Saturday, September 20, 2014

British Pharma giant GSK to pay $500M bribery fine in China, offers public apology

The Times reports that China's bribery investigation of the British pharmaceutical global giant Glaxo Smith Kline has ended with a quick trial, a $500 million fine, expulsion of its in-country manager, and a public apology by the company. Although similar sums have been extracted for marketing abuses in the U.S., it is an eye-catching figure for China.
Such a large fine is not explicitly authorized in the PRC's criminal law against bribery.  But in the year 2000 the Supreme People's Court issued regulations regarding use of fines in criminal cases. Article 2 provides that fines should be assessed according to the circumstances, including the unlawful gains realized, the harm done,
Article 2.  The People's Courts according to the circumstances of the crime,  the amount of the unlawful gain, the degree of harm it causes, and making an overall assessment of the criminal offender's ability to pay,  shall impose a fine according to law .  If the criminal law does not explicitly state a standard amount of fine, the amount of the fine cannot be less than 1,000 RMB. (trans. - GWC)
Another interesting aspect of the remedy is the public apology to the "people of china". (below) The company admits only paying bribes to "non-governmental" persons like hospitals and doctors.  Given the extent of  state institutions there is a plea bargained element there, avoiding a GSK admission of violation of the U.S. Foreign Corrupt Practices Act. - gwc
by Keith Bradsher and Chris Bucklen // NY Times  September 19, 204
 "Chinese authorities accused Glaxo of bribing hospitals and doctors, channeling illicit kickbacks through travel agenciesand pharmaceutical industry associations — a scheme that brought the company higher drug prices and illegal revenue of more than $150 million. In a rare move, authorities also prosecuted the foreign-born executive who ran Glaxo’s Chinese unit.After a one-day trial held in secrecy, the court sentenced Glaxo’s British former country manager, Mark Reilly, and four other company managers to potential prison terms of up to four years. The sentences were suspended, allowing the defendants to avoid incarceration if they stay out of trouble, according to Xinhua. The verdict indicated that Mr. Reilly could be promptly deported. The report said they had pleaded guilty and would not appeal."
GSK plc Statement of Apology to the People of China

Following a comprehensive investigation by the Chinese judicial authorities, GSK China Investment Co. Ltd (GSKCI) has been identified according to Chinese law to have offered money or property to non-government personnel in order to obtain improper commercial gains, and has been found guilty of bribing non-government personnel. GSK plc fully accepts the facts and evidence of the investigation, and the verdict of the Chinese judicial authorities. Furthermore, GSK plc sincerely apologises to the Chinese patients, doctors and hospitals, and to the Chinese Government and the Chinese people. GSK plc deeply regrets the damage caused. GSK plc also apologises for the harm caused to individuals who were illegally investigated by GSKCI.

The illegal activities of GSKCI are a clear breach of GSK plc’s governance and compliance procedures; and are wholly contrary to the values and standards we expect from our employees. It is deeply disappointing that these issues were not identified and addressed. GSK plc has reflected deeply and learned from its mistakes, has taken steps to comprehensively rectify the issues identified at the operations of GSKCI, and must work hard to regain the trust of the Chinese people. Today, GSK plc makes a further commitment to the Chinese government and people that GSKCI will take tangible actions to establish itself as a model for reform in China’s healthcare industry: by continuing to invest in China and supporting China's scientific development; and by further development of innovative new medicines and vaccines for diseases prevalent in China. GSKCI will also increase access to its products in both city and rural areas of China through greater expansion of production and through price flexibility.
This long-term development strategy of GSK plc will promote the future health and well-being of the Chinese people, and positively contribute to China’s economic and social development.

BP ~ Don't shorten penalty trial

GM CEO: 'No surprises' at rising recall numbers

GM CEO: 'No surprises' at rising recall numbers:

by Nathan Bomey // Detroit Free Press

 "General Motors CEO Mary Barra said she was not surprised that the number of people killed in crashes connected to an ignition-switch defect is higher than initially reported.

She told reporters Friday morning that she was not taken aback when Ken Feinberg, the man running GM's victim compensation fund, said he has already awarded settlements to the families of 19 people who died in crashes caused by the defect.

GM had identified 13 deaths tied to the ignition switch defect, for which the automaker has recalled 2.6 million small cars.

Barra said she expected Feinberg to find more people affected by the defect.

"There's been so much focus on the original number — but we've always said all along that was based on the information that we had available to us," she said. "There's no surprises. Our goal has been every person impacted is a part of that program and that's the process we're working through.""

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Opioids: Santa Clara sues the drug companies // Daily Show

Update: See CDC on What Clinicians can do to end opioid abuse
The County of Santa Clara, California has filed a complaint against Purdue Pharma and other prominent drug companies.  the Superior Court action alleges that their sale of opioids like oxycodone is a public nuisance , violates the California false advertising act, and the California unfair competition law.  The County seeks restitution, penalties, and injunctive relief.

The innovative effort to reduce use of the prescription pain killers was the subject of a recent Daily Show interview segment.

Wednesday, September 17, 2014

Corporate Lawyers Breaking Bad |

Corporate Lawyers Breaking Bad |

"By Joanne Doroshow, Center for Justice and Democracy at New York Law School

 I cannot wait for the new Breaking Badspin-off, Better Call Saul, about the always entertaining lawyer, Saul Goodman. For those unfamiliar with Breaking Bad, Saul's a criminal lawyer. No, literally, a CRIMINAL lawyer. Saul already has a new fake website complete with a banner ad, "Welcome Lawbreakers!" It's a joke, of course, not to mention fiction. And yet, I think Saul would find himself right at home in the legal departments of some of today's mega-corporations, at least based on what we've been seeing in court lately. And that's no joke.

 Last week, an extraordinary decision was issued by the federal Third Circuit Court of Appeals in an asbestos case, which really should rock the corporate defense bar. In the case, Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., asbestos victims provided evidence to the court that "that BASF and ['the New York law firm that defended it for years in asbestos cases, Cahill Gordon & Reindel LLP'] systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements." See more here. It was enough evidence to revive a fraud case against BASF and its law firm for "lying about the toxic material, then depriving those injured by it of their day in court."

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ThePopTort: Punitives Damages Get a Boost

ThePopTort: Punitives Damages Get a Boost:

by Center for Justice & Democracy

Punitive damages can be a tough sell. Juries award these kinds of damages to hold reckless companies and others accountable for outrageous misconduct. Yet (or so), they are easy rhetorical targets. “Huge” “arbitrary” and “costly to society" are how Big Business groups like to describe punitive damages. But do the facts tell a different story? Actually, they tell a very different story.
Punitive damages are rarely awarded and are modest in amount: awarded in only about 3 percent of successful tort cases.  And the median punitive award to tort plaintiff winners isn’t in the millions – it’s only about $55,000.  (See more here.) What’s more, appellate judges are cutting them back left and right. Just this week, the 7th Circuit severely reduced a jury award against ConAgra Foods, saying it “does not have to pay nearly $100 million in punitive damages stemming from the explosion at an Illinois grain bin that severely burned three workers.” 
Even in the case against BP for causing the 2010 Deepwater Horizon explosion and oil spill in the Gulf, while the court just found BP to be reckless and grossly negligent, he said, “based on previous rulings in the U.S. Fifth Circuit Court of Appeals, which includes Louisiana, BP cannot be held liable for punitive damages under maritime law.”  He also noted, however, that  “in other circuit courts, BP could be held liable for punitive damages, in addition to compensation for losses.”  (Here we go, U.S. Supreme Court!)
But like a phoenix rising from the ashes comes the Missouri Supreme Court, with a wonderful, unanimous decision this week striking down that state’s $500,000 punitive damages cap as it applies to any common law claim. 
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Oregon Supreme Court Applies Aggregate Settlement Rule in Clerg Sex Abuse Case // Mass Tort Litigation Blog

Mass Tort Litigation Blog:

by Elizabeth Chamblee Burch

On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g).  As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.

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Tuesday, September 16, 2014

How Stephen King Teaches Writing // The Atlantc

Stephen King believes in diagramming sentences and Strunk & White's Elements of style.  Jessica Fahey interviews him in The Atlantic. - gwc
How Stephen King Teaches Writing - The Atlantic:
by Jessica Fahey

Stephen King’s On Writing: A Memoir of the Craft has been a fixture in my English classroom for years, but it wasn’t until this summer, when I began teaching in a residential drug and alcohol rehab, that I discovered the full measure of its worth. For weeks, I struggled to engage my detoxing, frustrated, and reluctant teenage students. I trotted out all my best lessons and performed all my best tricks, but save for one rousing read-aloud of Poe’s “A Tell-Tale Heart,” I failed to engage their attention or imagination.
Until the day I handed out copies of On Writing. Stephen King’s memoir of the craft is more than an inventory of the writer’s toolbox or a voyeuristic peek into his prolific and successful writing life. King recounts his years as a high school English teacher, his own recovery from drug and alcohol addiction, and his love for his students (“even the Beavis and Butt-Head types”). Most importantly, he captivates the reader with his honest account of the challenges he’s faced, and promises redemption to anyone willing to come to the blank page with a sense of purpose.
I asked King to expound on the parts of On Writing I love most: the nuts and bolts of teaching, the geekiest details of grammar, and his ideas about how to encourage a love of language in all of our students.
For the interview click the headline above

Monday, September 15, 2014

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC

Last spring China amended its environmental protection law.  Now they have released for comment a climate protection law amendment. - gwc

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC: "Though a burst of clear skies on Monday allowed Beijingers to marvel at a magnificent Mid-Autumn Festival moon, a blanket of smog choked the capital the next morning, reminding citizens of China’s grave air pollution woes. However, that same Tuesday, September 9th, the Legislative Affairs Office of China’s State Council released the first draft of the highly-anticipated revisions to the national Air Pollution Prevention and Control Law (hereinafter referred to as the Air Pollution Law), providing hope that blue skies won’t always be so fleeting.

 The State Council’s Legislative Affairs Office, which generates and reviews drafts of national laws and regulations, will be accepting comments on revisions of the law between September 9th and October 8, 2014. Releasing the draft law for public comment at such an early stage of the process is a big step forward for governmental transparency and public participation. The Chinese government does not usually seek public comments on laws until they are submitted to the National People’s Congress (NPC), at which point it becomes more difficult for the public to influence legislation."

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Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words

Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words: "In this short documentary, linguist David Crystal and his son, actor Ben Crystal, look at the differences between English pronunciation now and how it was spoken 400 years ago. They answer the most basic question you probably have right now — How do you know what it sounded like back then? — and they discuss the value of performing Shakespeare’s plays in the original accent…"

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