Richard Cohen represents health insurers in complex litigation. Mr. Cohen argued and won landmark decisions, for Humana establishing Medicare Advantage Organizations’ reimbursement recovery rights under the Medicare Secondary Payer Act, In re Avandia Marketing Sales Practices and Products Liability Litigation, 685 F.3d 353 (3d Cir. 2012), cert. denied, sub nom. GlaxoSmithKline v. Humana Med. Plans, Inc., 81 U.S.L.W. 3579 (Apr. 15, 2013), and for Louisiana Blue Cross establishing the direct (non-subrogation) rights of commercial health insurers to recover overcharges from drug companies for drugs prescribed to their insureds, Desiano v. Warner-Lambert, 326 F.3d 339 (2d Cir. 2003). Mr. Cohen also prosecuted Aetna’s successful appeal in In re Neurontin Mktg. & Sales Practices Litigation, 712 F.3d 51 (1st Cir. 2013), holding drug manufacturers accountable to health insurers for damages attributable to marketing fraud.
Mr. Cohen was class counsel, and argued successful appeals, for health insurers in In re Cardizem CD Antitrust Litigation, 332 F.3d 896 (6th Cir. 2003) (settlement of $80 million), and In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516 (3d Cir. 2004) (settlement of $44.5 million). In In re Wellbutrin XL Antitrust Litigation, Mr. Cohen argued successfully for certification of a litigation class, 282 F.R.D. 126 (E.D. Pa. 2011), and for the right to prosecute antitrust claims under New York law as class claims, the first decision to so hold, 756 F. Supp. 2d 670 (E.D. Pa. 2010). Mr. Cohen negotiated settlement allocations for health insurers of $110 million and $288 million, respectively, in 2005 from the manufacturers of the prescription drug Lupron and in 2009 from McKesson Corporation. Mr. Cohen represented 35 health insurers in actions relating to the prescription drug Vioxx, resulting in settlements exceeding $80 million in 2009 and 2010.
Mr. Cohen defended and won dismissals for health insurers of the following class actions: Meek-Horton v. Trover Solutions, 910 F. Supp. 2d 690 (S.D.N.Y. 2013); Potts v. Rawlings Co., LLC, 897 F. Supp. 2d 185, 2012 (S.D.N.Y. 2012); Kesselman v. The Rawlings Company, LLC, 668 F. Supp. 2d 604 (S.D.N.Y. 2009); Elliot Plaza Pharmacy v. Aetna U.S. Healthcare, 2009 WL 702837 (N.D. Okla. March 16, 2009); Main Drug, Inc. v. Aetna U.S. Healthcare, 475 F.3d 1228 (11th Cir. 2007) (dismissing appeals from Main Drug, Inc. v. Aetna U.S. Healthcare, 455 F. Supp. 2d 1323 (M.D. Ala. 2006) and 455 F. Supp. 2d 1317 (M.D. Ala. 2005); and Medfusion Rx, LLC v. Humana Health Plan, Inc., Case No. CV-08-PWG-0451-S (N.D. Ala.). Mr. Cohen is currently defending the class action Roche, et al. v. Aetna, Inc., et al., Civ. 13-1377 (JHR) (D.N.J.).
Mr. Cohen represented America Health Insurance Plans, a national association representing the health insurance industry, as amicus curiae in FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013) concerning how “pay-for-delay” agreements between brand name drug companies and generic companies should be evaluated under federal antitrust law. Mr. Cohen represented the National Coalition of Pharmaceutical Distributors as amicus curiae in a successful appeal enjoining the U.S. Food and Drug Administration from implementing prescription drug “pedigree” rules that discriminate against secondary wholesalers. Dept. of Health and Human Services, U.S. FDA v. RxUSA Wholesale, Inc., 285 Fed. App’x. 809 (2d. Cir. 2008).
Mr. Cohen has represented institutional investors in numerous stockholder voting rights and corporate governance cases, including Western Investment Total Return Fund Ltd. v. Bremer (Nuveen), 762 F. Supp. 2d 339 (D. Mass. 2011); Gabelli Global Multimedia v. Western Investment LLC, 700 F. Supp. 2d 748 (D. Md. 2010); Delcath Systems, Inc. v. Ladd, 466 F.3d 257 (2d. Cir. 2006); Salomon Brothers Mun. Partners Fund, Inc. v. Thornton, 410 F. Supp. 2d 330 (S.D.N.Y. 2006); meVC Draper Fisher Jurvetson Fund I, Inc. v. Millennium Partners, 260 F. Supp. 2d 616 (S.D.N.Y. 2003); and Millenco L.P. v. meVC Draper Fisher Jurvetson Fund I, Inc., 824 A.2d 11 (Del. Ch. 2002). In 2009, Mr. Cohen tried, won, and collected for hedge fund investors, a multi-million dollar arbitration award in Pierot v. Colonial Investment Management, AAA No. 13 148 Y 02207 08. Mr. Cohen has advised boards of directors of public companies for approximately 30 years and has served as a director of one public company and as a corporate secretary for another.
Mr. Cohen has often been a speaker at legal education conferences, including Northwestern University School of Law’s “Sixth Annual Antitrust Conference” (2000); The American Bar Association’s Section of Litigation’s “Current Issues in Pharmaceutical Litigation Policy” (2008); Blue Cross Blue Shield Association’s Annual Lawyers’ Conference (2010); The American Conference Institute’s “Advanced Forum on Managed Care Disputes and Litigation” (2011, 2012, 2013); and Dealflow Media’s “Activist Investor Conference” (2013). Mr. Cohen was a contributor to the American Bar Association’s “State Antitrust Enforcement Handbook.”
Mr. Cohen is rated “AV Preeminent” by Martindale-Hubbell, the highest rating a lawyer can obtain, as established by confidential opinions from members of the bench and bar and reflecting maintenance of an “AV” rating for more than 20 consecutive years. Mr. Cohen is also recognized as a “Super Lawyer” in the New York Metro region by ALM Publications.
Mr. Cohen graduated from Georgetown University (A.B. 1977) and the New York University School of Law (J.D. 1980). Mr. Cohen is admitted to practice in New York and Pennsylvania, and is a member of the bars of the U.S. Supreme Court, the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 6th and 11th Circuits; and the U.S. District Courts for the Southern and Eastern Districts of New York, the Eastern District of Michigan and the Eastern District of Pennsylvania.