scholarly journals Pharmaceutical Phonies: The Entanglement of Fraud, Third-Party Payors, and Proximate Cause in Civil RICO Cases

2021 ◽  
Vol 9 (4) ◽  
pp. 1-11
Author(s):  
Merrick Max Dillard Hayashi
Keyword(s):  
Health Risks ◽  
Case Law ◽  
Case Note ◽  
Third Party ◽  
Pharmaceutical Companies ◽  
Related Case ◽  
Proximate Cause ◽  
Drug Companies ◽  
District Council ◽  
Health Care Fund

This Case Note analyzes the Ninth Circuit’s approach to the issue of whether patients and doctors destroy proximate cause in cases where third-party payors (“TPPs”) sue drug companies for fraudulently misrepresenting the health risks associated with their products. In the 2019 case Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals Co., the Ninth Circuit held that TPPs suing to recover damages from a pharmaceutical company for the fraudulent omission of a drug’s health risks could satisfy the proximate cause requirement for a civil cause of action under § 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Ninth Circuit’s decision is satisfactory in that it faithfully (1) observes the Supreme Court’s direct relation test and (2) follows precedent establishing that a plaintiff satisfies the proximate cause requirement when their alleged injury is a foreseeable and natural consequence of the defendant’s fraud. As a matter of public policy, this holding is positive because it hamstrings pharmaceutical companies’ ability to escape liability by hiding behind patients, doctors, and other actors inhabiting the chain of causation. Additionally, the Ninth Circuit’s holding is positive in that it adheres to Supreme Court precedent and helps deter future injurious conduct. In support of these assertions, this Case Note begins by examining the factual background and procedural posture of Painters. The Note continues by analyzing the majority’s opinion with respect to related case law and closes by suggesting ways to address some of the potential problems that could stem from the Ninth Circuit’s decision.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

The law applicable to third-party effects of assignment and the conflict rules for insolvency according to EU law

2019 ◽  
Vol 24 (4) ◽  
pp. 664-684
Author(s):  
Christian Heinze ◽  
Cara Warmuth
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Third Party ◽  
Legislative Process ◽  
Insolvency Law ◽  
Ongoing Debate ◽  
Good Opportunity ◽  
Insolvency Regulation ◽  
The Law ◽  
The Eu

Abstract In March 2018, the European Commission issued its proposal for a regulation on the law applicable to third-party effects of assignments of claims, aiming to put an end to the ongoing debate on this issue and the legal uncertainty associated with it. On the basis of the Commission’s decision in favour of the application of the law of the assignor’s habitual residence, this article discusses the consequences of the Proposal under European Union (EU) insolvency law. For that purpose, the coherence of the Proposal with the Insolvency Regulation will be examined, first in general and then in more detail. The analysis comes to the result that the Commission’s objective of aligning the Proposal with the legal framework of the Insolvency Regulation has predominantly been well achieved. The authors point out remaining minor inaccuracies that may be clarified in the further legislative process or by later case law. It is concluded that, from the perspective of international insolvency law, the proposed uniform conflict-of-laws rule at the EU level offers a good opportunity to promote legal certainty with regard to cross-border assignments of claims in the future.

scholarly journals A hidden web of policy influence: The pharmaceutical industry’s engagement with UK’s All-Party Parliamentary Groups

PLoS ONE ◽  
2021 ◽  
Vol 16 (6) ◽  
pp. e0252551
Author(s):  
Emily Rickard ◽  
Piotr Ozieranski
Keyword(s):  
Pharmaceutical Industry ◽  
Conflicts Of Interest ◽  
Pharmaceutical Companies ◽  
Total Drug ◽  
Conflicts Of Interests ◽  
Policy Influence ◽  
Patient Organisations ◽  
Drug Companies ◽  
Health Related ◽  
Industry Needs

Our objective was to examine conflicts of interest between the UK’s health-focused All-Party Parliamentary Groups (APPGs) and the pharmaceutical industry between 2012 and 2018. APPGs are informal cross-party groups revolving around a particular topic run by and for Members of the UK’s Houses of Commons and Lords. They facilitate engagement between parliamentarians and external organisations, disseminate knowledge, and generate debate through meetings, publications, and events. We identified APPGs focusing on physical or mental health, wellbeing, health care, or treatment and extracted details of their payments from external donors disclosed on the Register for All-Party Parliamentary Groups. We identified all donors which were pharmaceutical companies and pharmaceutical industry-funded patient organisations. We established that sixteen of 146 (11%) health-related APPGs had conflicts of interest indicated by reporting payments from thirty-five pharmaceutical companies worth £1,211,345.81 (16.6% of the £7,283,414.90 received by all health-related APPGs). Two APPGs (Health and Cancer) received more than half of the total value provided by drug companies. Fifty APPGs also had received payments from patient organisations with conflicts of interest, indicated by reporting 304 payments worth £986,054.94 from 57 (of 84) patient organisations which had received £27,883,556.3 from pharmaceutical companies across the same period. In total, drug companies and drug industry-funded patient organisations provided a combined total of £2,197,400.75 (30.2% of all funding received by health-related APPGs) and 468 (of 1,177–39.7%) payments to 58 (of 146–39.7%) health-related APPGs, with the APPG for Cancer receiving the most funding. In conclusion, we found evidence of conflicts of interests through APPGs receiving substantial income from pharmaceutical companies. Policy influence exerted by the pharmaceutical industry needs to be examined holistically, with an emphasis on relationships between actors potentially playing part in its lobbying campaigns. We also suggest ways of improving transparency of payment reporting by APPGs and pharmaceutical companies.

scholarly journals Problems Associated with the Legal Substance of Real Estate Encumbrances

2015 ◽  
Vol 1 (1) ◽  
pp. 54
Author(s):  
Inga Kudeikina
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Common Good ◽  
Case Law ◽  
Related Case ◽  
The Real Estate ◽  
Special Procedure ◽  
Estate Owner ◽  
Entire Society ◽  
Real Estate Owner

The article is devoted to the problems pertaining to the establishment of encumbrances on real estate. Encumbrances that are created on the basis of law have a different legal substance. As a rule, encumbrances by law are significant and bring benefits to an unlimited number of rightholders. This type of encumbrances includes various protection zones, roads, nature reserves, etc. It is assumed that these encumbrances are for the common good; therefore, the rights of an owner may be restricted. Legislation allows establishing encumbrances without any authorisation from the real estate owner. The objective of the thesis is to analyse the legitimacy of encumbrances based on law in the context of the impairment of owner's property rights. To this end, both descriptive and analytical methods have been employed to analyse the legal grounds for encumbrances and related case-law. The study has relied on both legislation and case-law. The results of the study give strong grounds to conclude that a special procedure could be applied to the establishment of encumbrances in situations when those are intended to meet the needs of the entire society or individual communities of certain regions. Like any other encumbrances, those established by law restrict owner's property rights. A real estate encumbrance should be recognised as a restriction on owner's property rights. Certain remedies should be introduced with a view to balancing the rights and interests of the society and the owner and minimising the adverse effects of encumbrances. Such remedies could comprise an owner's right to claim reasonable compensation, challenge the establishment of encumbrances and initiate their annulment.

Company Directors: Duties, Liabilities, and Remedies

2017 ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
Court Decisions ◽  
Cayman Islands ◽  
Market Abuse ◽  
Company Directors ◽  
The Law ◽  
The Uk ◽  
Law And Legislation ◽  
Court Of Appeal

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

Tracing at Law

2016 ◽  
Author(s):  
Richard Calnan
Keyword(s):  
Common Law ◽  
Case Law ◽  
Third Party

This chapter explains what tracing is. Differing descriptions of the expression are discussed. Tracing does not seek to examine intention; tracing imposes a proprietary interest. The chapter discusses the principles of tracing at common law and how a person becomes a legal owner of a substitute asset. In particular, the rules as to indentification of a substitute asset are discussed. The chapter contains a detailed discussion of the case law on tracing at common law. Attempts to distinguish tracing from ‘following’ are discussed. The chapter distinguishes tracing against the wrongdoer from tracing against a third party.

Introduction

2007 ◽  
pp. 1-14
Author(s):  
Chester Brown
Keyword(s):  
Dispute Settlement ◽  
Common Law ◽  
Case Law ◽  
Third Party ◽  
Homogeneous Body ◽  
Short Introduction ◽  
International Courts ◽  
International Dispute ◽  
History Of ◽  
International Adjudication

This chapter gives a short introduction to the history of international dispute settlement by third-party adjudication. It notes that there is a gap in the existing literature, being an examination of procedure and remedies before different international courts, and an answer to the question of whether the same procedural rules obtain, and the same remedies are available, before different international judicial bodies. It presents the book's central thesis — that international courts often adopt common approaches to questions of procedure and remedies, which leads to increasing commonality in the case law of international courts. It then explains that the term ‘common law of international adjudication’ refers to the emergence of an increasingly homogeneous body of rules applied by international courts and tribunals relating to procedure and remedies. It then defines the terms ‘procedure’ and ‘remedies’. It also covers certain selected aspects of international adjudication, and reviews the jurisprudence of certain selected international courts and tribunals.

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