Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Health newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (March 23, 2020, 6:19 PM EDT) -- The former CEO of defunct pharmacy Philidor Rx Services LLC who was convicted in a $9.7 million kickback scheme tied to a potential acquisition deal has asked a New York federal judge to allow him to serve the remainder of his prison term in home confinement, citing the risk of exposure to the novel coronavirus.
Andrew Davenport is currently serving a sentence of a year and a day in prison, the same term imposed on his co-defendant, former Valeant Pharmaceuticals International Inc. executive Gary Tanner, after they were convicted in May 2018 of honest services wire fraud and conspiracy.
Davenport, who self-surrendered in January to a satellite prison camp FCI Schuylkill in Minersville, Pennsylvania, asked U.S. District Judge Loretta A. Preska on Friday to modify his sentence to let him serve out the remainder of his time in home confinement while on supervised release, because of underlying health problems that place him in a high-risk category of individuals who could face grave consequences if they are exposed to COVID-19.
In a motion, his attorneys said Davenport suffers from a number of medical conditions including heart disease and uncontrolled Type II diabetes, which when combined with the "the unprecedented public health crisis posed by the COVID-19 pandemic, provide extraordinary and compelling reasons" to allow him to be released to home confinement.
"There is a grave risk that, should the virus infiltrate the Schuylkill Camp, it may amount to a swift death sentence for Mr. Davenport in light of his severely compromised health," the motion says.
According to a letter from Davenport's doctor that was filed with the court, in light of Davenport's preexisting health conditions, if he were to become infected with COVID-19 he would become critically ill and could possibly die from the disease.
Davenport's current accommodations, in a small dormitory-style facility with about 30 other inmates with shared bathroom and shower facilities, make it impossible to effectively follow the guidance from the Centers for Disease Control and Prevention that individuals practice social distancing, avoid crowded areas, practice frequent hand washing and limit close contact with others, the motion says.
A spokesman for the Manhattan U.S. attorney's office declined to comment, but his attorneys said in the motion that it is their understanding that the government opposes Davenport's request.
An attorney for Davenport declined to comment on the matter while it is under judicial consideration.
Davenport and Tanner, a Valeant employee who managed the drugmaker's relationship with Philidor, were accused of conspiring to induce Valeant to enter a $100 million-plus deal to possibly acquire Philidor in exchange for a kickback from Davenport to Tanner. The defendants said there was nothing illegal about the payment, however, and said Philidor helped Valeant increase sales of its pricey brand-name drugs.
Prosecutors claimed Tanner, who later went to work for Philidor, frustrated his company's efforts to do business with other pharmacies and helped Philidor negotiate against Valeant in exchange for a cut.
Last year, the Second Circuit affirmed the convictions of Davenport and Tanner, but found Judge Preska had erred in ordering both men to forfeit about $9.7 million each, and instead said they should be required jointly and severally to forfeit no more than about $9.7 million.
The appeals court also ordered a redo of Judge Preska's ruling that, in addition to forfeiture, both men jointly owe Valeant, now known as Bausch Health, $8 million in restitution that made up the difference between Valeant's initial offer to option Philidor and the ultimate purchase price.
The government is represented by Sarah K. Eddy, Richard Cooper, Amanda Kramer and Won S. Shin of the U.S. Attorney's Office for the Southern District of New York.
Davenport is represented by Sharon L. McCarthy and Brian P. Ketcham of Kostelanetz & Fink LLP.
The case is U.S. v. Tanner et al., case number 1:17-cr-00061, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Jody Godoy. Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
