# MIKHAIL

> District Court, D. New Jersey · November 26, 2025

URL: https://www.frixlaw.com/law-library/cases/11210540

## Case

- **Full name:** Karim Mikhail v. Amarin Corporation, plc; et al.
- **Court:** District Court, D. New Jersey
- **Decided:** November 26, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KARIM MIKHAIL,
Case No. 23–cv–01856–ESK–EAP
Plaintiff,

v.
OPINION
AMARIN CORPORATION, plc; et
al.,
Defendants.
KIEL, U.S.D.J.
THIS MATTER is before the Court on defendants Amarin Corporation plc
(Amarin plc), Amarin Pharma, Inc. (Amarin Inc.),1 and Amarin Switzerland
GmbH’s (Amarin Switzerland) renewed motion to dismiss (ECF Nos. 67, 67–12
(Mot. Br.)) the first amended complaint (Complaint) (ECF No. 23 (Compl.)).
Plaintiff filed an opposition to the Motion (ECF No. 71 (Opp’n Br.)), in response to
which defendants filed a reply (ECF No. 72) (Reply Br.)). For the following
reasons, the Motion will be GRANTED.
I. BACKGROUND
Plaintiff Karim Mikhail is a New York citizen and the former president
and chief executive officer of Amarin plc. (Compl. ¶¶ 1, 14.) Amarin plc is a
corporation of England and Wales, with its principal place of business in
Ireland. (Id. ¶ 2.) Amarin Inc. is a Delaware corporation with its principal
place of business in New Jersey. (Id. ¶  3.) Amarin Switzerland is a Swiss
corporation headquartered in Switzerland. (Id. ¶ 4.) Plaintiff seeks dismissal

1 Defendants state that Amarin Inc. is incorrectly named as Amarin
Pharmaceuticals, Inc. (Mot. Br. p. 6.)
of the Complaint, which asserts three claims relating to a Contract of
Employment (Contract) between Amarin Switzerland and plaintiff, and Amarin
plc’s Executive Severance and Change of Control Plan (Severance Plan). (Id.
¶¶ 7, 12; ECF No. 67–2 (Contract); ECF No. 67–3 (Severance Plan).) I
incorporate by reference the factual background in Judge Castner’s opinion of
February 29, 2024. Mikhail v. Amarin Corp., PLC, Case No. 23–01856, 2024
WL 863427 (D.N.J. Feb. 29, 2024).
A. Contract and Severance Plan
The Contract was executed on April 12, 2021, between Amarin
Switzerland and Mikhail, and is governed by Swiss law. (Contract pp. 1, 2;
§ 26.) The Contract appoints Mikhail as chief executive officer (CEO) of
Amarin Switzerland, as president and CEO of Amarin plc., and as a member of
Amarin plc.’s Board of Directors. (Id. §§ 2.2, 2.3.) Mikhail is tasked with a
number of duties and responsibilities in the Contract, including “in relation to
the Company and the business of the Group.” (Id. § 3.1.) The Contract
defines the “Company” as Amarin Switzerland, “where the context so permits
or requires … its subsidiaries and associated companies” and “unless the
context otherwise requires, … any person acting on behalf of the Company
within his proper authority.” (Id. p. 2; § 1.2.) The Contract defines
“associated companies” to include “Amarin Pharmaceuticals Ireland Ltd,
Amarin Corporation plc and Amarin Pharmaceuticals Inc.” (Id. § 1.1.)
Similarly, “Group” is defined as “the Company and its associated companies.”
(Id.)
Either party may terminate the Contract “upon a six months’ prior written
notice,” or “with immediate effect for a justified cause pursuant to Article 337
Swiss Code of Obligations (CO/OR).” (Id. §§ 18.3, 18.4.) The Contract also
provides that Mikhail “will be eligible for severance pay and benefits under
terms and conditions that are no less favorable than pursuant to Amarin plc’s
Executive Severance and Change of Control Plan … subject to any Swiss law
requirements.” (Id. § 18.7.)
The Severance Plan outlines benefits to “Eligible Executive(s)” defined as
“United States employee(s) of the Company or any of its Subsidiaries at the
level of Vice President or above at the time of the Date of Termination (or, if
applicable, at the time of a Change of Control).” (Severance Plan § 2(n).)
“Change of Control” is defined by Section 409A of the Internal Revenue Code
and must “constitute a ‘change in the ownership or effective control’ of the
Company or a ‘change in the ownership of a substantial portion of the
Company’s assets.” (Id. § § 2(e), (h).) “Control” is “the ownership of more than
50 percent of the issued share capital or other equity interest of the Company
or the legal power to direct or cause the direction of the general management
and policies of the Company.” (Id. § 2(k).)
The Severance Plan also subjects Eligible Executives to the Company’s
“Good Reason Process” which requires the Executive to find “in good faith that
a ‘Good Reason’ condition has occurred.” (Id. § 2(o).) “Good Reason” could be
a number of conditions as defined in the Severance Plan, including “a material
diminution in the Eligible Executive’s authority, duties or responsibilities,” and
“a material breach by the Company of an Employment Agreement.” (Id.) The
“Eligible Executive” must then notify “the Company in writing of the Good
Reason condition within 30 days of the first occurrence of such condition,” and
allow for a “Cure Period” following such notice for the condition to be remedied.
(Id.) “If the Company cures the Good Reason condition during the Cure Period,
Good Reason shall be deemed not to have occurred.” (Id.)
The Contract’s Garden Leave provision applies “during all or any part of
any period of notice,” so long as “the Executive will continue to receive his salary
and contractual benefits” during that period. (Contract § 19.) The Contract
also provides for the Executive’s entitlements under “Amarin Corporation plc’s
2020 Stock Incentive Plan” and its acceleration clause, dependent on a “Change
of Control.” (Id. § 9.1.) A number of events could “constitute a ‘Change of
Control’ for purposes of the [Stock Incentive] Plan.” (ECF No. 67–4 (Stock
Incentive Plan) § 7(a).) One such event is “any person or company (either alone
or together with any person or company acting in concert with him or it) (an
‘Acquiring Company’)) obtaining Control of the Company.” (Id. § 7(a)(i).)
“Control” in the Stock Incentive Plan is “the ownership of more than fifty (50) %
of the issued share capital or other equity interest in the Company.” (Id.
§ 2(o).)
B. Plaintiff’s Allegations
Mikhail contends that a “Change of Control” occurred under the Severance
Plan in February 2023 when Sarissa Capital Management LP (Sarissa),
Amarin plc.’s largest shareholder, nominated seven nominees who were
successfully elected “to serve on Amarin’s Board of Directors” (Board),
“expanding the [B]oard to 15 directors.” (Compl. ¶ ¶ 89, 110.) The seven
incumbent directors resigned, “allow[ing] Sarissa … to gain immediate control
of the Company.” (Id. ¶ ¶ 126, 127.) Plaintiff alleges the newly constructed
Board “bullied the remaining Amarin board members … to resign,” and as a
result of the newly constructed Board “Sarissa gained full and absolute control
of Amarin.” (Id. ¶¶ 112, 129.)
Plaintiff further asserts that following Sarissa’s successful proxy contest,
plaintiff’s executive authority was undermined by the Board. (Id. ¶ 164.) On
March 6, 2023—the day that Amarin plc announced the resignation of the “non-
Sarissa board members”—plaintiff met with Board Member Odysseas Kostas,
at Kostas’ request. (Id. ¶¶  119, 120, 127.) Kostas allegedly told plaintiff that
their “objective is the same and our incentives are aligned” and stated that the
Board “actually want[s] to work with you!” (Id. ¶¶ 120, 121.) Mikhail,
however, claims that “the new Board had already decided to terminate him”
through Sarissa’s communications targeting plaintiff during the proxy contest
and that he requested the ability to “transition out of the company.” (Id.
¶¶ 120, 122, 123.)
Mikhail subsequently emailed Kostas with “transition and severance
details … in-line with the contract and severance plan,” to which Kostas did not
respond in writing. (Id. ¶¶ 131, 132.) Days later, at a town hall meeting held
by the Board, Kostas allegedly told plaintiff “the Board is not interested in a
short term transition” and if plaintiff “wanted to resign, ‘just resign.’” (Id.
¶ 133.) Plaintiff then wrote to Amarin Inc. “seeking a resolution with the
company” to which defendants’ lawyer responded by asking whether plaintiff
had resigned. (Id. ¶¶ 134, 135.) On March 20, 2023, Mikhail’s lawyer wrote
to defendants’ lawyer “trying a final time to arrive at a good faith resolution but
received no response from [defendants’] counsel.” (Id. ¶ 136.)
Mikhail also alleges “Sarissa … made disparaging, inaccurate and
misleading statements about” him and “directed the material diminution of his
duties and responsibilities.” (Id. ¶ 137–154.) He alleges the newly
constructed Board was “freezing [him] out of the company’s decision-making,”
and “isolat[ed] and disregard[ed] [him] and his input, divest[ed] him of his
responsibilities at Amarin … and communicat[ed] with [his] team members
without his knowledge.” (Id. ¶ 138.) Mikhail cites to Sarissa’s press releases
and presentations made before the Sarissa-backed nominees were elected to the
Board, including statements like “a history of reckless spending and self-
serving unjust enrichment at Amarin,” allegations that “the [B]oard acted in
bad faith and engaged in numerous breaches of its fiduciary duties and
violations of the law.” (Id. ¶ ¶ 92–109.) Mikhail alleges “Sarissa’s conduct …
has impacted [his] standing within … Amarin, with … Amarin’s shareholders
and the investment community at large, as well as the pharmaceutical industry
as a whole.” (Id. ¶ 164.)
Mikhail gave “notice of his constructive termination from Defendant” on
March 27, 2023, alleging “justified cause” pursuant to the Contract and to
Article 337 of the Swiss Code of Obligations. (Id. ¶¶ 155, 159.) The notice
asks “whether Amarin will require [Mikhail] to take Garden Leave.” (Id.
¶ 155.) Plaintiff also alleges a “Change of Control” and “Change of Control
event” occurred under the Severance Plan and the Stock Incentive Plan, and
“Good Reason” existed under the Severance Plan. (Id. ¶¶ 180–187.)
C. Procedural History
On March 31, 2023, plaintiff commenced this action in the Superior Court
of New Jersey, Somerset County. (ECF No. 1 ¶ 2.) Defendants timely
removed on April 7, 2023, on the basis of diversity jurisdiction. (Id.) Plaintiff
filed an amended complaint on June 13, 2023. (Compl.) Defendants filed a
motion to dismiss on June 30, 2023. (ECF No. 26.) On February 29, 2024,
Judge Castner denied the motion to dismiss without prejudice and ordered the
parties to “complete jurisdictional discovery.” (ECF Nos. 33, 34.) Following
completion of jurisdictional discovery, defendants withdrew their jurisdictional
objections and sought leave to file a renewed motion to dismiss. (ECF No. 63
p. 1.) I granted defendants’ request for leave to file their renewed motion to
dismiss. (ECF No. 66.)
Defendants filed a motion to dismiss on March 20, 2025. (Mot. Br.) On
May 21, 2025, plaintiff filed his opposition brief. (Opp’n Br.) Defendants
subsequently submitted a reply brief on June 18, 2025. (Reply Br.)
II. PARTY ARGUMENTS
Defendants seek dismissal of the Complaint pursuant to Federal Rule of
Civil Procedure (Rule) 12(b)(6). (Mot. Br. p. 6.) Defendants argue that the
claims against Amarin Inc. should be dismissed because it is not a party to the
Contract or the Severance Plan. (Id. pp. 7–9.) Defendants also argue that
Mikhail fails to plausibly assert a breach of the Contract because plaintiff did
not have “justified cause” under Swiss law to terminate his employment with
Amarin Switzerland. (Id. pp. 7, 8.) As to the Severance Plan, according to
defendants, “[p]laintiff does not adequately allege a breach of [the] Severance
Plan,” since “only United States employees of Amarin plc or its subsidiaries are
entitled to benefits under the Severance Plan,” and even if plaintiff is
considered a United States employee, “no Change of Control” occurred, and
“[p]laintiff has not alleged ‘Good Reason’ for his resignation.” (Id. p. 7.)
Finally, defendants argue that plaintiff’s claim for breach of the implied
covenant of good faith and fair dealing should be dismissed as plaintiff’s claims
were “conclusory,” and “rest[ed] on the same exact conduct as plaintiff’s breach
of contract claims.” (Id. p. 8.)
Plaintiff counters that Amarin Inc. “is included as a party under the plain
language of the Contract” and moreover, the “determination” as to “whether an
affiliated entity of [d]efendants can be held responsible under the Contract” is
a question of fact to be decided after discovery. (Opp’n Br. p. 6.) Plaintiff also
argues that under Swiss law “the [b]reach of the Contract … count can be
sustained” as plaintiff “sufficiently alleges timely notice and ‘Good Cause.’”
(Id. p. 7.) Plaintiff argues that he has pleaded “sufficient facts to maintain a
breach of the Severance and Change of Control Plan” to show he was a United
States-based executive and that a Change of Control occurred, or alternatively
that “a change in control is a fact question that requires discovery.” (Id.)
Finally, plaintiff claims he alleged “sufficient facts” for a claim of breach of the
implied covenant of good faith and fair dealing, since defendant’s conduct was
“in bad faith and with harmful intentions.” (Id.)
In reply, defendants again argue that “[p]laintiff has failed to allege any
claims against Amarin Inc.” as Amarin Inc. is “a separate and distinct entity,”
and not “a party to either the [Contract] or the Severance Plan.” (Reply Br.
pp. 4, 5.) Defendants also argue that plaintiff has not sufficiently pleaded
“justified cause” because the standard “contemplates scenarios where the
employee is subject to physical abuse, sexual harassment, bullying severe
enough to affect an employee’s health, or workplace safety issues.” (Id. p. 10.)
Defendants argue that “[p]laintiff is not entitled to garden leave or any
acceleration of his equity grants” as he “did not provide any period of notice” as
required by the Contract’s Garden Leave provision. (Id. p. 11.) Defendants
also state there was no “Change of Control” under the Stock Incentive Plan.
(Id. p. 12.) Defendants argue that plaintiff fails to allege a breach of the
Severance Plan as his Contract specifies that he was a Swiss employee, and
“neither prong” of the “Change of Control” analysis was met in plaintiff’s
Complaint. (Id. pp. 8, 9.) Finally, defendants again argue that the implied
covenant of good faith and fair dealing claim “cannot circumvent the contractual
requirements of the Severance Plan.” (Id. p. 12.)
III. LEGAL STANDARD
Before filing a responsive pleading, a defendant may move to dismiss a
complaint for failure to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6). To survive dismissal under Rule 12(b)(6), “a complaint
must provide ‘a short and plain statement of the claim showing that the pleader
is entitled to relief.’” Doe v. Princeton Univ., 30 F.4th 335, 341 (3d Cir. 2022)
(quoting Fed. R. Civ. P. 8(a)(2).) Courts shall accept the plaintiff’s factual
assertions, which “‘plausibly suggest[ ]’ facts sufficient to ‘draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Id. at 342
(first quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); and then
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Courts further evaluate
the sufficiency of a complaint by “(1) identifying the elements of the claim, (2)
reviewing the complaint to strike conclusory allegations, and then (3) looking
at the well-pleaded components of the complaint and evaluating whether all of
the elements identified in part one of the inquiry are sufficiently alleged.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV. DISCUSSION
Swiss law governs claims relating to the breach of the Contract and New
Jersey law governs the breach of Severance Plan and breach of the implied
covenant of good faith and fair dealing claims.2
A. Amarin Inc.
I begin with plaintiff’s claims against Amarin Inc. To establish a prima
facie claim for breach of contract, a plaintiff “must allege (1) a contract [existed]
between the parties; (2) a breach of that contract; (3) damages flowing
therefrom; and (4) that the party stating the claim performed its own
contractual obligations.” Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir.
2007). Here, the first prong is not met.
Generally, a contract claim “cannot be maintained against a person who
is not a party to it.” Figueroa v. City of Camden, 580 F. Supp. 2d 390, 408
(D.N.J. 2008) (quoting Comly v. First Camden Nat’l Bank and Trust Co., 36
A.2d 591, 593 (N.J. Sup. Ct. 1944)). Amarin Switzerland is the “Company”
referred to in the Contract, “which expression will[,] where the context so
permits or requires[,] include its subsidiaries and associated companies.” (Id.
p. 2.) In Contract also provides:
“[A]ssociated company” or “associated companies” means
any subsidiary undertaking or joint venture of the
Company, any holding undertaking of the Company is a
subsidiary undertaking, a subsidiary undertaking or joint
venture of such a holding undertaking, or an undertaking
in which any of the foregoing has a participating interest;

2 The parties only cite to New Jersey and United States law relating to the claims
against Amarin Inc. It appearing that the parties agree that New Jersey and United
States law apply to those claims, I adopt that understanding herein.
and accordingly, “associated companies” of the Company
shall include Amarin Pharmaceuticals Ireland Ltd,
Amarin Corporation plc and Amarin Pharmaceuticals Inc.
According to plaintiff, this provision supports his argument that Amarin Inc.,
as an “associated company,” is a party to the Contact.
Plaintiff cites to cases where a court determined that the question of
whether a subsidiary or affiliate was a party to a contract was a question of fact.
See In re Tri Harbor Holdings Corp., Case No. 19–13448, 2021 WL 4877265, at
*3 (Bankr. D.N.J. Oct. 5, 2021) (finding the “mere fact” an entity “did not sign
the Agreement did not necessarily absolve [the company] of liability under the
express terms of that Agreement”); Players Network, Inc. v. Comcast Corp.,
Case No. 14–00238, 2015 WL 427909, at *3 (D. Nev. Feb. 2, 2015) (“The Court
finds ambiguity regarding the definition of ‘Company’ in the Agreement.
Whether ‘on behalf of its operating affiliates’ includes operating affiliates as
parties to the Agreement is reasonably susceptible to different
interpretations.”).
These cases are distinguishable. In In re Tri Harbor Holding Corp., the
preamble to the agreement identified “subsidiaries and Affiliates” as a
“contracting party.” In re Tri Harbor Holding Corp., 2021 WL 4877265, at *3.
In Players Network, the agreement defined “Company” as “Comcast
Programming Development, Inc., on behalf of its operating affiliates.” Players
Network, Inc., 2015 WL 427909, at *2.
Here, Amarin Switzerland’s associated companies—such as Amarin Inc.—
are to be included in the definition of “Company” only “where the context so
permits or requires.” (Contract p. 3.) To draw in Amarin, Inc. as a party to
the Contract would require me to focus only on the first two pages of the
Contract and ignore the remaining 17 pages. This is because the other 17
pages define in what “context” reference to the associated companies is
“permit[ted] and require[d].” For example, as the CEO of Amarin Switzerland,
as president and CEO of Amarin plc., and as a member of Amarin plc.’s Board
(Id. §§ 2.2, 2.3), plaintiff was assigned “duties and responsibility” across the
spectrum of “Defendant Amarin’s”3 business. Thus, Mikhail was “required” to
“devote the whole of his time and attention … to the discharge of his duties …
to promote the interest, welfare, and reputation of the Company and associated
companies.” (Contract § 3.1(d).) Indeed, every reference in the Contract to
“associated companies” relates to Mikhail’s duties and obligations for the
benefit of the “associated companies.”4 Far from bringing Amarin, Inc. in as a
party to the Contract, the associated companies, as part of the overall
“Defendant Amarin’s” business were provided benefits of Mikhail’s employment
as the highest level executive of the overall business and member of the Board.
There is no ambiguity as to who the parties to Contract are and which party
owes obligations to Mikhail under the Contract.5
Additionally, while plaintiff argues that the question of whether an
“affiliated entity can be held responsible under a contract is a fact question to
be decided after discovery” (Opp’n Br. p. 10), the purpose of discovery is not to
discover potential claims, Arbitron Inc. v. Longport Media LLC, Case No. 12–
02444, 2013 WL 1163492, at *4 (D.N.J. Mar. 19, 2013) (quoting Twombly, 550
U.S. at 556). Rather, “[d]iscovery should not serve as a fishing expedition
during which [p]laintiff searches for evidence in support of facts he has not yet

3 As set forth infra., throughout the Complaint, plaintiff does not separate
allegations as to each defendant but uses the term “Defendant Amarin” to denote all
defendants as one corporate entity. (See Compl. p. 1 (collectively referring to all
defendants as “Defendant Amarin.”)
4 They are: conduct and standards (§ 4); maintaining confidentiality of
information (§ 15); right of the associated companies upon plaintiff’s termination of
employment (§ 18); post-termination restrictions (§ 20); and data protection (§ 21).
5 Plaintiff does not argue that Amarin Inc. is a party to the Severance Plan.
(Opp’n Br.)
pleaded.” Id. (quoting Smith v. Lyons, Doughty & Veldhuius, P.C., Case No.
07–05139, 2008 WL 2885887, at *5 (D.N.J. Jul. 23, 2008)).
Even if I were to find that plaintiff sufficiently alleged that Amarin Inc. is
a party to the Contract, plaintiff does not identify any actions taken by Amarin
Inc. in breach of either contract and, instead, broadly refers to “Defendant
Amarin” throughout the Complaint. See, e.g., Compl. ¶¶  172, 174. “Group
pleading” by treating multiple entities as a single defendant and “fail[ing] to
identify precisely” what actions “each individual defendant undertook to breach
the contract,” does not satisfy Rule 8. Integrated Micro-Chip Elecs. Mex. v.
Lantek Corp., Case No. 18–14112, 2019 WL 4668036, at *2 (D.N.J. Sept. 24,
2019) (quoting Sheeran v. Blyth Shipholding S.A., Case No. 14–05482, 2015 WL
9048979, at *2 (D.N.J. Aug. 10, 2012)).
Moreover, “in the absence of a contract, there can be no breach of an
implied covenant of good faith and fair dealing.” Arch Ins. Co. (Europe) Ltd. v.
Reilly, Case No. 20–02080, 2021 WL 4739567, at *8 (D.N.J. Oct. 8, 2021)
(quoting Noye v. Hoffman-La Roche Inc., 570 A.2d 12, 14, (N.J. Super. Ct. App.
Div. 1990)). Since I find plaintiff has not sufficiently pleaded that Amarin Inc.
is a party to the Contract, there can be no plausible claim for a breach of the
implied covenant of good faith and fair dealing.
All claims against Amarin Inc. will be dismissed.
B. Counts I to III Against Amarin Switzerland and
Amarin plc
1. Count One: Breach of the Contract
The Contract is governed by Swiss law. (Contract § 26.) Article 337 of
the Swiss Code of Obligations allows employers and employees to “terminate”
employment “with immediate effect at any time for good cause.” (ECF No. 67–
8 p. 4.) “Good cause” is defined as “any circumstance which renders the
continuation of the employment relationship in good faith unconscionable for
the party giving notice.” Id. Courts are given “discretion” to determine good
cause,6 (ECF No. 67–9 (Eng. Translation Aug. 22, 2011 J.) p. 8.) (quoting
BUNDESGERICHT [BGER] FEDERAL COURT, Aug. 22, 2011, 4A_252/2011
4.2 (Switz.)). “The prerequisites for the existence of good cause are … high,”
with “only a particularly serious breach” justifying immediate termination.
(Eng. Translation Swiss Treatise p. 5; Eng. Translation Aug. 22, 2011 J. p. 7.)
“Difficult working conditions, an unfavorable working environment and
inadequate leadership are not sufficient to justify an immediate termination.”
(Eng. Translation Aug. 22, 2011 J. p. 8.). However, violence, “workplace
bullying affecting the employee’s health,” “sexual harassment,” and solicitation
“to commit criminal acts,” amount to good cause. (Eng. Translation Swiss
Treatise p. 14.)
Here, plaintiff alleges that “Sarissa and the Amarin Board have made
numerous misrepresentations as well as defamatory statements and innuendos
regarding Plaintiff.” (Compl. ¶ 163.) Plaintiff cites Sarissa’s press releases
and presentations made prior to the Sarissa-backed nominees were elected to
the Board and while Sarissa owned about 5% of “Amarin.” (Id. ¶ ¶ 88–109.)
Plaintiff alleges “Sarissa’s conduct … has impacted [his] standing with
Defendant Amarin, with Defendant Amarin’s shareholders and the investment
community at large, as well as the pharmaceutical industry as a whole.” (Id.
¶ 164.) These comments made by Sarissa about Amarin’s ability to manage
money and the leadership’s alleged breaches of law and fiduciary duty, while
unfavorable, do not, as a matter of law, meet the definition of “good cause” under
Swiss law. (Id. ¶ ¶ 96, 101, 108; Eng. Translation Aug. 22, 2011 J. p. 7; Eng.
Translation Swiss Treatise p. 5.)

6 “Good cause” is used interchangeably with justified cause in the Swiss Code of
Obligations. (ECF No. 67–11 (Eng. Translation Swiss Treatise) p. 4.)
Also, the termination must be “immediate,” “otherwise, it must be
assumed that compliance with the ordinary notice period is subjectively
reasonable for the terminating party and the right to immediate termination of
the contract is forfeited,” (ECF No. 67–10 (Eng. Translation Dec. 29, 2011 J.)
p. 6. (internal citations omitted); ECF No. 71–12 pp. 3, 4  (internal citations
omitted).) While waiting “two to three days” has been found permissible,
longer delay will only be found “permissible if, considering the practical
requirements of day-to-day and economic life, this appears to be
understandable and justified.” (Eng. Translation Dec. 29, 2011 J. p. 7 (internal
citations omitted).)
Here, Mikhail alleges that following the proxy election, Amarin Board
members “isolat[ed] and disregard[ed] [him] and his input, divest[ed] him of his
responsibilities (both overtly and surreptitiously), and communicat[ed] with
[his] team members without his knowledge.” (Compl. ¶ 138.) The relevant
statements were made by Sarissa from January 10, 2023, through February 28,
2023, and relevant conduct of the Amarin Board occurred from March 7, 2023
to March 21, 2023. Mikhail, however, did not notify Amarin Board of his
“constructive termination” until March 27, 2023. (Id. ¶ ¶ 88–109, 139–148,
155.) The allegations relating to plaintiff’s termination do not meet the
“immediate” requirement of Article 337 of the Swiss Code of Obligations.
Plaintiff’s claim for breach of contract on these grounds will be dismissed.
Mikhail also claims to be “entitled” to “Garden Leave” and “acceleration of
his stock equity grants under the Contract.” (Opp’n Br. pp. 28, 29.) Garden
Leave applies “during all or any part of any period of notice.” (Contract § 19.)
In his notice asserting “constructive termination,” Mikhail wrote: “Please
advise whether Amarin will require me to take Garden Leave.” (Compl. ¶ 155.)
Mikhail inquired about Garden Leave but, according to Mikhail, his
termination was “immediate” under Article 337 of the Swiss Code of
Obligations. (Id. ¶ 155, 158–174.) Thus, there was no “period of notice” in
which Garden Leave could be taken. (Contract § 19.) Accordingly, plaintiff’s
claim for breach on this ground will also be dismissed.
Regarding the acceleration claim, acceleration occurs when there is a
“Change of Control.” (Id. § 9.1.) “Control” is defined under the Stock
Incentive Plan as “the ownership of more than fifty (50) % of the issued share
capital or other equity interest in the Company,” and is defined under the
Severance Plan as the same 50%, “or the legal power to cause the direction of
the general management and policies of the Company.” (Stock Incentive Plan
§ 2(o); Severance Plan § 2(k).) The Internal Revenue Code (Code) states that a
“change in the effective control of the corporation” occurs only when “one
person, or more than one person acting as a group” acquires “ownership of stock
of the corporation possessing 30 percent or more of the total voting power of the
stock of such corporation” or “a majority of members of the corporation’s board
of directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
corporation’s board of directors before the date of the appointment or election.”
26 C.F.R. § 1.409A–3(i)(5)(vi). Mikhail claims that Sarissa “obtained slightly
more than a 5% ownership of Amarin,” in January (Compl. ¶ 88.), which does
not satisfy the 50% threshold in the Stock Incentive Plan.
Mikhail also claims that seven Sarissa nominees were elected to the
Board, “expanding the Board to 15 directors.” (Id. ¶ 110.) The seven non-
Sarissa Board members subsequently resigned. (Id. ¶¶ 112, 126.) These
elections and resignations do not meet the other Code’s requirement that the
majority of the Board be “replaced.” 26 C.F.R. § 1.409A–3(i)(5)(vi).
In addition, the re-constituting of the Board did not change the “legal
power to direct or cause the direction of the general management and policies
of the Company.” (Severance Plan § 2(k).) Directors have a fiduciary duty to
act for the benefit of all shareholders, regardless of the source of their
nomination. See In re OFRA Sec. Litig., 654 F. Supp. 1449, 1455 (D.N.J. 1987)
(“Under New Jersey common law there can be no doubt that corporate officers
have a fiduciary duty to both the corporation and its shareholders.”); see also In
re KKR Fin. Holdings LLC S’holder Litig., 101 A.3d 980, 996 (Del. Ch. 2014)
(“It is well-settled Delaware law that a director’s independence is not
compromised simply by virtue of being nominated to a board by an interested
stockholder.”) The election of the Sarissa-nominated Board members did not
cede “the legal power to cause the direction of the general management and
policies of the Company” to Sarissa. Additionally, there are no allegations in
the Complaint that these members were employees of, or otherwise affiliated
with, Sarissa, outside of their nomination. (Compl. ¶ 112.) For these reasons,
plaintiff has not adequately pleaded a change of control, or a breach of contract
under the acceleration clause.
Accordingly, Count One is dismissed.
2. Count II: Breach of Severance Plan
Defendants allege that Count II fails for “two independent and equally
sufficient reasons.” First, that plaintiff is not an “Eligible Executive” under
the Severance Plan, and second, that plaintiff’s allegations “do not meet the
definition of a ‘Change of Control,’ as that term is specifically defined in the
Severance Plan.” (Mot. Br. pp. 19–23.)
The Severance Plan defines an “Eligible Executive” as “a United States
employee of the Company or any of its Subsidiaries at the level of Vice President
or above at the time of the Date of Termination.” (Severance Plan § 2(n).)
Defendants argue that Mikhail is not an “Eligible Executive” because he was a
Swiss employee. (Mot. Br. pp. 19, 20 (citing Compl. ¶¶ 52, 59.)) However,
given the unambiguous reference to Mikhail’s eligibility for benefits under the
Severance Plan (Contract § 18.7.), I will assume plaintiff’s eligibility.7
However, Count Two will be dismissed because it is based on the same
insufficient allegations concerning a “Change of Control.” For the same
reasons as stated above, plaintiff fails to sufficiently allege a “Change of
Control” under the Severance Plan. See supra Section  IV.B.1. Accordingly,
Count Two will be dismissed.
3. Count Three: Breach of the Implied
Covenant of Good Faith and Fair Dealing
The implied covenant of good faith and fair dealing is a “‘component of
every contract’ that requires both parties to a contract act in ‘good faith[,]’ that
is, they must ‘adher[e] to “community standards of decency, fairness, or
reasonableness.”’” Evonik Corp. v. Hercules Grp., Inc., Case No. 16–07098,
2018 WL 5095991, at *9 (D.N.J. Oct. 18, 2018) (alterations in original) (quoting
Iliadis v. Wal-Mart Stores, Inc., 922 A.2d 710, 722 (N.J. 2007)). To succeed on
such a claim, “a party must prove that ‘(1) the [opposing party acted] in bad
faith or with a malicious motive, (2) to deny the [party] some benefit of the
bargain originally intended by the parties, even if that benefit was not an

7 Section 18.7 of the Contract provides:
The Executive will be eligible for severance pay and benefits
under terms and conditions that are no less favourable than
pursuant to Amarin Corporation plc’s [Severance Plan] effective
January 28, 2021 …, subject to any Swiss law requirements.
Any benefits to which the Executive may be entitled to receive
under the [Severance Plan] or any other Company change in
control severance payment plan from time to time will be
inclusive of the Executive’s notice period entitlement referred to
at clause 18.3 above, such that the Executive shall not be
entitled to both severance and notice benefits (i.e. the
remuneration/benefits paid during notice period will be
deducted from the severance pay and benefits, if any are
applicable).
express provision of the contract.” Id. (alteration in original) (quoting Yapak,
LLC v. Mass. Bay Ins. Co., Case No. 09–03370, 2009 WL 3366464, at *2 (D.N.J.
Oct. 16, 2009)). “Where a party has breached a specific term of a contract, that
party cannot be found separately liable for breaching the implied covenant of
good faith and fair dealing when the two asserted breaches basically rest on the
same conduct.” 760 New Brunswick Urb. Renewal LLC. v. Navigators
Specialty Ins. Co., Case No. 20–00877, 2021 WL 287876, at *6 (D.N.J. Jan. 28,
2021) (quoting Spellman v. Express Dynamics, LLC, 150 F. Supp. 3d 378, 379
(D.N.J. 2015)). When the two claims are based on duplicative conduct “breach
of implied duty claims can be dismissed at the motion to dismiss stage.” Id.
(quoting Spellman, 150 F. Supp. 3d at 390).
Outside of plaintiff “repeat[ing] and realleg[ing]” Counts One and Two’s
allegations (Compl. ¶ 189), plaintiff fails to provide any separate facts to allege
a breach of the implied covenant of good faith and fair dealing. Accordingly,
Count Three is dismissed.
V. CONCLUSION
For the foregoing reasons, the Motion will be GRANTED. An
appropriate order accompanies this opinion.

/s/ Edward S. Kiel
EDWARD S. KIEL
UNITED STATES DISTRICT JUDGE

Dated: November 26, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11210540. Public record. Not legal advice.