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Mylan Inc. v. Kirkland & Ellis LLP | 2015 WL 12733414 (2015)
Ethical rules limit an attorney from representing clients with a conflict of interest. An attorney generally cannot simultaneously represent two clients with directly adverse interests. Can a business deal place clients in a directly adverse conflict? Mylan Incorporated versus Kirkland and Ellis LLP considers the intersection between business transactions and conflicts of interest.
Kirkland and Ellis represented two rival pharmaceutical clients, Mylan Incorporated and Teva Pharmaceutical. Mylan sold the EpiPen, a device that treats severe allergic reactions. Competitor Teva developed a generic version of the EpiPen.
Kirkland began representing Mylan Incorporated in 2013. Because Kirkland acted as Mylan’s primary outside counsel, Mylan disclosed significant confidential information to Kirkland, including its market, regulatory, and litigation strategies and information on the Epipen, a product that generated over a billion-dollar yearly revenue.
In February of 2015, Mylan was reorganized as a subsidiary of a parent holding company, Mylan N.V.
A month later, Teva asked Kirkland to represent it in connection with a hostile takeover of Mylan N.V. Kirkland conducted a standard conflict-of-interest check and confirmed it could represent Teva because the parent company, Mylan N.V., had never been a client. Kirkland established an ethical wall, isolating the attorneys working on Teva’s hostile takeover from those attorneys who had previously represented and would continue to represent Mylan.
Teva wrote Mylan N.V., expressing its interest in buying the company out. The letter also noted that Kirkland was representing Teva in the proposed transaction. Mylan N.V.’s board of directors rejected the takeover offer.
Mylan sued Kirkland, alleging that Kirkland violated its fiduciary duties to Mylan under the Pennsylvania Rules of Professional Conduct. Mylan moved to enjoin Kirkland from further representation of Teva in the attempted hostile takeover. The district court took Mylan’s motion for a preliminary injunction under advisement.
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