Category: Uncategorized

Sanity Is “Attempting A Comeback”, In The Sixth Cir., For The Good, Kind, Open-Minded People Of Tennessee (The Clear Majority)…

~ condor ~ Leave a comment

Late last night, the able lawyers for Friends of George’s filed in the Sixth Circuit, to have the whole court rehear this matter, en banc. That is — with all the members of the court — not just the two or three hardest right ones.

The reasoning is plain — and may well prevail: the hard right members picked up their pens, and on their own, rewrote the statute Gov. Lee signed — taking the most onerous parts of it out (weakening it, and making it not the law Tennessee actually passed), solely to prevent a successful challenge by George’s, on US Constitutional grounds. Even so, should George’s not be granted an en banc rehearing, it seems clear the plaintiffs will get cert. in the Supremes — and it seems they will file there, if need be. Here’s the muscular 63 page overnight filing — and a bit:

…First, in concluding that FOG lacked an injury in fact, the panel rewrote the Tennessee Act — adopting two different limiting constructions at odds with the statutory text and foreclosed by decisions of the Tennessee Supreme Court. The Supreme Court and this Court have repeatedly held that federal courts “may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” United States v. Stevens, 559 U.S. 460, 481 (2010). And a federal court must be especially wary of rewriting a state statute, lest the court “trample on the principles of federalism.” Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372, 387–88 (6th Cir. 2009) (quotation marks omitted). In rewriting the Tennessee Act, the panel contravened these precedents….

Second, the panel heightened the standard for establishing the likelihood of enforcement. This Court’s precedent requires a plaintiff to establish (1) “a substantial probability that the plaintiff actually will engage in conduct that is arguably affected with a constitutional interest,” and (2) “a certain threat of prosecution if the plaintiff does indeed engage in that conduct.” Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438 (6th Cir. 2017) (emphasis omitted). Yet in this case, the panel conflated these requirements — demanding near certainty that FOG would engage in the conduct in the first place, as well as the prosecutor’s specific expression of intent to prosecute FOG in particular.

This too contravened binding precedent, which does not require the showing that the panel demanded. As a result of the panel’s decision, Friends of George’s can protect itself from criminal prosecution only by censoring its First Amendment-protected expression. More generally, the panel’s decision risks foreclosing a wide range of pre-enforcement challenges to plainly unconstitutional restrictions on speech — forcing speakers to adopt “a cautious and restrictive exercise of First Amendment freedoms.” Counterman v. Colorado, 600 U.S. 66, 75 (2023)….

Now you know. [With a bonus legacy story out of Kingsport, Tennessee, here.] Onward, smiling widely. Get ’em!

नमस्ते

A Second Collaboration Agreement For Merck With Prelude: Definitively Immaterial, But Good News…

~ condor ~ Leave a comment

Ahem. Personally, I think the reaction to Rahway’s lowered and tightened guidance on non-GAAP earnings is overwrought. From my perspective, this is a chance to buy in at a discount — created by largely irrational hand-wringing, and a willful blindness to the cash cow of Keytruda, through to the mid 2030s. But what do I know? I’m just one guy with a blog [but one that has closely followed Merck since (checks notes)… early 2007]. Heh. Anyhoo….

While it is true that the rate of growth of Gardasil sales in China moderated last quarter, that is by no means where the company’s earnings wheelhouse really resides. Keytruda is blowing the roof off of expectations, and its margins are… world-class. So, I’d not lose any sleep over this dividend giant’s momentary speedbump. In fact, if you have free cash — I might buy more.

That said, we did notice a small Delaware development stage company has now signed a second (terms withheld) deal, to work on combos with the juggernaut pembrolizumab, thus:

…The agreement with the $60 billion multinational company aims to evaluate Prelude’s leading cancer drug treatment, particularly in how it interacts with Merck’s blockbuster immunotherapy drug. Terms of the study have not been disclosed, however, Prelude officials predict it will reveal more details once the company has concluded its first phase of the trial on the drug this year.

Partnerships between drug development companies are common, as are some companies with limited financial runway, as it shares the costs and the potential financial gains when discovering new treatments.

Both Prelude and Merck will retain the commercial rights to the drugs involved in the study, but Prelude Chief Medical Officer Jane Huang noted that it has the chance to find positive outcomes for those with rare cancers and diseases….

Prelude has reported that up to 70,000 cancer patients in the United States and European Union who currently have limited treatment options could benefit from the [collab work]….

Yes, this is ALL immaterial. Now you know. Have a great weekend one and all — baby girls here tonight, then a nephew’s b-day celebration, tomorrow. Grin….

नमस्ते

[U: Billingspuss Now, Too!] More Hinderaker Lies. No XY — Only XX — Chromosome.

~ condor ~ 1 Comment

So unsurprising. [Updated: By Friday, Billingsley had also libeled her. He used a crude headline/pun to reference a woman’s vagina — in the process. Charming.]

Hinderaker goes off, half-cocked — as ever, on gender matters.

The man made the false claim that this boxer was born a man.

DNA testing has now confirmed Hinderaker was lying. Intentionally, it seems — to foment hate.

However, it turns out he and I agree though — on this much: boxing, MMA and all the combat “sports” should pass into the dust bin of history. Both male and female versions. The whole gamut should be excluded from Olympic competition. The games ought not showcase cruelty: man v. man, or woman v. woman.

I am not so naive as to believe we can end professional fighting worldwide in all its forms, but John lying about it — to try to prevent women from choosing to compete against one another… is churlish.

Update: 08.02.2024 @ 7:00 PM — The US Secretary of Defense has exercised his statutory right to veto the plea deal.

All John and Scott’s burping was a huge waste of breath. And it is clear that it would be every bit as secure, and 20X cheaper, to send them to SuperMax. Done.

And, in an unrelated footnote, Hinderaker (undeserving of its own post, as it is so trivial) also tonight stupidly blames everyone (but himself)… For the fact that KSM will now spend the rest of his life in Supermax at Florence, Colorado. It was in fact Bush 43 who made those decisions that led to this day.

Of course, Hinderaker wants everyone to believe that it was a Barack Obama decision. It was not. Own your own BS, man. [And his claim offers us a window into how embittered John’s mind is. He claims that KSM “won“ by not being shot — after unquestionably being tortured, at Gitmo. I am no fan of KSM, but he probably endured nearly a decade of unspeakable torture… and yet, in John’s telling, being transferred to a Supermax to live in solitary for the rest of one’s life (and thus likely go completely… insane)… is a win? Of course, John doesn’t really believe that. He just refuses to accept this smart Biden/Harris administration’s move.]

My own position on the matter is that the death penalty is, in all circumstances… wrong. And John’s primary complaint is that KSM will no longer be death penalty eligible.

But from my point of view, it is much cheaper and easier to keep these terrorists in a domestic super max facility, already running at about $45,000 per prisoner per year, as opposed to over $13 million per prisoner — at Gitmo. That’s over a million a year, per detainee.

The primary goal is to keep them locked away from the world. And locked away from the world, they will be — as opposed to running an entire island military camp, offshore. So on that grounds, I support the plea deal. We were already wildly overpaying to house them at Gitmo.

Out.

USDC Judge Ezra Has Ordered A Status Hearing, On The Fifth’s Lunatic Opinion — Next Week.

~ condor ~ Leave a comment

This is an update, about the floating razor wire barrier case.

The Fifth dissolved the injunction; and ordered proceedings in West Texas consistent with its ruling.

Judge Ezra has obliged. As I said he would, he will move forward to a trial. See — there never was one. Only a preliminary hearing, to decide if enough evidence existed for the federal agencies to halt Texas’s building of a razor wire barrier. He found there was, after lots of live testimony.

The Fifth, on a cold dead written record, disagreed. Fine. Now it is time for a full trial.

And already, Gov. Abbott is whining that the Fifth must delay that trial — because he knows he is going to lose. So he barks up an insipid claim that the state (not a person) is entitled to a trial before a federal jury.

It isn’t. It is not accused of any crime — and it (as I say) is not a person.

So — in a week, unless the Fifth en banc morons decide to fly down to Texas, and put their greasy thumbs on the scale, we will have an early October trial date reset.

Suck that, Texas MAGA Gov. Abbott — and AG Paxton.

Out.

[U X2: Defense Sec. Vetoed Deal.] John And Scott… Simply Hate America. That’s All.

~ condor ~ Leave a comment

Update: 08.02.2024 @ 7:00 PM — The US Secretary of Defense has exercised his statutory right to veto the plea deal.

All John and Scott’s burping was a huge waste of breath. And it is clear that it would be every bit as secure, and 20X cheaper, to send them to SuperMax. Done.

Johnson did also write this morning (just exactly on the BS as I expected, last evening). He hates America. End update.

This is the endlessly tedious barb both of them throw at anyone who — in good faith — criticizes anything America might do.

And I note, tonight (with a legacy graphic), that both Scott and John are refusing to praise the return of US hostages from Russia. A widely revered journalist among them. One John admires, deeply.

They simply refuse to praise Mr. Biden or VP Harris.

When the boys do appear, they will complain that giving up a notorious Russian assassin to get them back… is a bad deal. [Their boy, Tangerine, has already bleated these deeply unpatriotic words.] But that is beside the point — they speak then, directly against America — and give comfort to our enemies.

So yeh — we may now fairly say it: Donald Trump, John Hinderaker, Paul Mirengoff and Scott Johnson all… hate America.

NICER’s Thermal Shields To See Replacement Parts, Soon — In A “Janitor’s Work-Order” Mission — With Northrop-Grumman’s 21st…

~ condor ~ Leave a comment

Yes — I am (partially) poking fun, at how “routine” orbiting / space repairs are becoming.

It is almost like calling the Super-, to have a busted heater valve replaced — on a work order, in a Manhattan tenement.

Well… almost. But not really. This is a cool fix though for a space ‘scope damaged in May 2023 by micro-meteorites — and a panel that was not designed with ease of repair in mind. These thermal sinks will be swapped out some time this Fall. Here’s the story in full — and a bit, from NASA | Goddard:

…NASA will deliver a patch kit for NICER (Neutron star Interior Composition Explorer), an X-ray telescope on the International Space Station, on the agency’s Northrop Grumman 21st commercial resupply mission. Astronauts will conduct a spacewalk to complete the repair.

Located near the space station’s starboard solar array, NICER was damaged in May 2023. The mission team delivered the patch kit to NASA’s Johnson Space Center in Houston in May 2024 so it could be prepped and packed for the upcoming resupply mission.

“It’s incredible that in just one year, we were able to diagnose the problem and then design, build, test, and deliver a solution,” said Steve Kenyon, NICER’s mechanical lead at NASA’s Goddard Space Flight Center in Greenbelt, Maryland. “We’re so excited to see the patches installed during a future spacewalk, return to a more regular operating schedule, and keep doing groundbreaking science….”

Astronauts will install five patches during the spacewalk. They’ll cover the most significant areas of damage and block the sunlight affecting NICER’s X-ray measurements. [See one of the five such kits in image at upper right.]

The repair kit contains 12 patches in total, allowing for spares if needed. Astronauts will carry the patches in a caddy, a rectangular frame containing two spare sunshades with the patches held inside.

“NICER will be the first X-ray telescope in orbit to be serviced by astronauts and only the fourth science observatory to be repaired overall — joining the ranks of missions like NASA’s Hubble Space Telescope,” said Charles Baker, the NICER project systems engineer at Goddard. “It’s been amazing to watch the patch kit come together over the last year. NICER has taught us so many wonderful things about the cosmos, and we’re really looking forward to this next step of its journey….”

Now you know. What a time to be… alive, and watching marvels… unfold. Smile.

नमस्ते

An Agreed Short Delay: Mr. Grant’s Lawyers Are Busy Next Week; Hearing And Argument To Be @ 11 AM On September 6, 2024, In Manhattan

~ condor ~ Leave a comment

The “day in court” — for Eddy Grant’s “Electric Avenue” will now be in the first week of September, by agreed order.

The train is comin’ though — to take justice back, from Tangerine’s endless crime spree. Here’s that, in full — and a bit, from our earlier coverage of Mr. Grant’s claims:

…The video — in particular the contrast between the trains and the unflattering nature of the excerpted language from President Biden — appears intended to criticize President Biden and depict the strength of former President Trump’s campaign. Grant’s song can be heard beginning at around the fifteen-second mark of the video, and continues through the duration of the fifty-five second video….

[T]he video had been viewed more than 13.7 million times; the Tweet containing the video had been “liked” more than 350,000 times, re-Tweeted more than 139,000 times, and had received nearly 50,000 comments. Compl. ii 43-44. The defendants did not receive a license or Grant’s permission to use the song in connection with the animated video….

In this case, the video’s overarching political purpose does not automatically render its use of any non-political work transformative. See, e.g., Henley v. DeVore, 733 F. Supp. 2d 1144, 1164 (C.D. Cal. 2010) (rejecting fair use defense at the summary judgment stage where creators of political campaign ads rewrote some of the lyrics but appropriated the melody, rhyme scheme, and syntax of two Don Henley songs without permission); Browne v. McCain, 612 F. Supp. 2d 1125, 1129-31 (C.D. Cal. 2009) (rejecting fair use defense at the motion to dismiss stage where a political campaign ad featured a Jackson Browne song without permission, even though other audio was played on top of the song). As to the character of the video’s use of Electric Avenue, it is best described as a wholesale copying of music to accompany a political campaign ad…. In this case, the video’s creator did not edit the song’s lyrics, vocals, or instrumentals at all….

It is plain that widespread, uncompensated use of Grant’s music in promotional videos — political or otherwise — would embolden would be infringers and undermine Grant’s ability to obtain compensation in exchange for licensing his music. The [Trump Team does] not seriously dispute this….

And, relatedly, we need more events like the NABJ one in Chicago yesterday, on his calendar — the more Tangerine is subjected to actual… journalism… the more “low information” Americans will see him for the embittered, 78 year old racist a$$… he is. Onward.

नमस्ते

Funny. Tangerine DOES Look “Orange-ish”, Scott. Scott?!

~ condor ~ Leave a comment

So… inside the tiny, malign brain pans writing at Powerline, it is the NABJ journalists’ “fault” that Trump made overtly racist and insulting remarks, about the sitting US Vice President?!

In Scott’s telling, NABJ journalists were “nasty” (Trump’s characterization) to ask him about his own on the record quotes — about race. [That’s just real journalism, Scott — try some, someday.]

That they are indeed indefensible is obvious to anyone with a working forebrain.

The sociopath’s RECORD is in fact the issue — and when he’s not greeted by a pseudo-journalist wearing the knee pads, and fawning over him — his vindictive, paranoid, small handed persona steps right up, and shows us… his a$$ — just like yesterday.

For 25 minutes… then he wimps out, and shuffles clumsily off-stage.

Y A W N.

He will lose in a landslide in November.

He’s a one trick pony, Scott. And Johnson is just one bitter old racist, fawning over another one.

Out.

Full Fifth Circuit Goes Rogue Again… Ignores “Clear Error” Jurisprudence. YAWN.

~ condor ~ Leave a comment

Well, none of it will matter, as trial on the merits in the USDC is next week. [If you are going to read any part of this 105 pager, read only the last two dissents — they accurately state the law; the majority is off in “la la land“. This simply political grandstanding in a legal opinion, to try to delay things past November 2024. It will fail.]

Hilarious; but to be clear, the Fifth claimed overnight that factual findings by a USDC Judge are not subject to a clear error standard. That ignores about 100 years of controlling law even inside the Fifth Circuit.

The Fifth heard no live testimony, was not present… but chose to second guess the trial judge on a mere… whiff of contra-evidence.

Silly. And impotent, in the end.

Nope — it won’t matter, and the feds will likely not even bother to appeal to the Supremes — as all that matters now is trial.

That’s next week. Buckle up, buckaroos.

Out.