Risk Update

Risk Decisions of Note — Changing Firms/Screening, Expert Witness Conflict, Initial Client Interview, Class Action Matter & More

Posted Dan Bressler

November has been a busy month for Bill Freivogel. Some of his updates posted here, with kind thanks. As always with Bill, it’s the little bits of thought and commentary among the summaries that make it all a rewarding read:

  • Shenzhen Long King Logistics Co., Ltd. v. Hop Wo Int’l Trading, Inc., 22-CV-10682 (VEC) (S.D.N.Y. Nov. 3, 2023).
    • This is a breach of contract case involving Defendant’s failure to pay shipping fees for nine containers shipped from China to New York. Law Firm represents Plaintiff. Defendant moved to disqualify Law Firm because Law Firm had earlier represented Defendant in analyzing individual warehouse leases.
    • In this opinion the court denied the motion holding that Defendant was not a current client of Law Firm.
    • The somewhat interesting aspect is the court’s characterization of each lease review as individual representations that ended at the conclusion of each review. The court noted the absence of any written expression of a continuing representation. The court also said Defendant’s subjective feeling that the representation was continuing did not make it so. As to the court’s former-client analysis, it was too routine for additional comment here.
  • Take2 Techs. Ltd. v. Pac. Biosciences of Cal., No. 5:23-cv-04166-EJD, 2023 WL 7346246 (N.D. Cal. San Jose Div. Nov. 6, 2023).
    • Law Firm represents Plaintiff in this patent-related case. Lawyer moved from Law Firm to the in-house law department of Defendant. Plaintiff moved to disqualify Lawyer and the entire law department of Defendant.
    • In this opinion the court granted the motion as to Lawyer. And, the court found that Lawyer had “substantially” participated in this matter while at Law Firm. The court said that if Lawyer had joined a “conventional law firm,” the entire firm would be disqualified under California’s screening rule. However, the court noted that conflicts law regarding in-house law departments was undeveloped. The court declined to disqualify Defendant’s entire law department, but said that some limitations should be put on Lawyer’s relationship with specific members of the law department. The court ordered the parties to confer and agree on those limitations.
  • Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023).
    • This is one of a series of cases dealing with injuries from allegedly defective hip replacement systems. Expert had originally done consulting work for Manufacturer/Defendant. Expert has now shown up as an expert for injured plaintiffs, including Plaintiff here.
    • This was a very fact-intensive analysis resulting in the disqualification of Expert. We will spare you with specifics. The court concluded that Defendant had an expectation of confidentiality from Expert and that Defendant had shared confidences relating to this case with Expert. Thus far, Expert has been disqualified in six cases against Defendant and allowed to remain in one.
  • In re Mignott, 2023 WL 6976464 (Ga. Oct. 24, 2023).
    • Lawyer learned information from a “prospective client,” not an “actual client.” Lawyer later revealed that information in a proceeding adverse to the prospective client.
    • All that occurred prior to Georgia’s adoption of Rule 1.18. Disciplinary officials found Lawyer had violated Rules 1.8 and 1.9 and ordered Lawyer suspended.
    • In this opinion the court reversed, saying Lawyer had not acted unethically because rules in effect at the time of the charged conduct did not accomplish what Rule 1.18 was intended to do.
  • In re Blue Cross Blue Shield Antitrust Litig. MDL 2406, No. 22-13051 (11th Cir. Oct. 25, 2023).
    • This is an appeal from a trial court approval of a settlement agreement of a class action against Blue Cross Blue Shield. One objection is that the same counsel and class representatives are representing both an injunctive class and a damages class.
    • In this opinion the appellate court rejected that objection. “Given the near-complete overlap in class membership, [the objector] does not offer any evidence that one class was harmed by conduct that benefitted the other.” [Our note: The background of this case involving the provision of health insurance to “subscribers” and “providers” under the antitrust laws is too complex for treatment here. You are on your own.]