Risk Update

Law Firm Conflicts and Disclosures — Expert Witness Contacts Cause DQ Motion, “Far from Exemplary Conduct” Conflict Call

Posted Dan Bressler

“DLA Piper Exhibited ‘Far From Exemplary Conduct’ in Patent Infringement Case, Judge Finds” —

  • “A federal judge has ruled that DLA Piper can continue representing a plaintiff in a patent infringement dispute even though the firm also counsels the defendant’s parent company, in a case that could have implications for Big Law when it comes to identifying and disclosing conflicts of interest.”
  • “In an October 23 decision, U.S. District Judge Maryellen Noreika, of the District of Delaware, agreed with a report by a special master that recommended denying a defense motion to disqualify DLA Piper as plaintiffs’ counsel. But the judge also admonished DLA Piper for its ‘far from exemplary conduct’ in handling the matter.”
  • “The motion for disqualification was made by Nick Groombridge, an attorney representing defendant TeneoBio Inc., a biotech company, which sought to disqualify DLA Piper from being adverse to it in the patent infringement litigation because TeneoBio is a wholly-owned subsidiary of Amgen, which acquired TeneoBio in October 2021.”
  • “DLA Piper represents the plaintiffs, who include Harbour Antibodies BV, another biotech company.”
  • “The special master, also a former federal judge from Delaware, had found that DLA Piper’s representation of Amgen in unrelated matters didn’t automatically mean that DLA Piper also represents TeneoBio, the subsidiary. She had found that the record was unclear as to whether DLA Piper’s representation of Amgen included representation of its affiliates.”
  • “However, the special master later determined that DLA Piper’s representation of Harbour against TeneoBio in the current litigation appears likely conflictual, although she found that the conflict was ‘thrust upon’ DLA Piper because the conflict didn’t exist at the time DLA Piper agreed to represent Harbour in the litigation.”
  • “While the judge affirmed the special master’s recommendations, and permitted DLA Piper to continue with its representation of the plaintiff, she noted in her opinion that the burden of proving the ‘thrust upon’ doctrine rests with the party possessing the conflict—in this case, the plaintiffs—and not TeneoBio, as the special master had found.”
  • “The judge noted that case law on the ‘thrust upon’ doctrine is fairly sparse, although she found that ‘similar legal frameworks as well as other district courts’ applications of the ‘thrust upon’ doctrine support the conclusion that it was DLA’s burden to prove the ‘thrust upon’ doctrine applied.'”
  • “‘We don’t think it’s appropriate for law firms to say, ‘Well, even though I represent you, I could sue your subsidiary,” said Nicholas Groombridge, who represents TeneoBio. ‘I think that the ruling here is very much a recognition of that right,'”
  • “Given increased M&A activity in the corporate world, this scenario may become more common since ‘there just aren’t that many players in some industries,’ Groombridge said.”
  • “In her ruling, Noreika wrote that DLA Piper cannot benefit from the ‘thrust upon’ doctrine because the conflict did not arise through no fault of the law firm, but rather the ‘representation of adverse interests occurred when [DLA] investigated, drafted, and filed the complaint in this case.'”
  • “‘It is evident DLA knew that its representation of Harbour could materially impact its client, Amgen, because DLA wrote in the complaint for this action that Amgen had acquired TeneoBio for ‘more than $2.5 billion,’ Noreika wrote. ‘Although it is true that a lawyer is not per se prohibited from representing a party adverse to the subsidiary of a corporate client, the duties of loyalty and confidentiality require that the lawyer take affirmative steps to ensure that the line has not been crossed.'”

“Blank Rome Faces DQ Bid Over Alleged Tampering” —

  • “An attorney suing three lawyers from Blank Rome LLP wants the firm’s other attorneys disqualified from representing their colleagues, accusing them of improperly contacting a plaintiff’s expert witness to intimidate him into no longer participating in the case.”
  • “Plaintiffs Veronica Turner, a lawyer, and her husband, Kevin Turner, moved to disqualify Blank Rome attorneys Thursday [9/26] from representing their colleagues James T. Smith, Rebecca Ward and Heidi G. Crikelair. Veronica Turner also asked a Pennsylvania federal court for sanctions against the attorneys for their interactions with expert witness Dr. Richard S. Goldberg.”
  • “‘The improper contacts with Dr. Goldberg require severe sanctions, particularly if (as it appears at the time of this writing) they have caused Dr. Goldberg to cease his involvement in this matter and left plaintiff without a psychiatric expert,’ Turner said Thursday in her motion.”
  • “The attorneys Turner is seeking to have tossed from the suit are Brian Paszamant and Jeffrey Rosenthal, as well as Blank Rome itself, according to the motion.”
  • “Turner is suing the three lawyers as well as aircraft motor manufacturer Avco and its parent company, Textron Inc., for retaliation after she switched from corporate defense to the plaintiffs bar. She previously represented Avco Corp.’s Lycoming Engines division in ‘major aircraft crash litigation,’ representation that had lasted from 2005 through November 2017.”
  • “Goldberg is a psychiatrist who was retained to perform a forensic psychiatric examination of Turner. She argued that counsel for the three attorneys contacted Goldberg, left him a voicemail and even spoke to his office about the status of Turner’s case file.”
  • “Turner said her attorneys were not advised of the contacts with Goldberg. Additionally, Turner argued that Blank Rome served Goldberg with an invalid short-notice subpoena.”
  • “Since then, Turner’s team has tried several times to schedule a deposition with Goldberg, but he’s stopped responding to them.”
  • “‘Plaintiffs believe the aforesaid ex parte contacts with Dr. Goldberg were intended to intimidate him and to drive him to cease his involvement in the instant case. They regrettably appear to have succeeded,’ the motion said.”