Chicago fighting motion to disqualify private firm it hired for opioid lawsuit

CHICAGO (Legal Newsline) - A pharmaceutical company’s motion to disqualify the law firm the City of Chicago hired to represent it in its opioid lawsuit “is baseless and should be denied,” attorneys for the city and its counsel asserted earlier this week.

In a document filed Monday, these attorneys claim the Aug. 21 request from Purdue Pharma LP and two of its affiliates to disqualify Cohen Milstein Sellers & Toll and one of its partners, Linda Singer, “contains false assumptions, mischaracterizations, and unsupported arguments.”

“We trust the Court will see Purdue’s motion for what it is: an inappropriate attack on a lawyer of unimpeachable character and an improper attempt to deprive the City of its counsel of choice,” the recent filing states.

On June 2, the city followed in the footsteps of two counties in California and sued Purdue Pharma LP, Purdue Pharma Inc., The Purdue Frederick Company Inc., Teva Pharmaceutical Industries Ltd., Cephalon Inc., Johnson & Johnson, Janssen Pharmaceuticals Inc., Endo Health Solutions Inc. and Actavis PLC over accusations of the deceptive marketing of opioid painkillers.

Cohen Milstein — a plaintiffs’ class action law firm with 80 attorneys and offices in Washington D.C., New York, Philadelphia, Chicago, Denver and Palm Beach Gardens, Fla. — was hired by the city to serve as special assistant corporation counsel on a contingency-fee basis in the matter. It is also representing Santa Clara and Orange counties in its lawsuit against the drug makers.

In seeking to disqualify Cohen Milstein, the Purdue defendants last month argued that Singer’s participation in the litigation violates Rules of Professional Conduct and creates an appearance of impropriety because she served as the attorney general for Washington, D.C., when her office investigated the company’s marketing of its painkiller OxyContin.

They, along with the other drug company defendants, also asked Chicago’s federal court late last month to dismiss the suit in its entirety.

“Those responding to government inquiries should not be left to ‘wonder whether the agency attorney investigating his case will one day turn out to represent the plaintiff’ in a lawsuit concerning the same issues,” the Purdue defendants contend in their motion to disqualify, adding that this is the situation in which they “now find themselves.”

Attorneys for the city and its counsel, however, assert in their 32-page response to the disqualification motion that “[w]hen these distractions are stripped aside, it becomes obvious that Ms. Singer’s activity in 2007 comes nowhere close to what the law requires before depriving a client of its choice of counsel.”

Saying that Singer “simply had no material involvement of any kind in the D.C. Purdue matter,” they claim the Purdue defendants were made aware of these “uncontestable facts,” as well as their lack of standing to request disqualification, but filed their motion to disqualify anyway.

In their response, attorneys representing the city, Cohen Milstein and Singer point to numerous reasons they believe the court should deny the motion, including that it ignores standards for ruling on disqualification motions, distorts the facts, mischaracterizes legal standards for disqualification under professional rules of conduct and improperly claims an attorney can be disqualified for an appearance of impropriety.

The disqualification issue stems from D.C.’s investigation and 2007 settlement with the Purdue defendants over its marketing of OxyContin.

According to the recently-filed response, Purdue and three of its top executives in May 2007 agreed to plead guilty in the federal court for the Western District of Virginia to deceiving the public by misbranding OxyContin.

In addition to agreeing to pay millions in criminal fines and penalties, the response states Purdue entered into $19.5 million civil settlement in 2007 with 27 attorneys general’s offices, including D.C.’s, which received slightly less than $1 million.

Singer served as D.C.’s attorney general from Jan. 2, 2007 until Jan. 5, 2008. The Harvard graduate resigned in December 2007 and went into private practice, first with Zuckerman Spaeder LLP and then with Cohen Milstein in 2009.

While the Purdue defendants contend Cohen Milstein should be disqualified from the case because of Singer’s role as attorney general at the time of the settlement, attorneys for the city and its counsel assert Singer was not directly involved in D.C.’s investigation of the drug maker or the subsequent settlement, and as such, can represent the City of Chicago.

Singer did not review or approve the 2007 lawsuit or consent decree, never received any confidential information in the case and “has not ‘switched sides’” or misused her former governmental role, the response asserts.

It further states that the only actions Singer took in relation to the settlement was spending “ a few minutes editing a press release,” congratulating an attorney who handled the case and asking the city council to increase a cap on D.C.’s consumer protection fund because the Purdue settlement would have exceeded its limit.

The recent filing rejects the Purdue defendants’ insinuation that the city may have hired Cohen Milstein to represent it in the litigation because of Singer’s allegedly familiarity with the companies and issues due to her short stint as D.C.’s attorney general.

According to the attorneys representing the city and its counsel, Singer, who is based in D.C., and Cohen Milstein began talking about the possibility of representing the city in litigation against Purdue and other drug companies with Michael Dolesh, senior counsel at the city’s Law Department, in November 2012.

At that time, the response asserts, Cohen Milstein “was already representing the city in litigation against Hotels.com, where the City of Chicago sought taxes on Chicago hotel rooms sold online.”

Singer never mentioned her position as D.C.’s attorney general during its settlement with Purdue and “had no recollection of the D.C. Purdue matter until Purdue raised the issue in a letter to the City of Chicago in April 2013,” the response alleges.

In April 2013, after the city hired Cohen Milstein to represent it in its investigation and litigation over opioid painkillers, the city issued a subpoena to Purdue asking for documents over its marketing practices.

Purdue, the response states, responded later that month, “seeking assurances that Ms. Singer’s tenure as Attorney General of the District of Columbia did not give rise to a conflict under” rules of professional conduct that govern who former government attorneys can represent.

Cohen Milstein contends it sought an opinion on the issue from its outside ethics counsel , who concluded Singer was not barred from representing the city because she did not personally or substantially participate in D.C.’s 2007 settlement with Purdue.

After the city told Purdue that Cohen Milstein looked into the issue and determined Singer was not materially involved in the settlement, the response states, “Purdue indicated that it would resist the pending subpoena on a variety of procedural and substantive grounds.”

The City asserts it then “decided to withdraw its subpoena in September 2013 and continue its investigation—which was much broader than Purdue’s conduct—without Purdue’s cooperation. Purdue never sought any assurance that the investigation was closed, nor inquired as to whether [Cohen Milstein] was continuing to represent the City.”

It wasn’t until Aug. 21, more than two months after the city filed its lawsuit, that the Purdue defendants brought up its concerns over Singer’s participation.

A few days before it filed its motion to disqualify, the recent filing contends documents from the D.C. Attorney General’s office describing Singer’s limited involvement in the Purdue matter were sent to Purdue’s attorneys.

Around that same time, the filing notes “The City also advised Purdue that it lacked standing to make a disqualification motion, and that the District of Columbia Office of the Attorney General authorized the City to advise Purdue that the Office of the Attorney General had no objection to Ms. Singer representing the City of Chicago.”

The general rule is that only a current or former client has the standing to seek disqualification of an attorney in a pending matter and that on occasion, such motions can be made “where the conflict is such as clearly to call in question the fair or efficient administration of justice,” according to the response from the city and Cohen Milstein.

“Even if Purdue has standing (and it does not), the D.C. Attorney General’s letter disposes conclusively of Purdue’s disqualification motion,” the response asserts, referring to an Aug. 18 letter sent to the Purdue defendants notifying them that the D.C. attorney general had no objection to Singer’s representation of the city.

According to the recent filing, the D.C Rules of Professional Conduct, which the Purdue defendants agree govern this issue because Singer is based in D.C., prohibit former government lawyers from participating in certain matters they were previously involved in unless they receive a waiver from their former employer permitting such representation.

Court records show the Purdue defendants have until Sept. 15 to file their reply to the response to their motion to disqualify and that a ruling from U.S. District Judge Elaine Bucklo is expected at an Oct. 3 hearing.

The Purdue defendants’ motion to disqualify was submitted by Patrick Fitzgerald and R. Ryan Stoll of Skadden Arps Slate Meagher & Flom LLP in Chicago.

The response from the city, Cohen Milstein and Singer was filed by Jeffrey D. Colman, Michael A. Scodro and Jason M. Bradford of Jenner & Block LLP in Chicago, as well as Dolesh, Fiona A. Burke and Mary Eileen Cunniff Wells with the City’s Law Department.