Russell Cohen is a partner in Orrick's San Francisco office with experience litigating antitrust and other business disputes on behalf of companies and individuals, particularly in the technology sector.
Russell has represented clients in complex business disputes for more than 15 years. He has extensive experience with the antitrust laws, particularly as they apply to technology companies, implicating issues such as platform economics and strategy, software interoperability and the duty to disclose interface information; IP-related claims, including Walker Process and patent misuse; and non-compete and other employee arrangements. He has represented clients in direct and indirect purchaser antitrust class actions, unfair competition cases and competitor suits in state and federal court, as well as in arbitration and international forums.
Russell is also a member of Orrick's Cyber,
Privacy & Data Innovation practice, working with clients on incident planning and data-breach response efforts, including utilizing cyber insurance as part of a coordinated, comprehensive strategy for managing and recovering from data breaches. Exclusively on behalf of policyholders, he has pursued claims and litigated complex insurance disputes to recover for cyber attacks, employee sabotage, phishing schemes and other losses. He speaks and publishes frequently in the United States and Canada on cybersecurity litigation and cyber insurance.
Russell has also represented clients in other complex business disputes, including venture capital investor disputes, insurance recovery for financial, property and other losses and other commercial matters in federal and state court, and in arbitration proceedings.
Russell is committed to pro bono legal work and community service. He was counsel in the successful Alien Tort Statue case against one of the assassins of Archbishop Oscar Romero, who was murdered in El Salvador in 1980. He represented former Guantanamo detainees seeking 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.
The following is a sample of his notable clients and cases.
- Microsoft. Since 2000, representing Microsoft in numerous antitrust matters,
including indirect purchaser class actions in California, Minnesota, Iowa and
other states, coordinated multidistrict litigation, competitor actions in
federal and state courts, competition litigation in Canada, and in connection with patent misuse claims in the ITC.
Russell also prepared an amicus brief in the U.S. Supreme Court on behalf of
Microsoft, Visa and Coca-Cola in Texaco v.
Dagher concerning antitrust liability of joint ventures.
- Dyson. Obtained dismissal of Walker process and Handgards antitrust
claims in Cornucopia Products LLC v. Dyson Incorporated.
Cyber and Insurance
- Canadian Antitrust Proceedings. Represented CP Ships and Superior
Propane in contested merger proceedings in Canada.
- Medidata, Representing Medidata in 2d Circuit appeal of district court decision finding insurance coverage for computer fraud.
- Sony. Represented Sony in pursuing property and liability insurance claims arising out of cyber attacks on its online gaming, video and music networks.
- Hewlett-Packard. Represented HP in litigation seeking insurance coverage for data loss due to employee sabotage.
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.
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.