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Email On March 4, 2013, the United States Court of Appeals for the Ninth Circuit affirmed the conviction of W. Scott Harkonen (“Harkonen”), who had been tried and convicted of wire fraud for issuing a fraudulent press release regarding the results of a clinical trial. In its unanimous, unpublished decision, the Ninth Circuit held that the jury’s finding that Harkonen had engaged in fraudulent speech was supported by sufficient evidence, and therefore the press release at issue was not protected by the First Amendment. Since the Ninth Circuit found that Harkonen’s statements were false and misleading, it was not required to and did not address the Second Circuit’s recent decision in United States v. Caronia, 703 F.3d 149 (2d Cir. 2012), where the court held that the government’s prosecution of a pharmaceutical sales representative for truthful promotion of an approved drug for off-label uses violated the First Amendment. https://www.cadwalader.com/resources/clients-friends-memos/ninth-circuits-harkonen-decision-does-not-undermine-recent-second-circuit-precedent-establishing-that-truthful-promotion-of-approved-drugs-for-off-label-use-is-protected-by-the-first-amendment