Johnson & Johnson is the world’s biggest and most diversified healthcare organization. The business is headquartered in New Jersey and is incorporated in the city of New Brunswick. Johnson & Johnson primarily undertake pharmaceutical preparations and has recently has been a forerunner in manufacturing one of the vaccines critical to tackling the COVID-19 pandemic, proclaiming that the company is ‘bringing a vaccine to the public on a not-for-profit basis for emergency pandemic use.’
The main three business segments that form the corporation are [A.] Pharmaceutical, [B.] Medical devices, and [C.] Diagnostics. An additional sector includes consumers, the consumer division being located in Skillman, New Jersey. Further, Johnson & Johnson’s pharmaceutical arm is Janssen Pharmaceutica.
Drug and device group sales constitute close to 80% of the company’s total revenue and are responsible for driving the bulk of its financial flows. Immunology, cancer, neurology, pulmonary, cardiology, and metabolic disorders are among the therapeutic areas that the drug division specializes in. The device sector serves patients in the medical field interested in orthopedics, surgical instruments, eye care, and many smaller niches. The consumer sector is further dedicated to babies’ needs, beauty, over-the-counter medications, dental care, and women’s health. Over half of Johnson & Johnson’s overall income comes from domestic sales in the United States.
[1.0] HOW DOES JOHNSON & JOHNSON WORK
J&J was established in 1886 and manufactures medical equipment, medicines, and consumer packaged products. The business is on the list of the country’s 500 biggest companies by revenue and it is placed currently number thirty-six on the list of the largest corporations in the U.S. by revenue this year. Company Johnson & Johnson is one of the world’s most valuable corporations and is one of the only two United States-based companies to have a AAA credit rating, even higher than the US Government itself.
By dedicating itself to research, the business further advanced into the health and wellness sector by designing, producing, and selling commodities that were designed with the purpose of meeting the demands of its customers. Johnson & Johnson’s broad variety of consumer products does not in itself merely dominate the market; it constitutes a near-monopoly. These items are applicable to anything from skincare to prescription medicines to smoking cessation aids to hair products, soaps, and pharmaceuticals.
The business is primarily a medical equipment provider, even if it is a big player in consumer products. In fact, a major portion of Johnson & Johnson’s success is attributable to the quality of its well-known brands. Companies need effective marketing to thrive, but Johnson & Johnson does not solely rely on brand value to grow. Instead, leveraging mergers and acquisitions is another technique that keeps Johnson & Johnson a highly relevant prospect for customers. This is because the company’s revenue is not generated by the company itself. Sometimes, when Johnson & Johnson misses innovating in the important areas of its interest, it will acquire up other companies using its financial resources. Since buying Pfizer’s (PFE) consumer health care business in 2006, Johnson & Johnson (JNJ) has immediately positioned itself as a powerhouse in the consumer goods industry.
[2.0] HOW TO SERVE LEGAL PAPERS ON JOHNSON & JOHNSON
A business entity, whether foreign or domestic, that transacts business in this state is required to register a representative or an address in this state to handle New Jersey Process Service. Therefore, in any court proceeding against that business, the New Jersey process service may be handled at the representative or registered address.
Johnson and Johnson comes under New Jersey jurisdiction and was incorporated in New Brunswick. For the New Jersey Process Service, the process in any court of this State may be served on the business entity. However, to be qualified to receive the process, the entity is required to register with a state official or agency to transact business in this State and is required to register an address or an agent in New Jersey.
The official or agency upon which substituted service has been made, within two days after service, is necessitated to notify the business entity to which the process was directed by a letter to its registered office or to any officer of the entity known to the official or agency. A copy of the process or other papers served should be enclosed with the letter.
To the full extent permitted by the laws of the State of New Jersey, Johnson & Johnson should effectively protect any employee involved in any manner ( as a party or witness) in any threatened or completed investigation, while serving as an employee or an officer of the company by virtue of them serving in that post.
[3.0] HOW DOES JOHNSON & JOHNSON DEAL WITH SUBPOENAS
[3.1] JOHNSON & JOHNSON’S FEDERAL SUBPOENAS
Johnson & Johnson had disclosed in its 2019 annual SEC report for the first time it revealed that it received subpoenas from federal authorities pertaining to its talc powder products in their annual report. Each year after, Johnson and Johnson has consistently detailed litigation currently going on in their report.
Reuters revealed in late 2019 that Johnson & Johnson had found small amounts of asbestos, a known carcinogen, in its talc and powder products for decades. Concerns about the cancer-causing effect of regular talc use stem from a time when talc contained asbestos. Since the 1970s, however, talc has generally been asbestos-free. Asbestos is clearly linked to cancer, but for the asbestos-free talc, the link is not as clear.
Reuters’ cited sources indicated that the company was fully aware of the occasional presence of asbestos from tests between the 1970s to the 2000s but concealed the information from government regulators and the general public. Johnson & Johnson shares proceeded to plunge almost USD forty billion in one day as a result of the publication, with concerns about the potential health consequences of one of the company’s most successful products mounting.
[3.2] HOW TO SERVE A FEDERAL SUBPOENA ON A CORPORATION
Federal Rule of Civil Procedure 45 addresses the issuance of federal subpoenas. Rule 45(a)(1)(A)(i) requires the subpoena to state the court from which it is issued. A subpoena must be issued ‘for attendance at a deposition, from the court for the district where the deposition is to be taken’
A challenge may emerge when a court applies FRCP 26 and FRCP 37 to who is subject to discovery, but at the same time, a subpoena is applied under FRCP 45. A party does not need to use a subpoena to obtain evidence from another party. It can instead use any of the discovery devices contained in FRCP 26 through FRCP 37. However, many courts have held that a party’s use of a subpoena to obtain evidence from another party is not necessarily prohibited, so long as a party does not use a subpoena to circumvent FRCP 34. However, even if one does not need the subpoena to require corporate executives, directors, and managing agents to show for a deposition, it may sometimes be required for other circumstances. A party may not have a deposition subpoena served via FRCP 30 but may have their presence commanded through notice issues under FRCP 30 instead. By contrast, in order to depose lower-level corporate personnel, a party will usually have to subpoena them.
A. INDIRECT NON-PARTY DISCOVERY THROUGH FRCP 34
In certain circumstances, a party may obtain non-party discovery indirectly through other parties in a case. If a corporation is a party to a lawsuit and is served with a document request under FRCP 34, it must produce all relevant documents within its control even if those documents are in the physical possession of affiliated companies or other third parties that are not parties to the underlying action.
B. ISSUING THE SUBPOENA
Rule 45(a) of the Federal Rules of Civil Procedure utilizes the phrase ‘issuing’ a subpoena. In this situation, both the court’s name and who may physically sign the subpoena should be included. To be enforceable, a subpoena must be served to acceptability on both levels. Rule 45 of the Federal Rules of Civil Procedure mandates that all subpoenas be issued in the court where the matter is ongoing (Rule 45(a)(2)). Since the attorney for the originating party is required to put the name of the issuing court at the top of the subpoena, that court’s name must appear on the subpoena.
Under FRCP 45, two types of individuals may issue a subpoena, being [A.] either a clerk of the issuing court or [B.] attorney authorized to practice in the court where the action is pending. (FRCP 45(a)(3).)
A subpoena issued in the context of federal civil litigation must contain the [A.] name of the court that issued the subpoena (FRCP 45(a)(2), which should contain the title of the action and the case number, [B.] identity of the person to whom the subpoena is directed, [C.] text of FRCP 45(d) and (e), which together set out the witness’s rights and duties in responding, objecting, or moving to quash the subpoena, [D.] time and place for either the production or inspection of documents, or for attendance at a hearing, trial, or deposition (known as the return date or compliance date). If the subpoena commands the production or inspection of documents, a major component of the issued subpoena should include the categories of documents sought. Similarly, if the subpoena seeks testimony, the subpoena should specifically include the method for recording testimony. If the issuing court does not follow the same jurisdiction as the court of attendance, the subpoena cannot be held to be enforceable.The language of Rule 45 is clear and requires that a subpoena must be issued by the court where the deposition is to be taken.
One of the largest corporations in the world, Johnson & Johnson, has close to 250 wholly-owned subsidiaries. This lexicon of acquisitions comprises major players in the artificial sweetener market, as well as laparoscopic surgical specialists like Ethicon.
Since the medication clearance process moves at a glacial pace in both the US and Europe, the revenues that Johnson & Johnson has earned today can be traced back to previous quarters and billions of dollars worth of research that had previously been completed. The corporation admits that a delay of four years has been built into the system, which cannot include the time it takes for new medicines and line extensions of current treatments to be marketed and available on drugstore shelves. Johnson & Johnson has been an integral part of the Dow Jones Industrial Average (DJIA) for over two centuries, and as such, one of the most significant and successful businesses in the world.
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1. The fiscal year ended on January 2nd for financial reporting and Johnson & Johnson submitted all-SEC papers, including the prospectus, reports (annual, quarterly, and regular), and the registration information for the same.
2. ‘Our COVID-19 Response Efforts.’ Content Lab U.S., www.jnj.com/covid-19.
3. ‘0000200406-21-000008: 10-K.’ Johnson & Johnson, johnsonandjohnson.gcs-web.com/sec-filings/sec-filing/10-k/0000200406-21-000008/.
4. The name of the company’s portfolio is well-known for the fact that it includes brands like Band-Aid, Listerine, Aveeno, Stayfree, Lubriderm, Visine, Tylenol, and Zarbee’s
5. “Johnson & Johnson Acquisition of Pfizer Consumer Healthcare Receives Clearance from U.S. Federal Trade Commission (FTC).” Johnson & Johnson, 12 Dec. 2006, johnsonandjohnson.gcs-web.com/news-releases/news-release-details/johnson-johnson-acquisition-pfizer-consumer-healthcare-receives.
6. Exhibit, www.sec.gov/Archives/edgar/data/200406/000020040616000071/exhibit3i-restatedcertific.htm. FIRST: The name of the Corporation is Johnson & Johnson.
SECOND: The address of the Corporation’s registered office is One Johnson & Johnson Plaza, New Brunswick, New Jersey 08933. The name of the Corporation’s registered agent at such address is Johnson & Johnson.
THIRD: The purpose for which the Corporation is organized is: To engage in any activity within the purposes for which corporations may be organized under the New Jersey Business Corporation Act.
7. ONE JOHNSON & JOHNSON PLZ
NEW BRUNSWICK NJ 08933
8. Mailing Address
ONE JOHNSON & JOHNSON PLZ
9.This would be an employee who is threatened with being so involved, by reason of his or her status as a director or officer of the Corporation even in a claim, action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, legislative, or investigative (including, without limitation, any action, suit, or proceeding by or in the right of the Corporation to obtain a judgment in its favor)
10. Kirkham, Chris. ‘Johnson & Johnson Receives Federal Subpoenas Related to Baby Powder…’ Reuters, Thomson Reuters, 21 Feb. 2019, www.reuters.com/article/us-jnj-subpoenas-idUSKCN1QA0DQ.
11. ‘The Johnson and Johnson Talc Cancer Case.’ NeuroLogica Blog, 25 Feb. 2016, theness.com/neurologicablog/index.php/the-johnson-and-johnson-talc-cancer-case/.
12. U.S. Democratic Senator Patty Murray sent a letter to J&J Chief Executive Alex Gorsky seeking documents and information related to testing of its talc products for the presence of carcinogens and ‘how it presented that information to regulators and consumers.’
13. Johnson & Johnson said that the federal inquiries ‘are related to news reports that included inaccurate statements and also withheld crucial information that had already been made public. The company added that ‘decades of independent tests by regulators and the world’s leading labs prove Johnson & Johnson’s baby powder is safe and asbestos-free and does not cause cancer.’
14. Federal Rules of Civil Procedure Rule 45. Subpoena
(A) Requirements—In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action and its civil-action number;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text of Rule 45(d) and (e).
15. Federal Rules of Civil Procedure Rule 26. Duty to Disclose; General Provisions Governing Discovery
16. Federal Rules of Civil Procedure Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
17. Federal Rules of Civil Procedure Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
18. Bank of Am. Corp. v. Lemgruber, 385 F. Supp.2d 200, 237 (S.D.N.Y. 2005)
19. holding that subpoena issued from the improper court was invalid and unenforceable); CSX Transp., Inc. v. Superior Grain LLC, 2009 WL 948660 (D.N.D. 2009) (holding that subpoena issued from the improper court was void).
20. Berg v. Johnson & Johnson, 09-4179-KES, 2-3 (D.S.D. Sep. 19, 2012)
Fed. R. Civ. P. 45(a)(2)(B). Here the subpoena appears to specify that it is being issued by the United States District Court for the District of South Dakota, but it is the commanding appearance of a nonparty to attend a deposition in the state of Mississippi. Berg argues that the scope of the subpoena should be modified rather than quashed. But because the subpoena is void and invalid, this court is without authority to modify an unenforceable subpoena. As a result, the subpoena was quashed. The court found that the subpoena is void on its face and unenforceable
21. See, e.g., Kupritz v. Savannah College of Art & Design, 155 F.R.D. 84, 88 (E.D. Pa. 1994