Monday, October 20, 2008

60 Page Amended Consolidated Complaint in Gradone ERISA Case against Schering Officers and Directors

Last week, the plaintiffs' lawyers filed an amended and now consolidated putative class action ERISA complaint against CEO Hassan, CFO Bertolini, the head of HR (Cheeley), the administrator of various plans (Sweeney), and the Board of Directors, as well as Schering-Plough itself -- expanding upon the theory that these people violated their fiduciary duties under ERISA -- when each allowed, or recommended as a "prudent retirement investment" (to the rank-and-file Schering employees, and retirees) sales of Schering stock to the ERISA plan participants at $25, $26, $27, $28, $29, $30, $31 and $32-plus prices per share -- throughout 2006, 2007 and into early 2008.

The key question to be decided, as a factual matter, will be when did all or any of these officers and directors know that ENHANCE would bring "no good news". In that sense, the Gradone ERISA case does not depart from the theories advanced in the various other putative class action suits, so I'll not rehash it, paragraph by paragraph, here. For those keeping score at home, though, here is a link to the full 60-page PDF file, from the U.S. District Court in Newark.

Stay tuned here for Schering and Merck Q3 earnings news, as the same breaks.


jack said...

The elements of the Prudent Man Rule gradually came to be viewed as detrimental to the long-term interests of trust beneficiaries. The Employee Retirement Icome Security Act, enacted in 1974, had as one of its central purposes a public policy of ensuring the adequate investment returns necessary for defined benefit plan participants.


Anonymous said...

Welcome, "Jack/Henry" -- I do disagree with your premise, though -- the goal of ERISA was transparency. And fidelity.

Fidelity -- in this case meaning that fiduciraies could no longer serve in conflicting capacities -- making commissions or soft-pay on the trades in the plan assets.

But it also means -- relevant here today -- that fiduciaries ought not be the financial boosters of the company where the company's securities are one of the plan investment options.

That's an ERISA-regulated potential conflict of interest.

Whether the conflict of interest was so great as to violate ERISA is the central issue in the Gradone, Oettinger and Sabatella cases -- all now consolidated in the above putative class action.