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Merck & Co., Inc. v. Reynolds

Supreme Court Upholds Right of Investors to Protect Their Investments

The U.S. Supreme Court unanimously upheld practical application of the statute of limitations in securities fraud cases. AARP's brief asked the Court to allow lawsuits by investors who relied on statements made by drug manufacturer Merck about now-discredited pain medication Vioxx.

As an increasing number of investors are making their own investment decisions, and those decisions affect hard-earned retirement benefits, it is important that investors be able to access full and accurate information about their investments and have access to courts to enforce their rights.

Background


Vioxx was aggressively marketed to both doctors and consumers, and 84 million people worldwide (including 2 million Americans) used the drug during the five years it was available. It was withdrawn from the market, in 2004, however, after numerous reports that the drug had very significant negative side effects and may have contributed to heart attacks and strokes. So far, nearly 10,000 lawsuits have been filed against the drug's manufacturer, Merck, by Vioxx users and their families. Many of the lawsuits allege that Merck had numerous early warnings of the drug's potential cardiovascular risk.

After withdrawing the highly profitable medication, Merck was hit by a number of securities fraud lawsuits claiming that it had misrepresented the drug's risks, which artificially inflated the value of Merck stock. Investors point to internal documents showing disputes within the company over studies indicating risks. In a November 2004 Wall Street Journal article, a securities analyst commented that "new information" indicated to sophisticated analysts that information from Merck may not have been as "innocent as we thought"; for many ordinary investors that was the first indication they had that corporate misrepresentation may have occurred.

Federal law imposes a two-year statute of limitations for securities fraud claims beginning when an investor becomes aware that fraud may have occurred. However, courts are widely split on how to determine when the clock actually begins to tick. In Merck's case, the company argued that the clock began to tick when the federal Food and Drug Administration (FDA) sent a warning letter — posted on FDA's webpage — to Merck in 2001 that aired concerns about how the drug was being marketed to doctors. Investors argued that this health-oriented warning was not the same as a warning of intentional fraud for which an ordinary investor should take note and that the clock on the statute of limitations did not begin to run until later news accounts of the alleged misrepresentations came to light. The U.S. Court of Appeals for the Third Circuit agreed with the investors, and ruled that the two-year filing period does not begin to run until an investor comes upon actual evidence that the misrepresentations were intentional. Merck challenged that ruling by appealing to the Supreme Court. The issue in Merck & Co. Inc. v. Reynolds was precisely what constitutes "evidence" of intentional fraud. Merck's theory of the case was that the FDA warning had amounted to "storm warnings" that served notice to investors of potential claims against the company for fraud.


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