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Post by agedhippie on Sept 6, 2016 12:25:57 GMT -5
A witnesses testimony has to be evaluated in the context of the witness' relationship to the case and the litigants - wonder, for example, how this individual became "former." For a truly classic and great movie that explores this issue in depth, recall "Witness for the Prosecution." Great, great, albeit old, movie!! More to the point it's hearsay. The testimony is a salesman's view of what he thinks happened but without any actual evidence that is was directed by Sanofi company officers. That's not going to move the needle. You would need to build the paper trail from the salesman to the company officers. Without that paper trail it's just an ex-employee's speculation and the arbitration panel will ignore it.
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Post by sophie on Sept 6, 2016 12:30:44 GMT -5
Would it matter if multiple salespeople came forward? I see that the same rules would apply, but what current salesperson would willingly snitch on their present employer?
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Post by Deleted on Sept 6, 2016 12:34:00 GMT -5
This would be a monumental task and expense for mnkd at a time when cash needs to be preserved and FTE's need to be focused on sales. At this point, I doubt anyone believes SNY put much effort into sales. But the data doesn't support any slam dunk court process either. At the time SNY was "selling", scripts mostly increased albeit at low levels, but, the script count was at it's highest when SNY was in charge. Then there's about 6 months of sales when SNY was "doing nothing" covering Jan-June 2016. During that period, scripts didnt' crater but they did decrease over that period suggesting that whatever SNY was doing, it was at least generating somewhat increasing script counts. Enough to muddy the argument. The real problem with the lawsuit idea, besides that the contract stipulated using arbitration and not legal means for dispute resolution, is current script counts. When you compare July and August 2016 script counts which is when MNKD said 2.0 was launching, the numbers essentially haven't moved out of the gutter. How does mnkd handle this when in front of a 3rd party? MNKD needs increasing script counts and to blow SNY's script counts away and quickly to make the argument that SNY was sandbagging afrezza. So far, the data isn't there. With each passing month, it's less and less likely they could mount a successful dispute with SNY. IMO of course.
The question to me at this point is this - can mnkd reach SNY's high mark in terms of scripts? If they can't do it by end of year, was SNY sandbagging? Or is the marketplace that dead set against this product such that afrezza will not reach above tier 3 coverage?
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Post by matt on Sept 6, 2016 13:10:19 GMT -5
Allegations in a pleading are just that, allegations, and are no more legal proof than comments abstracted from this forum, SeekingAlpha, StockTwits or any other source because the witness has neither been identified nor have they been cross-examined. A lawyer cannot put facts he knows to be false in a pleading, but since this is a preliminary step in bringing a case any good faith belief will normally do.
What we do know, for a fact, is that MNKD's 35% share of the joint profit and loss accumulated to $70 million, meaning that Sanofi spent a total of $200 million on this project, in addition to the up-front payment. There may be disagreements about whether that money was well spent, or whether Sanofi spent enough, but to claim that Sanofi made no attempt to market Afrezza is a little over the top. Sanofi provably spent a minimum of $350 million to acquire the rights and to promote Afrezza and, at the time they withdrew from the agreement Afrezza had generated a total of $10 million in sales. It would be an uphill battle to convince a court that spending more than $200 million for a product launch with disappointing revenues was either prudent or required by the agreement.
This is not a case Mannkind can win, and it is a distraction that Matt and his team can do without. With the company running low on cash, starting a lawsuit against a major multinational is not a good use of the remaining resources.
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Post by goyocafe on Sept 6, 2016 13:17:16 GMT -5
Allegations in a pleading are just that, allegations, and are no more legal proof than comments abstracted from this forum, SeekingAlpha, StockTwits or any other source because the witness has neither been identified nor have they been cross-examined. A lawyer cannot put facts he knows to be false in a pleading, but since this is a preliminary step in bringing a case any good faith belief will normally do. What we do know, for a fact, is that MNKD's 35% share of the joint profit and loss accumulated to $70 million, meaning that Sanofi spent a total of $200 million on this project, in addition to the up-front payment. There may be disagreements about whether that money was well spent, or whether Sanofi spent enough, but to claim that Sanofi made no attempt to market Afrezza is a little over the top. Sanofi provably spent a minimum of $350 million to acquire the rights and to promote Afrezza and, at the time they withdrew from the agreement Afrezza had generated a total of $10 million in sales. It would be an uphill battle to convince a court that spending more than $200 million for a product launch with disappointing revenues was either prudent or required by the agreement. This is not a case Mannkind can win, and it is a distraction that Matt and his team can do without. With the company running low on cash, starting a lawsuit against a major multinational is not a good use of the remaining resources. The best thing Mannkind can do is go sell the crap out of Afrezza and blow the lid off any numbers SNY ever generated. Combine that with the shoestring budget they do this with will be all that is needed to show that the best known insulin marketer in the world dropped the ball on this, regardless of how high a bill they ran up failing in the process. Stretch the cash runway any way they can, and let the markets see the reality of this story (if it pans out this way), and SNY will look foolish for years to come.
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Post by brotherm1 on Sept 6, 2016 13:53:28 GMT -5
Allegations in a pleading are just that, allegations, and are no more legal proof than comments abstracted from this forum, SeekingAlpha, StockTwits or any other source because the witness has neither been identified nor have they been cross-examined. A lawyer cannot put facts he knows to be false in a pleading, but since this is a preliminary step in bringing a case any good faith belief will normally do. What we do know, for a fact, is that MNKD's 35% share of the joint profit and loss accumulated to $70 million, meaning that Sanofi spent a total of $200 million on this project, in addition to the up-front payment. There may be disagreements about whether that money was well spent, or whether Sanofi spent enough, but to claim that Sanofi made no attempt to market Afrezza is a little over the top. Sanofi provably spent a minimum of $350 million to acquire the rights and to promote Afrezza and, at the time they withdrew from the agreement Afrezza had generated a total of $10 million in sales. It would be an uphill battle to convince a court that spending more than $200 million for a product launch with disappointing revenues was either prudent or required by the agreement. This is not a case Mannkind can win, and it is a distraction that Matt and his team can do without. With the company running low on cash, starting a lawsuit against a major multinational is not a good use of the remaining resources. So now you not only know all the facts surrounding the case, you are also an up to date well experienced contract attorney? Thank you for your arrogant opinion - not.
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Post by mechstan on Sept 6, 2016 15:04:06 GMT -5
Allegations in a pleading are just that, allegations, and are no more legal proof than comments abstracted from this forum, SeekingAlpha, StockTwits or any other source because the witness has neither been identified nor have they been cross-examined. A lawyer cannot put facts he knows to be false in a pleading, but since this is a preliminary step in bringing a case any good faith belief will normally do. What we do know, for a fact, is that MNKD's 35% share of the joint profit and loss accumulated to $70 million, meaning that Sanofi spent a total of $200 million on this project, in addition to the up-front payment. There may be disagreements about whether that money was well spent, or whether Sanofi spent enough, but to claim that Sanofi made no attempt to market Afrezza is a little over the top. Sanofi provably spent a minimum of $350 million to acquire the rights and to promote Afrezza and, at the time they withdrew from the agreement Afrezza had generated a total of $10 million in sales. It would be an uphill battle to convince a court that spending more than $200 million for a product launch with disappointing revenues was either prudent or required by the agreement. This is not a case Mannkind can win, and it is a distraction that Matt and his team can do without. With the company running low on cash, starting a lawsuit against a major multinational is not a good use of the remaining resources. You argued for Sanofi, now I argue for MNKD. Ok, Sanofi spent $200M on the Afrezza project. How much of that money was actually spent toward ACTUALLY promoting Afrezza?
Let's get down to the metrics. How many sales reps were assigned to promote Afrezza? How many visits did each of them make a day? How were they trained to promote Afrezza? How was the quality of the promotional material? Was there a quota set for each rep? Were the reps held accountable for their performance? Were the people in charge fully committed to selling Afrezza?
Or was Sanofi's intention all along to spend $200M to give a appearance that Sanofi tried hard, when in fact, most of that money was spent irresponsibly?
Sometimes it's not the quantity, but the quality, that counts. But I'm sure you all know that.
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Post by mannmade on Sept 6, 2016 15:37:38 GMT -5
You may have a point, but we would need a forensic audit to know... As it could be what we call in the entertainment business " fuzzy math"... Many law suits by producers and talent who made deals for back end participation and did not receive it on major revenue films have been won in the entertainment business because of the "fuzzy math" based on marketing expenses and allocations that allowed no profits to be shown.
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Post by babaoriley on Sept 6, 2016 15:38:54 GMT -5
Allegations in a pleading are just that, allegations, and are no more legal proof than comments abstracted from this forum, SeekingAlpha, StockTwits or any other source because the witness has neither been identified nor have they been cross-examined. A lawyer cannot put facts he knows to be false in a pleading, but since this is a preliminary step in bringing a case any good faith belief will normally do. What we do know, for a fact, is that MNKD's 35% share of the joint profit and loss accumulated to $70 million, meaning that Sanofi spent a total of $200 million on this project, in addition to the up-front payment. There may be disagreements about whether that money was well spent, or whether Sanofi spent enough, but to claim that Sanofi made no attempt to market Afrezza is a little over the top. Sanofi provably spent a minimum of $350 million to acquire the rights and to promote Afrezza and, at the time they withdrew from the agreement Afrezza had generated a total of $10 million in sales. It would be an uphill battle to convince a court that spending more than $200 million for a product launch with disappointing revenues was either prudent or required by the agreement. This is not a case Mannkind can win, and it is a distraction that Matt and his team can do without. With the company running low on cash, starting a lawsuit against a major multinational is not a good use of the remaining resources. So now you not only know all the facts surrounding the case, you are also an up to date well experienced contract attorney? Thank you for your arrogant opinion - not. brotherm, I'm an arrogant, up to date, contract attorney and everything that matt said made sense and was delivered in a perfectly fine tone. The case for MNKD, if it can be made at all, will be at great cost of money and human resources. If we divert those to a lawsuit, then we risk weakening our case by failing to sell enough Afrezza. Not particularly fair, but the system does work that way sometimes. And I really don't see a lawyer taking this on a contingency basis.
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Post by brotherm1 on Sept 6, 2016 16:06:16 GMT -5
So you too are also aware of all the facts? And being an attorney you do of course know there is a statute of limitations for filing a suit that would give MNKD time to come up with more rescouces to funds to fight?
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Post by brotherm1 on Sept 6, 2016 16:14:45 GMT -5
And if MNKD would happen to have knowledge of hard facts to show SNY did sandbag the sales or not put the funds they say they did and were contracted to into the marketing and sales - such as perhaps evidence they might have obtained from one of our VP's that had worked for SNY during the time, just for example- a good law firm willimg to work on a contingency basis would not be able to be obtained?
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Post by sportsrancho on Sept 6, 2016 16:20:52 GMT -5
Weren't the reps selling both Afrezza and Toujeo at the same time and only pushing Toujeo? So were they using our money to help sell there drug? I'm not pushing for a lawsuit. I just think they need to pony up out of court.
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Post by saxcmann on Sept 6, 2016 16:32:49 GMT -5
Weren't the reps selling both Afrezza and Toujeo at the same time and only pushing Toujeo? So were they using our money to help sell there drug? I'm not pushing for a lawsuit. I just think they need to pony up out of court. Correct Sports. There was no incentive to sell afrezza. Conflict of interest from the start. Probably started with the new CEO...
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Post by bioexec25 on Sept 6, 2016 16:39:27 GMT -5
I thought I remembered there being a targeted team albeit small. Anyway, I'm also on the side of not pursuing a lawsuit at this point for lots of reasons. The new CEO clearly never wanted to pursue this and likely thought to expensive versus market given label, history, etc. But as I'm sure Mnkd are doing, it doesn't hurt to have their legal firm continually collect info as we go. Who knows what things look like in a few months from now.
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Post by babaoriley on Sept 6, 2016 16:47:55 GMT -5
So you too are also aware of all the facts? And being an attorney you do of course know there is a statute of limitations for filing a suit that would give MNKD time to come up with more rescouces to funds to fight? Absolutely, however, I'm too arrogant to continue this discussion!
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