Risk Update

Judicial Disqualification — Relations, Ethical Walls, and Respectful, Reluctant Notice

Posted Dan Bressler

“Opioid Judge Withdraws After AbbVie Elevates His Atty Sister” —

  • “Despite drugmaker warnings of “harmful and unwarranted” disruption, an Illinois magistrate judge withdrew Thursday from Chicago’s bellwether case against drugmakers in multidistrict opioid litigation after the city flagged his sister’s new role overseeing thousands of opioid cases for AbbVie Inc.”
  • “U.S. Magistrate Judge Young B. Kim, who started managing discovery and other issues in the case more than six years ago, recused himself in response to the city’s concerns about his sister — longtime AbbVie in-house counsel Nancy Kim — recently being designated to manage the company’s vast docket of opioid-crisis lawsuits.”
  • “According to the entry, Chicago and the public might question ‘the newly arisen conflict of interest’ involving his sister, and drug companies could perceive ‘that the court will overcompensate to appear to be unbiased’ against the city.”
  • “Illinois-based AbbVie’s involvement in the case stems from its acquisition of Allergan PLC, which is facing more than 3,000 lawsuits alleging unlawful marketing and sales of prescription narcotics. Shortly after the acquisition last year, Judge Kim notified the city and the drugmakers that he now had a family connection to the case, but the parties said they had “no issues or objections,” according to a June docket entry.”
  • “More recently, however, Nancy Kim was tapped to replace a departing AbbVie lawyer in charge of the company’s opioid cases. In an email last month, Kirkland & Ellis LLP partner Donna Welch, counsel for Allergan, informed the city that Nancy Kim ‘will work closely’ with Kirkland and other firms ‘to develop and oversee the litigation and settlement strategy regarding opioid litigation at a national level.'”
  • “According to Welch’s email, Allergan was willing to erect ‘an ethical wall’ between Nancy Kim and Chicago’s case, ensuring that she would have no role ‘other than being informed of key developments.’ Last Friday, Chicago filed a “notice of these new facts for consideration of recusal,” averring that Nancy Kim’s managerial role means that she would be ‘acting as a lawyer’ in the city’s case.”
  • “Despite the proposal for an ethical wall, ‘Allergan’s national litigation strategy, settlement positions and defenses will necessarily carry over to the Chicago litigation,’ the city wrote, adding that it filed the notice ‘respectfully and reluctantly.'”