Thursday, November 17, 2016

[U] A Five Page Letter, Partially Explaining The (Allegedly) Criminal Mess Mr. Shkreli Made -- By "Tangling Up" At Least Four Companies

UPDATED: 11.18.2016 @ &PM EST -- Well. Cooley LLP has effectively (once again!) put the lie to Mr. Shkreli's seemingly-endless shenanigans, here. See all the factual matters about which he has apparently been quite cavalier -- even with the lawyers he's entrusted to secure his continued freedom. Crazy! End, updated portion.

Overnight, in the Brooklyn federal District Court, as ordered, Mr. Shkreli's counsel in the eight count felony criminal matters has filed a five page summary of the "meet and confer" session -- related to the would-be waiver of his attorney-client privilege (by Mr. Shkreli, personally) -- specifically while he was represented by Katten Muchin. [The problem is that he personally is not the only party in interest, as to these still-privileged documents. And keep in mind the notion that the author of the letter is presenting all of it in the light most favorable to Mr. Shkreli.]

Now, to be sure, Katten is a very good firm -- uniformly well-qualified lawyers, throughout.

That should be said right at the head, here.

Even so, the attached publicly filed letter rather neatly points out what often may happen when an (allegedly) unscrupulous controlling person asks one single law firm to handle many of his Byzantine company dealings -- especially where the interests of some of the (only partially controlled) companies are, or may become, adverse to one another -- and one or more of them are public companies, with unaffiliated public shareholders, deserving of fiduciary, and securities law protections, under applicable law.

Do go read the five pager, but suffice it to say that it is likely (in my view) that a court order will be needed, here. No meet and confer is going to yield a clear agreement on many of these matters. In fact, from at least November of 2011 through at least April of 2012, Katten may not even be able to clearly articulate whom it thought it was representing -- in several of the situations.

Separately -- and importantly, Retrophin -- the public company, has explicitly NOT waived its privilege -- as to many of the matters that touched it, related to Mr. Shkreli (primarily where Retrophin alleges Mr. Shkreli disadvantaged it, or its unaffiliated shareholders, to the benefit of other of Mr. Shkreli's by-then only partially controlled other companies).

It would seem to me that even though our criminal procedure rules are sometimes manipulated by high net worth defendants (like Mr. Shkreli, using an overly aggressive presumption of innocence, to "manufacture" all sorts of supposed constitutional violations), it wouldn't serve the ends of justice to decide that Mr. Shkreli's (at best) very sloppy conduct, as to the records and separation of his companies -- should be an escape hatch, for defrauding innocent shareholders, and the public -- by later claiming that he was unfairly disadvantaged at trial because not all parties he once controlled would waive their privileges, globally.

Finally, it is now clear that Marek Biestek (Mr Shkreli's friend -- since high school, apparently) has waived all privilege, as he too was apparently represented for at least a time, by Katten lawyers. This sets up a fascinating end-game. More on that another day, when I am less sleepy.


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