Wrong time of year to be thinking about Zicam, but hey, legal decisions happen when they happen. And so it was for Zicam earlier this week when the US Supreme Court gave the go-ahead to consider the challenge Zicam-maker Matrixx Initiatives Inc. is bringing against the lawsuit that claimed Matrixx had failed to inform investors of its little loss-of-smell issue.
The Zicam securities lawsuit, as reported in the Wall Street Journal, has been going on now since 2005—it was first thrown out and then just last year (when it became a hot news topic again) it was reinstated by an appeals court.
But this isn’t about noses that can no longer smell—well, sort of. It’s about the fact that even though Matrixx apparently knew of some “adverse event” reports (i.e., 12 reports between 1999 and 2003 of folks who claimed to have lost their sense of smell after Zicam use), the company still marketed the over-the-counter sniffle reliever in a positive light—no hint of any potential problems regarding ability to smell. And, the plaintiffs have gone as far as to claim that the marketing statements made by Matrixx were false and misleading and—here’s what’s at the crux of this—inflated the stock price of the company.
So, as you can see, for these plaintiffs, it’s not about personal injury; it’s about securities.
Needless to say, Matrixx is countering the above allegations saying that the adverse event reports were not statistically significant enough, and that no true causal relationship had been established, so what’s the beef? (beef being my word, not thatof Matrixx, of course). The petition Matrixx submitted to the Supreme Court also states Matrixx’s position that reinstating this lawsuit “would have immense consequences for the pharmaceutical industry, potentially making companies liable for securities violations if they didn’t disclose even small numbers of adverse-incident reports.”
So that’s the latest, and now that the Court has agreed to consider Matrixx’s challenge, WSJreports that oral arguments will most likely begin in the fall. Hmm, just in time for cold season…