What I find most-interesting, as ever, is what is. . . not here.

Note that several of the individual defendants are not represented by this firm. I'll list the ones not represented by this firm in a moment, but Here is the appearance -- and the names of the defendants this firm represents [actually, at least four different lawyers at the firm have filed appearances to represent any or all of these defendants]:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Mary E. Cain, derivatively on behalf of
Schering-Plough Corporation,
Plaintiff,

v.

Fred Hassan, Hans W. Becherer,
Thomas J. Colligan, C. Robert
Kidder, Philip Leder, M.D., Eugene R.
McGrath, Carl E. Mundy, Jr.,
Antonio M. Perez, Patricia F. Russo,
Jack L. Stahl, Dr. Craig B.
Thompson, Kathryn C. Turner,
Robert F.W. Van Oordt and Arthur
F. Weinbach, Robert J. Bertolini, C.
Ron Cheeley, Carrie S. Cox, Thomas
P. Koestler, Raul E. Kohan, Thomas
J. Sabatino, Jr., Brent L. Saunders,
and Cecil B. Pickett,

Defendants,

and

Schering-Plough Corporation,
Nominal Defendant

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTICE OF APPEARANCE
Civil Action No. 08-1022 (DMC)(MF)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Please Take Notice that Defendants Robert J. Bertolini, C. Ron Cheeley, Carrie S. Cox, Thomas P. Koestler, Raul E. Kohan, Thomas J. Sabatino, Jr., Brent L. Saunders, and Cecil B. Pickett, are represented by the firm Lowenstein Sandler PC. . . .

Respectfully submitted,

LOWENSTEIN SANDLER PC

Dated: June 4, 2008

Much earlier, here (on March 28, 2008), and rather unusally, in my experience -- the same firm had filed to represent all the directors, and the company, itself.

Okay -- so missing from the list are all the directors who are not officers. Somewhat strangely, included in the list is Cecil Pickett, a former officer [he's now a high-officer of the public bio-pharma company being courted by Carl Icahn, biogen idec inc.; he is also serving on the board of directors of the medical device maker Zimmer Holdings].

It is also interesting that Raul Kohan -- a current officer, but plainly one from the "old guard" at Schering -- serving as an officer since 1993 (well prior to Mr. Hassan's appearance in 2003), is included, yet -- due to his tenure -- he is rather unlike any of the rest of those represented (he is also now 55 years of age, according to the proxy).

Finally, and obviously, also missing is CEO Fred Hassan -- the only officer named as an individual defendant, who is also a director -- had been included in the March 28, 2008 filing made by the firm.

So, as revised, now -- what is interesting, and unusual to my eye, is that one firm represents everyone. I predict that will eventually have to change. Here's why:

It is a fundamental precept of corporate law that, by the very nature of a derivative action, the interests of the company (here, Schering-Plough) are thought to be adverse to those of its directors and officers. Thus, the Cains bring this suit on behalf of the corporation -- and so, longer term --if Judge Cavanaugh finds that the amended complaint makes out a prima facie case, he'll need to order another firm to look after at least some of these various parties' interests. Said another way, if the plaintiffs' lawyers do a good job, here, it will make no sense for the above firm to represent the corporation itself, if it is going to represent almost all of the directors and officers, as a group.

There will be a string of federal court motion practice hearings, before Judge Cavanaugh, to sort all of this out -- it is often in those preliminary hearings, that derivative cases are made -- or broken. Setting the framework, making sure that the Judge is able to see just how completely antithetical -- to the common shareholders' collective interests -- the D & O groups' actions were, sets the tone for the entire litigation.

Before all of that drama, though -- next-up will be the filing of these defendants' answer(s) to the Cains' amended complaint. That ought to reveal much about whether this gaggle of folks will be able to effectively "hang together" -- in the hopes of avoiding "being hung, separately". . . .