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Post by od on Mar 17, 2016 11:55:03 GMT -5
The phrase "commercially reasonable" is generally interpreted by the courts (the only opinion that matters) as whether the judgement of management was so faulty as to be grossly negligent. Put differently, it doesn't matter if YOU agree with the decisions taken or not or even if the judge agrees with the decisions. The standard is whether the reasons given by Sanofi for the decisions that they did make were reasonable in light of everything they know about the market for insulin, prior attempts to commercialize inhalable insulin (that includes the failed launch of Exhubera), feedback from physicians, and their own market research. It doesn't have to be the best strategy, it doesn't even have to be right, it just has to be reasonable given everything that Sanofi knew. On that standard, it is hard to win the argument. When Afrezza didn't bring in thousands of new prescriptions a week soon after launch, it was commercially reasonable to assume the drug would not be successful. That conclusion may be proven wrong eventually, but it was not unreasonable to draw that inference. Did anyone else find the new CCO's dig in the conference call interesting and relevant? Said something to the effect that he was happy or excited to be a part of a small pharma where their drugs don't compete with one another. That was i think a clear shot across the bow of SNY, before Matt went even further about objecting to the premise of how vigorous SNY's DTC efforts were in the Q&A Likely, or he could have been speaking to his experience at Amgen. |
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Post by mnkdfann on Mar 17, 2016 12:02:37 GMT -5
The phrase "commercially reasonable" is generally interpreted by the courts (the only opinion that matters) as whether the judgement of management was so faulty as to be grossly negligent. Put differently, it doesn't matter if YOU agree with the decisions taken or not or even if the judge agrees with the decisions. The standard is whether the reasons given by Sanofi for the decisions that they did make were reasonable in light of everything they know about the market for insulin, prior attempts to commercialize inhalable insulin (that includes the failed launch of Exhubera), feedback from physicians, and their own market research. It doesn't have to be the best strategy, it doesn't even have to be right, it just has to be reasonable given everything that Sanofi knew. On that standard, it is hard to win the argument. When Afrezza didn't bring in thousands of new prescriptions a week soon after launch, it was commercially reasonable to assume the drug would not be successful. That conclusion may be proven wrong eventually, but it was not unreasonable to draw that inference. Did anyone else find the new CCO's dig in the conference call interesting and relevant? Said something to the effect that he was happy or excited to be a part of a small pharma where their drugs don't compete with one another. I cut and pasted what he said below. seekingalpha.com/article/3958396-mannkinds-mnkd-ceo-matthew-pfeffer-q4-2015-results-earnings-call-transcriptThank you, Matt. Good afternoon everyone. Let me start by saying that I am absolutely thrilled to be here today as part of the MannKind team. As Matt said, I spent my recent years with Amgen and have been closely following MannKind trajectory. I joined MannKind because I believe there's an incredible opportunity to reposition Afrezza for a significant growth and I want to be part of the team making that opportunity a reality. As a small pharma, MannKind can approach their sales and marketing efforts of Afrezza with laser focus unencumbered by internal conflicting public demand or other challenges that often exist in large pharmas. I'm excited to take my experiences and apply them in an innovative way here at MannKind. |
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Post by sluggobear on Mar 17, 2016 18:23:36 GMT -5
Here's the full transcript: seekingalpha.com/article/3958396-mannkinds-mnkd-ceo-matthew-pfeffer-q4-2015-results-earnings-call-transcript?page=2Michael Castagna Thank you, Matt. Good afternoon everyone. Let me start by saying that I am absolutely thrilled to be here today as part of the MannKind team. As Matt said, I spent my recent years with Amgen and have been closely following MannKind trajectory. I joined MannKind because I believe there's an incredible opportunity to reposition Afrezza for a significant growth and I want to be part of the team making that opportunity a reality. As a small pharma, MannKind can approach their sales and marketing efforts of Afrezza with laser focus unencumbered by internal conflicting public demand or other challenges that often exist in large pharmas. I'm excited to take my experiences and apply them in an innovative way here at MannKind. As Chief Commercial Officer, I am chartered with all sales and marketing functions necessary, to successfully penetrate the market with MannKind products beginning with Afrezza. To do this, I will quickly build a team spearheading sales and marketing to reach doctors and patients and we will also build a team focused on insurance coverage, advocacy groups, infrastructure support. And while not preparing my first day to go into details on the strategy, I will say that plans will include the components to build awareness and knowledge of Afrezza among doctors and user community. We will do low cost DTC activities to people with type 1 and type 2 diabetes. We will also aggressively pursue improved insurance coverage to allow users easier access to the product while maintaining patient support and co-pay programs. Lastly, we know we need to better educate doctors and patients on how to use Afrezza so patients can get the blood glucose under control. There are other ways to build the business that will be discussed going forward. But of course all these activities may be executed only when the product is returned to MannKind. In closing, I'm very excited to be on board. We're working very hard to fulfil and support all transition activities and lay the groundwork for Afrezza and future Technosphere products here at MannKind. I look forward to making Afrezza the success that everyone here believes it can be. Thank you, Matt. |
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Post by babaoriley on Mar 17, 2016 19:07:27 GMT -5
I mentioned this wild theory to someone today, they laughed and laughed!! It's all the wealthy friends and business associates that have watched Michael perform over the many years at the many significant companies he's been with that are buying the stock; they started when he gave them the word he likely would be joining MNKD. Even though I came up with the above theory, I don't really buy into it, so FWIW.  |
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Post by sportsrancho on Mar 17, 2016 21:34:48 GMT -5
I mentioned this wild theory to someone today, they laughed and laughed!! It's all the wealthy friends and business associates that have watched Michael perform over the many years at the many significant companies he's been with that are buying the stock; they started when he gave them the word he likely would be joining MNKD. Even though I came up with the above theory, I don't really buy into it, so FWIW. FWIW This is the best theory yet:-))). |
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Post by kc on Mar 17, 2016 21:47:29 GMT -5
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Post by humann on Mar 18, 2016 18:15:40 GMT -5
FWIW, clicking the link as you posted it will give Sanofi's campaign credit; this one should get you there without doing so: www.afrezza.com/lets-do-mealtime stuff after "?" is usually not necessary to navigate to a url. |
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Post by centralcoastinvestor on Mar 27, 2016 16:06:32 GMT -5
As we head towards a possible handover of Afrezza from Sanofi on April 4 or 5th, it seems to me that the issue of whether there is a settlement will be announced then. I don't imagine there has been enough time to go through the mandatory arbitration process yet that is spelled out in the partnership contract. If there is no announcement of a settlement, I believe that Mannkind will go through arbritration to seek damages. I just can't see Sanofi wanting to go to arbritration or eventually court if they can get out cheaply now.
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Post by agedhippie on Mar 27, 2016 17:23:37 GMT -5
If there is no announcement of a settlement, I believe that Mannkind will go through arbitration to seek damages. I just can't see Sanofi wanting to go to arbitration or eventually court if they can get out cheaply now. Why would Sanofi care about going to arbitration (this cannot go to court regardless)? They have a litigation department which lives for this sort of thing. The argument at arbitration is going to be that Sanofi did not live up to the marketing required in the partnership agreement. Sanofi's response will be that they did and they will point to the JAC as proof that ties Mannkind to the decisions. Beyond that Sanofi exercised their judgement that Afrezza was not commercially viable (which is extremely difficult to challenge since it is subjective) and exited the agreement in line with the terms so no damages there. In court this might get somewhere, at arbitration I really don't see it. If we get anything out of this I reckon it will be under $10 million because the arbitrators only benchmark for sales is Exubera where huge amounts were spent on marketing. Adjust upwards the Exubera sales for 2016 dollars, subtract Afrezza sales, and the difference is more or less where the damages will end up. |
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Post by LosingMyBullishness on Mar 27, 2016 17:57:40 GMT -5
According to Sanofi it spent $3.75 million on advertising for Afrezza and brought in $5.4 million in total sales.
I assume that the number of $3.75 was created as a percentage of the total sales. Why? Because such numbers can be created in a big company by shifting costs from A to B and everything that can be done will be done.
And if there is a litigation department these people were the ones who figured out what % of total sales marketing needs to have to be substantial as they studied past cases. This is the job of a litigation department.
There might be some few millions, pocket money for SNY, as their lawyers are too busy and expensive. There will be no charity or mercy. SNY sandbagged MNKD not without reason. It will not be enough for MNKD to stay aloaf without other, strong parties.
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Post by centralcoastinvestor on Mar 27, 2016 20:02:27 GMT -5
If there is no announcement of a settlement, I believe that Mannkind will go through arbitration to seek damages. I just can't see Sanofi wanting to go to arbitration or eventually court if they can get out cheaply now. Why would Sanofi care about going to arbitration (this cannot go to court regardless)? They have a litigation department which lives for this sort of thing. The argument at arbitration is going to be that Sanofi did not live up to the marketing required in the partnership agreement. Sanofi's response will be that they did and they will point to the JAC as proof that ties Mannkind to the decisions. Beyond that Sanofi exercised their judgement that Afrezza was not commercially viable (which is extremely difficult to challenge since it is subjective) and exited the agreement in line with the terms so no damages there. In court this might get somewhere, at arbitration I really don't see it. If we get anything out of this I reckon it will be under $10 million because the arbitrators only benchmark for sales is Exubera where huge amounts were spent on marketing. Adjust upwards the Exubera sales for 2016 dollars, subtract Afrezza sales, and the difference is more or less where the damages will end up. I think we are going to have to agree to disagree. To me, it is so obvious that Sanofi sandbagged Afrezza once Brandicourt took over as CEO. People who sit on arbritration boards are not stupid and I think they will see that Sanofi sandbagged this too. That is why it is a risk to Sanofi to let the dispute go to arbritration. Now, could I be wrong? Absolutely. I can't begin to tell you how many times I have been wrong about this stock. But so have a lot of other people. |
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Post by jerrys on Mar 27, 2016 23:31:02 GMT -5
Why would Sanofi care about going to arbitration (this cannot go to court regardless)? They have a litigation department which lives for this sort of thing. The argument at arbitration is going to be that Sanofi did not live up to the marketing required in the partnership agreement. Sanofi's response will be that they did and they will point to the JAC as proof that ties Mannkind to the decisions. Beyond that Sanofi exercised their judgement that Afrezza was not commercially viable (which is extremely difficult to challenge since it is subjective) and exited the agreement in line with the terms so no damages there. In court this might get somewhere, at arbitration I really don't see it. If we get anything out of this I reckon it will be under $10 million because the arbitrators only benchmark for sales is Exubera where huge amounts were spent on marketing. Adjust upwards the Exubera sales for 2016 dollars, subtract Afrezza sales, and the difference is more or less where the damages will end up. I think we are going to have to agree to disagree. To me, it is so obvious that Sanofi sandbagged Afrezza once Brandicourt took over as CEO. People who sit on arbritration boards are not stupid and I think they will see that Sanofi sandbagged this too. That is why it is a risk to Sanofi to let the dispute go to arbritration. Now, could I be wrong? Absolutely. I can't begin to tell you how many times I have been wrong about this stock. But so have a lot of other people. As I understand it, Mannkind agreed in the original contract to arbitration of all disputes via the "Joint Action Committee" and even agreed to allow a Sanofi representative on that committe be the final adjudicator. Did Mannkind ever file any complaints during the JAC meetings? If they never did, then I don't see how they could file any complaint now. |
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Post by agedhippie on Mar 28, 2016 8:28:01 GMT -5
I think we are going to have to agree to disagree. To me, it is so obvious that Sanofi sandbagged Afrezza once Brandicourt took over as CEO. People who sit on arbritration boards are not stupid and I think they will see that Sanofi sandbagged this too. That is why it is a risk to Sanofi to let the dispute go to arbritration. Now, could I be wrong? Absolutely. I can't begin to tell you how many times I have been wrong about this stock. But so have a lot of other people. I don't necessarily disagree with you. I think Sanofi did the bare minimum Afrezza after Brandicourt arrived. Where we differ is that like intrinsicbullish I also think that Sanofi will have made sure that it was done in a way that does not breach the agreement. This is standard practise if you want to exit an agreement - you make sure your bases are covered. Whether Sanofi settles or not depends on what sort of image Brandicourt wants to project to the Sanofi shareholders. I think this inevitably goes to arbitration because Mannkind has nothing to lose by doing so and Brandicourt has to appear not to cave in order to protect his job. Sanofi have some big advantages here but the chief one is that they knew what was happening and Mannkind did not so there will be no incriminating emails on the Sanofi side however there may well be some on the Mannkind side since they did not know to be careful. |
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Post by agedhippie on Mar 28, 2016 8:33:14 GMT -5
As I understand it, Mannkind agreed in the original contract to arbitration of all disputes via the "Joint Action Committee" and even agreed to allow a Sanofi representative on that committe be the final adjudicator. Did Mannkind ever file any complaints during the JAC meetings? If they never did, then I don't see how they could file any complaint now. The JAC was there to approve the sales and marketing strategy Sanofi which is why Sanofi had the final say. If Mannkind was still unhappy they had the option of the arbitration panel, that was where arbitration lay. A complaint doesn't have to be filed immediately, the agreement encourages both parties to defer filing complaints as long as possible and even enforces a two month delay. |
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Post by ezrasfund on Mar 28, 2016 9:56:27 GMT -5
For example...
The letter asks for proof that Valeant is not violating the companies' merger agreement, such as details surrounding Valeant's investment in marketing for the drug, according to Bloomberg.
"Valeant predatorily priced Addyi at $800 a month even though Sprout had established a price point of approximately $400 a month for the drug based on market research," the investor group said, according to Bloomberg. "As a result of this predatory pricing, insurance companies refused to cover the drug, which has led to the drug not being affordable for millions of women."
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