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IN RE MERCK & CO. SECURITIES & ERISA LITIGATION

No. 06-2911.

493 F.3d 393 (2007)

In re MERCK & CO., INC. SECURITIES, DERIVATIVE & ERISA LITIGATION. Consolidated Derivative Action. Hawaii Laborers Pension Plan and Halpert Enterprises, Inc., Appellants.

United States Court of Appeals, Third Circuit.

Filed July 18, 2007.

Attorney(s) appearing for the Case

Travis E. Downs III, Joseph D. Daley (argued), Lerach Coughlin Stoia Geller Rudman & Robbins, San Diego, CA, Peter S. Pearlman, Cohn Lifland Pearlman Herrmann & Knopf, Saddle Brook, NJ, Jeffrey P. Fink, Robbins Umeda & Fink, San Diego, CA, for Appellant.

Robert D. Joffe, Evan R. Chesler, Robert H. Baron (argued), David Greenwald, Cravath, Swaine & Moore, New York, NY, William R. Stein, Roberta Koss, Hughes Hubbard & Reed, Washington, DC, for Appellee.

Before: SMITH and COWEN, Circuit Judges and YOHN, District Judge.

OPINION OF THE COURT

SMITH, Circuit Judge.

This case is part of the massive VIOXX-related litigation. The primary—and narrow—issue on this appeal is whether the District Court erred by refusing to allow the plaintiffs leave to amend their complaint with additional materials they had proffered to the court to show that amendment would not be futile.1

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