Russell Cohen is a partner in Orrick's San Francisco office with experience litigating antitrust and other complex business disputes on behalf of companies and individuals, particularly in the technology sector.
Russell has extensive experience representing clients in company-critical antitrust and unfair competition matters, particularly in the technology sector. These complex cases require a deep understanding of issues such as multi-sided platform economics and strategy, software interoperability and the duty to disclose interface information; IP-related antitrust claims; and employee non-compete and other mobility-restricting 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 also represents 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 also works with clients on data-breach response efforts, including utilizing cyber insurance as part of a coordinated, comprehensive strategy for managing and recovering from data breaches.
Russell is 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.
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.