Tuesday, January 31, 2017

Conflicts Allegations in the News (Playbook, Forgotten & Cleared)


Known Knowns and Unknown Knowns: "Conflict Lateral Hire Didn’t Recall Disqualifies Alston & Bird" --
  • "Alston & Bird LLP can’t defend a doctor accused of breaching a non-compete agreement with a nanomedicine company, because a lateral partner may have previously advised the company on the non-compete but couldn’t completely recall his involvement, the U.S. District Court for the District of Maryland ruled Jan. 5 ( CytImmune Scis., Inc. v. Paciotti , 2017 BL 2356, D. Md., No. PWG-16-1010, 1/5/17 )."
  • "The conflicted lawyer, Jonathan Rose, joined Alston & Bird after a four-year stint at Katten Munchin Rosenman LLP, which served as plaintiff CytImmune Sciences Inc.'s outside counsel for several years."
  • "Judge Paul W. Grimm said Rose’s work on a CytImmune matter while working at Katten meant he had to be disqualified from this case—and that Rose’s conflict was imputable to all of his colleagues at Alston & Bird."
  • "Grimm reached that conclusion even though Rose claimed to have no “recollection whatsoever of ever working with [CytImmune] while at Katten” and wasn’t even 'aware of the existence of a company called CytImmune.'"
  • "'I am left with the impression that Rose’s inability to recall the precise details of his prior work for CytImmune placed him squarely between the Scylla of [Rule] 1.9 and the Charybdis of [Rule] 1.7,' Grimm said. 'And if Odysseus could not navigate such treacherous waters, then, respectfully, neither can Rose.'"
  • "The California federal magistrate judge overseeing Leapfrog Enterprises’ trademark infringement suit against competing educational game company Epik Learning said at a hearing Tuesday that she may disqualify Cooley LLP from representing Epik since the firm has worked on similar cases for Leapfrog for 20 years, but added she wouldn’t sanction the firm."
  • "Magistrate Judge Elizabeth D. Laporte said the case posed a 'close question.' Cooley's years representing Leapfrog Enterprises Inc., often in similar matters, might help the firm understand the company’s negotiating strategy, the judge said. But representation and communication had tapered off for months before the firm notified Leapfrog it could no longer represent the company in April, Judge Laporte said, and California’s strict laws on the subject seemed to her 'outmoded' and not in keeping with the pace of modern law firm management, but instructed her to 'err on the side of disqualification.'"
  • "Judge Laporte said Leapfrog’s strongest argument for disqualification was the possible negotiating strategy that Cooley was privy to, which meant the firm would know whether Leapfrog was “the type who starts at the top, then drops like a stone” during settlement talks."
  • "But she said she found it 'troubling' that Leapfrog hadn’t accepted Cooley’s offer to withdraw as counsel and had instead opted to pursue its motion for disqualification as well as sanctions when the matter was moot. She added that if anyone was entitled to attorneys’ fees, it might be Epik Learning, which had to continue fighting the motion even after offering to find new lawyers."
Cleared: "Cooley Defeats DQ Bid In Cardtronics ATM Commissions Suit" --
  • "A California federal judge refused on Tuesday to disqualify Cooley LLP from defending ATM processor Cardtronics Inc., its Mexican subsidiary and two of its executives in a suit alleging the companies cheated a franchiser out of commissions, saying Cooley properly disclosed potential conflicts to its clients and obtained their consent."
  • "Magistrate Judge Elizabeth D. Laporte said during a hearing in San Francisco that Cooley had the four defendants sign consent forms acknowledging potential conflicts, and that’s 'the correct way to do it.' Judge Laporte also criticized plaintiff William D. Bush’s argument that Cooley should be disqualified because the attorneys aren't licensed to represent their clients in Mexico. Judge Laporte said those 'aren’t really grounds to disqualify,' and even if they were, it wouldn’t be up to Bush to decide if the defendant’s counsel was competent."
Compounded: "Good morning your honors, you have a conflict." --
  • "Lawyers for Microsoft Corp. and Impulse Technology Ltd. spotted a problem when they arrived at the Federal Circuit for argument Nov. 4: Judge Kimberly Moore was seated on their panel. Moore routinely recuses herself from cases in which her husband’s law firm, Latham & Watkins, represents one of the parties. But in this case Latham lawyers had appeared for Microsoft at the trial court level only, and the conflict slipped through the cracks."
  • "After counsel notified the court, Moore stepped aside and Judges Pauline Newman and Alan Lourie heard the case on their own. 'Our appreciation and thanks to counsel for bringing this conflict to our attention now, rather than later,' Newman said."


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