Joshua Siegel

Cooley has been representing the Official Committee of Unsecured Creditors of Mallinckrodt during Mallinckrodt’s ongoing bankruptcy proceedings, in which the pharmaceutical company’s Chapter 11 plan of reorganization was recently confirmed after a contentious multiweek trial, marking a defining moment in the case. Cooley partners Cullen Speckhart, Ian Shapiro, Philip Bowman, Michael Klein, Cathy Hershcopf and Jonathan Kim led the team advising the Official Committee of Unsecured Creditors.

Nine plaintiffs, who were victims of a coordinated attack by white supremacists during the “Unite the Right” rally in Charlottesville, Virginia in August 2017, won a historic victory in the landmark federal lawsuit Sines v. Kessler. A Cooley team led by Alan Levine, David Mills and Bob Cahill acted pro bono on behalf of the plaintiffs alongside Kaplan Hecker & Fink, Paul, Weiss, Rifkind, Wharton & Garrison, and Woods Rogers.

Cooley obtained a complete victory for client Patheon, a defendant in a three-year $380 million antitrust case brought by Procaps in the United States District Court in Miami.

Patheon is a leading global provider of outsourced pharmaceutical development and manufacturing services. Procaps is a Colombia-based corporation that develops, manufactures and commercializes pharmaceutical products, veterinary, nutritional supplements and cosmetics.

In January 2012, Patheon and Procaps signed a seven-year collaboration agreement to provide softgel development and manufacturing services to customers worldwide. In December 2012, Patheon announced its intention to acquire Banner Pharmacaps, a leading softgel manufacturer. Procaps sued Patheon, seeking to enjoin the acquisition on the grounds that it would convert the collaboration agreement into an illegal market division and was, therefore, a "per se" violation of US antitrust laws.

After Cooley stopped Procaps' effort to block the acquisition, the company proceeded with the litigation, demanding more than $380 million in damages and equitable relief, including divestiture of Banner Pharmacaps and the return of confidential information.

During discovery, Patheon uncovered that Procaps failed to issue a litigation hold and otherwise failed to preserve potentially relevant evidence or satisfy its eDiscovery obligations. Thus, on Patheon's motion, the court ordered a full forensic analysis of Procaps' computer systems. Over the following year and half, Procaps supplemented its original production with 150,000 documents.

In 2014, Cooley won summary judgment on all claims for Patheon, after which the court allowed Procaps to amend its complaint to add a new antitrust claim under the "rule of reason" standard. The case effectively started over.

Following a second round of discovery, Patheon filed a second summary judgment. On October 29, 2015, two weeks before trial was to begin, the court granted Patheon summary judgment in full, dismissing the case.

Cooley attorneys successfully persuaded the United States Court of Appeals for the Fourth Circuit to grant pro bono client Faustin Mukadi Ilunga's petition for review and to vacate the Board of Immigration Appeals (BIA) and Immigration Court orders that had denied him asylum.

Mr. Ilunga, a 36-year-old refugee from the Democratic Republic of the Congo (DRC), has been a Cooley client since 2008. Capital Area Immigrants' Rights (CAIR) Coalition, a DC-based nonprofit that provides legal assistance to detained immigrants, originally referred the case to Cooley and consulted with Cooley on the case throughout. CAIR Coalition is a great partner to the firm's pro bono program, and Cooley and CAIR have a long history of working together on pro bono cases.

While in the DRC, Mr. Ilunga was illegally detained and severely physically and mentally abused by government officials on account of his political opinion. In 2008, after escaping from prison, Mr. Ilunga fled to the United States, while his wife and children fled to a Zambian refugee camp.

Mr. Ilunga applied for asylum, but the immigration judge found that his testimony and documentary evidence were not credible because of minor perceived inconsistencies and because Mr. Ilunga's demeanor raised "concerns regarding plausibility and vagueness." The immigration judge denied Mr. Ilunga's asylum application, and the BIA upheld the decision.

Cooley filed a petition for review of the BIA's decision with the Fourth Circuit. Following oral argument, the Fourth Circuit held that the adverse credibility findings manifested "a basic misunderstanding of the human condition." The Court agreed with Cooley that the immigration judge and the BIA erred in denying Mr. Ilunga's asylum petition, determining that the perceived inconsistencies were insufficient to support an adverse credibility finding. Each perceived inconsistency was undermined by translation problems, was not actually inconsistent, or was speculative. The Court also concluded that the immigration judge and the BIA failed to consider a plethora of documentary evidence supporting a finding that Mr. Ilunga had been persecuted.

The case will be remanded to the BIA for further proceedings consistent with the Fourth Circuit's opinion.

"CAIR Coalition congratulates Cooley on their tremendous Fourth Circuit win," said Kathy Doan, Executive Director for CAIR. "This is not only a victory for Mr. Ilunga and his family, but for all asylum seekers who struggle to share stories of violence and trauma in often inhospitable court rooms."

This decision is expected to have considerable impact because it makes clear that immigration judges cannot rely on trivial inconsistencies and inconsequential demeanor findings to conclude that an asylum applicant is not credible.

Cooley advised Patheon in its multiyear antitrust battle with former joint venture partner Procaps Laboratories. Both companies design and manufacture gel capsule delivery mechanisms for medications, known as softgels.