Resurfacing The Infrastructure Bonds Measure — From As Early As 2012 — For Tax-Advantaged Repatriation Of Overseas Parked Corporate Cash…

February 12, 2017 - Leave a Response

On an otherwise quiet, luminous and clear early Sunday morning, we will remind all our readers that we long thought, and now think, this measure makes solid sense.

We have referred to this in the past as “the Colorado compromise” bill. That’s one of our backgrounders on it. It is believed that if enacted, it would create a path for some of the estimated $1.8 trillion of overseas earnings to return to our shores and further stimulate our economy while ensuring high quality American jobs will be created in the process.

Specifically, then:

. . . .SEC. 966. Foreign earnings exclusion for purchase of infrastructure bonds.

(a) Exclusion. — In the case of a corporation which is a United States shareholder and for which the election under this section is in effect for the taxable year, gross income does not include an amount equal to the qualified cash dividend amount.

mrk-aapl-euro-2017(b) Qualified cash dividend amount.—For purposes of this section, the term ‘qualified cash dividend amount’ means an amount of the cash dividends which are received during a taxable year by such shareholder from controlled foreign corporations equal to—

(1) the multiplier determined under section 2(d)(5) of the Partnership to Build America Act of 2015 for such shareholder, multiplied by

(2) the face amount of qualified infrastructure bonds acquired at its original issue (directly or through an underwriter) by such shareholder. . . .

Essentially a very good (but candidly — as so many are — imperfect) idea. Now, will 45 have the vision to support it? I am uncertain — but Merck is approaching $82 billion in parked overseas cash, now. [Apple’s euro-based horde is multiples larger than Merck’s — or Pfizer’s.] So the time is ripe, after 45’s meetings with big pharma — and Mr. Frazier — last week. Certainly repatriation was discussed.


Up Next, Out West — In Seattle’s Federal District Courthouse — A Busy Monday Ahead.

February 11, 2017 - Leave a Response

life-jrobart-trump-2-2017I think this is an exclusive — so please credit it.

Judge Robart has asked for genuinely short briefs (heh!) from each side, on whether the Ninth Circuit decision of Thursday should be treated as having converted his court’s TRO ruling into a preliminary injunction ruling, such that no additional work would be needed at the trial court level, for the able judge to promptly rule on a preliminary injunction. He’s given the parties until Monday to weigh in, with an eight page limit.

. . . .MINUTE ORDER by Judge James L. Robart

At Defendants’ request, the court held a telephone conference concerning the Order Regarding the State of Washington’s February 9, 2017, Letter (“Order”). . . .

During the telephone conference, Defendants asked the court for additional time to respond to the court’s Order. The court heard from counsel for both Plaintiffs and Defendants on this issue.

The court GRANTS Defendants’ request and MODIFIES its Order as follows:

(1) Plaintiffs and Defendants shall each file a separate memorandum no later than 12:00 p.m., Pacific Standard Time (“PST”) on Monday, February 13, 2017.

(2) Each side’s memorandum shall discuss whether the Ninth Circuit has construed the court’s temporary restraining order (“TRO”) (TRO (Dkt. # [52])) as a preliminary injunction, such that additional briefing and possible evidence on a motion for preliminary injunction is no longer required in the district court, see Washington v. Trump, No. 17-35105, slip op. at 7-8, Dkt. # 134 (9th Cir. 2017) (“[W]e believe. . . that the TRO should be considered to have the qualities of a reviewable preliminary injunction.”); or whether the parties should submit additional briefing and evidence in the district court concerning the issue of a preliminary injunction, see Fed. R. Civ. P. 65(b)(3).

(3) The parties shall limit the length of their memoranda to eight pages.

(4) The court RESCHEDULES the telephonic hearing previously set at 11:00 a.m., PST, on Monday, February 13, 2017 (see Order at 2), to 3:00 p.m., PST, on Monday, February 13, 2017. . . .

Now you know. My take? He is likely to enter a preliminary injunction (with nation-wide effect) by late Tuesday — unless Mr. Trump signs a now threatened new order, on Monday — and the parties agree that this litigation is to be stayed (with the TRO intact, indefinitely — while the challenges to 45’s forthcoming new order are litigated). Now you know — with more celestial events afoot this evening — and a sweet baby-girl, in tow, for a sleep-over. . . . smile. . . .



Not Quite O/T: Weekend Fare — The Infantile “Logic” Of A Sitting President Edition, On Immigration

February 11, 2017 - Leave a Response

life-no-trump-02-11-2017Um. . . Nope. I can’t hold my tongue. I too shall #persist. Nor shall I lay rest to my keyboard; I shall #resist.

This morning, 45 tweeted a pure non-sequitur, because he read it in the Washington Times (a far right rag — I’ll provide no link — because there are serious problems with the rag’s calculations). But let us play along — let’s pretend the claim is fully-verifiable. Even in that fake news world — danger should not be presumed.

Mr. Trump is apparently blissfully unaware that many hundreds of thousands of regular, law-abiding people (scientists, engineers, teachers, translators and students) from these seven countries have jobs, class-room work, and families here — and they are concerned that he will “re-ban” them all, once again — as early as Monday. So they are coming here, in droves. There is little doubt that the vast majority are law abiding. But he resorts to the most odious and pernicious bigotry — in his fear-mongering tweets, this morning. Here is his 140 odd characters — of excrement:

. . . .Our legal system is broken! “77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries.” (WT) SO DANGEROUS!. . . .

Mr. Trump labels entire countries of origin “suspect” now. It apparently hasn’t dawned on him that statistically we each have a greater risk of being shot to death by a TODDLER, with a hand-gun, in present-day America (thanks, NRA!) — than being killed in a foreign sourced terror attack.

So — do bring on your shiny, newly revamped order on Monday, sir. We will see it slapped down, in the courts, as well. This is what the peoples’ government — by checks and balances — looks like, Mr. President. 

Get used to it: now that you’ve openly and repeatedly articulated a prohibited motive for all/any of your “immigration” orders, the Judiciary will find against those same orders, on Constitutional grounds (Amendments One, Five, and Fourteen — to be precise).



A New Wrinkle In The Ninth Circuit: Exclusive Content. Must Credit.

February 10, 2017 - Leave a Response

life-geo-washington-1785-ninth-cir-arg-2017It seems one of the other able appellate jurists has requested a vote of the 29 judges be taken — on whether to hold an en banc rehearing of the Trump stay request. [It is highly unlikely that enough “rehearing” votes can be mustered to carry that notion — a majority of 29, or 15 or more.] Even so, the parties have been ordered tonight to submit no more than 14,000 words each, on whether the case should be reheard en banc. Wild.

. . . .THOMAS, Chief Judge and En Banc Coordinator:

A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16.

The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3). . . .

An en banc hearing would involve more than 20 judges sitting at once. Is this more sand in 45’s gears? I think so. And the White House tonight is saying it may drop its Ninth Circuit appeal altogether. The RNC is saying the White House may not. Nutty, but my experienced take is that the Muslim Ban. . . is no more.



I’m Tardy With This Item — But Merck Spent $1.375 Million on Lobbying, In Q4 2016. I Simply Forgot To Look.

February 10, 2017 - Leave a Response

It’s all been public on the Senate’s website since late January 2017 — but my mind’s been. . . elsewhere. This represents a lower quarterly spend, compared to prior years’ Q4 spending — due to previously-discussed presidential election year political cycles.

We see this about every four years — and for the full year, Merck spent just over $8 million, while Pfizer spent slightly more than $13 million for the full year. Here is what Merck’s Q4 2016 money was spent on:

. . . .340B (no specific bill), Hepatitis C (general education; no specific bill), Human papilloma virus and vaccine policies (general education; first dollar coverage; preventative services), shingles vaccine policies (general education), antimicrobial resistance (general education), biosimilars (no specific bill), 21st Century Cures (H.R.6), cost and value of medicines (no specific bill), women’s health (general education), Prescription Drug User Fee Act (PDUFA; general education), Affordable Care Act, general pharmaceutical issues (transparency, formulary design, prescription drug coverage). . . .

Comprehensive tax reform (no specific bill), House Republican tax blueprint, international tax proposals (no specific bill), orphan drug legislation (HR 3678). . . .

Medicare Part D (general education, no specific bill), changes to low-income subsidy structure in Medicare Part D (general education, no specific bill), H.R. 5122 (Centers for Medicare and Medicaid Innovation Part B demo), Independent Payment Advisory Board (general education, no specific bill), Medicare Part B (general education); Medicaid (no specific bill). . . .

[Ed. Note — new this quarter:] FMD vaccine bank. . . .

H.R. 2028 (continuing resolution to fund the federal government). . . .

[Candidly, I’m not sure what “FMD vaccine bank” efforts might refer to. . . will look into that. Possibly “future medical disasters”? Dunno. Nope. “FMD” vaccine banking is foot and mouth disease — in farm animals. Hmmm. I thought Merck had exited animal health(?). . . . I guess we still need a federal firewall against human contagion paths. Odd.]

This Q4 Merck spend compares with $2.8 million by Pfizer, in the same Q4 period. So Ian C. Read spent out of proportion to Pfizer’s size — compared to Kenilworth’s size. It seems some times, the best course is to say nothing at all. . . . Full moon, lunar eclipse and comet’s fly-by tonight, if my mood improves, and the skies clear here. . . .


Over Prior Two Years, Vanguard Has Upped Its Merck Position Rather Appreciably… At 6.7%, Now.

February 10, 2017 - Leave a Response

mrk-vanguard-up-2-2017As the largest holders report their year end positions, we note that the well-respected Vanguard Group of affiliated funds has steadily increased its Merck bet, over the last few years — from 5.4 per cent (at the end of 2014) of all Merck’s outstandings, to 6.0 per cent, at 2015 year-end — and now, up to 6.7 per cent, at year end 2016:


184,729,642 Shares (6.70%). . . .

[And, confidential to 45 — your lawyers are citing a 1951 statute, that has been amended in 1965, without taking into account the 1965 amendment. . . that is why you are losing, and will continue to lose — even at the Supremes (not because the Ninth Circuit, or any other federal court — is “political“).

Silly Cheeto-monster — to parse the law, one needs to be. . . at least minimally sentient.] Onward, to a rather somber family weekend.


Meanwhile, In Brooklyn… 45 Is Likely To Lose. Again. His Brief Is Due, At High Noon Eastern, Tomorrow.

February 9, 2017 - Leave a Response

life-brooklyn-no-ban-stay-2017The very able trial level federal jurist in New York’s Eastern District (sitting in Brooklyn), Judge Carol Bagley Amon — just endorsed the parties’ expedited briefing schedule.

In Brooklyn, the posture of the Muslim Ban is that the enforcement of 45’s executive order has been stayed, until the court can be briefed and rule. That stay would expire on its own by February 21, 2017 — but now that the nationwide TRO entered in Seattle will continue until either the Supremes reject an appeal by Mr. Trump, or the trial level judge rules on a preliminary injunction, there is really no danger — if February 21 comes and goes, for the “banned people”.

Of course, 45 is very focused on trying to remove this stay — but again, that’s likely a loser — based on the Ninth Circuit’s unanimous opinion of this evening. Here’s the East Coast schedule then:

. . . .(1) Defendants will file their brief in response to Plaintiffs’ Emergency Motion for a Stay of Removal, as well as their motion to dismiss, by noon, February 10, 2017;

(2) Plaintiffs will file their responsive brief on both motions by February 16, 2017; and

(3) Defendants will file their reply by February 19, 2017. . . .

life-ninth-circ-ahmed-no-ban-02-06-17 [Separately, it looks more and more likely now, based on his raging ALL CAPS tweets tonight (charming!), that 45 will order the DoJ to appeal directly to the Supremes, on the Ninth Circuit decision. So much so, that the State of Washington sought — and was apparently granted — a waiver from filing its trial level brief, on the preliminary injunction, tonight.] But that Supremes gambit is a pure loser, for 45, in any event, IMHO. Now you know.

Here’s to hoping that copper colored, twisty silence isn’t the new normal. . . smile. . . .


[U] After Increasing Its Stake During 2015, Wellington Has Lightened Its Merck Position During 2016… But Not To worry.

February 9, 2017 - Leave a Response

mrk-div-11-22-2016Okay — it makes good sense to my disciplined investing eye that Wellington (a vast group of affiliated institutional holders) might have taken some gains off the table in 2016, as to its now decade old investment in Merck (and previously, in legacy Schering-Plough).

So again, I wouldn’t read too much of anything into this latest dip. Here is the full SEC filing, on Schedule 13G, from this morning:


124,191,831 Shares (4.5%). . .

[Separately, and in an entirely unremarkable fashion, board of director member Russo yesterday exercised and sold about $147,000 worth (pre-tax) of long-vested options.] Now you know. Awaiting either more gray smoke, or white smoke — from the chimney of the Ninth Circuit, now. . . smile.

UPDATED — 02.09.17 @ 6 PM EST: Hah! White smoke it is!

As I said it would, the Ninth Circuit has ruled against Mr. Trump’s appeal. By its terms, the Unanimous Opinion sends the case back to Seattle, where a briefing schedule started tonight, on a preliminary injunction. That preliminary injunction would extend the TRO, and be entered in favor of the “banned people” in Mr. trump’s executive order. I suppose Mr. Trump could (right now, or promptly) file a writ of mandamus to the US Supreme Court, but that would be (another) fools’ errand, in my view.

So it is onward, to the trial court level proceedings on a preliminary injunction — per the [prior post’s] schedule. Told ‘ya.

Quoting the Ninth Circuit now: “. . .Whatever role the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)


[U] Newly-Revised Briefing Schedule, For The Preliminary Injunction, At Washington’s Federal Trial Court Level

February 8, 2017 - One Response

life-ninth-circ-ahmed-no-ban-02-06-17UPDATED — 02.09.17 @ 6 PM EST: As I said, the Ninth Circuit has ruled against Mr. Trump’s appeal. By its terms, the Unanimous Opinion sends the case back to Seattle, where a briefing schedule started tonight (below, in blue), on a preliminary injunction. That preliminary injunction would extend the TRO, and be entered in favor of the “banned people” in Mr. trump’s executive order. I suppose Mr. Trump could (right now, or promptly) file a writ of mandamus to the US Supreme Court, but that would be (another) fools’ errand, in my view.

So it is onward, to the trial court level proceedings on a preliminary injunction — per the below schedule. Told ‘ya.

Quoting the Ninth Circuit now: “. . .Whatever role the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)

[End, updated portion.]

So, first filing in Seattle tomorrow, IF. . . If the Ninth Circuit Does NOT enter a reasoned opinion “on the merits” against Mr. Trump’s position, and if Mr. Trump doesn’t then take an immediate appeal to the Supremes — in short, if this case is treated like any other federal case, and the TRO is left standing, as the latest appeal by Mr. Trump was prematurely improper at this juncture — then, back in Seattle, this will be the briefing schedule on a preliminary injunction — as ordered by the very capable Judge Robarts yesterday (in blue below).

I suppose there is a reasonably good chance (based on the audio feed questions) that the Ninth Circuit will position this for an immediate appeal to the Supremes — given the truly historic nature of this clash, between the long established right, and responsibility (ever since Marbury v. Madison) of federal judicial review, on the one hand, and the claims of completely untethered executive authority (even putatively rising above the proscriptions in the Establishment Clause of our First Amendment), by this particular 45th President.


The plaintiffs shall file their motion for preliminary injunction no later than 11:59pm Pacific Standard Time on 2/9/17;

The defendants shall file their opposition to plaintiffs’ motion no later than 11:59pm PST on 2/15/17;

The plaintiffs to file their reply in support of their motion no later than 11:59pm PST on 2/17/17.

/s/ Judge James L. Robart. (RS) Modified on 2/7/2017 to cc Ninth Circuit. . . .

I cannot find any right wing blogger (responsible, or otherwise), with a law degree — that is predicting a win for Mr. Trump now — after yesterday’s evisceration before the Ninth Circuit panel — heard live by over 175,000 people, apparently — breaking all prior records, in the circuit. So — I expect an order from the Ninth Circuit tonight, or tomorrow. Then it is either on to the Supremes, or back to the trial court in Seattle — but mark my words, the TRO will remain in place.

Now you know. Hopping a plane in a few. Be excellent to one another. . . .


[U] The Oral Argument/Hearing In San Francisco, At The Ninth Circuit — Streaming Details @ 6 PM EST

February 7, 2017 - Leave a Response

life-geo-washington-1785-ninth-cir-arg-2017 UPDATED @ 6 PM EST: I am listening into the Ninth Circuit’s feed — and the US DoJ is claiming that the President’s EO is “unreviewable.” The three judge panel has jumped in with very hostile questioning — the panel is telling the lawyer for Mr. Trump that cannot be. So the Ninth Circuit has already said that the DoJ appeal is premature on TRO grounds — but the Ninth Circuit is now peppering the DoJ “on the merits” — suggesting that it cannot be true that the judicial branch is not allowed to review Presidential Executive Orders.

Thus this is going quite badly for Mr. Trump. I think he’s already lost any chance of lifting the TRO at this point. One panel member, Judge Michelle Friedland, just suggested she thinks the EO commits a violation of the Establishment Clause, and thus is facially invalid. Ouch — for Mr. Trump. [End, updated portion.] As promised. . . then:

I have but a moment now to dash this off — thus, here is a link, to the live-stream of the Ninth Circuit hearing this afternoon — so listen in, for history is being made here — in real time.

. . . .The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment. . . .

— George Washington (1782)

. . . .[L]et the poor, the needy and oppressed of the Earth, and those who want Land, resort to the fertile plains of our western country, the second land of Promise, and there dwell in peace, fulfilling the first and great commandment. . . .

— George Washington (1785)

. . . .I had always hoped that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong. . . .

— George Washington (1788)

Busy day ahead, out west here. . . . smile.