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Did Lawyer’s E-Mail Goof Land $1B Settlement on NYT’s Front Page?

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Updated: An outside lawyer for Eli Lilly & Co. apparently has two people named “Berenson” in her e-mail address book. One is a reporter for the New York Times and the other is her co-counsel assisting in confidential negotiations on a possible $1 billion settlement between the pharmaceutical company and the government.

The question is whether her e-mail to the wrong Berenson spurred last week’s front-page New York Times story revealing talks to resolve criminal and civil investigations into the company’s marketing of the anti-psychotic drug Zyprexa, as reports.

The unidentified lawyer who wrote the e-mail works at Pepper Hamilton in Philadelphia, the story says. She was trying to e-mail Bradford Berenson of Sidley Austin rather than Times reporter Alex Berenson.

The Drug and Device Law blog contacted Berenson, the reporter, who said he did receive an e-mail, but it did not contain a detailed description of the status of the settlement talks. Berenson told the blog he got his information from other sources.

Berenson said in a later interview with WNYC Radio that the e-mail, sent by a “high-powered” Pepper Hamilton lawyer, was not a “really big blunder.” The e-mail mentioned the name of the U.S. attorney overseeing settlement talks, but didn’t refer to Eli Lilly, its case or settlement numbers. It read in part: “They’re in the stratosphere on number and Meehan wants a deal.”

Eli Lilly had initially believed that federal officials leaked the information. “As the company’s lawyers began turning over rocks closer to home, however, they discovered what could be called A Nightmare on E-mail Street,” the Portfolio story says.

A Lilly spokeswoman told that the company will continue to retain Pepper Hamilton. A search for the words “Eli Lilly” on the firm’s Web site shows that two of the firm’s lawyers are scheduled to speak on the subject of “Resolving Ethical Concerns and Preserving Attorney-Client Privilege When Faced With Fraud and Abuse Charges” at an April conference.

Updated at 2:55 p.m. to include information from the Drug and Device Law blog that the New York Times reporter got his information from sources other than the e-mail. Language in the post was also changed to correct the impression that the e-mail was the source of the Times story. Updated on 2-11-2008 at 12:40 p.m. to include Berenson’s claim from a later interview that the e-mail mistake was not a big blunder.

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