DBA Golf Tournament

29th Annual DBA Golf Tournament

Foundation’s Virtual “Evening With” Fundraiser Surpasses Goal

BY TALMAGE BOSTON

Among its many charitable endeavors, the Dallas Bar Foundation raises funds for the Sarah T. Hughes Scholarships, which are awarded annually to outstanding minority students at the three North Texas law schools. Prior to 2011, the Foundation raised scholarship funds entirely from Bar None performances, which have awarded almost $2.2 million in Hughes Scholarships since its inception in 1986. Entering 2011, Foundation leaders Rob Roby and Mark Shank knew that because of consistently rising law school tuition, in order to maintain the scholarship program, the Foundation would have to come up with a new source of revenue. They had an idea: host an annual fundraising dinner, and attract law firm, business, and law school tablebuying sponsors by building the evening around a nationally-renowned speaker. The title for the dinner would be “An Evening With …,” and they asked me to get the speakers, knowing that I had done it many times for the State Bar of Texas.

We started the series with David Brooks in 2011, and in the years following, the DBF has featured Doris Kearns Goodwin, Bill Bradley, Ken Burns, David McCullough, Bob Woodward, Jon Meacham, Ron Chernow, and Evan Thomas. And everything was in place to host historian Walter Isaacson in the fall of 2020 when the pandemic hit, requiring the cancellation of the dinner, and, thus, losing a critical source of revenue to fund the scholarships.

With the uncertainty of COVID still in place entering 2021, the Foundation’s board had a decision to make: Should we schedule a live dinner in the fall, hoping we could fill the ballroom without creating a health risk? Or should we try a virtual fundraiser, knowing that without the food, beverage, and AV costs at the prior Evening With events, we might net as much profit as we had in prior years, though we expected the number of sponsors to decline because of the program’s being virtual instead of live. A key factor in the decision was whether Walter Isaacson would reduce his honorarium if the program was virtual. There we got lucky. Walter’s new book The Code Breaker was to come out March 9, 2021, and he said that if the Foundation purchased a large quantity of it upon its release, then he would waive the honorarium. He also said he would sign all the books we purchased, and we hoped having autographed books would help attract sponsors since The Code Breaker was expected to be a #1 bestseller like his prior books.

Like magic, everything fell into place. Toyota Financial Services/Toyota Motor North America, Inc. and the ever-generous Leon Carter stepped up as $10,000 presenting sponsors. Dozens of Dallas law firms maintained their past commitments, and seemed not bothered by the shift from live to virtual. Elizabeth Philipp, the Foundation’s longtime Executive Director, did her usual great job of organizing every aspect of the event, and Walter Isaacson made a terrific presentation on April 28, which was viewed by hundreds of lawyers.

After covering our reduced costs, the net return to the Foundation from the Isaacson event was the highest in Evening With history. The Foundation has now presented 10 events in the series since 2011, and they have netted a total of $722,000, thereby ensuring the continuation of the Sarah T. Hughes Diversity Scholarships, while also increasing the number of Hughes Scholarships to now include students attending all three area law schools.

U.S. District Judge Barbara M.G. Lynn and her husband Mike have been major supporters of the Evening With program since its inception. Here is Judge Lynn’s take on why she and Mike support the program every year: “The event is fabulous. The interviews are always insightful. The speakers are at the top of the literacy world, and the cause is mission critical. Mike and I have been thrilled to be part of it for so many years.”

On behalf of the Foundation board, I want to say “Thank You” to all our 2021 Evening With sponsors. You have again provided the resources that allow the Sarah T. Hughes Scholarships to continue at SMU, UNT, and Texas A&M Law Schools, thereby enriching the Hughes Scholars’ lives and greatly enhancing our legal community. HN

ADVERTISE HERE!

Don ’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide ” in Dallas County.

Talmage Boston is the 2021 Chair of the Dallas Bar Foundation’s Board of Trustees.

DBA 100 Club

For more information, contact (214) 321-3238 or dba@legaldirectories.com

The Dallas Bar Foundation thanks the following sponsors for their support of A Conversation with Walter Isaacson benefitting the Sarah T. Hughes Diversity Scholarships.

Presenting Sponsors

Gold Sponsors

McBride & Associates at Merrill Lynch Wealth Management

Silver Sponsors

WHAT IS THE DBA 100 CLUB?

The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools, and organizations that give 100% membership support to the DBA!

WHAT IS THE COST TO JOIN THE DBA 100 CLUB? IT’S FREE!

HOW DO YOU JOIN?

Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2021 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. Once approved, we will add your organization to the 2021 DBA 100 Club member recognition list!

WHAT ARE THE PERKS?

Our 2021 DBA 100 Club members will be recognized in Headnotes, the 2022 DBA Pictorial Directory, and at our Annual Meeting.

Join today!

Focus Antitrust & Trade Regulation/Bankruptcy & Commercial Law The Intersection of Antitrust and the False Claims Act

BY M. SEAN ROYALL AND RACHAEL A. REZABEK

In recent years, there have been several cases filed in federal courts where a plaintiff and purported “whistleblower” asserted that the federal government was overcharged for pharmaceutical purchases reimbursed through various government programs. While the claims arise under the False Claims Act, these cases are based on a variant of well-established antitrust theories, usually involving claims that branded pharmaceutical manufacturers took improper actions to delay market entry of generic drug products.

One of the first such cases was brought in 2009 by generic manufacturer Amphastar Pharmaceuticals Inc. (Amphastar) against brand manufacturer Aventis Pharma S.A. (Aventis). Amphastar alleged that Aventis had committed fraud on the United States Patent and Trademark Office (PTO) in connection with the prosecution of its patent application for the anticoagulant medication enoxaparin. Amphastar further alleged that by committing such fraud, Aventis obtained an illegal monopoly over the drug and, thus, knowingly overcharged the United States for its branded enoxaparin purchases, which (but for the fraud) would have been substituted with cheaper generic drugs.

This suit was never litigated on the merits. Instead, the district court dismissed the complaint for lack of subjectmatter jurisdiction based on the FCA’s “public disclosure bar,” which prohibits relators from bringing suits based on fraud that has already been disclosed publicly, including through judicial proceedings or news reports. The public-disclosure bar applied because the fraud had already been disclosed through prior patent litigation. Moreover, the plaintiff did not establish that the “original source” exception to the public-disclosure bar applied. In particular, Amphastar failed to show both (1) that it had direct, firsthand knowledge of the alleged fraud, and (2) that it obtained such knowledge before the evidence of the fraud was made public. The Ninth Circuit subsequently affirmed the dismissal.

Two more recent FCA cases, each brought by former patent attorney Zachary Silbersher as the named plaintiff, are now pending on appeal before the Ninth Circuit.

In one of these two cases, the plaintiff alleged that the defendant drug manufacturers, Valeant Pharmaceuticals Int’l, Inc., fraudulently obtained a follow-on patent that allowed them to maintain a monopoly on the sale of Apriso, an anti-inflammatory drug used to treat ulcers. The plaintiff contended that the defendants violated the FCA by certifying to the United States government that the prices the defendants were charging for Apriso were “fair and reasonable,” when allegedly the defendants were knowingly charging artificially high prices for the drug as a result of their alleged patent fraud.

As in Amphastar, the district court in Valeant dismissed the complaint based on the public disclosure bar, concluding that the facts underlying the complaint’s allegations of fraud had all been previously disclosed in public proceedings before the Patent Trial and Appeal Board and by various news outlets years before plaintiff brought his complaint. Separately, the district court raised serious concerns about the plaintiff’s role as a relator, citing the plaintiff’s involvement as an attorney in the underlying patent proceedings, which also raised ethical questions.

Similarly, in the other of the two pending Ninth Circuit cases, the plaintiff alleged that the defendants fraudulently procured patents for their dementia products, which served to artificially inflate the prices charged for such products. In turn, the plaintiff alleged that this rendered false the defendants’ certifications to a government agency that such prices were “fair and reasonable.” The defendants moved to dismiss, arguing (among other things) that the publicdisclosure bar applied because the allegations in the complaint were obtained from patent prosecution files that were public for years before the plaintiff filed his complaint. Admitting it was a “difficult” issue, the district court nevertheless rejected this argument on the basis that the patent prosecution files did not expressly fall into one of “public sources” recognized by the FCA. The district court subsequently granted the defendants’ motion to certify the order for an immediate appeal.

While the outcome of these appeals remains to be seen, both cases raise interesting questions and could, depending on their resolution, influence the degree to which these types of case theories may be viable in the False Claims Act context. HN

Sean Royall and Rachael Rezabek are Partners at Kirkland & Ellis. They can be reached at sean.royall@kirkland.com and rachael.rezabek@kirkland.com, respectively.

Office Space, Position Wanted, Positions Available, Services

Classified Ads available Online

Contact Judi Smalling jsmalling@dallasbar.org 214-220-7452

www.dallasbar.org