Saturday, March 28, 2009

There are Now at Least 15 Lawsuits Challenging the Reverse Merger

The lawyers for Mr. Husarsky (one of three would-be class action plaintiffs in federal court) filed a brief last night, in federal court, that detailed -- for the first time -- all the other known to-be-pending class action and similar suits that would seek to enjoin or otherwise equitably reform the proposed reverse merger between Merck and Schering-Plough.

By the lawyers' count, there are at least 15 such suits now pending (three in federal court, and 12 in the various state courts of New Jersey):

. . . .Mr. Husarsky is the plaintiff in one of the actions pending before this Court, Civil Action 09-1244(DMC), and Mr. Manson is the plaintiff in a parallel action, Manson v. Becherer, Docket No. UNN-C-37-09, pending in the Superior Court of New Jersey. These two actions, along with the Landesbank Berlin action, Civil Action No. 09-1099(DMC) and Louisiana Municipal Police Employees Retirement System action, Civil Action No. 08-1247(DMC) pending here, 10 other actions pending in state court in Union County and an additional case pending in state court in Hunterdon County, are all class action shareholder suits challenging the pending reverse merger between Schering-Plough and Merck, and they all allege that the defendants breached their fiduciary duty by agreeing to merger terms that were unfair to the shareholders and by failing to follow procedures designed to insure that the merger agreement was the best transaction for the shareholders that was reasonably available. . . .

This is going to get very busy, very quickly -- especially if, as the Financial Times posits, J&J decides to jump in -- to claim its reversionary rights.


Nathan said...

Do have any sense if this is unusual? There are at leave 5 shareholder lawsuits to stop the Pfizer/Wyeth deal. My impression is that those type of lawsuits are useless unless they can show that some sort of illegal/unethical activity is involved.

Condor said...

To early to say, Nathan -- we need to see the Merck-Schering-Plough merger proxy statements -- in order to know whether CEO Hassan proceeded deliberately enough, and considered competing proposals (JNJ?), before getting hitched with Merck.

When the deal proxy files, we'll see a "History of the Negotiations" section. That will determine how deeply in the mud this one will be buried.

It seems plain, on its face, that this was not a chart-topping offer from Merck. Perhaps that points to a breach of fiduciary duties -- perhaps not.

Moreover, if CEO Hassan is deemed by the courts to be "self-interested" in the deal's outcome (is $60 to $72 million in 'chutes enough?), then Hassan [and the Board] must affirmatively prove that the deal is "fundamentally fair" to the ordinary SGP holders -- a tall order, that. . . .

As ever, time will tell. Thanks for the comment!