Donald Trump And Honest Services Fraud

LBJ gave up his radio stations. Jimmy Carter gave up his peanut farm. Untangling Donald Trump from his web of companies and interests is a bit more complicated.   Yesterday, a team of lawyers at Morgan Lewis released a “white paper” about “conflicts of interest and the President,” apparently prepared for President-Elect Donald Trump. (“Apparently” because it’s not clear if Morgan Lewis prepared it for Donald Trump, The Trump Organization, the newly created trust, or some combination of all three.) The white paper argues that the President and Vice President are exempted from the federal criminal conflict of interest statute, ... Continue Reading

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Chantix And The End Of Evidence-Based Pharmaceuticals

Last month, the FDA allowed Pfizer to change the warning label for Chantix — a drug prescribed for smoking cessation — so that it no longer has to have a prominent “black box” warning for psychiatric effects. Instead, it has a warning lower in the label that says: Neuropsychiatric Adverse Events: Postmarketing reports of serious or clinically significant neuropsychiatric adverse events have included changes in mood (including depression and mania), psychosis, hallucinations, paranoia, delusions, homicidal ideation, aggression, hostility, agitation, anxiety, and panic, as well as suicidal ideation, suicide attempt, and completed suicide. Observe patients attempting to quit smoking with CHANTIX ... Continue Reading

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Younger People Are Actually More Supportive Of Democracy

Have you seen this horrifying graphic? It’s from a New York Times story, “How Stable Are Democracies? ‘Warning Signs Are Flashing Red.’” The graphic suggests that people were asked whether it was “essential” to live in a democracy and, in response, more than half of people born after the 1960s said it was not. Worse, the graphic suggests nearly 70% of people born after 1980 said it was not “essential” to live in a democracy. If that were true, it would be quite alarming. Here’s the good news: it’s not true. No one was even asked if it was “essential ... Continue Reading

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When Lawyers’ Blogs Are Cited In Federal Courts

As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations: When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?   I’d certainly trust Ron Miller before ... Continue Reading

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Personal Jurisdiction Under Daimler AG and Walden

Pfizer likes California. As the company brags on its website, “Pfizer La Jolla's 25-acre campus includes five buildings totaling more than 500,000 square feet of state-of-the-art facilities, with specialized laboratories and equipment for structural and computational biology, molecular design, drug metabolism, high throughput chemistry, and pharmacology.” Pfizer reaps billions in profits from its California sales (profits Pfizer is going to avoid paying taxes on by asserting they were earned overseas), and Pfizer shovels that money right back into California politics, spending over $6 million this year trying to influence a California ballot measure that would cap prescription drug costs. But ... Continue Reading

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In Praise Of Mercedes-Benz’s Killer Robot Car

I’ve been writing about the law of driverless cars since 2011. For more than forty years, the general rule for when a car was defectively designed is whether the manufacturer met “a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.” Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968). Volvo got a lot of free press last year when it said it would accept legal responsibility for crashes involving self-driving cars, but, as always, the fine print said otherwise: Volvo also told the ... Continue Reading

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How Donald and Melania Trump Will Dodge The First Amendment

This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the ... Continue Reading

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Why Drug Companies Oppose “Free To Choose” Medicine

Thirty-one states have passed “Right To Try” legislation that, in theory, makes it easier for patients with terminal diagnoses to use drugs that are in the investigational stage but haven’t yet been approved by the FDA. I use the phrase “in theory” because state legislation doesn’t mean much in the field of drug regulation: it’s all determined by the federal government, which has the power to shut down unapproved uses of medications, even if the state government says otherwise.   The idea behind “Right To Try” state legislation is compelling: from a common-sense perspective, there aren’t many good reasons why ... Continue Reading

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No Sympathy For The Corporate Defendant

There are a few truisms in civil jury trial practice, one of which is: don’t make an appeal to sympathy. See, e.g., Arnold v. E. Air Lines, Inc., 681 F.2d 186, 196-200 (4th Cir. 1982)(“the blatant, direct appeal for sympathy in closing argument [was] plainly improper”). The jury, too, is specifically told to disregard sympathy. See, e.g., Ninth Circuit Model Jury Instructions, 1.1B (“you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy”).   Typically, when it comes to complaints about “sympathy” in civil trials, the complaints come from insurance companies, big companies, and hospital ... Continue Reading

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Pokémon GO Players Need To Send This Email Immediately

  Here's the punchline: if you play Pokémon GO, then, within thirty (30) days of downloading it, you need to send an email to termsofservice@nianticlabs.com with the subject "Arbitration Opt-out Notice" in which you specifically say that you are keeping the right to litigate any dispute with Niantic, Nintendo, and any other party relating in any way Pokémon GO.   Got it? Good. Let's talk about why.   Pokemon Go was released on July 5th, and since then it has taken the Internet by storm; it's already more popular than Tinder and, by the end of the week, should have more users ... Continue Reading

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