A Call to (ADR) Arms: The tail end of the Martha Stewart story.
Remember Martha’s conviction for perjury that sent her off to jail a few years back? She served a 5-month prison term and 5 months in home detention (not so bad, I guess, if your home sits on 153 acres!). Her conviction, if you recall, arose from allegations concerning insider trading of ImClone stock.
Jail was also the fate for ImClone founder Sam Waksal, after he pleaded guilty to charges of securities fraud and other charges relating to insider trading, as well as wire fraud and other charges in connection with evading sales tax on some significant art purchases. Sam is still serving a seven years and three months sentence (about three more years to go). 
Here is the news: ImClone just announced it has settled the patent suit that Repligen and MIT initiated against it.
The suit involved ImClone’s cancer treatment drug, Erbitux.
The connection? Erbitux was the drug at the center of Sam and Martha’s insider trading debacle.
So, in a way, this is the end of the Martha/Erbitux saga.
Why do I write about this case?
Because it settled only one week before trial.
That means, of course, that all discovery was completed, briefs written and trial preparation done. Imagine the millions of dollars wasted before the parties came to the bargaining table ready and willing to finally negotiate a settlement that constituted a better alternative to the cost and uncertainties of trial.
For ImClone, not all the misery is behind it. It is still facing the lawsuit Abbott lodged against it earlier this year.
Could this be a wake-up call to ImClone and Abbott?
It's not just about "trying mediation" anymore. It's about having the skill-set necessary to make the mediation or settlement process as important as the litigation process. It's about "thinking like a negotiator" as often as you "think like a lawyer."
S/he thinks like a lawyer about interests instead of about legal positions.
More on the negotiation mind-set in future posts.
