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By now, you know the urban legend: A partner at Pepper Hamilton wanted to send her co-counsel at Sidley & Austin, Bradford Berenson, an e-mail containing confidential details about a proposed billion-dollar settlement of civil and criminal charges relating to Eli Lilly’s marketing of Zyprexa. She accidentally sent the e-mail to Alex Berenson, of The New York Times, instead. This supposedly prompted a front-page story in the Times disclosing the previously secret settlement talks.
Readers of this blog also know the truth: Although an e-mail from Pepper was in fact mis-directed to the wrong Berenson, that e-mail was just two sentences long and did no more than schedule a conference call. Berenson independently knew all of the details about the settlement talks from other sources.
We reported the original story, along with everyone else. But, when we broke the corrected story on Wednesday, just about everyone who had reported the false story fixed it. The folks who made corrections include, at a minimum, Above the Law (original post here), Pharmalot, Starkman (original; correction), and the ABA Journal.
Strikingly though, the original source of the urban legend — — has declined to publish a correction.
In its original story, said that the mis-directed e-mail contained “an internal ‘very comprehensive document’ about the negotiations.” It turns out the e-mail in fact “was, essentially, two lines long about a conference call.” To our eye, there’s a world of difference there.
That leads to the first question that we’re posing in this post:
Why is stubbornly sticking to a story that it knows to create a misleading impression?
We’ve also seen a bunch of commenters — here, at Above the Law, and elsewhere — suggesting that our corrected version of the events is wrong.
Some find it suspicious (see the comments here) that a lawyer at Pepper Hamilton would have the e-mail address of a reporter for the Times in her address book.
News flash: Lawyers who work on high-profile cases often receive press inquiries about their cases. Those lawyers therefore have reporters’ names and addresses in their computers.
And other lawyers are often asked by reporters to provide expert commentary on cases in which they’re not involved, so an article can reflect the industry’s point of view. Your dynamic blogging duo has contact information for reporters from the Times, the Wall Street Journal, USA Today, and a host of others in our address books — but it doesn’t mean that we’re surreptitiously leaking them information about our cases.
Other commenters insist that Berenson has played the two of us for fools: He’s now covering up for his source at Pepper.
Let’s review the bidding, guys:
1. Alex Berenson received documents about the Zyprexa litigation — from the plaintiffs’ side and in violation of a protective order — last year. Berenson wrote a story based on those documents to the embarrassment of Pepper and the detriment of its client, Eli Lilly. Judge Weinstein later labeled Berenson’s conduct in that regard “reprehensible.”
2. Now, this week, Berenson breaks the news of the secret settlement talks — again to the embarrassment of Pepper and detriment of its client, Lilly.
And you think that Berenson is lying to us to protect his good buddies at Pepper?
That’s a novel theory, but it leads us to the second question we’re posing at this post:
What the heck are you guys smoking?