Cain v. Merck & Co. Inc., A-2138-08T2; Appellate Division; opinion by Chambers, J.A.D.; decided and approved for publication August 17, 2010. Before Judges Rodríguez, Reisner and Chambers. On appeal from the Chancery Division, Union County, C-134-08. [Sat below: Judge Malone.] DDS No. 12-2-9095 [20 pp.]
Plaintiffs, the owners of 11 shares of common stock of defendant Schering-Plough Corporation, filed a shareholder-derivative complaint in federal court against Schering, its board of directors and certain executive officers. Plaintiffs contended that defendants engaged in corporate mismanagement and wrongdoing in connection with the failure to make a timely disclosure of the results of a clinical trial of a cholesterol-lowering drug, known as the ENHANCE study, and also asserted that certain individual defendants engaged in insider trading. Plaintiffs alleged breach of fiduciary duty, gross mismanagement, waste of corporate assets and unjust enrichment. Defendants filed a motion to dismiss the federal complaint on the basis that plaintiffs had failed to plead futility of demand with the particularity required by the Federal Rule of Civil Procedure 23.1.
