Might Martin Shkreli Be “Catching”… A New Criminal Case?

UPDATED @ Noon — 08.18.2020: The able counsel for the FTC just offered this — a few moments ago: “…I write on behalf of Plaintiffs to notify Your Honor that we intend to respond to Defendant Martin Shkreli’s opposition (ECF 227) to our letter motion (ECF 224) seeking a Court ruling that his monitored and recorded prison communications are not privileged. In his opposition, Mr. Shkreli failed to explain the basis for his privilege claims over these communications and instead raised other issues and grievances, including that the Privacy Act might bar our collection of these communications from the Federal Bureau of Prisons — a position he has never raised with us. We intend to respond by tomorrow, August 19, and respectfully request that the Court take no action until we have an opportunity to submit our response….” [End, update.]

[Backgrounder, here.] I still think Martin loses, here — but his argument may be just a little closer than I initially surmised, given the below. [And all of that is assuming this was and is always / remains… a purely civil matter.] It is fascinating, though that because of the likely very fertile evidence trove this represents, as to Vyera / Phoenixus — it is the very-able (higher priced) Duane Morris lawyers handling this, rather than Martin’s own lower priced small law firm.

In many ways, the company / entity defendants probably either “live or die” here, depending on whether the FTC has access to all of Martin’s emails, from jail, to prove its case — as affirmative evidence. He is well-known to be quite… cavalier in his writing, and given that the WSJ has reported his running of Vyera / Phoenixus from FCI Ft. Dix, by cellie — losing on this, could well mean losing the whole case, for the company defendants.

There are lots of other documents here filed, tonight — and I will address them tomorrow.

For now, I’ll simply say that while it would seem slightly unusual… that another agency might automatically be granted such access, in a purely civil matter (in view of the Privacy Act concerns below) — to Mr. Shkreli’s BoP-read and reviewed communiques… if the FTC was looking at bringing any sort of a criminal antitrust case, the sharing would be in my opinion — by the book, 100 per cent allowed.

And it may yet turn out that the FTC was — or even… is — looking at a criminal charge, to ultimately be referred… to DoJ. We shall see. [But such a development would be extremely newsworthy, and unfortunate — for Martin’s chances of any release by late 2024.]

In any event, here is that main letter — and a bit:

“…On behalf of Martin Shkreli, I write in response to the letter submitted by the FTC on August 12 (ECF 224). The FTC portrays the parties’ dispute as relating solely to whether Mr. Shkreli’s communications with his attorneys are privileged. But from the outset of the dispute, we have raised as a threshold issue whether the BOP’s disclosure to the FTC of apparently all of Mr. Shkreli’s TRULINCS emails—over 20,000 pages of his communications from prison with his attorneys, family members and friends over several years—and their production by the FTC in this litigation is appropriate. Despite our repeated efforts to engage with the FTC on this issue, the agency has engaged only on the attorney-client communications — an undoubtedly important part, but not the only part, of the parties’ dispute. The FTC’s letter to the Court short-circuited our attempt to discover the facts surrounding the FTC’s collection of these emails, both prior to and after the filing of its complaint in this case (including its ongoing collection of such emails), and its production of the emails in this litigation. We are concerned that the FTC’s collections may violate the Privacy Act (and therefore the FTC may not be entitled to any of the documents, including the attorney-client communications), and that the post-complaint collections may violate FRCP Rules 26 and 45. For this reason, Mr. Shkreli asks the Court to decline to rule on the FTC’s request at this time and allow him to continue to investigate this threshold issue….”

As I say — I’ll get back to this mañana — but now I must sleep… many miles (figuratively) yet to traverse, tomorrow in my own court cases — on pro bono asylum matters.

Out, grinning….

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