A Virginia magistrate judge has recommended denying Merck and Glenmark’s bids to end antitrust multidistrict litigation accusing the drugmakers of conspiring to delay generic competition for the branded cholesterol medication Zetia, finding there are numerous material factual disputes that should go to a jury.

In a 74-page report filed Friday, U.S. Magistrate Judge Douglas E. Miller recommended that the district judge overseeing the case deny requests by Merck & Co. and Glenmark Pharmaceuticals Ltd. for summary judgment wins on all antitrust claims.

Judge Miller reasoned that there are multiple material factual disputes over Merck and Glenmark’s $9 million patent litigation settlement in 2010, including the deal’s value and whether the settlement contained an anticompetitive “no-AG provision” limiting the rollout of the authorized generic drug.

The judge said there are also factual disputes over whether Glenmark had the manufacturing ability to launch the generic version of Zetia at the time the deal was made, and there’s a dispute over whether Glenmark would have entered the market sooner if Merck’s drug patents had been invalidated.

“Plaintiffs have established triable issues regarding the existence of a no-AG agreement; the value of that agreement; and the connection between that agreement and Merck’s avoidance of at least some risk of generic competition,” the report says. “Under Rule 56 [of Federal Rules of Civil Procedure], this is sufficient to allow plaintiffs’ claims to proceed to trial.”

The magistrate’s recommendation is the latest chapter in a sprawling MDL filed by direct buyers, end-payors and retailers in 2018, accusing the companies of entering an anticompetitive deal in 2010 to delay generic forms of Zetia by artificially prolonging its patent protection.

. . .

The plaintiffs are represented by Glasser and Glasser PLC, Hagens Berman Sobol Shapiro LLP, Radice Law Firm PC, Hilliard Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Cohen Milstein Sellers & Toll PLLC, Miller Shah LLP, Nussbaum Law Group PC, Faruqi & Faruqi LLP, Berger Montague, Taus Cebulash & Landau LLP, Furniss Davis Rashkind and Saunders PC, Motley Rice LLC, Miller Law LLC, Wolcott Rivers Gates PC, Kenny Nachwalter PA and Hangley Aronchick Segal Pudlin & Schiller.

Read the article on Law360.

SANTA FE — A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC. 

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.

WASHINGTON – Today, President Joe Biden announced his intent to nominate the following individuals to serve as key leaders in his administration:

• S. Douglas Bunch, Nominee for Public Delegate of the United States to the 77^th Session of the General Assembly of the United Nations

S. Douglas Bunch is a partner at Cohen Milstein Sellers & Toll PLLC, a member of the Securities Litigation & Investor Protection practice, and co-chair of the firm’s Pro Bono Committee. Bunch represents public and private pension fund investors in securities and shareholder class actions. Bunch has been recognized by the industry and named to Lawdragon’s “500 Leading Plaintiff Financial Lawyers,” Benchmark Litigation’s “40 & Under Hot List,” and Law360’s “Rising Stars – Securities,” honoring lawyers under the age of 40 whose professional accomplishments transcend their age. Bunch also plays a prolific role in empowering students and cultivating educational opportunity – nationally and globally. He is the co-founder and chairman of Global Playground, Inc., a nonprofit that builds schools and other educational infrastructure in the developing world, and he serves or has served on the boards of multiple other education nonprofits. Bunch was appointed in 2016 and again in 2020 to the Board of Visitors of the College of William & Mary, by the Governor of Virginia. He currently serves on the Executive Committee and as Chair of the Committee on Institutional Advancement. Bunch is also a leader in the Washington, D.C. LGBTQ+ community. He has acted as amicus curie counsel to Equality Virginia, the Commonwealth’s leading advocacy organization for LGBTQ+ equality, in filing amicus briefs in support of transgender students in Virginia public schools. A member of Phi Beta Kappa, Bunch graduated with a B.A., summa cum laude, from the College of William & Mary, earned an Ed.M. from Harvard University’s Graduate School of Education, and received his J.D. from William & Mary Law School, where he was a recipient of the Benjamin Rush Medal in 2006. In 2011, he was awarded William & Mary Law School’s inaugural W. Taylor Reveley III award, recognizing alumni who have demonstrated a sustained commitment to public service. Bunch is a native of Augusta County, in Virginia’s Shenandoah Valley.

The ruling made Couy Griffin, a county commissioner in New Mexico, the first official in more than 100 years to be removed under the Constitution’s bar on insurrectionists holding office.

A judge in New Mexico on Tuesday ordered a county commissioner convicted of participating in the Jan. 6 riot at the Capitol removed from office under the 14th Amendment, making him the first public official in more than a century to be barred from serving under a constitutional ban on insurrectionists holding office.

The ruling declared the Capitol assault an insurrection and unseated Couy Griffin, a commissioner in New Mexico’s Otero County and the founder of Cowboys for Trump, who was convicted earlier this year of trespassing when he breached barricades outside the Capitol during the attack. The judge’s order grabbed the attention of advocates across the country who have been pushing to use the 14th Amendment to disqualify former President Donald J. Trump and elected officials who worked with him in seeking to overturn the 2020 election from holding office in the future.

In his decision, Judge Francis J. Mathew of the New Mexico District Court said the insurrection on Jan. 6 included not only the mob violence that unfolded that day, but also the “surrounding planning, mobilization and incitement” that led to it.

“Mr. Griffin is constitutionally disqualified from serving,” the judge wrote.

Liberal groups have filed legal challenges in Arizona, New Mexico, North Carolina and Wisconsin seeking to block lawmakers accused of supporting the Jan. 6 rioters — including some prominent Republican members of Congress — from holding office under the Constitution. Until Tuesday, none had succeeded.

. . .

Section 3 of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy for taking up arms against their country in the Civil War, declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Couy Griffin is sentenced in DC District Court on June 17, 2022 for his role in the US Capitol attack.

A New Mexico judge on Tuesday removed January 6 rioter and Cowboys for Trump founder Couy Griffin from his elected position as a county commissioner for his role in the US Capitol attack.

The ruling was the result of a lawsuit seeking Griffin’s removal, which alleged that he violated a clause in 14th Amendment of the Constitution by participating in an “insurrection” against the US government. He had been convicted of trespassing earlier this year.

The historic ruling represents the first time an elected official has been removed from office for their participation or support of the US Capitol riot. It also marks the first time a judge has formally ruled that the events of January 6, 2021, were an “insurrection.”

The disqualification comes after unsuccessful challenges by liberal-leaning groups against prominent Trump supporters in the US House of Representatives and Trump-backed candidates for state offices across the country.

Griffin, one of three commissioners in Otero County, is also barred from holding any state or federal elected position in the future, state Judge Francis Mathew ruled Tuesday.

“The irony of Mr. Griffin’s argument that this Court should refrain from applying the law and consider the will of the people in District Two of Otero County who retained him as a county commissioner against a recall effort as he attempts to defend his participation in an insurrection by a mob whose goal, by his own admission, was to set aside the results of a free, fair and lawful election by a majority of the people of the entire country (the will of the people) has not escaped this Court,” Mathew wrote.

Griffin, an ardent conspiracy theorist who refused to certify the state’s primary election results this summer in Otero County, told CNN he has been ordered to clean out his office and attacked the judge as being “tyrannical.”

Plenty of history — very bad history — was made on Jan. 6, 2021. For the first time since the War of 1812, the U.S. Capitol was breached. It’s the first time a U.S. president has sought to interrupt the peaceful transfer of power. The sheer number of members of Congress who voted both against certifying the election and, later, to convict Donald Trump at his impeachment trial had few if any historical parallels.

Now it’s made even more history: Someone found to have engaged in insurrection that day has been disqualified from office, for what appears to be the first time in 150 years.

A New Mexico judge on Tuesday removed Otero County commissioner Couy Griffin by invoking the 14th Amendment’s prohibition on those who engaged in insurrection from serving in office. Some have sought to wield that seldom-invoked provision against members of Congress, without success, and even floated using it against Trump.

Success in the latter scenario remains unlikely, especially in the absence of a criminal conviction. But legal experts say the ruling in New Mexico is significant nonetheless — especially if it holds up.

. . .

The text of Section 3 of the 14th Amendment states (key parts bolded):

No person shall be a Senator or Representative in Congress, or elector of President and vice president, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

The last time elected officials were disqualified from office using the 14th Amendment appears to be 1869, shortly after the Civil War and the ratification of the 14th Amendment. Congress used the 14th Amendment to disqualify Socialist Rep. Victor Berger in 1919, but not the insurrection provision specifically, and this was not a court decision. (Berger was later seated after his espionage conviction was overturned.)

Since Jan. 6, activists have sought to disqualify several members of Congress who supported questioning or overturning the 2020 election results, including Reps. Madison Cawthorn (R-N.C.), Jim Banks (R-Ind.) and Marjorie Taylor Greene (R-Ga.). Most of these cases fizzled quickly, and none have succeeded. In Greene’s case, she was forced to testify, but ultimately was not disqualified.

Griffin’s case differs from the others’ in one crucial way: He was actually part of the crowd that stormed the Capitol and was later convicted of his role. Indeed, in allowing Greene to remain in office, a judge had emphasized there was “no evidence to show that Rep. Greene participated in the Invasion itself” or “communicated with or issued directives to persons who engaged in the Invasion.” Griffin was much easier to tie directly to the insurrection, and he has now been found to have directly engaged in it.

S. Douglas Bunch ’02, J.D. ’06, has been appointed a representative of the United States to the 77th session of the General Assembly of the United Nations.

William & Mary alumnus and Board of Visitors member S. Douglas Bunch ’02, J.D. ’06, has been appointed a representative of the United States to the 77th session of the General Assembly of the United Nations, the White House announced today.

Bunch, a partner at Cohen Milstein Sellers & Toll PLLC, will join the delegation as the General Assembly of the United Nations opens Sept. 13. The appointment was made by President Joe Biden.

“I am honored, humbled and deeply grateful for the president’s trust and confidence and look forward to joining my new colleagues at the U.S. Mission to the United Nations and at the Department of State in their vitally important work,” Bunch said.

Bunch was appointed to W&M’s Board of Visitors in 2016 and reappointed in 2020. He is currently a member of the Executive Committee and the Committee on Academic Affairs. He also chairs the Committee on Institutional Advancement.

While an undergraduate at the university, he studied government and classical studies. He was also a Monroe Scholar, President’s Aide and member of Omicron Delta Kappa and Mortar Board. When he graduated in 2002, he received the Ewell Award and the James Frederic Carr Memorial Cup.

In addition to his time on the Board of Visitors, Bunch has served William & Mary in multiple ways throughout the years. He has been a strong supporter of the W&M in Washington program as well as the Office of Community Engagement. He was a member of the search committees for the university’s 28th president (2017-2018) and its sixth provost (2018-2019). He has also served on or is a current ex officio member of W&M’s Student Engagement and Leadership Advisory Board and Washington Center Advisory Board.

“Service is one of our core values at William & Mary, and it is one that Doug Bunch has long embraced,” said President Katherine A. Rowe. “Mr. Bunch is fearless and level-headed in his commitment to improving the world. We see that commitment in his legal career, in his dedication to educational opportunity for underserved communities as the co-founder of Global Playground, and his devotion to alma mater. He is a broad thinker with a gift for human connection – exactly what is needed in global leadership. We are deeply proud of him.”

In his role at Cohen Milstein Sellers & Toll, Bunch serves as a member of the Securities Litigation & Investor Protection practice group and co-chair of the Pro Bono Committee. According to the firm, he represents public and private pension fund investors in securities and shareholder class actions, and has recently acted as amicus curiae counsel to Equality Virginia, the Commonwealth’s leading advocacy organization for LGBTQ+ equality, in filing amicus briefs in support of transgender students in Virginia public schools.

Bunch is the co-founder and chairman of the nonprofit Global Playground, which funds educational opportunities for children in the underdeveloped and developing world. He is also a member of the board of directors of Ascanius: The Youth Classics Institute, which he founded as his Monroe project while a student at W&M, and has served on the board of directors of Virginia21.

After receiving a master’s degree from Harvard University’s Graduate School of Education, Bunch returned to W&M for his law degree. When he graduated in 2006, he received the Law School’s Benjamin Rush medal.

Bunch has received multiple honors for his service, including W&M Law School’s inaugural W. Taylor Reveley III Award. For his work in law, Bunch has been named to Lawdragon’s “500 Leading Plaintiff Financial Lawyers,” Benchmark Litigation’s “40 & Under Hot List,” and Law360’s “Rising Stars – Securities,” honoring lawyers under the age of 40 whose professional accomplishments transcend their age.

An Illinois federal judge gave preliminary approval to a $6.25 million settlement between Boeing and shareholders who alleged in both federal court and the Delaware Court of Chancery that the company failed to properly disclose issues with its 737 Max jet.

U.S. District Judge Harry D. Leinenweber on Thursday signed off on the deal, pending further consideration at a final approval hearing later this year. In addition to the funds, the settlement would see Boeing modify its bylaws to allow federal derivative claims from stockholders to be brought in venues other than the Delaware Chancery Court.

The settlement must be approved in both Delaware and Illinois, and Boeing’s board of directors will have to amend its forum-selection bylaw to allow federal derivative claims in either the District of Delaware or the District of Virginia, where Boeing is moving its headquarters.

“The federal settlement is fair, reasonable, adequate and in the best interests of Boeing and its stockholders,” Judge Leinenweber wrote in his nine-page order.

According to the preliminary approval motion filed earlier this month, Boeing’s executive and board director insurance will pay the company $6.25 million if the settlement is finalized. Attorneys for the Seafarers Pension Plan, which sued on the company’s behalf, are seeking up to $4.25 million of that in fees and expenses.

A final federal court approval hearing for the deal is set for Dec. 14.

The 737 Max was involved in two fatal crashes in five months between October 2018 and March 2019, which led to an unprecedented 20-month global grounding of the jets, multiple investigations and scores of lawsuits accusing Boeing of shortcutting safety in its pursuit of profits. The Federal Aviation Administration cleared the 737 Max to return to service in November 2020.

Seafarers alleged in its Illinois suit, filed in December 2019, that the company board never implemented a system to ensure that the products in its commercial airline business complied with federal and international laws. That failure exposed Boeing to an undue amount of risk the company “repeatedly concealed” in its annual proxy statements, which deprived stockholders of information they should have received before voting on significant issues such as director reelections and executive compensation, according to the suit.

. . .
Cohen Milstein Sellers & Toll PLLC, the firm representing Seafarers, said in a statement to Law360 that a critical part of the proposed settlement is that federal derivative claims can be brought in Delaware federal court as well as where Boeing is headquartered, an analogy other courts may rely on.

“The bylaw change in Boeing that the Seafarers has achieved through this proposed settlement is an important milestone for shareholder rights and corporate governance,” Cohen Milstein said.

A spokesperson for Boeing declined to comment.

Seafarers Pension Plan is represented by Carol V. Gilden, Steven J. Toll, Richard A. Speirs and Amy Miller of Cohen Milstein Sellers & Toll PLLC.

A Utah judge dismissed a 2019 lawsuit filed by stockholders, but a federals appeals court has now revived some of their case.

Without any profits to promote, Pluralsight instead urged investors to watch how its billings to customers were growing, stockholders allege — as executives credited the size and productivity of their salesforce.

But after its billings slowed, the Draper-based company revealed in a July 31, 2019, filing that it had been “slower in hiring additional sales representatives than planned” to market its subscriptions to training software and online classes.

The next day, its share price dropped nearly 40% — and two large investment funds sued, arguing Pluralsight made misleading statements about its sales staff. The company denied the allegations, and a Utah federal judge later dismissed the lawsuit.

Now, the 10th U.S. Circuit of Appeals in Denver has revived some of the claims. Here is what’s still at stake, as investors return to court to try to prove their case.

How were investors allegedly misled?

In the past, Pluralsight had “about 80 quota-bearing [representatives] and little infrastructure around our sales reps,” then-Chief Financial Officer James Budge allegedly told investors at 2019 conference.

The number of “quota-bearing reps went from about 80 at that time to today we have about 250,” he explained on Jan. 16, 2019, according to the lawsuit.

Six months later, Pluralsight revealed in a Securities and Exchange Commission filing that its billings had grown by 23% in the second quarter of 2019 — a significant drop from the growth in the five previous quarters.

On an earnings call with CEO Aaron Skonnard on the same day as that filing, Budge blamed delays in hiring sales reps.

“We’re about 250 quota-bearing reps right now. And that’s about the number of bodies we wanted to have at this time in the year, but they didn’t come into the year early enough,” he said, according to the lawsuit’s transcription of the call. “…[W]e’re a few months behind there, that’s been the big impact.”

An analyst asked, “Why didn’t we hear this on last quarter’s call?” and Budge replied, “Well, we were still hitting our numbers,” referring to billings, the lawsuit alleges.

The next day, Pluralsight’s stock dropped from $30.69 to $18.56 a share, the lawsuit said.

And at the investors conference a year later, in January 2020, Budge allegedly said Pluralsight “came out of 2018 going into 2019 with about 200 quota-bearing sales reps. … We just didn’t have enough reps.”

That statement, the court said, “strongly suggests Pluralsight could not have had ‘about 250′ quota-bearing sales representatives on January 16, 2019.”

“This would have required Pluralsight to ramp up an additional 50 sales representatives in just two weeks, an unlikely scenario,” Judge Veronica Rossman wrote, “given that Pluralsight’s stated goal was to have 300 quota-bearing sales representatives by the end of the year.”

The allegations “support a reasonable belief” that Budge’s statement on Jan. 16, 2019, was false or misleading, Rossman wrote.

The ruling allows the two funds that sued to return to the trial court with that claim, and with two related claims: that Skonnard and Budge are liable under securities laws, and that they engaged in illegal insider trading.

The two groups — the Indiana Public Retirement System and Public School Teachers’ Pension and Retirement Fund of Chicago — also alleged Pluralsight, Skonnard and Budge made 17 other misleading statements.

Pluralsight had become public in 2018, and had its second offering of stock in March 2019. The two investment groups alleged those misleading statements could have inflated its stock price during the offering.

But the appellate court said the other 17 statements were either accurate “or expressions of corporate optimism that would not mislead reasonable investors.”

A Georgia jury’s $1.7 billion punitive damages verdict against Ford Motor Co. over a fatal rollover collision shines a light on an alleged defect that previously has resulted in confidential settlements. But the award may not stick, attorneys told Law360, especially if a Georgia law prompts a post-trial settlement.

Elderly couple Voncile and Melvin Hill were killed in 2014 when the Ford Super Duty F-250 pickup truck they were driving rolled over on a rural Georgia road. Their sons, Kim and Adam Hill, sued Ford, alleging that the company knew the roof of its Super Duty trucks was dangerously weak yet kept it on the market.

On Aug. 18, a Gwinnett County, Georgia, jury found Ford mostly to blame for the Hills’ accident, awarding the couple’s sons $24 million in compensatory damages. The jury added $1.7 billion in punitive damages the following day.

…

Leslie Mitchell Kroeger of Cohen Milstein Sellers & Toll PLLC, who has represented plaintiffs in truck roof crush cases against Ford, told Law360 in an email that her cases also have ended in confidential settlements with Ford.

These roof crush crashes “traditionally result in catastrophic injury or deaths,” she said.

For instance, Cohen Milstein client Carlos Paz-Orjales reached a confidential settlement in 2018 with Ford over the same defect alleged by the Hill family.

Paz-Orjales had been a fully seat-belted passenger in a 2005 Ford F350 Super Duty King Ranch truck when the driver lost control of the vehicle and the truck rolled over, according to Cohen Milstein’s summary of the case.

The firm said the truck’s roof caved in and crushed Paz-Orjales, severely injuring his spine and permanently rendering him a quadriplegic.