Risk Update

Disqualifications Denied — Chat App, Title Company & Cosmetics Patent Conflict Accusations

Posted Dan Bressler

“Judge Denies Cooley’s Bid to DQ King & Spalding in WhatsApp Case” —

  • “King & Spalding can continue to defend a surveillance technology firm accused of deploying malware targeted at WhatsApp Inc. users after a federal judge blocked the Facebook subsidiary’s attempt to boot the firm from the case.”
  • “In an order Tuesday, U.S. District Chief Judge Phyllis Hamilton of the Northern District of California denied WhatsApp’s motion to disqualify King & Spalding from representing NSO Group Technologies, finding that WhatsApp did not demonstrate that the law firm still has access to confidential material, or even that the material is substantially related to the new case.”
  • ‘”Hamilton noted the difficulty of comparing the two cases given that one of the matters is entirely under seal and both are mired in technical coding language. Yet, her analysis found that WhatsApp ‘has not demonstrated that the two matters are substantially related and absent such a relationship, there is no presumption that K&S acquired material confidential information.'”

“Morgan Lewis DQ Reversed In Calif. OT Case” —

  • “Morgan Lewis & Bockius LLP should not be disqualified from representing a real estate settlement service provider even though its attorneys allegedly communicated with members of an unpaid overtime class action, because the class didn’t establish that the firm violated ethical rules, a California state appellate court held.”
  • “The class members failed to demonstrate that Morgan Lewis obtained “confidential information material to the pending litigation” from the individuals during the conversations, which occurred after a decertification order but before a formal dismissal was entered, according to Thursday’s ruling by the Fifth Appellate District.”
  • “‘Proof of unauthorized contact with a represented party is not alone sufficient to justify disqualifying the culpable lawyer,’ the three-judge panel said.”

“L’Oreal Can’t DQ Lerner David In Cosmetics Patent Dispute” —

  • “A Texas federal judge on Wednesday denied L’Oreal’s bid to disqualify Lerner David Littenberg Krumholz & Mentlik LLP from representing a rival skin care line in their patent dispute, ruling the patents at the center of cases the firm previously worked on for L’Oreal are not substantially related to the one in this suit.”
  • “‘The ‘841 patent was prior art to both prosecutions in question, does not share a common priority application with either the ‘082 patent or the ‘319 application, and exhibits distinguishing technical factors,’ Judge Yeakel said. ‘The ‘082 patent and ‘319 application were prosecuted for French entities under the L’Oreal umbrella, not for L’Oreal USA Creative Inc. Lerner David has never represented L’Oreal USA Creative Inc.'”
  • “He further noted that the current action involves patent litigation, not prosecution, which is all that Lerner David had worked on for L’Oreal.”
  • “Judge Yeakel also pointed out that the attorneys who were primarily involved with the prosecution of L’Oreal’s patents have not been employed by Lerner David for years.”