[U] Martin Shkreli — Nearing Another Big FTC Antitrust Loss — In Manhattan’s US District Courts… With More Jail Time, Eventually?

At another property, this is the current headline: “Late Night Fireworks: More Likely, Later Today — Via FTC, And Martin’s Opposition — As To Two Attorneys’ Privilege Logs“. . .

Updated @ 6 PM EDT: The able Judge Cote’s latest order doesn’t bode well, for Martin — but still no Duane Morris letter, in reply — just yet:

“. . .It is hereby ORDERED that where a party believes it must redact material or attach documents because they have received a “confidential” or “highly confidential” designation by another participant in the litigation pursuant to a protective order, where feasible, the party shall contact the designator to learn whether an application to redact or seal is necessary, and, if it is, the reasons that should be conveyed to the Court to support such application.

IT IS FURTHER ORDERED that by Monday, September 21, defendant Shkreli shall explain why it is necessary to seal exhibits B, C, D, F, and G.

IT IS FURTHER ORDERED that unless a party provides sufficient justification by Monday, September 21, for the redaction of a passage or passages from the September 17 letter, the Court will require that letter to be filed without any redactions. (Signed by Judge Denise L. Cote on 9/16/2020). . . .” End updated portion.

Here is the full post.

You may be certain that the Duane Morris firm will have more to say, later today.

The firm has promised it will, to the able USDC Judge Denise Cote, in Manhattan. But overnight, the FTC staff attorneys filed this letter (most salient bits imaged, at right), reducing the number of privilege logs it needs — from seven or eight, to only two. [Backgrounder, here.]

In sum, the FTC is now convinced that only two of Martin’s attorneys (names redacted) provided all the relevant advice related to the Daraprim® matters, insofar as FTC jurisdiction over unfair trade and anti-competitive practices might be concerned. And FTC lawyers continue to argue none of the materials should be privileged, but are allowing Martin an opportunity to exclude some, if Judge Cote so rules. Of course, it is likely that Vyera / Phoenixus and Martin all lose outright, if all these communications are admitted into evidence. So this is effectively the whole ballgame, right here. [With two down, bottom of the ninth, bases loaded, score tied, count at 3-2 — and the FTC is foulin’ all kinds of junk off — deep in the pitch count. . . looking for just one. . . hanging curve, from Team Marty’s pitcher, sweating there — on the mound. Smile. . . for a “goodbye, Mr. Spaulding”. . . .]

So it is only those two the FTC seeks to read up on, out of the FOIA materials from BoP, and thus needs Martin’s team to label and exclude pure legal advice matters — from viewing — even if they took place over monitored lines.

We will update, once the Duane Morris reply is filed.

Onward, on a cool, sun-dappled fall Friday — for a mountain bike ride now. Be excellent to one another.


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