I’ll try to keep it brief, as I am away in the middle of the Sonoran desert, on my regular “get out of negative wind chills and ten inches of snow” vacation — but I think the government has the better of the arguments here.
One cannot litigate all over again, on the question of guilt/intent, in the forfeiture hearing — which is what Mr. Brafman, on behalf of Marty wishes to do (forfeiture is mandatory, as to the felonies he’s been convicted on).
Here’s a bit of the full 12 pager, but it is significant that in the Second Circuit at least, even acquitted conduct and non-convicted crimes may also inform the forfeiture (sorry, see page 4, et seq., R. West!):
“… Shkreli argues that he has a number of other creditors, that his interest in Vyera Pharmaceuticals (formerly known as Turing Pharmaceuticals) should not be liquidated, and that he intends to file an appeal of his conviction and seek a stay of the forfeiture pending appeal. As set forth below, because none of these arguments has any bearing on Shkreli’s mandatory forfeiture obligations and the government consents to a stay with respect to the seizure of substitute assets, a Preliminary Order of Forfeiture (“POF”) should be entered….
The government does not oppose a stay with respect to that portion of a POF authorizing the seizure of substitute assets, including Shkreli’s interest in Vyera, until the completion of the appeal that Shkreli intends to file. Accordingly, the concerns raised about Shkreli’s interest in Vyera being liquidated may be premature. However, to preserve the government’s right to satisfy any forfeiture judgment, Shkreli should not be permitted to dissipate his interest in Vyera or any of the other substitute assets named in a POF while his appeal remains pending. In the event he intends to liquidate his interest in Vyera or any of the other substitute assets, the government requests that a POF require Shkreli to consult with the government in advance of any proposed sale to advise of its terms and demonstrate that the proposed sale is an arms-length transaction, place any proceeds up to the amount of any forfeiture money judgment in an escrow account so that they be made available for forfeiture, and provide an accounting of any proceeds (in any form including but not limited to monies, stock shares, etc.) derived from the proposed sale….”
So it will be years — in all probability — before the Vyera shares end up in anyone else’s hands (but it definitively will not be the US government running Vyera), and Marty will not be able to sell these shares, or otherwise unduly injure their value, without a court order. Perfect.
Okay — it is a dry sun-drenched 85 degrees here — I’m out! [Confidential to Billy — my puts are still hanging tough (in Riot)! Smile.]