Wednesday We Should See The HHS / CMS Reply Brief — In Merck’s Silly Suit To Prevent Drug Price Negotiations. It Should Offer… Compelling Arguments, Against Mr. Davis’ “Folly”.

November 27, 2023November 27, 2023 ~ condor ~ Leave a comment

To be sure, we will have it for you, in full, on this Wednesday evening.

Since the last round of briefing, Merck — along with several other big pharma companies, agreed to sit down at the table to negotiate pricing — on at least the ten initial designated drugs. The companies claim to reserve their right to continue the argument that the government cannot demand price negotiations… but in all likelihood, this is just a face saving way for them to let these suits die. Doubly so, after the governmental agencies offer a reply brief this Wednesday night:

…THIS COURT ORDERS that Defendants’ [the federal governmental agencies’] reply brief is due NOVEMBER 29, 2023; their page limit is 45 pages. Signed by Judge Colleen Kollar-Kotelly on 11/9/23….

So tune in then — should be… a hoot. While I am sure Mr. Davis is no Ken Frazier, I generally view him as a solid executive. I’m not sure which set of lawyers convinced him this stupefying stunt / suit was a good idea… but he ought to cashier them.

Onward.

नमस्ते

It Seems That There’s An Errant Belief Down In Del Rio… That The US Constitution… Just Amounts To Some… “Guidelines” — Texas Is Free To Ignore…?

November 27, 2023 ~ condor ~ Leave a comment

Last week, we mentioned in passing that we noticed Judge Moses has marked a scheduling companion order, for today’s quite newsworthy hearing, as available exclusively to “parties, and lawyers with appearances on file“.

I guess down in West Texas… some federal judges (including the Chief one) see the First Amendment as… just a… suggestion.

As we intoned last week, here’s why this matters. [Though I suspect Judge Moses will hear from the Fifth Circuit — where this will be decided, likely after today — if she doesn’t lift her TRO against the CBP.]

…Absent a documented showing of unreasonable administrative burdens (and a separate two page order — No. 43 — published at the same moment, makes it plain that this is no administrative burden case), the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, she has not quantified the cost… nor has she detailed the additional labor that would have been required)….

Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about. . . efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).

Specifically, a pre-trial scheduling order in this matter has entered by the court just now (ECF Doc. No. 44, 11/21/2023) but remains entirely invisible to the public. Of course, while redactions for trade or governmental secrets (and sensitive, personally identifying information) would be normal, there has been no such effort made, on the part of the court. It seems court staff sua sponte designated ECF Document No. 44 “attorneys’ eyes” only.

Based on my now comprehensive review of the ECF record in this matter, it is clear that no public court order — whether in writing or issued orally from your bench — has set forth the findings required by the First Amendment, prior to the removal of this judicial document from the record. See, e.g., Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990)….

Onward, grinning. Will she do the right thing? We shall see… as early as later this evening.

नमस्ते

The First One We Ever Covered, Here — Was Blankenship’s Massey Energy “Big Branch” Coal Mine, 2010: 29 Miners Dead. OSHA Violations A Go-Go.

November 27, 2023 ~ condor ~ Leave a comment

This is technically a bit below my arbitrarily-chosen “40 fatality” threshold — but it was among the most egregious (for OSHA / law violations later revealed, at the Upper Big Branch Mine).

The Upper Big Branch coal mine disaster in Raleigh County, West Virginia happened mid-shift on April 5, 2010 — 29 miners perished that shift. Federal mine safety investigators determined a buildup of methane gas and coal dust led to the explosion at the Massey Energy-owned mine.

Don Blankenship later sued various news outlets, alleging libel and slander. He lost every case. And he went to jail in 2015. [His final libel appeal was tossed by the Supremes this past summer.] He personally had to pay a $250,000 fine, and a successor company had to pay about $210 million to the families of the dead miners. Here’s just one of dozens of stories on it all, below. And unsurprisingly, he is a mega-Tangerine donor, and friend:

…Massey CEO Don Blankenship was convicted in December 2015 of conspiracy to violate mine safety and health standards. He served one year in prison and paid a $250,000 fine.

Other Massey executives and mine officials were convicted and sentenced to prison for their roles in the disaster.

Massey was sold to Alpha Natural Resources in 2011. Alpha paid a $210 million settlement with the families of the workers and to address years of safety violations….

Now you know. Back to life sciences, proper, tomorrow — though dirty coal / energy policy is in fact… only a skip and jump from life sciences, epidemics of death, and Black Lung disease management (CDC) efforts. Onward.

नमस्ते

Just For A Complete Record — As We Await USDC Judge Alia L. Moses’ Afternoon Hearing And Arguments — In Del Rio, Texas…

November 27, 2023November 27, 2023 ~ condor ~ Leave a comment

We will drop a link to the exceedingly dubious supplemental memo of “law” Gov. Abbott’s boys filed this morning, ostensibly to answer the very solid one from CBP of last week.

In it, Texas preposterously argues that common law (or a few moldy old non-controlling cases, in disparate areas of local state law) will trump any Congressional/federal statutory grant of explicit authority to federal border authorities, to use its discretion in apprehending asylum seekers along the Eagle Pass section of the Rio Grande… either on land, or in the water.

That’s just… silly. Were that true, no state would ever have to follow (for example) EPA rules, or IRS directives on capital gains or trusts and estates transfer taxation — if that state said “well, that is a burden on our state’s citizens”.

As I say, that cannot pass a straight face test. Let’s now see if Alia Moses will adhere to clear and long-standing federal law, as the Chief USDC Judge in West Texas.

Onward, grinning… as the Sun is out, but the air is crisply chilly — over the newly fallen, very bright white snow, here….

नमस्ते

Another Chinese Coal Mine Disaster: February 2023 — At Least 53 Dead Or “Missing” In Alxa League, Inner Mongolia, Open Pit Landslide…

November 26, 2023November 26, 2023 ~ condor ~ Leave a comment

As by far the largest burner (and thus miner) of dirty coal, planet-wide — Beijing and many other cities are often dusk-like at noon, for the coal soot in the air.

But while the coal in those cities powers vital factories and keeps millions of ordinary homes lit and heated — much of the coal in remote northern China — in Inner Mongolia for example, is used (against government decrees) for Bitcoin mining.

Here “the mountains are high, and the Emperor [Xi] is very far away” is the rule that applies. So, too — even as to mine safety standards, with many Muslim migrants serving as the labor / landslide fodder. This is the latest large coal mine disaster, in China — with 53 dead, as of last February — and a bit, from The LA Times’ reporting then:

…Rescuers with backhoes and bulldozers dug through tons of earth and rubble for 48 people missing after a landslide buried an open-pit mine in northern China on Thursday. Chinese broadcaster CCTV reported that the death toll in the disaster rose to five. [Ed. Note: no others were ever reported to be found alive — and this is Xi’s “management of information” — only 5 dead miners is a small matter; declare the other 48 (53 total) as just “missing”. And no follow up report. Same thing happened in the Chinese gold mine cave in of January 2021 — total fatalities were likely over 50; five were reported dead; 11 reported rescued.]

Conditions in the area remain dangerous, and the search had to be suspended for several hours after a second landslide at the gigantic facility in Inner Mongolia’s Alxa League….

I will likely only post these additions to the series… when there is no big pharma news, on a week day — or on weekends. Onward, out into the thick slowly wheeling white flakes now steadily falling here. Smiling in spite of myself.

नमस्ते

Hinderaker Sees Paris — For The First Time In His Life — At Xmas, No Less… And His Main Reaction Is About.. A Kids’ Board Book

November 26, 2023December 3, 2023 ~ condor ~ 2 Comments

His pungent take on the board book series, dedicated to various heroes of history (this one including Greta Thunberg, a child herself, at the time!) is very predictable.

Monotonously boring, in fact.

No, what is truly surprising to me, is… that he’d never been to Paris — in nearly 70 years. Never. Despite having been (for a time) a worldly, globe trotting litigator at a major AMLaw 100 law firm (out of Minneapolis). The odds of not having a business trip there, at least, in such a career… are vanishingly small (unless he had repeatedly refused to go, given his hard right bent, at the firm).

And perhaps she’s not yet achieved the stature of… a Charlemagne, in John’s eyes — but she is a prime example of what children can do, if they just don’t take “no” for an answer.

And — remember — these are kids’ board books. But in his travels, he makes no mention of this Gauguin, at the Musée d’Orsay (at left), or anything else in the city of light — at Christmas (as above right). [In truth, my favorite time to be there… is Spring, when everything is in a fragrant bloom, as you come up out of the Metro… but that is just…a quibble.]

Yeh. He’s become a… boringly-provincial, myopic… lil’ old man (how does his wife stand him?!). Heh.

Series Beginning: World Survey — Mine Disasters, 2010-Present, Involving 40 Or More Fatalities…

November 25, 2023November 25, 2023 ~ condor ~ Leave a comment

While we’ve previously occasionally mentioned mine deaths in South Africa (gold — 900 miners trapped, but all eventually safely brought to the surface with only minor injuries — but that is clearly the exception which proves the rule, here), China (gold), Kazakhstan (coal) and West Virginia (coal) — as well as Turkey (coal), since we started this blog generally in 2007, tonight we will begin officially tallying all (2010 or later), in between regular posts, that involved 40 or more fatalities. And when we reach ten such posts, we will create an index post, which captures all in an html linked running summary table.

Musk’s family money came from emerald mines — in his apartheid-era South African homeland.

So, to get to it — this one tonight is a technically an open pit mine disaster, as in what used to be called Burma, the jadeite is pulled directly from very unstable, wet-clay overburdens, often on steep hillsides — and mine sites are thus quite prone to mud-slide disasters whenever it rains… which is quite often. Add to this, that the safety regulations aren’t much enforced, the military comes through and more than occasionally loots the work-force of finds — as the miners are mostly unauthorized migrants earning under $5 per week, even on a “good finding week“, for back-breaking shovel work. Here’s the MSM feed / record on that July 2020 jade slide that killed over 170 people:

…Win Kyaw, 44, worked as an unauthorised jade picker for 20 years and managed to find pieces that were only worth $10-$15. He said his son, Kyaw Myat Moe, 20, who was killed in the landslide, had managed to find two big pieces but those were taken away from them.

“My son got two big stones last year but a group of soldiers from the Myanmar army took them from him. If we find a big stone, they always come and ask for it,” Win Kyaw told Al Jazeera.

On the day of the accident, Win Kyaw had asked his son to go to work without him as he had some other business to handle. [His son perished in the mudslide that afternoon]….

So many of the things we simply take for granted here in the US… come to us, literally from the dying laborers across the planet. If you own jade earrings, or wear a jade pendant, on a gold chain… know that there is likely death, imbued — in all of it.

नमस्ते

Mirengoff Was Never A Prosecutor — And Never Practiced Crim. Law… Obviously.

November 25, 2023 ~ condor ~ Leave a comment

But that is the most charitable version of denouncing his insipid remarks on the DC Circuit oral argument heard this past week.

He equates it all to CIVIL cases, about money damages, about which he’s had some considerable experience.

But it is CRAZY to argue — in a system of ordered liberty — that if Al Capone were to run for president, he would have been allowed to threaten Elliot Ness at his campaign rallies, or threaten any of the dozens of felony witnesses against him.

That is, we as a people have (at base) to be able to assure that criminals will be prosecuted, without the taint of witnesses clamming up against them — as a result of threats.

In sum, we the people possess a higher right to protect the integrity of felony processes (to keep our society from returning to the law of the wild — animalism), than some moron’s right to tell lies on a campaign circuit.

IDGAF that he’s running for office. Given how violent so many of his minions have shown themselves to be… he MUST be prevented from having judges and prosecutors and witnesses… killed, maimed or menaced into silence.

We the people… are entitled to order him to shut his fat mouth, on it all. We are. See… 18 USC § 1512; United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), and In Re Quarles, 158 U.S. 532, 535 (1895).

Fourth Update: The Horizontal Auger In The Himalayas Is Eighty-Sixed. Cannot Be Repaired (Now Hand Drilling Underway); But Vertical Shaft Drilling Continues…

November 25, 2023November 25, 2023 ~ condor ~ Leave a comment

While there is only about 40 linear-foot of horizontal drift yet to drill out, the continuing slippage of bad rock there makes it “two ahead; one back”. And now, the horizontal auger — a huge, hulking piece of black soot belching diesel machinery, has completely broken down — it must be replaced. and so, a new one is wending its way overland from the south by eighteen wheeled truck. [Prior post here.]

The only good news it that the vertical shaft work is progressing, with a new overhead driller. At this point it looks like the team needs to drill out almost 360 feet, to get to the miners. So — as I said, we are perhaps a month away from the miners’ emergence from the dark. Here’s a Saturday-datelined ABC report:

…The [horizontaal] drilling machine broke down late Friday while making its way through the rubble, stones and metal, forcing the rescuers to work by hand to remove debris in hopes of reaching the stranded workers, but the whole operation has currently ground to a halt.

Arnold Dix, an international expert assisting the rescue team at the accident site in the mountainous Uttarakhand state, said it is unclear when the drilling will start again.

“The machine is busted. It is irreparable,” he told reporters. “The mountain has once again resisted the auger (machine).”

Dix said the rescuers would need to pull out the entire drilling machine and replace it to restart the digging. He didn’t specify how much time it would take….

We are mindful that hot food, water and fresh air are all being delivered, on the regular — but getting them all out is still a fair piece off. Do keep them in your meditations — they need more good ju ju.

नमस्ते