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Law360 (January 25, 2021, 11:15 AM EST ) Insys Therapeutics Inc. founder John Kapoor and five of his former underlings can put off reporting to prison until April after a federal judge granted a seventh postponement Monday, citing the ongoing COVID-19 pandemic and suggesting this delay will be the last.
Over the opposition of federal prosecutors, U.S. District Judge Allison D. Burroughs granted the latest motions to continue filed by Kapoor, Michael Gurry, Joe Rowan, Rich Simon, Sunrise Lee and Michael Babich. The judge said in a brief docket entry that the same grounds on which she granted the prior motions — namely the health emergency and the risks to those behind bars — provide the basis for the latest delay.
But Judge Burroughs added, "further continuances are highly unlikely."
Judge Burroughs granted the sixth prison delay for Kapoor and the others in November, pushing their report dates to Feb. 2. In that instance, she said that the motions would have been denied under "any other circumstances" than the ongoing pandemic.
The latest order extends the prison reporting dates to April 6. Kapoor, Gurry, Rowan, Simon and Lee were all convicted in May of 2019 in the first successful prosecution of pharmaceutical executives linked to the opioid epidemic. Babich, the former Insys CEO, pled guilty on the eve of trial and testified against his former colleagues.
Prosecutors said the company used a sham speaker program to bribe doctors with honorariums and other perks so they would prescribe Subsys, Insys' powerful fentanyl spray. The executives also orchestrated a scheme to lie to insurance companies to get them to pay for the expensive drug, the government alleged.
Each defendant was sentenced to prison last January, with the terms ranging from 66 months for Kapoor to a year and a day for Lee. Kapoor and the other convicted executives are appealing the jury's verdicts to the First Circuit.
While they lost a bid to delay going to prison until the appeal had played out, the start of their prison terms have been pushed back with the pandemic still raging in the U.S. In recent motions, Kapoor cited the fact that he is in his 70s and wants to get vaccinated before going to prison. Lee stressed her desire to avoid "prison parenting" during the health crisis.
Prosecutors were amenable to some of the delay requests, but have pushed back on the last two. In an opposition filed Friday, the government highlighted the commitment made by the incoming Biden administration to vaccinate prison populations and argued that the U.S. Bureau of Prisons has been efficient in doling out shots so far.
The focus on inoculating prison populations means "concern about the risks faced by prisoners is not, or very soon, will no longer be, a reason to defer surrender," prosecutors wrote.
Prosecutors asked that, should Judge Burroughs grant another postponement, the executives be compelled to provide details about their efforts to get a vaccine, where they fall in the pecking order for distribution in their respective states, and the health conditions they claim to have that put them at greater risk if they come down with COVID-19.
Judge Burroughs made no mention of those requests in Monday's order.
An attorney for Gurry, Tracy Miner of Miner Siddall LLP, said the judge's decision "was the right thing to do given the state of the pandemic and the slow vaccine rollout."
A government representative declined to comment on the order Monday, and attorneys for the other five executives either declined comment or did not respond to comment requests.
The government is represented by Donald C. Lockhart, Mark T. Quinlivan, Fred M. Wyshak Jr., David G. Lazarus and K. Nathaniel Yeager of the U.S. Attorney's Office for the District of Massachusetts.
Kapoor is represented by Martin G. Weinberg of the Law Office of Martin G. Weinberg PC and Beth Wilkinson, Kosta S. Stojilkovic and Chanakya A. Sethi of Wilkinson Walsh LLP.
Lee is represented by Peter C. Horstmann of the Law Offices of Peter Charles Horstmann.
Gurry is represented by Tracy A. Miner and Megan A. Siddall of Miner Siddall LLP.
Simon is represented by William Fick and Daniel Marx of Fick & Marx LLP.
Rowan is represented by Michael Kendall and Alexandra I. Gliga of White & Case LLP.
Babich is represented by Daniel C. Sale, Joseph Sedwick Sollers III, Lucas M. Fields and Mark A. Jensen of King & Spalding LLP and by Alexandra G. Watson and William H. Kettlewell of Hogan Lovells.
The case is U.S. v. Babich et al., case number 1:16-cr-10343, in the U.S. District Court for the District of Massachusetts.
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
