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Ex-pharmaceutical executive Martin Shkreli speaks to the press in front of U.S. District Court for the Eastern District of New York with members of his legal team after the jury issued a verdict on Aug. 4, 2017.

Not even a seven-year sentence for securities fraud can keep Martin Shkreli from allegedly engaging in the machinations that earned him the nickname Pharma Bro.

In a ruling on Tuesday, a federal judge found that Shkreli used a contraband phone to communicate with his associates in the company behind Daraprim, the live-saving drug whose price he jacked up 40-fold roughly half a decade ago.

After the drug went from $13.50 per tablet to $500 overnight, Shkreli was criminally prosecuted for an unrelated Ponzi-like scheme involving investors in another drug company, Retrophin.

After a federal jury convicted him of securities fraud charges, state and federal regulators piled on civil antitrust charges revived from the old Daraprim scandal. Those accusations could lead to Shkrelis lifetime ban from the pharmaceutical industry.

En route to trial, the Federal Trade Commission and multiple attorneys general asked U.S. District Judge Denise Cote to sanction Shkreli for destroying evidence. They asked the judge to effectively decide the cases major issues in their favor before a trial, seeking judicial findings that Shkreli was continuously involved in Vyera and Phoenixuss business from 2015 to present, communicated with Vyera executives about company business from prison, and engaged in the challenged conduct to restrain generic entry into the Daraprim market.

Refusing to go quite so far, Judge Cote made clear that she agreed with at least some of the regulators allegations about Shkrelis handling of the evidence.

The plaintiffs have shown that Shkreli has used a prison phone to discuss highly relevant company business and that he knew in doing so that those communications should have been but would not be preserved, the 11-page ruling states. Shkrelis use of the prison phone to discuss business development constitutes intentional spoliation and warrants sanctions.

The business communications at issue have to do with the company Vyera, the rebranded name of the company behind Shkrelis price hike of Daraprim, Turing Pharmaceuticals. Phoenixus is the parent company of Vyera. Shkreli founded the company.

Vyera executive Akeel Mithani testified that he communicated with Shkreli about business development from the end of 2018 through February 2019, while Shkreli was incarcerated inside a low-security prison in Allenwood, Pennsylvania.

Some of those communications took place over the encrypted messaging platform WhatsApp, Mithani testified.

Kevin Mulleady, an owner and former director of Vyera, produced two text messages that he received from a still-incarcerated Shkreli in October 2017, some two months after the reputed Pharma Bros conviction.

When asked during a deposition earlier this year whether he had a cell phone in prison, Shkreli invoked his Fifth Amendment right against self-incrimination, according to the ruling.

The plaintiffs have been prejudiced by Shkrelis conduct because they do not have access to messages about Vyera that Shkreli sent and received while in prison, Judge Cote found, opting for the lighter sanctions Shkreli proposed rather than what regulators requested.

In an exercise of discretion, however, this Court declines to impose the plaintiffs proposed sanctions, her ruling states. As a result, Shkrelis proposed sanction that he be precluded from introducing any argument or evidence contrary to the presumption that he communicated with Mr. Mulleady and Mr. Mithani about company business from prison is adopted.

Cote declined to find that Vyera fell short in failing to preserve Shkrelis messages by wiping his company-issued iPhone during a factory reset between 2016 and 2017, after regulators placed a preservation notice.

Although it is undisputed that the Shkreli phone was subject to a factory reset in or around 2016-2017, Vyera has represented that it automatically backs up employee messages to iCloud, Judge Cote found. No party has suggested that that back up would not include text messages Shkreli sent and received using the Shkreli Phone. Counsel for Vyera will be required to confirm that an appropriate search has been conducted for these messages and that any relevant communications have been produced.

Cote directed Vyera to file a letter stating whether it searched the companys iCloud backup to or from the Shkreli phone.

Shkrelis lawyer did not immediately respond to an email requesting comment.

Read the ruling below:

(Photo by Spencer Platt/Getty Images)

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Link:
Pharma Bro Martin Shkreli Gets a Slap on the Wrist for Using Contraband Phone to Discuss Pharma Business Behind Bars - Law & Crime

When I teach civil rights law, I always start the semester with a misleadingly straightforward hypothetical scenario. Imagine a police officer pulls over an unarmed driver for a broken taillight and eventually shoots and kills the driver. Did the officer break any criminal or civil rights laws? This exercise never fails to set off a fiery debate: Did the driver obey the officer? Why couldnt the cop have used a taser? Dont people have a right to not to be killed over a minor traffic infraction? And sooner or later, one student typically reminds the class of a fundamental point about America: But hes a police officer.

Think about that. But hes a police officer.

When cops, unlike average civilians, deploy brute force under certain circumstances, we excuse the violence as law and order. But when law enforcement officers abuse their authority, violating our rights, we have federal criminal civil rights law to hold them accountable.

Except we pretty much dont.

Section 242 of Title 18 of the federal codemakesit a crime for a public official acting in their official capacity to willfully deprive a person of their constitutional rights. Yet prosecutors rarely bring charges under the statute, averaging just41cases per year. The recent federal indictment of the Minneopolis police officers related to the killing of George Floyd is an exception that highlights just how infrequent such prosecutions are, even when they are clearly warranted.

Why? The answer boils down to a little-known 1945 Supreme CourtcasecalledScrews v. United States.

In that case, Sheriff Claude Screws of Baker County, Georgia, had arrested Robert Hall, a Black man, for allegedly stealing a tire. Screws and two other officers then drove Hall to the local courthouse, where they bludgeoned him while he was handcuffed with their fists and a blackjack. The officers then dragged Halls limp body from the courthouse to the jail and called an ambulance. Hall died within the hour.

Screws was charged and convicted under the law known today as 242. But he appealed. Screwss argument went something like this: because 242 is so poorly written, he couldnt have known that he was breaking it. And punishing him for a law that he couldnt have known he was breaking, his logic ran, violated his due process rights under the Fifth Amendment.

The Supreme Court agreed and overturnedScrewss conviction. To hear the justices tell it, the statute was indeed so vague that it had failed to give him fair warning about what he could and couldnt do. But rather than strike down 242, the Court decided instead to save the law from unconstitutionality, holding that to violate the law, a public official need willfully deprive a person of their constitutional rights.

If only curing 242s deficiencies had been so simple.

But Congress can fix it, and the Brennan Center has published areportlaying out a blueprint enabling lawmakers to do just that. And it is essential because there are so many places where a lack of local accountability allow police to act with impunity. The broad strokes are illustrated by our two main suggestions.

Start with 242s due process problem. Recall from theScrewscase that criminal defendants bear a right to know what conduct is illegal. Our first recommendation would take care of this by having Congress spell out what conduct is off limits. It can do this by including some of the most egregious criminal civil rights violations the Supreme Court has long understood as out-of-bounds excessive force, sexual misconduct, and deliberate indifference to the medical needs of a person in custody.

Turn now to 242s high standard-of-proof problem. Thanks to theScrewsopinion, prosecutors must establish beyond a reasonable doubt that a public official willfully deprived a person of their rights. But proving specific intent basically, establishing what a person was thinking when they acted is a difficult needle to thread. Hence prosecutors reluctance to bring 242 charges. Indeed, just look at what all it took for Derek Chauvins 242 indictment to happen: a chilling video capturing the barbaric plunder of George Floyds body that sparked a national racial awakening.

Our second recommendation would remedy this. Congress should lower 242s intent standard from willfully to knowingly or recklessly. No longer would a jury need to try to peer into a defendants mind as part of finding a defendant guilty.

By taking together our twin suggestions, Congress would make it easier to pursue and prove 242 violations. And that would signal that our Constitution cannot tolerate palpable misconduct and brutality. That the lives of those routinely subjected to state cruelty matter. That America can be better than this.

Read more:
How Congress Can Give Teeth to the Federal Law on Police Accountability - brennancenter.org

Why are police being trained to kill their fellow residents? How did ordinary people come to be the enemy? It seems traditional police have been displaced by a kind of military force where a candy bar, cellphone or raised hands can all get you killed. The more weapons police acquire, the more they opt to shoot first and call the ambulance or coroner later.

Have we forgotten Americans have the Bill of Rights, the constitutional amendments meant to protect U.S. citizens from government overreach? The Fourth Amendment is the right to be secure in our home, person and effects unless a warrant is issued. The Fifth Amendment is the right not to bear witness against ourselves. The Sixth Amendment is the right to a speedy trial with impartial jurors and a lawyer. The Eighth Amendment is no excessive bail or punishment. The 14th Amendment, though not in the Bill of Rights, says no person shall be deprived of "life, liberty, or property, without due process of law." Please look them up.

The job of peace officers is to arrest a suspect who is presumed innocent until proven guilty under U.S. laws. When police officers take on the added roles of judge, jury and executioner, the rule of law vanishes and injustice reigns. Lady justice is not only blind, she is also colorblind.

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Originally posted here:
Your Views: Police overstepping their roles too often - Gazettextra

While the details of the WTO patent waiver have not been determined (or more properly negotiated), it is important to consider the structure of the international trade regime in which the waiver will operate and the consequences of any agreement defining exactly what will be waived.

The GATT/TRIPS agreement is a treaty, which (of course) is an agreement between countries, and disputes and accommodations are between their governments. The extent to which a private company's patent or other IP rights are protected under the terms of these agreements depends on actions of these governments in enforcing them on the company's behalf. Thus, for protections like patents, a government can agree to "turn a blind eye" to infringement by companies in other countries (or other governments) by refusing to press the rightsholder's case before the WTO, to pressure the governments unilaterally (as in the Watch List and Special Watch List of the U.S. Trade Representative's Special 301 Report), or otherwise support a private company's private actions using an infringing country's legal system. Such "passive" actions (i.e., refusing to enforce rights in violating or "scofflaw" countries) requires very little affirmative action by a government. These are the types of de facto waivers that can be effective, for example, for patented drugs that can be produced by conventional drug production technology wherein description of an active pharmaceutical ingredient molecule.

The details of COVID vaccine production have been set out in various new sources (see Neuberg et al., "Exploring the Supply Chain of the Pfizer/BioNTech and Moderna COVID-19 Vaccines"; Weiss et al., "A COVID-19 Vaccine Life Cycle: From DNA to Doses," USA Today, Feb. 7, 2021; King, "Why Manufacturing Covid Vaccine to at Scale Is Hard," Chemistry World, Mar. 23, 2021; Cott et al., "How Pfizer Makes Its Covid-19 Vaccine," New York Times, April 28, 2021). But these are certainly not disclosed in the detail necessary for commercial production, and the complexities of production are illustrated in graphics from the Times article, wherein the DNA is prepared in Chesterfield, MO and shipped to Andover, MA for mRNA production; then the mRNA shipped back to Chesterfield or Kalamazoo, MI for packaging into the vaccine nanoparticles; and then sent back to Andover for testing before release. While some of this complexity may be company-specific, it also represents the different technological requirements for preparing an effective vaccine. It is unlikely that most of the countries in favor of the waiver (except India and South Africa) have the technological infrastructure for producing the vaccine. And the company in India, the Serum Institute ("the largest vaccine maker in the world"), having the greatest likelihood of being able to reproduce the vaccine if the waiver is put in place recently was forced to "hand over its vaccines to the [Indian] government," according to an article in the New York Times (Schmall et al., "India and Its Vaccine Maker Stumble over Their Pandemic Promises," May 9, 2021).

It is evident that, in the almost total absence of patents involved in COVID vaccine preparation, the disclosure needed to reproduce these vaccines (no matter how difficult that may be in practice) are protected by trade secrets. If the WTO imposes this waiver, the question will be whether the U.S. will compel disclosure of trade secret owned by U.S. companies, or have disclosed them to the extent such secrets are part of regulatory filings. Either action would constitute a "taking" under the Fifth Amendment ("Nor shall private property be taken for public use, without just compensation"); see Epstein et al., "The Fifth Amendment Takings Clause," Interactive Constitution: Common Interpretation. Seemingly simple and straightforward, almost every word in the clause is open to interpretation, none perhaps as much as determining what "just compensation" entails. It is likely that, should the government act peremptorily with regard to takings of trade secrets justified by any WTO waiver clause, the effect on trade secrets will carry the greatest consequences and be the cause of most controversy. Indeed, the prospects arising therefrom are likely some of the biggest impediments towards effectuating any waiver in a manner that could have any chance of achieving the stated goal of facilitating COVID vaccine production.

This prospect also raises the issue of how any such waiver will be implemented in the U.S. Treaties are not necessarily "self-executing" and need to become enforceable through an Act of Congress. The distinguishing feature of such treaties are that "provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing, and implementing legislation is required to give such provisions domestic legal effect." See Mulligan, "International Law and Agreements: Their Effect upon U.S. Law," Congressional Research Service 7-5700, Sep. 19, 2018. The necessity for Congress to act, although not having the heavy weight that entails approving treaties (i.e., a two-thirds majority vote in the Senate) nonetheless could be expected to face significant opposition should it be interpreted to permit the government to exercise a form of "eminent domain" over pharmaceutical companies' trade secrets. In this regard such an act could readily be characterized as "forced technology transfer" and even IP theft, should, for example, such trade secrets be capable of use to weaponize rather than immunize against viral infections.

The administration's public position raises the likelihood of an infringement on private property unprecedented in the U.S. It also has implications for other aspects of foreign policy; for example, at least some of the trade secrets belong to BioNTech, a German company. Germany has not agreed to the waiver, and should the U.S disclose BioNTech's trade secrets, no doubt Germany would have cause to seek redress against America. This is but one of the possible legal consequences that the recent capitulation to the purported global "kumbaya" of the WTO waiver is likely to create.

More complications will likely arise as the negotiations proceed. Provided the Administration is properly advised and the waiver properly limited (e.g., to patents) these and other deleterious consequences may be avoided. In view of the possibility of serious liability arising by improvident acquiescence to generally uninformed calls for a broad waiver, it might not be a bad idea for all those involved in innovation (universities, technology transfer offices, pharmaceutical companies, patent lawyers, and economists) counter these opinions with the facts and make their viewpoints known and voices heard.

Continue reading here:
If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra

Listen to SocioEconomic Research Prof. Oren M. Levin-Waldmans discussion of his most recent essay, The Argument that Labor Shortages are Due to Additional Unemployment Benefits isOverly Simplistic this Wednesday, May 19, 2021. He can be heard every second Wednesday morning from 10-11am EST on the Westchester On the Level broadcast. The broadcast is heard Live or On Demand by clicking onto the hyperlink noted http://tobtr.com/s/11941110 Please note that the hyperlink changes every second week and is specific to the essay discussed. Listeners are welcome to share their inquiry with respect to the topic of the subject discussed. The call-in number to the broadcast is 1-347-205-9201.

NEWARK, NJ May 19, 2021 The latest jobs report is weak noting that there are labor shortages, and that employers are having a hard time filling jobs. Of course the typical conservative response has been that because the federal government has extended Unemployment Insurance (UI) benefits and have added to the payments an additional supplemental benefit, unemployed workers have no incentive to return to work. Although this argument is nothing new and reflects the standard reservation wage theory, it is also overly simplistic.

The purpose of UI was to provide replacement income so that unemployed workers would have time and space to match their skills and abilities with those jobs that are available. In the past, especially in a manufacturing based economy, employers knowing that their workers could receive UI benefits, had little incentive to maintain their workforces during a downturn. Because most states finance UI through ratables, those firms with a greater history of layoffs can be expected to pay higher premiums. Still, employers never paid the full costs of laying their workers, and workers have never received sufficient replacement income to support themselves.

Although many countries around the world provide benefits between 75 to 80 percent in lost wages, most states barely reach 50 percent, and even then there is a maximum so that those on the higher end are effectively getting 20- 30 percent in replacement income. What, then, is the incentive not to work? Some studies in the past have suggested that UI generally lengthens unemployment spells as workers will typically wait until their benefits are about to run out before they seriously start looking for jobs. At best, ones unemployment is prolonged by a couple of weeks, but it is hard to believe that most people would turn down a job if their UI replacement income is only a fraction of what their market income would be from a job.

The reservation wage holds that there is a wage beneath which one will not accept a job. This reservation wage is usually the last wage received prior to unemployment. Most state UI programs require unemployed workers to accept suitable jobs that are offered. One is not required to accept a job that pays more than 10 percent less, but suitable in many cases will be defined as a job paying up to 10 percent less. Therefore, proponents of the reservation wage theory maintain that UI generally speaking, and excluding any type of supplemental payments, similarly prolongs unemployment.

Now we can address the current labor market where the unemployment was caused by government mandated shutdowns in response to a pandemic. A policy response preferable to the various COVID relief packages would have been to not send every worker, regardless of whether they lost their jobs, a stimulus check. Rather those locked out of their jobs and those business owners forced to close should have received 100 percent compensation in lines with the Constitutions Fifth Amendment Takings clause.

Both business owners property and workers property in their labor was effectively seized by the state without just compensation. Yes, the initial CARES Act, provided loans to businesses which would be forgiven if they maintained their workforces. Perhaps if shutdowns only lasted a few weeks, as we were initially told in order to flatten the curve, this would have been enough. But shutdowns ended up lasting for months, and even businesses that could reopen could only do so at in many cases 30 percent capacity. Given that, how likely is it that these workers would have been called back?

To simply blame labor shortages on supplemental benefits misses much of what has been happening, as well as it reveals many hardships particularly for low-wage workers. Workers with children but with no place to put their kids are not likely to return to work. Most of the countys schools have been operating remotely, thereby forcing workers to stay home with their children.

Still, the question remains: Are current labor shortages a function of generous UI payments, especially the supplemental payments? It is possible particularly at the low end of wage scale, but as one moves up on the wage scale, it is highly unlikely. Any number of workers could still be afraid to return to work because the nature of their jobs is such that they will have high exposure to other people (many of whom have still not been vaccinated) and therefore they are at a greater risk of contracting the virus themselves.

Although it is possible that these benefits, particularly at the low end of the wage distribution may be a factor in these labor shortages, it is most likely not the determining factor. And yet, it begs another question: if employers really believe that workers are forsaking work just to get more benefits, then why not respond according to the dictates of the marketplace? The laws of supply and demand still apply here. Employers seeking workers amid labor shortages can always offer higher wages.

Perhaps that is the rub. Employers dont really want to pay workers more because it will increase their costs and/or eat into their profits. It is always easier to blame workers as they have done for years. In the face of global competition, businesses have often accused workers of wage rigidity, i.e. not being flexible in their wage demands.

Is there no room for compromise? In all likelihood these defined supplemental payments were offered because it was easier for state labor departments to offer. The policy should have been designed to ensure workers would get up to 80 percent, and maybe even 100 percent of their wages, but that would have been much more complicated, as each workers record would have to be searched and evaluated on its own merits and according to a formula. This would no doubt result in workers experiencing delays in getting anything.

The UI system does need a complete overhaul. States should be offering higher reimbursement rates, and they should be making it more costly for employers to lay their workers off. And yet, since these extended benefits are temporary, states concerned about their effects could always tweak them. Why not require that workers accept jobs that are offered with the state paying them the difference between their employers wages and their current benefits? If jobs remain unfilled, we will know that this is not the main reason. Moreover, it enables employers to continue offering lower wages.

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Author of Restoring the Middle Class Through Wage Policy: Arguments for a Middle Class

https://www.palgrave.com/gp/book/9783319744476;

Understanding Public Policy in the United.States.

https://tophat.com/marketplace/social-science/political-science/textbooks/understanding-public-policy-in-the-united-states-oren-levin-waldman/3473

The Minimum Wage: A Reference Handbook

https://www.abc-clio.com/ABC-CLIOCorporate/SearchResults.aspx?type=a

Wage Policy, Income Distribution and Democratic Theory

http://www.routledge.com/books/details/9780415779715/#reviews

The Case of the Minimum Wage: Competing Policy Models

https://www.sunypress.edu/Searchadv.aspx?=Oren+M.+Levin-Waldman&txtISBNSearch=&txtKeyword_summary_or_toc=&txtKeyword_subject=

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BIOGRAPHY

Oren M. Levin-Waldman is faculty member in the School of Public Affairs and Administration at Rutgers University-Newark, and Socioeconomic Research Scholar at Global Institute for Sustainable Prosperity Research.

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Learn more at the professors Website: https://www.econlabor.com/. Direct email to olevinwaldman@gmail.com

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Oren M. Levin-Waldman, Ph.D

https://www.econlabor.com/

Office: (914) 629-6351

Excerpt from:
The Argument that Labor Shortages are Due to Additional Unemployment Benefits is Overly Simplistic By OREN M. LEVIN-WALDMAN - Yonkers Tribune.