Ben, Ben, he’s our man . . .

Yesterday Melvyn Weiss, the legendary founding member of Milberg Weiss, agreed to plead guilty to a criminal conspiracy to pay a share of legal fees to plaintiffs in his firm's shareholder suits. Such payments are considered illegal kickbacks because they might induce plaintiffs to accept a deal that may not be best for their fellow plaintiffs. Under the deal, Weiss faces 18 to 33 months in federal prison. His lawyer, Benjamin Brafman of Brafman & Associates, released a statement saying that he is “hopeful and confident that the Court will recognize Mel Weiss to be one of the true legal giants of his generation and a consummate humanitarian whose contributions to the Bar and the world community have been nothing short of spectacular.”

The prosecution’s case against Weiss must be ironclad and insurmountable. Ben Brafman is one of the toughest and most talented criminal trial lawyers in the country. I should know – I used to be his partner. If he is signing off on this plea deal, nobody could get Mel off the rap. If Ben can't do it , nobody can! CR

40 Wall Street, March 21, 2008

Mangia – fave lunch spot! CR

Who’s on first?

Chad Bray, who covers the beat at 500 Pearl Street for Dow Jones Newswires, reports in the Wall Street Journal that the U.S. Attorney's Office for the Southern District of New York has indicted former KMPG tax partner Robert Pfaff in connection with alleged fraudulent tax-shelter transactions in the U.S. and the Northern Mariana Islands.

Pfaff and two other individuals are scheduled to go on trial in September in what is left of the original, massive KPMG indictment. Judge Lewis Kaplan's dismissal of charges against 13 additional former KPMG executives from the original case is on appeal in the Second Circuit. The theory seems to be that the Second Circuit will reverse Judge Kaplan and reinstate charges against some or all of the original defendants, thus causing the original case to go back to the starting blocks – meaning that the new case involving Pfaff would be tried first.

While this is a possible lineup, other factors may influence who is on deck. Argument in the Circuit is scheduled for March 25. The Court may take its sweet time, and there may very well not be a decision by September. That would mean the current case would proceed first.

As for the new Pfaff indictment, we are not in the land of the “rocket docket.” Any defense lawyer worth his or her salt should manage to get a year's worth of adjournments. CR

Wall Street, March 20, 2008.

They also serve who only stand and allow themselves to be petted. ER

Trinity Church, Broadway and Wall Street, March 20, 2008.

First day of spring. The bits of paper in the flower bed are left over

from the New York Giants ticker-tape parade on February 5. ER

Take two aspirin and call a criminal defense lawyer in the morning.

Scott Harkonen, the former CEO of California biotech firm InterMune Inc., was indicted yesterday for alleged “off-label” marketing of the company's drug Actimmune. The drug was FDA-approved only to treat of a rare form of osteoporosis; prosecutors accuse Harkonen of writing a press release in 2002 claiming the drug could be used to treat idiopathic pulmonary fibrosis. While doctors may prescribe drugs for whatever use they wish, the DOJ has taken the position that it is illegal for companies to promote such off-label use.

The DOJ, FBI, and other governmental agencies have been pursuing investigations of pharma companies and their senior management, and even employees, for alleged off-label marketing of drugs, and there have been some notable settlements. But no company has challenged the government's position at trial, even though the theory of criminal liability in this situation seems to me strained and tortured, and wide open to challenge. CR

Bernie, meet Barry.

Bernard Kerik may not be known for his good judgment in many areas of his personal and professional life. However, he has shown stellar judgment in his choice of Barry Berke, a partner at Kramer Levin, to defend him against federal corruption charges. New York Post reporter Kati Cornell praises Berke for his “wealth of experience in sensitive, high-profile cases.” (Kerik’s previous lawyer, Kenneth Breen, was disqualified by Judge Stephen Robinson because he might be called as a witness.)

Barry and I were colleagues at the Federal Public Defender’s Office in the Southern District of New York back in the early 1990s, and I readily confess to being his good friend. Asked to comment on his new client, Barry was nothing if not sensitive, stating, “We look forward to successfully defending Bernie Kerik and restoring his good name.” CR