While Paul Simmerly makes a compelling case that Eric Holder is a corrupt attorney general, the larger issue is, if our attorney general is corrupt, were does that leave us citizens? How are our rights assured? How are we protected from other corrupt government officials?
September 1, 2015
Honorable William H. Walls
Judge, United States District Court
Martin Luther King Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
Re: United States of America vs. Robert Menendez;
U.S. District Court Cause No. 2:15-cr-00155-WHW-1
Allegations of interference with Medicare Fraud prosecutions
Dear Judge Walls:
I am writing to you regarding the above-entitled criminal prosecution of Senator Robert Menendez over which you are presiding. The Department of Justice is attempting to prosecute Senator Menendez for allegedly interfering with their Medicare Fraud investigation of Dr. Salomon Melgen. No one, including people representing Senator Menendez, has requested that I contact you.
The purpose of this correspondence is to inform you that I believe that Eric Holder, the previous Attorney General of the United States, is guilty of the same kind of conduct for which Senator Menendez is being criminally prosecuted. Further, it is my belief that the United States Department of Justice has full knowledge of this conduct, has approved it and has covered up this wrongdoing, as well as the criminal conduct committed by pharmaceutical giant Johnson & Johnson involving Medicare Fraud, which was extensively detailed in a secret arbitration proceeding conducted by Judicial Arbitration and Mediation Services (JAMS).
Epoetin Alfa is a drug marketed and sold as an anti-anemia (anti-fatigue) treatment. It is an erythropoietin stimulating agent (ESA) that increases the red blood cell count. It is the drug used by bike racer Lance Armstrong. Epoetin Alfa was invented and patented by Amgen, Inc. which sells the drug under the trade names Aranesp and Epogen (aka “EPO”). All Epoetin Alfa sold in the United States is manufactured by Amgen and has always been so manufactured. Amgen licenses Epoetin Alfa for sale by Johnson & Johnson under a Product License Agreement for all uses except treatment of dialysis patients. Johnson & Johnson sells Epoetin Alfa through its wholly-owned subsidiary Ortho Biotech Products, LP, under the trade name Procrit. Aranesp, Epogen and Procrit are the same drug – just different trade names.
Johnson & Johnson and Amgen have been in a legal war for approximately the last two decades over the Epoetin Alfa Product License Agreement and whether it was breached. This litigation is some of the largest in U.S. history. Johnson & Johnson Procrit salesman, Gig Harbor, Washington resident Mark E. Duxbury, was a key witness for Amgen in two aspects of this litigation, the latest being a secret JAMS (Judicial Arbitration and Mediation Service) Arbitration that went on for approximately six years, from about 1997 through 2002. Duxbury, one of Johnson & Johnson’s top Procrit salespersons, was described as a “rogue” employee by Johnson & Johnson and was fired. This is a universal Big Pharma characterization applied to whistleblowers.
The secret JAMS arbitration was conducted in Chicago and was entitled Amgen, Inc. v. Ortho Pharmaceutical Corporation. Ortho Pharmaceutical Corporation is now known as Ortho Biotech Products, LP. The sole purpose behind the secrecy of the JAMS Arbitration was to keep the Medicare fraud of the two companies secret from prosecutors, shareholders, the media and the public. The formula for the drug is public knowledge. The only companies selling ESA’s are Amgen and Johnson & Johnson, so there are no proprietary sales secrets.
I have described this JAMS proceeding as one of the biggest legal proceedings in history. This is my own characterization based upon the fact that it went on for at least six years, the final arbitration hearing lasted about six months, there were more than 250 depositions taken all over the country (Duxbury 4 times) and, if rescission had been granted, Johnson & Johnson would have lost its most profitable product (perhaps $30 billion of future sales). I was present for Duxbury’s testimony and personally observed approximately ten million pages of documents in shelves spread out over the several floors of the office building rented solely for the purpose of conducting this secret arbitration.
The issue involved in this massive arbitration was which company had breached the Product License Agreement and, if there was a breach, what were the damages. In order to litigate this issue, every aspect of the promotion, marketing and sale of Aranesp, Epogen and Procrit was put into evidence, including evidence of the promotion, marketing and sale of Aranesp, Epogen and Procrit in violation of the Medicare laws. Over a hundred attorneys were in attendance at each day of the final arbitration hearing (a formal trial), listening to their clients’ testimony describing ongoing criminal Medicare Fraud and allowing their clients to commit perjury and obstruct justice. All of the evidence was recorded and the testimony and depositions transcribed and everything was indexed. This proceeding provided everything that the Department of Justice needed to successfully prosecute this Medicare Fraud activity. Duxbury and three other witnesses testified truthfully at the Arbitration Hearing. They were all fired and retaliated against. JAMS did nothing to help them.
Both Amgen, Inc. and J&J/Ortho Biotech Products, LP promoted, marketed and sold Aranesp (by Amgen), Epogen (by Amgen) and Procrit (by Ortho Biotech) in the exact, same way. The Department of Justice prosecuted Amgen, Inc. and in December of 2012, Amgen agreed to settle for a fine of $762 million to resolve criminal and False Claims Act allegations. See the DOJ Press Release: http://www.justice.gov/opa/pr/amgen-inc-pleads-guilty-federal-charge-brooklyn-ny-pays-762-million-resolve-criminal
Amgen Inc. Pleads Guilty to Federal Charge in Brooklyn, NY.;Pays $762 Million to Resolve Criminal Liability and False Claims Act Allegations
Earlier today, at the federal courthouse in Brooklyn, New York, U.S. District Judge Sterling Johnson, Jr. accepted a guilty plea by American biotechnology giant Amgen Inc. (Amgen) for illegally introducing a misbranded drug into interstate commerce. The plea is part of a global settlement with the United States in which Amgen agreed to pay $762 million to resolve criminal and civil liability arising from its sale and promotion of certain drugs. The settlement represents the single largest criminal and civil False Claims Act settlement involving a biotechnology company in U.S. history.
Attorney General Holder, however, directed his Department of Justice attorneys not to intervene in the case of U.S. ex rel. Duxbury and McClellan v. Ortho Biotech Products, LP, District Court of Massachusetts Cause No. 03-CV-12189-RWZ, a Medicare Fraud False Claims Act (“Qui Tam”) case involving J&J/Ortho Biotech’s blockbuster drug, Procrit. This case involves what is possibly the largest Medicare Fraud in history, perhaps $10 billion in damages to the U.S. taxpayers depending upon how penalties are assessed. At one time, this drug was the most reimbursed Medicare drug and accounted for sales of around $4 billion for Johnson & Johnson. However, this drug may have killed over 500,000 people. For a while it was promoted as a remedy for fatigue associated with cancer chemotherapy. The only problem was that it was found to stimulate cancer growth and received a “black box warning”. The FDA had failed to make Johnson & Johnson perform all the required testing.
J&J’s Procrit is an erythropoietin stimulating agent (ESA), just like Amgen’s Aranesp and Epogen. All these drugs have received the same, identical warnings from the FDA. These drugs are medically interchangeable. If Amgen can be prosecuted for off-label promotion of Aranesp and Epogen, then J&J should be prosecuted as well for off-label promotion of Procrit. And Procrit may be the deadliest prescription drug in history.
The reason Mr. Holder and the Department of Justice directed his attorneys not to intervene in the Duxbury suit is because Defendants Johnson & Johnson and Ortho Biotech Products, LP, are clients of Mr. Holder’s former law firm, Covington & Burling. I believe that his failure to intervene goes against the advice of his Justice Department attorneys working on the case. Mr. Holder does not want to intervene because it would hurt his former clients and former law firm and undoubtedly force Johnson & Johnson to settle. Covington & Burling represent Ortho Biotech Products, LP, in the Duxbury lawsuit.
While in private practice before being appointed U.S. Attorney General, Mr. Holder specialized in defending Big Pharma drug companies in Medicare Fraud cases just like Duxbury. He may have even worked on the Duxbury case while in private practice, an allegation that has never been denied. Mr. Duxbury filed his False Claims Action case in 2003, well before Mr. Holder became Attorney General in 2008. Obviously, a man with the legal intellect and experience to be appointed Attorney General of the United States, specializing in this kind of case and armed with unlimited resources is going to have worked at some point during these five years on Johnson & Johnson’s defense of Mr. Duxbury’s $10 billion case, a defense of probably the firm’s most important client. Why would Covington & Burling not utilize Mr. Holder’s expertise?
Mr. Holder should have recused himself from any decision-making in the Duxbury case. He had a blatant conflict of interest and his refusal to recuse himself is a violation of the ethics laws.
The Duxbury case has been ongoing for ten years. Ten pages of Covington & Burling’s website (www.cov.com) brag about how a client can benefit by its lawyers’ government contacts.
Covington & Burling LLP | We help clients navigate issues …
Business and corporate law firm with offices in England, Belgium, United States, and South Korea.
A more comprehensive explanation of the Duxbury Medicare Fraud claims is contained in the attached letters, in particular the Hurley letter of March 28, 2014. The Department of Justice has failed to provide any explanation whatsoever for why it failed to intervene in the Duxbury matter.
In the 2009 DOJ prosecution of Big Pharma company Pfizer, Mr. Holder recused himself because his firm, Covington & Burling, had worked defending Pfizer in that prosecution. See http://www.cbsnews.com/news/pfizer-to-pay-record-23b-settlement. The same principles should have applied in the Duxbury case and Mr. Holder should have recused himself. He failed to do so.
Pfizer to Pay Record $2.3B Settlement – CBS News
Last updated at 3:59 p.m. EDT Federal prosecutors hit Pfizer Inc. with a record-breaking $2.3 billion in fines Wednesday and called the world’s largest drug maker a …
On July 10, 2013, I filed the attached Ethics Complaint with the Office of Professional Responsibility over this matter. I received the attached frivolous response to that Ethics Complaint dated November 4, 2013 which contained a factually and legally inaccurate explanation. I sent three reply letters on February 17, 2014, March 28, 2014, and July 3, 2014 but received no response. On July 7, 2014 I filed the attached Ethics Complaint with the Office of Professional Responsibility against Justice Department attorneys involved in the Duxbury case. No response to that Complaint has ever been received. Requests for documents I made under the Freedom of Information Act have also been ignored. On May 13, 2015, I sent the attached Complaint to the Office of the Inspector General of the U.S. Department of Justice. In response, I received the same, unsigned form letters dated May 28, 2015 and dated July 13, 2015 which provided no response to my Complaint other than to state that no further action would be taken. It is readily apparent by not signing these letters that the people in the USDOJ Office of Inspector General do not want to take responsibility and accountability for their actions by approving this blatant wrongdoing and become the next Lois Lerner, the corrupt IRS official.
Several hundred Johnson & Johnson executives, Amgen executives and their attorneys should have been prosecuted for criminal Medicare Fraud, Obstruction of Justice, Contempt of Court (for violating numerous “Corporate Integrity Agreements”) and Perjury. They have illegally promoted ESA’s, knowingly withheld documents demanded by Justice Department subpoenas, perjured themselves, violated Corporate Integrity Agreements and engaged in organized criminal conspiracies in violation of the RICO laws. But, just like their banking, mortgage and financial industry counterparts, they are given a pass by the Justice Department. Different rules of conduct apply to the corporate and legal elite. This should not be the case.
Johnson & Johnson has now settled at least fifteen Medicare Fraud lawsuits over the past two decades averaging more than $302 million each. Johnson & Johnson and Amgen have each been subpoenaed for their documents relating to their promotion and marketing of ESA’s. Each of these companies has signed Corporate Integrity Agreements promising not to engage in this conduct in the future. Obviously, these Corporate Integrity Agreements (Federal Court Orders) have been ignored and I seriously doubt that full compliance with DOJ Subpoenas has occurred. Isn’t this Obstruction of Justice and Contempt of Court?
The U.S. Constitution guarantees us the Equal Protection of the laws. There is no excuse for selectively prosecuting Senator Menendez for interference with Medicare Fraud prosecutions and not prosecuting former AG Eric Holder for the same thing. The same high standards that apply to the conduct of a United States Senator certainly should also apply to a United States Attorney General, the highest law enforcement officer in the land. For the U.S. Attorney General to prosecute a man for the same crime the Attorney General is guilty of is preposterous.
I have previously advised Mr. Harold Malkin, AUSA for the Western District of Washington, Emily Langlie, PR Spokesperson for the Western District, and J. Moss, in charge of the JAMS Chicago office, that I would be initiating this communication and publishing a series of articles about this matter. No one has voiced any objection.
All of what I have stated is true and has been forwarded to many people in the Department of Justice and in government. No portion of what I have said has ever been denied.
Please contact me if you have any questions or need further supporting material.
Thank you for your attention to this matter.
Very truly yours,
PAUL E. SIMMERLY
14418 S.E. 24th Street
Bellevue, Washington 98007