In what is unquestionably the biggest news of the last 24 hours, former US President Donald Trump has been indicted in New York over hush money payments made to adult film actress Stephanie Clifford, also known as Stormy Daniels, who claimed she had an affair with Trump. A grand jury has voted to indict Trump, the first former US president to face criminal prosecution. Legal analysts suggest that he may be prosecuted for falsifying business records. Trump has denied the allegations and has accused Manhattan District Attorney Alvin Bragg of targeting him for political gain. Trump is also facing several other investigations, including a Georgia election interference probe and a pair of federal investigations into his role in the January 6, 2021, assault on the US Capitol by his supporters. The indictment process could take over a year, raising the possibility that the former president could face trial during or even after the 2024 presidential campaign. The average criminal case in Manhattan takes over 900 days to move from indictment to trial verdict. Trump could challenge the charges on several legal grounds, and his former personal lawyer, Michael Cohen, has stated that he coordinated with Trump on the payments to Daniels and a former Playboy model. Legal analysts suggest that the charge most likely against Trump is falsifying business records, which is typically a misdemeanor. To elevate that charge to a felony, prosecutors must prove that Trump falsified records to cover up a second crime. There is also the possibility that prosecutors could assert that the payment violated state campaign finance laws, but legal experts say that using state election law in that manner in a case involving a federal candidate is an untested legal theory. Trump could also argue that the statute of limitations of five years should have run out, but he may be unable to use serving as US president as an argument for this. According to a spokesperson for the district attorney, prosecutors and Trump's legal team are negotiating a surrender date when Trump would travel to the district attorney's office in New York to be fingerprinted and photographed.
The Securities and Exchange Commission (SEC) is expanding its definition of “securities dealers,” leading to a backlash from some private funds and investment advisers who fear that it will result in more regulations. The agency’s proposed rule is set to clarify and expand the definition, including some financial firms such as high-frequency traders that have traditionally not been considered a dealer. Industry advocates suggest that the SEC’s recent lawsuits against penny-stock flippers could further its position that a dealer is any company whose business model is based on buying and selling securities. The expanded definition of “dealer” has the potential to capture many businesses, including hedge funds and venture capital funds that are already subject to regulations. Dealers usually have to register with the SEC and join an organization like Financial Industry Regulatory Authority. Funds facing registration could change their investment strategies to avoid being labelled a dealer, according to industry representatives. However, the SEC is denying that there’s anything radical about its interpretation of “dealer” and said critics are ascribing to the agency a position that it hasn’t taken.
The Biden administration has urged the US Supreme Court to hear the patent appeal case between Teva Pharmaceuticals USA and GlaxoSmithKline (GSK). The case involves “skinny labels”, which omit certain information from drug labels, and their potential to impact the generic-drug industry. Teva has argued that it omitted patented information for Coreg, GSK’s heart drug, from its label in compliance with US Food and Drug Administration instructions. GSK sued Teva for patent infringement in 2014, with a jury siding with GSK and awarding it $235m in 2017, but the Biden administration backed Teva’s argument.
By way of brief background, "Skinny labels" are a term used in the pharmaceutical industry to describe labels on generic drugs that omit certain indications or uses that are covered by existing patents held by brand-name drugmakers. By using a "skinny label," generic drugmakers can launch their products earlier and avoid liability for infringing on brand-name drugmakers' patents. The US Food and Drug Administration (FDA) permits this practice, and generic drugmakers must follow strict guidelines when producing and labeling their products. However, brand-name drugmakers have sued generic drugmakers claiming that they have infringed their patents by marketing the drug for the uses not covered by the "skinny label." The aforementioned legal dispute between Teva and GlaxoSmithKline is a prime example of such a lawsuit, and the outcome of the case could have significant implications for the generic drug industry.
A court employee in New York, Dionisio Figueroa, has been accused of referring criminal defendants to a private defense lawyer in exchange for bribes. Figueroa allegedly used his position to encourage defendants, many of whom had free, court-appointed lawyers, to instead hire Telesforo Del Valle Jr. in pending cases. In return, Del Valle gave Figueroa referral payments in cash totaling at least tens of thousands of dollars. Both Figueroa and Del Valle have been charged with conspiracy to bribe a federal employee, bribery of a federal employee, and lying to federal law enforcement agents during the investigation. If you’re an attorney and you don’t understand what Mr. Figueroa did wrong, you might want to give your state ethic’s hotline a call before you make any major decisions involving your practice.
Finally, and very briefly, there are updates to the Disney Reedy Creek DeSantis fracas. In my other podcast, Esquiring Minds, my co-host Jacob Schumer breaks down all the ins, outs and what-have-yous of the latest.
In sum, Disney may have got its revenge on Florida Governor Ron DeSantis by outmaneuvering his attempt to gain control of the Reedy Creek Improvement District that operates the 39 square mile property on which Walt Disney World exists. Before the legislation was passed, Disney quietly signed two new agreements with the district that limit what the new district can do to influence Disney's future plans. Legal scholars have said Disney may have the advantage in this situation, as the agreements are contracts that were executed in publicly noticed meetings and adhered to Florida’s open government Sunshine Laws.
As mentioned, please do check out Esquiring Minds, available wherever you get your podcasts – if only for the latest episode wherein Jake does a much better job explaining the story than I can.