Risk Update

Law Firm Conflicts Accused and Assessed — “Odd Lineup” Conflicts Concern, Insurance Distribution DQ Debate

Posted Dan Bressler

“Judge Raises Conflict Concerns About Kellogg Hansen in Google Advertising Cases” —

  • A federal judge has ordered Washington, D.C.’s Kellogg, Hansen, Todd, Figel & Frederick to explain how the firm plans to represent British newspaper Daily Mail in a lawsuit against Google over its digital advertising while also representing Facebook in an antitrust case brought by the Federal Trade Commission.”
  • “Kellogg Hansen partner John Thorne filed an April 20 lawsuit against Google on behalf of Daily Mail publishers Associated Newspapers Ltd. and Mail Media Inc. Although his lawsuit is focused only on Google, it is now one of more than 20 lawsuits coordinated in multidistrict litigation. Facebook is named as a defendant in 16 of those lawsuits, which contend the social media company struck a ‘secret agreement’ in 2018 with Google to manipulate online auctions that generate digital advertising revenue.”
  • “‘This is a present representation,’ Castel said to a room full of lawyers, who attended the hearing in person. ‘And there may be serious issues on duty of loyalty—duty of loyalty to the Daily Mail or Associated Newspapers, whatever it’s called—that may require you to recommend asserting a claim against Facebook, but you can’t do that because that’s your present client. There may be discovery sought of Facebook. There may be joint defense—not joint defense— joint prosecution meetings, in which strategy is discussed about how do most effectively build a case against Facebook? And I just don’t see how this can happen with the presence of a law firm that, as we speak, represents Facebook. Care to comment?'”
  • “Thorne told the judge that Daily Mail had done an ‘extensive’ pre-investigation of its case and that Facebook was a “good partner’ of the Daily Mail. ‘If we ever got to a point where Daily Mail wanted to bring a case against Facebook, I would not be a part of it,’ he replied.”
  • “Castel pushed further. ‘Should I bring you into a joint prosecution meeting on how to nail Facebook?’ he asked Thorne. Thorne insisted he could step out of those meetings, but Castel wasn’t convinced. ‘This is what I’m going to require you to do: To brief why there is not, in your view, a present conflict,’ he said. ‘And why it would not be a conflict for you to participate in group meetings?'”
  • “‘I’m not accusing anybody of bad faith here, but it’s an odd lineup,’ Castel said at the hearing. ‘It’s a tough situation, and I don’t have a solution or answer as to how you get walled off in meetings.'”
  • “The multidistrict litigation over Google’s digital advertising alleges the tech company violated federal and state antitrust laws. Lawsuits were filed on the heels of an Oct. 6, 2020, report by the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law that suggested sweeping overhauls of antitrust law to address growing concerns that Google, Facebook, Amazon and Apple illegally monopolized their markets.”

“Faegre Drinker Facing DQ Bid In Del. Insurance Row” —

  • ” Specialty insurance distributor Amwins Group is urging a Delaware federal judge to disqualify Faegre Drinker Biddle and Reath LLP from representing carriers it has sued for breach of contract, saying the firm may have a potential conflict of interest. In a brief filed on Thursday, Amwins Group LLC told U.S. District Judge Leonard P. Stark Faegre Drinker should be disqualified because it is ‘concurrently representing Amwins’ interests in a Texas case and adverse to Amwins in this case.'”
  • “In its brief, Amwins contends Faegre Drinker should be disqualified because it represents a former Amwins subsidiary in an insurance case in Texas. ‘As the financially responsible party in the Texas case, Amwins has a vital financial interest in the Texas case,’ the brief said. ‘Amwins has paid $200,000 in legal fees and expenses to FD for its services in the Texas case.'”
  • “Faegre Drinker has rejected a request to withdraw from the Delaware case and denied that it ‘owed any ethical duty to Amwins,’ according to the filing. However, Amwins argues that the firm ‘has a concurrent conflict of interest’ and should be barred from continuing to serve in the Delaware case.”