Law And More

Theranos Founder Elizabeth Holmes Wins One in Court Pre-Trial Hearing

Steve Jobs wannabe Theranos founder Elizabeth Holmes is still in black.

Only at the pre-trial court hearing it wasn't the signature black turtleneck.

It was a basic black dress and black blazer. And, at age 35, she's still attractive.

Some conjecture that it had been her youthful blonde good looks which lured big establishment names such as Henry Kissinger to the Theranos board of directors. At one point superlawyer David Boies had represented her.

Her trial on 11 counts of wire fraud and conspiracy to commit wire fraud will begin on July 28, 2020, in San Jose, California. Here is a summary of those counts by the Department of Justice. And, here is a copy of the actual indictment. 

The contention is that she and the startup's number-two Sunny Balwani deliberately misled investors, regulators, and the public about a technology which didn't exist. Balwani, who had also been her lover, was in court but arrived separately. In a television interview he argued that Theranos represented a business failure, not a fraud. If convicted, both face decades in prison.

But meanwhile, she did win one in court. She requested that the Food and Drug Administration speed up the process of turning over documents to her legal team. It claims that would require 6 months. No way, ruled federal judge Edward Davila. He gave the regulatory agency 75 days. Here are more details from the media.

By the time of the trial, most of the tech world could be in the reputational toilet. Regulators, media, the stock market, consumers, and the public globally could have turned on it. An indication of how bad it could it get is playing out in Europe. New York University marketing professor and internet expert Scott Galloway has been predicting just that. 

My hunch is that it will be difficult for both sides - prosecution and defense - to find objective jury members in the San Jose area. The defense might request a change of venue, which could delay the trial. Delays help defendants. 

In the tabloid media this saga could go down as "The Blonde and The Old White Men." 

Not getting results from your marketing communications? Complimentary consultation – janegenova374@gmail.com.

 

A Legal Mind Is a Terrible Thing to Waste - 5 Ways to Duck Dementia (even when carrying bad genes)

The minds in a law firm are its most important asset. 

Leadership at the firm then should feel motivated to protect that asset from the onset of dementia. Yes, keep those lawyers with their seasoned expertise and big book of business at the top of their game. A legal mind is a terrible thing to waste.

The answer could be: a law firm wellness program. 

A study conducted at the University of Exeter found that a healthy lifestyle can reduce the risk of dementia 32%. That's even among those with a gene for it. Here is general coverage in MarketWatch. And, here is a detailed description of the research in ScienceDaily.

Co-lead author Dr. El?bieta Ku?ma found five healthy habits could bypass what might have been genetic destiny. They are:

•  Diet low in sugar and salt
•  Avoiding artificial sweetners
•  Regular exercise
•  No tobacco smoking
•  Moderation in alcohol consumption. 

Of course, there is a controversy if wellness programs should be mandated in businesses.

One useful approach could be to not require but reward participation. For example, those enrolling would have X amount reduced in their contribution for certain benefits such as medical insurance. 

Not getting results from your marketing communications? Complimentary consultation – janegenova374@gmail.com.

 

"Edwin Hardeman" v. Monsanto, John Does" - Judge Downsizes Punitive Damages Award

On March 27th, the California jury in a Roundup trial awarded the plaintiff almost $75 million in punitive damages. That litigation had been "Edwin Hardeman v. Monsanto, John Does." Here is a copy of the complaint.

As The Recorder reports, U.S. District judge for the Northern District of California Vince Chhabria reduced that to $25.3 million. That represents a ratio of 4 times the compensatory damages. The earlier award represented 15 times the compensatory damages. The latter he assessed that as not constitutional.

However, he didn't toss the conviction, stating that Monsanto's behavior was "reprehensible." Monsanto, whose parent is Bayer, will continue to appeal the conviction. 

The plaintiff's lawyer is Jennifer Moore of the Moore Law Group. 

The reality that the judge maintained the conviction is a negative development for Bayer. It still faces thousands of lawsuits for allegedly causing non-Hodgkin lymphoma.

The amazing thing is this: Roundup is still being sold. On network television it continues to be advertised. Ironically, also on network television law firms are pitching for Roundup plaintiffs. 

After the "Hardeman' verdict, big box Costco made the decision to stop selling Roundup.

Not getting results from your marketing communications? Complimentary consultation – janegenova374@gmail.com.

Work - That and Other (fatal) Disappointments

Since 2006, the rate of suicide in the U.S. has increased 2% each year.

In addition, suicide attempts are at about 1.4 million annually.

Those are just some of the statistics the U.S. Centers for Disease Control and Prevention released today from its recent study. Here are more details from Bloomberg.

A sign of these suicidal times, talking about thoughts of offing oneself is no longer taboo. And it has become commonplace.

In fact, last night a Millennial neighbor and I chatted up in front of our building about our bout of suicidal ideation earlier in the week. The woman next door who overheard us joined in. My quip was that when a date asked me my purpose in life, I blurted out: Trying my best to stay alive. 

Yeah, we are a nation in lousy emotional shape.

As the Bloomberg article points out, the 60-year run of optimism about treatments for mental illness - ranging from medication to take therapy - was magical thinking. A reason for that is also something Bloomberg notes:

" ... psychological stressors can activate a genetic predisposition, so life circumstances matter a lot. And the U.S. is home to some particularly challenging ones ..."

WORK SUCKS

At the top of the list is the disenchantment with work. Since Puritan times the work ethic has been the unofficial religion in America. That belief system is being battered on all fronts.

Some don't have enough work.

Others work at what pays peanuts.

Those who have lots of well-paid work such as lawyers, like Gabe MacConaill, are committing suicide. Or they are self-destructing in other ways be those drugs or embezzling client funds and getting caught.

A reason FIRE (Financial Independence Retire Early) has caught fire is that too many are treated so badly by employers, clients, and customers while working. The dream is to find satisfaction elsewhere.

FOR WHOM THE BELL TOLLS

The pain is palpable. And, as fellow human beings, we feel it.

So many decent human beings are suffering and it's needless.

The most obvious instance of that is homelessness. Some cities look like third-world countries.

But more pervasive is the extreme loneliness. Gone is the ability to even have a conversation. The Diane Sawyer two-hour television special on screen time pointed the finger for this at digital technology. In addition, the aging become invisible. Then they self-isolate.

RATS NO LONGER STAY IN THE BASEMENT

In Manhattan there used to be the old saying: If the rats stay in the basement, you know things are under control. It's when the rats climb the stairs and merrily join the diners in the restaurant that you know the social system is collapsing. 

The dark aspects of society - corruption, narcissism, violence, and bullying - have taken over. We watch an inspiring film such as "Breakthrough" and are incapable of feeling hope.

It's overdue that the key institutions in society such as the mental health system, education, government, and the private sector look at what Bloomberg labeled "life circumstances." Those are the levers to push to reduce suicide.

Meanwhile, it is possible to get through the day.

Talking to one trusted acquaintance can release the despair.

There are caring human beings at Samaritans. That free hotline (212-673-3000) operates 24/7.

Go the animal shelter and adopt a companion, even if that means relocating to a pet-friendly apartment.

Do one decent human act. That can be as small a gesture as holding the door open for a mother carrying a child. 

Full Disclosure: Several members of my family committed suicide. 

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

Central Park 5 As Everyman (and Everywoman)

There is satisfaction as former prosecutor of the Central Park 5 - Elizabeth Lederer - resigned from lecturing at Columbia Law School. However, she remains a Manhattan District Attorney. Here are more details from Law and Crime.

That miscarriage of justice for a crime committed in 1989 will continue to horrify us. That's because the Central Park 5 represents Everyman (and Everywoman). The exception would be those who could afford a brandname criminal lawyer.

All the popular television justice television programming, going back to "Law & Order," might create the illusion that we understand how the legal system works. But that's on the cognitive level.

On the emotional level, we have been tipped off how skilled interrogators can coerce innocent human beings to pour out false confessions.

Among the many exposes on those had been Douglas Starr's article in The New Yorker titled "The Interview." Here is the copy. Interrogating suspects is both a science and an art.

Power plays into that. After all, the setting is where law enforcement is. It's obvious which party has the upper hand.

What also plays in is public relations. Members of the media can make or break the careers of those on the case. 

The saga of the Central Park 5 reinforces that Everyman (and Everywoman) should fear being pulled into the loop of law enforcement. It's an alternate reality. 

If Lederer were Machiavellian she would do her own documentary of what went wrong and why in that prosecution. She could become a respected anti-hero. Influencing public perception is a fascinating field.

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

Talc Litigation $12 Million CA Verdict - Johnson & Johnson, Colgate-Palmolive Stocks Hit

Today, the jury for the California Superior Court for Alameda County awarded plaintiff Patricia Schmitz $12 million. The defendants were Johnson & Johnson and Colgate-Palmolive. Here are more details from HarrisMartin Publishing.

Of that $2 million was for economic damages and $10 million for non-economic damages. The issue had been asbestos cosmetic talc as liable for the development of the plaintiff's mesothelioma. 

The liability was assigned this way:

• Johnson & Johnson - 30%
• Johnson & Johnson Consumer - 10%
• Colgate-Palmolive - 40%

CNBC reports that the stocks of both companies are falling.

This is the second talc loss this month for Johnson & Johnson and the 11th so far since 2016.

Meanwhile, in Oklahoma, Johnson & Johnson is battling in court the accusation that its opioid-related drugs caused a public nuisance in that state. The state attorney general is requesting billions of dollars. Here on Yahoo is the warning to investors.

Public nuisance lawsuits, going all the back to BigTobacco, are high profile. When set in play by the state attorney general they can not only deep-six the stock price. They can also eat away brand equity. 

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

 

Lousy Week for Medical Doctors - Arrest of William Husel, Major Expose in Boston Magazine

In Ohio, a medical doctor looking like the earnest boy next door - William Husel - is arrested. He is charged with 25 counts of murder for allegedly administering fatal doses of fentanyl. 

Much further east, in New England, Boston Magazine publishes a scathing expose. The subhead reads:

"Sexual misconduct, sloppy - sometimes catastrophic - mistakes, and a medical board that's been known to look the other way. Local physicians keep getting away with bad medicine, but you may never know who they are until it's too late."

The author of the article Michael Damiano depicts a profession in which there is little accountability. What is typical is that medical doctors who are disciplined at one hospital simply hop to another. Or, if the situation is that serious they leave the state and get set up in medical practice in another.

This in not unique to Massachusetts. Nationwide as few as 10% of medical mistakes are reported. In Massachusetts, the state medical board received in one year 211 complaints. Only 11 medical doctors were disciplined. 

According to data from the National Practitioner Data Bank, 200 medical doctors in Massachusetts had been in the loop for at least 5 malpractice incidents. None of them had lost their license to practice medicine.

Reflection: Now, when neighbors say they have great trust in their medical doctor, we will consider them downright naive. Yes, do that signature smirk of teenagers.

Trust may never be restored.

One solution is to pull out all stops to remain healthy. 

If that fails, consult with a local shaman.

In southwestern Arizona, a faith healer eliminated the crippling pain in my left hand and wrist.

A group of faith healers prayed over me for 3 sessions. That was for the clinical depression the insurance companies and I had paid out hundreds of thousands of dollars to treat. That group of shamans didn't promise total relief. For the rest they trained me in deep meditation.

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

 

 

 

 

 

Legal Concept of "Public Nuisance" On Trial in Oklahoma Lawsuit Against Johnson & Johnson for Alleged Opioid Epidemic

Beginning tomorrow, Johnson & Johnson will face off in court with the Oklahoma Attorney General Mike Hunter.

Among what will be on trial is the legal concept of public nuisance as applied to the opioid epidemic.

In other states, where public nuisance has been alleged in the opioid crisis, the lawsuits brought by the AGs were settled. That's exactly what Mike DeWine did in Ohio, then went on to be elected governor.

Those AGs, dating back to Sheldon Whitehouse in the Rhode Island lead paint class action, who configure public nuisance lawsuits essentially have been hailed heroes. Whitehouse is now in the U.S. Senate. His career had already catapulted into the big time by time the RI Supreme Court eventually tossed the case. 

Yes, in terms of public affairs, public nuisance is a strong card to play. Most recently it was used successfully in a bench trial against former lead paint companies such as Sherwin-Williams in Santa Clara, California. Law firm Jones Day represented Sherwin-Williams. The appeals didn't pan out. The U.S. Supreme Court refused to review the conviction. 

In OK, this will be the first time that a public nuisance lawsuit involving opioids has gone to trial. Hunter has precedents on his side in using the concept of public nuisance. 

But Johnson & Johnson, reports Sara Randazzo in The Wall Street Journal, contends that the legal concept of public nuisance is more often used in property disputes. Not products.

However, legal scholars are aware that public nuisance applied to a product had been leveraged way back when in the iconic state AG campaign against BigTobacco. The alleged victims of the public nuisance were children. The result was the Tobacco Master Settlement Agreement of 1998.

Here is my analysis of that and other issues associated with public nuisance.

Currently, public nuisance is being argued in the filing of lawsuits related to lead paint in Pennsylvania. Among the defendants is Sherwin-Williams. Here is the coverage from Forbes.

Obviously, the success of that pattern of litigation in CA is triggering more lawsuits. There's no predicting how many more municipalities in how many more states and how many plaintiff lawyers will also file class action lead paint public nuisance lawsuits. 

So, J&J is, as the cliche goes, barking up the wrong legal tree. 

Specifically, notes Randazzo:

"Oklahoma is set to argue that Johnson & Johnson's alleged deceptive marketing campaign created a 'public nuisance' that will cost the state as much as $17.5 billion to abate ..."

In addition to the pharma industry, other business sectors will be closely following the trial.

Those with a target on their backs for public nuisance range from energy to autos.

Also, lawsuits have been filed against the Roman Catholic Church for allegedly creating a public nuisance through the alleged cover ups of clergy sexual misconduct.

Here is my article published on O'Dwyer PR about public nuisance concerns which public relations firms have to consider if they have clients caught up in this web. 

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

 

Bayer & Roundup - Will It Settle?

To many constituencies, ranging from management experts to investors, the leadership at Bayer seems like a Ship of Fools. Meanwhile the stock has been on a sustained downward trajectory. 

Here are more details from The Wall Street Journal.

Less than a year ago Bayer purchased Monsanto, maker of Roundup. Not soon after, in a U.S. courtroom, Roundup was associated with a death from cancer. The verdict, which was reduced, had been $289 million.

More recently there had been a jury verdict of more than $2 billion. There remains 13,400 total plaintiffs. In terms of the stock, Bayer currently is worth less than the $63 billion it had paid for Monsanto. 

The question, as the WSJ, points out is: Will Bayer settle?

Essentially, Bayer is waiting to see how the appeals go - yes, it is appealing all verdicts - in order to get a clear picture of the legalities.

Also, a win could significantly affect its perception of where it stands legally.

There is also the reality that around the world, regulatory agencies find the active ingredient in Roundup - glyphosate - safe. That includes the EPA in the U.S. 

In addition, investors want to have put on the board those who understand U.S. litigation and crop science. 

Also, the elephant in the room is that Roundup is still being sold. There are commercials for it on U.S. network television.

For now, leaders of the company will probably keep their jobs. That's primarily because the financial and branding situation is so severe that it would be more risky to have a management shakeup than just cruise along.

The Bayer perfect storm, to use the cliche, is one which would make a fascinating case study for U.S. public relations crisis experts. 

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.

 

Lawyers Stuck with Intrusive Traumatic Memories - What Neuroscience Has Discovered (and monks always knew)

Forgetting is what we victims of PTSD yearn for. Not fear, as with those who carry the Alzheimer's gene. Here and here are at the top of the list of what I hope to strategically forget.

On this front, Axios hammers there is good news from neuroscientists. Here is that special report, hot off the press an hour ago. In a nutshell, we stuck in past trauma can get the hang of bringing up memories and inputting new information that override the hardened memories.

Quanta Magazine is among the growing number of publications explaining what neuroscientists have been discovering about what's called "actively forgetting." Here it notes:

"One form of active forgetting that scientists formally identified in 2017 is called intrinsic forgetting. It involves a certain subset of cells in the brain ... that degrade the engrams in memory cells."

Essentially, this is a process. What neuroscientists speculate about it is that it could constitute the decay of the links among neurons which imprint the memory. 

Actually, this is not new.

In 2003, I began an amazing journey of cognitive therapy with Amy Karnilowicz in West Hartford, Connecticut. Our objective had been to reframe how I perceived the world and created ways of reimagining my behavior. Yes, together we were rewiring my brain. 

And, for centuries, Buddhist monks have been helping the suffering through meditation which also rewires the brain.

That ability of the brain to change, sometimes radically, is called "neuroplasticity."

Around mid 2012 I began training in mindfulness at the Zen Center in New Haven, Connecticut. I might or might have rewired my brain.

But by early 2014 I was on the I-95 ramp heading west out of the pricey New York Metro area. I had the insight and courage to start over again - both my business and my life when over-60. Aside from one speedbump, I have been thriving. 

Buddhist teachers also provide exercises such as "cutting the cord" to reduce the distraction of intrusive negative memories.

But there are those traumas I haven't been able to shake. My career coach wisely told me not to discuss them with others. So, that has stopped. However, the pain from the flashbacks is still disabling. 

Neuroscience is offering hope that we can parachute out of most of that into a more Hallmark type of daily thought processes. I am alert for notices of clinical trials in my area. The journalist still in me will find a way to report on them.

Exactly the right tone and content for all your communications. Complimentary consultation janegenova374@gmail.com.