N. Sound Capital LLC v. Merck & Co.
N. Sound Capital LLC v. Merck & Co.
Opinion of the Court
This case concerns the preclusive scope of Title I of the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), which bars plaintiffs in a "covered class action" from asserting state law claims alleging "a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security." 15 U.S.C. § 78bb(f)(1)(A). SLUSA's definition of a "covered class action" reaches "any group of lawsuits filed in or pending in the same court and involving common questions of law or fact, in which ... damages are sought on behalf of more than 50 persons ... and the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose." 15 U.S.C. § 78bb(f)(5)(B)(ii).
The instant actions are brought on behalf of sixteen institutional investors
Following the dismissal of Plaintiffs' Exchange Act claims, Defendants filed the instant Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiffs' sole remaining claim for common law fraud is barred by SLUSA. This Court held oral argument on Defendants' Motion on April 11, 2018. For the reasons that follow, Defendants' Motion to Dismiss is granted.
I. BACKGROUND
The Court assumes the parties' familiarity with the underlying facts of this case, which are set forth in detail in this Court's August 26, 2015 Opinion, and thus, recites only those facts necessary to decide the instant Motion.
A. The ENHANCE Trial
In 2002, Merck and Schering entered into a joint venture for the purpose of combining their cholesterol treating drugs-Zocor and Zetia, respectively-to form a new pharmaceutical product called Vytorin. See North Sound Schering Compl. ¶¶ 30-31.
The ENHANCE trial ran from August 2002 to April 2006. Id. at ¶ 42. However, according to the Complaint, researchers and executives recognized a critical design flaw in the ENHANCE trial shortly after its inception, rendering it unlikely that the trial would produce favorable results. Id. at ¶¶ 47-52. Specifically, Plaintiffs allege that data from early enrollers demonstrated that high-cholesterol participants entered the ENHANCE trial with their arterial walls already "near-normal," due to years of taking cholesterol medication, and thus, that it would be difficult to demonstrate the effectiveness of Vytorin in reducing or slowing the progression of the thickness of the carotid arterial walls in those participants. Id. at ¶¶ 47-52. In short, Plaintiffs allege that Defendants were aware, from an early stage, that the ENHANCE trial was doomed from its incipiency.
Notwithstanding the hurdles attributable to ENHANCE's experimental design, Plaintiffs allege that, from 2006 onward, Defendants made a series of misrepresentations regarding Vytorin's prospects for clinical efficacy. Id. at ¶ 39. Specifically, Plaintiffs identify seventeen misrepresentations that Defendants made regarding Vytorin, the last by Schering on November 19, 2007, and by Merck on January 30, 2008. Id. at ¶¶ 207-89, 317-18. Plaintiffs further allege that these misrepresentations artificially inflated the price of Schering securities. Id. at ¶ 310. Plaintiffs also aver that an individual defendant made sales of Schering stock based on insider knowledge of the results of ENHANCE, with the last insider transaction occurring on May 1, 2007. Id. at ¶¶ 353-55.
The final results of the ENHANCE trial became public in early 2008, and the data collected from the trial confirmed what the early outputs had suggested-that Vytorin did not produce any added benefit when compared to Zocor alone. Id. at ¶ 45. Indeed, one cardiologist concluded that the ENHANCE trial raised the possibility that the active pharmaceutical ingredient in Vytorin was merely an "expensive placebo." Id. at ¶ 142.
Plaintiffs allege that in the period immediately following the release of the ENHANCE trial's results, Schering's "common stock price fell more than 52%, wiping out more than $23.63 billion in market capitalization, and [Schering's] preferred stock price similarly fell more than 40%, ... wiping out $1.039 billion in market capitalization." Id. at ¶ 320. Plaintiffs attribute the decline in Schering's stock price to the "disclosure of previously concealed information relating to [Defendants'] material misstatements and omissions ...." Id. at ¶ 321. Plaintiffs further allege that, in the absence of Defendants' misrepresentations, Plaintiffs "would not have purchased Schering securities at artificially inflated prices and they would not have proximately suffered losses as the previously-withheld information became revealed to the market." Id. at ¶ 322.
*595B. The Vytorin Class Actions
In 2008, the Vytorin Class Actions were filed in this District, asserting federal securities claims arising out of the alleged material misstatements and omissions made in connection with the ENHANCE trial. Both cases were presided over by the Honorable Dennis M. Cavanaugh, U.S.D.J. (Ret.). On September 25, 2012, Judge Cavanaugh granted class certification in both actions. See Schering Vytorin Class Action, ECF Nos. 314-15; Merck Vytorin Class Action, ECF Nos. 250-51. Under the class notices published in the Vytorin Class Actions, class members were given a March 1, 2013 opt-out deadline. See Schering Vytorin Class Action, ECF No. 331-1 ¶ 8; Merck Vytorin Class Action, ECF Nos. 266-1 ¶ 8, 271-1 ¶ 8. Plaintiffs exercised their opt-out rights on March 1, 2013.
On October 1, 2013, Judge Cavanaugh approved settlements and entered final judgments in the Vytorin Class Actions, dismissing the claims asserted therein with prejudice. See Schering Vytorin Class Action, ECF No. 440; Merck Vytorin Class Action, ECF No. 353.
C. Plaintiffs Opt Out of the Vytorin Class Actions and file the Individual Actions
Having opted out of class membership in the Vytorin Class Actions, Plaintiffs filed the four Individual Actions in this Court on November 14, 2013
D. The Initial Motion to Dismiss the Individual Actions as Untimely
As the Court has already explained, the last insider transaction alleged in the Complaint was executed on May 1, 2007, and the final alleged misstatement was made on January 30, 2008, more than five years before Plaintiffs initiated the Individual Actions. This was significant, because the statutes under which Plaintiffs asserted their Exchange Act claims contained five-year limitations periods, found in
In Stipulated Orders filed on March 7, 2014, October 17, 2014, December 19, 2014, and September 9, 2015, this Court recognized, and the parties agreed, that it would promote judicial efficiency to resolve the threshold question of whether the five-year limitations periods governing Plaintiffs' Exchange Act claims were subject to tolling under American Pipe Constr. Co. v. Utah ,
This Court denied Defendants' motion on August 26, 2015, finding that although the limitations provisions governing Plaintiffs' Exchange Act claims were statutes of repose, those claims were not untimely, because American Pipe tolling was applicable. See N. Sound Capital LLC v. Merck & Co. , No. 3:13-7240,
Subsequently, on September 30, 2015, Defendants moved, pursuant to
1. Whether the tolling rule set forth in American Pipe & Constr. Co. v. Utah ,414 U.S. 538 ,94 S.Ct. 756 ,38 L.Ed.2d 713 (1974) is "legal" or "equitable" in nature; and
2. Whether interpreting American Pipe & Constr. Co. v. Utah ,414 U.S. 538 ,94 S.Ct. 756 ,38 L.Ed.2d 713 (1974) tolling to extend the five-year statutes of repose under the Securities Exchange Act of 1934 would abridge Defendants' substantive rights, enlarge Plaintiffs' substantive rights, or otherwise modify any substantive right within the meaning of the Rules Enabling Act,28 U.S.C. § 2072 (b).
ECF No. 29. The Third Circuit agreed to hear an interlocutory appeal on February 11, 2016. ECF Nos. 30-31.
After briefing and oral argument on the statutes of repose question, but before the Third Circuit issued a decision, the Supreme Court held in California Pub. Employees' Ret. Sys. v. ANZ Securities, Inc. , --- U.S. ----,
E. The Instant Motion to Dismiss
On August 25, 2017, Defendants filed the instant Motion to Dismiss Plaintiffs' common law claim as barred by SLUSA. ECF No. 36. That Motion has been fully briefed. ECF Nos. 41-42. This Court held oral argument on Defendants' Motion on April 11, 2018. ECF No. 46.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter jurisdiction to hear a claim. See FED. R. CIV. P. 12(b)(1). "SLUSA preemption is jurisdictional," LaSala v. Bordier et Cie ,
*598In evaluating a Rule 12(b)(1) motion to dismiss, the court must first determine whether the motion "presents a 'facial' attack or a 'factual' attack on the claim at issue, because that distinction determines how the pleading must be reviewed." Constitution Party of Pennsylvania v. Aichele ,
A factual challenge, on the other hand, "attacks allegations underlying the assertion of jurisdiction in the complaint, and it allows the defendant to present competing facts." Hartig Drug Co. ,
B. Federal Rule of Civil Procedure 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside ,
*599motion to dismiss, a complaint must contain sufficient factual allegations to raise a plaintiff's right to relief above the speculative level, so that a claim "is plausible on its face."
In accordance with the pleading requirements set forth in Twombly and Iqbal , the Third Circuit has formulated "a three-step process for district courts to follow in reviewing the sufficiency of a complaint." Robinson v. Family Dollar Inc. ,
III. DISCUSSION
Defendants move to dismiss Plaintiffs' common law fraud claim as barred by SLUSA. Alternatively, in the event that SLUSA preclusion does not apply, Defendants argue that there is no basis for this Court to exercise supplemental jurisdiction over Plaintiffs' state law claim. Because "SLUSA preemption is jurisdictional," LaSala ,
A. Background of SLUSA
To fully understand the context in which Defendants' SLUSA preclusion defense arises, the Court must briefly recount the evolution of federal securities law. "In response to the sudden and disastrous collapse in prices of listed stocks in 1929, and the Great Depression that followed, Congress enacted the Securities Act of 1933 ... and the Securities Exchange Act of 1934." Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit ,
*600While private securities litigation under the 1933 and 1934 Acts provided defrauded investors with " 'an indispensable tool' " with which to recover their losses, by the mid-1990s, Congress had identified various "ways in which the class-action device was being used to injure 'the entire U.S. economy.' "
In 1995, Congress enacted the PSLRA for the purpose of curbing these "perceived abuses of the class-action vehicle in litigation involving nationally traded securities." Dabit ,
By 1998, however, Congress concluded that the PSLRA had produced an unintended consequence; "plaintiffs were circumventing the requirements of the PSLRA by filing private securities class actions" alleging violations of state law. Rowinski v. Salomon Smith Barney Inc. ,
SLUSA makes federal court "the exclusive venue for securities fraud class action litigation," H.R. REP. NO. 105-640, at 10, by prohibiting plaintiffs from bringing "large securities class actions based upon violations of state law." Chadbourne ,
B. SLUSA Bars Plaintiffs' Common Law Claim
Having set forth the context in which SLUSA was enacted, the Court turns to the issue of whether SLUSA bars Plaintiffs' common law fraud claim. SLUSA's dismissal provision provides:
No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging-
(A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or
(B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.
15 U.S.C. § 78bb(f)(1). SLUSA thus bars claims asserted in: (1) a "covered class action"; (2) that are based in state law; (3) in which the plaintiff alleges "a misrepresentation or omission of material fact"; (4) "in connection with the purchase or sale of a covered security."
SLUSA's definition of a "covered class action" includes not only a single class action lawsuit,
Here, it is undisputed that the four Individual Actions involve only sixteen individual plaintiffs, and thus, that even in the aggregate, they do not constitute a "covered class action" under SLUSA. Nonetheless, Defendants argue that the Individual Actions should be grouped with the Vytorin Class Actions, because those lawsuits were filed in the same court, involve common questions of law and fact, collectively seek damages on behalf of more than 50 persons, and proceed as a single action for any purpose. Plaintiffs concede that the Individual Actions and the Vytorin Class Actions involve common issues of law and fact, and thus, that the second element of SLUSA's grouping provision is satisfied. See Pls.' Mem. of Law in Opposition to Defs.' Mot. to Dismiss Pls.' Common-Law Claim ("Pls.' Br."), ECF No. 41 at 16. Accordingly, this Court's inquiry is limited to the first, third, and fourth factors of SLUSA's grouping provision.
The Court will address the first and third elements of the "group of lawsuits" provision-whether Individual Actions and the Vytorin Class Actions constitute a group of lawsuits (1) "filed in or pending in the same court" and (3) "in which ... damages are sought on behalf of more than 50 persons"-in tandem. In analyzing those factors, I note that the parties have not identified any decision with facts directly analogous to those presented here. That is, the Court is unaware of any prior case that required a court to determine whether an individual action could be grouped with lawsuits that were dismissed prior to the commencement of the individual action.
Nonetheless, with respect to the "filed in or pending in" element of SLUSA's grouping provision, the Court finds instructive In re Lehman Bros. Sec. & Erisa Litig. ,
*603Despite the fact that fewer than 50 persons remained in lawsuits pending before the district court, the court found that the individual actions could be grouped with the settled class action, because those lawsuits were originally filed in the same court.
However, moving to the "filed in" clause of the provision, the court found that the natural reading of "filed in" is "originally filed."
Similarly, here, the Court finds that the Individual Actions can be grouped with the Vytorin Class Actions to satisfy SLUSA's 50-persons threshold, because they were originally filed in the same court. In that regard, the Vytorin Class Actions were filed in the District of New Jersey on January 18, 2008,
The final, and more important, question in determining whether SLUSA's grouping provision is satisfied in this case is whether the Individual Actions and the Vytorin Class Actions constitute a group of lawsuits that "are joined, consolidated, or otherwise proceed as a single action for any purpose." 15 U.S.C. § 78bb(f)(5)(B)(ii)(II). At the outset, Defendants concede that the Individual Actions and the Vytorin Class Actions were *604never formally joined or consolidated. See Defs.' Mem. of Law in Support of Defs.' Mot. to Dismiss Pls.' Common-Law Claim ("Defs.' Br."), ECF No. 36 at 20. Rather, Defendants' argument is focused on the last clause of the grouping provision (the "catchall provision"); Defendants argue that the Individual Actions and the Vytorin Class Actions have "otherwise proceed[ed] as a single action for any purpose," because: (1) the Complaint mirrors the consolidated complaints that were filed in the Vytorin Class Actions, asserting virtually identical federal claims, with the exception of an additional common law claim that overlaps factually and legally with the federal claims; (2) in their civil cover sheets, Plaintiffs designated the Individual Actions as a "related case" to the Vytorin Class Actions; (3) Plaintiffs certified, pursuant to Local Civil Rule 11.2, that the Individual Actions involve the same subject matter as the Vytorin Class Actions; and (4) Plaintiffs have represented, in various submissions to this Court and the Third Circuit, that they will rely on the discovery obtained in the Vytorin Class Actions in litigating the Individual Actions.
In opposition, Plaintiffs advance five main arguments as to why the Individual Actions and the Vytorin Class Actions cannot be grouped into a "covered class action." First, Plaintiffs dispute that the level of coordination between the Individual Actions and the Vytorin Class Actions is sufficient to find that those cases proceeded as a single action for any purpose. Second, Plaintiffs contend that SLUSA's catchall provision-requiring a group of lawsuits to "otherwise proceed as a single action for any purpose"-is phrased in the present tense, and thus, only reaches those lawsuits that are proceeding as a single action when a SLUSA motion to dismiss is filed. And, because the Vytorin Class Actions were no longer pending when the instant Motion was filed, Plaintiffs argue that the Individual Actions cannot be grouped with the Vytorin Class Actions under the catchall provision. Plaintiffs' third argument is a slight variant of the second; focusing again on the present-tense phrasing of the terms "otherwise proceed," Plaintiffs maintain that to proceed as a single action, two cases must, at a minimum, have been pending simultaneously at some time in time-i.e. , Plaintiffs argue that two cases cannot proceed as a single action, where the first was dismissed prior to the filing of the second. Fourth, Plaintiffs argue that precluding their state law claims would be inconsistent with the purpose of SLUSA. Finally, Plaintiffs maintain that even if the Individual Actions are part of a "covered class action" under SLUSA, Defendants are judicially estopped from prevailing on the issue of SLUSA preclusion. The Court will address each of these arguments, in turn.
1. The Degree of Coordination Required to Proceed as a Single Action "For Any Purpose"
To determine whether the Individual Actions and the Vytorin Class Actions can be grouped into a "covered class action" under SLUSA's catchall provision, this Court must interpret the statutory phrase "or otherwise proceed as a single action for any purpose." 15 U.S.C. § 78bb(f)(5)(B)(ii)(II). Therefore, the Court will briefly review the well-settled principles of statutory construction that guide its analysis. "The role of the courts in interpreting a statute is to give effect to Congress's intent." Rosenberg v. XM Ventures ,
Turning to the plain the language of the statute, the phrase "otherwise proceed as a single action for any purpose" suggests an expansive definition of a "covered class action." 15 U.S.C. § 78bb(f)(5)(B)(ii)(II) (emphasis added). In that regard, the Supreme Court has previously observed, in a variety of different contexts, that "[r]ead naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.' " United States v. Gonzales ,
Similarly, in Ali , the Court considered the scope of the word "any" in
*606
The reasoning of Gonzales and Ali applies equally to the expansive language that Congress used in 15 U.S.C. § 78bb(f)(5)(B)(ii)(II). In that regard, Congress' use of the term "any" in the statutory text of § 78bb(f)(5)(B)(ii)(II) indicates an intention that courts read SLUSA's catchall provision broadly. See In re Refco ,
This Court's determination that the phrase "for any purpose" should be given an expansive construction is consistent with the legislative history
Against this statutory and legislative backdrop, both the Supreme Court and the Third Circuit have endorsed a broad interpretation of SLUSA's definition of a "covered class action." See Cyan ,
*607to ensure the uniform application of federal fraud standards."). As a result, various courts, both within and outside of this Circuit, have interpreted SLUSA's definition of a "covered class action" expansively, finding that, even where lawsuits are not formally consolidated or joined, the catchall provision "or otherwise proceed as a single action for any purpose" encompasses ostensibly separate lawsuits, where, inter alia , any of the following "indicia of coordination" between those lawsuits is present:
• The lawsuits contain nearly identical complaints, arise out of the same facts, involve overlapping claims and parties, and have been designated as related in civil cover sheets, see, e.g., Discovery Glob. Citizens Master Fund, Ltd. v. Valeant Pharm. Int'l, Inc. , No. 16-7321,2018 WL 406046 , at *6 (D.N.J. Jan. 12, 2018) ; Stichting Pensioenfonds ABP v. Merck & Co. , No. 05-5060,2012 WL 3235783 , at *16 (D.N.J. Aug. 1, 2012) ; In re Enron Corp. Sec. ,535 F.3d 325 , 340 (5th Cir. 2008) ; Kuwait Inv. Office v. Am. Int'l Grp., Inc. ,128 F.Supp.3d 792 , 812 (S.D.N.Y. 2015) ; Amorosa v. Ernst & Young LLP ,682 F.Supp.2d 351 , 375 (S.D.N.Y. 2010) ; In re AOL Time Warner, Inc. Sec. Litig. ,503 F.Supp.2d 666 , 672 (S.D.N.Y. 2007) ;
• The lawsuits have coordinated discovery, see, e.g., Stichting Pensioenfonds ,2012 WL 3235783 at *16 ; In re Enron ,535 F.3d at 340 ; Instituto De Prevision Militar ,546 F.3d at 1347 ; Kuwait ,128 F.Supp.3d at 812 ; In re BP p.l.c. Sec. Litig. ,109 F.Supp.3d 946 , 957-58 (S.D. Tex. 2014) ; In re Refco ,859 F.Supp.2d at 649 ;
• The lawsuits have coordinated motion practice, see, e.g., Stichting Pensioenfonds ,2012 WL 3235783 at *16 ; Kuwait ,128 F.Supp.3d at 812 ; In re BP ,109 F.Supp.3d at 957-58 ; In re AOL Time Warner, Inc. Sec. Litig. ,503 F.Supp.2d at 671-72 ; or
• The lawsuits have coordinated amended and responsive pleading, see, e.g. , Valeant ,2018 WL 406046 at *6 ; Stichting Pensioenfonds ,2012 WL 3235783 at *16 ; Kuwait ,128 F.Supp.3d at 812-13 ; In re BP ,109 F.Supp.3d at 957-58 ; Amorosa ,682 F.Supp.2d at 376 .
In light of the expansive language of the statute, SLUSA's underlying purpose, and the relevant case law, I find it appropriate to interpret SLUSA's broad definition of a covered class action to include lawsuits that have not been formally joined or consolidated, where those actions have been coordinated for any purpose. As the Amorosa court aptly observed, to interpret SLUSA's grouping provision "as covering only lawsuits that are formally 'joined or consolidated' would be to render the statute's description of the latter category of covered actions-lawsuits that 'otherwise proceed as a single action for any purpose'-entirely redundant,"
As a preliminary matter, I note that the Third Circuit has not opined on "the degree to which a group of lawsuits must proceed together to fall within the purview of SLUSA," id. at *14, and the parties have not identified a case with facts directly analogous to the present dispute. Nonetheless, the Court's analysis is guided by several comparable cases involving the aggregation of individual actions with class actions under SLUSA's catchall grouping provision. First, in Stichting Pensioenfonds , the court found that an institutional investor's individual case proceeded as a single action with a class action involving the same alleged securities fraud and pending in the same multidistrict litigation, despite the fact that the investor's complaint had not been formally consolidated or joined with the class action. See id. at *15-17. Looking to the "indicia of coordination" between the lawsuits, the court emphasized the fact that the investor's complaint was nearly identical to the class action complaint, involving overlapping claims, allegations, and parties. Id. at *15-16. Next, the court found significant that the investor agreed to coordinate the proceedings in the individual action with the class action by, inter alia : (1) stipulating to defer the deadline for the defendant to answer and to stay discovery until the court had resolved a motion to dismiss in the class action; (2) agreeing to conform the allegations in his amended complaint to reflect the court's opinion in the class action; (3) agreeing to be bound by the court's opinion in the class action; and (4) coordinating discovery with the class action. See id. at *16. Accordingly, the court held that the degree of coordination between the individual action and the class action was sufficient to find that those lawsuits proceeded as a single action for any purpose, and thus, dismissed the plaintiff's state law claims as barred by SLUSA. Id. at *16-17.
Similarly, in Valeant , the court held that six opt-out lawsuits could be grouped with a related class action to form a covered class action under SLUSA, based on the degree of coordination between those lawsuits. See
Consistent with those decisions, various courts outside of this District have also *609held that SLUSA's broad catchall provision reaches individual actions that exhibit a degree of coordination with related lawsuits. See, e.g., Instituto De Prevision Militar ,
For example, in Kuwait , the Southern District of New York dismissed state law claims asserted in opt-out actions as precluded by SLUSA, finding that the opt-out actions proceeded as a single action with a class action arising out of the same allegations. See
The Individual Actions indisputably share common questions of law and fact and rely on allegations that are virtually identical to those in the Class Action complaint. In addition, [the] Individual Actions are currently subject to case management orders tied to the Class Action, providing that (i) the Individual Actions were stayed pending resolution of class certification and/or preliminary approval of settlement in the Class Action; (ii) Defendants are restricted from moving to dismiss on the grounds that were already asserted and rejected by the Court in the Class Action; and (iii) Defendants voluntarily agree to provide Plaintiffs with discovery material already produced in the Class Action and the parties agreed to be bound by all discovery orders and protocols in the Class Actions. Furthermore, the briefing and litigation of the instant motions to dismiss the Individual Complaints has been highly coordinated, with consolidated and interrelated briefing that frequently drew upon decisions and litigation events in the Class Action. Plaintiffs have all opted out of the Class Action and also, as discussed above, claimed the benefit of the Class Action in their attempts to oppose the motions to dismiss certain of their claims as untimely.
...
SLUSA sweeps broadly and applies to individual cases that are coordinated or consolidated for pre-trial purposes with a class action. Under these circumstances, SLUSA precludes Plaintiffs' attempt to engage in further litigation of their securities fraud claims under state law standards. Plaintiffs here assert the same factual and federal legal claims raised in the Class Action, and have received the benefits of coordinating discovery and other litigation activity with the Class Action.
Similarly, in Amorosa , the court applied the catchall provision to group an individual opt-out lawsuit with a related class action and other opt-out actions, based on various indicia of informal coordination between the actions, any one of which "alone compel a finding that [the plaintiff's] case falls under the ambit of SLUSA."
Here, the Court is satisfied, based on the procedural history of, and degree of informal coordination between, the Individual Actions and the Vytorin Class Actions, that those lawsuits have proceeded as a single action, and thus, constitute a "covered class action" under SLUSA's catchall provision. As the Court has already discussed, from 2008 to 2013, Plaintiffs were putative members of the Vytorin Class Actions. On September 25, 2012, class certification was granted in both actions, rendering Plaintiffs actual class members in those cases. Under the class notices published in the Vytorin Class Actions, class members were given a March 1, 2013 opt-out deadline. Plaintiffs waited until the last possible day to exercise those rights, opting out of the Vytorin Class Actions on March 1, 2013. However, as class members to the Vytorin Class Actions, Plaintiffs were privy to the pleadings, discovery disputes, dispositive motions, stipulations of fact, and various motions in limine filed in those actions. See Schering Vytorin Class Action, ECF Nos. 52, 314-389; Merck Vytorin Class Action, ECF Nos. 24, 250-310.
On October 1, 2013, final judgments were entered in the Vytorin Class Actions, dismissing the claims asserted therein with prejudice. Even though the Complaint, here, mirrors the consolidated complaints filed in the Vytorin Class Actions, Plaintiffs waited until November 14, 2013 and January 14, 2014 to file the Individual Actions. Significantly, the Complaint is nearly identical to-and in many places copied verbatim from-the consolidated complaints filed in the Vytorin Class Actions, asserting the same federal claims arising out of Defendants' alleged misrepresentations regarding the ENHANCE trial. Compare Schering Vytorin Class Action Compl. ¶¶ 10-12, 331-37, with North Sound Compl. ¶¶ 10-12, 393-99. Indeed, the only material difference between the Vytorin Class Actions and the Individual Actions is the addition of Plaintiffs' common law claim, which is based on, and expressly incorporates, the same factual allegations as the federal claims.
Recognizing as much, in the civil cover sheets that they filed with this Court and the Third Circuit, Plaintiffs identified the Individual Actions as "related" to the Vytorin Class Actions. See GIC Private Ltd. v. Merck & Co., Inc. F/K/A Schering-Plough Corp. , No. 13-7241 (D.N.J. Nov. 14, 2013), ECF No. 1-1. Plaintiffs also certified, pursuant to Local Civil Rule 11.2, that the Individual Actions and the Vytorin Class Actions involved the same subject matter. Cert. Pursuant to L. CIV. R.11.2, North Sound Schering Compl. at 169; Cert. Pursuant to L. CIV. R.11.2, GIC Schering Compl. at 166; Cert. Pursuant to L. CIV. R.11.2, GIC Merck Compl. at 187; Cert. Pursuant to L. CIV. R.11.2, North Sound *611Merck Compl. at 188. Taken together, these facts demonstrate that Plaintiffs, through their own initiative, substantially relied on the consolidated class action complaints in drafting the Complaint, and thus, derived a benefit from the Vytorin Class Actions.
Nonetheless, attempting to minimize the significance of the overlap between the Complaint and the consolidated complaints filed in the Vytorin Class Actions, Plaintiffs argue that because the Individual Actions "are opt-out suits, it is not only unsurprising, but entirely expected that Plaintiffs' suits would share common issues with the Vytorin Class Actions." Pls.' Br. at 16. While the Court does not dispute that an opt-out lawsuit is likely to share a common nucleus of facts with a related class action, it is entirely voluntary for the plaintiff in an opt-out suit to derive a benefit from his or her former membership in that class action by filing an identical complaint. Moreover, the Court notes that SLUSA expressly provides that the definition of " 'covered class action' does not include an exclusively derivative action brought by one or more shareholders on behalf of a corporation." 15 U.S.C. § 78bb(f)(5)(C). Congress could have included a similar exception for opt-out lawsuits, but chose not to do so. Cf. In re Bank of Am. Corp. Sec., Derivative, & Employee Ret. Income Sec. Act (ERISA) Litig. , No. 092058,
Moreover, although Plaintiffs' reliance on the Vytorin Class Actions in forming their pleadings, standing alone, provides a strong indication that the Individual Actions and the Vytorin Class Actions proceeded as a single action, Plaintiffs have taken additional steps to coordinate the Individual Actions with the Vytorin Class Actions. To that end, in opposing Defendants' motion for certification of an interlocutory appeal, Plaintiffs represented to this Court that reversal on appeal would not make discovery easier or less costly, because the parties "already engaged in lengthy and expensive discovery in the class cases, most, if not all, of which will be relevant to the current litigation ...." Pls.' Mem. in Opp. to Defs.' Mot. for Cert. and Temporary Stay, No. 13-7240, ECF No. 27 at 24; see id. at 32 ("Moreover, because discovery in the class cases has already occurred, there will be little need for further discovery in these actions ...."). Plaintiffs further represented that their common law claims involved "virtually identical issues, and will require virtually identical discovery, as [Plaintiffs'] federal claims." Id. at 23. Regardless of the fact that no formal order or stipulation coordinating discovery with the Vytorin Class Actions has been entered, Plaintiffs, having sought to avail themselves of the benefits of the discovery obtained in the Vytorin Class Actions, cannot now disavow those benefits in an attempt to avoid the perception of coordination. See Kuwait ,
Indeed, Plaintiffs' arguments "brush aside their own contribution to SLUSA preemption: choosing to proceed as a single action." In re Enron ,
2. Temporality
Notwithstanding any indicia of coordination between the Individual Actions and the Vytorin Class Actions, Plaintiffs argue that those actions cannot be grouped into a covered class action under SLUSA's catchall provision, because the Vytorin Class Actions were settled and dismissed prior to the filing of the Individual Actions. Plaintiffs reason that because the statutory terms "otherwise proceed" are phrased in the present tense, the catchall provision only encompasses cases that are proceeding together at the time that a SLUSA motion to dismiss is filed. Alternatively, even if SLUSA's catchall provision is not so restrictive, Plaintiffs argue that because "otherwise proceed" is phrased in the present tense, it necessarily follows that *613two cases cannot proceed as a single action where the first case is dismissed prior to the filing of the second. I disagree.
At the outset, the Court rejects Plaintiffs' argument that SLUSA's catchall provision only reaches those cases that are proceeding together when a SLUSA motion to dismiss is filed. In support of their argument, Plaintiffs cite to two out-of-district decisions, Ventura v. AT & T Corp. , No. 05-5718,
In Ventura , the court held that a plaintiff's individual action could not be grouped with a related class action under SLUSA, where the class action was dismissed prior to the filing of the defendants' motion to dismiss the individual action on SLUSA grounds. See
Additionally, Plaintiffs cite Liberty Media for the proposition that "SLUSA's 'covered class action' definition speaks in the present tense."
While this Court acknowledges that SLUSA's catchall provision is phrased in the present tense, see 15 U.S.C § 78bb(f)(5)(B)(ii)(II) (defining a "covered class action" to include a group of lawsuits that "are joined, consolidated, or otherwise proceed as a single action for any purpose."), I cannot agree that multiple lawsuits must remain pending at the time of a SLUSA motion to dismiss to be grouped into a covered class action.
In the instant case, the Court has conducted its analysis under the "filed in" prong of grouping provision, "a past-tense modifier" that authorizes grouping of the Individual Actions and the Vytorin Class Actions, despite the fact that the Vytorin Class Actions are no longer pending. In re Lehman Bros. ,
Nonetheless, although the Court finds that a group of cases need not be pending at the time of a SLUSA motion to dismiss to proceed as a single action, that finding does not answer the novel question presented by the instant dispute; namely, whether two actions can "otherwise proceed as a single action for any purpose," where the first action was dismissed prior *615to the filing of the second. Stated differently, the Court must determine whether cases must exist simultaneously to be grouped under SLUSA's catchall provision. As the parties acknowledge, it does not appear that any prior decision has addressed this issue. For the reasons that follow, I find that the Individual Actions can be grouped with the Vytorin Class Actions under SLUSA's catchall provision, despite the fact that the Vytorin Class Actions were dismissed prior to the filing of the Individual Actions.
To begin, the plain language of SLUSA does not clearly indicate whether Congress intended the catchall provision of the "covered class action" definition to reach only those actions that proceed as a single action in real time. SLUSA provides, in relevant part, that a "group of lawsuits" constitute a covered class action if they "are joined, consolidated, or otherwise proceed as a single action for any purpose." 15 U.S.C. § 78bb(f)(5)(B)(ii). The term "proceed" is not defined in the statute, and it is not self-evident, from the term "proceed" alone, that SLUSA's catchall provision requires real-time coordination. In that regard, the ninth edition of Webster's New Collegiate Dictionary defines "proceed" as:
1: to come forth from a source 2 a: to continue after a pause or interruption b: to go on in an orderly regulated way 3 a: to begin and carry on an action, process, or movement b: to be in the process of being accomplished 4: to move along a course.
Proceed , WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (9th ed. 1985). Those definitions are of limited value in determining whether Congress intended a real-time coordination requirement.
Moreover, contrary to Plaintiffs' arguments, the Court cannot draw any conclusions from Congress' decision to phrase the term "proceed" in the present-tense. Significantly, SLUSA's catchall provision is not phrased as a timing provision; rather it speaks to the degree of coordination required to find that a group of ostensibly separate actions constitute a covered class action. In that regard, notably absent from the catchall provision or any other portion of SLUSA is any express provision stating that a court must take into account temporal *616factors in determining whether a group of lawsuits constitutes a covered class action.
Furthermore, looking to the surrounding statutory language, "proceed" is modified only by the phrase "as a single action for any purpose," which also fails to indicate whether two actions must "proceed" in real-time to be grouped under SLUSA's catchall provision. Rather, as this Court has already discussed, the catchall provision "or otherwise proceed as a single action for any purpose" is an exceptionally broad preclusive provision, which reaches ostensibly separate lawsuits that display the requisite indicia of coordination. See Rowinski ,
Indeed, in light of SLUSA's broad remedial purpose, courts have uniformly rejected inflexible readings of SLUSA's covered class action definition, looking instead to whether a group of lawsuits were functionally consolidated, joined, or proceeding as a single action for any purpose.
3. Barring Plaintiffs' Common Law Claim is Consistent with SLUSA's Remedial Purpose
I also do not find convincing Plaintiffs' argument that barring their common law claim would be inconsistent with SLUSA's purpose, because Congress did not intend for SLUSA to " 'prevent plaintiffs from bringing bona fide individual actions simply because more than fifty persons commence the actions in the same ... court against a single defendant.' " Pls.' Br. at 25 (quoting S. REP. NO. 105-182, at 7 ). Plaintiffs are correct that SLUSA does not sweep so broadly as to cover bona fide individual actions asserting state law claims. However, the plain and unambiguous language of the statute also provides that a group of nominally separate lawsuits constitute a "covered class action" under SLUSA when they "proceed as a single action for any purpose ." 15 U.S.C § 78bb(f)(5)(B)(ii)(II) (emphasis added). In light of the Court's finding that the Individual Actions proceeded as a single action with the Vytorin Class Actions, the Court cannot agree that application of SLUSA to this case is inconsistent with the remedial purpose of the statute.
Indeed, contrary to Plaintiffs' argument, barring Plaintiffs' common law claim is consistent with the fundamental policies underlying SLUSA. As the Court has already explained, SLUSA was enacted to prevent plaintiffs from circumventing the PSLRA by bringing private securities class actions under state law. See Cyan ,
4. Judicial Estoppel is Not Warranted
Finally, Plaintiffs argue that even if the Individual Actions form part of a "covered class action" under SLUSA, judicial estoppel prevents Defendants from prevailing on the issue of SLUSA preclusion. Specifically, Plaintiffs maintain that in prior briefing before this Court and the Third Circuit regarding the applicability of American Pipe tolling, Defendants argued that the Individual Actions were not a continuation of the Vytorin Class Actions, but rather, constituted "four new civil actions," Pls.' Br. at 27, which, because they were not filed before the dismissal of the Vytorin Class Actions, could not be "coordinated ... in real time with the class action discovery, motion practice, and trial preparations ...." Id. at 28.
"Judicial estoppel is a fact-specific, equitable doctrine, applied at courts' discretion." In re Kane ,
First, the party to be estopped must have taken two positions that are irreconcilably inconsistent . Second, judicial estoppel is unwarranted unless the party changed his or her position in bad faith-i.e., with intent to play fast and loose with the court. Finally, a district court may not employ judicial estoppel unless it is tailored to address the harm identified and no lesser sanction would *619adequately remedy the damage done by the litigant's misconduct.
Here, the Court finds that Plaintiffs have failed to meet their burden of establishing that judicial estoppel is warranted, because Defendants have not taken positions that are irreconcilably inconsistent. In the repose motion, Defendants argued that the Individual Actions constitute "new civil actions," and that Plaintiffs' failure to file the Individual Actions before the dismissal of the Vytorin Class Actions prevented those cases from being consolidated for pre-trial and discovery purposes. In the instant Motion, Defendants do not dispute that the Individual Actions are "new" actions, or argue that the Individual Actions were actually coordinated in real-time with the Vytorin Class Actions. Rather, Defendants argue that, despite the lack of real-time coordination between the Individual Actions and the Vytorin Class Actions, those cases have functionally proceeded as a single action within the meaning of SLUSA's catchall provision, and thus, can be grouped into a "covered class action." Accordingly, because Defendants have not taken irreconcilably inconsistent positions, judicial estoppel is inapplicable.
In any event, the Third Circuit has held that "there is an exception to the general concept of 'judicial estoppel' when it comes to jurisdictional facts or positions, such that it has been said that 'judicial estoppel ... cannot conclusively establish jurisdictional facts.' " Whiting v. Krassner ,
In sum, because the Individual Actions and the Vytorin Class Actions have proceeded as a single action, and because the other elements of SLUSA's grouping provision are satisfied, the Individual Actions and the Vytorin Class Actions form a "covered class action" under SLUSA. Accordingly, the Court finds that Plaintiffs' common law fraud claim is barred by SLUSA, and that claim is dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss Plaintiffs' sole remaining common law claim is granted.
Specifically, the sixteen institutional investors in this case are Plaintiffs GIC Private Limited, North Sound Capital LLC, North Sound Legacy International, North Sound Legacy Institutional, United Food Commercial Workers Local 1500 Pension Fund, Colonial First State Investments LTD, and ten funds managed by Colonial First State Investments LTD (collectively, "Plaintiffs").
Specifically, on November 14, 2013, purchasers of Schering stock filed two separate actions against Schering, with Merck named as successor. See North Sound Capital LLC v. Merck & Co., Inc. F/K/A Schering-Plough Corp. , No. 13-7240 (D.N.J. Nov. 14, 2013), ECF No. 1 (the "North Sound Schering Compl."); GIC Private Ltd. v. Merck & Co., Inc. F/K/A Schering-Plough Corp. , No. 13-7241 (D.N.J. Nov. 14, 2013), ECF No. 1 (the "GIC Schering Compl.") On January 14, 2014, purchasers of Merck stock filed two separate actions against Merck directly. See GIC Private Ltd. v. Merck & Co., Inc. , No. 14-241 (D.N.J. Jan. 14, 2014), ECF No. 1 (the "GIC Merck Compl."); North Sound Capital LLC v. Merck & Co., Inc. , No. 14-242 (D.N.J. Jan. 14, 2014), ECF No. 1 (the "North Sound Merck Compl.").
The following factual allegations are taken from the Complaint and assumed as true in deciding the instant Motion. See Newman v. Beard ,
Although the four Individual Actions at issue involve four separate complaints, for the purposes of this Opinion, the Court will rely on the North Sound Capital Complaint, which mirrors the complaints filed in the three other actions. See North Sound Schering Compl.; GIC Schering Compl.; GIC Merck Compl.; North Sound Merck Compl. The Court will refer to the four complaints, collectively, as the "Complaint."
See North Sound Schering Compl.; GIC Schering Compl.
See GIC Merck Compl.; North Sound Merck Compl.
Indeed, in the common law claim, Plaintiffs "repeat and reallege each and every" allegation asserted in connection with their federal claims. See North Sound Schering Compl. ¶¶ 360-65; GIC Schering Compl. ¶¶ 357-62; GIC Merck Compl. ¶¶ 474-79; North Sound Merck Compl. ¶¶ 475-80.
Section 1658 provides, in relevant part, that:
(b) ... a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities laws, as defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47) ), may be brought not later than the earlier of-
(1) 2 years after the discovery of the facts constituting the violation; or
(2) 5 years after such violation.
Section 78t-1(b)(4) provides that "[n]o action may be brought under this section more than 5 years after the date of the last transaction that is the subject of the violation." 15 U.S.C. § 78t-1(b)(4).
In American Pipe , the Supreme Court held that the "commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action."
In the August 26, 2015 Opinion, this Court also denied Defendants' motion to dismiss Plaintiffs' common law claim for failure to adequately plead reliance, finding that Plaintiffs had "alleged sufficient facts relating to actual reliance on misrepresentations by the Defendants to survive a Rule 12(b)(6) motion to dismiss, even under the heightened Rule 9(b) standard." N. Sound Capital ,
Because SLUSA implicates a court's subject matter jurisdiction, LaSala ,
In Bell Atl. Corp. v. Twombly ,
Although § 78bb(f)(1) is frequently referred to as a "preemption" provision, it is more accurately labeled a "preclusion" or "dismissal" provision, because SLUSA "does not itself displace state law with federal law but makes some state-law claims nonactionable through the class-action device in federal as well as state court." Kircher v. Putnam Funds Tr. ,
"SLUSA amends the 1933 Act and the 1934 Act in substantially identical ways." Dabit , 547 U.S. at 82,
SLUSA defines the term "covered security," in relevant part, as "a security that satisfies the standards for a covered security specified in paragraph (1) or (2) of section 18(b) of the Securities Act of 1933, at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred ...." 15 U.S.C. § 78bb(f)(5)(E). "Section 18(b) of the 1933 Act in turn defines 'covered security' to include securities traded on a national exchange." Dabit , 547 U.S. at 84,
Section 78bb(f)(5)(B)(i) sets forth the circumstances under which a single lawsuit constitutes a "covered class action." See 15 U.S.C. § 78bb(f)(5)(B)(i). In the case at bar, the parties concede that none of the four Individual Actions, standing alone, qualifies as a "covered class action" for the purposes of SLUSA, and thus, § 78bb(f)(5)(B)(i) is inapplicable.
See In re Schering-Plough Corp./ENHANCE Sec. Litig. , No. 08-397 (D.N.J. Jan. 18, 2008), ECF No. 1 (the "Schering Vytorin Class Action Compl.").
See In re Merck & Co., Inc. Vytorin/Zetia Sec. Litig. , No. 08-2177 (D.N.J. May 5, 2008), ECF No. 1 (the "Merck Vytorin Class Action Compl.").
See North Sound Schering Compl.; GIC Schering Compl.
See GIC Merck Compl.; North Sound Merck Compl.
As various courts have observed, the plain language of SLUSA does not clearly indicate the parameters of the statute's preclusive scope, and thus, it is appropriate to look to the legislative history and context in which SLUSA was enacted to determine the meaning of the phrase "otherwise proceed as a single action for any purpose." See In re Lord Abbett ,
Similarly, the House Report accompanying SLUSA indicates that the House Committee on Commerce approved the legislation, despite dissenting views regarding the breadth of SLUSA preclusion. See H.R. Rep. No. 106-650, at 11 (1998) ("The Committee heard testimony from opponents of the legislation, ... who testified that the bill was ... overly broad in its proposed preemption of State law. The Committee believes that the overwhelming weight of the evidence available to it supports going forward with this bill at this time for the reasons previously noted.").
Specifically, in addition to seeking to utilize the benefits of discovery obtained in the Vytorin Class Actions, Plaintiffs also sought to rely on the Vytorin Class Actions in arguing that the statutes of repose applicable to Plaintiffs' federal claims should be tolled. See Pls.' Mem. in Opp. to Defs.' Mot. to Dismiss, ECF No. 19 (arguing that Plaintiffs' claims against Defendants "were commenced on January 18, 2008" and "on May 5, 2008, when those claims were first asserted on Plaintiffs' behalf by the class representatives in [the Vytorin Class Actions]. The applicable five-year limitations periods were then tolled pursuant to [American Pipe ] until Plaintiffs opted-out of the Vytorin Class Actions on March 1, 2013."). While Plaintiffs' tolling argument was ultimately rejected, as a result of the Supreme Court's decision in ANZ Securities , it is further indicative of Plaintiffs' intent to coordinate the Individual Actions with the Vytorin Class Actions.
During oral argument, I indicated that Ventura and Liberty Media provided no persuasive value in this case. See Transcript of Oral Argument at 12:11-20, 30:3-10, North Sound Capital LLC v. Merck & Co., Inc. F/K/A Schering-Plough Corp. , No. 13-7240 (D.N.J. April 11, 2018) (ECF No. 46). Nonetheless, I will briefly discuss my reasoning for rejecting Plaintiffs' interpretation of those cases.
As a preliminary matter, I note that the analysis in Liberty Media pertained to grouping under the consolidation clause of the grouping provision, and thus, is of limited persuasive value in determining whether a group of lawsuits constitute a covered class action under SLUSA's catchall "otherwise proceed" provision.
Although I found that interpreting the catchall provision as reaching only those lawsuits that are actively proceeding as a single action at the time of a SLUSA motion to dismiss would read the "filed in" clause out of the statute, the same cannot be said in the context of whether SLUSA contains an at-any-point, real-time coordination requirement. Indeed, Lehman Bros. is instructive in this regard. As the Court has set forth, supra , in Lehman Bros. , the court found that because "filed in" is a "past-tense modifier," aggregation of the plaintiffs' lawsuits with a settled class action was permissible for the purposes of meeting SLUSA's 50-person threshold.
Indeed, I note that the first such definition arguably weighs in favor of Defendants' position, because the Individual Actions undoubtedly "come forth from a source"-the Vytorin Class Actions.
Additionally, nothing in the legislative history of SLUSA indicates that Congress intended to impose a temporal requirement in SLUSA's grouping provision.
Indeed, by arguing that SLUSA's catchall provision reaches only those actions that proceed together in real time, Plaintiffs attempt to impose a requirement into the statute that does not exist. The Supreme Court has cautioned against doing just that, however, explaining that Congress' inclusion of certain express exemptions to the covered class action definition "makes it inappropriate for courts to create additional, implied exceptions." Dabit , 547 U.S. at 88,
That courts have also found that a group of lawsuits proceeded as a single action, despite the fact that one of the lawsuits was stayed pending the resolution of a related lawsuit, demonstrates that two actions need not be actively proceeding-in the present tense verbiage of that term-to fall within the ambit of SLUSA's catchall provision. See, e.g., Stichting Pensioenfonds ,
Indeed, the legislative history of SLUSA demonstrates that Congress enacted the statute over the dissenting views of some of its members that the breadth of the grouping provision would prohibit individuals from filing state law claims:
Moreover, under [SLUSA's] unusual "grouping" provision, any time more than 50 individuals file state court complaints "in the same court and involving common questions of law or fact," they will be deemed to be part of a "class action" subject to this bill, if "the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose." Individuals who bring suits in state court in their own name may find, if others have brought similar suits, that their claims are preempted. For instance, if an investment adviser churns the accounts of or recommends unsuitable securities to clients in a single state and more than 50 of them seek to recover in the same court, each filing their own individual action, they may be forced to constitute a class action and have to pursue their claims-if possible-in federal court. These investors may be left without a remedy. This is broader preemption than we believe is necessary or appropriate. There has been no showing that these kinds of suits, either individually or in the aggregate, present the kinds of potential abuses that have been attributed to traditional class actions and strike [suits].
H.R. Rep. No. 105-640, at 46.
Specifically, pursuant to Federal Rule of Civil Procedure 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
Having found that dismissal of Plaintiffs' common law claim is appropriate, the Court need not reach the parties' arguments regarding supplemental jurisdiction.
Reference
- Full Case Name
- NORTH SOUND CAPITAL LLC v. MERCK & CO., INC. f/k/a Schering-Plough Corporation GIC Private Limited v. Merck & Co., Inc. f/k/a Schering-Plough Corporation North Sound Capital LLC v. Merck & Co., Inc. GIC Private Limited v. Merck & Co., Inc.
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