News & Notes

1.  Interested in an en banc from the 11th on Twombly and the Sherman Act.  Look no further!  Here ya go.

2.  This is the kind of stuff that our former guest blogger Brian Toth likes to write about.  But he's busy making partner at his new gig with Gelber Schachter & Greenberg.

3.  It would be fun to practice in California.  Here's a white collar case that was Rule 29ed yesterday:

A federal judge in San Francisco took the rare step Monday of dismissing a market manipulation case against a Barclays trader before the jury rendered its verdict, a decision that will prevent federal prosecutors from filing an appeal.

The judge, Charles R. Breyer, found that prosecutors had not proved their case against Robert Bogucki after several days of testimony.

Defense lawyers routinely ask a judge to dismiss charges after the prosecution presents its case, but judges usually rule on the request, called a Rule 29 motion, only after the jury reaches a verdict. Doing so permits prosecutors to appeal in the event the judge does dismiss the case.

“It’s over, and there cannot be a retrial,” said Daniel Silver, a partner with Clifford Chance in New York who was previously a federal prosecutor in Brooklyn. “Very unusual result.”

4.  Boston, not so much.  There, a judge let in some pretty salacious testimony in the big Insys trial:

It’s an old marketing adage: Sex sells. So, Insys Therapeutics Inc. turned to a former exotic dancer, who once ran an escort service, to push sales of its highly addictive opioid painkiller.
Insys’s former vice president of sales and marketing Alec Burlakoff told a Boston jury Friday that he hired Sunrise Lee as a regional sales manager after meeting her at a strip club in Florida, even though she had no relevant experience.
“She met the criteria,” Burlakoff testified. “She was a PHD -- Poor. Hungry. Driven.”
Burlakoff, 45, is among the government’s star witnesses against Insys founder John Kapoor, 75, and other executives, including Lee, who are accused of conspiring to bribe doctors with phony speakers’ fees and duping insurers into covering prescriptions for the company’s Subsys opioid painkiller.
After Burlakoff hired Lee, she didn’t disappoint, he said. The jury had heard earlier she used her sex appeal, including performing a lap dance for a doctor, to persuade physicians to prescribe Subsys more often. The drug was approved only for cancer patients with “breakthrough” pain, but the jury has heard doctors prescribed it to people with arthritis, depression and back pain.
***
An anonymous tip claiming Lee had run an escort service and had posted topless photos of herself online, didn’t deter Insys’s executives. Kapoor’s response was “everybody has a right to make a living and put themselves through school,” Burlakoff said. Lee was asked to delete the photos and did so “swift and fast,” he added.
The salacious testimony also brought swift objections from Lee’s lawyer Peter Horstmann. He was on his feet objecting for most of the testimony. In a request for a mistrial Monday, Horstmann complained that Burlakoff wrongly characterized Lee as a “person with a proclivity to engage in morally questionable activity for financial gain.”
‘The highly prejudicial impact of this salacious propensity evidence cannot now be undone,” Horstmann wrote.
U.S. District Judge Allison Burrough instructed jurors that they were not to accept the claim about Lee’s escort service as true, only that the company investigated it.
The information was presented “in as unprejudicial a way as possible,” the judge said.