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The stakes were huge even for Johnson & Johnson (J&J), the world’s largest manufacturer of health care products. In 2003, Applied Medical Resources Corp. (AMR), which manufactures medical instruments, filed suit in the Central District of California alleging that J&J’s Ethicon Inc. subsidiary had used its position as a market leader in sutures to monopolize the market for trocars, which are devices used in minimally invasive surgery. AMR claimed $54 million in damages, arguing that J&J had violated antitrust law by offering the steepest discounts to hospitals that committed to purchase both sutures and trocars. Applied Medical Resources Corp. v. Ethicon Inc., No. SACV 03-1329 (C.D. Calif. 2006). Plaintiffs’ counsel Steve Susman had won a $140 million verdict in a similar case in the same court just a year earlier. In short order, another competitor, ConMed Corp., filed a similar suit in New York, seeking $1.7 billion. A third case emerged in Texas. J&J, faced with the possibility of treble damages far in excess of $5 billion, assigned in-house staff attorney Katy Meisel to create a “virtual law firm” blending top talent from different firms. Meisel’s first hires were a pair of lead attorneys: John Treece, global head of Sidley Austin’s antitrust practice, and James W. Quinn, global co-chairman of the litigation department at Weil, Gotshal & Manges. The two had never worked together but quickly found they shared ideas about strategy. “First, J&J chose two lead lawyers who have remarkably similar views about how to litigate a very complex case, views that in turn reflect the perspective of a very sophisticated J&J in-house legal department,” Treece said in an e-mailed response to questions about the case. “We found a lot of commonality. We focused on preparing for trial rather than merely posturing for settlement. We quickly agreed � before depositions began � that we would organize the case around a few themes that conveyed the core antitrust defense messages. We each favored putting on relatively few witnesses with short direct examinations, and we both agreed that we had to attack AMR’s business failings aggressively rather than merely defending J&J’s practices.” Quinn, Treece and Meisel staffed the virtual law firm along with Jim Egan and Scott Martin from Weil Gotshal, and David Schiffman, Tom Hanrahan and David Giardina from Sidley, then distributed the work of simultaneously defending both the AMR and ConMed cases based on a combination of expertise and geography. Sidley’s office in Los Angeles, for example, oversaw discovery with AMR, headquartered in nearby Orange County, Calif. Discovery for ConMed, in upstate New York, went to Weil Gotshal, based in New York City. “[I]f the two firms are really cooperating instead of sharpening their elbows, proceeding in this way can be very efficient,” Treece said.” The most important task was to set the overall themes, tone and strategy, and we were all on board largely due to Katy’s hard work and focus in the pretrial phase.” No ego trips The biggest potential clash of egos was settled without controversy. Treece, Quinn and Meisel agreed well in advance that Quinn would give the opening and closing statements. “It would be crazy to even think about splitting those responsibilities,” Treece said. “[M]aking that decision early meant that all of us had input into the articulation of the themes during mock jury exercises. At the same time, Sidley took the lead with the J&J economists and the motions in limine which helped sculpt the trial, but again, by setting disciplined schedules for the completion of tasks, we made sure that we had input from both firms.” Egos were put aside as well when assigning trial duties. Quinn and Treece each put on or cross-examined 10 witnesses, with each getting some of the highest-profile witnesses. “Because Jim gave the opening and closing, he was undoubtedly the lead attorney for the jurors, and so [Weil Gotshal] was the lead in that sense at trial,” Treece wrote. “But the deeper reality is that the two firms worked seamlessly. At the end of the day, we had such a strong agreement on how to present the case, and I had such respect for Jim’s skills in the courtroom � and believed he felt the same � that any itchiness I was feeling watching someone else get to address the jury was completely overshadowed by my satisfaction at how the case went.” The plaintiffs’ team split its closing among three attorneys, Quinn said in a telephone interview. “It was not seamless,” he said. “There were three different voices and they didn’t appear to have, over 3 1/2 hours, a coherent theme.” The trial, with U.S. District Judge James Selna presiding, stretched for six weeks through the summer of 2006. The jury deliberated for three days before finding for J&J on all counts. Later, ConMed settled the New York litigation for less than the cost of the defense. “Was there friendly competition between the two firms? Absolutely,” Treece said. “But that’s a large part of J&J’s unique strategy of creating a dual-firm team to work on a large case, and I am in fact convinced that it made all of us work a little harder, think a little more, and reach a little deeper into our skill set to deliver the best product we could.”

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