Merck’s Q1 SEC Form 10-Q Doesn’t Provide Much New Detail — So We Wait To See Whether The “Opt-Out” Insurers Are Going To Trial, Or Accepting Settlement Payments…

No matter how you slice it, this is a repudiation of “Fast” Fred Hassan’s gouging / predatory theories of pharma product management (now getting on over 15 years past — but still despicable, on a life-saving medicine).

And as we’ve long predicted, these are indeed boxcar numbers, for what could likely be proved to be violations of antitrust law, in blocking the arrival of generic competition to the US marketplace (i.e., the very same strategy Martin Shkreli, albeit far more ham-handedly copied and deployed). In Shkreli’s case, the ensuing federal litigation by the FTC and state AGs, in Manhattan, has resulted in his life time banning, from any and all pharma companies, by USDC Judge Denise Cote (now awaiting oral argument on Martin’s appeal in the Second Circuit) — in what amounts to a complete win, for the FTC.

In any event, here is the entire financial footnote (pages 18-19), in context — but until we see the four insurers dismiss their claims in Norfolk, Virginia — we should assume the entire cost of this litigation is going to eclipse $1 billion — especially if we factor in the legal fees spent defending four more federal trials.

…As previously disclosed, Merck, Merck Sharp & Dohme, LLC. (MSD), Schering Corporation, Schering-Plough Corporation, and MSP Singapore Company LLC (collectively, the Merck Defendants) are defendants in a number of lawsuits filed in 2018 on behalf of direct and indirect purchasers of Zetia alleging violations of federal and state antitrust laws, as well as other state statutory and common law causes of action. The cases were consolidated in a federal multidistrict litigation (the Zetia MDL) before Judge Rebecca Beach Smith in the Eastern District of Virginia.

In November 2019, the direct purchaser plaintiffs and the indirect purchaser plaintiffs filed motions for class certification. In August 2020, the district court granted in part the direct purchasers’ motion for class certification and certified a class of 35 direct purchasers. In August 2021, the Fourth Circuit vacated the district court’s class certification order and remanded for further proceedings consistent with the court’s ruling. In September 2021, the direct purchaser plaintiffs filed a renewed motion for class certification. In April 2022, the district court denied the direct purchaser plaintiffs’ renewed motion for class certification. In August 2021, the district court granted certification of a class of indirect purchasers.

In 2020 and 2021, United Healthcare Services, Inc., Humana Inc., Centene Corporation and others, and Kaiser Foundation Health Plan, Inc. (collectively, the Insurer Plaintiffs), each filed a lawsuit in a jurisdiction outside of the Eastern District of Virginia against the Merck Defendants and others, making similar allegations as those made in the Zetia MDL, as well as additional allegations about Vytorin. These cases have been transferred to the Eastern District of Virginia to proceed with the Zetia MDL and remain pending.

In February 2022, the Insurer Plaintiffs filed amended complaints. In March 2022, the Merck Defendants, jointly with other defendants, moved to dismiss certain aspects of the Insurer Plaintiffs’ complaints, including any claims for Vytorin damages. That motion to dismiss the Vytorin-related claims is still pending.

In April 2022, the direct purchaser plaintiffs moved for an order setting a deadline for direct purchasers of Zetia not currently parties to the case to file cases against defendants in order for those cases to be coordinated for trial with the existing direct purchaser plaintiffs and other MDL plaintiff groups. The court granted that motion, setting a deadline of June 30, 2022 for unnamed direct purchasers to file claims. On June 30, 2022, 23 new entities, many related, brought new complaints against defendants or otherwise sought to intervene.

On February 10, 2023, the district court denied the Merck Defendants’ and Glenmark Defendants’ motions for summary judgment. In April 2023, the Merck Defendants reached settlements with the direct purchaser and retailer plaintiffs and a proposed settlement, subject to court approval, with the indirect purchaser class. Under these agreements, Merck will pay $572.5 million to resolve the direct purchaser, retailer, and indirect purchaser plaintiffs’ claims, which was recorded as an expense in the Company’s first quarter 2023 financial results….

Now you know — and this number is now very likely to head northward, as the four insurers go to trial, around the country — in federal courthouses. And yes (per my whimsical masthead), this is Fred Hassan — and Martin Shkreli — now enduring “The Revenge of the Sixth“. Smiling… into a warm, clear Spring morning — excellent here; Derby tomorrow!

नमस्ते

Fascinating That Hayward Is Clutching His Pearls, Over A Woman Screaming At A San Fran Council Meeting…

…but he’s never once said a word against speakers — and more importantly, actors — engaging in advocating for, and very real attempt to… violently overthrow the government… to engage in open sedition, while an election result was being certified by the Veep (of his own GOP party, no less!).

That is, Steve seems more threatened by the guttural protest screams (no discernible language of any kind, let alone violent overthrow exhortation) of a young woman emoting aloud, over what she obviously regarded as a bad council decision (but did so non-violently, and did not physically threaten anyone)… than he is that now two juries in separate felony conspiracy trials have now convicted 14 Proud Boys and Oath Keepers of… sedition.

Of substantive threats and (ultimately failed) attempts to violently overthrow the democratic government, elected “by, for and of the people.”

All of this tells us all we need to know about the Powerliners: they… hate the pluralism that is a core dream… of America.

[U: More Briefs, Daily Now…] There Will Likely Be Four Dozen “Amici” Briefs, In The Fifth Circuit Filed, Now — Given The High Stakes In The Mifepristone / FDA Suit — Out Of Texas…

Updated @ 10 am EDT on 05.05.2023 — here on Friday morning, about nine new briefs came in — I will stop tracking them, even in the aggregate now — but it will likely be over 60 now. Here’s the latest one: “. . .AMICUS CURIAE BRIEF FILED by City of New York, New York and NYC Health + Hospitals and County of Santa Clara, California. Consent is Not Necessary as a Motion has been Granted. # of Copies Provided: 0 [23-10362] (MFY) [Entered: 05/05/2023 08:54 AM]. . . .” End, update.

This very afternoon (and this is only a partial listing, below), the Fifth Circuit in New Orleans granted dozens of parties and entities leave to file so-called “friend of the court” briefs, to weigh in on how extraordinarily wrong-headed Judge Matthew Kacsmaryk’s mifepristone order was (on a drug approved for over two decades, by FDA without interruption — and safer than Tylenol) — of a month ago.

By far, the majority of the briefs do argue that the young judge had no authority to enter the sweeping order he did. But there will be a smattering of briefs arguing the so-called “Comstock Act” claim was proper. That argument will fall. Here though is a real reflection of just how important this issue has become: normal appeals may see one — or at most two amici — many will never see even one of them. Here we are approaching. . . 50, already. And the submission deadline isn’t up, until next week:

…COURT ORDER granting Motion to file amicus brief filed by Leukemia and Lymphoma Society and Patient and Provider Advocacy Organizations [274], granting Motion to file amicus brief filed by Advocates for Survivors of Intimate Partner Violence [276], granting Motion to file amicus brief filed by 200 Reproductive Health, Rights, and Justice Organizations [277], granting Motion to file amicus brief [278], granting Motion to file amicus brief filed by American College of Nurse-Midwives and National Association of Nurse Practitioners in Womens Health [281], granting Motion to file amicus brief filed by 253 Members of Congress [283], granting Motion to file amicus brief filed by GenBioPro, Incorporated [285], granting Motion to file amicus brief filed by Medical Students for Choice [287], granting Motion to file amicus brief filed by American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, Society for Maternal-Fetal Medicine, American Academy of Nursing, Society of Gynecologic Oncology, Society of OB/GYN Hospitalists, American Gynecological and Obstetrical Society, American Society for Reproductive Medicine, North American Society for Pediatrics and Adolescent Gynecology, Society for Academic Specialists in General Obstetrics and Gynecology and Society for Adolescent Health and Medicine [290], granting Motion to file amicus brief [291], granting Motion to file amicus brief [304] filed by Leukemia and Lymphoma Society, Patient and Provider Advocacy Organizations, Advocates for Survivors of Intimate Partner Violence, 200 Reproductive Health, Rights, and Justice Organizations, National Association of Nurse Practitioners in Womens Health, American College of Nurse-Midwives, 253 Members of Congress, GenBioPro, Incorporated, Medical Students for Choice, American College of Obstetricians and Gynecologists, American Medical Association, Society for Maternal-Fetal Medicine, American Academy of Family Physicians, American Academy of Nursing, American Academy of Pediatrics, American Gynecological and Obstetrical Society, American Society for Reproductive Medicine, North American Society for Pediatrics and Adolescent Gynecology, Society for Academic Specialists in General Obstetrics and Gynecology, Society for Adolescent Health and Medicine, Society of Gynecologic Oncology and Society of OB/GYN Hospitalists in 23-10362 [23-10362] (MFY) [Entered: 05/04/2023 02:08 PM]. . . .

Now you know… be excellent to one another. Honor your inner midichlorians, tonight. Grin….

नमस्ते

It Seems That At least Four Of The Insurance Companies Have Elected To Litigate Their “Boxcar” Zetia® Antitrust Claims Separately, “Opting Out” — And Returning To Home District Courts…

Well… this is, in some ways, a metaphorical pre-saging, of the “Revenge of the SIXTH” — now arriving in a few days. Heh.

It turns out that about a year ago, these four behemoth insurers (United Healthcare, Centene, Humana, and Kaiser), at least in an oral statement to the federal court in Norfolk, Virginia, elected to handle their own litigation against Merck and Glenmark — rather than continue in the consolidated action (once discovery was completed, they said).

Of course, they may now choose to withdraw that motion, and decide to take their share of the class settlements (without the pain and expense of four separate trials), all as agreed at the end of last month (which we have at least speculated… may well exceed $1 billion, when all added up). But if they do not, then the overall figure is certain to rise, from here.

To wit, in an overnight order in Virginia, the able USDC Judge as tasked the four with “fishin’, or cuttin’ bait.” That is, it is time to decide:

…During the July 22, 2022, status conference before the undersigned and United States Magistrate Judge Douglas E. Miller, four of the Plaintiffs… represented to the court that they would not proceed in the consolidated trial and would instead seek remand to their respective home jurisdictions… pursuant to 28 U.S.C. § 1407(a)….

Considering that nearly a year has passed since the Opt-Out Plaintiffs notified the court of their intention to remand their actions to their respective home districts, the latter option is the most appropriate way to proceed.

As such, Plaintiffs United Healthcare, Centene, Humana, and Kaiser, are each DIRECTED to file a motion to remand their action with the Panel on Multidistrict Litigation within thirty (30) days of this Order. See id.

Counsel for the Defendants, the DPPs, the Retailers, and the EPPs are hereby reminded to file agreed dismissal orders with any necessary motions, pursuant to the court’s instructions, within thirty (30) days of their settlement notifications to the court and the conferences held with the court thereafter….

Now you know — we will keep you posted, but this could increase the amount Merck and Glenmark must pay. Moreover, we may learn more in the SEC Form 10-Q for the first quarter, from Merck — due into the EDGAR filing window, shortly. Onward, grinning….

नमस्ते

It Probably Won’t Help Tangerine… That NONE Of The Five Priors Saw Their Minions Convicted On Multiple Sedition Counts, There Betsy…

Betsy Stauffer this morning notes that only one of five former preznits ever won re-election after losing a prior election for the office. [That was the widely regarded as inept Grover Cleveland. Yawn — fascinatingly, he won that “redemption term”, in a wide-spread public backlash against McKinley tariffs that crippled the US economy for several years at the beginning of the 1890s — somewhat as Tangerine’s have. But I digress.]

No, as my graphic indicates, I write primarily to note that now Tangerine will face significantly longer than one in six odds.

Indeed, no former president ever saw his minions convicted of felony sedition crimes, while he was running a campaign to try to win a non-consecutive term of office.

And no former… was an indicted person, on various charges — or likely soon, a jury determined… rapist.

Damn.

PRICELESS, Bits!

[U: Proud Boys — Guilty Of Seditious Conspiracies!] But Hinderaker’s Not Wrong — To The Extent He Doesn’t Advocate For Violent Sedition & Overthrows…

UPDATED: Here on Thursday morning, the jury has convicted four of the Proud Boys on various felonies, and only one of them avoided conviction on the felony of sedition charge. Importantly, the leader, one Enrique Tarrio (a close buddy of Roger Stone’s!), was convicted on all the felonies involving “sedition” counts. They all face up to decades in prison, now. [And this, after the Oath-Keepers’ leader, and nine others, were similarly convicted in the Summer of 2022… brings to 14, the number of CONVICTED seditious conspirators. So — Tucker (again!) is a LIAR.]

These manifold felony convictions are an important “reality infused” footnote, to Hinderaker’s unhinged bleating — of the past three or so years. And it is a check and balance — against the stuff he wrote overnight, and I critiqued below. End updated portion.

Hinderaker generally concurs with the UN Secretary General — on World Press Freedoms Day.

So, I guess on this discrete issue, at least on this one day — we agree.

Hinderaker says the “free press” remarks should apply to anyone seeking to have a voice — whether a formally credentialed and trained journalist or not.

Again I concur — with one simple limitation: when the results of a lawful election are being certified, the freedom to advocate for violent sedition and the overthrow of a lawful democratic government of, for and by the people… will allow for arrests and jailings of the speakers — not as prior restraint — but after uttered… for sedition.

In sum, such speech will carry real consequences at criminal and civil law. As will libel per se.

These are two caveats Hinderaker fails to mention — so I will.

Out.

NJ App. Ct.: Insurers Must Reimburse Merck For “NotPetya” Global Hack/Malware Attack of 2017…

Not at all surprising, and just as we predicted over a half-year ago. But good to see it favorably resolved. I doubt the insurers will seek a SCOTUS writ of cert., as there really are no live issues for such an appeal. This is straightforward state insurance contract language interpretation.

Here it all is — from FiercePharma… and a bit from the appellate decision itself — issued yesterday, in New Jersey:

…[Here,] we consider whether plaintiff Merck & Co., Inc. (plaintiff, or Merck) is entitled to insurance coverage under the “all risks” property insurance policies issued by defendants after a cyberattack infected and damaged thousands of plaintiff’s computers in its global network. Defendants denied coverage under the “Hostile/Warlike Action” exclusion included in all their policies.

The trial court granted plaintiffs’ summary judgment motions, finding the exclusion did not apply to plaintiffs’ claims.

In considering the plain language of the exclusion, and the context and history of its application, we conclude the Insurers did not demonstrate the exclusion applied under the circumstances of this case, namely, that this cyberattack was a “hostile” or “warlike” action as contemplated under the exclusion. Therefore, we affirm….

Now you know. Onward, grinning — into the day of the “Force / Fourth”, mañana!

नमस्ते

“It Is Worth Noting” That Comer (And Hinderaker) Are Lying Partisan MAGA Hacks…

…and this will go nowhere — not because of any “deep state” at FBI or DoJ, but because the allegations made by this “whistle-blower” were found… entirely non-credible over a decade ago.

Sit down, Johnnie. Grassley is senile; Comer is a endless liar. You… are… both.

Your old fart / skid-mark is showing through your lightweight white Spring slacks…

Out.

Some Of Tucker’s “Charming” Texts…

I reprint the texts here because Hinderaker still praises him as a “winner”.

I disagree. Even the Luddite Rupert disagrees, apparently. Here is a proposed Dominion trial exhibit — as obtained by the NYT:

…EXHIBIT 276

Tucker Carlson January 7, 2021 — 04:18:04 PM UTC

A couple of weeks ago, I was watching video of people fighting on the street in Washington. A group of Trump guys surrounded an Antifa kid and started pounding the living shit out of him. It was three against one, at least. Jumping a guy like that is dishonorable obviously.

It’s not how white men fight.

Yet suddenly I found myself rooting for the mob against the man, hoping they’d hit him harder, kill him. I really wanted them to hurt the kid. I could taste it. Then somewhere deep in my brain, an alarm went off: this isn’t good for me. I’m becoming something I don’t want to be. The Antifa creep is a human being. Much as I despise what he says and does, much as I’m sure I’d hate him personally if I knew him, I shouldn’t gloat over his suffering. I should be bothered by it.

I should remember that somewhere somebody probably loves this kid, and would be crushed if he was killed. If I don’t care about those things, if I reduce people to their politics, how am I better than he is?…

Confidential to Tucker: you aren’t. You are much much worse. Obviously.

And soon all your minions will have to accept that you are… a pure 21st Century Klansman.

Out.

Hinderaker Thinks Asking For A Code of Ethics For the Supremes… “Attacks Its Independence”?!

Well… if one looks at the actual proposals (not Hinderaker’s lies — about positions the Democratic legislators have NOT taken)… it is obvious that we advocate for a clear, and legally enforceable, code of ethics applicable to the Justices.

This would sink Thomas (and his wife), so John makes it all about past, and fully cured questions. Thomas has not reimbursed anyone for the over 30 years of perks he’s taken in secret.

That’s the issue.

John’s smoke screen won’t obscure that.

Thomas knew it was wrong, all along.

But he was already “bought” — and he knew he would face no enforceable ethics code (nor related violations charges) so he just… didn’t care.

That’s the story — not John’s nonsense.

Out.