Author: TSA Press

A legal case involving a Department of Health and Human Services rule adopted in May that requires television ads to include drugs’ list prices is likely to find its way to the Supreme Court after a judge ruled against the Trump administration Monday, a legal expert said. That could potentially set up a clash over how courts defer to regulatory agencies.

Judge Amit Mehta of the District Court for the District of Columbia ruled Monday that HHS lacked the authority to enact the rule under the Social Security Act. “Neither the Act’s text, structure, nor context evince an intent by Congress to empower HHS to issue a rule that compels drug manufacturers to disclose list prices,” he wrote.

The administration issued the rule requiring drugmakers to list the wholesale acquisition cost, or WAC, of drugs in television ads. The move drew opposition from the industry, which expressed concern that it would lead to consumer confusion and sticker shock. That led to a lawsuit filed last month by Amgen, Eli Lilly & Co., Merck & Co. and the Association of National Advertisers.

“The battle is on,” University of California Hastings law professor Robin Feldman said in a phone interview. “No one doubted that the pharmaceutical industry would fight the administration’s proposal to put drug costs in ads, and pharma has won the first round.”

Mehta emphasized that he was not calling into question HHS’ motives in adopting the law or expressing any view on the wisdom of requiring drug companies to disclose prices. He even acknowledged the possibility that such a rule could be effective in halting rising prescription drug costs. “But no matter how vexing the problem of spiraling drug costs may be, HHS cannot do more than what Congress has authorized,” he wrote. “The responsibility rests with Congress to act in the first instance.”

While Mehta ruled that HHS lacked authority to issue the rule, he did not rule on the plaintiffs’ other objection, that it constituted compelled speech and thus violated the First Amendment. While expecting that the courts would have to address that issue, Feldman said the industry will have a difficult time arguing that the HHS rule is about core political speech.

“First Amendment protections are far weaker outside that traditional area,” she said. “With compelled speech, we usually worry about government trying to force people to make a political statement – revealing price information is a bit far away from that.”

Feldman said the case is likely to go to the United States Court of Appeals for the District of Columbia Circuit and ultimately go before the Supreme Court.

The case, she said, involves deference to agencies, which is Justice Stephen Breyer’s area of expertise. It also involves the landmark 1984 case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which gave rise to the administrative law doctrine known as “Chevron deference.” The doctrine calls for courts to defer to regulatory agencies’ interpretation of statutes. Justice Neil Gorsuch has written opinions against Chevron deference, such as when he sat on the U.S. Court of Appeals for the Tenth Circuit.

In other words, the ruling sets up a potential clash of views on agency deference, Feldman said. “I think this case will be irresistible to the Supreme Court.”

Photo: traveler1116, Getty Images

In many ways, the last 10 years of the U.S. economy has been a story of success. Starting in June of 2009, the GDP started growing, and it hasn’t yet stopped. As of the beginning of July, 2019, the United States has enjoyed 121 months of economic expansion, a new record. The previous record for the most consecutive months of economic expansion, 120, was set from March of 1991 to March of 2001, according to figures from the National Bureau of Economic Research.

This record-setting period of growth has expressed itself in many positive ways. The S&P 500 index recently hit a new high. As of May, the national unemployment rate was just 3.6 percent, the lowest it has been since 1969. We’re now collectively spending more than $36 billion a year on video games, the most ever. Progress, right?

However, despite the overall economic successes of the past few years, anyone with eyes, who even occasionally spends time outside the confines of a private golf club, can see that the purported economic recovery of the past 10 years has affected different segments of the population very unevenly.

It’s not just those at the absolute bottom of the economic ladder who aren’t getting a fair shake. Almost all of us continue to get a smaller and smaller piece of the pie, even as new growth records are shattered. According to a Reuters analysis of data from the Federal Reserve Washington Center for Equitable Growth, the top one percent own about 38.6 percent of the total U.S. wealth. The next nine percent own about 38.5 percent of the wealth. The other 90 percent of us get to divvy up just 22.9 percent of the total wealth our supposedly roaring economy is generating.

In fact, the share of the wealth enjoyed by the bottom 90 percent of Americans fell over the course of the entire economic recovery following the Great Recession. In 2007, the top one percent, the next nine percent, and the bottom 90 percent owned 33.6 percent, 37.8 percent, and 28.6 percent of the wealth, respectively. By 2013, the wealth gap had widened further, with 35.6 percent of the nation’s wealth in the hands of the top one percent, 39.5 percent held by the next nine percent, and just a quarter of the wealth left over for everyone else. The trend continues to this day, and nothing, at least not in the immediate future, looks likely to reverse it.

Even though the bottom 90 percent’s share of the wealth keeps going down, certainly some individual circumstances have improved marginally over time. Wages have grown moderately over the course of the economic expansion, ticking up by about two percent per year over most of the past ten years. More recently, wage gains have reached closer to three percent annually (wage gains hit 3.1 percent over the past year, for instance). When the pie is getting bigger, sometimes even a smaller piece of it is an increase from what you had before. Still, historically, economic boom times have routinely posted annual wage gains for workers at a much healthier four percent.

Wage gains have not been the only tepid part of the economic expansion. While the expansion is record-setting in terms of its length, it is far from remarkable in terms of its strength. Since the current expansion began in 2009, the American GDP has grown by about 25 percent. For comparison, by the end of the shorter expansion that started in 1991, the GDP had gained 42.6 percent. A number of other 20^th century economic expansions, while shorter than the current one, led to greater overall increases in GDP.

What we have is an unusually lengthy, but unusually weak, economic expansion in which the vast majority of the proceeds have gone to the top ten percent. The super-rich are doing even better than just the run-of-the-mill rich, with the wealthiest 400 Americans — the top 0.00025 percent — owning as much as the bottom 60 percent, some 150 million U.S. adults. So, when you hear the talking heads touting this great, historic economy, keep in mind who it’s been great for, and what actually makes it historic.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

After staking their entire strategy on the claim that the census question had to be expedited and that America cannot afford even a moment’s delay, the Justice Department asked the court to authorize a wholesale substitution of its legal team days before briefs are due. As one might suspect, the judge was more than a little confused:

But [Judge] Furman said that before lawyers can get off a case, court rules require them to explain why they wish to withdraw and that the DOJ request was “patently deficient.” That’s especially true, he said, given that legal briefs are due in a few days on whether the judge should issue an order preventing any action by the government to put the question on the form.

Part of the reason this motion was so patently deficient is that there’s no honest reason to swap out attorneys. What’s most likely happening is the attorneys working this case have rightly come to the conclusion that the Supreme Court has spoken and the case is all but dead. That doesn’t work for Barr and Trump so they’re looking to replace the team quick with some hatchet men and women willing to just make stuff up in a desperate bid to keep the census ball in the air. But “we’d like to withdraw because we cannot make the unprincipled arguments coming next” isn’t the rationale the DOJ wants to put on paper no matter how honest it might be.

Judge Furman gave the DOJ a second bite at this apple if they can concoct some good reasons to replace the legal team. Though if you’ve been following this case, you know that “believable pretexts” are exactly this crew’s strong suit.

Federal judge blocks Justice Department from removing lawyers in census case [NBC News]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

China’s investments in the country should be reviewed, as they are skewed in favor of the Chinese, Temba Mliswa, an independent member of Parliament for Zimbabwe’s Norton Constituency, told The Epoch Times.

“They [Chinese companies] don’t comply with our labor laws. They are causing environmental degradation, they are violating human rights, and are involved in corruption. If Chinese investment is so good for Zimbabwe, why is the Zimbabwean economy still struggling?” Mliswa said.

China’s ambassador to Zimbabwe, Guo Shaochun, in April praised China’s relationship with the southeast African nation, hinting that China did Zimbabwe a favor by vetoing a U.N. Security Council resolution that would have imposed sanctions on Zimbabwe. In 2008, China vetoed proposed U.N. sanctions on Zimbabwe’s government, which had just overseen the reelection of autocratic President Robert Mugabe; Beijing argued that the sanctions would complicate rather than ease conflict in the country.

Vetoing the sanctions doesn’t give the Beijing regime permission to exploit Zimbabwe’s people and its resources, Mliswa said.

“Our government has been signing deals with the Chinese, but at what cost? Some of these Chinese companies are not honest. They claim to be brick molding when, in actual fact, they are mining gold. Our leadership is letting us down,” he said.

Mliswa has vowed that “the days of Chinese companies in Zimbabwe are over,” adding, “God will command us to take back our resources.”

1/ Why was Sunny Yi Feng Tiles awarded National Project status? Which other local tile manufacturer has been bestowed with such? What criteria was used? Value addition? So what investment is the country realising if there are such tax exemptions? pic.twitter.com/KuIFVmNKm3

— Hon. Temba P. Mliswa (@TembaMliswa) July 3, 2019

Mliswa claims that he was detained recently at Sunny Yi Feng Tiles (Zimbabwe), a Chinese ceramics company in Norton, following a confrontation with company executives over allegedly poor working conditions. Mliswa also accused a Chinese worker at Sunny Yi Feng Tiles of assaulting a local traditional leader, Chief Chivero.

While the worker has been deported, the assistant manager of the ceramics company, Gong Wei Lin, denied the assault allegations and told a press conference in Norton that the chief had assaulted a security guard.

The deputy chief of mission of the Chinese Embassy in Zimbabwe, Zhao Baogang, told state-owned newspaper The Herald in May that Sunny Yi Feng Tiles’ investment in Norton is one of the projects under China’s “One Belt, One Road” initiative (OBOR), an ambitious multi-continent infrastructure plan.

Regardless of importance, Mliswa said that all Chinese companies across the country need to adhere to the law.

“This mustn’t end in Norton. It’s a national issue that affects many. If Norton can be used as a case study to assist all, then it’s a start. We’ll be visiting all the Chinese-owned companies in Norton to assess the working conditions,” he said.

He added, “While my priority is ensuring regularization in Norton, many are affected and I’ll debate this matter in [the Zimbabwe] Parliament for national benefit.”

China’s investments in Zimbabwe have been growing in the past decade, but former Zimbabwe Finance Minister Tendai Biti recently warned African countries about China’s “unorthodox methods of lending to African countries.” 

“They [Chinese] also tend to take some shortcuts; their due diligence is a mixture of politics and economics. So there’s no set objective standard when it comes to Chinese loan contraction. But Chinese debt is huge and Chinese debt is now populating the balance sheets of most of these African states,” Biti said, during a conference entitled “Southern Africa’s Debt Conundrum” in Johannesburg, on July 2. 

Post published in: Business

The year is half over, Summer is here, and we’re already a third of the way through July. As you contemplate the rest of the year and what you may be planning in terms of conferences, professional development training, and continuing legal education, it makes sense to consider some of the popular upcoming legal industry events that are worth attending.

ILTACON (August 18-22) Orlando, FL

The International Legal Technology Association (ILTA) puts on ILTACON every August and have been doing so for about 30 years. It is one of the largest legal technology conferences held each year and it is usually well attended by law firm information technology leaders and staff, litigation support professionals, corporate legal departments, government, and other tech-oriented people in the legal industry. ILTA boasts over 1,400 member entities and a strong corps of volunteers who develop content and events across the legal operations spectrum.

Every year, the leadership and about 40 volunteers come together to plan and develop content for the four-day educational conference. This year, the sessions feature everything you might need in legal technology, from issues facing the C-Suite to knowledge management and core IT infrastructure or security issues. There are sessions for corporate legal department professionals, litigation support, business analytics, marketing, and innovators. ILTA’s website does a good job of outlining the areas of interest, and you can register here.

PREX 2019 (September 17-19) Chicago, IL

Hosted by the great people at Zapproved, the PREX Conference is also an educational conference that brings together corporate legal operations professionals, lawyers, judges, and other experts from across the legal industry. Zapproved, of course, brought its flagship product, Legal Hold Pro, to the eDiscovery industry 10 years ago. Today they offer a suite of eDiscovery software tools designed to empower in-house legal teams to efficiently and sensibly manage ediscovery projects.

PREX is well attended by corporate legal personnel and the session speakers invariably feature a cornucopia of the industry’s best and brightest judges, lawyers and legal operations professionals. The conference starts with the ZDiscovery User Group, a workshop for users of Zapproved software. Session tracks include best practices in eDiscovery, eDiscovery 101, and a leadership track. PREX often features quality keynote addresses and this year is no different. PREX began as a conference on preservation excellence; today, it is that and a whole lot more. Check out the sessions on the website and register here.

Relativity Fest (October 20-23) Chicago, IL

Early on, it became apparent that Relativity Fest was not a typical legal industry conference. It started largely as a user conference for what back then were kCura customers. Now Relativity’s conference has the feel of a high-end tech show with a focus on product, but it’s also got lots of education and training. And it has grown significantly. Today “Fest” boasts thousands of attendees from every corner of the globe, including litigation support professionals from firms, the government, corporate legal, and service providers. Lawyers, judges, paralegals, legal operations, and IT administrators also attend Fest.

Relativity Fest has a few unique offerings, including training workshops and certification exams and lots of hands-on sessions developed to increase proficiency in their software at various levels of skill. They also have a developer summit, a legal industry education track, and a professional development track. All the session content can be viewed on the conference website, and registration is available here.

These brief summaries are not a review or comparison of these conferences. Each has its own features and strengths. Rather, as someone who has attended and presented at each, I am confident that legal operations folks — and indeed the broader legal community — will find value and useful information at all three.

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Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

Once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.

In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

— Judge Barrington Parker, writing for a unanimous three-judge panel of the Second Circuit, upholding a lower court ruling against President Donald Trump for his efforts to block his critics and detractors from following him on Twitter. Such behavior is not only discriminatory, but it also violates the First Amendment.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

Which Biglaw firm was ranked #1 in the Vault’s 2020 practice area rankings in the area of tax?

Hint: The firm was founded in New York in 1948 by three men whose names are still on top of the masthead. Two more attorneys got the distinction of name partner in 1960.

See the answer on the next page.

Attorney Sharan Rene Boudreau has filed a lawsuit against her former employer, telecommunications giant Nokia. The federal lawsuit, filed last week in the U.S. District Court for the Northern District of Texas, alleges Boudreau was the victim of gender and age discrimination and was fired by Nokia for complaining about the discrimination when she was passed over for a promotion.

The complaint alleges Boudreau’s issues began in 2016 when she applied to be the temporary head of customer operations legal and compliance for North America. Though she did not get that position, Nassib Abou-Khalil, the global head of customer operations, legal, and compliance, invited her to apply to be the permanent head of customer operations, legal, and compliance for North America when the position became available. Boudreau did not get that position either, and, according to the complaint, Abou-Khalil cited her lack of managerial experience in denying her the position, despite her having direct reports and prior managerial experience at other jobs. As reported by Corporate Counsel, complaint alleges this is not how other male employees were treated at Nokia:

She claims that is inconsistent with how male employees in the legal department were treated. The complaint cites three instances where men in the legal department went from having no direct reports to being promoted to manager positions. The head of customer operations legal and compliance for North America position remained open until January 2018 when Jody Bishop, who came from outside of the company, was hired for the role. Boudreau met Bishop through a video call before he started and said he looked 10 years younger than her. In the complaint Boudreau says Bishop became uncomfortable when she started asking about his experience.

Boudreau is being represented by Hal K. Gillespie of Gillespie Sanford, who described the case as “gender discrimination of the worst kind.”

In August of 2018, Boudreau filed a gender and age discrimination complaint against Nokia with the Equal Employment Opportunity Commission and the Civil Rights Division of the Texas Workforce Commission. Boudreau says she was fired in October of that year for complaining about the alleged discrimination.

Nokia has not yet commented on the lawsuit.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The rule from the Department of Health and Human Services requiring drugmakers to include the list price of their products in television ads was struck down by a federal judge.

U.S. District Judge Amit Mehta in Washington, D.C. ruled in favor of pharma companies challenging the rule in court because of what he said was a lack of statutory authority from the HHS to govern drug marketing.

The rule, which was announced by HHS Secretary Alex Azar in May, would require that drug manufacturers disclose the wholesale acquisition cost (WAC) of a 30-day supply of any drug that is covered by Medicare and Medicaid and costs at least $35 a month. The idea was that forcing drugmakers to disclose prices publically would potentially shame companies into lowering prices.

The change was scheduled to go into effect on Tuesday, and is one part of the Trump Administration’s blueprint for lowering rising drug prices that was unveiled last year.

The legal challenge to the rule was brought by Merck, Eli Lilly and Co., Amgen and the Association of National Advertisers.

HHS argued that the Social Security Act gave the organization the authority to adopt as part of its mandate to ensure effective administration of Medicare and Medicaid programs, which was being threatened by rising prescription drug prices.

In his opinion, Mehta said while federal agencies have wide latitude to formulate rules in their areas of administration, that authority is not unbounded.

“The court finds that HHS lacks the statutory authority under the Social Security Act to adopt the WAC Disclosure Rule. Neither the Act’s text, structure, nor context evince an intent by Congress to empower HHS to issue a rule that compels drug manufacturers to disclose list prices. The Rule is therefore invalid,” Mehta wrote.

Metha made no claims on the potential effectiveness of the rule itself, which he said “very well could be an effective tool in halting the rising cost of prescription drugs.”

The ruling is likely to be appealed by HHS to the United States Court of Appeals for the District of Columbia Circuit.

The pharma industry and some drug pricing experts have expressed concern about the rule saying that the disclosed prices did not accurately reflect the cost of the drugs to patients, potentially leading to consumer confusion and decreased medication use.