Good morning. Lawyers for cities and counties suing over the opioid epidemic are hoping the huge settlement that’s coming down the pike with the drug distributors will be followed with deals with pharmacy chains like CVS and Walgreens. Billionaire Trump friend Tom Barrack is now under indictment. And Big Tech foe Jonathan Kanter is being tapped to lead the DOJ's antitrust division. Oh, and did you know lobbyists are making a lot of money right now? Brownstein Hyatt and Akin Gump sure do, based on their latest reports. Buckle up folks, it's just Wednesday, but we barely held it together through all of yesterday's headlines!
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Opioid plaintiffs eye pharmacies, holdout drugmakers for settlements
With a $26 billion settlement in sight resolving opioid lawsuits against the three largest drug distributors and Johnson & Johnson, leading lawyers for the plaintiffs are now turning their sights to pharmacy chains and a handful of holdout drugmakers for their next big recovery.
Brendan Pierson reports that with trials looming this year for Walgreens Boots Alliance, Walmart, Rite Aid and CVS Health, the pharmacy operators have now become a top focus for local governments who say they and other companies fueled the nation's deadly drug abuse epidemic.
The pharmacies this month agreed to pay New York's Suffolk and Nassau counties a combined $26 million. Those counties were part of the $1.18 billion settlement New York reached on Tuesday with distributors McKesson, AmerisourceBergen and Cardinal Health, which marked a prelude to a national deal.
Joe Rice, a lead lawyer for the plaintiffs at Motley Rice, said talks with the pharmacies "will probably be different," because they operate more regionally than the distributors. "So those will be more individualized discussions," he said.
Drugmakers Teva Pharmaceutical Industries, Endo International and AbbVie are meanwhile on trial in California and New York. A 2019 proposal by Teva to donate addiction treatment drugs it valued at $23 billion failed to gain support. Endo faces another next week in Tennessee, where a judge as a sanction found it liable on claims by local counties. Endo has offered to settle that case, TV station WJHL reported. Learn more.
Industry buzz
- Attorney General Merrick Garland's daughter Jessica Garland was hired to be U.S. Supreme Court Justice Elena Kagan's clerk next year, but the Yale law grad may not end up taking the spot. She was hired before President Joe Biden won his election and before Garland was named attorney general, but "in light of the potential for actual or apparent conflicts of interest, Jessica Garland will not serve as a law clerk for Justice Kagan while Attorney General Garland remains in office," said Patricia McCabe, public information officer for the high court. (Reuters)
- Biden picked Big Tech foe Jonathan Kanter as the DOJ's antitrust chief. The nomination of Kanter, who founded the boutique firm Kanter Law Group after leaving Paul Weiss in 2020, came after the administration tapped other tech critics to antitrust roles including Lina Khan, the FTC's progressive chair. (Reuters)
- In other DOJ appointment news, the U.S. Senate voted 56-44 to confirm Morgan Lewis partner Kenneth Polite to be an assistant attorney general and head the department's criminal division. Six Republicans joined with Democrats to support his nomination, including the GOP members from Louisiana, Bill Cassidy and John Kennedy. Polite was once the top federal prosecutor in New Orleans. (NOLA)
- But wait, not everyone is joining the DOJ: The White House withdrew the nomination of Javier Guzman, deputy general counsel at Harvard University, to serve as assistant attorney general of the DOJ's Civil Division. (Politico)
- Johnson & Johnson has brought on Jones Day to advise the company as it explores a plan to offload liabilities from litigation over its talc-based products including Johnson's Baby Powder into a newly created business that would then seek bankruptcy protection. The company had denied allegations that its products can cause cancer and maintains its talc is safe. (Wall Street Journal)
- Davis Polk and Cleary Gottlieb are advising on private equity-backed Clarios International's initial public offering, which the battery maker hopes will yield a $10.7 billion valuation. (Reuters)
- U.S. District Judge Randolph Moss in D.C. is contemplating whether to order Jones Day to turn over its partnership data to a married pair of former associates accusing the firm of sex discrimination and unlawful termination. The data, which would include salaries, could be used to bolster a lost wages claim, the couple says. (Reuters)
- Cooley told employees it won't require them to come back to the office for the remainder of the year — but if they do choose to enter the office after Labor Day, they'll need to be vaccinated. Beyond 2021, the firm indicated it was considering a hybrid model, where people can both work in the office and from home. A similar model is rolling out at Faegre Drinker, which will allow attorneys to choose the amount of at-home and in-office work they’re comfortable with — while support staff will be given instructions on where they’re expected to work. (Reuters, Law.com)
"Our friends are extremely happy and proud of our relationships with you! Beyond expectations!"
Rashid Sultan Rashid Al Malik Alshahhi, a citizen of the United Arab Emirates, who was quoted in an indictment filed in federal court in Brooklyn that accused him of participating in a plot with Tom Barrack to use the billionaire's connections within the Trump administration to influence its foreign policy. Barrack, who served as chairman of former President Donald Trump’s inaugural fund, was arrested on Tuesday in Los Angeles and detained until a bail hearing, while Alshahhi remains at large, prosecutors said. Barrack, who is repped by Matt Herrington of Paul Hastings, plans to plead not guilty. (Reuters)
Coming up today
- Opening statements are expected in federal court in Santa Ana, California, in the second trial of Michael Avenatti, the celebrity lawyer previously convicted of trying to extort Nike. Avenatti, who is now representing himself, faces 10 criminal counts on charges he embezzled nearly $10 million of settlement proceeds from five clients. He faces 26 additional charges in a separate trial including bankruptcy, bank and tax fraud. A federal judge in Manhattan sentenced him earlier this month to 2-1/2 years in prison in the Nike case.
- Jennifer Abruzzo is up for confirmation at the U.S. Senate to be general counsel of the National Labor Relations Board. President Biden chose Abruzzo, who is special counsel to the Communications Workers of America union, after firing Trump administration NLRB General Counsel Peter Robb. The divided Senate on Tuesday voted 51-50 to limit debate on her nomination, with Vice President Kamala Harris breaking the tie.
- The FTC will have its second open meeting under new Chair Lina Khan. The commission will vote on whether to rescind a 1995 policy statement concerning "prior approval" and "prior notice" remedies in merger cases. Rescinding the statement could open a door to new requirements for companies to tell the agency about certain future acquisitions.
- An ex-pharmacist at the Massachusetts compounding pharmacy whose mold-tainted drugs sparked a deadly fungal meningitis outbreak in 2012 is slated to be resentenced after prosecutors convinced the 1st Circuit to overturn his earlier eight-year punishment, which they argued was too light. Glenn Chin, now-defunct New England Compounding Center's supervisory pharmacist, will be sentenced for a second time by U.S. District Judge Richard Stearns in Boston. He previously gave NECC co-founder Barry Cadden a new prison term of 14-1/2 years, up from his original nine-year sentence.
- Further closing arguments are scheduled in a bench trial in a lawsuit by a group representing General Motors, Fiat Chrysler Automobiles and other automakers that sued to block a Massachusetts voter-approved measure that would expand access to vehicle data and allow independent shops to repair increasingly sophisticated automotive technology. Lawyers for trade group Alliance for Automotive Innovation led by John Nadolenco of Mayer Brown are urging U.S. District Judge Douglas Woodlock in Boston to conclude federal law preempts the state measure.
- Environmental groups including the Western Watersheds Project will urge U.S. District Judge Miranda Du in Reno, Nevada, to issue an order that would force Lithium Americas Corp to stop excavation work at its Thacker Pass mine site in the state, which could become the country's largest lithium mine. Laura Granier of Holland & Knight is defending the project for the company.
Number of the day:
$14,080,000
Brownstein Hyatt collected $14.08 million in federal lobbying revenue for the second quarter of this year, maintaining its place as the top earning firm in terms of lobbying for the second quarter in a row. Since the start of the year, Brownstein has edged out its primary rival for the title of highest earner, Akin Gump, which topped Brownstein with $49.6 million in lobbying revenue last year. Brownstein closed out 2020 with $49.3 million in lobbying revenue. (Reuters)
Video: FTC enters fray amid growing right-to-repair movement
The FTC during today’s meeting will wade into the long-running debate over how much leeway consumers should have to repair their phones, cars and other equipment without running afoul of intellectual property and copyright laws. Video reporter Tom Rowe has this report. Watch the video.
In the courts
- Harvey Weinstein was extradited to California from New York to face rape and sexual assault charges, a month after Erie County Court Judge Kenneth Case in Buffalo cleared the way for his transfer. (Reuters)
- Members of the wealthy Sackler family who own Purdue Pharma did not exert any improper influence over a special committee of the OxyContin maker’s board in negotiating a settlement of potential opioid-related litigation, according to a report by an independent examiner. The investigation by Stephen Lerner of Squire Patton Boggs came at the direction of U.S. Bankruptcy Judge Robert Drain in White Plains, New York, following a request by the founder of an advocacy group for parents whose children died from opioid overdoses. (Reuters)
- U.S. District Judge David Nye in Boise, Idaho, sided with environmental groups including Northwest Environmental Advocates in finding that the EPA failed to timely issue mercury water-quality standards to replace state-level ones it deemed noncompliant with the Clean Water Act more than a decade ago. (Reuters)
- The D.C. Circuit joined with nearly all other circuits in concluding that that courts do not have the power to review U.S. Citizenship and Immigration Services' decisions to revoke approval of immigrant visa petitions. The ruling came as a loss for staffing firm iTech U.S. Inc, whose lawyer Geoffrey Forney of Wasden Banias argued that only decisions denying ultimate relief to visa applicants were beyond the reach of courts. (Reuters)
- The D.C. Circuit also rejected a challenge by pro-cigar groups including the Cigar Association of America to parts of a FDA rule adopted in 2016 that require cigar and tobacco pipe makers to obtain the agency's approval for all cigars and pipes for sale since 2007, or pull them from the market. Michael Edney of Steptoe & Johnson and Mark Raffman of Goodwin Procter had argued the case for the groups. (Reuters)
- FIFA escaped an antitrust lawsuit by a sports promotion company that accused the world governing body of soccer of teaming up with the U.S. Soccer Federation to block foreign clubs from hosting U.S. matches. The ruling by U.S. District Judge Valerie Caproni in Manhattan came in a lawsuit by Relevent Sports, whose founder Stephen Ross also owns the NFL's Miami Dolphins. Relevent is represented by Winston & Strawn's Jeffrey Kessler while Christopher Yates and Lawrence Buterman of Latham & Watkins defended USSF, which also ducked the antitrust claim. Christopher Boehning, Andrew Finch and Justin Ward of Paul Weiss defended FIFA. (Reuters)
Industry moves
- Loeb & Loeb veteran Robert Newman is joining Reed Smith’s entertainment and media industry group in Chicago. Newman was co-chair of privacy, security and data innovations at Loeb, and previously served in a similar role at Winston & Strawn. (Reuters)
- Litigator William Walsh has joined Murphy & McGonigle in Chicago. A former senior enforcement counsel at CME Group and Winston & Strawn alum, Walsh will work within Murphy’s securities, commodities and fintech practices, among others. (Murphy & McGonigle)
- Morris (Mo) Bauer is jumping from Norris McLaughlin to Duane Morris. He'll be based out of Newark, and will be a partner in Duane Morris’ business reorganization and financial restructuring practice group. (Duane Morris)
- Reed Smith attorneys Kevin Dreher and Caroline Upton have joined Barnes & Thornburg’s Chicago office as part of the firm's insurance recovery group. Dreher will be a partner and Upton is of counsel. (Barnes & Thornburg)
- Bradley Nash has joined New York litigation boutique Hoguet Newman Regal & Kenney’s insurance recovery litigation and counseling group. Nash is a veteran of both Schlam Stone & Dolan and Covington & Burling. (Hoguet Newman Regal & Kenney)
- Philip Donnelly became the sixth new attorney to join Buchalter’s Arizona office this year. Donnelly, who had a solo practice before joining the firm, focuses his work on corporate governance, banking and regulatory compliance and complex litigation, among other areas. (Buchalter)
Columnist spotlight: SCOTUS' 2021 Ford decision dooms dismissal bid by ex-Girardi lawyer
Here’s a weird little civil procedure riddle: What does a one-time Girardi Keese lawyer accused of misappropriating clients’ money have in common with the Ford Motor Company? Answer: Both tried to beat cases against them by contesting a court’s specific personal jurisdiction – and both failed. You probably remember Ford's case, in which the U.S. Supreme Court in March confirmed that a court can exercise specific personal jurisdiction over a corporate defendant as long as a plaintiff's claims arise from or relate to the defendant’s in-state conduct. Ex-Girardi lawyer Keith Griffin, meanwhile, sought to dismiss claims that he was complicit in a scheme to embezzle client money by erstwhile co-counsel from the Edelson firm by arguing that his fleeting connections to Illinois did not cause the alleged injury. As Alison Frankel reports in her latest column, he contended that the Ford case was off-point because he was just an individual lawyer acting at the behest of his firm, not a nationwide corporation. Read here to find out why a Chicago federal judge rejected that argument.
Lawyer speak: Arbitration needn't get bogged down by e-discovery
Arbitration's reputation for being a cheaper and more efficient way to handle disputes is at risk now that e-discovery is becoming a routine part of commercial arbitration, writes former federal judge Shira Scheindlin, now at Stroock & Stroock & Lavan. Luckily, there are guidelines for reining in electronic discovery that arbitrators can use to keep the process streamlined, she says. Read more.
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