Friday, November 13, 2015

How to Prove the Crime/Fraud Exception Without Proving Your Entire Case?




Short answer:  there really is no good way to do that, and you run the risk of ticking off the presiding Magistrate Judge in the process:
As the Undersigned noted in the Order requiring additional briefing [ECF No. 201], the core of Plaintiffs’ argument for the crime‐fraud exception mirrors their substantive claims in this lawsuit; specifically, that Shire engaged in anti‐competitive behavior to maintain its monopoly over prices of certain prescription drugs. Thus, the ultimate determination as to whether the crime‐fraud exception should apply seemingly requires the resolution of some of the very same factual and legal issues that have not yet been decided by a jury and/or the presiding District Court judge.

While it is true that there is a different standard of proof required for the application of the crime‐fraud exception than the standard used to establish liability under the Sherman Act (i.e., Plaintiffs need now to present only prima facie evidence of the crime or fraud in this circumstance, at which point the burden shifts to Shire to rebut the showing by a preponderance of the evidence), the parties’ efforts to persuade the Court to adopt their view of the crime‐fraud exception here have essentially caused this discovery dispute to morph into what amounts to a “trial on the papers.”
That doesn't sound like a good thing, or does it?
How does it feel
To be the only one?
How does it feel
To be the only one that knows that you're right?
 Have a good weekend!

3 comments:

Anonymous said...

Happy Friday the 13th, SFL.

Sincerely,
Your #1 Fan

Anonymous said...

Happy Freddie Kruger Day SFL!!!!!

Anonymous said...

Freddie Krueger Day is actually September 13th.

Did you perhaps mean Jason from Camp Crystal(Fri the 13th)?