Risk Update

DQ News — Face-focused Disqualification Fight Escalates, Talc Judge Denies DQ Motion to Take a Hike

Posted Dan Bressler

“Liveness detection IP court battle between Jumio and FaceTec turns nasty” —

  • “A legal dispute between face biometrics and liveness detection providers is turning nasty, with accusations of bad-faith dealing and dishonesty leveled in U.S. federal court. Legal representatives for Jumio accuse FaceTec of mischaracterizing the prior work of a law firm that used to represent the latter, and now the former, in a motion countering FaceTec’s move to have the firm removed from the dispute over an alleged conflict of interest.”
  • “Jumio’s representatives at Perkins Coie LLP say that FaceTec is merely attempting to smear the reputation of its litigation opponents, they say, citing the five months and 2,000 hours of work the law firm had spent defending the Palo Alto-based identity verification company before FaceTec filed its motion to remove it in December.”
  • “Jumio’s opposing motion in the Northern District of California denies the substance of FaceTec’s motion to remove, and accuses its competitor of expressing manufactured confidentiality concerns with ‘tactical timing.'”
  • “The law firm does not dispute that it worked with FaceTec, but argues that the billable hours reflect a relationship different and far shorter in duration than the 3D liveness provider indicated in its motion.”
  • “Perkins Coie argues on Jumio’s behalf that it did not work on the patents in question, contrary to FaceTec’s claim, and what work it did for FaceTec did not involve any confidential information material to the case. The motion says that another firm, Weide & Miller, did most of the work on FaceTec’s patents, and Perkins Coie did only a tiny amount of work on patent applications for the company, all prior to 2016. It claims it did not work on patents involving the comparison of two pictures, and that no attorney that worked on other FaceTec patents remains with the firm.”
  • “Perkins’ prior work for FaceTec ‘was not substantially related’ to the IP dispute, and the firm’s partner Lowell Ness was only an ‘occasional’ representative of FaceTec, according to the motion. Ness’ role as secretary for FaceTec at its founding was ‘customary’ and does not meet the criteria for disqualification, and the plaintiff’s other arguments are irrelevant, it says.”
  • “‘FaceTec argues two main grounds for disqualification: prior work on certain patent applications, and prior work on non-patent matters,’ the motion states. ‘Neither ground requires disqualification because none of the work was substantially related to this case under California law. But FaceTec also waived its request by its unreasonable, prejudicial delay.'”

“Ala. Judge Won’t Recuse In Talc Fight Due To Law Firm Work” —

  • “An Alabama federal judge will not recuse himself from a fight between two leading plaintiffs law firms in the multibillion-dollar litigation over Johnson & Johnson’s tainted talcum powder, saying Friday that his previous representation of Beasley Allen Law Firm won’t bias him against Smith Law Firm PLLC.”
  • “In a six-page order, U.S. District Judge R. Austin Huffaker Jr. shot down Smith Law’s recusal request.”
  • “It’s been more than five years since he represented Beasley Allen as a malpractice and disciplinary defense attorney at Rushton Stakely Johnston & Garrett PA, Judge Huffaker said, and he’s not especially close with anyone at the firm. He was appointed in 2019 by U.S. President Donald Trump.”
  • “‘Beasley Allen was just one of numerous other law firms and attorneys that I represented over the years,’ Judge Huffaker said. ‘That representation was occasional over the course of the years and constituted a small fraction of my overall client base and revenue generations on a year-to-year basis.'”
  • “Judge Huffaker’s ruling is the latest development in a bitter rift that’s opened between two former partners in the massive multidistrict litigation against J&J. Plaintiffs in the MDL claim they developed cancer from asbestos-tainted talcum powder.”
  • “Beasley Allen sued Smith Law in Alabama federal court in September, claiming the firm has sold out its own clients for a quick payday by supporting a controversial $9 billion settlement offer by J&J in order to pay off ‘litigation funding loans perhaps as high as $240 million,’ according to its complaint. Beasley Allen is suing Smith Law for breach of contract, among other things.”
  • “Smith Law hit back a few days later, suing Beasley Allen in Mississippi federal court for defamation over the ‘patently false’ accusations in its complaint.”
  • “The two firms have been cooperating on the sprawling talcum litigation under a joint venture agreement since 2013, and together they represent roughly 11,000 plaintiffs. Both have been instrumental in driving the litigation forward over the years.”
  • “J&J needs support from 75% of the roughly 100,000 individual talc claimants to move forward with the deal, and the pharmaceutical giant has reportedly been aggressively courting that support after two earlier proposed settlements withered on the vine.”
  • “Beasley Allen, meanwhile, has been leading the opposition to the proposed settlement, claiming it still doesn’t provide enough compensation to claimants who allegedly contracted cancer from asbestos-tainted talcum powder. Beasley Allen and J&J have clashed repeatedly in court over the issue.”