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P.O.

Box 10841
Eugene, Oregon 97440
p/f: 541.257.8878
info@t1df.org
www.t1df.org

March 26, 2018

Office of Open Records


333 Market Street, 16th Floor
Harrisburg, PA 17101-2234

Sent via email: RA-OpenRecords@pa.gov

RE: Appeal of Lehigh County’s Response to Right to Know Request of February 15, 2018,
and Request for in Camera Review of Document #4.

To Whom It May Concern:

I am the president of the Type 1 Diabetes Defense Foundation (T1DF). I am filing this appeal
on my behalf and on behalf of T1DF. I will refer to T1DF and myself as “we” or “us” or “our” or
“Boss/T1DF.”

This letter addresses our February 15, 2018, RTKL requests (Attachment A) and the response
issued by Lehigh County (“County”) on or about March 23, 2018 (Attachment B). We also
incorporate by reference the documents, and their attachments, previously emailed to OOR
regarding this matter (Final Determination and Petition for Reconsideration, OOR Dkt. AP
2018-0378, Charles Fournier v. Lehigh County).

We respectfully request that the Office of Open Records consider our appeal of Lehigh
County’s Response (March 23, 2018) to our Right to Know Request of February 15, 2018. The basis
of our appeal is outlined below.
TABLE OF AUTHORITIES

Cases & Rules Pages


Borough of Paxtang v. Hoyer, 2017 Pa. Commw. Unpub. LEXIS 145 16, 17

Brown v. Advantage Eng'g, Inc., 960 F.2d 1013 (11th Cir. 1992) 21

California University of Pa. v. Schackner, 2017 Pa. Commw. LEXIS 617 21, 28

Carey v. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Cmwlth. 2013) 26

Department of Labor and Industry v. Earley, 126 A.3d 355, 357 (Pa. Cmwlth. 2015) 17

Dep’t of Corr. v. Fiorillo, 2017 Pa. Commw. Unpub. LEXIS 305 17, 18

Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121, 4 (Pa. Commw. Ct. 26, 27
2015)

Heavens v. Pa. Dep’t of Envtl. Prot., 65 A.3d 1069, 1074 (Pa. Cmwlth. 2013) 17

Heintzelman v. Pennsylvania Dept. of Community and Economic Development, 28


512 C.D. 2014 (Pa. Cmwlth. Oct. 30, 2014)

Hodges v. Dept. of Health, 29 A.3d 1190, 5 (Pa. Commw. Ct. 2011) 17

In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th 22
Cir. 2002)

In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) 22

In re Novo Nordisk Securities Litigation, Case No. Case 3:17-cv-00209 (BRM) 1, 7, 14, 22,
(LHG). On March 23, 2018 25

McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014) 17

Moore v. Office of Open Records, 992 A.2d 907, 908-909 (Pa. Cmwlth. 2010) 17

Nixon v. Warner Comms., Inc., 435 U.S. 589 (1978) 21

Office of Governor v. Scolforo, 65 A.3d at 1100 (Pa. Cmwlth. 2013) 17

Office of Open Records v. Center Twp., 95 A.3d 354 (Pa. Cmwlth. 2014) 27, 28

Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1123 (Pa. Cmwlth. 2015) 18, 28

Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) 17

ii
Cases & Rules Pages
Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981) 22

Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007) 21

United States v. Mass. Inst. of Tech., 129 F.3d 681 (1st Cir. 1997) 22

Westinghouse Electric Corp. v. Republic of the Philippines, 951 F. 2d 1414 (3d Cir. 22
1991)

Pennsylvania’s New Right to Know Law, Act 3 of 2008 18, 19, 20, 21

65 P.S. § 67.305(a) 18

65 P.S. § 67.706 26

65 P.S. § 67.708 18

65 P.S. § 67.708(a) 18

65 P.S. § 67.708(a)(1) 18

65 P.S. § 67.708(b)(17)(ii) 18, 19

65 P.S. § 67.708(b)(17)(iv) 19, 20

65 P.S. § 67.708(b)(17)(iv) (A) 18

65 P.S. § 67.708(b)(17)(vi) 19

65 P.S. § 67.708(b)(17)(vi)(A) 18, 22, 24

65 P.S. § 67.708(b)(17)(vi)(D) 18, 22, 24

65 P.S. § 67.902(a)(1) 26

County Code, 16 P.S. § 210(3)(i) 11

County Pension Law (Act 96) 2, 3, 10, 11,


13

Act 96 (1971), Section 4(b) 3, 12

Act 96 (1971), Section 3 11

iii
Cases & Rules Pages
16 P.S. §§ 11652-11682 2, 11

16 P.S. § 11653 2, 11, 13

16 P.S. § 11654 (b) 2, 12

16 P.S. § 11659 3, 12

Pennsylvania Act 62 of 1972, as reenacted by Act 177 of 1996, known as the 10, 13
Home Rule Charter and Optional Plans Law (53 Pa. C.S. §§ 2901–2984)

§ 2962(c)(3) of Act 62 codified as 16 P.S. § 1-302(b) 13

16 P.S. § 3102 2, 11

16 P.S. § 4703 2, 11

20 Pa.C.S. Ch. 73 (Municipalities Investments) 3

20 Pa.C.S.A. § 7302 (Fiduciary Code) 3, 12

Lehigh County Home Rule Charter 3

Lehigh County Home Rule Charter, § 402(j) 23

Lehigh County Home Rule Charter, § 407 3

Lehigh County Home Rule Charter, § 407(a) 3, 23

Lehigh County Home Rule Charter, § 407(b) 3, 23

Lehigh County Home Rule Charter, § 606 10

Investment Policy Statement for Lehigh County Employees’ Retirement Plan (May 3, 10, 11, 12,
2014) 13

PA County Guide to Pension Plan Best Practices 2, 3, 12, 23

iv
Cases & Rules Pages
Public Employee Retirement Laws For Pennsylvania Local Governments 2, 11, 12, 13

v
TABLE OF CONTENTS

PRELIMINARY STATEMENT ....................................................................................1

SUMMARY OF APPEAL ...........................................................................................6

FACTS & PROCEDURAL SUMMARY .......................................................................7

ARGUMENT .......................................................................................................... 10

A. No investigative materials were issued on the behalf of the Retirement Board and no
client-attorney relationship was created between BLB&G and the Retirement Board as
the Lehigh County Retirement Board created by the Charter, § 606, does not comply
with the requirements of the County Pension Law, Act 96, and the County Executive does
not have actual authority to act for the Retirement System................................................. 10

B. Document #1, #2 and #3 are non-responsive contextual documents that do not


respond to any of the 5 specific Right to Know requests submitted on February 15, 2018. ......
14

C. Lehigh County must specifically identify to which of the 5 RTKL requests the 2
responsive documents (Documents #4 and #5) respond. ..................................................16

D. When no records are responsive to a request, the County must issue an “Agency
Affirmation of Nonexistence of Record” documenting that no record responsive to the
request actually exists. ............................................................................................................ 17

E. Document #4 should be disclosed, as no exemption applies and the document has


already been disclosed to a third party, waiving any exemption or privilege that may
apply........................................................................................................................................... 18

F. In the alternative, if an exemption were to apply (a fact we deny), we request an in


camera review to assess whether Document #4 should have been narrowly redacted
and the redaction should have been limited to information that is actually exempt or
privileged................................................................................................................................... 25

CONCLUSION ....................................................................................................... 29

vi
PRELIMINARY STATEMENT

On February 15, 2018, we submitted 5 distinct requests for public records (the “Requests”)
regarding the appointment of outside/special counsel by either Lehigh County’s Board of
Commissioners or the Retirement Board for a specifically identified proceeding started on
January 11, 2017, in a federal court of New Jersey: In re Novo Nordisk Securities Litigation, Case
No. Case 3:17-cv-00209 (BRM) (LHG). 1 On March 23, 2018, Lehigh County responded to our 5
requests by forwarding a letter identifying 5 documents and forwarding 3 of these 5 documents
(the “Response”).

Documents #1, #2 and #3, issued in 2013, are not responsive. They do not concern the filing
of a lawsuit in 2017 (Document #3 specifically excluded litigation from the scope of work of this
contract and clarified that a separate contingency retainer would have to be executed). Document
#2—an exchange of emails dated October 15, 2013—is obviously non-responsive, i.e. unrelated to
a lawsuit filed in January 2017. For that reason alone, we will not appeal the County’s decision not
to release it. Our decision not to seek disclosure of Document #2 should not be construed as a
concession that Document #2 is in fact privileged. This document is just, we believe, irrelevant.

The Response thus only included 2 documents, 2 issued in 2016, responsive to our 5
requests: Documents #4 and #5.3 These two documents could be deemed responsive to Request
3 and Request 4. The County’s Response did not include any “Agency Affirmation of Nonexistence
of Record” affidavits documenting that no record responsive to Requests 1, 2 and 5 actually exists.

The County withheld Document #4 in its entirety under three exceptions (client-attorney
privilege, work product doctrine and non-criminal investigation). The complete redaction of
Document #4 and part of Document #5 also deleted 91% of the responsive documents (10 pages
out of 11), leaving a one-sentence, single page email as the sole response to our Requests. We
hereby appeal this redaction and request an in camera review of Document #4.

1A copy of the complaint filed on January 11, 2017, has already been provided to OOR under separate cover on
February 27, 2018; it is an attachment to the RTKL request filed with the County on February 15, 2018.
2 Document #5 is the email response to Document #4, an email dated December 12, 2016.
3Documents #4 and #5 seem to form a contract or quasi-contract (depending on the content of Document #4).
Document #4 appears to be the offer; Document #5 seems to be the acceptance. The content of Document #4
may stipulate consideration.

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Document #4 does not contain any investigative material that has been prepared by
Bernstein Litowitz Berger & Grossmann LLP ("BLB&G")4 on behalf of the Retirement Board, as
BLB&G does not have a valid contract with the Retirement Board. The County Executive, County
Solicitor and Board of Commissioners do not have authority to bind the County Employees’
Retirement System (“Plan” or “Fund” or “Retirement System” or “Retirement Board” or “Pension
Board”).

Lehigh County is a Class 3 County.5 Its Plan or Fund should therefore be exclusively
managed by a 5-member Retirement Board to which the County Executive cannot lawfully belong
as a member. The Retirement Board may contract with the County Solicitor for legal work,
although it is considered best practice for the Retirement Board to hire its own solicitor.6 The
County Executive cannot contract and supervise a supplier, and file a lawsuit, on behalf of the
Fund without a formal delegation from the Pension or Retirement Board. No such delegation has
been documented. Finally, since the County Executive’s role as member of the Retirement Board
is unlawful under Pennsylvania’s County Pension Law, both the November 2013 letter agreement
with BLB&G and the quasi-contract between Tom Mullen and BLB&G in December 2016 might be
moot and unenforceable.

Lehigh County is a third class county. Its Retirement Board must comply with Pennsylvania’s
County Pension Law (“Act 96”). The Section of Lehigh County’s Home Rule Charter that creates the

4 https://www.blbglaw.com/our_firm
5 We note here that the County Home Rule Charter is in conflict with the provisions of County Pension Law (16 P.S.
§§ 11652-11682), known as the County Pension Law or the Act 96 of 1971 (“Act 96”). A 7-member board is only
allowed under Chapter 2 of the Second Class County Code. The structure of the Retirement Board for a County of
Second Class is controlled by 16 P.S. § 4703. The Second Class County Code does not apply to Third Class
counties. 16 P.S. § 3102 (“Except where otherwise specifically limited, this act applies to all counties of the second
class and second class A.”) Only County Second Class A are jointly covered under 16 P.S. § 11653. The retirement
system of Third Class counties is exclusively covered under 16 P.S. § 11653. The Lehigh County Retirement Board
should thus consist of 5 members. Act 96, Section 4(b), codified as 16 P.S. § 11654 (b) See also PA County Guide to
Pension Plan Best Practices (the ‘Best Practices Guide’), p. 3, issued by County Commissioners Association of
Pennsylvania in April 2015, available at: https://www.pacounties.org/Insurance/services/Documents/
20160718PensionBestPracticesFinal.pdf and Public Employee Retirement Laws For Pennsylvania Local
Governments, Public Employee Retirement Commission Commonwealth of Pennsylvania (January 2009), p. 42
(“The retirement system is administered by a county retirement board consisting of the three county
commissioners, the county controller (or, if the county does not have an elected controller, the chief clerk), and the
county treasurer.”)
6PA County Guide to Pension Plan Best Practices (the ‘Best Practices Guide’), pp. 10-11, issued by County
Commissioners Association of Pennsylvania in April 2015, available at: https://www.pacounties.org/Insurance/
services/Documents/20160718PensionBestPracticesFinal.pdf

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7-member Retirement Board is thus moot. Lehigh County’s Retirement System adopted the 7-
member board structure of a second class county—it seems for the convenience of having the
County Executive handle all the Board’s business, without formal delegation, in breach of the
board structure mandated by Act 96, the quorum requirement of Act 96 (3 out of 5 members) and
the fiduciary duty of the Retirement Board to the Fund.7

The Retirement Board is allowed by law to retain its own counsel without the need to seek
approval from Lehigh County’s Board of Commissioners pursuant to § 407 of Lehigh County’s
Home Rule Charter. 8 See § 407(a) (“No other official or agency shall employ other legal counsel
except as may be permitted by law or by the Charter without the approval of the Board.”) The
County Solicitor, not the County Executive, may engage outside counsel to represent the County,
not the Retirement System, in a specific legal proceeding “with the approval of the County
Executive and the Board.” § 407(b) (emphasis added)

The County Executive could not lawfully sign a portfolio monitoring contract on behalf of the
Retirement Board in 2013 without the Retirement Board's actual authorization and delegation to
do so. He obviously could not retain outside counsel on behalf of the Retirement Board in 2017.
But he also could not retain outside counsel on behalf of the County without authorization from
the Board of Commissioners and, by implication, under the direction of the County Solicitor.
BLB&G’s retainer was apparently neither formally approved by the County Solicitor nor authorized
by the Board of Commissioners. Even if BLB&G had a valid retainer agreement with the County,
BLB&G would still lack authority to file a lawsuit on behalf of the Plan—the Retirement Board has
exclusive and plenary authority over the affairs of the Fund under Act 96.

7 Under both the County Pension Law (Act 96) and 20 Pa.C.S. Ch. 73 (Municipalities Investments). See also
Investment Policy Statement for Lehigh County Employees’ Retirement Plan (May 2014), p. 2. (Members of the
Retirement Board are trustees of the Fund and a fiduciary, and must administer the affairs of the board in
accordance with the provisions of the County Pension Law.). PA County Guide to Pension Plan Best Practices,
County Commissioners Association of Pennsylvania (April 2015), p. 6 (citing Fiduciary Code, 20 Pa.C.S.A. § 7302)
(The County Pension Board has fiduciary responsibility for the plan.) Act 96, Section 9, codified as 16 P.S. § 11659
(“The members of the board shall be trustees of the fund, and shall have exclusive management of the fund with
full power to invest the moneys therein subject to the terms, conditions, limitations and restrictions imposed by
law upon fiduciaries.”)
8Lehigh County Home Rule Charter, as amended through January 1, 2008. Last checked on March 23, 2018.
Available at: https://www.lehighcounty.org/Portals/0/PDF/commish/LChomeRuleCharter08.pdf?
ver=2009-03-09-103906-663

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On December 24, 2016, Tom Mullen did not have actual authority from the Retirement
Board, the Board of Commissioners or the County Solicitor to retain BLB&G to file the January 11,
2017, lawsuit. He may also not have had apparent authority to do so. BLB&G is a sophisticated
securities firm with extensive experience in county and municipal pension laws in Pennsylvania.
They knew or should have known that Tom Mullen could not authorize the filing of a lawsuit on
behalf of the Plan. As an indication of BLB&G’s actual knowledge, we note that BLB&G apparently
made no attempt to enter into a formal retainer agreement as required under their 2013 portfolio
monitoring contract. BLB&G should also have known that the County Executive did not have
authority to select and supervise a supplier without formal authorization from the Retirement
Board.

Any investigation performed pursuant to the 2013 letter agreement (Document #3 attached
to Lehigh County March 23 Response) was therefore not performed on the behalf of a County
agency. Similarly, any document or communication exchanged with BLB&G in December 2016
(Document #4) was not communicated on behalf of a County agency, and no client-attorney
relationship was created with a County agency. Furthermore, a third-party stranger participated in
the allegedly privileged/exempt communications, thus waiving any said exemption or privilege.
The Third Circuit has rejected the doctrine of selective waiver. Voluntary disclosure of a document
to a third-party stranger waives all privileges and exemptions that may have otherwise attached to
the records. Finally, the redaction of a record that seems to be a contract and that might have
included investigation information subsequently disclosed in a publicly filed complaint should
have been narrowly redacted (assuming some form of privilege or exemption actually applies—a
fact we dispute in this appeal).

In light of the above, one would expect a substantive argument in support of the claimed
exemption and privilege. The County’s Response did not provide any information in support of its
claim that three privileges/exemptions apply. The Response only includes an affirmation, without
supporting evidence, that the above-mentioned three exemptions/privileges apply. As stated
above, no investigation was made on behalf of an Agency and no client-attorney relationship was
created with an Agency, as BLB&G knew or should have known that the County Executive has no
actual authority to bind the Retirement Board and that even the County Executive’s membership
on the Lehigh County Retirement Board is unlawful.

Even if some form of exemption/privilege could have applied, a fact we deny, the disclosure
of Document #4 to Ms. Mann, a third-party ‘stranger,’ voided these privileges/exemptions (the

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Third Circuit does not recognize the doctrine of selective waiver). But should OOR find that some
form of exemption/privilege applies, a fact we believe is not possible, we request that OOR
review, in camera, the redaction of Document #4 and direct the County to redact only obviously
privileged or exempt information—not the entire Document #4 that itself represents 91% of the
Response to our 5 requests.

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SUMMARY OF APPEAL

We have identified, and hereby appeal, the following deficiencies:

A. Documents #1, #2, and #3 are, at best, contextual documents. They do not respond to any
of the 5 specific Right to Know requests submitted on February 15, 2018.

B. The Response does not identify to which of the 5 requests the 2 responsive documents,
Documents #4 and #5, respond to.

C. The Response does not provide written affidavits for the requests for which the County has
not found any responsive document.

D. Document #4 (identified as a December 12, 2016, email) has already been disclosed to a
third party and its content used to publicly file a lawsuit. Finally, no agency was involved in
the generation of the investigation material or creation of a client-attorney relationship as
the County Executive lacks the actual, and apparent, authority to bind the Retirement
Board.

We respectfully request that OOR:

(A) deem Documents #1, #2, and #3 as non-responsive contextual information that does not
answer any of the 5 Right to Know requests we submitted on February 15, 2018;

(B) direct Lehigh County to specifically identify to which of the 5 RTKL requests the 2
responsive documents (Documents #4 and #5) respond;

(C) direct Lehigh County to issue written “Agency Affirmation of Nonexistence of Record”
affidavits acknowledging that no document has been found in response to certain
requests; and

D. direct Lehigh County to disclose Document #4 in its entirety as no exemption/privilege


applies, or, in the alternative, review in camera Document #4 in order to determine which
part of this document should be disclosed and then direct Lehigh County to re-issue said
document with a redaction limited to the information narrowly covered by an applicable
exemption (to be specifically documented).

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FACTS & PROCEDURAL SUMMARY

On January 11, 2017, a securities lawsuit was filed by James Cecchi, an attorney with the law
firm Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C. supposedly as Liaison Counsel for
Plaintiff Lehigh County Employees’ Retirement System, and by BLB&G supposedly as Counsel for
Plaintiff Lehigh County Employees’ Retirement System. This securities lawsuit, filed in New Jersey
federal district court, is identified as Lehigh County Employees’ Retirement System v. Novo
Nordisk, Case No. Case 3:17-cv-00209 (BRM) (LHG).

On February 10, 2018, we first reached out to Lehigh County’s senior legal counsel
Catharine Roseberry via LinkedIn. In March 2017, Ms. Roseberry had signed a declaration in In re
Novo Nordisk Securities Litigation, Case No. Case 3:17-cv-00209 (BRM) (LHG). We requested the
records authorizing BLB&G to file this lawsuit. We did not hear back from Ms. Roseberry, and we
did not receive a response from the County regarding this inquiry.

On February 14, 2018, Katherine Sinderson, a partner with BLB&G, phoned Charles
Fournier, T1DF’s director of legal advocacy, regarding the February 10, 2018, request. Ms.
Sinderson inquired during that call regarding the motive for requesting County records pertaining
to appointment of outside counsel.9 Ms. Roseberry had apparently forwarded our request to a
third party; she might also have forwarded it to the County’s Open Records Officer as required
under RTKL. Although Ms. Roseberry apparently had time to consult with outside counsel
regarding this RTKL request and outside counsel had time to inquire as to our motives for filing
this RTKL request, the County did not have time to actually respond to our request in compliance
with its disclosure duties under RTKL.

On February 15, 2018, we filed a second formal request for records with the Open Records
Officer of Lehigh County, Pennsylvania (Attachment A). In addition to the request form
(Attachment B), we attached three additional documents: the securities lawsuit filed on behalf of
Lehigh County Employees’ Retirement System or “Plan” (for reference), a screenshot of the above-
mentioned request previously made on February 10, 2018 (superseded by this formal request)

9 It is our contention that the County’s outreach to this law firm regarding our RTKL request might have been
improper, since BLB&G has not been appointed outside counsel for the purpose of advising the County on RTKL
requests and no retainer agreement has been authorized by the Board of Commissioners or the Retirement Board.

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and an email to a law firm regarding a phone call we received on February 14, 2018, regarding
this prior request.

The purpose of this request is to obtain the official records documenting the appointment of
outside counsel and other authorizations required for the filing of a lawsuit on behalf of Lehigh
County Employees’ Retirement System and related disclosure of confidential Plan information.
County records documenting the decision to proceed with this lawsuit and the appointment of
outside counsel 10 could be in the custody of four (4) departments/agencies:

1. Board of County Commissioners;


2. Office of the Lehigh County Controller;
3. Department of Law/County Solicitor; and
4. Retirement Board of the Lehigh County Employees' Retirement System (Retirement System,
Pension Plan, or Plan).

We researched all meeting minutes and public records available for these covered agencies
via the websites of Lehigh County’s agencies and departments for the period between November
2015 and March 2017. We could not find any public record referring to this lawsuit, authorizing
the start of this lawsuit, appointing outside legal counsel to file such a lawsuit or authorizing the
disclosure of confidential Plan investment information. We therefore submitted five (5) requests
for records, one request for each department/agency plus a fifth request addressing the
possibility that these matters were discussed during closed-door executive meetings.

The type of records sought are records usually and customarily produced by covered
agencies to document the usual performance of their public duties in compliance with local and
State laws. For example, the Oklahoma Firefighters Pension and Retirement Board met January 20,
2017, to discuss the above-mentioned lawsuit and related appointment of outside counsel.11

On Thursday, February 15, 2018, we emailed a request form (and its attachments) to Judith
Johnston (JudithJohnston@lehighcounty.org), the County’s Public Information Officer.

10We are not seeking confidential documents protected under the attorney work-product or attorney-client
privileges. The documents we are requesting are public records documenting the decision to proceed with the
lawsuit and the appointment of counsel.
11 Attachment D (item 9(a) on page 4) to T1DF February 27, 2018, Appeal.

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On or about February 20, 2018, Ms. Johnston drafted Lehigh County’s response. The letter
was effectively mailed on February 21, 2018 (see Attachment E). The County thus responded after
fewer than 2.5 business days. The response did not include any documents. The full substantive
response consisted entirely of administrative boilerplate, stating merely that:

“Please be advised that I am reviewing your request, pursuant to and in and accordance
with Section 102, 708 and 902 (a) (1), (2), (4), (7) of the Pennsylvania Right to Know Law, and
how long it will take to produce the requested material in the event it is a public record and
not subject to one of the enumerated exception set forth in the Right To Know Law. I will
provide you with a written response, approving or denying your request, or will be
permitted to review the requested materials on or before March 26, 2018.”

The County’s letter made no reference to the February 10, 2018, request directly made to
the County’s Law Department via its senior legal counsel, Ms. Roseberry, and to the actions taken
by the County Law Department in response to this request. The County did not avail itself to the
full 5 business days allowed under RTKL to promptly identify and produce requested records and
did not substantiate its need for a reasonable time extension.

On February 27 and March 1, 20118, we appealed Lehigh County’s request for time
extension (the February 27 appeal was amended on March 1). OOR refused to consider our
appeal on its merit and rejected it on March 1, 2018, as premature. We filed a Petition for
Reconsideration on March 2, 2018. On March 13, 2018, OOR again refused to consider our
Petition on its merit.

On March 23, 2018, the County responded to our 5 RTKL requests with 5 documents: three
non-responsive contextual documents that do not respond to any of the 5 specific Right to Know
requests submitted on February 15, 2018; a single responsive document — a one-sentence, one-
page email (Document #5); and a second 10-page document that was withheld in its entirety
(Document #4).

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ARGUMENT

A. No investigative materials were issued on the behalf of the Retirement


Board and no client-attorney relationship was created between BLB&G and
the Retirement Board as the Lehigh County Retirement Board created by
the Charter, § 606, does not comply with the requirements of the County
Pension Law, Act 96, and the County Executive does not have actual
authority to act for the Retirement System.

The matters subject to the Requests do not actually involve an Agency within the meaning of
RTKL. Lehigh County’s 7-member Retirement Board established by the Charter, §606, doesn’t
comply with the County Pension Law—it is not a lawful agency. And the County Executive cannot
be a lawful member of the Pension or Retirement Board under Act 96. The County has provided
no evidence that a lawful Pension Board has delegated its authority to select and supervise
BLB&G to Matt Croslis in 2013 and later Tom Mullen in 2016 and 2017. The County Executive
might have apparent authority to bind the County’s Retirement Board, he does not have actual
authority to do so. The 2013 letter agreement (Document #3) is thus moot. The related
investigative materials included in the December 12, 2018, email (Document #4), if any, were not
issued on the behalf of an agency and no attorney-privilege was created with an agency in
December 2017.

The seven-member Retirement Board created by Lehigh County Home Rule Charter does
not comply with the County Pension Law. Lehigh County is a third class county; it should have a
five-member Retirement Board and the County Executive should not be a member of that Board.
The County Executive does not have actual power to bind the Retirement Board of which he is not
a lawful member. As a result, all action taken by the County Executive on behalf of the Retirement
Board are unenforceable and void.12

12The Retirement Board has full and exclusive authority over the Plan and Funds pursuant to the County Pension
Law, as recognized by the Investment Policy Statement for Lehigh County Employees’ Retirement Plan (May 2014).
Absent of a formal delegation from the Retirement Board, all actions of the County Executive taken on the behalf
of the Plan are also void and unenforceable.

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The County Executive is a member of the Retirement Board pursuant to § 606 of the Home
Rule Charter adopted on November 4, 1975 (the “Charter”)13. The 7-member board created by
the Charter seems to copy the 7-member board mandated under Chapter 2. Second Class
County Code.14 This board structure is not, however, applicable to a County of third class. Under
the County Pension Law, Act 96, the County Executive is not a lawful board member and a board
should be comprised of 5 members. All actions or decisions taken by the County Executive,
without formal delegation from a lawful Retirement or Pension Board, are therefore nil.

Lehigh County is categorized as a third class county.15 Lehigh County, Pennsylvania, has a
population of about 366,500 people.16 Section 210(3) of the County Code17 defines Third Class
Counties as counties “having a population of 210,000 and more but less than 500,000
inhabitants.”18 Counties of Third Class fall under Chapter 4, Article XVIII-a. County Pensions, 16 P.S.
§ 11653 (“The provisions of this act shall apply to each county of the second class A, third class,
fourth class, fifth class, sixth class, seventh class and eighth class which has or hereafter may
establish a county employes' retirement system.)19 Third Class counties are subject to the The
County Pension Law.20 Under the provisions of Act 96 of 1971, known as the County Pension Law

13Charter, enacted pursuant to Pennsylvania Act 62 of 1972 (“Act 62”), as reenacted by Act 177 of 1996, known as
the Home Rule Charter and Optional Plans Law (53 Pa. C.S. §§ 2901–2984, is available at: https://
www.lehighcounty.org/Portals/0/PDF/commish/LChomeRuleCharter08.pdf?ver=2009-03-09-103906-663
1416 P.S. § 3102 (Except where otherwise specifically limited, this act applies to all counties of the second class
and second class A.) Any County Second Class A is also covered under 16 P.S. § 11653. The structure of the
Retirement Board for County of Second Class is controlled by 16 P.S. § 4703.
15http://www.pacourts.us/news-and-statistics/research-and-statistics/dashboard-table-of-contents/resources/
WebHelp/General_Information/County_Class.htm; https://www.pacounties.org/PAsCounties/Pages/Counties-by-
Class.aspx
16 https://www.census.gov/quickfacts/fact/table/lehighcountypennsylvania/PST045216
17Codified as 16 P.S. § 210(3)(i) (“Third Class Counties, those having a population of 210,000 and more but less
than 500,000 inhabitants.”)
18 http://www.legis.state.pa.us/WU01/LI/LI/US/HTM/1955/0/0130..HTM
19 Reference: 1971, Aug. 31, P.L. 398, No. 96, § 3. https://govt.westlaw.com/pac/Document/
NC8F118A0342C11DA8A989F4EECDB8638?
viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Defaul
t)
20Act 96 of August 31, 1971 (P.L. 398). See § 3, Applicability (“The provision of this act shall apply to each county
of… third class…”)

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(16 P.S. §§ 11652-11682), every county of the second class A through eighth class must establish a
county employee retirement system according to the requirements of the Act 96.21

The Investment Policy Statement for Lehigh County Employees’ Retirement Plan (May 2014)
(“Investment Policy Statement”) acknowledges that the “‘County Pension Law,’ Act 96 of 1971, as
amended … contains the provisions governing the establishment and operation of a retirement
system for county employees” and that members of the Retirement Board are trustees of the
Fund and a fiduciary, and must “administer the affairs of the board in accordance with the
provisions of the County Pension Law.” The system thus established under the County Pension Law
shall be administered by a county retirement board, consisting of five members, three of whom
shall be the county commissioners, the county controller and the county treasurer.22 The chairman
of the board of county commissioners shall be chairman of the board. 23 Meetings of the Pension
Board must be chaired by the Chairman of the County Commissioners—not by the County
Executive.24 Three members of the Pension Board constitutes a quorum.25

The members of the retirement board so created are trustees of the fund, and have exclusive
management responsibility over the fund subject to the terms, conditions, limitations and

21Public Employee Retirement Laws For Pennsylvania Local Governments, Public Employee Retirement
Commission Commonwealth of Pennsylvania (January 2009), p. 42, available at http://www.perc.pa.gov/
Municipal/Documents/1328286870554.pdf
22 Act 96, Section 4(b), codified as 16 P.S. § 11654 (b) . See also PA County Guide to Pension Plan Best Practices
(the ‘Best Practices Guide’), p. 3, issued by County Commissioners Association of Pennsylvania in April 2015,
available at: https://www.pacounties.org/Insurance/services/Documents/20160718PensionBestPracticesFinal.pdf
and Public Employee Retirement Laws For Pennsylvania Local Governments, Public Employee Retirement
Commission Commonwealth of Pennsylvania (January 2009), p. 42 (“The retirement system is administered by a
county retirement board consisting of the three county commissioners, the county controller (or, if the county does
not have an elected controller, the chief clerk), and the county treasurer.”)
23 16 P.S. § 11654 (b)
24 The Best Practices Guide, p. 3, citing 16 P.S. § 11654 (b)
25 The Best Practices Guide, p. 3, citing 16 P.S. § 11654 (b).

Page 12 of 31
restrictions imposed by law upon fiduciaries.26 27 The County Pension Board has fiduciary
responsibility for the plan. As such, the Pension Board has the ultimate responsibility for
management of the pension plan funds, even if the Pension Board hires a firm or firms to manage
and invest the assets of the plan.28 Only Pension Board members have the fiduciary responsibility
for the county pension plan, even if they hire firms to provide any or all plan services; the ultimate
responsibility rests with the Pension Board.29 The Retirement Board governed by Act 96, the
County Pension Law, has ultimate and exclusive authority over Plan assets. 30 Only a Retirement
Board duly established in compliance with the County Pension Law, Act 96, can establish
operational procedures, select and supervise service providers.31

The County Executive can’t thus be a lawful member of the Pension or Retirement Board of a
third class county under the County Pension Law. When there is a conflict between the Home Rule
Charter and the County Pension Law, the County Pension Law shall prevail. Under Act 62, a County
may exercise any powers and perform any function not denied by the Constitution of
Pennsylvania, by statute, or by its home rule charter. However, Act 62 is restrictive regarding the
adoption and amendment of municipal pension plans.32 Although home rule chartered counties
may perform any function not denied by the Constitution of Pennsylvania, by the home rule
charter, or by the General Assembly, this flexibility does not apply to pension plans. All counties
that establish a pension plan are bound to the provisions of the County Pension Law.33 The county

26Act 96, Section 9, codified as 16 P.S. § 11659 (“The members of the board shall be trustees of the fund, and shall
have exclusive management of the fund with full power to invest the moneys therein subject to the terms,
conditions, limitations and restrictions imposed by law upon fiduciaries.”) See also Public Employee Retirement
Laws For Pennsylvania Local Governments, Public Employee Retirement Commission Commonwealth of
Pennsylvania (January 2009), p. 43. (The county retirement board has full power to manage and invest the assets of
the retirement system.)
27All moneys and securities in the fund shall be placed in the custody of the county treasurer for safekeeping
pursuant to Section 8 of the Act 96—but Section 8 also clarifies that the county treasurer has no control over the
fund: all payments from the fund shall be made only on requisition signed by the chairman and secretary of the
board.
28 Best Practice Guide, p. 6, citing Fiduciary Code, 20 Pa.C.S.A. § 7302
29 Best Practice Guide, p. 20
30 Investment Policy Statement, p. 3
31 Investment Policy Statement, p. 3
32Public Employee Retirement Laws For Pennsylvania Local Governments, Public Employee Retirement
Commission Commonwealth of Pennsylvania (January 2009), p. 12, available at http://www.perc.pa.gov/
Municipal/Documents/1328286870554.pdf
33 Best Practices Guide, p. 7, citing 16 P.S. §11653

Page 13 of 31
is not given the power to diminish the rights or privileges of any former county employee in his or
her pension or retirement system.34

Lehigh County is a third class county; its pension or retirement system is thus governed by
the County Pension Law. The 7-member Retirement Board established by the Charter, Section
606, doesn’t comply with the County Pension Law. The County Executive is not a lawful member of
the Pension or Retirement Board under Act 96. The County has provided no evidence that a lawful
Pension Board has delegated its authority to select and supervise BLB&G to Matt Croslis in 2013
and Tom Mullen in 2016 and 2017. The County Executive might have apparent authority to bind
the board, he does not have actual authority to do so.

B. Document #1, #2 and #3 are non-responsive contextual documents that do


not respond to any of the 5 specific Right to Know requests submitted on
February 15, 2018.

Documents #1, #2 and #3 are comprised of emails and an engagement letter issued in 2013.
Document #2 was withheld under the client-attorney privilege. The engagement letter (Document
#3) concerns portfolio monitoring services awarded Bernstein Litowitz Berger & Grossman LLP
(BLB&G). The document states that “the Retirement System will have no obligation to the Firm to
take any action with respect to any potential claims that BLB&G may bring to the Retirement
System’s attention or to act as lead Plaintiffs in any action… BLB&G agrees that in the event that
the Fund determines to utilize the Firms to take formal action on the Retirement System’s behalf,
such representation will be pursuant to a separate contingency fee and retainer agreement.”

1. These documents do not document “the Board of County Commissioners’ minutes or


decision that allows the appointment of outside counsel and authorization to file a class
action lawsuit.” (Request 1 No.).

2. They are not “Retirement Board’s minutes or decision that allows the appointment of
outside counsel, authorization to file a class action lawsuit on the behalf of the
plan.” (Request No. 2)

34 Best Practices Guide, p. 7, citing § 2962(c)(3) of Act 62 codified as 16 P.S. § 1-302(b).

Page 14 of 31
3. They are not “County Controller’s authorization or any other document related to the
appointment of outside counsel [and] filing of a class action lawsuit on behalf of the plan
and disclosure of confidential plan information” in 2017. (Request No. 3) Document #3
discussed the conditions for a possible appointment as counsel in relation to a claim but it
was issued in 2013, not 2015, 2016 or 2017, and it does not document any actual
appointment of outside counsel for the purpose of filing the January 2017 securities
lawsuit against Novo Nordisk. The scope of our request was specifically limited to “the
written acts and documents of Lehigh County that authorized appointment of BLB&G as
outside counsel of Lehigh County for the purpose of filing a securities class action against
Novo Nordisk on January 11, 2017, in New Jersey Federal District Court as Lehigh County
Employees’ Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)
(LHG). Document #3 does not authorize the filing of any lawsuit.

4. These three documents are not “documents held by the Department of Law as well as the
Department of Law’s document authorizing appointment of outside counsel, filing of the
above-mentioned class action and disclosure of confidential plan information.” (Request
No. 4)

5. The above-mentioned 3 documents are not non-public documents and minutes from
closed-door executive meetings “that authorized the above-mentioned appointment of
outside counsel, disclosure of confidential Plan information and filing of the securities
lawsuit against Novo Nordisk.” (Request No. 5)

While nothing under the Right to Know laws prevents Lehigh County from providing additional,
contextual information such as the 2013 letter agreement with BLB&G, Lehigh County should not
represent that these documents are responsive to any of the 5 requests we submitted; these
documents have no direct or indirect relationship with appointment of outside counsel for the
specific purpose of filing a securities lawsuit against Novo Nordisk in January 2017.

Page 15 of 31
C. Lehigh County must specifically identify to which of the 5 RTKL requests
the 2 responsive documents (Documents #4 and #5) respond.

Lehigh County’s March 23 Response identifies 2 responsive documents, issued during the stated
period (2015-2017) and obviously related to the January 2017 filing of the securities lawsuit
against Novo Nordisk. These documents would fall under Request No. 5.

1. These documents do not document “the Board of County Commissioners’ minutes or


decision that allows the appointment of outside counsel and authorization to file a class
action lawsuit.” (Request 1 No.).

2. They are not “Retirement Board’s minutes or decision that allows the appointment of
outside counsel, authorization to file a class action lawsuit on the behalf of the
plan.” (Request No. 2) These emails were sent by Tom Mullen, the County Executive. As
explained above, the County Executive is not a lawful member of the Pension or
Retirement Board of a third class county and the County has provided in its response no
evidence that Mr. Mullen (and before him Mr. Croslis) had been delegated by a lawful
Board the actual authority to select and supervise service providers such as BLB&G.

3. These documents could be “County Controller’s authorization or any other document


related to the appointment of outside counsel [and] filing of a class action lawsuit on
behalf of the plan and disclosure of confidential plan information” in 2017. (Request No. 3)
As stated above, Mr. Mullen, and before him Mr. Croslis, are not lawful members of the
County Retirement Board under the applicable County Pension Law and the County has
provided no evidence of delegation. Mr. Mullen and Mr. Croslis did not have actual
authority to act “on the behalf of the plan.” Mr. Mullen’s communications could, however,
be directly related to appointment of outside counsel for the apparent purpose of filing a
lawsuit in 2017.

4. These three documents could also be “documents held by the Department of Law…
authorizing appointment of outside counsel, filing of the above-mentioned class action
and disclosure of confidential plan information.” (Request No. 4)

5. The above-mentioned 2 documents are not, however, non-public documents and minutes
from closed-door executive meetings “that authorized the above-mentioned appointment

Page 16 of 31
of outside counsel, disclosure of confidential Plan information and filing of the securities
lawsuit against Novo Nordisk.” (Request No. 5)

The only two responsive documents are therefore responsive to Request 3 and Request 4. They
are not responsive to Request 1, 2 and 5. We therefore request that the County be directed to
address to which of the 5 specific request the two identified documents are responding to.

D. When no records are responsive to a request, the County must issue an


“Agency Affirmation of Nonexistence of Record” documenting that no
record responsive to the request actually exists.

As stated above, only 2 responsive records have been produced in response to 5 distinct
requests. We are therefore left guessing as to which one of these requests the 2 records respond
to (one of the two records being entirely redacted, it is nearly impossible to make such a guess).

The County bears, under the RTKL, “the burden of demonstrating that it has reasonably
searched its records to establish that a record does not exist.” Borough of Paxtang v. Hoyer, 2017
Pa. Commw. Unpub. LEXIS 145, 6 (citing Department of Labor and Industry v. Earley, 126 A.3d 355,
357 (Pa. Cmwlth. 2015)). “An affidavit may serve as sufficient evidence of the non-existence of
requested records.” Id.

Under applicable case law, a County has met its burden of establishing the non-existence of
a requested record when it submits an affidavit indicating that a good-faith search was performed
that failed to locate any responsive records. The County made no such statement and issued no
affidavit as evidence of the non-existence of the requested records.

We therefore request that the County’s Open Records Officer issue, when no record has
been found responsive to one of the five specific requests we made, a sworn affidavit entitled
“Agency Affirmation of Nonexistence of Record” stating that based on the information provided to
her, she does hereby affirm that, to the best of her knowledge, information and belief, such
records do not exist. With this affidavit, the County would meet its burden of proof that the
requested records do not exist in its possession. Hodges v. Dept. of Health, 29 A.3d 1190, 5 (Pa.

Page 17 of 31
Commw. Ct. 2011) (citing Moore v. Office of Open Records, 992 A.2d 907, 908-909 (Pa. Cmwlth.
2010)).

E. Document #4 should be disclosed, as no exemption applies and the


document has already been disclosed to a third party, waiving any
exemption or privilege that may apply.

The RTKL are remedial in nature and were “designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public officials, and
make public officials accountable for their actions,” Pennsylvania State Police v. McGill, 83 A.3d
476, 479 (Pa. Cmwlth. 2014). In evaluating whether a record is exempt from disclosure, the
exemptions must be narrowly construed so as not to frustrate the RTKL’s remedial purpose, Office
of Governor v. Scolforo, 65 A.3d at 1100 (Pa. Cmwlth. 2013). The County has the burden to satisfy
the substantive due process requirement of RTKL, including the burden of proof an agency must
sustain to show that a request may be delayed or that a requester may be denied access to
records. See, e.g., Dep’t of Corr. v. Fiorillo, 2017 Pa. Commw. Unpub. LEXIS 305, 5 (citing
McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014)); Heavens v. Pa. Dep’t of
Envtl. Prot., 65 A.3d 1069, 1074 (Pa. Cmwlth. 2013).

Lehigh County’s mere assertion of exemption and privilege did not meet this burden. The
County already waived all exemption and privilege when it disclosed the content of Document #4
to a third-party stranger, Ms. Mann, in December 2016 and to the public in January 2017, in the
form of a securities lawsuit against Novo Nordisk. Voluntary disclosure to a single third party
totally waives any exemption or privilege that may apply. The County’s assertion of exemption and
privilege, if affirmed, would thus be akin to implementing a regime of selective waiver (exemption
waived for Ms. Mann but not for T1DF/us). The Third Circuit has repeatedly rejected the doctrine
of selective waiver. No exemption or privilege applies to documents that have already voluntarily
been disclosed to a third party. The disclosure to Ms. Mann was voluntary. Document #4 is thus a
public record that must now be disclosed in its entirety to us as well.

We agree that, under Section 708 (a) of the Pennsylvania’s New Right to Know Law (“RTKL”),
Act 3 of 2008 codified as 65 P.S. § 67.708(a), there is a rebuttable presumption that all records
held by local agencies are public. Under 65 P.S. § 67.305(a), there is a presumption that all records

Page 18 of 31
(as defined by RTKL) in the possession of a covered agency are public records unless: (1) the
record is exempt under 65 P.S. § 67.708; (2) the record is protected by a privilege; or (3) the
record is exempt from disclosure under any other federal or state law or regulation or judicial
order or decree. 65 P.S. § 67.305(a). The burden falls on the covered agency to prove, by a
preponderance of the evidence, that the record is exempt from disclosure. 65 P.S. § 67.708(a)(1).
See also Dep’t of Corr. v. Fiorillo, 2017 Pa. Commw. Unpub. LEXIS 305, 4.

The mere assertion of a privilege or exemption does not meet this burden. The burden of
proving that a record is non-public, that an exemption applies or that a specific reason excuses
non-disclosure is on the agency denying access. When doing so, the County must meet all the
required elements, not some. See, e.g., Dep’t of Corr. v. Fiorillo, 2017 Pa. Commw. Unpub. LEXIS
305, 6 (citing Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1123 (Pa. Cmwlth. 2015)) (stating that
the inability to establish any of the three elements required to assert an exemption bars
application of the exemption). In the present case, the County provided no reason whatsoever
supporting its affirmations that three exemptions might apply.

In the present case, the County stated three possible grounds for withholding Document #4
and redacting #5 under 65 P.S. § 67.708(b)(17)(ii)—Investigative materials, notes, correspondence
and reports, (iv)—A record that includes information made confidential by law, and (vi)—(A) Reveal
the institution, progress or result of an agency investigation and (D) Hinder an agency’s ability to
secure an administrative or civil sanction. The County does not provide any further evidence. The
complete argument, except for reference to case law and statutes, is quoted:

“Items #2 and #4 will not be disclosed because they are protected from disclosure by
attorney-client privilege, the work product doctrine, and the non-criminal investigation
exception to the Pennsylvania Right-to-Know Law (RTKL), 65 P.S. §67.708(b)(17)(ii), (iv), and
(vi). For the same reasons, a portion of #5 is redacted… “ [The redacted portion of
Document #5 is Document #4]

The County did not provide any proof or evidence that these exemptions and privileges
actually apply. The County provided no privilege log. The County did not allege that an
investigation was actually ongoing. The County did not clarify whether Ms. Mann was a third-party
stranger. Finally, the County did not explain the extent to which the information contained in
Document #4 was already disclosed when a class action lawsuit was filed allegedly on the behalf
of Lehigh County Employees’ Retirement System in January 2017. For these reasons and for the

Page 19 of 31
reasons stated below, the mere affirmations of the County are not sufficient to prevent disclosure
of Document #4. We therefore request that OOR direct the County to release Document #4 and
Document #5 without redaction.

(1) Regarding the first claimed exemption, 708(b)(17)(ii)—Investigative materials, notes,


correspondence and reports, the County does not state the existence of an investigation.

The County does not identify how the redacted email #5 and withheld document #4 relate to
“investigative materials, notes, correspondence and reports.” The County just stated the
exception, without providing any explanation. This exception does not apply for two reasons: First,
Document #4 is not, in its entirety, “materials, notes, correspondence and reports.” It is apparently
a proposal for legal services, to which Document #5 apparently agrees. Second, this document
has already been made public in its entirety, i.e. it has been disclosed to a third party, Ms. Mann.
The Third Circuit has rejected the theory of selective waiver. Disclosure to Ms. Mann terminated
any exemption or privilege that may have otherwise applied. Finally, most if not all the factual
content of this document is likely to have been disclosed in the complaint filed on January 11,
2017, allegedly on behalf of the Retirement System.

Document #4 is apparently a proposal from BLB&G to enter into a retainer agreement for
the purpose of filing a lawsuit. The commercial terms of this retainer are not mere “investigative
materials, notes, correspondence or reports.” Document #3 requires that the Retirement Board
and BLB&G enter into a separate contingency fee and retainer agreement in the event of a formal
legal action. The subject matter of Document #4, “Potential New Securities Action — Novo
Nordisk” indicates that Document #4 was issued in anticipation of a formal legal action. BLB&G
apparently made an offer to the Retirement Board in Document #4 and the County Executive gave
acceptance (“Let’s proceed”) in Document #5.

Document #4 is thus the closest document to a retainer required by Document #3. Offer and
acceptance would be sufficient to form a contract if the content of Document #4 provided the
purpose of the contract, its scope and the exchange of promises, i.e. consideration. The only way
to know whether the County Executive created a binding contract with BLB&G is to have access to
the content of Document #4. Contracts and retainer agreements are not investigative material,
draft notes, working papers or reports. They are public records of the County subject to RTKL
(even though some part of Document #4 could be deemed investigative material).

Page 20 of 31
Document #4 must be released in its entirety, irrespective of the nature of its content,
because all applicable exemptions and privileges were waived when BLB&G actually filed the
lawsuit against Novo Nordisk on January 11, 2017 (disclosing the investigative material that might
be included in Document #4) and when the content of Document #4 was disclosed in its entirety
to Ms. Mann on December 12, 2016, and December 24, 2016. The simple fact that Document #4
(a quasi-contract between BLB&G and the County Executive) has been shared with a third party—
Ms. Mann—waives any presumption of privilege or confidentiality. Under Third Circuit precedents,
voluntary disclosure of the contents of client-attorney communications to a third party outside the
scope of the protection waives the privilege as discussed below. Since Document #4 has already
been disclosed to a third party, Ms. Mann, it is now part of the public record and should also be
disclosed to T1DF.

(2) Regarding the second claimed exemption, 708(b)(17)(iv)—A record that includes information
made confidential by law, the County provided some information regarding the case law and
statutes governing the attorney-client privilege but no information regarding the parties involved
in the alleged client-attorney relationship and how this relationship was actually created.

We concede that communication between a prospective client and a law firm could be
subject to a privilege. This presumption of privilege is not absolute and it is rebuttable, when
established. In the present case, the County failed to established the existence of a legal privilege.
If such privilege ever attached to Document #4, it was waived when Document #4 was forwarded
to Ms. Mann, a third party who is neither an attorney nor a service provider to the Retirement
Board.

“The attorney-client privilege protects only those who are seeking legal advice; it ‘does not
extend to business advice or protect clients from factual investigations.’” California University of
Pa. v. Schackner, 2017 Pa. Commw. LEXIS 617, 13. But where an agency fears that attempting to
meet any other disclosure/evidentiary requirement might tend to disclose aspects of privileged
communication, privileged work product, potential litigation or legal strategy, in camera review by
OOR is an alternative to risking such disclosure by submitting evidence. Id, 15-16.

The broad mandate towards disclosure of RTKL would require that any privilege be narrowly
applied. A retainer agreement between the County and outside counsel is not attorney work
product as it does not (or should not) contain legal advice of any nature. Similarly, the existence of
an appointment and the delegation of authority required under the County Home Charter Rules

Page 21 of 31
to effect such an appointment pre-dates the formation of a client-attorney relationship and thus
would typically only involve correspondence and records between County entities and/or
employees.

The burden imposed on a party seeking to seal documents, under U.S. Supreme Court and
Third Circuit precedents, is a very heavy one. The public generally has a right “to inspect and copy
public records and documents, including judicial records and documents.” Nixon v. Warner
Comms., Inc., 435 U.S. 589, 597 (1978) Mere assertions that closure or sealing serves a
“compelling interest” do not suffice to create a presumption of validity to such a request; some
specific evidentiary facts are required beyond vague assertion of a privilege. Romero v.
Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007) (citations omitted). Brown v. Advantage
Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992).

But in the present case, the County has already waived this privilege. First, it disclosed part
of the information that Document #4 addresses: the purpose of Document #4 (“Potential New
Securities Action — Novo Nordisk”), one of its authors (“Hannah Ross”), and its content as it relates
to an investment threshold. Document #4 is also an email. At a minimum, the recipients, author,
subject, and other information included in that email that provide practical information regarding
the nature of the agreement entered between the County and BLB&G (“Let’s proceed”) should be
disclosed.

More critically, the County voluntarily disclosed the privileged information to a third party,
thus terminating any privilege that may have attached to Document #4. The Third Circuit also does
not recognize the doctrine of selective waiver. Once waived, a privilege can’t be reinstated for a
specific audience. Document #4 was shared with JLM@JLMannconsulting.com. Jennifer L. Mann is
not an attorney. She is the founder and president of JL Mann Consulting, LLC, a lobbying firm that
provides customized business solutions. She earned degrees in government and economics from
Lehigh University. She is not a service provider to the Retirement Board.35 The simple fact that
Document #4 has been shared with a third party—Ms. Mann—waives any presumption of privilege
or confidentiality. Under Third Circuit precedents, voluntary disclosure of the contents of client-
attorney communications to a third party outside the scope of the protection waives the privilege.

35 http://jlmannconsulting.com/services/

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The Third Circuit has repeatedly rejected the doctrine of selective waiver since
Westinghouse Electric Corp. v. Republic of the Philippines, 951 F. 2d 1414 (3d Cir. 1991) (exposing
alleged misconduct by Westinghouse in connection with a Philippine nuclear plant to civil
discovery in litigation between the discloser and a third party). The Third Circuit has refused to
sanction the selective waiver doctrine (including the case-by-case compromise implemented by
the Second Circuit) finding that the voluntary disclosure of privileged material to third parties
terminates the confidentiality necessary to maintain a claim of privilege in the first place, and
therefore waives the privilege with respect to all other third parties as well.36

(3) Regarding the third claimed exemption, 708(b)(17)(vi)—(A) Reveal the institution, progress or
result of an agency investigation and (D) Hinder an agency’s ability to secure an administrative
or civil sanction, we are here at a loss as to understand how this exemption would apply here in
the absence of any specific reference to an investigation. We are left guessing.

The result of the investigation has been made public on January 11, 2017, in the form of a
very public lawsuit filed on January 11, 2017, in New Jersey Federal District Court as Lehigh
County Employees’ Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)
(LHG). Responsive pleadings have been concluded in December 2017, and the Judge’s opinion
regarding the defendants’ motion to dismiss is expected soon. The initial allegations of price
fixing, upon which the January 2017 lawsuit was predicated, have now been abandoned.

Furthermore, this exemption is not applicable here. No agency of the County is currently
involved in the above-mentioned lawsuit or investigation. There is no retainer agreement between
BLB&G and the Retirement Board. The Retirement Board has never been formally informed of this
lawsuit37 and the County Executive cannot bind the Retirement Board. Under the County Pension
Law, the Plan is independently managed from the County by a separate board that has exclusive

36The concept of selective waiver is disfavored by most federal circuit courts, see, e.g., In re Columbia/HCA
Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002); United States v. Mass. Inst. of Tech., 129 F.3d
681 (1st Cir. 1997); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991); In re
Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981).
37There is no mention of the lawsuit in any minutes of the Retirement Board in late 2016 and early 2017, and no
records proving otherwise have been produced by the County.

Page 23 of 31
and plenary authority over the Plan management.38 The County does not have any jurisdiction or
authority over the management of the Plan and thus cannot file a lawsuit on behalf of the Plan—
and the Retirement Board did not file any lawsuit, as demonstrated by the outcome of our 5
requests for disclosure.

The January 11, 2017, lawsuit was not filed on behalf of the County. It was supposedly filed
on behalf of the Retirement Board and Lehigh County Employees’ Retirement System. Under the
Charter the County Executive does not even have authority to appoint outside counsel. The
County Executive has authority to execute contracts pursuant to § 402(j) of Lehigh County’s Home
Rule Charter, but the County Solicitor is the only agency authorized to employ outside counsel
pursuant to § 407(a) or to retain “retain special counsel for a particular proceeding” with the
approval of both the County Executive and the Board pursuant to § 407(b).39 The statement from
the County Executive on December 24, 2016 (“Let’s proceed”) is not sufficient to create a
contractual relationship between BLB&G and the County (not the Retirement Board). Without
access to the actual content of the December 12, 2016, email to which he responded, we can only
conjecture that he could have stated an intent to contract in accordance with the requirements of
the October 18, 2013, letter contract for portfolio monitoring services.40 Since these matters were
not apparently brought to the Fund’s attention, the County Executive could not have agreed on
behalf of the Retirement System to take formal legal action. And BLB&G—a sophisticated legal
adviser to the Pension Board under Pennsylvania County Pension Law—knew or should have
known that the County Executive had neither apparent nor actual authority to do so. 41 But the
County Executive also did not have authority to retain outside counsel. As stated above,
appointment of outside counsel for a specific proceeding requires the involvement of the County

38 According to PA County Guide to Pension Plan Best Practices (the ‘Best Practices Guide’), p. 3, issued by County
Commissioners Association of Pennsylvania in April 2015, available at: https://www.pacounties.org/Insurance/
services/Documents/20160718PensionBestPracticesFinal.pdf it is best practice for a Pension/Retirement Board to
hire its own solicitor, independently from the County. If the county solicitor is used as solicitor for the Pension
Board, the County Commissioners Association of Pennsylvania recommends that the Pension Board enter into a
separate contract with the attorney.
39 The Retirement Board can hire outside counsel without the authorization of the Board of Commissioners as
allowed and possibly required under the County Pension Law.
40Document #3 (“BLB&G agrees that in the event that the Fund determines to utilize the Firm to take formal legal
action on the Retirement System’s behalf, such representation will be pursuant to a separate contingency fee and
retainer agreement.”)
41BLB&G should also have known that Matt Croslis had no actual authority to enter in a retainer agreement on
behalf of the Fund in October 2013 and that the structure of the Retirement Board of Lehigh County, a county of
third class, breached Pennsylvania County Pension Law.

Page 24 of 31
Solicitor and authorization from the Board of Commissioners—and as demonstrated by the
County’s Response, no such authorization was ever given to BLB&G.

If OOR were to accept this exemption as valid, it would thus give the County Executive and
BLB&G the benefit of their breaches of the County Charter, Pennsylvania Count Pension Law and
the letter agreement of October 18, 2013 (Document #3). RTKL 65 P.S. § 67.708(b)(17)(vi)(D) is
inapplicable because no County agency is actually engaged in an administrative or civil sanction
against Novo Nordisk. In the absence of an administrative or civil sanction, disclosure of
Document #4 can’t be precluded under 708(b)(17)(vi)(D). Similarly, there is apparently no
investigation in progress on behalf of any agency, as BLB&G has not been authorized by any
agency to proceed with an investigation or action. And no such investigation could have
proceeded on behalf of the Retirement Board under the 2013 letter agreement, because the
County Executive does not have actual nor apparent authority to bind the Board and BLB&G
should have known this. Finally, even if there were an investigation, its result was made public on
January 11, 2017 when the lawsuit was filed against Novo Nordisk. The exemption pursuant to 65
P.S. § 67.708(b)(17)(vi)—(A) is thus either moot or ineffective.

We do not need, however, to consider these matters. The information in question, Document
#4, has already been made public when it was cc’d to Ms. Mann. The public’s entitlement to know
of these matters is equal to that of Ms. Mann. Personal relationships and political connections do
not give some people a greater “Right to Know” than others under Pennsylvania RTKL. The people
with type 1 diabetes that T1DF represents are directly concerned by these matters. We have, in
fact, a greater right to know than Ms. Mann, and the ban on selective waiver equally applies here.
If the County and the Retirement Board found that no exemption applies to Ms. Mann, the same
must be true for T1DF.

F. In the alternative, if an exemption were to apply (a fact we deny), we


request an in camera review to assess whether Document #4 should have
been narrowly redacted and the redaction should have been limited to
information that is actually exempt or privileged.

Document #4 (identified as a December 12, 2016, email) should have been narrowly
redacted in order to at least disclose (1) its contextual information (senders, recipients, date) and

Page 25 of 31
the authority under which this proposal was sent, (2) information already provided to third parties
(Ms. Mann), (3) the investigative content ultimately incorporated into the class action lawsuit filed
in January 2017,42 and (4) the commercial terms of the contract or quasi-contract formed by
Document #4 (the offer) and Document #5 (the acceptance), the scope of this contract, its parties,
its purpose and its consideration. If OOR does not find that all privileges and exemptions have
already been waived, we respectfully request that OOR review in camera Document #4 in order to
determine which part of this document should be disclosed and then direct Lehigh County to re-
issue said document with a redaction limited to the information narrowly covered by an
applicable exemption.

Lehigh County requested a 30-day time extension and produced a single substantive
document (Document #4) in response to our five requests for records.43 The Response states that
Document #4 was withheld in its entirety under three exceptions (client-attorney privilege, work
product doctrine and non-criminal investigation), although it was in fact partially disclosed in
Document #5, it had been fully disclosed to a third party, Ms. Mann, and its content had been
used to file a lawsuit in January 2017. The complete redaction of Document #4 and part of
Document #5 de facto erased 91% of the responsive documents (10 pages out of 11), leaving a
one-page email (Document #5) as the sole response to our 5 RTKL requests. This broad redaction
of Document #5 and withholding of Document #4 also removes from the public record the only
apparent contractual document between the County Executive and BLB&G for the purpose of
filing a lawsuit (retainer agreement). Under these circumstances, we are therefore requesting that
this 10-page email be reviewed in camera in order to assess whether it contained non-privileged
information and that OOR then direct Lehigh County to narrowly redact the content of the email.

RTKL 65 P.S. § 67.902(a)(1) states that the “agency shall determine if… the request for access
requires redaction of a record in accordance with section 706.” But 65 P.S. § 67.706 states that “the
agency’s response shall grant access to the information which is subject to access… The agency
may not deny access to the record if the information which is not subject to access is able to be
redacted.” Ms. Johnston has made no such determination. Document #4 was withheld in its

42In re Novo Nordisk Securities Litigation, Case No. 3:2017-cv-00209 (initially filed as Lehigh County Employees’
Retirement System v. Novo Nordisk A/S et al, Case No. 3:2017-cv-00209).
43 Document #5 is just a one-sentence response to Document #4. Document #4 is the only substantive document
issued in response to our RTKL request.

Page 26 of 31
entirety while part of Document #4 was disclosed in Document #5 (the Subject, its recipients and
author, the date and time).

If the production were very large and burdensome, we would expect some more cursory
legal review and over-inclusive redaction. “An open-ended request that gives an agency little
guidance regarding what to look for may be so burdensome that it will be considered overly
broad” Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121, 4 (Pa. Commw. Ct. 2015). Our
request was not burdensome. Our request met the three-part balancing test set by Pennsylvania
courts. See, e.g., Id at 4 (citing Carey v. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Cmwlth. 2013)):

1. The subject matter of our request identifies the “transaction or activity” of the agency for
which the record is sought (appointment of BLB&G for the purpose of filing a specific
lawsuit actually filed on January 11, 2017, in N.J. Federal Court).

2. The scope of our request identifies “a discrete group of documents” by recipient. We are
seeking records related to an authorization that should have been provided by the County
Board of Commissioners, according to the County Home Rule Charter. The records we are
seeking are typically meeting minutes (See, e.g., Attachments D, I, J). We identified the 5
covered agencies that might have a copy of these records. It is quite easy to assess
whether a record is or is not related to appointment of legal counsel to file a securities
lawsuit against Novo Nordisk, AG. The County’s Home Rule Charter also specifically
identifies a type of responsive document under §407.

3. Finally, we provided a timeframe by virtue of identifying the date of transaction that gave
rise to the request (the January 11, 2017, filing of a securities lawsuit). Due to the secrecy
surrounding this matter, it is impossible to assess whether the requested records could
have been issued at a specific date prior to January 2017. “The timeframe prong is,
however, the most fluid of the three prongs, and whether or not the request’s timeframe is
narrow enough is generally dependent upon the specificity of the request’s subject matter
and scope.” Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette, at 6. As stated in our request,
page 4: “We have checked all board meeting minutes of the Retirement Board and Board
of County Commissioners in 2015, 2016 and 2017 and could not find any reference to the
above matter. We are therefore not able to provide a more specific description of the
County records we are seeking.” Our request thus suggests a timeframe. The Authorization
to seek outside counsel might have been issued up to a year prior to the actual filing,

Page 27 of 31
although in this case is could have been much closer to the filing date, or possibly in the
preceding months. But due to the County’s secrecy regarding this matter, we could not
provide a more finite description. Our failure to identify a finite timeframe does not,
however, render our otherwise sufficiently specific request overbroad (Id at 7).

The County identified in its Response two responsive documents. A 10-page document
(Document #4) was withheld in its entirety, while a one-page document, the email response to
Document #4 (Document #5) was disclosed, with Document #4 (the initial email it responded to)
almost entirely redacted. Our request was not burdensome and the Response comprising 2
documents, was not so large as to require a cursory, over-broad legal review and redaction. The
County only had to redact a singe 10-page document that comprises 91% of the Response.
Document #4 had already been disclosed to a third party, Ms. Mann, and its investigative content
incorporated into a lawsuit publicly filed in January 2017. Finally, Document #4 is a de facto
contract between the County and BLB&G for the purpose of filing a class action lawsuit against
Novo Nordisk. Considering the exceptional circumstances of this single-source contract or
retainer agreement, the County should have provided as much information as possible, and very
narrowly redacted its content, if at all.

OOR has subject matter jurisdiction to determine if a document is exempt under the
attorney-client privilege and/or work-product doctrine, and OOR has the statutory authority to
conduct in camera review upon request by one of the parties. Office of Open Records v. Center
Twp., 95 A.3d 354 (Pa. Cmwlth. 2014)(McCullough, J., en banc) The OOR has also successfully
argued “that section 1102 of the RTKL and accompanying case law vest it with significant fact-
finding powers and the obligation to develop an adequate evidentiary record for reviewing
courts.” Id, at 19-20 And that such a “in camera review is necessary where… the record is
undeveloped, thereby depriving the OOR of the opportunity to determine whether a privilege is,
in fact, applicable.” Id, at 20 “[S]uch a power, triggered via a request by one of the parties.” Id, at
26.

In the present case, there is sufficient circumstantial evidence to question the complete
exemption and redaction of Document #4. The affirmations included in the Response are also
mere conclusory statements regarding the existence of an exemption. California University of Pa.
v. Schackner, 15, 2017 Pa. Commw. LEXIS 617 (“[T]he agency asserting the [exemption] must show
that a searching inquiry or detailed examination was undertaken as part of an agency’s official
duties. Stating that an investigation occurred ... does not suffice.”)(citing Pennsylvania Department

Page 28 of 31
of Education v. Bagwell, 131 A.3d 638, 659-60 (Pa. Cmwlth. 2015)). Finally, Document #4 failed to
meet the last two prongs of Bagwell: the content of Document #4 was communicated in the
presence of a stranger, Ms. Mann, and the claimed privilege was waived by the disclosure to this
stranger and to the public at large when the lawsuit was filed. Because the County failed one of
the first three prongs of the Bagwell test, the burden to prove that a privilege still exists remains
with the County, California University of Pa., at 13, and the County’s mere affirmation provided no
evidence that disclosure to Ms. Mann and subsequent filing of a lawsuit did not terminate the
claimed privilege and exemptions.

We therefore request that the Office of Open Records (OOR) conduct a private screening (in
camera review) to confirm whether Document #4 is in fact exempt under the grounds asserted by
Lehigh County and whether its complete redaction is overbroad. The County has provided no
evidence that a privilege actually exists (no privilege log was disclosed) or that a non-criminal
investigation was actually conducted. The County just stated the exemption and privilege. Without
access to the actual content of Document #4, it is impossible to assess the merit of the County’s
claimed exemption and privilege. Under these circumstances, an “in camera review may be the
only way that an appeals officer can assess, in a meaningful fashion, whether an agency has met its
burden of proving that a document is privileged by a preponderance of the evidence.” Id, at 27

We also request that OOR create a sufficient record to allow proper appellate analysis and
review. Heintzelman v. Pennsylvania Dept. of Community and Economic Development, 512 C.D.
2014 (Pa. Cmwlth. Oct. 30, 2014)(Simpson, J., unreported memorandum op.).

CONCLUSION

We have identified, and hereby appeal, the following deficiencies:

G. Documents #1, #2, and #3 are, at best, contextual documents. They do not respond to any
of the 5 specific Right to Know requests submitted on February 15, 2018.

H. The Response does not identify to which of the 5 requests the 2 responsive documents,
Document #4 and #5, respond to.

Page 29 of 31
I. The Response does not provide written affidavits for the requests for which the County has
not found any responsive document.

J. Document #4 (identified as a December 12, 2016, email) has already been disclosed to a
third party and its content used to publicly file a lawsuit. Finally, no agency was involved in
the generation of the investigation material or creation of a client-attorney relationship as
the County Executive lacks the actual, and apparent, authority to bind the Retirement
Board.

We thus request that OOR:

(A) deem documents #1, #2, and #3 as non-responsive contextual information that does not
answer any of the 5 Right to Know requests submitted on February 15, 2018;

(B) direct Lehigh County to specifically identify to which of the 5 RTKL requests the 2
responsive documents (Documents #4 and #5) respond;

(C) direct Lehigh County to issue written “Agency Affirmation of Nonexistence of Record”
affidavits acknowledging that no document has been found in response to certain
requests; and

D. direct Lehigh County to disclose Document #4 in its entirety as no exemption/privilege


applies, or, in the alternative, review in camera Document #4 in order to determine which
part of this document should be disclosed and then direct Lehigh County to re-issue said
document with a redaction limited to the information narrowly covered by an applicable
exemption (to be specifically documented).

Respectfully submitted,

Julia Boss, o/b/o the Type 1 Diabetes Defense Foundation

President
Type 1 Diabetes Defense Foundation

Page 30 of 31
Attachments:

A. T1DF’s RTKL Request Form dated February 15, 2018.


B. March 23, 2018 Response from Lehigh County.

Page 31 of 31
ATTACHMENT A

T1DF’ RTKL REQUESTS DATED JANUARY 15, 2018



LEHIGH COUNTY RIGHT-TO-KNOW REQUEST FORM DATE REQUESTED: February 15, 2018

REQUEST SUBMITTED BY: E-MAIL (charles.fournier@t1df.org)

NAME OF REQUESTOR : Charles Fournier, o/b/o Type 1 Diabetes Defense Foundation


(T1DF)

STREET ADDRESS : 3059 Hendricks Hill Drive

CITY/STATE/COUNTY (Required): Eugene, OR 97403

TELEPHONE (Optional): 206 643 1479

RECORDS REQUESTED:

*Provide as much specific detail as possible so the agency can identify the information.

This request concerns the records of four agencies:

(1) Board of County Commissioners;


(2) Office of the Lehigh County Controller;
(3) Department of Law / County Solicitor; and
(4) Retirement Board of the Lehigh County Employees' Retirement System (Retirement
System, Pension Plan, or Plan).

The purpose of this request is to obtain the official records documenting the appoint of
outside counsel and other authorizations required for the filling of a lawsuit on behalf of
Lehigh County Employees’ Retirement System and related disclosure of confidential Plan
information.

Page 1 of 4
On or about January 11, 2017, a securities lawsuit was filed by James Cecchi, CARELLA,
BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. (5 Becker Farm Road Roseland, New
Jersey 07068) as Liaison Counsel for Plaintiff Lehigh County Employees’ Retirement System
and by BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP (1251 Avenue of the Americas
New York, New York 10020) as Counsel for Plaintiff Lehigh County Employees’ Retirement
System. This securities lawsuit, filed in New Jersey federal district court is identified as Lehigh
County Employees’ Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)
(LHG).

When the request below refers to ‘outside counsel,’ that means either or both of the above-
mentioned law firms. When the request below refers to ‘lawsuit,’ that means all the tasks
required for the preparation and filing of the lawsuit as well as the law suit that was ultimately
filed on January 11, 2017, in New Jersey Federal District Court as Lehigh County Employees’
Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)(LHG).

A certification was signed by Matthew R. Sorrentino, County Solicitor of Lehigh County, on


behalf of Lehigh County Employees’ Retirement System (“Lehigh County”) on January 10,
2017 (attached). This certificate does not clarify whether Mr. Sorrentino had actual authority
on January 10, 2017, to bind Lehigh County and whether the above-mentioned law firms
have been duly appointed as outside counsel and this action authorized by an act of the
County’s agencies that has oversight authority over this matter — Board of County
Commissioner, Retirement Board, Office of the Controller, and Law Department.

The purpose of this request is to obtain a copy of the written acts and documents of Lehigh
County that authorized appointment of BERNSTEIN LITOWITZ BERGER & GROSSMANN as
outside counsel of Lehigh County for the purpose of filing a securities class action against
Novo Nordisk as well as the acts/documents authorizing disclosure of confidential Plan
information. This lawsuit engages Lehigh County and Lehigh County Employees’ Retirement
System and required disclosure of confidential investment information to third parties that are
not County employees.

Under the Lehigh County Home Rule Charter (as amended) and the County Pension Law of
1971 (governing the operation of a retirement system for county employees), the Lehigh
County Retirement System is administered by a Retirement Board comprising of 7 members,
including the Controller and the County Executive. The Retirement Board—not the County
Commissioners, Controller or Solicitor—has plenary management and oversight authority
over the Plan, including the filing of securities lawsuits on the behalf of the Plan. These
matters should have therefore been documented and formally authorized by the Retirement
Board and Lehigh County.

Page 2 of 4
This request comprises of the following 5 requests:

• Request No. 1: Copy of the Board of County Commissioners’ minutes or decision that
allows the appointment of outside counsel and authorization to file a class action lawsuit on
behalf of Lehigh County. The Board of County Commissioners should have authorized
appointment of outside counsel and delegated the required authority to Mr. Sorrentino to
file this lawsuit and sign the complaint certification.

• Request No. 2: Copy of the Retirement Board’s minutes or decision that allows the
appointment of outside counsel, authorization to file a class action lawsuit on the behalf of
the plan, and disclosure of confidential plan information. The Retirement Board of the
Lehigh County Employees' Retirement System (Retirement System, Pension Plan, or Plan)
should have authorized the disclosure of confidential plan information and the filing of the
lawsuit as it could have negative impact on the plan’s performance.

• Request No. 3: Copy of the County Controller’s authorization or any other document
related to the appointment of outside counsel, filing of a class action lawsuit on behalf of
the plan and disclosure of confidential plan information. The Office of the County Controller
has oversight responsibilities over the plan. The County Controller may also have had to
issue a formal authorization to allow the disclosure of confidential plan investment
information to third parties who are not County employees.

• Request No. 4: Copy of the above-mentioned documents held by the Department of Law
as well as the Department of Law’s document authorizing appointment of outside counsel,
filing of the above-mentioned class action and disclosure of confidential plan information.
Department of Law/County Solicitor must have sought these authorizations in order to
proceed with the appointment of outside counsel, disclosure of confidential plan
information and finally filing of a securities lawsuit that makes very serious accusations
against a large pharmaceutical corporation, thus exposing Lehigh County to possible
liabilities if these accusations of price-fixing were found to have been made in bad faith.

• Request No. 5: It is unlikely but still possible that these matters were discussed during
closed-door executive meetings. If so, we are also requesting information about such
meetings including: date of these meetings, the list of parties involved in these meetings,
and a description of the non-public documents that authorized the above-mentioned
appointment of outside counsel, disclosure of confidential Plan information and filing of the
securities lawsuit against Novo Nordisk.

Page 3 of 4
T1DF is requesting a copy of the above-mentioned records. We have checked all board
meeting minutes of the Retirement Board and Board of County Commissioners in 2015, 2016
and 2017 and could not find any reference to the above matter. We are therefore not able to
provide a more specific description of the County records we are seeking.

This request is made under the Pennsylvania Right to Know Act.

The Act does not require that the request comply with a specific form. Agencies may fulfill
verbal, written or anonymous verbal or written requests for access to records (Section 702).
When made directly to an public employee other than the open records officer, the
employee of an agency shall forward the request for records to the open-records officer
(703).

On February 10, 2018, we forwarded, in writing, via Linkedin Inmail, a similar request to
Catharine Roseberry, Senior Legal Counsel at Lehigh County (attached). Ms. Roseberry did
not apparently comply with the Act. She forwarded our request to the law firm BERNSTEIN
LITOWITZ BERGER & GROSSMANN. This law firm contacted us directly and inquired
regarding this request without actual or apparent authority, from Lehigh County, to interfere
with a right-to-know request made to a Lehigh County Employee. T1DF may address this
breach of the Pennsylvania Right to Know Act under separate copy.

DO YOU WANT COPIES? YES

DO YOU WANT TO INSPECT THE RECORDS? (TBD after disclosure)

DO YOU WANT CERTIFIED COPIES OF RECORDS? NO


____________________________________________________________________________

RIGHT TO KNOW OFFICER:

DATE RECEIVED BY THE AGENCY:

AGENCY FIVE (5)-DAY RESPONSE DUE:

**Public bodies may fill anonymous verbal or written requests. If the requestor wishes to pursue the relief and
remedies provided for in this Act, the request must be in writing. (Section 702.) Written requests need not include an
explanation why information is sought or the intended use of the information unless otherwise required by law.
(Section 703.)

Page 4 of 4
Case 3:17-cv-00209-BRM-LHG Document 1 Filed 01/11/17 Page 1 of 24 PageID: 1

James E. Cecchi Gerald H. Silk


CARELLA, BYRNE, CECCHI, Hannah Ross
OLSTEIN, BRODY & AGNELLO, P.C. Avi Josefson
5 Becker Farm Road BERNSTEIN LITOWITZ BERGER
Roseland, New Jersey 07068 & GROSSMANN LLP
Telephone: (973) 994-1700 1251 Avenue of the Americas
New York, New York 10020
Liaison Counsel for Plaintiff Lehigh County Telephone: (212) 554-1400
Employees’ Retirement System
Counsel for Plaintiff Lehigh County Employees’
Retirement System

UNITED STATES DISTRICT COURT


DISTRICT OF NEW JERSEY

LEHIGH COUNTY EMPLOYEES’ Civil Action No.


RETIREMENT SYSTEM, on behalf of itself and
all others similarly situated,

Plaintiff,

v. COMPLAINT and DEMAND FOR


JURY TRIAL
NOVO NORDISK A/S, LARS REBIEN
SØRENSEN, and JESPER BRANDGAARD,

Defendants.

Plaintiff Lehigh County Employees’ Retirement System (“Plaintiff”), by and through its

counsel, alleges the following upon information and belief, except as to those allegations

concerning Plaintiff, which are alleged upon personal knowledge. Plaintiff’s information and

belief is based upon, inter alia, counsel’s investigation, which includes review and analysis of:

(a) regulatory filings made by Novo Nordisk A/S (“Novo Nordisk” or the “Company”) with the

United States Securities and Exchange Commission (“SEC”); (b) press releases and media

reports issued by and disseminated by the Company; (c) analyst reports concerning Novo

Nordisk; and (d) other public information regarding the Company.


Case 3:17-cv-00209-BRM-LHG Document 1 Filed 01/11/17 Page 2 of 24 PageID: 2

INTRODUCTION

1. This federal securities class action is brought on behalf of all those that purchased

Novo Nordisk American Depositary Receipts (“ADRs”) between April 30, 2015 and October 27,

2016, inclusive (the “Class Period”). The claims asserted herein are alleged against Novo

Nordisk and certain of the Company’s senior executives (collectively, “Defendants”), and arise

under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and

Rule 10b-5 promulgated thereunder.

2. Novo Nordisk is a pharmaceutical company focused on producing insulin and

other diabetes treatments. Other than Novo Nordisk, only a few other companies manufacture

insulin-based medicines, with the main players being Sanofi, Eli Lilly and Merck. To capitalize

on their dominant position in the market, the Company, together with Sanofi, Eli Lilly and

Merck, entered into a collusive agreement to increase the prices of their insulin drugs. Indeed,

the prices of these firms’ insulin products skyrocketed over the past decade in a suspiciously

close and synchronized manner.

3. Throughout the Class Period, Defendants reported impressive revenue, operating

profit growth and sales growth. In addition, Novo Nordisk told investors that the Company

would achieve sales and operating profit growth of between 5% and 9% in 2016, as well as 10%

operating profit growth over the long-term. Further, while certain of Novo Nordisk’s

competitors acknowledged that revenue from their insulin franchises would dwindle given the

increased pricing pressures from pharmacy benefit managers (“PBMs”), powerful middlemen

that buy drugs on behalf of insureds and employers, Novo Nordisk assured investors otherwise.

4. These statements, and similar statements issued throughout the Class Period, were

materially false and misleading. In truth, Novo Nordisk’s reported earnings and forecasts were

2
Case 3:17-cv-00209-BRM-LHG Document 1 Filed 01/11/17 Page 3 of 24 PageID: 3

materially misleading in that they were inflated through the collusive price fixing of the

Company’s insulin drugs. The inflated financial results reported to investors concealed the true

extent of the pricing pressures the Company was experiencing in the U.S., which Novo Nordisk

was only able to conceal by engaging in collusive activity.

5. Investors began to learn the truth regarding Novo Nordisk’s business through a

series of corrective disclosures. On August 5, 2016, the Company announced disappointing

earnings for the second quarter of 2016 because, despite its scheme, Novo Nordisk was finally

unable to conceal the significant pricing pressures it was experiencing across its portfolio.

Significantly, these pricing pressures forced the Company to lower its sales and operating growth

targets for 2016. While CEO Lars Rebien Sørensen assured investors that the Company would

still be able to increase prices in certain instances and reaffirmed Novo Nordisk’s ability to grow

its operating profit at a 10% rate, this news caused the price of the Company’s ADRs to decline

from $55.20 per ADR on August 4 to $49.87 per ADR on August 5, or approximately 10%.

6. On August 8, 2016, Novo Nordisk held a Management Roundtable discussion in

London to provide more details into the Company’s business and pricing strategy. According to

an analyst report issued by Kepler Cheuvreux on August 9 that summarized the Management

Roundtable, the reality is that major net pricing upgrades in the U.S. will be the exception as

opposed to the norm, and that there will be no quick rebound from the Company’s stagnating

growth. This news caused the price of Novo Nordisk ADRs to decline from $49.87 per ADR on

August 5 to $47.13 per ADR on August 8, or nearly 6%.

7. Then, on October 28, 2016, Novo Nordisk cut its long-term profit growth

forecasts by 50%, specifically citing the increased pricing pressures on diabetes drugs in the U.S.

In addition, the Company further cut its 2016 sales growth and operating profit growth targets.

3
Case 3:17-cv-00209-BRM-LHG Document 1 Filed 01/11/17 Page 4 of 24 PageID: 4

Separate from the disappointing earnings, the Company also announced that it received a Civil

Investigative Demand from the U.S. Attorney’s Office for the Southern District of New York

seeking information relating to Novo Nordisk’s contracts and business relationships with PBMs

concerning its insulin products named NovoLog, Novolin and Levemir. On this news, the price

of Novo Nordisk ADRs declined from $40.94 per ADR on October 27 to $35.66 per ADR on

October 28, a decline of roughly 13%. This is the largest decline in the price of Novo Nordisk

ADRs in more than 14 years.

8. Subsequent to the close of the Class Period, on November 3, 2016, Senator Bernie

Sanders and Representative Elijah Cummings sent a letter to the U.S. Department of Justice

calling on federal antitrust regulators to probe illegal collusion by Novo Nordisk and the three

other major insulin producers—Sanofi, Eli Lilly, and Merck—to set the prices for insulin and

other diabetes drugs. In a tacit acknowledgement of its improper conduct, Novo Nordisk

pledged on November 30, 2016 to limit all future drug list price increases to single-digit

percentages.

JURISDICTION AND VENUE

9. The claims asserted herein arise under Sections 10(b) and 20(a) of the Exchange

Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the SEC, 17

C.F.R. § 240.10b-5. This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 and 1337, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa.

10. Venue is proper in this District pursuant to Section 27 of the Exchange Act and 28

U.S.C. § 1391(b). Novo Nordisk maintains its U.S. headquarters in Plainsboro, New Jersey,

which is situated in this District, and the acts and conduct that constitute the violations of law

complained of herein, including the preparation and/or dissemination to the public of materially

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false and misleading information, occurred in this District. In connection with the acts alleged in

this complaint, Defendants, directly or indirectly, used the means and instrumentalities of

interstate commerce, including, but not limited to, the mails, interstate telephone

communications, and the facilities of the national securities markets.

PARTIES

11. Plaintiff Lehigh County Employees’ Retirement System (“Plaintiff”), based in

Pennsylvania, is a defined benefit plan governed under the Taft-Harley Act. Plaintiff provides

retirement, disability and death benefits to workers within the County of Lehigh, Pennsylvania.

Currently, Plaintiff manages approximately $425 million in assets on behalf of approximately

3,600 participants. Plaintiff purchased shares of Novo Nordisk ADRs on the New York Stock

Exchange during the Class Period and suffered damages as a result of the violations of the

federal securities laws alleged herein.

12. Defendant Novo Nordisk is a global healthcare company focused on diabetes care

and is one of the largest producers of insulin medications. Based in Denmark, the Company was

formed in 1989 by a merger of two Danish companies, Nordisk Gentofte A/S and Novo Industri

A/S. The Company maintains its U.S. headquarters at 800 Scudders Mill Road, Plainsboro, New

Jersey 08536. Novo Nordisk ADRs trade on the New York Stock Exchange, which is an

efficient market, under ticker symbol “NVO.” As of December 31, 2015, Novo Nordisk had

over 240 million ADRs outstanding, owned by hundreds or thousands of investors.

13. Defendant Lars Rebien Sørensen (“Sørensen”) is, and was at all relevant times,

President and Chief Executive Officer of Novo Nordisk. On September 1, 2016, Novo Nordisk

announced that Sørensen would resign from the Company by the end of 2016.

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14. Defendant Jesper Brandgaard (“Brandgaard”) is, and was at all relevant times,

Executive Vice President and Chief Financial Officer of Novo Nordisk.

15. Defendants Sørensen and Brandgaard are collectively referred to hereinafter as

the “Individual Defendants.” The Individual Defendants, because of their positions with Novo

Nordisk, possessed the power and authority to control the contents of Novo Nordisk’s reports to

the SEC, press releases, and presentations to securities analysts, money and portfolio managers,

and institutional investors. Each of the Individual Defendants was provided with copies of the

Company’s reports and press releases alleged herein to be misleading prior to, or shortly after,

their issuance and had the ability and opportunity to prevent their issuance or cause them to be

corrected. Because of their positions and access to material non-public information available to

them, each of the Individual Defendants knew that the adverse facts and omissions specified

herein had not been disclosed to, and were being concealed from, the public, and that the positive

representations and omissions which were being made were then materially false and/or

misleading.

BACKGROUND

16. Novo Nordisk is a global healthcare company and one of the most prolific

producers of diabetes medications. Diabetes is a metabolic condition in which a person’s

pancreas cannot produce insulin, a hormone that controls blood sugar levels. Patients with

diabetes—about 30 million in the U.S. and another 360 million worldwide—are primarily treated

through daily injections of insulin. Novo Nordisk derives roughly 80% of its revenues from

selling insulin-based medications. While there are millions of patients with the condition, the

world market for insulin is dominated by just a handful of companies. Those companies are

Novo Nordisk, Sanofi, Eli Lilly and Merck.

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17. To capitalize on their oligopoly, Novo Nordisk and the three other major players

in the insulin market colluded to increase the prices of their drugs. Indeed, according to an

analysis prepared by the Washington Post, over the past two decades, Novo Nordisk was able to

raise the price of its insulin drugs 450% above the rate of inflation. From 2010-2015, the

Company raised the price of its signature diabetes drug (Levemir) by 169%. In 2014-2015 alone

the Company increased Levemir’s price by 30%, and increased the price of its NovoLog product

by nearly 21%. As Novo Nordisk recently admitted, these price increases were so significant

that “many patients simply can’t afford the medicine they need.”

18. Critically, these price increases were closely synchronized with price increases by

the Company’s purported competitors. For instance, on May 30, 2015, Sanofi increased the

price of its diabetes medication Lantus by over 16%. The very next day, Novo Nordisk

increased the price of Levemir by the exact same amount. The pattern repeated itself six months

later when Sanofi again raised the price of Lantus—this time by almost 12%. Novo Nordisk

quickly increased Levemir’s price to exactly match the price of Lantus. In fact, in 13 instances

since 2009, the prices of Levemir and Lantus have increased in tandem in the U.S. As

demonstrated by the chart below, the prices of several insulin drugs have exhibited a series of

significant, and suspiciously timed price increases. The magnitude and timing of the drug price

increases indicate that Novo Nordisk and the few other companies that control the market for

insulin colluded to fix the prices of their drugs.

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19. Novo Nordisk’s strategy was a success and its earnings soared as a result of its

ability to increase prices and sell its products. Indeed, between 2010 and 2015, Novo Nordisk

delivered 12% annual sales growth, 20% growth in operating profit, and 22% growth in earnings.

But after years of consistently raising prices for insulin, Novo Nordisk and the other major

drugmakers began to experience significant pressure from PBMs to cut or flatten their prices and

were unable to continue their scheme.

NOVO NORDISK DEFRAUDS INVESTORS

20. The Class Period starts on April 30, 2015, the day that Novo Nordisk held its

earnings conference call for the first quarter of 2015. On that call, CEO Lars Rebien Sørensen

announced that the Company achieved operating profit growth of 17% (to $2.1 billion) and sales

growth of 9% (to $3.8 billion), primarily driven by success in its North America segment.

Further, CEO Sørensen assured investors that the Company was “not anticipating any pricing

impact in 2015,” and with specific regard to the Company’s Victoza drug, that the Company is in

“a very strong position with a gold standard product, one should expect that we will hold our

position firm on [] pricing.”

21. In fact, a Danske Bank analyst specifically asked Novo Nordisk on April 30

whether it could still “come back to double-digit growth in the insulin market” given that the

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Company’s competitors were reporting weak underlying growth of “between 1% and 2%” which

was due in large part to “the pressure on prices in U.S.” However, CEO Sørensen simply

dismissed the analyst’s concerns and told investors that despite the pricing pressures, the

Company will still be able to “achieve 10% or more top-line growth in the diabetes market.”

22. The statements and omissions set forth in ¶¶20-21 were materially false and

misleading. In truth, Novo Nordisk’s reported earnings and growth targets were based on the

collusive price fixing of the Company’s insulin drugs. The Company was also experiencing

significant pricing pressures in the U.S. and was only able to conceal those pressures by

engaging in collusive price fixing.

23. On August 6, 2015, the Company held its earnings conference call for the second

quarter of 2015. During that call, CEO Sørensen reported growth of 16% in operating profit (to

$3.9 billion) as well as growth of 9% in sales (to $7.8 billion) for the first six months of 2015.

The growth was driven by strength in the Company’s North America operations and, in

particular, increased sales of Victoza and Levemir. With regard to the pricing of the Company’s

drugs, CEO Sørensen stated that the Company experienced “flat pricing” due to “the strong

performance of Victoza, where we have pricing power because we are the gold standard in that

market. When we look at insulins going forward, we are looking at full-year expectations from

flat to slight positive pricing.”

24. Further, CFO Brandgaard stated on August 6 that “there is a positive impact on

our gross margin to the magnitude of 50 basis points . . . basically coming from an overall higher

sales . . . [of] higher value products. And that trend is expected to continue into second half and

potentially also 2016.”

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25. The statements and omissions set forth in ¶¶23-24 were materially false and

misleading. In truth, Novo Nordisk was experiencing significant pricing pressure in the U.S. and

was only able to report “flat pricing” for its drugs because the Company entered into collusive

agreements with its purported competitors. What’s more, the Company’s reported revenue,

operating profit, sales growth, and margins were overstated in that they were based on collusive

price fixing.

26. The Company held its earnings conference call for the third quarter of 2015 on

October 29, 2015. On that call, CEO Sørensen touted that the Company achieved 9% sales

growth (to $11.8 billion) and 16% operating profit growth (to $5.7 billion) in the first nine

months of 2015 driven in part by strength in Novo Nordisk’s North America business, with the

“highest contribution coming from Victoza and Levemir.” CEO Sørensen also told investors that

the Company expected to achieve mid-to-high single-digit sales growth in 2016, as well as a 3%

increase in pricing.

27. According to CFO Brandgaard, the Company expected to achieve sales growth

for 2015 of 7% to 9%, along with operating profit growth of roughly 20%. CFO Brandgaard

also reiterated that the Company expected to achieve mid-to-high single-digit sales growth in

2016, and that Novo Nordisk expected operating profit growth to increase by the same amount.

According to Brandgaard, this “reflect[s] expectations for continued robust performance of the

portfolio of modern insulins, Tresiba and Victoza.”

28. The statements and omissions set forth in ¶¶26-27 were materially false and

misleading. In truth, Novo Nordisk’s expected growth in sales and operating profit were not

based on the “robust performance of the portfolio of modern insulins,” but rather, the Company’s

assumption that it would continue to collude with its competitors. Further, Novo Nordisk knew

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that it would not be able to increase prices by 3% but-for such collusive activity. The

Company’s sales growth, operating profit growth, and revenue metrics were also materially false

and misleading in that they were based on Novo Nordisk’s collusive agreements to control the

prices of insulin.

29. Further, on February 3, 2016, the Company held its earnings conference call for

the fourth quarter and full year of 2015, during which CEO Sørensen announced operating profit

growth of 14% (to $7.4 billion) and sales growth of 8% (to $16 billion), again driven by strength

in the Company’s North America operations, “with the largest contributions coming from

Victoza and Levemir.” CEO Sørensen also told investors that the Company would achieve 10%

operating profit growth over the long-term.

30. According to CFO Brandgaard, sales and operating profit growth in 2016 would

be between 5% and 9%, but would reach or exceed 10% over the long-term, “reflecting the

current outlook for organic sales growth and the opportunities for operating margin leverage.”

CFO Brandgaard further stated that “if you look to 2015 and become very concrete, then you

could say in 2015 we basically had no effect from prices on our average gross margin.”

31. The statements and omissions set forth in ¶¶29-30 were materially false and

misleading. In truth, the Company’s revenue and earnings metrics were inflated as a result of its

collusive activity. Further, Novo Nordisk’s operating profit and sales growth for 2016 and over

the long-term would be unachievable but-for its scheme given the significant pricing pressures it

was facing in the U.S.

32. Novo Nordisk held its earnings conference call for the first quarter of 2016 on

April 29, 2016. On that day, CEO Sørensen announced that the Company achieved sales growth

of 9% (to $4 billion) and operating profit growth of 10% (after adjusting for a partial divestment

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of a division) driven by strength in the Company’s operations in the United States and

particularly Victoza and Levemir. CEO Sørensen also reiterated that the Company expected to

achieve sales and operating profit growth of between 5% and 9% in 2016. Further, according to

Sørensen, the Company sees “still quite strong growth of Levemir in the U.S. . . . There is some

volume, but there is also a price effect. We took a price increase last year.”

33. Defendant Brandgaard reiterated that the Company expected to achieve 5%-9% in

sales and operating profit growth in 2016 given “a continued robust performance for our modern

insulins . . . Victoza and Tresiba.”

34. The statements and omissions set forth in ¶¶32-33 were materially false and

misleading. In truth, Novo Nordisk’s reported earnings and forecasts were inflated in that they

were based on the collusive price fixing of the Company’s insulin drugs. The Company was also

experiencing significant pricing pressures in the U.S. and was only able to conceal those

pressures by engaging in collusive activity.

DISCLOSURES OF COMPANY’S MISCONDUCT CAUSE MASSIVE INVESTOR


LOSSES

35. On August 5, 2016, the Company announced disappointing earnings for the

second quarter of 2016 because, despite its scheme, it was finally unable to withstand the

intensifying pricing pressure from PBMs. Indeed, the Company announced that the prices of its

drugs—which have been perpetually increasing—would likely be “moderately lower” in 2017.

In fact, Novo Nordisk reported increasing pricing pressure across a broad swath of the

Company’s insulin portfolio.

36. Novo Nordisk also narrowed its forecasts for sales growth to 5%-7% (from 5%-

9%) and operating profit growth to 5%-8% (from 5%-9%) for the year. Also weighing on Novo

Nordisk’s growth is the fact that it lost a significant contract with Express Scripts, the largest

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PBM in the U.S., which refused to cover a number of the Company’s diabetes medications,

including Victoza, Novolin, and NovoLog. Novo Nordisk also lost a contract with

UnitedHealth, another large U.S. PBM, for the Company’s NovoLog product, apparently

because UnitedHealth would no longer pay exorbitant prices for the Company’s drugs.

37. According to an analyst report issued by Deutsche Bank on August 5, the fact that

Novo Nordisk finally acknowledged the “elephant in the room” with regard to the intensifying

pricing pressure “unnerved” investors and “created a stampede.” Similarly, an analyst report

issued by SEB Equities on August 8, stated that “it is [] evident that Novo had to offer large

discounts across its franchise in order to maintain market access” and it is an “ongoing challenge

for Novo Nordisk to convince the largest PBM in the US market, Express Scripts, to include its

products on their national drug lists.”

38. Nevertheless, CEO Sørensen attempted to assure investors by telling them that

“we will see. . . more support for growth” coming from many of the Company’s products. “We

see very strong script growth, we see relatively more stable pricing, even in some instances

opportunities to raise net price slightly. . . I still think it is reasonable for us to have as an

ambition, to grow our diabetes portfolio with 10%.” Despite the Company’s assurances, the

Company’s disappointing earnings and slowing growth caused the price of the Company’s ADRs

to decline from $55.20 per ADR on August 4 to $49.87 per ADR on August 5, or approximately

10%.

39. On August 8, 2016, the Company held a Management Roundtable discussion in

London to attempt to provide more clarity into the Company’s business and pricing strategy.

According to an analyst report issued by Kepler Cheuvreux on August 9 that summarized the

Management Roundtable, the reality is that major net pricing upgrades in the U.S. will be the

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exception as opposed to the norm, and that there will be no quick rebound from the Company’s

stagnating growth. On this news, the price of Novo Nordisk ADRs dropped from $49.87 per

ADR on August 5 to $47.13 per ADR on August 8, or nearly 6%.

40. Less than a month later, on September 1, 2016, Novo Nordisk announced that

CEO Sørensen would resign from the Company by the end of 2016. The announcement was

particularly surprising given that the Board decided just a few months earlier that Sørensen

should remain in the CEO role until his contract expires in 2019. The Company also announced

a number of other executive changes on September 1, including the resignation of Kesper

Hoeiland, the head of the Company’s North America Operations. According to an analyst report

issued by Morgan Stanley on September 1, given the Company’s “very stable and conservative

organization,” the executive changes reflect Novo Nordisk’s “unprecedented challenges such as

US payer pressure and increased competition.”

41. Then, on October 28, 2016, Novo Nordisk announced its second consecutive

quarter of disappointing earnings and cut its long-term profit-growth forecasts by 50%,

specifically citing the increased pricing pressures on diabetes drugs in the U.S. The Company

reported that it expects its long-term profit to grow at a rate of 5% annually, down from the 10%

that Novo Nordisk told investors to expect in February 2016. In addition, the Company also cut

for the second time in as many quarters its 2016 sales growth (from 5%-7% to 5%-6%) and

operating profit growth targets (from 5%-8% to 5%-7%). The Company also stated that it

expects flat to low single-digit percentage growth in operating profit in 2017, and low single-

digit percentage growth in sales for 2017. Given the pricing pressures, Novo Nordisk was forced

to significantly cut costs and reduce the amount that it is able to invest in researching and

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developing new drugs. According to an analyst report issued by Leerink, “NVO mgmt. finally

owned up to the significant challenges it faces in the years ahead.”

42. Separate from the disappointing earnings, the Company also announced on

October 28 that it received a Civil Investigative Demand from the U.S. Attorney’s Office for the

Southern District of New York seeking information relating to Novo Nordisk’s contracts and

business relationships with PBMs concerning its insulin products named NovoLog, Novolin and

Levemir. On this news, the price of Novo Nordisk ADRs declined from $40.94 per ADR on

October 27 to $35.66 per ADR on October 28, a decline of roughly 13%. This was the largest

decline in the price of Novo Nordisk ADRs in more than 14 years.

43. Subsequent to the close of the Class Period, on November 3, 2016, Senator Bernie

Sanders and Representative Elijah Cummings sent a letter to the U.S. Department of Justice

calling on federal antitrust regulators to probe whether Novo Nordisk and the three other major

insulin producers—Sanofi, Eli Lilly, and Merck—colluded to set the prices for insulin and other

diabetes drugs. That letter specifically cited to the skyrocketing prices of insulin over the past 15

years, acknowledged that many of the price increases occurred at the same time, and questioned

the true reasons for the price increases. In a clean break from its anticompetitive scheme, Novo

Nordisk committed on November 30, 2016 to limit all future drug list price increases to single

digit percentages.

LOSS CAUSATION

44. During the Class Period, as detailed herein, Defendants made materially false and

misleading statements and omissions, and engaged in a scheme to deceive the market. This

artificially inflated the price of Novo Nordisk ADRs and operated as a fraud or deceit on the

Class. Later, when Defendants’ prior misrepresentations and fraudulent conduct were disclosed

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to the market on August 5, 2016, August 8, 2016, and October 28, 2016, the price of Novo

Nordisk ADRs fell precipitously, as the prior artificial inflation came out of the price over time.

As a result of their purchases of Novo Nordisk ADRs during the Class Period, Plaintiff and other

members of the Class suffered economic loss, i.e., damages, under the federal securities laws.

CLASS ACTION ALLEGATIONS

45. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal

Rules of Civil Procedure on behalf of all persons who purchased or otherwise acquired the ADRs

of Novo Nordisk during the Class Period (the “Class”). Excluded from the Class are Defendants

and their families, directors, and officers of Novo Nordisk and their families and affiliates.

46. The members of the Class are so numerous that joinder of all members is

impracticable. The disposition of their claims in a class action will provide substantial benefits

to the parties and the Court. As of December 31, 2015, Novo Nordisk had over 240 million

ADRs outstanding, owned by hundreds or thousands of investors.

47. There is a well-defined community of interest in the questions of law and fact

involved in this case. Questions of law and fact common to the members of the Class which

predominate over questions which may affect individual Class members include:

(a) Whether Defendants violated the Exchange Act;

(b) Whether Defendants omitted and/or misrepresented material facts;

(c) Whether Defendants’ statements omitted material facts necessary in order

to make the statements made, in light of the circumstances under which they were made, not

misleading;

(d) Whether Defendants knew or recklessly disregarded that their statements

and/or omissions were false and misleading;

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(e) Whether the price of Novo Nordisk ADRs was artificially inflated;

(f) Whether Defendants’ conduct caused the members of the Class to sustain

damages; and

(g) The extent of damage sustained by Class members and the appropriate

measure of damages.

48. Plaintiff’s claims are typical of those of the Class because Plaintiff and the Class

sustained damages from Defendants’ wrongful conduct.

49. Plaintiff will adequately protect the interests of the Class and has retained counsel

experienced in class action securities litigation. Plaintiff has no interests which conflict with

those of the Class.

50. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy.

INAPPLICABILITY OF STATUTORY SAFE HARBOR

51. Novo Nordisk’s “Safe Harbor” warnings accompanying its forward-looking

statements issued during the Class Period were ineffective to shield those statements from

liability.

52. Defendants are also liable for any false or misleading forward-looking statements

pleaded herein because, at the time each such statement was made, the speaker knew the

statement was false or misleading and the statement was authorized and/or approved by an

executive officer of Novo Nordisk who knew that the statement was false. None of the historic

or present tense statements made by Defendants were assumptions underlying or relating to any

plan, projection, or statement of future economic performance, as they were not stated to be such

assumptions underlying or relating to any projection or statement of future economic

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performance when made, nor were any of the projections or forecasts made by Defendants

expressly related to, or stated to be dependent on, those historic or present tense statements when

made.

PRESUMPTION OF RELIANCE

53. At all relevant times, the market for Novo Nordisk’s ADRs was an efficient

market for the following reasons, among others:

(a) Novo Nordisk ADRs met the requirements for listing, and were listed and

actively traded on the New York Stock Exchange, a highly efficient and automated market;

(b) As a regulated issuer, Novo Nordisk filed periodic public reports with the

SEC and the New York Stock Exchange;

(c) Novo Nordisk regularly and publicly communicated with investors via

established market communication mechanisms, including through regular disseminations of

press releases on the national circuits of major newswire services and through other wide-

ranging public disclosures, such as communications with the financial press and other similar

reporting services; and

(d) Novo Nordisk was followed by several securities analysts employed by

major brokerage firm(s) who wrote reports which were distributed to the sales force and certain

customers of their respective brokerage firm(s). Each of these reports was publicly available and

entered the public marketplace.

54. As a result of the foregoing, the market for Novo Nordisk ADRs promptly

digested current information regarding Novo Nordisk from all publicly available sources and

reflected such information in the price of Novo Nordisk ADRs. Under these circumstances, all

purchasers of Novo Nordisk ADRs during the Class Period suffered similar injury through their

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purchase of Novo Nordisk ADRs at artificially inflated prices and the presumption of reliance

applies.

55. A Class-wide presumption of reliance is also appropriate in this action under the

Supreme Court’s holding in Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128

(1972), because the Class’ claims are grounded on Defendants’ material omissions. Because this

action involves Defendants’ failure to disclose material adverse information regarding Novo

Nordisk’s sales of insulin—information that Defendants were obligated to disclose—positive

proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld

be material in the sense that a reasonable investor might have considered them important in

making investment decisions. Given the importance of Novo Nordisk’s insulin business, as set

forth above, that requirement is satisfied here.

COUNT I
For Violation of Section 10(b) of the Exchange Act and Rule 10b-5 Against All Defendants

56. Plaintiff repeats and realleges each and every allegation contained above as if

fully set forth herein.

57. During the Class Period, Defendants carried out a plan, scheme, and course of

conduct which was intended to and, throughout the Class Period, did: (i) deceive the investing

public, including Plaintiff and other Class members, as alleged herein; and (ii) cause Plaintiff and

other members of the Class to purchase Novo Nordisk ADRs at artificially inflated prices.

58. Defendants (i) employed devices, schemes, and artifices to defraud; (ii) made

untrue statements of material fact and/or omitted to state material facts necessary to make the

statements not misleading; and (iii) engaged in acts, practices, and a course of business which

operated as a fraud and deceit upon the purchasers of the Company’s ADRs in an effort to

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maintain artificially high market prices for Novo Nordisk ADRs in violation of Section 10(b) of

the Exchange Act and Rule 10b-5 promulgated thereunder.

59. Defendants, individually and in concert, directly and indirectly, by the use, means

or instrumentalities of interstate commerce and/or of the mails, engaged and participated in a

continuous course of conduct to conceal adverse material information about the Company’s

financial well-being, operations, and prospects.

60. During the Class Period, Defendants made the false statements specified above,

which they knew or recklessly disregarded to be false or misleading in that they contained

misrepresentations and failed to disclose material facts necessary in order to make the statements

made, in light of the circumstances under which they were made, not misleading.

61. Defendants had actual knowledge of the misrepresentations and omissions of

material fact set forth herein, or recklessly disregarded the true facts that were available to them.

Defendants engaged in this misconduct to conceal Novo Nordisk’s true condition from the

investing public and to support the artificially inflated prices of the Company’s ADRs.

62. Plaintiff and the Class have suffered damages in that, in reliance on the integrity

of the market, they paid artificially inflated prices for Novo Nordisk ADRs. Plaintiff and the

Class would not have purchased the Company’s ADRs at the prices they paid, or at all, had they

been aware that the market prices for Novo Nordisk ADRs had been artificially inflated by

Defendants’ fraudulent course of conduct.

63. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiff and

the other members of the Class suffered damages in connection with their respective purchases

of the Company’s ADRs during the Class Period.

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64. By virtue of the foregoing, Defendants violated Section 10(b) of the Exchange

Act and Rule 10b-5 promulgated thereunder.

COUNT II
For Violation of Section 20(a) of the Exchange Act Against the Individual Defendants

65. Plaintiff repeats, incorporates, and realleges each and every allegation set forth

above as if fully set forth herein.

66. The Individual Defendants acted as controlling persons of Novo Nordisk within

the meaning of Section 20(a) of the Exchange Act. By virtue of their high-level positions,

participation in and/or awareness of the Company’s operations, direct involvement in the day-to-

day operations of the Company, and/or intimate knowledge of the Company’s actual

performance, and their power to control public statements about Novo Nordisk, the Individual

Defendants had the power and ability to control the actions of Novo Nordisk and its employees.

By reason of such conduct, the Individual Defendants are liable pursuant to Section 20(a) of the

Exchange Act.

WHEREFORE, Plaintiff prays for judgment as follows:

A. Determining that this action is a proper class action under Rule 23 of the Federal

Rules of Civil Procedure;

B. Awarding compensatory damages in favor of Plaintiff and other Class members

against all Defendants, jointly and severally, for all damages sustained as a result

of Defendants’ wrongdoing, in an amount to be proven at trial, including interest

thereon;

C. Awarding Plaintiff and the Class their reasonable costs and expenses incurred in

this action, including attorneys’ fees and expert fees; and

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D. Awarding such equitable/injunctive or other further relief as the Court may deem

just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

DATED: January 11, 2017

/s/ James E. Cecchi


CARELLA, BYRNE, CECCHI, OLSTEIN,
BRODY & AGNELLO, P.C.
James E. Cecchi
5 Becker Farm Road
Roseland, New Jersey 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
jcecchi@carellabyrne.com

Liaison Counsel for Plaintiff Lehigh County


Employees’ Retirement System

BERNSTEIN LITOWITZ BERGER


& GROSSMANN LLP
Gerald H. Silk (pro hac vice forthcoming)
Hannah Ross (pro hac vice forthcoming)
Avi Josefson (pro hac vice forthcoming)
1251 Avenue of the Americas
New York, New York 10020
Telephone: (212) 554 1400
Facsimile: (212) 554 1444
jerry@blbglaw.com
hannah@blbglaw.com
avi@blbglaw.com

Counsel for Plaintiff Lehigh County


Employees’ Retirement System

22
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JS 44 (Rev. 0 /16) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS


Lehigh County Employees' Retirement System Novo Nordisk A/S, Lars Rebien Sørensen and Jesper Brandgaard

(b) County of Residence of First Listed Plaintiff Lehigh County, PA County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
James E. Cecchi, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C.,
5 Becker Farm Road, Roseland, NJ 07068;
Email: jcecchi@carellabyrne.com; Tel: 973-994-1700

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6


Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation
Student Loans 340 Marine Injury Product 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange
195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts
362 Personal Injury - Product Liability Leave Act 893 Environmental Matters
Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. §§ 78j(b) and 78t(a)
VI. CAUSE OF ACTION Brief description of cause:
Violations of the federal securities laws
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
01/11/2017 /s/ James E. Cecchi
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


Case 3:17-cv-00209-BRM-LHG Document 1-1 Filed 01/11/17 Page 2 of 2 PageID: 26
JS 44 Reverse (Rev. 0 /16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44


Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
From: Charles Fournier charles.fournier@t1df.org
Subject: Call regarding Lehigh County Employees’ Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)(LHG)
Date: February 15, 2018 at 1:21 PM
To: hannah@blbglaw.com
Cc: Boss Julia julia.boss@t1df.org

Dear Ms. Ross,

I received a call from your law firm yesterday morning while I was boarding a plane in San Francisco. The call concerned a request I
made to a Lehigh County employee pursuant to Pennsylvania’s Right to Know Law. That request is related to a case your firm filed
in January 2017: Lehigh County Employees’ Retirement System vs. Novo Nordisk, Case No. Case 3:17-cv-00209 (BRM)(LHG)

Would you please confirm that you are the person who called me?

If not, would you please let me know the name and contact details of the person who made that call.

Regards,

Charles Fournier, J.D.


Vice President
Type 1 Diabetes Defense Foundation
Charles.Fournier@t1df.org
(206) 643-1479

@t1df_advocacy
https://twitter.com/t1df_advocacy
https://www.linkedin.com/company/10518969/
https://www.facebook.com/T1DefenseFoundation/
www.t1df.org
ATTACHMENT B

LEHIGH COUNTY’S MARCH, 23 2018, RESPONSE