Latest 2 Cases: In re: Avandia Marketing, Sales and Products Liability Litigation (Commercial Law), Quinteros v. Attorney General United States ...

The Problem of Evil and Free Will

SHERRY F. COLB

Cornell law professor Sherry F. Colb reflects on why, if God is all-knowing, all-powerful, and benevolent, there is still evil in the world. Colb argues that one common answer—free will—does not truly resolve that question.

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In re: Avandia Marketing, Sales and Products Liability Litigation

Docket: 18-1010

Opinion Date: December 17, 2019

Judge: Restrepo

Areas of Law: Commercial Law, Consumer Law, Drugs & Biotech, Health Law, White Collar Crime

Health benefit plans sued GSK, the manufacturer of the prescription drug Avandia, under state consumer-protection laws and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ch. 96 (RICO), based on GSK’s marketing of Avandia as having benefits to justify its price, which was higher than the price of other drugs used to treat type-2 diabetes. The district court granted GSK summary judgment, finding that the state-law consumer-protection claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. ch. 9; the Plans had failed to identify a sufficient “enterprise” for purposes of RICO; and the Plans’ arguments related to GSK’s alleged attempts to market Avandia as providing cardiovascular “benefits” were “belated.” The Third Circuit reversed, applying the Supreme Court’s 2019 "Merck" decision. The state-law consumer-protection claims are not preempted by the FDCA. The Plans should have been given the opportunity to seek discovery before summary judgment on the RICO claims. Further, from the inception of this litigation, the Plans’ claims have centered on GSK’s marketing of Avandia as providing cardiovascular benefits as compared to other forms of treatment, so the district court’s refusal to consider the Plans’ “benefits” arguments was in error because those arguments were timely raised.

Quinteros v. Attorney General United States

Docket: 18-3750

Opinion Date: December 17, 2019

Judge: Roth

Areas of Law: Criminal Law, Immigration Law

Eight-year-old Quinteros and his mother came to the U.S. from El Salvador in 2001. When he was 13, Quinteros joined the gang MS-13. In 2011, Quinteros was indicted for conspiracy to commit assault with a dangerous weapon, 18 U.S.C. 1959(a)(6). The planned gang attack never occurred. Quinteros later pled guilty and was sentenced to 30 months’ imprisonment. In prison, Quinteros left MS-13 to follow Christianity. Other MS-13 members in prison told him that when he was deported “things are going to change. There’s no getting out over there.” Quinteros was charged as removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(F), (U), and (J). Quinteros checked the form box to contest his deportability but failed to follow up with additional documentation. Quinteros then sought withholding of removal. An asylum officer determined that Quinteros demonstrated a reasonable fear that he would be tortured in El Salvador. Before an IJ, Quinteros testified and presented studies and reports, that discussed the perception and treatment of individuals with tattoos in El Salvador. The Third Circuit vacated the BIA’s rejection of Quinteros’s claims. Quinteros’s conviction under 18 U.S.C. 1959(a)(6) is not an aggravated felony under 8 U.S.C. 1101(a)(43)(F), (U), or (J); conviction under section 1959(a)(6) does not require an overt act and is not a categorical match for conspiracy under the Immigration Act.