Category: News Feeds

Ed.
note:
The
Rainmaker
is
a
new
Above
the
Law
series
highlighting
attorneys
who
have
built
distinguished
practices
by
excelling
not
only
in
the
courtroom
and
at
the
negotiating
table,
but
also
in
business
development,
mentorship,
and
leadership.
Each
installment
will
feature
candid
reflections
on
what
it
takes
to
succeed
as
a
rainmaker
in
today’s
legal
industry.
Today’s
featured
rainmaker
is

Roberta
Kaplan.

As
a
young
associate
in
what
my
son
likes
to
call
“the
last
Century,”
every
time
I
would
walk
into
a
courtroom
with
the
great
litigator
(and
one
of
my
mentors)
Marty
London,
the
presiding
judge
would
ask
Marty
a
bunch
of
questions
about
his
boat
and
how
the
fishing
had
been
lately.
(Marty
was
an
avid
deep-sea
fisherman.)
I
have
to
admit
that
it
seemed
kind
of
unfair
to
me
at
the
time
–
I
didn’t
think
that
any
judge
would
ever
know
me
well
enough
to
greet
me
with
those
kinds
of
questions.

Back
then,
a
“rainmaker”
brought
to
mind
images
of
smoke-filled
men’s
clubs,
leather
lounge
chairs
at
cigar
or
whiskey
bars,
front
row
seats
to
the
Super
Bowl,
and
every
single
golf
course
on
the
planet.
True
confessions:
Even
the
smell
of
Scotch
gives
me
a
migraine.
The
one
time
I
tried
to
smoke
a
cigar
(on
a
big
case
in
Tokyo)
was
very
unpleasant.
My
father
has
spent
years
obsessing
about
golf
so
I’ll
do
anything
to
avoid
it.
And
I
obviously
can’t
join
a
men’s
club.

While
much
has
changed
since
my
time
as
a
junior
associate,
much
has
stayed
the
same,
especially
today,
when
the
word
“diversity”
is
now
perceived
by
many
as
provocative.
The
reality
is
that
there
are
still
far
fewer
venues
for
women
attorneys
to
network
and
build
their
books
of
business
as
compared
to
men,
who
still
dominate
law
firm
partnerships
and
general
counsel
offices.
As
with
many
things
for
women,
becoming
a
successful
“rainmaker”
requires
thinking
creatively
about
finding
your
own
path.

In
2013,
I
had
the
honor
to
argue

United
States
v.
Windsor
before
the
United
States
Supreme
Court.
Not
only
was

Windsor
the
case
that
broke
open
my
career,
it
also
may
have
been
the
one
that
involved
the
most
creativity.
One
of
the
things
that
was
unusual
about

Windsor
in
connection
with
rainmaking
is
that
it
was
a

pro
bono
matter.
It’s
hardly
the
norm
to
build
your
book
of
business
by
doing
public
interest
cases

pro
bono.
But
it
was
definitely
more
rewarding
than
playing
endless
rounds
of
golf.

To
be
clear,
I
was
not
a
member
of
the
established
SCOTUS
bar.
I
didn’t
work
for
the
Solicitor
General’s
office.
And
I
never
clerked
for
the
Supreme
Court.
I
was
just
Robbie,
a
Jewish
girl
from
Cleveland
who
worked
her
tush
off
to
get
into
Harvard
College
and
Columbia
Law
School,
and
then
worked
even
harder
to
become
a
litigation
partner
at
Paul,
Weiss.
It
was
as
astonishing
to
me
as
it
was
to
everyone
else
at
the
time
that
I
was
the
person
who
would
be
standing
before
the
Supreme
Court
arguing

Windsor.
If
you
had
told
me
back
when
I
was
Marty’s
junior
associate
that
that
would
happen,
I
would
have
told
you
that
you
needed
to
get
more
sleep.

So
how
did
I
get
a
winning
case
to
the
Supreme
Court
in
the
first
place?
The
key
to
our
success
in

Windsor
was
to
take
the
abstract
question
of
marriage
equality
off
the
table.
Most
LGBTQ
civil
rights
cases
that
had
been
brought
up
to
that
point
had
gone
broad,
using
a
large
number
of
lesbian
and
gay
couples
of
different
ages,
races,
backgrounds,
with
and
without
children,
who
were
married
in
every
sense
of
the
word
but
the
legal
one.
That
was
certainly
understandable
–
the
point
was
to
show
the
broad
diversity
of
lesbians
and
gay
men
who
were
negatively
impacted
by
their
inability
to
marry.
In
fact,
that
was
the
strategy
that
I
myself
had
used
when
we
lost
the
state
court
case
for
marriage
equality
in
New
York
in
2006. 

In

Windsor,
we
decided
to
take
the
opposite
approach.
Rather
than
have
multiple
plaintiffs
presenting
a
wide
variety
of
different
statutes
and
factual
scenarios,
we
had
only
one.
In
other
words,
we
deliberately
narrowed
our
case
to
focus
on
one
couple
(Edie
and
Thea)
who
had
been
together
for
decades
when
Thea
died
and
Edie
was
forced
to
pay
a
huge
inheritance
tax
because
their
marriage
wasn’t
recognized
under
federal
law.
We
thought
that
while
the
Justices
weren’t
ready
to
rule
that
gay
and
lesbian
couples
had
the
constitutional
right
to
marry,
a
majority
might
agree
that
the
federal
government
could
not
discriminate
against
an
already
married
lesbian
couple
when
it
came
to
taxes.

It
worked.
We
won

Windsor
because
of
DOMA’s
discriminatory
impact
on
the
federal
inheritance
tax.
A
scintillating
area
of
tax
law?
No.
But
creative?
Very.
In
fact,
my
current
client,
the
writer
and
journalist
E.
Jean
Carroll,
has
compared
the

Windsor
case
to
the
Boston
Tea
Party:
a
local
fight
over
paying
taxes
that
ultimately
led
to
revolutionary
advances
for
the
whole
country.

I
would
never
describe
myself
as
“creative”
in
the
conventional
sense
of
the
word.
I
have
no
artistic
talent.
I
can’t
draw
anything
recognizable.
I
sing
so
far
out
of
key
that
my
son
can’t
stand
to
be
in
the
car
with
me
when
a
Chappell
Roan
song
comes
on.
(Believe
it
or
not,
I
recently
dressed
up
as
Chappell
Roan
for
a
Halloween
party
hosted
by
one
of
our
clients).
My
high
school
art
teacher
once
claimed
that
every
piece
of
pottery
I
made
somehow
turned
out
to
look
like
a
hookah.
When
I
argued
that
that
was
not
my
intent,
his
response
was
that
I
should
never
take
another
art
class
again,
but
that
I
probably
would
make
a
good
lawyer.
He
was
right
on
both
counts.
Not
only
did
I
never
take
another
art
class,
but
in
the
law,
I
found
an
outlet
for
my
own
unique
form
of
creativity.
It
may
look
easy,
but
it
actually
takes
a
lot
of
creativity
to
come
up
with
ways
to
describe
complex
facts
and
ideas
in
ways
that
a
judge
or
jury
will
find
most
persuasive.

After
many
years
in
Biglaw
and
with
the

Windsor
decision
behind
me,
I
decided
to
repeat
our
strategy
in

Windsor
–
rather
than
going
big,
it
was
time
to
go
small.
It
seemed
to
me
that
it
was
becoming
increasingly
difficult
to
have
a
cutting-edge
litigation
practice
at
a
big
firm
—
clients
were
growing
concerned
about
what
litigators
were
doing
not
just
for
them,
but
for
other
clients
as
well.

Just
months
after
leaving
Paul,
Weiss,
when
I
came
up
with
the
crazy,
albeit
creative
idea
of
using
the
KKK
Act
of
1871
to
sue
more
than
a
dozen
white
nationalists
who
planned
for
the
violence
that
occurred
at
the
Unite
the
Right
rally
in
Charlottesville,
I
knew
that
the
costs
in
terms
of
e-discovery
and
security
alone
were
going
to
be
astronomical.
At
large
firms,

pro
bono
cases
are
largely
funded
by
paying
cases.
If
a
small
firm’s
attorneys
are
only
working
on

pro
bono
cases,
that
can
make
it
hard
to
pay
salaries.
Unfortunately,
the
righteousness
of
the
cause
won’t
pay
the
rent.

So
we
decided
to
get
creative.
Inspired
by
what
Chad
Griffin
had
done
in
establishing
the
non-profit
advocacy
group
the
American
Foundation
for
Equal
Rights
to
support
David
Boies’
and
Ted
Olson’s
California’s
Prop
8
litigation
(argued
at
the
Supreme
Court
the
day
before

Windsor),
we
decided
to
establish
a
non-profit
group
to
raise
money
for
our
expenses.

Being
a
smaller
firm
means
that
you
don’t
have
the
luxury
of
just
throwing
bodies
at
a
problem;
you’re
forced
to
solve
it
in
the
most
efficient
and
creative
way
possible.
Not
enough
partners
to
handle
all
the
witnesses
in
a
four-week
jury
trial?
No
problem
–
hire
the
most
talented
associates
and
give
them
the
opportunity
to
put
witnesses
on
the
stand
themselves.
(In
Charlottesville,
I
had
two
different
junior
colleagues
put
on
and
cross
examine
some
of
the
most
important
witnesses
in
the
case.)

While
our
firm,
Kaplan
Martin,
is
small
by
design,
we
punch
far
above
our
weight
in
large
part
because
we
love
what
we
do.
We
practice
at
the
same
level
as
Biglaw
—
we
still
sweat
every
detail
because
that
is
the
only
way
to
win.
We
just
do
it
with
fewer
people
and
more
creativity.

And
although
we
are
committed
to
being
generalists,
we
do
have
one
specialty
—
we
like
to
take
on
bullies.
We’ve
twice
beaten
the
biggest
bully
in
the
world
in
jury
trials
for
E.
Jean
Carroll
and
in
the
dispute
over
congestion
pricing
for
the
MTA.
Sadly,
since
there
seem
to
be
a
lot
more
bullies
with
a
lot
more
power
in
the
world
today,
when
potential
clients
see
us
willing
to
go
up
against
the
likes
of
Donald
Trump
or
the
neo-Nazis
in
Charlottesville,
they
know
that
we
won’t
be
afraid
to
take
on
the
toughest
fights
for
them.

The
law
is
not
for
everyone
and
practicing
law
the
way
I
do
(obsessively)
isn’t
either.
I
can’t
think
of
anything
that
gives
me
a
greater
sense
of
satisfaction
than
writing
a
brief,
arguing
in
court,
or
trying
a
case
–
except
maybe
fly
fishing
when
the
trout
are
biting.
If
you
love
what
you
do,
you’ll
never
be
bored.
Surround
yourself
with
colleagues
who
you
respect
and
trust,
who
love
to
litigate,
and
with
whom
you
can
come
up
with
the
most
creative
ways
to
win.
At
least
in
my
opinion,
that’s
not
a
bad
way
to
pass
the
time,
beat
bullies,
and
become
a
“rainmaker.”

---

Described
by The
Washington
Post as
“a
brash
and
original
strategist,
with
neither
a
gift
for
patience
nor
silence,
a
crusader
for
underdogs
who
has
won
almost
every
legal
accolade
imaginable,”
Robbie
Kaplan
is
a
renowned
and
celebrated
litigator
and
co-founder
of
Kaplan
Martin
LLP.
Robbie
began
her
legal
career
at
Paul,
Weiss,
where
she
catapulted
herself
to
partner
in
just
seven
years.
Along
with
securing
federal
recognition
of
same-sex
marriage
through
the
historic
Supreme
Court
case United
States
v.
Windsor and
defeating
the
neo-Nazis
in
Charlottesville,
Robbie
also
has
defeated
President
Trump
twice
in
trials
on
behalf
of
her
client
E.
Jean
Carroll
and
represents
the
New
York
City
Metropolitan
Transportation
Authority
in
its
matters
related
to
congestion
pricing.
Robbie
is
a
long-time
lecturer
at
Columbia
University
Law
School
and
has
won,
among
many
other
awards,
the
Lifetime
Achievement
Award
from
the New
York
Law
Journal and
Most
Innovative
Lawyer
of
the
Year
from
the Financial
Times.

If
your
firm
is
not
collecting
earned
revenue,
growth
will
slow,
cash
flow
will
tighten,
and
profitability
will
suffer.

Fortunately,
revenue
and
profit
leakage
can
be
minimized
with
awareness,
the
right
tools
(such
as
8am
Smart
Spend),
and
disciplined
financial
oversight.

In
this
webinar,
Brittany
Hoffmann
of

8am
and
fractional
CFO

Kelley
Brubaker
explored
common
sources
of
profit
leakage
—
along
with
practical,
actionable
tactics
for
improvement.

You
can
register
to

view
the
full
webinar
on-demand
here,
and
read
on
for
some
highlights
from
the
discussion.

What
Your
Gut
Can
Tell
You

If
you
think
your
firm
is
thriving
while
your
bank
account
indicates
otherwise,
you
likely
have
a
problem
with
revenue
leakage.
Here,
Kelley
explains
why.

What
Profit
Leakage
Looks
Like

As
its
name
would
suggest,
profit
leakage
can
be
similar
to
a
dripping
faucet.
Here,
Kelley
explains
why
—
and
shares
the
most
common
culprit
she’s
seen
at
law
firms.

What
to
Do
First

There
are
some
low-hanging
fixes
to
shore
up
your
firm
against
profit
leakage.
Here,
Kelley
shares
one.

Hear
the
Full
Conversation

Looking
to
make
your
firm
more
profitable?

Register
for
the
full
webinar
on-demand
here.

The
discussion
explores:

•
Concrete
examples
of
how
profit
leakage
can
occur

•
Red
flags
that
indicate
profit
leakage
at
your
firm

•
Quick
wins
you
can
implement
right
away

•
Long-term
strategies
to
sustain
improvements

This
case
began
as
a
straightforward
personal
injury
car
accident
lawsuit.
Plaintiffs
were
allegedly
rear-ended
by
an
18-wheeler
operated
on
behalf
of
Midstream
Transportation
Company.
But
things
took
a
tragic
turn
when,
only
a
few
months
after
the
complaint
was
filed,
the
plaintiffs’
attorney,
Scott
Ogle,
passed
away
in
December
2023.
Just
two
months
later,
the
defendants
asked
for
a
continuance

because
of
Ogle’s
death
—
meaning
the
defense
was
well
aware
of
his
passing
—
which
the
trial
court
granted.

But
at
the
same
time,
the
defendants
filed
a
no-evidence
motion
for
summary
judgment,
listing
63
separate
points
where
they
claimed
the
plaintiffs
lacked
evidence.
And
instead
of
ensuring
the
plaintiffs
were
properly
notified
—
or
that
someone
was
actually
representing
them
—
the
motion
and
hearing
notice
were
served
on
Ogle’s
office,
even
though
the
defense

knew
he
had
died.

Indeed,
in
the
defense’s
summary
judgment
motion,
they
acknowledge
“I
have
attempted
to
conduct
a
conference
with
Plaintiffs’
counsel,
but
I
have
been
informed
that
he
is
deceased.
When
I
place
calls
to
his
office,
there
is
no
answer
and
the
voice
mail
is
full.
When
I
have
written
to
his
office
by
email,
I
get
no
response.
As
best
I
know,
Plaintiffs
are
not
represented
by
counsel
at
this
time.”
Yet
notice
of
the
hearing
on
the
summary
judgment
motion
was
only
sent
to
the
dead
attorney.

Two
days
before
the
summary
judgment
motion
hearing,
a
new
lawyer
entered
an
appearance
for
the
plaintiffs,
along
with
a
motion
for
continuance
of
the
summary
judgment
hearing.
Defendants
opposed
the
motion,
and
the
hearing
went
forward.
Unsurprisingly,
since
the
death
of
Ogle
and
hiring
of
a
new
attorney
left
no
opportunity
for
discovery,
summary
judgment
was
granted.

On
appeal,
the
court
basically
looked
at
the
record,
sighed
heavily,
and
said:

Absolutely
not.
In
a
crisp
bit
of
judicial
side-eye,
Judge
Katy
Boatman
wrote,
“The
Defendants
may
very
well
show
on
remand
that
they
are
entitled
to
a
no-evidence
motion
for
summary
judgment.
But
they
are
not
entitled
to
one
when
the
motion
and
hearing
notice
were
both
knowingly
served
on
a
dead
attorney,
leaving
the
plaintiffs
without
adequate
time
for
discovery.”

The
court
went
on
to
admonish
the
defendants
for
failing
to
take
even
minimal
steps:
like
reaching
out
to
the
plaintiffs
directly,
recognizing
them
as

pro
se
after
their
lawyer’s
death,
or
asking
the
court
to
intervene.
Instead,
they
barreled
ahead
like
everything
was
fine,
which
it
very
much
was
not.

It’s
a
reminder
the
tragedy
shouldn’t
be
weaponized,
not
even
in
a
adversarial
process
like
litigation.

Read
the
appellate
court’s
decision
below.

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

The

340B
Drug
Pricing
Program
has
become
one
of
the
most
controversial
programs
in
the
U.S.
healthcare
system.
The
program
was
established
in
1992
to
help
safety
net
providers
stretch
federal
resources
and
better
serve
vulnerable
populations
by
allowing
eligible
hospitals
and
clinics
to
purchase
outpatient
drugs
at
steeply
discounted
prices.
However,

disputes
over
the
program’s
money
flow,
oversight
and
misuse
have

fueled
decades
of
conflict
among
providers,
pharmaceutical
manufacturers
and
lawmakers.

Some
argue
that
340B
is
a
lifeline
for
struggling
hospitals
and
clinics,
and
others
portray
it
as
a
loophole
that
allows
health
systems
to
profit
from
discounts
intended
for
people
with
little
to
no
income. 

Over
time,
the
340B
program
has
grown
to
include
many
large
health
systems
—
many
of
them
well-capitalized
nonprofits.
For
example,
health
systems
including

Ascension,

CommonSpirit
Health,

Geisinger,

Penn
Medicine
and

Providence
participate
in
340B.

There
is
also
tension
around
the
program’s
opacity
—
hospitals
aren’t
required
to
show
how
they
use
340B
savings,
which
further
leads
critics
to
question
whether
those
discounts
truly
benefit
patients.
Under
340B,
hospitals
can
buy
discounted
drugs
and
then
bill
insurers
at
the
full
rate.
Pharmaceutical
companies
accuse
hospitals
of
keeping
the
difference
as
profit,
with
no
legal
requirement
to
pass
along
savings
to
patients.

Data
shows
that
large,
tax-exempt
providers
purchase
tens
of
billions
of
dollars’
worth
of
drugs
through
the
340B
program
—
but
there
is
no
data
showing
that
the
average
American
is
paying
less
at
the
pharmacy
counter. 

The
program
also
is
a
huge
driver
of
the
country’s
drug
spending.
While
the
drugs
are
sold
at
a
heavily
discounted
rate,
the
program
can
still
contribute
to
higher
overall
drug
spending
because
providers
are
often
reimbursed
at
or
near
full
price.
The
total
value
of
drugs
flowing
through
340B
now
surpasses
Medicare
Part
B
and
Medicaid,
and
almost

surpasses
Medicare
Part
D.

Now,
reform
has
finally
come
—
but
it
doesn’t
seem
like
the
new
model
will
address
this
issue
or
deliver
real
change.

In
January,
HHS’

Health
Resources
and
Services
Administration
(HRSA),
will
begin
a
pilot
program
allowing
drugmakers
to
participate
voluntarily
in
a
rebate-based
discount
system.
Instead
of
the
provider
receiving
a
discount
upfront
at
purchase,
the
340B
discount
would
be
applied
after
purchase
via
rebate
—
and
subject
to
data
submission
requirements.

The
pilot
aims
to
boost
transparency
and
prevent
duplicate
discounts,
but
it
also
introduces
financial
challenges
and
added
administrative
burdens
that
will
likely
disproportionately
affect
the
smaller,
safety
net
providers
that
the
340B
program
was
initially
designed
to
assist.

Rebate
model
means
cash
flow
woes
&
more
administrative
work

The
new
rebate
model
will
create
new
cash
flow
problems,
particularly
for
smaller
clinics,
said
Bill
Keeton.
He
is
chief
advocacy
officer
at

Vivent
Health,
a
nationwide
provider
of
HIV
care
for
low-income
patients,
as
well
as
a
key
figure
within

Ryan
White
Clinics
for
340B
Access,
a
group
that
advocates
for
340B
program
access.

Keeton
noted
that
money
flow
issues
will
be
especially
acute
for
organizations
like
his
that
have
to
buy
HIV
medications,
which
are
incredibly
expensive.
For
instance,
Biktary,
the
most
popular
medication
used
to
treat
HIV,
costs

about
$4,200
per
month. 

Under
340B,
clinics
pay
about
half
of
that,
but
the
rebate
model
could
force
clinics
to
front
the
full
cost
temporarily,
Keeton
said.

“For
a
number
of
smaller
clinics
that
are
operating
on
much
tighter
margins
—
and
facing
decreasing
opportunities
to
generate
any
sort
of
revenue,
whether
it
be
through
grants
or
reimbursement
—
that
ability
to
purchase
those
medications
is
going
to
be
horribly
challenging,”
he
remarked.

He
also
pointed
out
that
contract
pharmacies
may
not
be
able
to
offer
discounts
upfront
to
cash-pay
patients,
which
shifts
financial
risk
onto
patients
and
clinics.

The
added
administrative
burden
will
be
tough
to
deal
with
too,
Keeton
added.

HRSA’s
new
model
requires
providers
to
submit
detailed
patient-
and
prescription-level
data
for
every
eligible
340B
drug,
which
he
said
adds
another
layer
of
administrative
work
that
could
put
strain
on
care
teams
that
are
already
burnt
out.

Clinics
would
need
to
hire
and
train
staff
to
navigate
Beacon,
the
platform
HRSA
is
using
to
process
rebate
transactions,
which
diverts
funds
away
from
direct
care
or
addressing
patients’
social
determinants
of
health,
Keeton
explained.

The

American
Hospital
Association
(AHA)
has
also
expressed
concern
about
the
administrative
tasks
associated
with
the
new
rebate
program,
contending
that
the
burden
will
be
far
greater
than
what
has
been
estimated
by
HRSA.

In
a

September
30
letter
to
the
agency,
the
AHA
noted
that
HRSA
estimated
1.5 million
hours
of
added
labor
per
year
for
hospitals.
HRSA
based
this
on
the
assumption
that
each
hospital
would
only
need
about
2
hours
per
week
to
submit
the
required
data
—
but
AHA’s
member
hospitals
said
this
is
a
very
low
assumption. 

They
project
needing
up
to
two
full‑time
equivalent
staff
per
hospital,
which
equals
roughly
4,160
hours
per
hospital
per
year
—
which
the
AHA
noted
is
much
higher
than
HRSA
stated.

The
AHA
also
argued
that
hospitals’
compliance
costs
could
range
from
$150,000
to
more
than
$500,000
per
hospital.

“And
these
costs
don’t
include
the
millions
of
dollars
340B
hospitals
would
be
providing
to
drug
companies
as
interest-free
loans
through
the
rebate
model.
They
also
do
not
include
the
nonmonetary
burdens
that
patients
and
communities
will
suffer,
and
hospitals
will
then
need
to
treat,
because
340B
covered
entities
will
have
fewer
resources
for
health
care
services,”
the
organization
wrote
in
its
letter.

The
AHA
said
that
when
calculated
accurately,
“there
is
no
way”
the
benefits
of
HRSA’s
new
pilot
program
could
outweigh
the
burden
it
will
inflict
on
providers.

Pharmaceutical
support
for
the
rebate
model

The
pharmaceutical
industry
views
the
new
pilot
as
a
way
to
increase
transparency
and
accountability
in
the
340B
program.
Highly
influential
lobbying
group
Pharmaceutical
Research
and
Manufacturers
of
America

PhRMA
has
been
a
major
proponent
of
the
new
model.

“We
encourage
HRSA
to
move
swiftly
to
broaden
use
of
the
rebate
across
all
340B
covered
outpatient
drugs,
enabling
wider
use
of
rebates
within
the
program.
Expanding
this
pilot
would
help
strengthen
program
integrity
while
preserving
critical
support
for
true
safety
net
providers
and
the
patients
they
serve,”
PhRMA
said
in
a
statement
sent
to

MedCity
News.

So
far,
eight
drugmakers
have
agreed
to
participate
in
HRSA’s
340B
rebate
pilot
program:

AbbVie,

Amgen,

AstraZeneca,

Boehringer
Ingelheim,

Bristol
Myers
Squibb,

Merck,

Novo
Nordisk
and

Johnson & Johnson.

In
general,
they
seem
to
view
the
rebate
model
as
a
way
to
strengthen
340B
oversight
and
compliance.

In
an
emailed
statement,
AstraZeneca
said
that
the
pilot
will
help
pharmaceutical
companies
comply
with
the
Inflation
Reduction
Act’s
340B
de-duplication
requirements,
which
are
rules
designed
to
prevent
drugmakers
from
giving
duplicate
discounts
on
the
same
medication.

“We
believe
this
pilot
program
strikes
the
appropriate
balance
between
efficiency
and
oversight,
ultimately
ensuring
that
manufacturers
can
carry
out
the
statutory
de-duplication
requirement
in
a
reliable
and
transparent
manner,”
the
company
stated.

A
Bristol
Myers
Squibb
spokesperson
said
the
pilot
will
help
advance
“a
more
accountable
and
sustainable
340B
program”
through
integrity
safeguards
and
better
data
sharing. 

Is
this
the
right
fix
for
340B?

The
nation’s
leading
expert
on
340B
—

Sayeh
Nikpay,
a
professor
at
the
University
of
Minnesota
—
didn’t
label
the
rebate
model
as
strictly
good
or
bad.

On
one
hand,
she
sees
how
it
could
increase
program
integrity,
which
would
benefit
drugmakers
and
payers. 

“The
problem
is
that
basically
all
the
other
price
concessions
that
manufacturers
give
out
—
whether
those
are
Medicaid
drug
rebates
or
manufacturer
rebates
that
go
through
PBMs
—
those
are
all
post-transaction
rebates,”
Nikpay
said.

She
explained
that
this
can
create
“stacked
discount”
issues
—
where
drug
manufacturers
may
inadvertently
give
out
multiple
discounts
on
the
same
drug.

Nikpay
pointed
out
another
integrity
problem
with
the
340B
program:
as
it’s
grown,
large
hospitals
and
non-safety
net
providers
have
dominated
program
participation.
Originally,
Congress
intended
340B
discounts
to
support
only
the
providers
that
were
serving
primarily
low-income
populations,
but
now,
participation
often
extends
to
any
nonprofit
hospital,
regardless
of
the
patient
population
they
serve. 

Two-thirds
of
nonprofit
hospitals
take
part
in
the
program,
Nikpay
stated. 

How
the
new
rebate
system
will
affect
340B-covered
entities
depends
on
the
provider
type,
she
declared.
Essentially,
providers
that
are
smaller,
rural
or
care
for
a
primarily
uninsured
population
are
likely
to
struggle
with
cash
flow,
but
health
systems
with
more
financial
resources
will
probably
absorb
the
shift
with
minimal
disruption.

The
340B
program
is
vital
to
help
some
providers
ensure
they
can
deliver
care
to
patients
who
otherwise
wouldn’t
receive
it.
But
to
others,
it’s
a
bit
of
a
cash
cow. 

For
example,

data
shows
that
in
2023,
Minnesota
providers
participating
in
340B
garnered
at
least
$630
million
in
profits,
with
the
vast
majority
of
that
revenue
going
to
larger
health
systems.
And
this
is
just
for
dispensed
340B
drugs
—
not
even
counting
those
administered
in
an
office,
which
account
for

about
half
of
all
340B
medications.

Overall,
Nikpay
thinks
there
are
trade-offs
and
unintended
consequences
of
the
340B
program
as
it
exists
today.
She
illustrated
this
with
a
personal
example.

She
is
not
a
safety
net
patient,
but
her
hospital
participates
in
340B
and
gets
the
340B
discount
on
her
drugs.
However,
because
that
discount
was
applied,
her
employer’s
PBM
cannot
claim
a
rebate
on
that
same
drug
—
which
reduces
the
savings
that
could
have
gone
toward
lowering
her
insurance
premiums. 

“In
that
case,
I’m
kind
of
annoyed,
right?
My
employer
paid
a
PBM
to
bring
my
drug
costs
down,
and
now
I’m
not
benefiting
from
it
because
a
340B
discount
got
applied
first
—
on
me,
who
is
not
a
safety
net
patient
at
all,”
Nikpay
explained.

So
it’s
understandable
why
lawmakers
would
want
to
foster
better
program
integrity
and
ensure
340B
discounts
are
reaching
patients.
But
it’s
unclear
if
the
new
rebate
model
is
the
best
way
to
fix
the
program. 

Nikpay
thinks
the
340B
has
broader
issues
than
just
stacked
discounts. 

“Manufacturers
contribute
to
high
drug
costs.
They’re
behaving
like
a
monopolist.
But
also
—
there
is
almost
no
market
discipline
on
what
providers
charge
patients
and
their
insurers.
And
that’s
also
a
problem,”
she
remarked.

Photo:
REB
Images,
Getty
Images

*
Who
was

the
Paul
Weiss
heckler?
Find
out
here!
[Bloomberg
Law
News]

*
Neil
Gorsuch
is
really
trying
to
fix
Indian
law.
[The
New
Republic]

*
Former
judges
denounce
Deputy
Attorney
General
for
asking
lawyers
to
join
“war”
on
federal
judges.
[Law360]

*
ABA
considers
changes
to
accreditation
standards.
[Law.com]

*
Law
firm
eliminates
56
litigation
support
jobs,
and
the
staff
says
AI
is
the
reason.
[Roll
on
Friday]

*
Sierra
Leone
and
Jenner
&
Block
reach
settlement.
[Reuters]

*
There
are
going
to
be
a
bunch
of
headlines
over
the
coming
days
about
“X
person
emailed
Jeffrey
Epstein.”
This
is
the
beginning
of
the
numbing
effort…
remember
there’s
a
difference
between
asking
a
prominent
rich
guy
about
Wall
Street
and
talking
about
children
with
a
pedophile!
[Business
Insider]

Oh
No,
The
Consequences
Of
My
Own
Actions!:
Holland
&
Knight
were
quick
to
sever
the
recruiting
director’s
relationship
with
the
firm.
Justice
Breyer
Hopes
You
Still
Have
Hope:
Maybe
you’ll
find
some
after
reading
this!
Lindsey
Halligan
Goes
To
Courts:
Things
are
going
as
well
as
you’d
expect
(poorly).
German
Court
Hands
Win
To
Artists
Suing
OpenAI:
Will
this
spill
over
to
the
US?

A
new

Disco
study
suggests
that
despite
all
the
hoopla
over
AI,
we
have
a
ways
to
go
before
it
becomes
commonly
used
in
litigation
and,
more
particularly,
eDiscovery.
The
paradox
is
striking:
even
though
Gen
AI
benefits
are
well
recognized,
there
remains
stubborn
reluctance
to
embrace
it.

The
study
is
entitled

Legal
AI:
Driving
the
Future
of
the
Profession.
It
was
primarily
conducted
online
in
the
late
summer
by

Disco
and

Ari
Kaplan
Advisors.
The
underlying
survey
was
completed
by
112
individuals,
about
half
in-house
and
half
in
law
firms.
Interviews
were
also
conducted.
The
focus
was
primarily
on
the
use
of
AI
tools
in
eDiscovery.
Disco
is
a
leading
eDiscovery
provider.

The
Significance

eDiscovery
has
traditionally
served
as
the
proving
ground
for
legal
tech
adoption,
the
proverbial
canary
in
the
coal
mine.

The
fact
is
eDiscovery
is
driven
by
time
pressures
that
are
often
imposed
by
courts
or
clients.
These
pressures
force
lawyers
and
legal
professionals
to
think
about
how
to
get
work
done
quickly
irrespective
of
billable
hours.
When
the
court
orders
you
to
produce
relevant
documents
in
30
days
requiring
you
to
locate
and
review
millions
of
data
sources,
you
don’t
have
time
to
figure
out
how
to
squeeze
out
the
maximum
number
of
billable
hours.
You’re
more
concerned
about
not
being
embarrassed
or
worse.

It
was
these
pressures
that
led
to
things
like
technology
assisted
review
that
sped
up
the
eDiscovery
process
and
begrudgingly
became
the
norm.

Watershed
Moment?

Disco
describes
eDiscovery
as
being
at
a
watershed
moment
with
AI.
Indeed,
there
are
certainly
some
suggestions
in
the
Disco
data
that
a
corner
may
about
to
be
turned
when
it
comes
to
the
use
of
AI.
That
would
make
logical
sense
since
the
efficiencies
and
time
savings
that
AI
tools
could
bring
are
significant.

But
some
of
the
data
suggests
that
while
AI
may
indeed
revolutionize
litigation,
things
are
not
yet
changing
all
that
much.
In
fact,
Disco
itself
concludes
in
its
report
based
on
the
survey,
“Few
—
if
any
—
have
unlocked
its
promise
at
scale.”

Some
Data
Points

For
example,
42%
of
those
in
law
firms
reported
no
external
pressure
to
use
AI
solutions.
This
is
consistent
with
the
findings
of
an

ACC
study,
and
one
done
by

Thompson
Hines,
both
of
which
I
previously
discussed.
Moreover,
36%
of
in-house
attorneys
surveyed
say
they’re
not
facing
pressure
to
use
AI
tools
from
management.

Some
more
key
statistics:
only
35%
of
those
surveyed
report
having
incorporated
GenAI
in
routine
legal
processes
to
any
extent.
That’s
not
terribly
surprising,
since
56%
of
in-house
counsel
say
they
don’t
yet
see
GenAI
as
a
tool
for
controlling
litigation
costs.

The
Paradox

This
reluctance
persists
even
though
70%
recognized
a
top
benefit
of
AI
was
an
increase
in
efficiency.
(Thirty-four
percent
identified
costs
savings
which
amounts
to
the
same
thing).
Fifty-eight
percent
mentioned
better
analysis
and
insights
and
40%
reported
faster
evidence
gathering.
Similar
benefits
like
the
ability
to
quickly
surface
key
evidence,
spotting
patterns
and
themes
from
the
data,
and
the
ability
to
assess
case
merit
earlier
have
been
noted
by
leading
commentators
like

Doug
Austin.

It’s
a
paradox:
while
GenAI
can
make
things
better,
it’s
not
enthusiastically
embraced.
Why?

Why
Indeed?

The
reasons
given
for
not
using
AI
are
a
little
troubling.
Despite
evolving
tools
that
better
ensure
privacy
and
security,
70%
of
law
firm
and
68%
in-house
respondents
said
privacy
and
security
are
still
the
biggest
obstacles.
In
addition,
consistent
with
the
other
surveys
mentioned
above,
both
in-house
and
outside
lawyers
are
concerned
about
demonstrating
ROI.

But
the
main
reason
is
that
legal
professionals
are,
in
my
opinion,
turning
a
blind
eye
to
the
benefits
and
stubbornly
holding
on
to
previous
ways
of
doing
things.
Fifty-two
percent
of
those
in
law
firms,
for
example,
said
they
are
only
using
AI
to
differentiate
their
firm
as
an
“innovator.”
One
lawyer
put
it
this
way,
“Cost
is
not
yet
a
factor;
we
are
less
concerned
with
profit
margin
and
more
on
gaining
market
share.”
Another
said,
“Reduced
costs
are
not
a
reality
yet.” 
In
other
words,
law
firms
are
not
using
AI
substantively
or
recognizing
the
benefits.

Several
labeled
the
benefits
of
GenAI
as
“pie-in-the
sky.”
Some
cling
to
the
belief
that
the
failure
rate
with
AI
in
document
review
is
higher
than
with
humans.
Some
said
even
though
blown
away
by
results,
they
would
still
require
a
substantial
amount
of
human
oversight.
This
even
though
79%
of
those
surveyed
rated
GenAI
tools
with
a
three
or
higher
on
a
five-point
scale
when
it
came
to
accuracy
and
53%
said
it
was
a
four
or
five.

Other
Issues

There
are
a
host
of
other
issues
cited
in
the
report
as
rationalizations
for
avoiding
change
(my
comments
to
the
cited
issues
appear
in
parenthesis):

• Generational
  Differences:
  There
  is
  a
  belief
  that
  more
  experienced
  lawyers
  are
  more
  reluctant
  to
  use
  AI
  tools
  than
  younger
  lawyers.
  (The
  notion
  seems
  to
  be
  its
  use
  is
  limited
  to
  those
  who,
  due
  to
  their
  limited
  experience,
  can’t
  be
  trusted,
  and
  that
  more
  experienced
  lawyers
  won’t
  be
  able
  to
  master
  it.)

• Limited
  Time:
   It
  takes
  time
  —
  non-billable
  time
  —
  to
  learn
  how
  to
  use
  GenAI
  tools
  (aka
  let’s
  not
  invest
  the
  time
  to
  do
  things
  better).

• Loss
  of
  Control:
  We
  will
  lose
  control
  of
  our
  data
  if
  we
  put
  it
  on
  an
  AI
  platform.
  (We
  heard
  that
  before
  about
  the
  cloud.
  We
  know
  how
  that
  turned
  out.)

• Reduced
  Billable
  Hours:
  “speed
  will
  reduce
  revenue.“
  (Of
  course.)

• AI
  Talent
  Deficiency:
  There
  is
  not
  enough
  AI
  talent
  available
  to
  enable
  us
  to
  understand
  how
  to
  use
  and
  implement
  GenAI.
  (So
  many
  commentators,
  legal
  professionals,
  vendors,
  and
  consultants
  are
  talking
  nonstop
  about
  AI,
  it’s
  hard
  to
  conclude
  the
  information
  and
  talent
  isn’t
  there.)

• Misaligned
  Functionality
  Expectations:
  GenAI
  can
  do
  some
  things,
  but
  it
  just
  can’t
  solve
  most
  problems
  yet
  or
  fully
  answer
  questions.
  (Perfect
  should
  not
  be
  an
  enemy
  of
  the
  good,
  particularly
  when
  the
  good
  is
  recognized.)

• Accuracy
  Concerns:
  Accuracy
  is
  repeatedly
  stressed
  as
  a
  reason
  to
  encourage
  continued
  human
  oversight.
  (Accuracy
  is
  a
  concern
  but
  that
  doesn’t
  mean
  throwing
  the
  baby
  out
  with
  the
  bath
  water.)

A
Silver
Lining

But
there
may
be
a
silver
lining
when
it
comes
to
AI
and
eDiscovery:
if
history
is
any
guide,
things
may
eventually
change.

As
I
said
at
the
outset,
eDiscovery
is
the
canary
in
the
coal
mine
when
it
comes
to
technology
adoption
by
the
legal
profession.
All
too
often,
the
pressure
to
get
eDiscovery
work
done
quickly
trumps
the
desire
to
resist
change.
We
have
seen
efficiency
tools
like
technology
assisted
review
and
continuous
machine
learning
gradually
become
well
accepted
and
standard,
particularly
as
data
and
data
sources
exploded
exponentially.
It
did
take
years
to
overcome
the
notion
that
humans
had
to
do
everything,
but
we
did
get
there.

The
New
Reality

So,
it’s
tempting
to
conclude
that
despite
all
its
benefits,
many
of
which
are
already
recognized,
the
adoption
of
GenAI
will
take
the
same
slow
and
torturous
course.
But
there
is
another
reality
revealed
by
the
survey:
96%
say
eDiscovery
workloads
are
increasing
or
staying
the
same.
And
there
is
a
recognition
that
a
variety
of
new
data
sources
including
prompts
and
outputs
must
be
dealt
with.
Fifty-two
percent
of
those
surveyed
say
these
new
sources
will
make
the
litigation
cycle
longer,
inevitably
increasing
costs.

These
new
data
sources
and
continued
time
pressures
may
force
legal
professionals
to
adopt
GenAI
tools
out
of
necessity
just
to
keep
up
and
satisfy
the
demands
of
courts,
regulators,
and
clients
—
just
as
they
gradually
did
with
the
adoption
of
TAR,
only
quicker.

eDiscovery
Is
Cool

That’s
why
watching
what
happens
in
eDiscovery
is
important:
legal
will
be
forced,
even
though
kicking
and
dragging
their
feet,
to
adopt
GenAI.
Time
constraints
and
risk
aversion
may
force
the
adoption
many
are
currently
avoiding.

Or
as
one
respondent
put
it,
perhaps
a
bit
reluctantly,
“AI
has
made
eDiscovery
cool.”

---

Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law.