Russell P. Cohen

Partner

San Francisco


Read full biography at www.orrick.com
Russell Cohen represents some of the world's leading tech companies in antitrust and other complex business disputes. 

Russ is an experienced litigator with a focus on antitrust and unfair competition disputes, venture capital and other complex litigation, particularly in the technology sector. He has represented industry-leading clients, including Microsoft, LinkedIn, Netflix, Zillow, and others, in federal and state court, and in arbitration proceedings.

Russ is also committed to pro bono legal work and community service. He was counsel in the successful Alien Tort Statute case against one of the assassins of Archbishop Oscar Romero, who was murdered in El Salvador in 1980. He is currently representing a parent and child separated at the Southern border, has represented former Guantanamo detainees pursuing damages for torture and unlawful detention, and was amicus counsel for a group of Canadian and international human rights organizations and scholars in the U.S. Supreme Court in Arar v. Ashcroft.

Posts by: Russell Cohen

Two Noerr-Pennington Rulings Affirm Narrow Scope Of Immunity

Antitrust Legal Gavel On top of $100 bills Two Noerr-Pennington Rulings Affirm Narrow Scope of Immunity

Associate Elena Kamenir and Partners Russell Cohen and Richard Goldstein published an article discussing the scope of antitrust petitioning immunity in light of recent FTC and First Circuit opinions that addressed the Noerr-Pennington doctrine. In these two recent matters, defendants asserted the doctrine as an affirmative defense in two different contexts: in connection with trademark disputes in 1-800 Contacts and in relation to private standards-setting activity that was adopted by a regulatory agency in Amphastar v. Momenta. In their article, the authors suggest that the scope of the immunity likely remains narrow.

To read the published article, please click here

 

Third Circuit Rejects Drug Manufacturer’s Single-Product Bundling Claim – But Prescription for the Future Is Unclear

You know what they say: one man’s price is another man’s bundle.  No?  Well maybe they should, after this recent decision out of the Third Circuit in Eisai, Inc. v. Sanofi Aventis U.S., LLC involving allegedly exclusionary discounting.  The court ultimately found Sanofi’s conduct was not unlawful.  But the decision raises questions about how such conduct – a hybrid of price discounts and single-product bundling – will be treated going forward, at least in the Third Circuit.

At issue was Sanofi’s marketing of its anticoagulant drug Lovenox to hospitals through its Lovenox Acute Contract Value Program.  Under the Program, hospitals received price discounts based on the total volume of Lovenox they purchased and the proportion of Lovenox in their overall purchase of anticoagulant drugs.  A hospital that chose Lovenox for less than 75% of its total purchase of anticoagulants received a flat 1% discount regardless of the volume purchased.  But when a hospital’s purchase of Lovenox exceeded that percentage, it would receive an increasingly higher discount based on total volume and percentage share, up to a total of 30% off the wholesale price.  A hospital that did not participate in the Program at all was free to purchase Lovenox “off contract” at the wholesale price.

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