United States Third Circuit

In a shareholder suit which is part of the VIOXX-related litigation, dismissal of the suit on the grounds that plaintiffs failed to make pre-suit demand on the board of directors and did not establish demand futility, is reversed and remanded where the district court erred in denying plaintiffs leave to amend their complaint with additional materials on the ground that the materials were acquired as a result of a consensual discovery agreement made by Merck and the derivative plaintiffs.

Appellate Information

• Argued 04/12/2007
• Decided 07/18/2007
• Published 07/18/2007

Judges

• Before:  SMITH and COWEN, Circuit Judges and YOHN, District Judge.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Travis E. Downs III, Joseph D. Daley (argued), Lerach Coughlin Stoia Geller Rudman & Robbins, San Diego, CA, Peter S. Pearlman, Cohn Lifland Pearlman Herrmann & Knopf, Saddle Brook, NJ, Jeffrey P. Fink, Robbins Umeda & Fink, San Diego, CA, for Appellant.


• For Appellees:
  
• Robert D. Joffe, Evan R. Chesler, Robert H. Baron (argued), David Greenwald, Cravath, Swaine & Moore, New York, NY, William R. Stein, Roberta Koss, Hughes Hubbard & Reed, Washington, DC, for Appellee.