U.S. government experts, industry spar over asbestos testing in talc
SILVER SPRING, Md. (Reuters) - For the first time in nearly 50 years, the U.S. Food and Drug Administration examined asbestos testing for talc powders and cosmetics at a hearing on Tuesday, after traces of the known carcinogen were found in several such products, including Johnson & Johnson’s Baby Powder.

Citing those FDA findings, some U.S. lawmakers and consumer advocates have called for stricter safety regulations to protect public health.

J&J, the market leader in talc powders, has defended the safety of its talc. The company said tests by labs it hired found no asbestos in samples from the same bottle the FDA examined - except for some the company attributed to contamination from a laboratory air conditioner.

In a statement on Tuesday, the company said it looks forward to the FDA’s “thorough review of the most effective and reliable ways to test for asbestos in cosmetic talc.”

The hearing on asbestos testing in talc, the FDA’s first since 1971, focused on testing standards recommended by a panel of government experts. The recommendations, published last month, embrace positions held by public health authorities and experts for plaintiffs who in lawsuits allege that contaminated talc products caused their cancers.

An industry trade group criticized the recommendations, saying they would not improve product safety.

For decades, the cosmetic talc industry has largely been allowed to police itself with little FDA oversight. Although talc and asbestos are similar minerals often found together in the ground, the FDA has never required manufacturers to test for the carcinogen.

One of the most significant recommendations from the expert panel is that mineral particles found in talc products small enough to be drawn into the lungs, even those the industry would not technically categorize as asbestos, should be counted as potentially harmful.

In its report, the panel said both asbestos and look-alike minerals are suspected of causing “similar pathological outcomes,” so the “distinction is irrelevant.”

At Tuesday’s hearing, a government toxicologist said a wide range of spear-shaped mineral particles - including but not limited to asbestos - can trigger the development of cancer and should be part of any new testing regime.

‘THIS IS UNACCEPTABLE’

Christopher Weis, a senior advisor with the National Institute of Environmental Health Sciences, said research has shown that conventional testing methods have failed to detect the full range of hazardous fibers, known as elongated mineral particles, or EMPs.

The process of milling talc for powders and cosmetics is known to break down any contaminants into small EMPs.

“All EMPs have the ability to trigger” development of cancer and other diseases, Weis said at the FDA hearing. “Short EMPs are not conventionally counted or included in lab reports. As a toxicologist, this is unacceptable.”

Mark Pollak, chief operating officer for the Personal Care Products Council, said the recommendation for counting more mineral particles as potentially harmful is not supported by science. The cosmetics trade group represents about 600 companies.

“Counting all (elongated mineral particles) would provide misleading reports, suggesting the presence of asbestos when none exists,” Pollak said at the hearing. “The key to effective testing is identification of asbestos, not harmless minerals.”

Scott Faber, senior vice president for government affairs at the Environmental Working Group, urged the FDA to endorse the more rigorous testing methods and said the agency should add a warning label to talc products so consumers are aware they may contain asbestos.

“It’s time to end the honor system which has failed consumers for so long,” Faber said at the hearing. “Let’s not wait another 50 years to finally protect consumers.”



The U.S. Occupational Health and Safety Administration and the Environmental Protection Agency have limited exposure to asbestos on the job and in the air to reduce cancers since the 1970s, when the hazard was well established. A Reuters report in December (here) showed that, during the same period, the FDA downplayed health concerns, including possible asbestos contamination, in talc powders and cosmetics and repeatedly deferred manufacturers.

Dr. Linda Katz, director of FDA’s office of cosmetics and colors, said the panel of government experts from FDA and other agencies will continue studying these issues and plans to publish a white paper at some point. The FDA has not announced a timetable for deciding whether it will pursue new rules on testing.

The increased scrutiny on this issue follows a 2018 Reuters report (here) which showed that although J&J knew for decades its raw talc and powders sometimes tested positive for asbestos, the company did not report those findings to the FDA.

Boeing will not cancel CEO incentive award tied to 737 MAX return

BLOOD MONEY FOR 345 HUMAN LIVES SACRIFICED BY BOEING'S 737 MAX

WASHINGTON (Reuters) - Boeing Co (BA.N) told U.S. lawmakers it will not cancel an incentive award for its new chief executive tied to the return of its grounded 737 MAX despite criticism from Congress, according to a letter made public on Tuesday.

David Calhoun, who took over as Boeing chief executive last month, is receiving a $1.4 million annual salary and is eligible for long-term compensation of about $26.5 million, including a $7 million bonus if he achieves several milestones. The milestones include the return to service of the 737 MAX which was grounded in March 2019 after two fatal crashes that killed 346 people.


Boeing defended the award and noted it is subject to a new clawback policy that applies to misconduct that compromises the safety of Boeing products. It also said Calhoun must serve for multiple years to receive the award.

“We believe tying our new CEO’s incentive-based compensation to key strategic objectives, including the safe return to service of the 737 MAX, is in the best interest of our company, our workforce, and the flying public,” Boeing government operations executive vice president Tim Keating wrote in a Jan. 23 letter to the lawmakers.

Democratic U.S. Senators Edward Markey, Richard Blumenthal and Tammy Baldwin said in a statement on Tuesday that Boeing’s response was “completely inadequate.” They added that if the planemaker “really wants to prove it has learned its lesson about prioritizing safety over profit, then it will cancel the proposed bonus immediately and make sure there is no financial incentive for its new CEO to rush the 737 MAX back into the sky.”

Boeing rejected the suggestion that it is rushing the MAX back into service, reiterating in its letter that its best estimate is that the MAX will not be ungrounded until mid-2020 and that regulators will determine the timing.

CRIMINAL CAPITALISM
Exclusive: iPhone app makers questioned in U.S. antitrust probe of Apple - sources
ANTITRUST IS ANTI PRICE FIXING

WASHINGTON (Reuters) - The U.S. Justice Department has reached out to app developers as part of its investigation into Apple Inc (AAPL.O), one of the four big tech companies being probed for alleged anti-competitive behavior, according one of the developers and another person familiar with the investigation.

The chief executive of developer Mobicip, Suren Ramasubbu, told Reuters he was interviewed in November by a U.S. investigator who asked about the company’s interactions with Apple. The app, which has nearly a million users worldwide, allows parents to control what their children see on their iPhones.

Ramasubbu said the Mobicip app was temporarily removed from the iPhone app store last year for a failure to meet requirements imposed by Apple.

A source familiar with the Justice Department’s investigation said a handful of app developers had been contacted in what is the first indication of what officials are pursuing involving Apple since the investigation was revealed by Reuters in June.


U.S. President Donald Trump has criticized Apple’s Silicon Valley neighbors for other reasons, calling for closer scrutiny of social media companies and Google and accusing them of suppressing conservative voices online, without presenting any evidence.

U.S. Attorney General William Barr said in December that he hoped to have the Justice Department investigations into the big tech platforms - Facebook Inc (FB.O), Alphabet Inc’s (GOOGL.O) Google, Amazon.com Inc (AMZN.O) and Apple - wrapped up this year.

Apple declined comment, but pointed to a statement on its website that says its app store was designed to hold apps “to a high standard for privacy, security and content.”

“Since 2016, we have removed over 1.4 million apps from the App Store because they have not been updated or don’t work on our most current operating systems,” the site says.


Apple’s ability to do just that has been a point of contention in the courtroom. The company was accused in lawsuits last year of abusing its clout in the app market. In one case, the U.S. Supreme Court gave the go-ahead last May to an antitrust lawsuit that accused Apple of forcing consumers to overpay for iPhone software applications.
SCREEN TIME CONTROL

Apple introduced its Screen Time app, which includes parental controls, in June 2018. At the start of 2019, Ramasubbu told Reuters, his company was contacted by Apple and warned that Mobicip’s app violated the iPhone-maker’s rules relating to technical elements that had previously been acceptable.

The app was removed from the app store for about six months, during which time it was updated to be compliant with Apple rules, Ramasubbu said. It was reinstated in October 2019, but he estimates his company’s business has shrunk by half.

Six executives of parental control app companies interviewed by Reuters said they had a comfortable relationship with Apple until mid-2018. That is when Apple introduced its own, similar software giving parents oversight of their children’s phone screen time and searches.


Apple has said that it had been concerned about parental control apps using technology which gave developers access to sensitive data, and that they declined to approve apps that used the technology if they did not also commit to not sharing data on children.

As the arbiter of who is allowed to sell in the app store, Apple says it has the power to ensure that only the highest quality apps are sold there.

But some developers say it also allows Apple to push out apps that compete with its own products, thus strengthening its profits at a time with its device sales have stagnated and it is seeking new sources of revenue.

British boardrooms doing too little to end 'all-white domains', study find

CAPITALISM IS WHITE MALE PRIVILEGELONDON (Reuters) - Britain’s top companies are making too little progress in hiring people of color to top jobs and end “all-white domains” in many boardrooms, a government-backed report said on Wednesday.



FILE PHOTO - Workers are seen in an office tower in the Canary Wharf financial district at dusk in London, Britain, November 17, 2017. Picture taken November 17, 2017. REUTERS/Toby Melville

The report, an updated version of a 2017 study that set deadlines for companies to improve boardroom ethnicity, gave a damning verdict of progress so far.

Britain’s top 100 companies were set an end-2021 to have at least one person of color as a director. The next tier of 250 companies was given until 2024.

The latest report, again led by John Parker, used data from the Financial Reporting Council (FRC) watchdog that polices corporate governance in Britain and noted how all the companies had fared in efforts to meet the targets.

Parker said that close to a majority of boards at the top 100 companies remain “all-white domains” and that hopes of reaching the target look “some way off course”.

“However, our report suggests that whilst we may not yet be up to speed, it could still be possible to complete our journey in time,” Parker said.

Only eight companies account for nearly a quarter of directors of color, with only 15 of those directors at chairman or chief executive level across the top 350 companies, the report said.

FRC Chief Executive Jon Thompson said it was unacceptable that talented people are being excluded from succession and leadership simply because companies are failing to put appropriate policies in place.

“We will monitor closely how companies report on their policies or explain their lack of progress in this area,” he said.

The FRC’s corporate governance code was strengthened in 2018 to promote boardroom diversity in gender and in social and ethnic backgrounds.


Companies that sign up to the code are required to set out in annual reports a ---30 of their policy on diversity, including any measurable targets that have been set.

The FRC said that more than half of Britain’s top 100 listed companies provided little elaboration in their policy beyond some acknowledgement of the value of board diversity.

Only 21 specified ethnicity in director succession planning, the FRC said.

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Draft U.N. resolution condemns Israeli annexation in Trump peace plan

WASHINGTON (Reuters) - A draft United Nations Security Council resolution on Tuesday condemned an Israeli plan to annex its settlements in the West Bank in a rebuke of President Donald Trump’s pro-Israel peace proposal.

The draft text, circulated to council members by Tunisia and Indonesia, would seemingly face a U.S. veto, but nonetheless offered some members’ dim view of the peace plan that Trump rolled out last week with great fanfare.

Diplomats said negotiations on the text would likely begin later this week. Palestinian President Mahmoud Abbas is expected to speak to the council next week about the plan, possibly coinciding with a vote on the draft resolution.

The resolution “stresses the illegality of the annexation of any part” of occupied Palestinian territories and “condemns recent statements calling for annexation by Israel” of these territories, according to the draft seen by Reuters.


Trump’s plan, the product of three years effort by senior adviser Jared Kushner, would recognize Israel’s authority over the settlements and would require the Palestinians to meet a highly difficult series of conditions to be allowed to have a state, with its capital in a West Bank village east of Jerusalem.

Kushner is due to brief Security Council ambassadors on the plan on Thursday.

While the Palestinians have rejected the plan, a number of Arab governments have said it represents a starting point for a renewal of long-stalled negotiations.


The resolution stresses the need for an acceleration of international and regional efforts to launch “credible negotiations on all final status issues in the Middle East peace process without exception.”

A U.S. veto at the council level would allow the Palestinians to take the draft text to the 193-member U.N. General Assembly, where a vote would publicly show how Trump’s peace plan has been received internationally.

CRIMINAL CAPITALISM BIG PHARMA

Former executive of Taro Pharmaceutical indicted in U.S. for price-fixing

PRICE FIXING IS ONE OF THE PRIMARY FORMS OF PRIMITIVE ACCUMULATION OF CAPITAL IN LATE CAPITALISM 

WASHINGTON (Reuters) - A former sales and marketing executive of Taro Pharmaceutical Industries Ltd, Ara Aprahamian, has been indicted for price-fixing and bid-rigging, among other charges.

The Justice Department said that Aprahamian was indicted on Tuesday for participating in two conspiracies to fix generic drug prices between 2013 and 2015.

Bob Gage, a lawyer for Aprahamian, said that he looked forward to his day in court. “We have absolute confidence that once all the facts are brought to light Mr. Aprahamian will be proven innocent,” Gage said.

Aprahamian was previously vice president of sales at Taro, according to the Connecticut’s Office of Attorney General. The Justice Department did not respond to questions about Aprahamian’s employment.

He is also charged with lying to an FBI agent when he denied that he had spoken to a competitor about pricing.

The issue of drug pricing has become a hot one amid reports that some drugs, including some on the markets for decades, have seen their prices increase sharply.  

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The Creation Myth of the Buttigieg Campaign

The deft spin from the Buttigieg apparatus and the huge media hype about him have obscured the significance of his deep-pocketed backers.

by

Norman Solomon 

Published Monday, February 03, 2020 

by

Common Dream

Democratic presidential candidate former South Bend, Indiana Mayor Pete Buttigieg arrives on stage at Northwest Junior High School during a Get Out The Caucus rally February 2, 2020 in Coralville, Iowa. Iowa holds the state's caucuses tomorrow, the first test for prospective presidential candidates in the 2020 election. (Photo: Win McNamee/Getty Images)

This weekend, Pete Buttigieg told supporters that he became a viable candidate for president “on the strength of our vision” and “the urgency of our convictions.” Such rhetoric fits snugly into a creation myth about his campaign that Buttigieg has been promoting since early 2019.

Summing up the gist of that myth, Buttigieg began this year by standing at a whiteboard and looking into a camera while he talked about the genesis of his run for the presidency. “We launched as an exploratory committee, not even a full year ago, with a few volunteers, zero dollars in the bank,” he said—and “without the personal wealth of a millionaire or a billionaire.”

And Buttigieg offered reassurance to those concerned about big money in politics, saying: “What we built in 2019 we were able to put together without any contributions from federal lobbyists, or from fossil-fuel executives, and not one dollar from corporate PACs.” But, as Aldous Huxley wrote in the introduction to his classic novel of dystopian technocracy, Brave New World, “the greatest triumphs of propaganda” are accomplished by maintaining “silence about truth.”

Buttigieg has remained silent about what made the ascent of his campaign possible—the early, major and continuing support from extremely rich people enmeshed with powerful and destructive corporate interests—enabling the Pete for America campaign to get off the ground and gain altitude. Buttigieg’s rise was propelled by the rocket fuel of funding from—and bonding with—wealthy corporate operators, who bundled big checks from other donors and provided an establishment seal of approval that resonated with mainstream media.

The deft spin from the Buttigieg apparatus and the huge media hype about him have obscured the significance of his deep-pocketed backers. Key information about those ties has rarely gotten into the mass-media echo chamber. Yet, occasional reports have offered a window into the big-money support for Buttigieg that he is eager to leave unmentioned.

Buttigieg may have started his presidential campaign a year ago “with a few volunteers” and “zero dollars in the bank” -- but it wasn’t long before plenty of millionaires and billionaires flocked to back him with their own money and piles of checks from wealthy associates.

“Pete Buttigieg Is the Only Top 2020 Democrat Taking Money from Lobbyists,” HuffPost reported in April. “Buttigieg’s campaign said the donations wouldn’t influence his policy positions and noted he isn’t taking donations from corporate PACs or fossil fuel interests.” Later, the Center for Public Integrity explained in mid-summer, Buttigieg “reversed his stance and refunded more than $30,000 from federal lobbyists. . . . But Buttigieg has nonetheless continued to rely on wealthy and well-connected ‘bundlers’ to help him fundraise -- and to great effect, raising more money of late than most other 2020 presidential candidates.”

As summer began, Buttigieg’s star was ascending on Wall Street. There, the New York Times reported, “donors are swooning over Mr. Buttigieg enough to open their wallets and bundling networks for him.”

By October, under the headline “Pete Buttigieg Takes Lead as Big Business Candidate in 2020 Field,” Fortune magazine was reporting that “when it comes to opening hearts (and wallets) of business leaders across America, Buttigieg is shining.”

It was the middle of October when Buttigieg defended his reliance on big donors with a memorable comment: “We’re not going to beat Trump with pocket change.” However, as Common Dreams pointed out, “Critics noted that (Bernie) Sanders and (Elizabeth) Warren are the top fundraisers of the Democratic primary, raising $46 million and $35 million mainly through small donations.”

In early November, the Washington Post reported that “Wall Street donors have a new favorite candidate in the 2020 Democratic presidential field: Pete Buttigieg. . . . Buttigieg leads his rivals in collecting contributions from the securities and investment industry, pulling in $935,000 through the first three quarters of this year, according to figures from the Center for Responsive Politics.”

By then, Buttigieg was neck-and-neck with frontrunner Joe Biden for largesse from billionaires. In December, Forbes documented that “40 billionaires and their spouses have donated to Pete Buttigieg’s presidential campaign, according to an analysis of federal election filings, making the South Bend, Indiana mayor a favorite among America’s richest people.”

The outlines of Buttigieg’s high-roller fundraising strategy came into sharper focus in mid-December when his campaign released the names of about 150 wealth-connected supporters who had each “raised at least $25,000 for our campaign.” At the same time, Newsweek reported, “disappointed Twitter followers are requesting their money back from Buttigieg under the #RefundPete hashtag. Some say they are disappointed by his taking large donations, some say they're disappointed by his consultation work, some say they felt ‘fooled’ by his behavior and donated earlier in his campaign.”

The effectiveness of the Buttigieg campaign’s creation myth will soon be gauged by vote totals. Running for president in an era of oligarchy, Pete Buttigieg has chosen to be an antithesis of Bernie Sanders (who I actively support), resembling countless politicians so eager to take big money from the wealthy that it’s unclear if they have any priority higher than trying to win the next election.

Norman Solomon is co-founder and national coordinator of RootsAction.org. His books include "War Made Easy: How Presidents and Pundits Keep Spinning Us to Death" and "Made Love, Got War: Close Encounters with America's Warfare State." He is the founder and executive director of the Institute for Public Accuracy.

Credit Suisse revisits ex-U.S. employee's spying claim

NEW YORK/FRANKFURT (Reuters) - Lawyers for Credit Suisse (CSGN.S) last week re-interviewed a former bank executive who said the Swiss lender had her followed in New York, according to a person familiar with the matter, weeks after the company dismissed her allegation as baseless.


Credit Suisse asked lawyers from Zurich-based firm Homburger to speak again to Colleen Graham, who worked in the United States for a joint venture half owned by the bank, about her allegation that she was put under surveillance in July 2017 while in dispute with the bank, the person said.

Two Homburger lawyers met Graham in midtown Manhattan on Jan. 30 and said they had follow-up questions about her surveillance allegations, the source said.

The source declined to be identified due to the sensitivity of the matter.

Reuters could not determine why Credit Suisse questioned Graham again after saying in December it had conducted “thorough and comprehensive internal investigations” into Graham’s allegations and found them to be “entirely baseless”.

Graham was formerly Credit Suisse’s compliance head for the Americas before being selected to co-head a joint venture called Signac. She left the bank in July 2017 after refusing to adopt its position on an accounting issue that she believed was “mistaken”, according to court documents filed with the U.S. Department of Labor.

According to a Nov. 2017 court filing, Graham said Credit Suisse started retaliating against her in March 2017 after the accounting dispute by threatening to fire her, withholding a bonus, and withdrawing a job opportunity.


Robert Kraus, a lawyer representing Graham, confirmed the Jan. 30 meeting but said Credit Suisse’s latest inquiry “did not appear designed to uncover the truth”.

Investigators did not want to hear from her about the motives for the spying and about a pattern of related misconduct, Kraus said.

Credit Suisse and Homburger declined to comment on whether the firm’s lawyers had been sent by the bank to interview Graham again.

Credit Suisse said that since 2017 Graham had brought several court actions against the bank and others in connection with her former employment and they had been dismissed.

Graham has one pending lawsuit against Credit Suisse for unlawful retaliation under the Sarbanes Oxley Act.

“We are aware that Ms Graham is preparing yet another action against Credit Suisse. As part of their investigation, Homburger has investigated Ms Graham’s report that she had been followed in or around New York on behalf of Credit Suisse. Homburger found no indication that her report is true,” it said.

Homburger said it did not comment on its investigations and noted that Credit Suisse had previously reported that, “we did not find any indications that corroborate Ms Graham’s report that she had been tailed on behalf of Credit Suisse.”

MANHATTAN

Homburger was hired in September by Credit Suisse to look into allegations the bank spied on former wealth management chief Iqbal Khan, previously one of its most senior executives.

Graham emailed Credit Suisse that month with details of her alleged surveillance and asked it to share the information with Homburger, according to the source.

She separately emailed Homburger that month and discussed the matter with a partner from the law firm on Sept 30.

On Oct. 1, Homburger released a report saying Pierre-Olivier Bouee, the bank’s then chief operating officer and a top lieutenant of Thiam, had ordered surveillance on Khan to see if he was trying to poach Credit Suisse colleagues to join him at UBS. Khan had left Credit Suisse for its crosstown rival over the summer.

In the report, Homburger said “to date, the investigation has not identified any evidence that Credit Suisse had ordered observations of other employees.”

Credit Suisse said Bouee had acted alone and Thiam was unaware of the surveillance. Bouee resigned after taking responsibility for the spying. He has not commented publicly on the scandal and Reuters could not reach him for comment.

Following the internal probe, Thiam called the spying an isolated event. But a second case emerged, when it was revealed in December that the bank had also spied on its former head of human resources, Peter Goerke.


Credit Suisse said Bouee was again to blame in what was a rogue operation.

In their Jan. 30 meeting, the two Homburger lawyers did not

discuss the state of their investigation, but asked Graham details about her alleged surveillance, such as the attire of the woman she said tailed her, and whether she alerted the police, the source said.

FEDERAL JUDGE REVERSES CONVICTION OF BORDER VOLUNTEERS, CHALLENGING GOVERNMENT’S “GRUESOME LOGIC”

Volunteers with humanitarian aid organization No More Deaths walk with jugs of water 

for undocumented immigrants on May 10, 2019, near Ajo, Ariz. Photo: John Moore/Getty Images

Ryan Devereaux February 4 2020, 7:05 a.m.

A FEDERAL JUDGE in Tucson, Arizona, reversed the conviction of four humanitarian aid volunteers on religious freedom grounds Monday, ruling that the government had embraced a “gruesome logic” that criminalizes “interfering with a border enforcement strategy of deterrence by death.”

The reversal, written by U.S. District Judge Rosemary Márquez, marked the latest rebuke of the Trump administration’s crackdown on humanitarian aid providers in southern Arizona, and the second time in matter of months that a religious freedom defense has prevailed in a federal case involving the provision of aid to migrants in the borderlands.

The defendants in the case — Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick — were fined and given probation in March of last year for entering the Cabeza Prieta Wildlife Refuge in the summer of 2017 without a permit, driving on a restricted access road and leaving food, water, and other humanitarian aid supplies for migrants passing through in the summer heat. They were the first among a group of volunteers with the faith-based humanitarian group, No More Deaths, to go to trial for their aid work in 2019.




Related

As Trial Starts for Border Humanitarian Volunteers, New Documents Reveal Federal Bureaucrats’ Obsession With Stopping Activists


The remains of roughly 3,000 migrants have been recovered in Pima County alone since 2000. Experts are confident that the true death toll is much higher. Situated at the heart of the Sonoran Desert, the Cabeza Prieta refuge is one of the deadliest spaces in the region. As Márquez made clear in her decision, the No More Deaths volunteers admitted to the factual claims in the case: that they left aid supplies in “an area of desert wilderness where people frequently die of dehydration and exposure.” But in appealing their convictions, Márquez went on to write, the defendants had successfully argued that their actions — imbued “with the avowed goal of mitigating death and suffering” — were protected under the Religious Freedom Restoration Act, or RFRA.

The defendants established that they were exercising their “sincere religious beliefs,” Márquez wrote, while the government failed to demonstrate that its application of the refuge rules was carried out in the “least restrictive” manner available.

Katherine Franke, a law professor at Columbia, where she is faculty director of the Law, Rights, and Religion Project, called the reversal “fantastic.” Last year, Franke and her colleagues published a report illustrating how the federal government has routinely sided with right-wing or conservative causes in religious freedom cases. The law professor has followed the No More Deaths cases closely, filing motions in support of RFRA defenses. “The lower court’s opinion was so horrible just as a matter of legal reasoning, that it was really nice to see the judge apply a thorough and careful analysis of the religious liberty claim,” Franke told The Intercept. While she anticipates a government appeal, Franke said Monday’s reversal provides a solid foundation for applying RFRA in similar legal contexts.

“The government isn’t going to roll over just because they lose a case or two,” she explained. “But what we’ve got now is a developing record of careful analysis from federal courts on how RFRA ought to apply in contexts like this.”

Márquez’s decision comes just four months after U.S. District Judge Raner Collins reached a similar decision in the case of Scott Warren, another No More Deaths volunteer hit with federal misdemeanor charges for leaving humanitarian supplies on Cabeza Prieta, who also successfully deployed a RFRA defense against the government’s charges. In addition to the federal misdemeanor case, the U.S. attorney’s office in Arizona brought felony charges against Warren for providing food, water, and a place to sleep to two young migrants in 2018. He faced up to 20 years in prison. The first felony trial ended in hung jury. The second led to an acquittal in November. All told, Trump administration prosecutors, working alongside U.S. Border Patrol as well as Fish and Wildlife officials, have brought charges against nine No More Deaths volunteers in the past two and a half years.

Monday’s reversal offers the latest evidence that the lengthy prosecutorial campaign has not only failed, it has now resulted in two novel cases in which RFRA has been used to successfully defend the provision of humanitarian aid on the border. Not only that, Márquez included in her decision a critique of the government’s reasoning — one that Franke described as a “stinging defeat.”

Federal prosecutors had argued that the government had a compelling interest in “enforcing the border and controlling immigration,” Márquez wrote, and while the defendants were not charged with immigration offenses, the government “nonetheless” argued that their actions “furthered and encouraged illegal smuggling activity” on the wildlife refuge. “The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization,” the judge wrote. “In other words, the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death.”

“This gruesome logic is profoundly disturbing,” Márquez wrote. “It is also speculative and unsupported by evidence.” In 2017, 32 sets of human remains were recovered on the Cabeza Prieta Wildlife Refuge, the judge noted. “The government produced no evidence that these fatalities had any effect in deterring unlawful entry,” she wrote. “Nor has the government produced evidence that increasing the death toll would have such an effect.”

Greg Kuykendall, the lead attorney in Scott Warren’s misdemeanor and felony cases, said the reversal was correct on both legal and moral grounds. “It’s an incredibly thoughtful and well-reasoned opinion,” Kuykendall told The Intercept. In addition to offering a clear historical account of when and how RFRA should be applied, Kuykendall argued that Márquez’s diagnosis of “strategy of deterrence by death” reflected a clear-eyed understanding of what’s at stake in criminalizing humanitarian aid. “That’s exactly what it is,” Kuykendall said. “That’s what the government refuses to actually openly state, but they need dead bodies in order for their deterrence strategies to work.”

“It’s been laid out for judges in the past,” Kuykendall went on to say, “but she has connected the dots and very clearly explains that for the government’s enforcement strategy to work, the more dead bodies the better, and in fact, if you don’t have dead bodies, then it’s not working.”

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NEW DETAILS SHOW HOW DEEPLY IOWA CAUCUS APP DEVELOPER WAS EMBEDDED IN DEMOCRATIC ESTABLISHMENT

Precinct captain Carl Voss of Des Moines displays the Iowa Democratic

 Party caucus reporting app on his phone outside of the Iowa Democratic

 Party headquarters in Des Moines, Iowa, on Feb. 4, 2020. 

Photo: Nati Harnik/AP

Lee Fang
February 4 2020

DEMOCRATIC OPERATIVE Tara McGowan is denying that her high-profile liberal firm ACRONYM played a role in the Monday evening caucus debacle, claiming that her firm was merely an investor in the company Shadow Inc., which developed the app at the center of the controversy. But internal company documents, a source close to the firms, and public records show a close and intertwined relationship between Acronym and Shadow.

In addition, ahead of the caucuses, questions swirled inside Shadow over the company’s ability to deliver a quality product, and there was concern from at least one staff member that senior leaders of Shadow and Acronym — both of which were launched as a new Democratic bulwark against President Donald Trump — have been far from neutral in the Democratic primary.

Throughout the caucus yesterday, Democratic officials reported widespread problems downloading the app and inconsistencies uploading caucus results, leading to the Iowa Democratic Party’s decision to take the unusual step of delaying the release of the results. This is the first year the app was used, and ahead of the caucuses, the Iowa Democratic Party asked that the app’s name be kept secret. The New York Times reported that “its creators had repeatedly questioned the need to keep it secret.”

Kyle Tharp, a spokesperson for Acronym, released a statement on Monday night downplaying his company’s affiliation with Shadow.

“ACRONYM is an investor in several for-profit companies across the progressive media and technology sectors,” Tharp said. “One of those independent, for-profit companies is Shadow, Inc, which also has other private investors.”

David Plouffe, a former campaign manager to Barack Obama’s 2008 presidential bid who joined Acronym’s board, also distanced himself from the company during an MSNBC panel last night. “I have no knowledge of Shadow,” said Plouffe. “It was news to me.”

But previous statements and internal Acronym documents suggest that the two companies, which share office space in Denver, Colorado, are deeply intertwined.

Last year, McGowan, a co-founder of Acronym, wrote on Twitter that she was “so excited to announce @anotheracronym has acquired Groundbase,” a firm that included “their incredible team led by [Gerard Niemira] + are launching Shadow, a new tech company to build smarter infrastructure for campaigns.” McGowan also noted that “With Shadow, we’re building a new model incentivized by adoption over growth.” The acquisition was announced in mid-January of last year.

In an interview on a related podcast last month, McGowan described Niemira as “the CEO of Shadow, which is the technology company that Acronym is the sole investor in now.”

What’s more, internal documents from Acronym show a close relationship with Shadow. An internal organizational chart shows digital strategy firm Lockwood Strategy, FWIW Media, and Shadow as part of a unified structure, with Acronym staff involved in the trio’s operations.

In an all-staff email sent last Friday, an official with Lockwood Strategy reminded team members about “COOL THINGS HAPPENING AROUND ACRONYM.” The list included bullets points such as, “The Iowa caucus is on Monday, and the Shadow team is hard at work,” and “Shadow is working on scaling up VAN integration with Shadow Messaging for some Iowa caucus clients.” (VAN refers to the widely used Democratic voter file technology firm.) Acronym staffers also attended the Shadow staff retreat.
A person with knowledge of the company’s culture, who asked to remain anonymous for fear of reprisal, shared communications showing that top officials at the company regularly expressed hostility to Sen. Bernie Sanders’s supporters. McGowan is married to Michael Halle, a senior strategist with the Buttigieg campaign. There is no evidence any preference of candidates had any effect on the coding issue that is stalling the Iowa results.

The Iowa Democratic Party and the Nevada Democratic Party retained Shadow to develop its caucus app. Shadow has also been retained for digital services by Buttigieg’s and Biden’s campaigns.


Acronym launched with a promise to compete with the Trump campaign’s strong emphasis on digital media, launching Democratic messages through paid advertisements on Facebook and other platforms. But the source said the company in many ways was woefully unprepared for the many challenges it had taken on, including the Iowa caucus app.

A precinct captain for Sanders, who requested anonymity because they were not authorized to talk to the press, confirmed that the rollout was rushed. “We didn’t know about the app until like a month ago. And we didn’t have access to the app until like three days ago,” the source said.

“This app has never been used in any real election or tested at a statewide scale and it’s only been contemplated for use for two months now,” David Jefferson, who also serves on the board of Verified Voting, a nonpartisan election integrity organization, told the New York Times.

Federal campaign finance records show that the Iowa Democratic Party and the Nevada Democratic Party retained Shadow to develop its caucus app. Shadow has also been retained for digital services by Buttigieg’s campaign, which paid the company $42,500 for software-related services last July, and by Joe Biden’s campaign, which paid Shadow $1,225 for text messaging services, last July as well.

Shadow was launched by former staffers to Hillary Clinton’s 2016 presidential campaign, including Niemira, Krista Davis, Ahna Rao, and James Hickey, according to professional biographies listed on LinkedIn. Shadow did not respond to a request for comment.

Acronym, which includes a hybrid model of a 501(c)4 entity that does not disclose donors and a Super PAC that does, has been a favorite for deep-pocketed Democratic donors. Donald Sussman, the founder of Paloma Partners, and Michael Moritz, a partner at Sequoia Capital, each donated $1 million to Acronym last year. Filmmaker Steven Spielberg gave $500,000. Investor Seth Klarman, once a major donor to Republican causes, gave $1.5 million to Acronym.

Acronym appears to have deleted portions of its website showcasing its involvement in Shadow. “ACRONYM is thrilled to announce the launch of Shadow, a new technology company that will exist under the ACRONYM umbrella and build accessible technological infrastructure and tools to enable campaigns to better harness, integrate and manage data across the platforms and technologies they all use,” wrote Niemira in a now-deleted blog post.

This morning, William McCurdy II, the chair of the Nevada Democratic Party, released a statement announcing that the party will not be using the Shadow app for its February caucus.

“NV Dems can confidently say that what happened in the Iowa caucus last night will not happen in Nevada on February 22nd. We will not be employing the same app or vendor used in the Iowa caucus,” said McCurdy. “We had already developed a series of backups and redundant reporting systems, and are currently evaluating the best path forward.”


SEE 

Top Hollywood celebrities and Silicon Valley investors are linked to the app that failed in Iowa

https://plawiuk.blogspot.com/2020/02/top-hollywood-celebrities-and-silicon.html 

The App That Disrupted the Iowa Caucuses

https://plawiuk.blogspot.com/2020/02/the-app-that-disrupted-iowa-caucuses.html

After Epic 'Nightmare' in Iowa, Democratic App Built by Secretive Firm Shadow Inc. Comes Under Scrutiny "This outfit is inexcusably secretive." 

https://plawiuk.blogspot.com/2020/02/published-on-tuesday-february-04-2020.html

Iowa Caucus Night Is an Utter Disaster

https://plawiuk.blogspot.com/2020/02/why-iowa-should-not-be-first-nor-caucus.html

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