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A Very Cogent, Terse Summary Of Why Both The TN And FL Laws Fall…

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Counsel for the plaintiffs in Tennessee just cited the Supremes’ denial of a stay, in the Florida version of this dispute –to the Sixth Circuit.

Just as we pointed out about ten days ago. . . . Sweet!

Here’s the very terse punch — a knockout, indeed:

…Justice Kavanaugh issued a statement, in which he was joined by Justice Barrett. Justice Kavanaugh explained that, while the question of whether a district court may prohibit the government from enforcing a law against non-parties may warrant the Court’s review in the future, “the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.” This is consistent with the Supreme Court’s prior holdings in First Amendment overbreadth cases that “any enforcement” of an overbroad restriction on speech Is “totally forbidden.” Broadrick v. Okla., 413 U.S. 601, 611-12 (1973)….

Now you know — Friends of George, and Hamburger Mary’s will… win — without a doubt, on appeal when it finally reaches the Supremes. They’ve already won at the trial level, and as to the Florida law, at the appellate level.

Out.

The “Eradication” Of A People… Seems An Exquisitely Illegitimate Goal, John.

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Hinderaker does not support trading hostages at Gaza. He also wants a wider, more vicious war between Israel and the Palestinians. He views them as the same as Hamas. But they are not.

And no — the two situations aren’t in any manner equivalent… but John — there was this one guy with a goofy tiny mustache, and slicked over black hair… he advocated (and almost secured) the eradication of the very people you now hope will do the “eradication” of the people living in Gaza.

Ironic, no? From… nearly eradicated — to become the eradicators of all Gazans?!

In any event — most sane people on the planet support Israel’s right defend itself.

But most draw the line at attempting to end a people.

In due course Hinderaker will see as much – first hand.

Onward — another dumb hot take, man.

Truly insipid, and… evil.

This Is… Deeply Puzzling: The Chief USDC Judge Alia Moses, In Del Rio, Texas… Just Entered A SEALED TRO Order?! WTAH?!

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Again… it has been plain for nearly a century in the federal courts… that the orders of the courts are “judicial documents” — and absent a specific written explanation from a USDC Judge on the record, in real time, the people (and press) have a unassailable First Amendment right to CONTEMPORANEOUS access to the public court’s documents and proceedings. [See the lower right portion of the revised graphic — and read this backgrounder, from yesterday.]

So… even IF Judge Moses (nonsensically) feels that “letting the world know” that CBP may now resume cutting the land-based razor wire barriers placed lawlessly by the State of Texas, around Eagles Pass… is somehow a national security matter… she must enter a completely on the record order, with her specific findings based on competent evidence offered, and detailing her reasoning — in sealing such a lifting of any TRO (if she has, in fact — as the law would require, ended her temporary halt to cutting the wire barriers, when CBP feels — in its discretion — it is needed, to protect human life and safety).

In point of fact, her TRO will expire by its own previously-public terms at midnight, on this Wednesday night — tomorrow night.

That said, we are — as a nation — entitled to know either (i) why she sealed document 51, or (ii) we are entitled to see document 51, entered this morning in case number 23-cv-055 (USDC WDTX), right now.

Just what sort of a kangaroo joint is she running down, in Del Rio, folks?

[And if I’m right about what she’s ordered, on a sealed basis — the Biden Administration will be in the Fifth Circuit, by tomorrow, seeking emergency review from that court.] This just cannot be allowed to stand; like USDC Judge Tipton before her, it seems these Tangerine Texas judges see Texas as a nation of its own, unbound by federal law.

In the mean time, I’ll ring up the Austin Statesman, in the morning [if (i) or (ii) hasn’t appeared by then] and have the court beat reporters drop in down there, for a chin-waggle. On the record, with lawyers from Davis, Wright Tremaine on a cell call… yet this week. Heh. Now you know.

नमस्ते

This Is Good News For Merck — But May Take A Few Years To Become… Material. Pfizer Basically Owns The Pneumococcal Vaccine Market With Its Prevnar® Line, At Present…

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To be sure, it will be wonderful to have a meaningful competitive force in the US markets for vaccines. Pfizer has ruled the roost for over a decade now, in the US (by far the largest global marketplace for such vaccines).

Even so, this Merck clinical was a “non-inferiority” trial (meaning each works approximately equally well) — so it will take some time to cut into Pfizer’s perhaps 90 percent market share. But Merck clearly has the pre-existing cap ex investment base, in high through-put vaccine plant facilities — to make millions of doses in under two to three years’ time, from the date of a likely coming FDA approval. [Prior backgrounder from September 2021 — on patent spats between the two, on these vaccines.]

And with drug price negotiations front and center, at the US government payor windows, now… it will likely come down to keeping the Merck V116 vaccine at or below what Prevnar 20® costs, after all rebated amounts. Same with private pay insurance plans. So it will take a bit to be a material contributor (maybe three to five years from FDA approval), but clearly good news for Rahway. Here’s the well-thought out scoop from FierceBiotech, this morning:

…[Merck posted] data from a phase 3 trial designed to knock Pfizer’s pneumococcal vaccine off its perch. The vaccine candidate matched Prevnar 20 [the successor to Prevnar 16] for shared serotypes and performed better for 10 of its 11 unique serotypes, positioning Merck to file for approvals around the world.

Pfizer is the dominant force in the adult U.S. pneumococcal vaccine market, with Prevnar 20 holding a 95% share in the third quarter, but Merck believes its V116 candidate provides broader protection than the competition. The drugmaker shared top-line data from a phase 3 trial of V116 in July and followed up Tuesday with a closer look at the results at the World Vaccine Congress West Coast.

In adults aged 50 years and older, V116 elicited non-inferior immune responses compared to PCV20, the generic name for Prevnar 20, for all 10 serotypes common to both vaccines. The immune responses in recipients of V116 were superior for 10 of the 11 serotypes that are included in Merck’s asset but not in Prevnar 20….

At base, this is really about offering prescribers a meaningful choice in vaccines — and price point possibilities. We shall see how it plays out. But not materially important to this year, or next, at either Merck or Pfizer — up or down. Onward.

नमस्ते

The “Rat Miners” Have Reached — And Rescued, All 41 Himalayan Miners — With Jack-Legs, And Belly Work…

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Very good news, indeed this morning from Northern India.

All 41 miners are safely top-side now, and in generally pretty good physical condition. [Mental condition is a far-longer term matter… to be fair.] Here’s the latest, from CNN:

…Cheers greeted a group of 41 workers as they were successfully removed from a collapsed tunnel under the Himalayas on Tuesday, the climax of a 17-day rescue operation to drill through rock and debris.

It took weeks to bore an escape route for the workers through the mountain, with the last two meters drilled by hand, before the rescued men eventually emerged….

The men had been trapped since November 12 when the part of tunnel they were helping to construct in India’s northern Uttarakhand state gave way, blocking their only exit with more than 60 meters (200 feet) of broken rock, concrete and twisted metal….

The tunnel is part of Indian Prime Minister Narendra Modi’s Char Dham Highway route, a controversial multimillion dollar project to upgrade. the country’s transport network and improve connectivity to important Hindu pilgrimage sites in the region….

Grinning, ear to ear. Now you know. But… other than incremental cost, there is no reason why a vent shaft shouldn’t always be cut at least the width of one human body, for hoisting out vertically, in just such an emergency. [It ought to be… malpractice, not to do so. The overall cost difference between a six inch vertical pipe and a 24 inch one… is vary small. It is primarily… greed that dictates the six inch pipe.] Out.

नमस्ते

Chile / San José: “A Great Rescue Success, But A Horrific Compañía Minera San Esteban… MINE SAFETY Failure…”

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On August 5, 2010, the sole ingress/egress (and ventilation) shaft of the San José copper / gold mine… collapsed. It a few seconds, 33 miners were trapped nearly a half-mile below the surface. While all did eventually survive (a successful rescue after 69 days), the fact that Chilean authorities had seven years earlier ordered Compañía Minera San Esteban, the mine operator (as a basic remedial safety measure) to immediately excavate a second emergency egress / vent shaft… and Compañía Minera San Esteban never obeyed that order, in seven long years — is a testament to pervasive, jaw-slacking failure.

Basic human safety was treated as… just “a nice to have” luxury / possibility at Compañía Minera San Esteban.

So, again (as in the South African gold mine disaster we’d long ago followed, in February 2018) — it isn’t a 40 plus fatality mine disaster in the sense of the list I am now collecting, but this incident speaks to much of what is wrong with guys like… Don Blankenship. It is just and right and good that he was jailed, but it is not enough. Not nearly enough. Here’s the 2023 version “lessons learned” talk, given at a mining conference, about Chile / San José 2010:

…The mine operator had been ordered to build a second means of egress in 2003, but when the mine collapsed in 2010, it still had not been constructed.

State-owned Chilean copper mining company Codelco was brought in by the government to coordinate the rescue mission. The government solicited rescue plans from around the world….

The rockfall at the San José mine blocked the ventilation shaft, which was its sole exit point. The mine was left unstable, and 33 miners were trapped 700 metres underneath the surface for 69 days….

Perhaps this will require a UN intervention, on an assertion of a health emergency: far too many mining companies treat their workers as… utterly expendible chattels — like a jack-leg hammer or a few 12″ by 12″ timbers. Damn.

नमस्ते

[U 12.01.23 — Hinderaker Raves Goofy.] Another Case Of Musk Being Unable / Unwilling “To Read… Any Room”, Actually.

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Well… when you can’t read the room… you end up spending a lot of time doing damage control, and apology tours. That is Musk’s life now. Hinderaker just doesn’t like it. Because Hinderaker imagines he is like Musk — and a chaos agent in his own right. Precious.

Couldn’t happen to a nicer guy. Here’s the NYT on it all, and a bit:

…Elon Musk traveled to Israel and met with Prime Minister Benjamin Netanyahu on Monday, touring the scene of a Hamas attack in a visit that appeared aimed at calming the outcry over his endorsement of an antisemitic conspiracy theory on X, the social media platform he owns….

Dozens of major brands suspended their advertising on X after Mr. Musk this month agreed with a post that accused Jewish communities of pushing “hatred against whites that they claim to want people to stop using against them.” The flight of advertisers threatened to cost X tens of millions of dollars, and the White House denounced Mr. Musk for “abhorrent promotion of antisemitic and racist hate.”

On Tuesday… Mr. Musk wrote on X that “actions speak louder than words.” Wearing a flak jacket, he toured Kfar Aza, an Israeli kibbutz where dozens of people were killed during the Hamas terrorist attack on Oct. 7….

So it goes, with Elon — I truly believe he is on the autistic spectrum, or said another way, just this out of touch, on the emotional intelligence scale. That does NOT excuse any of it, as he ought to get educated before he speaks — but this is now a nearly decade long pattern of his: blast out something idiotic (or worse); then either deny it happened (cave rescue insults) or end up on an apology tour — as here.

Onward.

Sometimes, Paul Mirengoff Writes… The DUMBEST Things — This Time Defending GOP/MAGA AL Sen. Tuberville?!

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It would be hard to find a dumber hot take on Tuberville’s cruel stunt, than the one Mirengoff offered last night.

He purports to tell us that holding nearly 50,000 US Service members’ pay raises hostage… is a defensible protest against allowing their families to get family planning health care (on the government’s dime) — which would at times include… getting an abortion.

For this, Tuberville thinks his “god” permits him to take the pay increases of thousands of US soldiers.

And Mirengoff says… it may be unwise — but it is “just good GOP politics“.

Damn the lot of these a-holes.

Let both Tuberville and Mirengoff be forced to enlist, and eat K-rations, and live in the barracks, and fly off to Ukraine at any moment, to keep the peace, and live in the muck.

And let them surrender their raises, while we are at it.

What a matched pair of piled-up fetid dung… both these stupid tools are. Let’s hope the people of Alabama dump the football coaching idiot.

Out.

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”.

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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…?

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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