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Legal News for August

JURIST – News – Legal News & Commentary
Federal judge overseeing opioid litigation rejects request to dismiss lawsuits
Sat, 08 Aug 2020 21:29:53 +0000

US District Court of the Northern District of Ohio Judge Dan Polster Friday denied a request by five retail pharmacy chains to dismiss opioid lawsuits filed by two Ohio counties.

Lake and Trumbull Counties brought a common law absolute public nuisance claim against several pharmacies for dispensing prescription opioids to customers. The court previously concluded in 2018 that the related act of distributing prescription opioids survived a motion to dismiss under Ohio law.

The plaintiffs alleged that the pharmacies violated the Federal Controlled Substances Act and Ohio controlled substance laws by failing to adequately train pharmacists and pharmacy technicians to properly handle opioid painkiller prescriptions. Plaintiffs also alleged that the pharmacies  “systemically ignored red flags that they were fueling a black market,” causing a “skyrocket” in the counties and facilitating and encouraging the illegal diversion of opioids.

The defendants argued that the claims should be dismissed because Ohio statutes governing drug distribution displaced common law and entirely precluded the plaintiffs’ claims. They argued that the plaintiffs had to bring their claim under Ohio Administrative Code § 4729, claiming that Ohio law only allowed the statutory public nuisance claim under that statute. The judge concluded that the statute did not expressly abrogate any common law claim, and there was no clear language that indicated this.

The defendants also argued that Ohio’s regulatory scheme implied that the General Assembly intended to displace common law and limit public nuisance liability. They argued that the Ohio legislature did not demonstrate an intent for the statutory provisions to be “cumulative” to common law, citing cases arising under the Uniform Commercial Code (UCC). The judge rejected both claims, stating that the UCC expressly provides that its provisions displace some, but not all, common law claims. Where the UCC governs, a plaintiff cannot assert a conflicting common law claim to “circumvent the liabilities, responsibilities, and remedies.”

The defendants also asserted that they were entitled to a dismissal of claims because only their pharmacist employees had a duty to prevent diversion of opioids. The judge rejected this contention, because both pharmacists and pharmacies are “practitioners” and “dispensers” under the act, so they bear all the obligations imposed upon practitioners and dispensers.

The judge found that the plaintiffs sufficiently alleged that the pharmacies engaged in unlawful conduct. Because the defendants did not show that the plaintiffs failed to state a claim for which relief can be granted, Polster denied the defendants’ motion to dismiss.

 

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Category: US District Court of the Northern District of Ohio
Federal judge grants DOJ bid to scrap antitrust rules limiting how movies are distributed to theaters
Sat, 08 Aug 2020 20:52:00 +0000

A US District Court judge on Friday granted the federal government’s request to terminate a set of antitrust rules, the so-called Paramount Decrees, that “for over seventy years have regulated how certain movie studios distribute films to movie theaters.”

The decrees, a result of the landmark 1948 Supreme Court case United States v. Paramount Pictures, Inc., banned Hollywood’s largest studios (including MGM, Paramount, 20th Century Fox, Warner, Universal, and Columbia) from “[controlling] the motion picture industry through their ownership of film distribution and exhibition.” The Court sustained findings that “[the studios] had engaged in a wide-spread conspiracy to illegally fix motion picture prices and monopolize both the film distribution and movie theater markets.”

The conditions of the decrees forced the companies to sell the theaters they owned, outlawed “block booking” (the practice of selling films as a package to coerce theaters into playing less-profitable films), and limited actions that prioritized certain theaters over others.

In late 2019, the Antitrust Division of the US Department of Justice moved to eliminate the decrees. In a press release issued Friday the DOJ said that “the motion picture industry has undergone considerable change” since the inception of the decrees. It credited multiplex theaters and technology advances as rendering the need for the decrees obsolete. “New technology has created many different distribution and viewing platforms that did not exist when the decrees where entered into… today’s consumers can view motion pictures on cable and broadcast TV, DVDs, and over the internet through streaming services.”

In a 17-page Order, Judge Analisa Torres acknowledged these changes as one of the reasons to grant the government’s request. The court found that termination was in the public interest, stating that “it is unlikely that [the studios] would collude to once again limit their film distribution to a select group of theaters in the absence of the decrees” and concluded that the government has “offered a reasonable and persuasive explanation” for terminating the decrees.

Moving forward, the Order includes a two-year “sunset” provision for ending the block booking ban, in an attempt to minimize market disruption and to “provide movie theaters a transitional time period to adjust their business models and strategies to any proposals to change the film-by-film, theater-by-theater licensing regime.”

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Category: us district court for the southern district of new york
Hong Kong democracy activist challenges disqualification from poll
Fri, 07 Aug 2020 20:16:11 +0000

Hong Kong democracy activist Joshua Wong filed a lawsuit Friday challenging his disqualification from the country’s legislative council general election.

On July 30th, Hong Kong authorities barred Wong and 11 other pro-democracy activists from the elections, which were due to be held in September. Endorsing the decision of its returning officer,  the Hong Kong government reiterated in a press release that

upholding the BL [Basic Law] is a fundamental constitutional duty of every LegCo [Legislative Council] Member. People having the following behaviours could not genuinely uphold the BL and could not therefore perform the duties of a LegCo Member, i.e. advocating or promoting Hong Kong independence, self-determination or changing the system of the HKSAR by supporting Hong Kong independence as an option for self-determination; soliciting intervention by foreign governments or political authorities in relation to the HKSAR’s affairs; expressing an objection in principle to the enactment of the National Security Law by the Standing Committee of the National People’s Congress and its subsequent promulgation as a national law listed in Annex III to the BL; expressing an intention to exercise the functions of a LegCo Member by indiscriminately voting down any legislative proposals, appointments, funding applications and budgets introduced by the HKSAR Government after securing a majority in the LegCo so as to force the Government to accede to certain political demands; and refusal to recognise the PRC’s exercise of sovereignty over the HKSAR and the HKSAR’s constitutional status as a local administrative region of the PRC. 

The polls have been postponed until September 2021 due to the COVID-19 pandemic. The National Security Law that was passed at the end of June has been heavily criticized for suppressing Hong Kong’s pro-democracy movement.

“The reason I apply for judicial review is to make clear that the power of the returning officer keeps enlarging, they are just (pursuing a) political mission,” Reuters quoted Wong as saying. If Wong’s challenge is endorsed by the courts, other disqualifications might be similar contested.

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Category: national security law
Cape Verde court approves US extradition of Maduro financier for money laundering
Thu, 06 Aug 2020 23:52:00 +0000

A Cape Verde court has approved the extradition of Columbian lawyer and businessman Alex Nain Saab Moran to the United States, where he faces charges for money laundering on behalf of Venezuelan President Nicolás Maduro’s government.

Saab was arrested on 12th June 2020 on the island of Sal in Cape Verde when he was en route from Venezuela to Iran. The Venezuelan government protested Saab’s arrest, stating that the Interpol arrest notice was issued after the arrest, violating international norms as he was acting as an agent of the government and was on a humanitarian mission to buy food and medical supplies.

João do Rosário, an attorney on Saab’s legal team, told VOA’s Portuguese service that while the Court made its decision Friday, Saab’s legal team was not informed about it until Monday evening. He said that the team was considering an appeal to Cape Verde’s Supreme Court, and if the appeal failed, the team would approach the Constitutional Court.

According to the US Justice Department, Saab was indicted in July 2019 in the US federal court in Miami for participation in an alleged bribery scheme in a low-income housing project for the Maduro Regime from 2011 to 2015. Saab is alleged to have used an elaborate network of bank accounts in Venezuela and the United States that allowed him and Maduro to profit from state-run food subsidy programs.

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Category: Venezuela
China court finds prisoner not guilty after 27 years behind bars
Fri, 07 Aug 2020 14:41:30 +0000

The High People’s Court of Jiangxi in China has declared Zhang Yuhuan, 53, the country’s longest-serving wrongfully convicted person not guilty in a retrial after almost 27 years in prison.

Zhang’s wrongful conviction and subsequent release stem from a 1993 murder case where two boys were found dead in a reservoir in Jinxian, Jiangxi Province. State officials had detained Zhang and arrested him on murder charges.

A court found Zhang guilty of murder two years later and imposed the death penalty. However, the court allowed the sentence to be reduced if Zhang served the first two years without committing any crimes.

Zhang repeatedly denied involvement in the killing. After a failed appeal in 2001, he successfully convinced the Jiangxi High Court for a retrial in March 2019, and the case was finally adjudicated in July. “After we reviewed the materials, we have found there is no direct evidence that can prove Zhang’s conviction. So we accepted the prosecutors’ suggestion and have declared Zhang innocent,” judge Tian Ganlin stated after delivering the decision on Tuesday.

Zhang’s lawyer indicated that he will be seeking relief for Zhang through the state compensation fund. He is also wanting to hold those responsible for his original sentencing accountable.

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Category: wrongful conviction