We have now read the 38 page brief filed overnight by a 501(c)(3) mostly known for promoting Kevin Sorbo's movies on biblical Christianity.
Uh-huh.
The author argues that because no jury found Mr. Shkreli worthy of a life time ban, the remedy expressly set out by statute in the Sherman and Clayton Acts. . . ought to be suspect.
As I am certain the FTC's able counsel will point out, as it gets its bite at the apple (in its March 2023 brief), that proves. . . entirely too much. Afterall, it was Mr. Shkreli himself who decided to WAIVE his right to a jury trial, in the Daraprim case.
Obviously, Mr. Shkreli did so out of the real fear that a jury's passions would be inflamed by the egregiousness of his endangering humans' lives, by his shocking price gouging. [See pages 104, et seq. of his sentencing transcript, which indicates at least one AIDS patient died, due to his price gouging (for lack of availability, in-hospitals, of a drug with such a high price point -- not enough could be stocked, without bankrupting other needed med budgets).]
So -- wisely, I think, Martin chose a bench trial -- fully aware that the Sherman and Clayton Acts allow permanent injunctions for egregious conduct. [See the payday lender cases.]
The amicus thus offers his own answer: The injunction is proper where the jury outcome might have been far worse, and the defendant consciously chose the guiding hand of USDC Chief Judge Denise Cote, in the hope that her dispassionate views might accord him some additional measure. . . of mercy.
Indeed, she chose not to impose the highest end of the market damages (as set forth by the expert testimony) even though Martin CHOSE not to offer essentially any countervailing market expert for defense testimony, and the able USDC Judge chose to give Martin more credit on his documentary evidence (via ignoring some of the illicit jail cell calls), and relying instead on documents Martin himself directed and approved at Turing/Vyera.
She also relied on at least a few MONITORED jail-house calls, ones which Martin well-knew were being recorded, by BoP. That he willingly and egregiously, repeatedly violated Sections 1 and 2. . . is beyond dispute.
Yet the amicus would ask the Second Circuit to believe Martin could not have known that what he was doing, from 2015 to early 2021... was unlawful. Riiiight. And that somehow, magically, the FTC would have been required to force Martin to accept a jury trial, in order to win an injunction -- a path Martin's Fifth and Sixth Amendment rights clearly prevented.
All of this, despite several calls with Mulleady into 2019, where he was told the lawyers said "no" -- to his lawless schemes.
Yeh -- this all proves far too much, Mr. Huff.
But for what it is worth, here is his punchline:
. . .[T]he longstanding equitable principle [is] that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994), merits special emphasis. . . .
[W]hatever relief is ultimately entered, it should satisfy the same traditional principles that bind courts of equity in all cases. Courts sitting in law are free to impose punishments, issue civil fines, condemn egregious conduct, and otherwise fashion punitive remedies that serve general deterrence -- but those punishments at law carry the added protection of a jury trial. Courts of equity, by contrast, sit without juries and are confined to remediation. Permitting the FTC’s Section 13(b) power to stray beyond traditional principles of equity and morph into a tool of punishment would set a disturbing precedent. . . .
The evidence showed over $64 million was the damage to all consumers, in artificially inflated Daraprim prices, over many years. It showed Martin wanted to raise prices even more, on other older drugs -- just like he had, at Vyera.
In sum, he was a walking antitrust crime spree (even though this was strictly a civil violations case) -- and he well knew it, after his felony trial ended in convictions.
Again -- Martin loses. This was not an administrative hearing inside the FTC, as the amicus errantly assumes. This was a full on US District court public trial, joined by multiple state level AGs, and one in which Martin tactically chose to avoid the danger of a jury's wrath.
People died -- this isn't a case where people paid a little too much for a loaf of bread.
Game over. Martin will be banned for life. That is the best way to safeguard the health of our nation's patients -- many of whom live near (or deeply in. . .) poverty already, due the price of their medications. Yikes.
Out.
नमस्ते
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