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City of Chicago v. Purdue Pharma L.P.

United States District Court, N.D. Illinois, Eastern Division

December 15, 2014

CITY OF CHICAGO, Plaintiff,
v.
PURDUE PHARMA L.P., et al., Defendants

For City Of Chicago, Plaintiff: Fiona A Burke, Michael J. Dolesh, LEAD ATTORNEYS, City of Chicago, Department of Law, Chicago, IL; Jason Michael Bradford, Jeffrey D. Colman, Jenner & Block LLP, Chicago, IL; Linda Singer, PRO HAC VICE, Joshua Dubin Glickman, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Mary Eileen Cunniff Wells, City Of Chicago, Department Of Law, Chicago, IL; Michael Anthony Scodro, Office of the Illinois Attorney General, Chicago, IL.

For Janssen Pharmaceuticals Inc., Johnson & Johnson, Defendants: Carolyn June Kubota, Charles C. Lifland, PRO HAC VICE, O'melveny & Myers Llp, Los Angeles, CA; Michael P. Doss, Scott David Stein, Sidley Austin LLP (Chicago), Chicago, IL.

For Endo Health Solutions, Defendant: Joanna G Persio, Joshua M. Davis, Melissa A Ku, PRO HAC VICE, Arnold & Porter Llp, Washington, DC; Kristen Elizabeth Hudson, Schopf & Weiss LLP, Chicago, IL; Nicholas A Gowen, Peter Vincent Baugher, Schopf & Weiss LLP, Chicago, IL; Steven G. Reade, PRO HAC VICE, Arnold & Porter Llp, Washington, DC.

For Purdue Pharma L.P., Purdue Pharma Inc, The Purdue Pharma Frederick Company Inc., Defendants: Patrick Joseph Fitzgerald, LEAD ATTORNEY, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL; R. Ryan Stoll, Skadden Arps Slate Meagher & Flom, LLP, CH, Chicago, IL.

For Teva Pharmaceuticals Industries Ltd., Cephalon, Inc., Defendants: Tinos Diamantatos, LEAD ATTORNEY, Morgan, Lewis & Bockius LLP, Chicago, IL; J. Gordon Cooney, Jr., Steven A. Reed, PRO HAC VICE, Morgan, Lewis & Bockius Llp, Philadelphia, PA.

For Actavis PLC, Defendant: Jason L Drori, LEAD ATTORNEY, PRO HAC VICE, K& l Gates Llp, Boston, MA; James W Matthews, Katy E Koski, PRO HAC VICE, K& l Gates Llp, Boston, MA; Nicholas William Marietti, K& L Gates LLP, Chicago, IL; William G. Potter, K & L Gates LLP - MA, Boston, MA.

For Linda Singer, Cohen Milstein Sellers & Toll PLLC, Respondents: Jason Michael Bradford, Jeffrey D. Colman, Jenner & Block LLP, Chicago, IL; Michael Anthony Scodro, Office of the Illinois Attorney General, Chicago, IL.

For Chicago Tribune Company, Los Angeles Times, USA Today, Intervenors: George Freeman Galland, Jr., LEAD ATTORNEY, Miner Barnhill & Galland, P.C., Chicago, IL; Jeffrey Irvine Cummings, LEAD ATTORNEY, Miner Barnhill & Galland, Chicago, IL.

MEMORANDUM OPINION AND ORDER

Elaine E. Bucklo, United States District Judge.

Purdue Pharma L.P, Purdue Pharma, Inc., and The Purdue Frederick Company, Inc. (collectively, " the Purdue Defendants") have moved to disqualify Linda Singer, Esq. (" Ms. Singer") and her current law firm, Cohen Milstein Sellers & Toll PLLC (" Cohen Milstein"), from representing the City of Chicago in this suit. The movants make two arguments: (1) Rule 1.11(a) of the District of Columbia Rules of Professional Conduct prohibits Ms. Singer from representing the City in this case because it is " the same as, or substantially related to, a matter in which [she] participated personally and substantially" during her tenure as Attorney General for the District of Columbia and (2) Ms. Singer's continued representation of the City in this action creates an appearance of impropriety.

Neither of the Purdue Defendants' arguments is persuasive, so I deny their motion to disqualify Ms. Singer and Cohen Milstein for the reasons stated below.

I.

The following facts are undisputed unless noted otherwise. Ms. Singer served as Attorney General for the District of Columbia (" D.C. Attorney General") from January 2, 2007 to January 9, 2008. She is currently head of the " Public Client" practice group at Cohen Milstein in Washington, D.C.

In 2004, three years before Ms. Singer's tenure as D.C. Attorney General, that office started investigating whether the Purdue Defendants' marketing of OxyContin violated the D.C. Consumer Protection Act, D.C. Code § 28-3901 et seq . D.C. served on the Executive Committee of a group of twenty-seven jurisdictions investigating the Purdue Defendants' sales and marketing of opioids (" OxyContin Multistate Investigation").

The D.C. Attorney General's Office assigned one attorney, Grant Moy, Esq. (" Mr. Moy"), to work on the OxyContin Multistate Investigation. Mr. Moy worked in the Consumer and Trade Protection Section under the direct supervision of Bennett Rushkoff, Esq. (" Mr. Rushkoff"), who served as Section Chief. Mr. Rushkoff had authority to decide whether the District would join in any settlement of the OxyContin Multistate Investigation.

On April 5, 2007, about three months after Ms. Singer took office as D.C. Attorney General, Mr. Moy notified Mr. Rushkoff that the Executive Committee for the OxyContin Multistate Investigation had reached a tentative $19.5 million settlement with the Purdue Defendants. The District's share of the settlement would be $980, 000. Mr. Moy also reported that the settlement would take the form of consent judgments filed in each of the twenty-seven participating jurisdictions.

About one hour after receiving Mr. Moy's e-mail, Mr. Rushkoff forwarded it to Ms. Singer and other officials in the D.C. Attorney General's Office. Mr. Rushkoff noted that D.C.'s share of the proposed settlement would push the Consumer Protection Fund over its statutory limit, resulting in the loss of hundreds of thousands of dollars to the District's general revenue fund. See 2000 D.C. Legis. 13-172, § 1402(f) (establishing the " District of Columbia Consumer Protection Fund" as " a proprietary fund with assets not to exceed $1, 490, 000 at any time")

Ms. Singer called Mr. Rushkoff on April 5, 2007, after receiving his e-mail. She instructed him to work with an attorney in the Legal Counsel Division on legislation to increase the Consumer Protection Fund's statutory cap. Ms. Singer also suggested the name of a D.C. Councilmember who might be receptive to pushing such legislation.[1]

One day later after learning about the settlement, Ms. Singer congratulated Mr. Moy for his work. She described the settlement as " a huge win for the office and for consumers in the District and around the country." Defs.' Ex. D.

On April 12, 2007, Ms. Singer was copied on an e-mail between a Deputy Attorney General in her office and a D.C. Councilmember's staffer about introducing legislation to increase the Consumer Protection Fund's statutory cap. When the Councilmember indicated that he would support such legislation, Ms. Singer instructed her staff to prepare a draft bill and asked to see the draft before it was sent to the D.C. Council. On April 16, 2007, after receiving draft legislation from her staff, Ms. Singer told Mr. Rushkoff she would send it to the D.C. Council if he " sign[ed] off." Dkt. No. 139-9 at 11. Mr. Rushkoff approved the draft legislation subject to one minor correction. Id.

On May 3, 2007, Mr. Rushkoff sent Ms. Singer a follow-up memorandum about increasing the Consumer Protection Fund's statutory cap. He reported that the District, in coordination with other states, planned to file its complaint against the Purdue Defendants in D.C. Superior Court on May 8, 2007. Mr. Rushkoff also informed Ms. Singer that he would ask the Executive Committee to defer paying D.C.'s share of the settlement if, when the money became available, the D.C. Council was considering legislation to increase the Consumer Protection Fund's statutory cap. Finally, Mr. Rushkoff advised Ms. ...


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