Christopher B. Durbin

Cooley obtained a victory for GNC Holdings and certain of its officers in connection with a securities class action filed in the District of Oregon and the Western District of Pennsylvania. Relying on allegations in a previously filed enforcement action by the Oregon Attorney General, the shareholder plaintiff alleged that the company made false or misleading statements during a lengthy four-year class period regarding certain nutritional supplements containing substances the FDA had declared were not lawful dietary ingredients—and thus could not legally be sold in the United States. After successfully transferring the case to the Western District of Pennsylvania and arguing a motion to dismiss, the court granted our motion to dismiss in its entirety, finding that plaintiff had failed to plead adequately the elements of scienter and loss causation. Plaintiff chose to appeal rather than amend and, after oral argument, the district court’s ruling was affirmed by the Third Circuit.

Successfully defended Kent Roberts, the former general counsel of software company McAfee, in a trial involving alleged stock-option backdating violations. Mr. Roberts was found not guilty on two felony counts of mail fraud following a two-week criminal trial. The court declared a mistrial on the lone remaining count after the jury deadlocked during deliberations, and the government subsequently dismissed the final charge. Mr. Roberts is the first executive in the United States to be acquitted in any criminal prosecution related to stock-option backdating charges.

San Francisco – Cooley announced a major victory for popular online shopping club Beyond the Rack in the US District Court for the Western District of Washington in defeating Nordstrom's motion for a preliminary injunction in a trademark infringement suit over use of the term "Rack."

The Cooley trademark litigation team was led by partner John Crittenden, along with associates Brendan Hughes and John Paul Oleksiuk. Partner Christopher Durbin served as Cooley's on-the-ground counsel in Seattle.

Nordstrom claimed that the use of the "Beyond the Rack" mark for a "flash sale" website – which offers members deep discounts on limited-quantity items during 48-hour sales – infringed its rights in the names "Nordstrom Rack," "Rack," and "The Rack." But the court disagreed, noting that "the salient part of the commercial name is ‘NORDSTROM,' and not ‘RACK,'" and that there was no proof of actual customer confusion despite three years of coexistence. Finding that Nordstrom was unlikely to succeed on the merits of its infringement claim, and that it had failed to demonstrate irreparable harm, the court denied the motion.

Successfully resolved several consolidated class actions filed against a leading company in the "daily deal" space asserting claims under federal and numerous states' gift-card statutes pertaining to the terms and conditions of gift cards, including expiration dates and the availability of cash-back refunds. Following a mediated settlement, the district court approved the settlement and awarded class counsel less than half of their requested fee award.

Successfully represented a leading Seattle-based life sciences company in response to SEC and DOJ inquiries regarding insider trading prior to the company's announcement of clinical trial results.