Is Valeant Pharmaceuticals the Next Enron?

Before Pearson took control of Valeant, it spent 14 percent of its revenue developing new drugs. Last year, that number was under 3 percent. Meanwhile, Pearson has been ruthless about price hikes; in February, according to The Wall Street Journal, the company raised the price of one heart drug by 525 and another by 212 percent — on the very day it acquired the rights to the drugs. Complaints from patients, doctors and insurance companies have prompted investigations by federal prosecutors in Massachusetts and New York.

In the seven years Pearson has run the company, Valeant has done more than 100 deals. Its growth has been supercharged, and so has its stock price. Pearson has become a billionaire.

Fast forward to Oct. 19. During a conference call with investors, Valeant disclosed a relationship with a specialty pharmacy called Philidor RX Services, a relationship in which Philidor seemingly does business with no one besides Valeant, and that is so close that Valeant consolidates Philidor’s financials while holding Philidor’s inventory on its books. During the call, Valeant also disclosed that it had paid for an option to buy Philidor, though it had not actually made the purchase — a very strange deal indeed.

It made these disclosures because Roddy Boyd, a former New York Post reporter who now runs the Southern Investigative Reporting Foundation, had found out about the Philidor relationship and begun asking questions. So had several Wall Street critics of the company, including John Hempton of Bronte Capital.

Valeant’s disclosures last week — along with subsequent allegations by Citron Research that Valeant was cooking the books — as well as stories by Boyd and several others have caused the stock to tank.

On Monday, Pearson and his executive team held a lengthy conference call with investors in which they insisted Valeant had complied with “applicable law.” But Valeant also announced that a committee of the board would investigate the ties with Philidor. And it urged the S.E.C. to investigate Citron. This was also a tactic Biovail once used to silence its critics; it backfired spectacularly when the S.E.C. concluded that the critics were the ones who had it right.

It is difficult, if not impossible, to understand all the implications of the Philidor-Valeant relationship, or whether anything genuinely illegal has taken place. But the whole thing looks pretty, well, sleazy.

As The Times’s Andrew Pollack pointed out last week, Valeant uses Philidor to keep patients from getting generics instead of its high-priced drugs. Philidor negotiates directly with the insurance companies, saving patients from feeling the sticker shock their price hikes would otherwise cause. The co-pay is often waived, which only adds to the allure of using Philidor.

The evidence strongly suggests that Philidor is controlled by Valeant, even though it is supposed to be an independent company. The Wall Street Journal reported that certain Valeant employees work at Philidor using fake names.

But why? And why did Valeant fail to disclose the relationship for so long? If there was really nothing wrong, why did Valeant keep it a secret? Why, even now, are there more questions than answers?

Maybe it will all turn out to be innocent. But I remember another company that Wall Street once swooned over, a company that had eye-popping growth, but also had secrets, which eventually destroyed it.

You probably remember that company, too. Its name was Enron.

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The Patent Troll Smokescreen

But what if, in the name of cracking down on trolls, Congress passes an anti-troll law that winds up having huge negative consequences for legitimate inventors? What if a series of Supreme Court rulings make matters worse, putting onerous burdens on inventors while making it easier for big companies to steal unlicensed innovations?

As it happens, thanks to the 2011 America Invents Act and those rulings, big companies can now largely ignore legitimate patent holders.

Of course, they don’t call it stealing. But according to Robert Taylor, a patent lawyer who has represented the National Venture Capital Association, a new phrase has emerged in Silicon Valley: “efficient infringing.” That’s the relatively new practice of using a technology that infringes on someone’s patent, while ignoring the patent holder entirely. And when the patent holder discovers the infringement and seeks recompense, the infringer responds by challenging the patent’s validity.

Should a lawsuit ensue, the infringer, often a big tech company, has top-notch patent lawyers at the ready. Because the courts have largely robbed small inventors of their ability to seek an injunction — that is, an order requiring that the infringing product be removed from the market — the worst that can happen is that the infringer will have to pay some money. For a rich company like, say, Apple, that’s no big deal.

What got me thinking about this was, in fact, a recent lawsuit between Apple and WARF over a University of Wisconsin innovation that Apple uses to help speed the processing time of several versions of the iPhone and iPad. Apple not only couldn’t be bothered to license the patent; it wouldn’t even let WARF in the door to negotiate. Instead, Apple sent the foundation a link to a page on the Apple website, which says that the company can lay claim to any unsolicited idea. So WARF sued. What choice did it have?

Last week, a jury ruled in WARF’s favor and then ordered Apple to pay some $234 million. Although I hear that WARF is pleased with the outcome, Apple is actually the big winner. Thanks to efficient infringing, WARF never had the chance to grant an exclusive license to an Apple competitor, which could have hurt Apple while maximizing WARF’s financial gain. WARF had to resort to expensive litigation to get what it should have been able to achieve through less expensive negotiation. And, of course, $234 million is pocket change for Apple. This is “patent reform”?

There are new patent reform bills in both the House and the Senate that are once again allegedly aimed at trolls — but will, once again, effectively tilt the playing field even further toward big companies with large lobbying budgets.

“This is not about trolls,” says Brian Pomper, the executive director of the Innovation Alliance, which supports inventors. “Trolls are a fantastic narrative for companies that want to get their patents cheaper.” The recent changes in patent law also show “how big companies can use Washington to get a business advantage,” he added.

For the sake of real innovation, and in the name of the small inventor, who holds a special place in America’s mythology, the pendulum needs to start swinging in the other direction.

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Gender Gap: A Disadvantaged Start Hurts Boys More Than Girls

By the time boys from poor neighborhoods start kindergarten, they are already less prepared than their sisters. The gap keeps widening: They are more likely to be suspended, skip school, perform poorly on standardized tests, drop out of high school, commit crimes as juveniles and have behavioral or learning disabilities.

Boys tend to have more discipline problems than girls over all. But the difference is much bigger for black and Latino children — and more than half of the difference is because of poverty and related problems, the researchers found. For instance, while boys in well-off families have almost the same test scores as their sisters, the gap is more than three times as large in the most disadvantaged families, the study found. While well-off boys are 3.1 percentage points less likely than their sisters to be ready for kindergarten, the most disadvantaged boys are 8.5 percentage points less likely.

The pattern is clear at Astor School, a kindergarten through eighth grade public school in a low-income part of Portland, Ore. More than half the students are economically disadvantaged, and nearly half are minorities.

Photo

Tiger Crowley, 4, center, with his family. According to his mother, self-discipline has been more of a struggle for him than for his older sisters. Credit Carl Kiilsgaard for The New York Times

Girls generally enter kindergarten with skills suited to doing well in school, like sitting still and using a pencil, while many boys act younger, having trouble listening to adults and controlling their impulses, said Jeff Knoblich, the school counselor.

“Boys get a message from a very young age to be a man, and to be a man means you’re strong and you don’t cry and you don’t show your emotions,” he said. “I see boys suffering because of that, and a lot of that comes out in aggressive behaviors.”

Problems in elementary school have long-term effects. Early suspensions are strongly correlated with not graduating from high school. The modern economy relies on skills like cooperation, empathy and resilience — and many boys are entering the work force poorly equipped to compete.

The researchers — who also included David Autor and Melanie Wasserman of M.I.T., Krzysztof Karbownik of Northwestern and Jeffrey Roth of the University of Florida — examined various reasons boys could be falling behind. By analyzing brothers and sisters in about 150,000 households using databases from the health and education departments in Florida, they could control for differences in families.

They concluded that boys aren’t born this way. Babies of low-income mothers are less healthy, but the boys are not worse off than the girls.

Though disadvantaged children are more likely to be in underperforming schools or neighborhoods with drugs and violence, this alone does not explain the gender gap, the researchers said. Even in the same neighborhood and schools and for children of the same race, the gender gap is wider in less-advantaged families.

“Boys particularly seem to benefit more from being in a married household or committed household — with the time, attention and income that brings,” Mr. Autor said.

The researchers compared families based on whether the parents were single or coupled, and also looked at the education level of the mother, the income of the neighborhood and the quality of the school. They said they could not isolate which variable mattered most, probably because they are all intertwined.

But they said there were clues to why boys are extra sensitive to disadvantage. A big one is that impoverished households are more likely to be led by single mothers, and boys suffer from a lack of male role models.

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Osama Bin Laden’s First Draft

Yet the pushback Mahler has received — from Bowden, from Bergen, and especially in the Twittersphere — has been remarkably vehement. Bowden isn’t just upset with Mahler’s story; he’s furious. When I spoke to him, he denounced it as having bought into “crackpot conspiracy theories.”

“I’ve spent a lifetime trying to figure out how things actually happen,” he said. “Stories like this make me feel that it is a losing battle against pure speculation, and theories that are concocted” out of thin air.

When I asked him whether government officials might have held things back, or distorted the truth, Bowden quickly rejected the idea. He had too many different sources, he said. Too many people would have had to have told him the same set of lies. “It strains credulity to the breaking point.”

But does it? I recall my own experience writing a book about events that took place in the government. In the fall of 2010, Bethany McLean and I published “All The Devils Are Here,” about the 2008 financial crisis. After many interviews with current and former officials at the Treasury Department and the Federal Reserve, we wrote our account of events that are murky to this day, most obviously why the government let Lehman Brothers fail.

In the intervening five years, new information has come out. Most recently, Ben Bernanke, the former Fed chairman, admitted that he and Hank Paulson, the former Treasury secretary, had been less than forthcoming about the reasons for Lehman’s failure. That information was not in our book because Bernanke and Paulson withheld it.

Bowden’s book was published 18 months after the Bin Laden raid. All things considered, that is not a lot of time. Having been there myself, it strikes me as inevitable that facts will emerge later that add to — or contradict — the original narrative. Bowden wrote the best book he could under the circumstances; there is no shame in that. To suggest that Bowden may not have been told everything hardly means that The New York Times Magazine is buying into some far-fetched conspiracy theory.

We are lucky to have narratives like “The Finish,” which is a great read and as close to the truth as Bowden could get. But is every fact set in concrete? Surely not. Journalism is “the first rough draft of history,” as the old saying goes. In the modern age, that’s as true for books as for any other form of journalism.

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Can E-Cigarettes Save Lives?

Two weeks ago, I received an email from NJOY, a company that sells electronic cigarettes. Its purpose was to introduce the Daily, a new product that NJOY described as “a superior e-cigarette scientifically developed to deliver quick-and-strong nicotine satisfaction at levels close to an actual cigarette.”

One reason many adult smokers haven’t switched to e-cigarettes is that most e-cigarettes don’t provide the same nicotine kick as a real cigarette. With some 42 million American adults still smoking, and 480,000 of them dying each year as a result, this is tragic. Though nicotine is addictive, it is the tobacco that kills.

An e-cigarette that could truly replicate the experience of smoking would dramatically reduce — not eliminate, but reduce — the dangers of smoking. NJOY claims that the Daily comes closer to that experience than anything on the market. When I spoke to Paul Sturman, NJOY’s chief executive, he emphasized not only the nicotine aspect, but also the Daily’s “feel,” and “the intensity of the hit to the back of the throat.” Sturman added that the company’s target market is adult smokers who have tried, but rejected, e-cigarettes. He thinks it’s a huge market.

As Sturman was describing the Daily, I thought to myself, “The tobacco-control community is going to hate this thing.” Most anti-tobacco advocates view replicating the feel and satisfaction of a cigarette as an effort to “renormalize smoking.” And though some believe that smokers should be encouraged to move to e-cigarettes, most refuse even to acknowledge the health benefits of “vaping” over smoking.

Indeed, thanks to this vociferous opposition, an increasing number of Americans view vaping as no safer than smoking, which is absurd. And e-cigarette manufacturers like NJOY can’t set them straight: The law giving the Food and Drug Administration regulatory authority over tobacco products, which passed in 2009, prohibits e-cigarette companies from making reduced-harm claims unless they jump through some near-impossible hoops. Thus, NJOY has no way to convey to adult smokers the critical message that e-cigarettes could save their lives.

The undisputed leader of the tobacco-control community is Matt Myers, who helped found and is the president of the Campaign for Tobacco-Free Kids. Unlike many of his anti-tobacco peers, Myers is on the record as saying that if “responsibly marketed and properly regulated, e-cigarettes could benefit the public health.” But, like many others, he also fears that e-cigarettes may hook a new generation of children on nicotine, and could lead them to start smoking. And in truth, those fears get far more prominence in the Campaign for Tobacco-Free Kids’ various statements about e-cigarettes than its cautious support for them under the right circumstances.

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Aaron Sorkin’s ‘Steve Jobs’ Con

Although this structure necessitates inventing virtually every moment in the film out of whole cloth, that’s not the real problem. The structure would be fine if, within its contours, it had conveyed the complicated reality of Steve Jobs.

But it doesn’t. In ways both large and small, Sorkin — as well as Michael Fassbender, the actor who plays Jobs — has failed to capture him in any meaningful sense. Fassbender exhibits none of Jobs’s many youthful mannerisms, and uses none of his oft-repeated phrases, like “really, really neat” when he liked something, or “bozo” for people he didn’t think measured up. Jobs as a young man was surprisingly emotional — that’s missing.

There are moments in the film, like the big “reconciliation” scene with his out-of-wedlock daughter, Lisa, that are almost offensively in opposition to the truth. (Although Jobs’s relationship with Lisa could be volatile at times, she had in fact lived with him and his family all through high school.)

More important, the film simply doesn’t understand who he was and why he was successful.

For instance, one character mentions Jobs’s ability to create a “reality distortion field.” But we never see the charismatic man who could convince people that the sky was green instead of blue. Especially in the NeXT section, Sorkin’s Jobs is a cynic who knows his product will fail, rather than the dreamer he was, certain his overpriced NeXT machine will “change the world.” Most important, Sorkin fails to convey Jobs’s unmatched ability to draw talented people to him, and get them to produce their best work.

As it turns out, Sorkin is quite proud of his disregard for facts. “What is the big deal about accuracy purely for accuracy’s sake?” he told New York magazine around the time “The Social Network” came out. The way he sees it, he is no mere screenwriter; rather, he’s an artist who can’t be bound by the events of a person’s life — even when he’s writing a movie about that person.

“Art isn’t about what happened,” he said in that interview. “And the properties of people and the properties of ‘characters’ are two completely different things.”

The problem is that Steve Jobs isn’t just a “character”; he was a real person who lived a real life. Tom Mallon, who writes wonderful historical fiction about politics, including books about Watergate, and most recently, Ronald Reagan, told me that he thought it was important, even in his fiction, not to rewrite the public record, and to try to capture the essence of the real person he is writing about, even though he is inventing thoughts and scenes and dialogue.

“If you deviate too much from the actual historical record,” he said, “the illusion is going to collapse.” Mallon added, “If the real Steve Jobs is interesting enough to make a movie about, why go and create another character that the filmmakers presumably find more interesting?”

Tim Cook, Apple’s current chief executive, has decried the recent spate of Jobs movies as “opportunistic.” In the case of “Steve Jobs,” at least, that strikes me as exactly right. Sorkin and his fellow moviemakers are taking advantage of the feelings people have for the real Steve Jobs to sell tickets, yet the Steve Jobs he created is a complete figment of his imagination. It’s a con.

In a recent interview with Wired magazine, Sorkin insisted that “Steve Jobs” was “not a biopic.” He added, “I’m not quite sure what to call it.”

That’s easy. Fiction.

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Corporate Welfare for the Kochs

So what happened on Feb. 1, 2013? On that day, the Arkansas Legislature was informed that Big River Steel had a new investor: none other than Koch Minerals, which is part of Koch Industries, the Koch brothers’ privately held industrial conglomerate. The Kochs, you see, had decided to take a 40 percent equity stake, making them the project’s biggest investor. In doing so, of course, the Kochs were taking advantage of the same “corporate welfare” they had long condemned — while relying on the kind of government credit agency they are trying to dismantle in America.

When I asked a Koch Industries spokesman about the company’s willingness to take advantage of tax incentives and other government goodies, he gave me the standard response to such queries. “Koch Industries has consistently opposed and actively lobbied against all forms of corporate welfare, including those we currently benefit from,” read an emailed statement. “With that said, we will not put ourselves and our employees at a competitive disadvantage in the current marketplace.” In other words, the Kochs believe there is nothing hypocritical about employing government subsidies they oppose.

But I’m not so sure. The Arkansas incentive package ultimately passed, the German government-insured loan was completed and the plant should be up and running next year. And thanks to the recycling tax credits, the Kochs will recoup a significant portion of their investment even if the mill never makes a penny in profit. Indeed, the Kochs’ involvement helped give Arkansas legislators the comfort they needed to approve the incentive package. It gave “validity to the project,” one state legislator told the Arkansas Democrat-Gazette.

“We don’t have the budget to hire people to do due diligence,” says Grant Tennille, who was then running the Arkansas Economic Development Commission. “If people like the Kochs walk in the door, with a reputation and money, that’s a big deal.” In other words, the Kochs didn’t just take advantage of corporate welfare; their involvement was the impetus for the corporate welfare Big River Steel got.

Perhaps more important, the Big River Steel project offers a clear illustration of why those who want to put the Export-Import Bank out of business are dead wrong.

Usually, big new plants are built by existing companies, but that’s not the case with Big River Steel. It is the brainchild of the late John Correnti, a steel executive who rounded up bank financing and investors. (Correnti died in August; the new chief executive is the project’s investment banker.) A group of investors, even one led by a seasoned executive like Correnti, was never going to be able to get the $1 billion-plus needed to build Big River Steel without government help.

“Because of the size of the loan and the 10-year repayment period, private insurers would not have wanted to pick it up,” says Jonathan Bell, the editor in chief of Trade and Export Finance. “And banks wouldn’t have touched it with a 10-foot pole.” There is also usually a grace period during construction that would make banks wary, Bell adds. “This is exactly what export credit agencies are good at,” he says: stepping in to complete deals that make business sense but need the backing of a sovereign to complete.

This would seem to offer a rather resounding rejoinder to the right-wing refrain that giant companies like G.E. ought to be able to finance their own exports. Sometimes that’s simply impossible. SMS Siemag is a reasonably big company, yet there was no way that Big River Steel could borrow the money to buy its steelmaking equipment without the involvement of the German government. Understanding that, Germany facilitated the deal — because it would benefit German exports and German workers.

As for American workers, Big River Steel likes to brag that the mill will provide 525 well-paying jobs. But with the steel industry in a terrible slump, it will surely result in layoffs for other American steelworkers. Those nearby Nucor plants are operating at less than 75 percent capacity; other American steel mills are faring no better. Nucor, in fact, has tried to block Big River Steel, largely because it fears the effect the new mill will have on the steel industry over all. Thus are the Koch brothers helping German workers while hurting Americans.

Bell, the editor who covers export credit agencies, sounded appalled at the fight over the Export-Import Bank. “A lot of U.S. companies are going to lose business,” he said. Then he added, “Those Tea Party idiots have no idea how business is done in the real world.”

But the Koch brothers sure do.

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The Case for Compromise

The Safer Chemicals, Healthy Families coalition, however, which includes such major environmental groups as the Natural Resources Defense Council and Earthjustice, opposed the Senate bill. In a blog post, Andy Igrejas, who heads the coalition, listed provisions that he described, essentially, as gifts to the chemical industry. His coalition had thrown out E.D.F., a founding member, over the issue in 2013; now it was Moms Clean Air Force’s turn.

“They were supporting a Senate bill everyone else opposed,” Igrejas said when I asked him why. “You couldn’t do that and stay in the coalition.” He added, “At every point along the way, Fred [Krupp] would say, ‘You can’t let the perfect be the enemy of the good. Blah, blah, blah.’”

Igrejas believes that the bill, which his coalition still opposes, despite the many improvements, is better only because he and others came out so strongly against it. (I should note that the coalition supports a much narrower House bill.) The E.D.F.-Moms Clean Air Force view is that the bill got better because they were willing to roll up their sleeves and make common cause with conservative senators like Vitter and chemical industry lobbyists.

“We have always been clear that the way to get this done is to work in a bipartisan manner to support both Democrats and Republicans who were trying to solve the problem of the old law not working,” said Richard Denison, E.D.F.’s point person on the chemical bill. “And while lending our support, we also asked for improvements.” Which they got.

The bill doesn’t give environmentalists everything they want. There are thousands of unregulated chemicals, yet the bill calls for the E.P.A. to look at a minimum of only 25 during the first five years after the bill becomes law. But it hardly gives the industry everything it wants, either: Chemicals that were once unregulated would now face the prospect of serious restrictions on their use.

The biggest issue is around something called “pre-emption” — meaning that states will not be able to write laws about certain chemicals if the E.P.A. starts a formal review of that chemical. Because some states, like California, are much tougher on chemicals than the federal government has been, many environmentalists don’t want any federal pre-emption. But the chemical industry, tired of dealing with different state standards, insisted on it.

The Senate bill offers a reasonable compromise that says that if the E.P.A. doesn’t act within a certain time frame, states can act on their own. This provision, notes Denison, is “an important backstop” that would prevent companies from seeking to delay E.P.A. action as long as possible.

“I could sit in my office and write a perfect bill, but it wouldn’t be one that could become law in the United States,” said Krupp. “The question isn’t whether it is perfect. The question is whether it is a really good bill. We think it is.”

Browning had another point: “If you live in California, then of course you don’t want pre-emption. But what about the rest of us poor moms who aren’t protected by serious state laws?” For them, the Senate bill’s compromises would improve their lives.

Proving, I think, that the perfect really is the enemy of the good.

Blah, blah blah notwithstanding.

Correction: October 6, 2015

An earlier version of this column incorrectly described a Senate bill about the Toxic Substances Control Act. It calls for the E.P.A. to look at a minimum of 25 chemicals in the first five years after the bill becomes law, not only 25 chemicals.

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O’Bannon’s Hollow Victory Over the N.C.A.A.

And yet here we are, with the dust settling on that appeals court decision, and the N.C.A.A. not only is still standing but has barely been dented. Although Michael Hausfeld, Ed O’Bannon’s lead lawyer, quickly declared victory — and having the N.C.A.A. deemed an antitrust violator surely is a victory — the N.C.A.A. wasn’t exactly perturbed by the outcome. In a conference call, Mark Emmert, the association’s president, pronounced himself “pleased.”

As well he should be. For in each of the three rulings, the arbiters blinked.

The labor board, after hearing Northwestern’s appeal of Ohr’s decision, declined to rule on whether the football players were employees, even refusing, in a remarkable act of cowardice, to assert jurisdiction. Its abdication was a defeat for the players; one potential avenue of redress is now cut off from them.

Judge Wilken, for her part, ordered the N.C.A.A. to allow colleges to pay the full “cost of attendance” to football and men’s basketball players — that is, the difference between a player’s scholarship and the additional $3,000 to $4,000 expense of going to college. But this was something the association had already agreed to do, after pressure from the powerful conference commissioners.

She also said that schools could put up to $5,000 in a trust fund that a player could have access to once he left college. In other words, after saying that schools and the N.C.A.A. had colluded illegally, she basically agreed to sanction the collusion, just at a higher amount.

The Ninth Circuit decision was perhaps the bitterest blow of all. After spending much of their decision explaining why the amateurism rules are not exempt from antitrust scrutiny, the two judges in the majority spent the latter part of the decision echoing the N.C.A.A.’s hoary rationale that amateurism is the sine qua non of college sports. They eliminated Wilken’s $5,000 trust fund remedy on the grounds that paying cash compensation not related to education would not “preserve amateurism.” (They allowed the cost of attendance payments, however.)

It took the court’s chief justice, Sidney Thomas, to expose the fallacy of the majority’s reasoning in a stinging dissent. “The N.C.A.A. insists that this multibillion dollar industry would be lost if the teenagers and young adults who play for these college teams earn one dollar above their cost of school attendance,” he wrote. “That is a difficult argument to swallow.”

It’s not hard to understand why the courts, even now, won’t propose the obvious remedy that their antitrust rulings would seem to require: allowing the players to be paid. Decades of propaganda about the centrality of amateurism have had an effect.

But these decision makers also clearly fear that college sports will be thrown into chaos if schools can pay players — and they don’t want to be blamed. The labor board practically said as much. Of course that is also what baseball owners once said about the prospect of free agency, and Olympic officials about allowing in professional athletes. Those fears turned out to be unfounded. The same will be true if college players are paid.

On Thursday, Wilken held a hearing in another case against the N.C.A.A., called the Jenkins case. That case is intended to take the N.C.A.A.’s antitrust violations to their logical conclusion; the lawyer leading it, Jeffrey Kessler, wants to see all N.C.A.A. wage restraints abolished.

At one point during the hearing, Wilken said that the Ninth Circuit’s O’Bannon ruling won’t necessarily have any effect on the Jenkins case. We’ll find out soon enough whether she means it.

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