Davis Polk & Wardwell served as pro bono counsel for the plaintiff, working with co-counsel from Disability Advocates, Inc., the Prisoners’ Rights Project of the Legal Aid Society, and Prisoners’ Legal Services of New York, in Disability Advocates, Inc. v. New York State Office of Mental Health and Department of Correctional Services, a landmark federal lawsuit that sought to improve the treatment and housing conditions for inmates with mental illness throughout the New York State prison system. Disability Advocates is an Albany-based not-for-profit that is authorized by federal law to advocate for the rights of persons with disabilities in New York. After five years of litigation and two weeks of trial, the parties negotiated a settlement (still subject to approval by Judge Gerard Lynch) that will provide for major improvements in psychiatric treatment for New York State inmates with mental illness.
The Private Settlement Agreement (PSA) establishes a heightened level of care for inmates with serious mental illness who are confined in Special Housing Units (SHU) for disciplinary infractions, and requires that they receive a minimum of two hours per day of out-of-cell treatment in addition to an hour of recreation. Inmates diverted from SHU to the new Residential Mental Health Unit (RMHU) will receive as many as four hours of out-of-cell treatment daily in addition to an hour of recreation. The PSA also provides for ongoing reviews by senior prison officials of disciplinary dispositions of inmates with serious mental illness, with the goal of eliminating lengthy SHU and keeplock sentences for such inmates. The PSA greatly expands mental health programs and services for inmates with mental illness in the general prison population as well, including by establishing new residential treatment programs, and extends mental health screening at reception to include all incoming inmates. We believe that the PSA is historic in the scope of its comprehensive programs.
The Davis Polk team included senior counsel James W.B. Benkard, counsel Nancy B. Ludmerer, associates Candy M. Lawson and Lydia I. Kang, legal assistant Dwayne M. Davson and document clerk Lisa A. Scovotti. Other associates or summer associates who worked on the matter since its inception in 2002 include associate Una A. Kim, former associates Andrew Krause, Brian Lasky, Maya Prabhu and Jennifer Reardon and former legal assistants Jennifer Kim, Jessica Bresnan and Carissa Pilotti. Counsel James D. Liss also lent valuable assistance. In recognition of this pro bono commitment, James Benkard has been awarded the New York State Bar Association 2007 President's Pro Bono Service Award for the First Judicial District, which will be presented in a ceremony on Law Day, April 30, 2007.
In July 2006, New York State Chief Judge Judith S. Kaye asked DPW litigation partner Carey Dunne to chair the Special Commission on the Future of the New York State Courts, a body that she created to recommend reforms to the New York State court system. It is a little known fact that, despite its status as a capitol of finance, culture and the arts, New York State has the most Byzantine court structure in the country, including a system of 11 jurisdictionally distinct trial courts, which create confusion for even the most experienced state litigators. In her 2006 State of the Judiciary address, Chief Judge Kaye said, “The Commission will be asked to look at systems across the nation for ideas, and to prepare a court structure that is free of barriers that force the unnecessary fragmentation of cases, that is user-friendly, has the benefits of both specialization and simplicity, and that is accessible to all New Yorkers.”
The Commission is comprised of 30 members, including judges, legislators, academics, business leaders and lawyers from around the state. In addition to Carey Dunne as Chair, the Davis Polk team includes associate Elliot Moskowitz, who is Chief Counsel to the Commission, and Rebecca Winters, Sarah McDonald, Josh Plaut, Andrew Schlicter and Heather Ward as Commission Counsel. Legal Assistant Lisa Scovotti and Executive Assistant Barbara Purdy also provide critical support.
In the seven months following the establishment of the Commission, the team studied the voluminous record of past court reform efforts in New York; gathered and analyzed data on court filings and productivity; conducted a financial analysis of the impact of potential reforms; met with judges, legislators, politicians, business leaders, bar associations and others from around the state; and oversaw the deliberations of the Commission.
In February 2007, the Commission submitted a 170-page report to Chief Judge Kaye, recommending a dramatic restructuring of the courts, in which the state’s various trial courts would be consolidated into a simplified two-tier system. Prior to the submission of the report, Commission members met with Governor Eliot Spitzer, who later announced in his first State of the State address that court restructuring would be one of his highest reform priorities. The team also obtained public support for its proposals from the New York State Bar Association, the New York City Bar Association, the New York County Lawyers Association, the state’s major business lobbying groups, good government groups and other prominent organizations from around the state. It also conducted an extensive financial analysis of the impact of the proposed reforms, which are estimated to save over half a billion dollars per year. Finally, the team drafted the report itself, which includes the text of a proposed Constitutional amendment, which will be needed to implement the recommended reforms.
On February 26, 2007, Chief Judge Kaye publicly released the Commission’s report, in connection with her annual State of the Judiciary address. In the address, she said, “I am grateful to Carey R. Dunne, Esq., of Davis Polk & Wardwell, for taking leadership of that distinguished group of former legislators, academics, practicing lawyers, representatives of the business community, and fourteen current and former judges, including former members of the Court of Appeals. In barely seven months, they have produced a truly remarkable document that I hope finally will trigger the reform every Chief Judge in modern times has advocated.”
The Commission’s proposals are now in the hands of new Governor Spitzer, who has publicly committed to submit to the Legislature the constitutional amendment drafted by the Commission. In the meantime, the work of the Commission will continue: In early February, Chief Judge Kaye asked the Commission to extend its term to conduct a study of the state’s system of local Town and Village courts, which have recently been the subject of much controversy in the press. The team's report on those courts is expected in the fall of 2007. A link to the Commission’s restructuring report can be found at http://www.courts.state.ny.us/reports/courtsys-4future_2007.pdf (text of report) and http://www.courts.state.ny.us/reports/courtsys-4future_append2007.pdf (appendices).
On September 7, 2006, Judge Paul Crotty of the U.S. District Court for the Southern District of New York ruled in favor of Hoffmann-La Roche Inc., denying a motion by Procter & Gamble Pharmaceuticals Inc. for a preliminary injunction in a false advertising case involving Roche's osteoporosis drug Boniva®. Davis Polk represented Hoffmann-La Roche and its co-defendant GlaxoSmithKline in the case. Hoffmann-La Roche, based in New Jersey, is a subsidiary of Roche Holding Ltd, a leading pharmaceutical firm with global headquarters in Switzerland. GlaxoSmithKline is a leading pharmaceutical firm, with global headquarters in the United Kingdom and U.S. offices in Pennsylvania and North Carolina.
In the lawsuit, which was brought in January 2006, P&G contended that Hoffmann-La Roche's advertising for Boniva was false and misleading and sought a preliminary injunction under the Lanham Act. Judge Crotty conducted a four-day evidentiary hearing. In a 68-page opinion, the court concluded that P&G had not demonstrated that the TV advertising, websites, sales aids and sales force detailing for Boniva are false and misleading and rejected in all respects P&G's motion for preliminary injunction. The court also held that the consumer and physician survey evidence offered by P&G in support of its motion was flawed and inadmissible.
The Davis Polk litigation team included partners Arthur F. Golden, Joel M. Cohen and Jerome G. Snider, and associates Christopher Withers, Tatiana R. Martins, Ronja Bandyopadhyay, Daniel S. Kahn, Crystal McKellar, Matthew B. Rowland, Daniel P. Chung, Lara E. Veblen, and former associates Margery M. Shanoff and Audrey J. Lee. Boyoung Youn was the principal legal assistant on the matter. All members of the Davis Polk team work in the New York office.
Davis Polk & Wardwell represented F. Hoffmann-La Roche Ltd and Hoffmann-La Roche Inc. ("Roche") in the arbitration and settlement of a dispute between Roche and Gilead Sciences, Inc. stemming from the companies' 1996 Development and License Agreement for the influenza drug Tamiflu. Headquartered in Basel, Switzerland, Roche is one of the world's leading research-focused health care groups in the fields of pharmaceuticals and diagnostics. Headquartered in Foster City, California, Gilead Sciences is a biopharmaceutical company that discovers, develops and commercializes innovative therapeutics in areas of unmet medical need. Tamiflu (oseltamivir), the only oral antiviral for the treatment and prevention of influenza A and B, was invented by Gilead and licensed to Roche in 1996.
In June 2005, Gilead publicly announced its intention to seek termination of the 1996 development and license agreement. It initiated an arbitration in September 2005. Under the terms of the settlement, the arbitration will be terminated and the parties executed an amendment to their 1996 agreement.
The Davis Polk team included partners Arthur F. Golden, Joel M. Cohen and John H. Butler and associates Christopher Withers, Tatiana R. Martins, Marcelo M. Blackburn, Frank J. Azzopardi and Caroline Tait. All lawyers work in the New York office.
On November 2, 2005, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of antitrust claims against AstraZeneca PLC (and related entities) and Barr Laboratories arising out of the settlement of a Hatch-Waxman patent infringement suit in 1993. Davis Polk represented AstraZeneca in the antitrust litigation and took the lead in arguing the appeal. AstraZeneca is a leading pharmaceutical firm with headquarters in the United Kingdom. Barr Laboratories is a subsidiary of Barr Pharmaceuticals, Inc., a New Jersey-based generic drug manufacturer.
The original patent infringement suit involved tamoxifen citrate, a leading breast cancer drug that was invented and developed by AstraZeneca's predecessor company. Barr claimed that the tamoxifen patent was invalid and unenforceable. After a district court ruled in Barr's favor, the parties settled the lawsuit while it was pending on appeal. As part of the settlement, Barr received a non-exclusive distributorship to sell tamoxifen and a cash payment. The case was resolved and the district court's judgment was vacated by the U.S. Court of Appeals for the Federal Circuit. Subsequent to the settlement, several other generic manufacturers sought to challenge the validity and enforceability of the tamoxifen patent. In each case AstraZeneca prevailed and the patent remained in force until it expired in 2002.
In 2000, seven years after the settlement, more than 30 federal and state class action complaints were filed alleging that the AstraZeneca-Barr agreement violated federal and state antitrust laws. The cases were consolidated in the U.S. District Court for the Eastern District of New York. In May 2003, District Judge I. Leo Glasser granted defendants' motion to dismiss the cases, holding that there was no unlawful restraint of trade and that plaintiffs had not suffered antitrust injury.
In its recent decision, the Second Circuit has now affirmed that dismissal. In a 72-page opinion, the Court concluded that there were no plausible allegations that the settlement had restrained competition beyond the scope of the tamoxifen patent or that AstraZeneca's patent infringement suit against Barr was baseless. Accordingly, the Court held that the complaint properly was dismissed.
The Davis Polk litigation team included partners Joel M. Cohen (who argued the appeal) and Arthur Golden, counsel Suong Nguye, and associates Douglas K. Yatter, Joshua D. Liston and Christopher J. Roche. Zachary P. Pfeiffer was the legal assistant on the matter.
Davis Polk & Wardwell represented Sterling Mets, L.P., owner of the New York Mets Major League Baseball franchise, in the dismissal of litigation brought by SportsChannel Associates. SportsChannel sought to prevent the Mets from pursuing plans to form a Mets-anchored regional sports network in partnership with Time Warner Cable Inc. and Comcast Sports NY Holdings, Inc.
SportsChannel alleged that the Mets breached a 1996 agreement entered into by the parties, by which the Mets licensed the pay television rights to its games to SportsChannel for a fixed term. The litigation centered on the Mets' exercise of an early termination provision included in that agreement.
Yesterday, Justice Helen E. Freedman of the Commercial Division of the Supreme Court, New York County, granted the Mets' motion for summary judgment and dismissed SportsChannel's complaint. Justice Freedman ruled that settled principles of contractual interpretation supported the Mets' reading of the 1996 agreement and that adoption of SportsChannel's competing interpretation would lead to anomalous results that would be commercially unreasonable and contrary to the parties' reasonable expectations.
The Davis Polk team included litigation partners Robert B. Fiske, Jr., Lewis B. Kaden, Eric F. Grossman and Brian S. Weinstein and associates Ross B. Galin, Rajesh S. James and Jenna Kiziah; corporate partner David L. Caplan and associate Scott D. Mitnick; litigation counsel Lawrence E. Jacobs; summer associates Michael Garofola and Jeremy Schwartz; legal assistants Paul Tortora and Brian Collesano; and summer intern Sarah Holt.
Davis Polk & Wardwell succeeded in overturning the death penalty sentence and convictions of its client, Larry Jenkins, whom the firm has represented pro bono since 1999. In 1995, Mr. Jenkins was convicted and sentenced to death for the 1993 robbery, kidnapping and murder of two people in Jesup, Georgia, and had exhausted his direct appeal without success.
In 1999, Davis Polk and the Georgia Resource Center filed a state court habeas corpus petition on Mr. Jenkins' behalf. In December 2002, the habeas court held a hearing to consider Mr. Jenkins' claims that his conviction and death sentence were unconstitutional. Mr. Jenkins' primary claims were that his convictions were invalid due to the ineffective assistance of his trial counsel and the State's improper suppression of material exculpatory evidence, and that he is mentally retarded and thus ineligible for the death penalty.
On July 19, 2005, the state habeas court ruled for Mr. Jenkins on his claims that his convictions were unconstitutional. In addition, the court found that the U.S. Supreme Court's March 2005 decision in Roper v. Simmons, which held that the Constitution forbids the execution of juvenile offenders, rendered Mr. Jenkins' death sentence unconstitutional as a matter of law because Mr. Jenkins was seventeen years old at the time of the crime for which he was convicted. The State has appealed the court's order.
The Davis Polk litigation team includes senior counsel Ogden N. Lewis and partner James W.B. Benkard and associates Hayward H. Smith and Andrew B. Dean, as well as numerous other Davis Polk associates and paralegals past and present, all of the New York office.
Davis Polk & Wardwell represented Credit Suisse First Boston (CSFB) in the dismissal of a class action securities litigation filed in the United States District Court for the District of Massachusetts on behalf of shareholders in Agilent Technologies, a California-based manufacturer of scientific instruments and analysis equipment.
The shareholder class alleged that CSFB analysts artificially inflated Agilent's stock price, which during the class period went from a high of $159 per share to $40. On April 4, 2005, the Massachusetts district court dismissed the complaint with prejudice on the grounds that plaintiffs had failed adequately to allege falsity, scienter and causation.
The Davis Polk litigation team included partner Lawrence Portnoy, associates William J. Fenrich, Avi Gesser, Michael D. Jordan and Daniel J. Schwartz and legal assistant Devon J. Douglas.
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