[U] A “Scorching” Monday Morning Missive — From Cooley, About Mr. Shkreli…

[Later updates here, and here.] This is turning into a regular pot-boiler: Retrophin (through Cooley) asserts that Mr. Shkreli has interfered, and is likely to continue to intentionally interfere — with Retrophin’s commercial relationships — on its existing drug products.

It comes up (not surprisingly) in the context of the arguments about how much of the legacy Retrophin documents now held by Katten may be seen by Mr. Shkreli. The present suggestion from Cooley is that only Mr. Brafman be allowed — i.e., “attorneys’ eyes only” — to see these documents (at least those which cover current Retrophin therapeutic products), and not Mr. Shkreli himself. This limitation is warranted, and due — Cooley argues — to Mr. Shkreli’s prior abuse of his access to Retrophin documents. Fascinating — and from where I sit — that’s entirely believable. Here’s the bit — from this morning’s four page PDF filing:

. . . .Retrophin requests that the Court limit Mr. Shkreli’s access to communications relating to Retrophin’s existing commercial products: Sparsentan, Thiola, Chenodal, and Cholbam, because the Company is concerned that Mr. Shkreli will use the information to interfere with the Company’s ongoing business relationships, as he has in the past. Katten’s communications with Mr. Shkreli concerning these commercial products have no relationship to this case and indisputably relate to Retrophin, not MSMB or Mr. Shkreli personally.

Retrophin is not limiting Mr. Shkreli’s access to communications relating to these products. Retrophin is only asking that Mr. Shkreli’s counsel review them on an attorneys-eyes only basis to confirm that they relate to Retrophin, not MSMB or Mr. Shkreli, and should, therefore, be returned to Retrophin under paragraph (3)(c).

Mr. Shkreli’s counsel can isolate these documents by applying the following search terms to the documents they receive from Katten: Sparsentan (Sparsentan, Ligand); Thiola (Thiola, Mission, Biosolutia, Alamo, and DLSS); Chenodal (Chenodal, Manchester, and Nexgen), and Cholbam (Cholbam, Asklepion). Since the purpose of Mr. Shkreli’s review is to segregate the communications in which Katten was providing legal services to MSMB or Mr. Shkreli personally rather than Retrophin, limiting the review of communications responsive to those search terms will not prejudice Mr. Shkreli in the least, and will probably expedite the review provided for in paragraph (3)(c).

Retrophin also requests that it have the opportunity to challenge communications that Mr. Shkreli asserts were for the purpose of providing legal advice to MSMB or to him personally. Retrophin is concerned that Mr. Shkreli will be able to unilaterally determine that certain communications are covered by a privilege that he controls, when Retrophin would take a different position on those communications. In the case of communications that Shkreli contends are covered by his personal privilege, Retrophin respect fully suggests that Mr. Shkreli produce those to Retrophin for review since they are no longer covered by any privilege as a result of Mr. Shkreli’s waiver. In the case of communications that Mr. Shkreli contends are covered by MSMB’s privilege, Retrophin respectfully requests that Mr. Shkreli log them (unless Mr. Biestek waives the privilege over them). . . .

Fascinating — and sadly hilarious, as to Mr. Shkreli’s business life. Is there no bridge on the planet Mr. Shkreli has not previously. . . burned?

Now you know.

नमस्ते

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