"This isn't Candy?"

Drug manufacturer Cephalon recently settled a claim of a misdemeanor violation of the U.S. Food, Drug and Cosmetic Act. The company must pay $425 million to settle criminal and civil charges filed against the company for the way it marketed three of its drugs - Actiq (a painkiller), Gabitril (an epilepsy drug) and Provigil (a sleeping drug). "These are potentially harmful drugs that were being marketed as if they were, in the case of Actiq, actual lollipops instead of a potent pain medication intended for a specific class of patients,” said acting United States Attorney Laurie Magid in a statement.
The first part of the settlement is for $50 million (criminal charges) and the second part is for $375 million (civil charges). Implementing a company code of ethics and following the PhRMA Code looks pretty cheap by comparison.
The civil complaint was brought by a former sales rep who, on the government’s request, agreed to wear a wire to a company sales conference. Three other individuals (two of them also former Cephalon sales reps), later filed suit as well. The four whistle-blowers will share $46.5 million from the settlement. Pretty "sweet" for the honest sales reps. What's disturbing from an ethics perspective is that you can't be in the pharma industry and not be aware of FDA's regulations of how drugs may be marketed. The tone was set at the top of Cephalon and it was waaay off pitch.

What You Don't See Can Hurt Your Client

Revisions made with word processing software to legal documents can be revealing if inadvertently given to opposing counsel. The revisions/deletions are still visible as code in the document after they are deleted, even though you can't see them. This invisible data about data, or "metadata," is sometimes sent to an opposing side of a negotiation or lawsuit by accident. There is software that can be used to "scrub" this data out of a document, but it not yet used uniformly in the legal profession. (You can't scrub discovery responses if the metadata is responsive. That metadata must remain untouched). So what happens when opposing counsel gets this document with the other guy's confidential information? The key here is that the confidentiality is owned by the attorney's client, not the attorney. The failure to remove the metadata is a breach of a duty by the attorney to her client. However, the ABA concludes that if an attorney sends you a document, and you should reasonably believe that some information was sent by mistake, the only real duty to the recipient is notify the other attorney of the screw up. But you can do whatever you like with the information after giving such notice. (ABA Formal Opinion 06-442) Hmmm. That sounds like punishment to the client, even though the attorney made the mistake.

Ethical Tacos

Andrew Longstreth of American Lawyer edits a really great free newsletter called the Am Law Litigation Daily. I wanted to share one of his entries (I hope he's flattered) because it is clever, and made me think of an Ethics Follies parody. The take away is that you may avoid breaking the law, but when you violate the spirit of the law and damage who it is meant to protect, your ethical compass may be off kilter. In this case, it's possible both Parties are frontin'. Enjoy:

"When Taco Bell used 50 Cent's name in a promotion to sell tacos over the summer, the gangsta rapper talked tough and threatened legal action. "When my legal team is finished with them," he said, "Taco Bell is going to have a new corporate slogan: 'We messed with the bull and got the horns.'" Oh, snap! Fifty, whose real name is Curtis Jackson, wasn't just fronting. He hired an IP lawyer, Peter Raymond of Reed Smith, who filed a $4 million suit in the Southern District of New York against Taco Bell, claiming the restaurant chain infringed 50 Cent's trademark.At issue is a letter sent by Taco Bell's president to 50's agent (but also distributed to the media). In the letter, available here, Taco Bell offered to donate $10,000 to a charity of 50 Cent's choice if he would temporarily change his name to 79 Cent, 89 Cent, or 99 Cent and rap at a Taco Bell drive thru. In 50 Cent's complaint, his lawyers claim the letter was in reality an advertisement and that Taco Bell did not have permission to use the artist's name.Taco Bell's lawyers at Patterson Belknap Webb & Tyler have been talking smack, too. In the restaurant chain's response, filed in September, they begin by declaring that "Jackson is a self-described former drug dealer and hustler." Oh, no they didn't! "Jackson has used his colorful past to cultivate a public image of belligerence and arrogance and has a well-publicized track record of making threats, starting feuds, and filings lawsuits," they continue. "This lawsuit is another of Jackson's attempts to burnish his gangsta rapper persona by distorting beyond all recognition a bona fide, good faith offer that Taco Bell made to Jackson."Fifty's lawyer, Reed Smith's Raymond, told us that he "disagrees with all the false allegations" of Taco Bell's lawyers. He also said he found it "curious" that Taco Bell describes 50 Cent as such a disreputable character, given that the restaurant was once so eager to be associated with him. "

Decent's Descent- "Put it on Vibrate Buddy!"

"I Can Hear Your Cell" is a parody of a song from the Broadway show and film "Hairspray." It is a social commentary on the thoughtless use of cell phones in the US. Most business people and attorneys speak openly in public on their cell phones about confidential deals and subject matter without thinking about who may be hearing what is said. We decided to make this song the "Production" number in the show, complete with inflatable cell phones.

Cuban Faces Insider Trading Allegations

When Mark Cuban said that the San Antonio River was an "ugly-ass, muddy-watered thing," most folks in San Antonio knew that he was an arrogant jerk. Like many folks who have lost insight as to how they impact others, his overconfidence may have gotten him in trouble with the law. While they are just allegations at this point, the Associated Press reports that federal regulators on Monday charged Dallas Mavericks owner Mark Cuban with insider trading for allegedly using confidential information on a stock sale to avoid more than $750,000 in losses. Cuban disputed the Securities and Exchange Commission’s allegations and said he would contest them. In a civil lawsuit filed in federal court in Dallas, the SEC alleged that in June 2004, Cuban was invited to get in on the coming stock offering by Mamma.com Inc. after he agreed to keep the information private. Maybe he has been chatting with Martha Stewart...and not about her chocolate biscotti recipe.

Ethics Follies 2008--Decent's Descent

For the last few months, about 40 people have invested hundreds of rehearsal hours to rehearse a semi-original musical comedy called "Decent's Descent." The musical fulfills the ethics conference mission of the local chapter of The Association of Corporate Counsel. The premiere of the show was on November 6, 2008 at the Empire Theatre. We were pleased that the show was a success on many levels. We got the ethics messages across without being preachy. We raised a substantial amount of money for The Community Justice Program, which provides free legal services to those who can't affford them. As the cherry on top, every single person in the show did their personal best the day of the show.

The Empire Theatre in San Antonio was full of lawyers, accountants, managers, compliance officers and a couple of doctors (in the cast), who were excited to see the alternative to three hours of ethics speeches given at a podium. Ethics awareness helps keep San Antonio ethical in the court room and the board room.

For the next year, I will blog the progress of the Ethics Follies 2009 as we move towards our November 5, 2009 show date. For now, while I'm resting up from the last six months of work, I'll post some photos of the show as they come in and some video, which I hope to receive soon from Fawn Mountain Productions in Austin, Texas.

The Follies cast and crew are coming to my house November 15th for a cast party broohaha. Should be fun.