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FREIVOGEL ON CONFLICTS WHAT'S NEW Home/Table of Contents Items posted here during the past thirty days will also appear on this What's New page. Items posted within the past ten days will appear In Ten Day Bulletin immediately below. Items older than ten days but less than 30 days will be posted in the Thirty-Day Holding Area, which follows. Ten Day Bulletin Former Client (posted May 17, 2019) Chingee v. Canada, 2019 FC 532 (CanLII) (Fed. Ct. Canada May 1, 2019). Lawyer No. 1 did work for Indian Band in the 1980s on a title claim, and in the 1990s on an election dispute regarding interpretation of Indian Band's election law. Lawyer No. 1 brought this action on behalf of Plaintiff against Indian Band seeking a declaration that Plaintiff is a "Headman" under a certain treaty. Lawyer No. 2 substituted for No. 1 under a notice of change of solicitor. Indian Band moved to disqualify No. 1 and No. 2. In this opinion the court denied the motion. In a fact-intensive analysis the court found that No. 1 did not learn anything confidential and relevant to this case in his earlier representations of Indian Band. It would appear that whatever information possibly relevant to this case held by Indian Band had been public for many years. Thus, No. 1 was not in a position to relay to No. 2 any confidential Indian Band information relevant to this case. Former Client (posted May 17, 2019) Encore Energy, Inc. v. Morris Ky. Wells, LLC, No. 1:18-CV-00180-GNS-HBB (W.D. Ky. May 7, 2019). In this case Encore seeks a declaration that it is a "financial institution" within the meaning of 15 U.S.C. § 6801. Law Firm appeared for Morris. About seven years ago Law Firm represented Encore regarding enforcement of a covenant not to compete in an employment contract. Encore moved to disqualify Law Firm in this case. In this opinion the court granted the motion. The court said that in the earlier case Law Firm would have to show the nature of Encore's business in order to establish the scope of the covenant not to compete. Thus, the matters are substantially related. Waiver; Passage of Time (posted May 16, 2019) Burns v. Dimmit County, 2019 WL 2110710 (Tex. App. May 15, 2019). The court held that in waiting nine months to file a motion to disqualify, the movant waived the claimed conflict. Conflict Uncategorized (posted May 13, 2019) Perez v. Noah's Ark Processors, LLC, 2019 WL 2076793 (D. Neb. May 10, 2019). The NLRB is suing Employer to enjoin alleged unfair labor practices. During the NLRB investigation Employer retained Law Firm to counsel affected employees at Employer's expense. Clearly Law Firm did not represent Employer in this case, but it is less clear whether Law Firm represented Employer on other matters. The court assumed that Law Firm was fulfilling its "ethical obligation" not to represent Employer in this matter. Thus, the court found that providing counsel to the employees was not an unfair labor practice. The court did order an injunction on other claims in the case. MISCELLANEOUS ETHICS AND LIABILITY NEWS [Note: Items that do not fit under the conflicts categories below, but which we believe will be of interest to this audience will appear here and on the This and That pages.] Nothing current. CONFLICTS - UNCATEGORIZED [Note: These, too, will appear at the This and That pages.] Nothing current. BANKRUPTCY (To read full article, click here) (posted May 6, 2019) In re M&P Collections, Inc., 2019 WL
1975925 (W.D. Ky. April 30, 2019). This Chapter 11 case has two debtors,
M&P, a debt collection company, and F&M, its law firm. The
debtors jointly applied to retain the Kaplan law firm to administer the
estates. The U.S. Trustee objected because F&M's schedules show that
it owes M&P about $1 million, a debt that is not disputed. In this
opinion the bankruptcy judge granted the application. First, both
debtors owe the first secured creditor $3 million more than the amount
raised in the sale of the debtors' assets. Second, it is highly unlikely
that the estates will raise any additional funds. Thus, the Kaplan law
firm does not have an "actual conflict," only a "potential" one. The
court did say that it would entertain a U.S. Trustee objection if an
actual conflict did materialize. Nothing current. BOARD POSITIONS (To read full article, click here.) Nothing current. CHANGING FIRMS - SCREENING (To read full article, click here.) CLASS ACTIONS (To read full article, click here.) Nothing current. Nothing current. CO-COUNSEL/COMMON INTEREST (To read full article, click here.) Nothing current. Nothing current. CORPORATIONS (To read full article, click here.) CORPORATE FAMILIES (To read full article, click here.) CRIMINAL PRACTICE (To read full article, click here.) Nothing current. CURRENT CLIENT (To read full article, click here.) (posted April 19, 2019) Blake Marine Group LLC v. Frenkel & Co.,
2019 WL 1723567 (S.D.N.Y. April 18, 2019). Blake Marine, the plaintiff,
performed services for Forward Marine in connection with a damaged
barge in the Gulf of Mexico. Defendant, Frenkel is Forward's insurance
broker. Frenkel admits it was supposed to obtain, but failed to obtain,
an insurance policy for Forward that would cover Blake Marine's work.
InsCo was the intended policy issuer. Forward Marine assigned its claims
against Frenkel to Blake Marine. Blake moved to disqualify the law firm
("Law Firm") appearing for Frenkel. While Law Firm represents InsCo in
other matters, there is no conflict here. Frenkel and InsCo are in
alignment because they both agree that the policy did not issue.
Moreover, InsCo, although not a party in this case, has hired other
counsel in connection with this case. DERIVATIVE ACTIONS (To read full article, click here. Nothing current. ENJOINING CONFLICTS (AND OTHER NON-TRADITIONAL REMEDIES) (To read full article, click here.) Nothing current. EXPERT WITNESSES (To read full article, click here.) Nothing current. FORMER CLIENT (To read full article, click here.) (posted May 17, 2019) Chingee v. Canada, 2019 FC 532 (CanLII)
(Fed. Ct. Canada May 1, 2019). Lawyer No. 1 did work for Indian Band in
the 1980s on a title claim, and in the 1990s on an election dispute
regarding interpretation of Indian Band's election law. Lawyer No. 1
brought this action on behalf of Plaintiff against Indian Band seeking a
declaration that Plaintiff is a "Headman" under a certain treaty.
Lawyer No. 2 substituted for No. 1 under a notice of change of
solicitor. Indian Band moved to disqualify No. 1 and No. 2. In this
opinion the court denied the motion. In a fact-intensive analysis the
court found that No. 1 did not learn anything confidential and relevant
to this case in his earlier representations of Indian Band. It would
appear that whatever information possibly relevant to this case held by
Indian Band had been public for many years. Thus, No. 1 was not in a
position to relay to No. 2 any confidential Indian Band information
relevant to this case. (posted May 17, 2019) Encore Energy, Inc. v. Morris Ky. Wells, LLC, No. 1:18-CV-00180-GNS-HBB (W.D. Ky. May 7, 2019). In this case Encore seeks a declaration that it is a "financial institution" within the meaning of 15 U.S.C. § 6801. Law Firm appeared for Morris. About seven years ago Law Firm represented Encore regarding enforcement of a covenant not to compete in an employment contract. Encore moved to disqualify Law Firm in this case. In this opinion the court granted the motion. The court said that in the earlier case Law Firm would have to show the nature of Encore's business in order to establish the scope of the covenant not to compete. Thus, the matters are substantially related. (posted May 3, 2019) SC Innovations, Inc. v. Uber Techs., Inc.,
2019 WL 1959493 (N.D. Cal. May 2, 2019). In this case Plaintiff is suing
Uber for violating federal antitrust laws and state unfair practice
laws. This includes predatory price manipulation. The law firm
representing Plaintiff ("Law Firm") represented Uber in nine cases
between 2012 and 2016. That work included the "defense of several
antitrust cases." Law Firm and Uber parted company because of a billing
disagreement. Uber moved to disqualify Law Firm in this case. In this
opinion the magistrate judge granted the motion. The court relied
principally on a Maryland case that Law Firm defended. That case also
contained claims against Uber for predatory pricing. The opinion
includes a lengthy description of the substantial relationship test and a
fairly fact-intensive description as to Law Firm's opportunities to
learn things about Uber that would be helpful in this case. Nothing current. HOT POTATO DOCTRINE (To read full article, click here.) Nothing current. INITIAL INTERVIEW - HEARING TOO MUCH (To read full article, click here.) Nothing current. INSURANCE DEFENSE (To read full article, click here.) Reservation of Rights (posted May 6, 2019) Xtreme Protection Servs., LLC v. Steadfast Ins. Co.,
2019 IL App (1st) 181501 (Ill. App. May 3, 2019). David Israel, in the
underlying case, sued Xtreme for illegal wiretapping and sending Israel
"threatening or harassing text messages." The complaint sought
compensatory and punitive damages. Xtreme tendered the complaint to its
insurance carrier, Steadfast. Steadfast agreed to defend. Steadfast
waived any policy defense based upon intentional conduct, but reserved
as to the policy's explicit exclusion for punitive damages. Thus, Xtreme
sought to hire it own counsel at Steadfast's expense. Steadfast refused
and instead sought to choose counsel to defend all claims. Xtreme then
brought this action for a declaration that it could hire its own counsel
at Steadfast's expense. The trial court granted Xtreme's motion for
judgment on the pleadings. In this opinion the appellate court affirmed.
Israel's claim against Xtreme in the underlying case is for $800,000 in
compensatory damages (within Steadfast's $1 million policy limit), and
for $4 million in punitive damages. While Xtreme would be interested in a
pre-trial settlement, Steadfast "loses nothing in letting the case go
to the jury." One Client or Two (posted April 26, 2019) Developers Diversified of Tenn., Inc. v. The Tokyo Marine & Fire Ins. Co.,
2019 WL 1861322 (M.D. Tenn. April 25, 2019). In this case Plaintiff
successfully sought a declaratory judgment against Defendant, InsCo.
This opinion concerns Plaintiff's claim for lawyers' fees and costs. One
of InsCo's defenses was that Plaintiff's one-time law firm ("Law Firm")
had a conflict of interest. In this opinion the magistrate judge, among
other things, discussed the conflicts issues. The problem was that Law
Firm had, on numerous occasions, represented InsCo's insureds. The court
dismissed that argument by noting that in Tennessee the law firm
retained by an insurance company to defend an insured represents the
insured and not the insurance company, citing Petition of Youngblood,
895 S.W.2d 322 (Tenn. 1995). That alone probably should have resolved
the conflict issue. However, the opinion includes confusing discussions
of playbook, the "hot potato" doctrine, waiver by delay, and "no harm,
no foul" (our term). INVESTING IN CLIENTS/STOCK FOR FEES (To read full article, click here.) Nothing current. JOINT/MULTIPLE REPRESENTATION (To read full article, click here.) (posted April 19, 2019) Platinum Props. Investor Network, Inc. v. Sells,
2019 WL 1670893 (S.D. Fla. April 17, 2019). Trademark infringement case
with related state claims. Two law firms appeared jointly for the four
named defendants. Plaintiffs moved to disqualify both law firms. In this
opinion the magistrate judge denied the motion. The court found that
the defendants' positions were "closely aligned" and that there was no
conflict in representing all of them. Moreover, the defendants consented
to the joint representation and were given an opportunity to consult
with independent counsel. LAWYER AS EXPERT WITNESS OR CONSULTANT (To read full article, click here.) Nothing current. Nothing current. MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.) Nothing current. OF COUNSEL (To read full article, click here.) Nothing current. OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (To read full article, click here.) Nothing current. PARTNERSHIPS (INCLUDING LIMITED PARTNERSHIPS) (To read full article, click here.) Nothing current. SETTLEMENT AGREEMENTS (To read full article, click here.) Nothing current. STANDING (To read full article, click here.) Nothing current. Nothing current. UNDERLYING WORK PROBLEM (To read full article, click here.) Nothing current. WAIVERS/CONSENTS (To read full article, click here.) Passage of Time (posted May 16, 2019) Burns v. Dimmit County,
2019 WL 2110710 (Tex. App. May 15, 2019). The court held that in
waiting nine months to file a motion to disqualify, the movant waived
the claimed conflict. WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.) Nothing current. Home/Table of Contents Website powered by Network Solutions® |