Saturday, January 20, 2018

Over A Million People Turn Out, Nationwide -- Women's March 2.0

Here in the City of Big Shoulders, the local turnout total was reliably estimated at 50,000 stronger than last year's march -- hitting 300,000. And unsurprisingly, almost all were chanting that 45. . . has to go:

That (above) is reality, in near real time -- in stark contrast to Trump's trolling tweets of this afternoon. Onward.


This "president" Is Incapable Of Understanding The Factions Of His Own Party...

#TrumpShutdown -- that's the No. 1 trending hashtag -- worldwide, this morning.

45 is either too lazy to spend the time listening, to resolve (or more ominously, is mentally incapable of understanding) the divisions within his own GOP. Thus, a shutdown occurs.

Need more proof? Mr. Trump could not even get all his GOP Senators to vote for the measure the House put forward. It was doomed from the start, as there were defections in the GOP ranks -- in the Senate last night. So it will be, until some adult works out the differences inside the GOP's hard right, and more moderate, wings.

Note: this is the first time in American history that a shutdown has occurred when a single party held all three: the White House, the Senate. . . and the US House.

And any nonsense you read (from Fox, for example) about this being a fault in Democratic Party. . . is just that: nonsense. The Democrats have made reasonable offers of compromise, over and over. The various factions of the GOP have rebuffed them. And DACA has the backing of 65 per cent of registered voters. Trump has effectively said no to DACA, and to CHIP -- which enjoys a 70 per cent favorable rating, among similarly registered voters. Trump and his GOP apologists will reap the whirlwind in November 2018. Trust that.

Time to catch a train -- to march. Be excellent to one another. Out.


Friday, January 19, 2018

Please, Let Me Remind You -- Of About 17 Days -- In Late October of 2013...

. . .for months and months before, and for some 17 days, post -- when the GOP only controlled the House. The Senate and The Presidency were. . . in Democratic hands.

But then Reps. Lee, Rubio and Cruz were hell-bent on forcing yet another ACA (doomed) repeal vote. So those three -- unopposed by the GOP House Majority Whip (Boehner) -- blocked the Democrat-led federal budget continuation measure.

Charming. The standoff lasted about 18 days, if (unaided) memory serves.

Fast forward -- about four and a half years. . . the GOP nominally controls the Senate, the House and the White House. All three.

And here we are again, but this time, the GOP has taken itself hostage. Mr. Trump will allow the party he controls to. . . hold a Senate vote that would say that our wounded war vets shouldn't get treatment, at VA hospitals, and kids shouldn't receive their Early Head Start lunches, and federal Marshals should stop chasing bad guys. . . . and NASA should stop scouring space for life. . . um. . . why, exactly?

I. Can't. Even. Breathe. Dude. . . .

And so, along with a likely few hundred thousand others, in Chicago tomorrow at midday, I'll once again take to the streets, to march -- as I did exactly one year ago -- at the Women's March (forecast to be another bright, sunny morning!) -- regardless of whether the federal government shutdown occurs. Mr. Trump has turned out to be worse than a "reality show TV" president. Nope. My prediction there was not even close. . . not nearly depraved enough.

Now he is the pornstar-payoff-president -- and DACA denier, and Muslim banner. If that weren't enough -- he's also a "Call of Duty" (only) fighter jet delivery-boy. . . and as of this week -- he's ALSO the. . . Haitian Hater; and as of this morning: the "I control ALL women's bodies" president. So take to the streets, peaceably, people -- and be seen. . . Smile; you know I will. . . .


Thursday, January 18, 2018

[U] The Jeff Sessions/Donald Trump Cert. Petition Is Fairly-Riddled With Glaring Errors Of Law...

As expected, this evening, Jeff "Beauregard" Sessions filed his request to have the Supremes immediately review the able District Court Judge Alsup's preliminary injunction (out of Northern California). That injunction essentially keeps existing DACA-program young people in status quo, and undisturbed, until a final appeal on the merits is decided.

Weighing in at 173 pages, it is. . . turgid.

In fairness, only the first 33 pages are new; the rest of it represents appendices containing the decisions below -- and collateral materials. I will bet that the Supremes (holding their last in-chambers conference tomorrow, before the court's winter recess) will deny review, and allow the Ninth Circuit to weigh in -- in due course. But I do not expect they will decide that tomorrow. Tomorrow, I expect the Supremes will decide to take the Muslim Ban 3.0 case on appeal from the Ninth Circuit (yet again) -- even without the Fourth Circuit's formal opinion having issued -- yet.

Updated — Friday evening: the Supremes just granted cert., again, in Muslim Ban 3.0 — out of Hawaii. See third comment below, for more. [End update.]

But that -- as they say -- is a horse of another color. All of them are, in my opinion though, manifestations of what the editorial page of The Washington Post tonight called the id -- "of the angry man-child" now taking his residence, such as it is -- at 1600 Pennsylvania Avenue.

I am sorry that his intransigence has likely led to a temporary shutdown -- tomorrow night. But never before in history has one party controlled both halls of Congress, and the White House -- and been unable to pass a budget. Their OWN GOP budget.

That is the ignominious first that the GOP has set here tonight -- with this "porn-star-pay-off-president" leading them. [Forget the "alleged", there. It is a matter of public record, now.] G'night -- and may Saturday be better than Friday is likely shaping up to be. I'll smile, just the same -- with a sweet baby sleepover Saturday night -- pending. . . .


[U] Ahem -- Of The Fairly Preposterous Patent "Evergreening" Gambit Undertaken By Brent Saunders -- An Update.

It seems Mr. Saunders has been able to convince his fellow pharma interest-holders at PhRMA to weigh in on the Mohawk license of IP "strategy" -- now on appeal, from the US District Court in Eastern Texas, to the federal Circuit, sitting in DC -- after the very able Judge William C. Bryson all but called it a scam.

I will have more, once PhRMA's amicus brief is available to the public (it hasn't been distributed to the appellate panel yet) -- but it will likely read a lot like this one, from about a year ago -- in another case. And a bit, from the earlier trial level motions -- seeking an end to the Mohawk Tribe license gambit:

As I've said before, I do favor strong IP protections for true innovators -- but I do not favor perpetual monopolies. And that seems to be where Mr. Saunders' Allergan filings are headed. [More of my background, on this spat, here.]

. . . .This transaction was not a genuine purchase of intellectual property by the Tribe. Rather, Allergan paid for the use of the Tribe’s sovereign immunity to thwart the parallel inter partes reviews (“IPRs”) before the Patent Trial and Appeal Board (“PTAB”). Allergan admitted as much in its October 10 filing with the Court conceding that the alleged “consideration” provided by the Tribe was nothing more than the Tribe’s promise not to waive its sovereign immunity in the IPR proceedings. Thus, there has been no real change in ownership — just a maneuver to derail the PTAB’s ongoing review of Allergan’s patents. . . .

The sham nature of the transaction with the Tribe is further underscored by the fact that the Tribe did not pay Allergan a cent for the patents claiming Restasis, which generated $1.4 billion in 2016 sales, or $4 million dollars a day. Instead, it was Allergan who paid the Tribe $13.75 million up-front to take faux title to the Restasis patents. . . .

Now you know -- and we will update when we have PhRMA's actual brief in this appeal available to us.

UPDATED: the brief remains unavailable to the public, even now -- on Thursday evening -- after the distribution to the panel. If this persists tomorrow, we will send a New York Times style letter asking after the first amendment right of the people to know the positions of law advocated before the court, by special interest groups like PhRMA. That letter will prevail.

Onward, even as the January ice, of yet another new year presents. . . new opportunities -- and new potentials, for renewed. . . friendships, Dante. . . . Smile. . . .


Wednesday, January 17, 2018

Following Apple, Do Expect More Of This -- From Most Life Science Behemoths...

We have followed this particular narrative for a solid decade, here. So -- I mention it only briefly, not because it is minor -- it is major -- but I have other commitments tonight. . . .

I will return to it soon, as pharmaceuticals, bio-science and technology companies, among others, make similar moves -- because one thing the otherwise awful "tax package" may do. . . is spur the return of parked overseas cash, by the largest public US companies, by market cap.

I will have more, and soon -- as I expect Merck, Pfizer, Amgen and others will make a similar series of moves -- though not remotely on this scale. Apple holds some $320 billion in overseas cash -- while Merck and Pfizer are each under $100 billion. Overall, it is reliably estimated that some $3.1 TRILLION is parked outside the US -- in similar fashion.

That's some pretty pennies, there Corporate America. Still -- I am ambivalent about whether we have priced the return tax too cheaply -- too favorably, to big international businesses, given all the other rate cuts for them in that package. Here's Bloomberg, on it all, tonight:

. . . .Apple said it will bring hundreds of billions of overseas dollars back to the U.S., pay about $38 billion in taxes on the money and spend tens of billions on domestic jobs, manufacturing and data centers in the coming years.

The iPhone maker plans capital expenditures of $30 billion in the U.S. over five years and will create 20,000 new jobs at existing sites and a new campus it intends to open, the Cupertino, California-based company said Wednesday in a statement. Apple’s shares rose 1.7 percent to a record closing price of $179.10 in New York.

“We are focusing our investments in areas where we can have a direct impact on job creation and job preparedness,” Chief Executive Officer Tim Cook said in the statement, which alluded to unspecified plans by the company to accelerate education programs.

Apple also told employees Wednesday that it’s issuing stock-based bonuses worth $2,500 each following the new U.S. tax law, according to people familiar with the matter. . . .

And for Apple's relatively high-earning general rank and file, the $2,500 each isn't really much scratch -- though it will be taxed as capital gain on sale of the stock -- saving them a bit at the IRS 1040 window.

That said, getting $38 billion into the US Treasury general fund -- "without a shot fired" -- is always a good thing.

As I say, expect much more of this in the coming weeks. But this is no credit to 45 -- it is a credit to tax lobbyists, in the halls of Congress. Now you know -- it is highly likely that 45 doesn't even understand it (but he certain to crow that it was ALL his doing). Keep it spinning in good karma. . . as it is black tie season here. I'm out!


Of The "Tide Pod Challenge": And Of "Off-Target" Effects -- In Teenagers' Throats...

39 "poison incidents" handled in the first 15 days of 2018, here in the US. I feel a bit silly even typing this. And, in truth, a bit like a grumpy old guy for making an entire post of this -- but I gather it needs to be repeated. The so-called "Tide Pod Challenge" is stupid -- and dangerous.

Stupid kids do. . . stupid things. This one could get them killed, so I'll not link to any YouTube video purporting to show the stunt. The meme is to snapchat oneself whilst chewing up a Tide-Pod (or similar). Foaming at the mouth is (I gather) the hoped-for visual effect. Seizures, respiratory distress, loss of consciousness, and burns to the esophagus are among the more common ACTUAL "off-target" effects. [1,4 Dioxane is great for getting your clothes bright and clean, diluted in about three gallons of water -- but is potentially lethal when ingested in concentrated doses.]

Of course, there is no reason to ingest concentrated laundry detergent -- so all effects are "off-target". The molecule at right, an acid called 1,4 Dioxane is in the pods in significant concentrations, and will burn the throat lining, the esophagus and the lungs, if aspirated. [Martin Shkreli recently endorsed the meme (from his Brooklyn jail cell) through a surrogate -- on Facebook. He has given an acolyte access to his FB account, apparently. Charming.]

Also of course, Tide Pods are completely safe in your washing machine -- just not. . . your mouth.

From the American Association of Poison Control Centers -- a presser, dated yesterday:

. . . .According to AAPCC data, in 2016 and 2017, poison control centers handled thirty-nine and fifty-three cases of intentional exposures, respectively, among thirteen to nineteen year olds. In the first fifteen days of 2018 alone, centers have already handled thirty-nine such intentional cases among the same age demographic. Ingestion accounted for ninety-one percent of these reported exposures.

“The ‘laundry packet challenge’ is neither funny nor without serious health implications,” said Stephen Kaminski, JD, AAPCC’s CEO and Executive Director. “The intentional misuse of these products poses a real threat to the health of individuals. We have seen a large spike in single-load laundry packet exposures among teenagers since these videos have been uploaded.”

The resulting health implications from misuse can be serious. Known potential effects include seizures, pulmonary edema, respiratory arrest, coma, and even death. . . .

Now, maybe this is a good extra-credit lesson, for the regular track and AP level chem classes in our public high schools: a lesson delving into what these acids do to mucous lined internal tissues. All that would be needed would be any mammalian cadaver (throat parts, and lungs, essentially). . . as I've long held that nothing teaches like. . . seeing it, live. Here endeth my sermon. Do get out and enjoy the clear cold weather outdoors -- I know I will!


Tuesday, January 16, 2018

[U] Yawn. Any Final Decision Will Be Months Away -- But Trump Is Taking Appeals On Two Fronts, On DACA Injunction...

I promised yesterday, early in the morning (actually, very late on Sunday night, truth told) to keep an eye on the DACA advice I've given.

Mr. Trump's moves today. . . do not change that advice. If you are due to renew -- go renew.

45's lawyers said this afternoon, that in addition to the appeal they've made to the Ninth Circuit (good luck with that, boys!), Mr. Trump will also take a so-called interlocutory direct appeal/petition to the US Supreme Court.

Y A W N. . . .

My recommendation stands. [Significantly, the administration's lawyers did not seek a stay of the injunction from either reviewing court, so the current iteration of DACA will be the law, for at least three more months, minimum.]

Get in and renew -- prevent any lapse from occurring, and you will have a continuing (arguable) property-, and absolutely clear liberty- interest, by timely preserving your status, on your deferral papers.

In sum -- march onward, dreamers -- free of fear. At the moment, it is "snowy, dark and deep" out there, but in the courtroom (Supreme or otherwise) it is not the loudest voice that matters -- it is the Constitution. And you will be in good stead. The deferral was shored up in 2012 and 2014, by an excellent (if former) Constitutional Law professor from the University of Chicago. His name? Barack Obama. 45 -- meet your betters -- in every imaginable way -- meet. . . 44.


Kenilworth Continues To Post Nice Keytruda® Clinical Data: This Time In Lung Cancers...

Along with the new Keynote-189 top line details, I've re-published my own guess at Q4 2017 sales for pembrolizumab.

This is very good news for Merck, and consequently, the stock is up nicely, in the NASDAQ pre-market trading. Here's the presser:

. . . .Merck today announced that the pivotal Phase 3 KEYNOTE-189 trial investigating KEYTRUDA® (pembrolizumab), Merck’s anti-PD-1 therapy, in combination with pemetrexed (Alimta®) and cisplatin or carboplatin, for the first-line treatment of patients with metastatic non-squamous non-small cell lung cancer (NSCLC), met its dual primary endpoints of overall survival (OS) and progression-free survival (PFS). Based on an interim analysis conducted by the independent Data Monitoring Committee, treatment with KEYTRUDA in combination with pemetrexed plus platinum chemotherapy resulted in significantly longer OS and PFS than pemetrexed plus platinum chemotherapy alone. The safety profile of KEYTRUDA in this combination was consistent with that previously observed.

Results from KEYNOTE-189 will be presented at an upcoming medical meeting and submitted to regulatory authorities. . . .

Oh. And I cannot resist: Riot Blockchain is off another 12 per cent early this morning, on the NASDAQ. Hilarious.

Oddly, I was all done shoveling an hour ago -- but suddenly -- a solid white-out with sideways blasts is blowing through. . . should be a new few inches. So it goes. And we feature an ice-shelf on the masthead this early morning, in keeping with how much of the middle of the nation is feeling. Smile. Onward.


Monday, January 15, 2018

Sunday, January 14, 2018

PSA: Dr. King Would Have Spread The Word, Too -- Go Re-Up For Your DACA Papers, Now...

Because the able Judge Alsup's federal district court preliminary injunction -- against ending DACA -- is nationwide, and in full force and effect, and because hopes are dimming, at present, for a bi-partisan legislative solution -- this blog advises all current DACA recipients to go in and timely re-up -- along the below lines.

Significantly, the federal agency responsible (CIS) concurs. Mr. Trump cannot lawfully stop this -- read it all; and if it applies to you -- act now, as it will be a month or more before any appellate court modifies the trial court's order, in my estimation.

Again, do read the full federal update closely -- and then do move forward aggressively:

. . . .Jan. 13, 2018 | Update: Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017. . . .

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or
approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients. . . .

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D. . . .

If the rubric changes (yet again), I promise I will so advise, right here -- promptly. But in the mean time -- I am certain Dr. King would be working to keep dreamers here. And so, I will be, too. This cannot be specific legal advice, under applicable ethics rules, but I will answer in comments -- as I learn more facts, from anonymous or named questioners. Now you know.

'Twas a very tough break for the Saints -- and hard cheese for Tennessee, as well. . . . So sorry.


Smallish Update -- On Riot Blockchain, And Fiat Currencies...

There have been some developments, here on a sparklingly cold, clear and snow-dusted Sunday morning. . . that will almost certainly send shudders through Riot's NASDAQ trading when the markets re-open on Tuesday -- after the King Day holiday.

Do go read it all, but here is a bit:

. . . .At the head, let us quite soberly note that Riot Blockchain purports to mine bitcoin (and other cryptos, in the future) using Bitmain built boxes (1,200 of them at present). That is -- Riot is in the "raw materials" segment, if we think of bitcoin as a vertically-connected, if not yet integrated market segment.

Even so, all "raw materials" producers -- across all industries, ultimately need to get paid for their "proof of work" in a currency that may be useful -- one that may be used to buy and sell things, out here, in the real world. [And Riot has never officially disclosed whether it has a means to be paid in other than bitcoin, for its efforts. . . .]

A Forbes exclusive story reports that the so-called No. One "Bitcoin banker" -- the one bank most friendly to bitcoin transfer to fiat currency arrangements -- has, as of last Thursday night, placed a moratorium on all wire transfers in, or out, of bitcoins. . . .


This sort of calamity -- even if ameliorated, by other banks stepping in to handle new transactions -- still leaves the current holders in the lurch. And this sort of tom-foolery will scare real-world big businesses enough that many will rethink doing business in bitcoin -- that is my guess.

Let us now, each and all, go out to find our better and more noble selves, this King Day -- despite our small p president. Smiling quite widely, as I eat my potica, sip my fresh OJ, with some piping hot coffee. . . . Onward.


Saturday, January 13, 2018

A Second King Day Weekend In A Row -- Of Largely Unfathomable Hatred -- A Nation Divided, Under Trump.

It was one year ago, this weekend, that I wrote the below... I couldn't fathom a King weekend marred by an incoming president-elect insulting a civil rights icon like Rep. Lewis, in 2017. Fast forward one year, and the same president (small "p") has this weekend called out the entire populations of several nations, while openly preferring "Norway" -- on immigration matters. [What exactly makes a Norwegian-American preferable to a Haitian-American, in his eyes? I'll not wait for any answer. For none that withstands a rational, constitutional review will ever appear.]

I do believe Dr. King would have taken the Buddha's path here (see above masthead revision) -- and said "the truth shall not be long hidden."

I too will endeavor to now lightly take that path, and with a wide, self-mocking grin -- say that this particular "shithole" -- my tiny fiefdom -- is open and welcoming of all peoples, all nations and all self-ascribed identities.

That is, I for one think only light will counter and overcome. . . darkness, as Dr. King said.

So I will ignore 45 -- and smile on the millions of people of good will in this nation -- and the billions outside of it -- wishing one and all a peaceful, connected and uplifting King Day Weekend 2018. We will move forward. . . toward better days, together. Here is last year's installment -- for reference:


UPDATED Sunday morning (01.15.2017): I write on a King Weekend entirely unlike any I've seen in a generation.

This is a Rev. Dr. Martin Luther King Day weekend that saw the President-elect choose to deride-by-tweet Georgia Rep. John Lewis, a senior Congressman whose skull was fractured by police during a civil rights march, in Selma, Alabama with Dr. King -- over a half century ago. In fact, after Rep. Lewis exercised his right to resist the President-elect's legitimacy (citing the Russian influence concerns), and said he would not attend the inaugural, Mr. Trump insulted him as a man who is "all talk, talk, talk — no action or results." Recall here that as Rep. Lewis was being beaten on the bridge in Selma, to win us all the freedom of our full civil rights, Mr. Trump was dodging the draft at a privileged private school, in upstate New York. [And that was only when Trump wasn't discriminating against people of color -- in his father's rental empire. Talk? Meet action. . . .] This is also however, a weekend that saw Jennifer Holliday decide she could not be part of any endorsement of 45, or his policies -- and after first waffling a bit -- declined to sing on the night before the inaugural. So, I still remain optimistic.

I am optimistic because Rep. Lewis's book has sold out in stores around the nation, in response to 45's hateful, demeaning rhetoric. I am optimistic that people will simply turn off their TVs on Friday (as Cher has asked by tweet) -- as ratings are the only numbers 45 seems to value. I am optimistic that the crowds arriving by over 1,200 buses cleared into DC for Saturday next -- for the Womens' Protest March -- will dwarf the crowds delivered by those 200 buses cleared for the inaugural itself, on Friday.

I think Dr. King would say this is a time for peaceful, non-violent action -- but a time for action, no doubt. [And an update, from July 10 of last year -- of profoundly wonderful memories. . . .]


Thursday, January 11, 2018

Color Me NOT Entirely Surprised: A New Vote -- On Brexit?!

Well -- we have long said that we expected all the time-lines to stretch out. . .

But a new referendum? That's pretty. . . cheeky. [And to be clear, I still think Merck's coming London-area hub will remain, regardless.] Per the (UK) Guardian:

. . . .Nigel Farage’s surprise call for Britain to prepare for a second EU referendum has ignited hopes among anti-Brexit campaigners that both sides of the debate will back a poll on Theresa May’s final deal.

The former Ukip leader shocked his colleagues on Thursday by suggesting another Brexit vote, arguing it would lead to a more decisive victory for the leave campaign and silence remain supporters for a generation.

His intervention was immediately seized on by those who believe another referendum is the best way of overturning the result, including former Liberal Democrat leader Nick Clegg and Labour peer Andrew Adonis, as it was seen as a sign that political pressure is building for a poll on the final deal.

Although the prime minister has insisted she will not allow another referendum, bookmakers Coral and Betfair slashed the odds on another poll before the end of 2019 to 5-1. . . .

The amount of capital that has already been redeployed is staggering -- so I suspect this will (yet again) simply delay matters -- not change the ultimate outcome. But do your own diligence here -- I've sorta' stopped following it very closely. . . and, g'night, now. . . off to see if sleep will find me.


[U] Just To Complete The Record: States’ Medicaid "Work Requirements" -- Not Likely To Be Meaningful.

I may (in late night high-jinks!) or may not spend time on a graphic here, since I view it as unlikely to be any materially meaningful long term change. [Moreover, to the extent that any red state tries to use it as a sharper spear, to purge its rolls of sick and disabled, there will be litigation -- and that litigation will meet with success -- think of federal Americans With Disabilities Act type claims. there.]

To keep a complete record, though -- in theory, the Trump administration has today announced not a binding rule, but just a view, essentially -- that states may (within limits) impose a "looking for work" requirement -- on otherwise able-bodied potential Medicaid recipients.

Yawn. Given that the vast majority of people who are NOT already disabled and are on Medicaid ARE ALREADY working, this is a "solution" in search of a problem. Most workers on Medicaid are on the program precisely because their employer does not provide health insurance coverage for them.

But it is a red-state anti-entitlement talking point -- so expect to hear more of it. I am unlikely to say much more about it here, though. Now you know.

Warm and cloudy this morning -- but a hard freeze again soon approaches, here. . . be excellent to one another.


Wednesday, January 10, 2018

What's Next? At Trial Level, In Muslim Ban 3.0 -- In Federal Court In Maryland...

While we await a published opinion on the appeal now pending in the Fourth Circuit, and any additional action by the US Supreme Court, on the Ninth Circuit decision now pending on a motion before the Supremes. . . I thought I'd follow the intervening briefing schedule, down in Maryland.

So here that is, in full:

. . . .Government's Motion to Stay | January 19, 2018

Plaintiffs' Cross Motions for Entry of a
Scheduling Order and Memorandum of Law in
Opposition to the Government's Motion to Stay | February 2, 2018

Government's Reply Memorandum of Law in
Support of the Motion to Stay and
Memorandum of Law in Opposition to Plaintiffs'
Cross Motions for Entry of a Scheduling Order | February 9, 2018

Plaintiffs' Reply Memorandum of Law in Support
of the Cross Motions for Entry of a Scheduling Order | February 16, 2018. . . .

Now you know. Stay warm, as the rain turns to. . . ice storms and snow now, by Friday night. . . . in an entirely new, but justified and ancient -- "shape of water". . . smiling, widely but. . . wryly.


More Federal MDL Propecia® Cases Dismissed, By Overnight Order -- In Brooklyn...

Here was our link to the end of December's installment, on this topic.

And here is this week's set of dismissals. Some of this week's dismissals are qualified -- to allow time to find a new lawyer (upon a showing that the original notice was never sent/or not received), thus:

. . . .However, the following three cases are not dismissed:

• 13-cv-4194, Jensen: Plaintiff Jensen’s counsel never moved to withdraw, so dismissal for failure to prosecute pursuant to PPO 16 would be improper.

• 15-cv-2098, Tyler: As the Court stated in its order dated November 8, 2017, Tyler has already told the Court that he intends to proceed pro se, and therefore this case should not be dismissed for failure to prosecute.

• 14-cv-2482, Wall: In a letter to the Court dated December 12, 2017, plaintiff appears to state that he intends to proceed pro se until he finds alternate counsel. Although plaintiff’s letter was untimely under PPO 16, the Court concludes that his case should not be dismissed for failure to prosecute because he submitted the letter notifying the Court before the Court had dismissed his case. . . .

In addition, for the reasons described below, the following two plaintiffs, [Redacted] Potenzano and [Redacted] Rowland, are granted a 20-day extension from the date of this order to either (1) inform the Court whether they intend to proceed pro se, or (2) to have new counsel enter an appearance on the record for them. If the following plaintiffs fail to do either of those two things within 20 days of the date of this order, their cases will be dismissed. . . .

Now you know -- in a balmy whiteout -- 29 floors up. . . .

". . .Now, when I think of her. . . all that comes to mind is a poem, made of just a few truthful words, whispered by someone in love, hundreds of years ago:

'Unable to perceive the shape of you, I find you all around me. Your presence fills my eyes with your love. It humbles my heart, for you are everywhere.'. . ."

Indeed. I think that poem fragment — likely an early translation of J. Rumi — helps explain. . . much. At least I hope it does. . . .


A Big Win For Scientific Innovation -- And Procedural Fairness, In An Immigration Setting: "DACA Destruction" Enjoined, Nationwide

Not at all surprising to anyone who reads this space regularly, Mr. Trump’s tweets have (yet again) been his undoing, in a court of competent jurisdiction.

The overnight order lasts until a higher court finally resolves the litigation, but applies nationwide and it is a clear victory for Dreamers. Here is the overnight order, by the able Judge William Alsup, sitting in California's Northern District -- and the sharper end, of its spear:

. . . .We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended. . . . For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation. . . .

In short, what exactly is the part of DACA that oversteps the authority of the agency?

Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades. Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law. Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?

Significantly, the government makes no effort in its briefs to challenge any of the foregoing reasons why DACA was and remains within the authority of the agency. Nor does the government challenge any of the statutes and regulations under which deferred action recipients obtain the foregoing benefits. . . .

Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94 (1943); Safe Air for Everyone, 488 F.3d at 1101. . . .

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application. . . .

We are indeed smiling broadly, here in the morning fog, as we head out on foot, to the train. I think -- on executive orders, broadly speaking, Mr. Trump is close to 0 for 24, in the courts. Most batters get sent to the minors, when they strike out twenty four times in a row. Time to send old number 45 down to the Mud-Hens, for certain. . . paging Skipper Mueller -- time to waive this guy outright.


Monday, January 8, 2018

[U] Returning To "Power Alley" Stuff... Pfizer Calls It Quits -- On Alzheimer's R&D

Updated @ 6 PM EST: Do watch the Meg Tirrell interview for more on this, toward the end of the segment. And catch Mr. Frazier’s glancing clap-back at 45 — about one and a half minutes in. . . Smile. End update.

I do know that Kenilworth's verubecestat program differs (and perhaps differs markedly) from the ones ever-squirrely Mr. Read was running -- but I think any sober person needs to carefully consider how many have fallen on their swords before them, here: Baxter, Lilly, Amgen, and now (larger than all of these put together). . . Pfizer.

The caution flags should be out, for Kenilworth. Bloomberg had it all, overnight:

. . . .The move to end the neuroscience-discovery program followed an internal review, the New York-based drugmaker said in an emailed statement. The job reductions will primarily affect employees at facilities in Cambridge and Andover in Massachusetts, as well as Groton, Connecticut. . . .

That's hundreds of millions of dollars. . . gone -- as well as 300 fine science jobs. Now you know. . . watching a chilly sunset -- in the steel canyons, jut beginning. . . be excellent to one another.


For My #Me Too Pro Bono Clients...

I won't definitively opine (just yet) on whether I think she's made of historic, real and solid presidential timber. . . .

But I will note that she already vastly exceeds the current occupant at 1600 Penn, on every salient dimension -- and in every meaningful respect -- if one were prone to making comparisons. Essentially any comparison that ought to matter to any sentient voter (in today's context). Consider the below -- from last night (courtesy my home town rag):

. . . .I want all the girls watching here and now to know that a new day is on the horizon. . . .

What I know for sure is that speaking your truth is the most powerful tool we all have. . . .

And I’m especially proud and inspired by all the women who have felt strong enough and empowered enough to speak up and share their personal stories. Each of us in this room are celebrated because of the stories that we tell. And this year we became the story. But it’s not just a story affecting the entertainment industry. It’s one that transcends any culture, geography, race, religion, politics or workplace. . . .

So I want tonight to express gratitude to all the women who have endured years of abuse and assault, because they — like my mother — had children to feed and bills to pay and dreams to pursue. They’re the women whose names we’ll never know. They are domestic workers and farmworkers; they are working in factories and they work in restaurants, and they’re in academia and engineering and medicine and science; they’re part of the world of tech and politics and business; they’re our athletes in the Olympics and they’re our soldiers in the military. . . .

I am certain that she would listen — to people more experienced than she is — again completely unlike 45. Now you know. Onward, on a clearing Monday -- with just a dusting of new fluffy snow. . . Onward. Smile.