I have actually put a lot of thought into shareholders suing the miscreants such as AF, Herper, Nissen, and whomever else. The short answer is, yes, the shareholders can sue derivatively.
Like others, I believe that Amarin should be using an active legal strategy within the fullest boundaries of law, to directly confront bad actors who falsely/maliciously disparage Vascepa, as long as the facts support such claims. If
Procedurally, we compile the facts formulating a potential Complaint, and then send Amarin a formal Demand Letter, requesting that they file suit. If after 90 days they do not respond, or if they reject the Demand earlier, then we would have standing to file suit.
The potential causes of action would include trade libel, disparagement, tortious interference, civil conspiracy, RICO.
The key to any such case is the compilation of facts tending to prove that the defendant(s) made knowingly made false statements disparaging Vascepa in reckless disregard of the truth. The holy grail would be facts establishing a conspiracy among multiple defendants in order to manipulate/short the stock, complete with kickbacks. There have always been rumors to that effect, but I have yet to see concrete proof.
Note that any such case would not be easy. There are multiple defenses. Opinion is not actionable. The truth is an absolute defense. If the statements are subject to debatable scientific principles about which reasonable minds could disagree, then the case is likely a loser. The factual proofs need to be strong and decisive.
If there is enough support to compile the necessary facts, and appropriately fund the litigation, I am definitely interested in going after anyone and everyone worthy of being pursued.
