In this Duane Morris unredacted letter filed near midnight East Coast time on Friday, we see that Martin was discussing creating a voting trust arrangement, for his Vyera shares (now Phoenixus), as a means to ostensibly insulate the company from the negative publicity his name continued to generate, while not committing a violation of the "no asset transfers" order, under the US Marshals/DoJ forfeiture proceedings -- those signed off on, by the able USDC Judge Matsumoto, in the course of closing out those earlier felony securities fraud matters.
This effort, we are told, fell apart when Vyera's other principal / co-controlling parties... insisted that any indemnity under contracts or under insurance policies, to Martin, for acts while an officer or director of that by then beleaguered company, would be conditioned upon his agreeing to release his voting control -- of some overall 43 per cent -- to an irrevocable trust, with an independent trustee appointed to oversee it.
A trustee who, under applicable fiduciary law, would only vote for what was best for the company, as an entity -- not Martin -- individually.
That's where (we are told) the discussions broke down, and Martin -- to this day, presumably -- retains outright share ownership of what is now called Phoenixus. Specifically, as we understand it, he remains the single largest voting block, in that company's securities. [That is why this discovery fight is likely outcome-determinative, for Phoenixus / Vyera -- as to the FTC's allegations. It is hard to argue that one's controlling shareholder was not acting for the company.]
The letter also argues that just because two of the lawyers apparently gave a fair amount of directly-solicited business advice, beyond just advice on creating the voting trust (and exclusive API agreements with RL Fine, among others), these lawyers' communications should not be disclosed -- under a matched pair of privilege logs.
I do not expect that argument will win the day.
Given that everyone in each call or exchange well knew the communications were being monitored by BoP, it is illogical to assume that business advice given to Martin, related to any allegedly unlawful restraint of trade, and/or antitrust activities inside the US (regarding the marketing and sale of Daraprim®) -- even if from lawyer of his. . . might ever be shielded, from law enforcement.
The "expressions" therein arguably contained, cannot be shielded from law enforcement -- as they are completely different than a free, otherwise law abiding citizen's penning of private, on parchment, letters -- long hand with a quill-pen, then storing them inside a locked safe or desk-drawer, inside his or her home. And allowing no one to see those intensely private thoughts.
Those letters may express a desire to violate the law, and be protected from governmental eyes, so long as the author(s) do not take a substantial step toward carrying out lawless activities (at which point they would become available as proper conspiracy charges, after a warrant issued, on full probable cause). But effectively writing on a public wall, for all to see, from inside a federal jail -- that must be within the guards' purview to monitor and correct -- and forward on to (for example) the FTC. In sum, the guards are duty bound... not to avert their gaze.
In sum, the public has a quite understandable right to be protected from such activity.
That is the end of this. . . sermon.
Travel well now, RBG -- we will miss you. Terribly. But we well-know you will travel with the airily-gossamer grace. . . you showed us all, in life. . . .
नमस्ते
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