Lawsuit Filed To Recover Losses in Merck Stock by Retirement (401k) Plans

October 22, 2004 – Cohen Milstein Sellers & Toll PLLC, Vianale & Vianale LLP and Sarraf Gentile LLP have filed a lawsuit on behalf of participants in retirement (401k) plans sponsored by Merck and/or its subsidiary Medco that invest in Merck stock (the "Plans"). The suit alleges violations of the federal pension law (ERISA) in connection with the loss of value in Merck's stock acquired and held by present and former employees of Merck and Medco through the Plans. The goal of this lawsuit is to restore losses in Merck stock to the Plans and the accounts of employees in the Plans.

The lawsuit alleges that fiduciaries of the Plans violated their fiduciary duties from May 21, 1999 to September 30, 2004, by failing to disclose material information concerning the safety profile of its drug Vioxx to participants of the Plans (the “Disclosure Claims”), and by continuing to acquire and hold Merck stock when it was no longer a prudent investment because of safety issues related to Vioxx (the “Prudence Claims”). As a result, Merck stock may have been acquired by the Plans at artificially inflated prices, as demonstrated by the precipitous decline in the stock price following the disclosure of this information related to the safety profile of Vioxx.

The case was consolidated with a number of other actions alleging ERISA violations with respect to the acquisition and holding of Merck stock in the Plans and on May 4, 2005 Cohen Milstein Sellers & Toll PLLC was appointed as a member of the co-lead counsel committee responsible for the litigation of the action. On August 2, 2005, a consolidated amended complaint was filed in the action, a copy can be found here.

Merck and the other defendants moved to dismiss the consolidated amended complaint, but on July 11, 2006, the Court rejected the motion to dismiss and permitted the action to go forward. A copy of the Opinion can be found here.

On October 19, 2007, Plaintiffs filed a motion for Class Certification. 

On February 9, 2009, the Court issued an Opinion granting class certification of the Prudence Claims and related claims based upon allegations that the fiduciaries of the Plan breached their fiduciary duties by failing to prudently manage the Merck Plans. 

A copy of the Class Certification Opinion can be found here.

On May 11, 2009 the Court issued an Order denying Plaintiffs’ Motion for Partial Summary Judgment.  A copy of the Order can be found here.

After a period of discovery, the parties reached a mediated settlement of the case in 2011.  On November 29, 2011, a final judgment hearing was held and the Honorable Stanley R. Chesler granted Plaintiffs' motion for final approval of a class action settlement in the amount of $49.5 million.  

If you believe you may be a member of the class and have not previously received the Notice of Class Action Settlement, you may find all documents and a list of FAQ’s related to the settlement of this case at

Please contact one of the following with questions related to this case:

Cohen Milstein Sellers & Toll PLLC
1100 New York Avenue, N.W., Suite 500
Washington, D.C. 20005
Telephone: 888-240-0775 or 202-408-4600