Disqualification motions are tough. In the last 10 years, I count 2 successful motions in Delaware patent cases and 10 losers (although the counting is more complicated than usual as the issue tends to involve an inordinately large number of objections and requests for reargument, and often springs up again as the case evolves).
Still, one can learn things even from a failed attempt. Harbour Antibodies BV v. Teneobio, Inc., C.A. No. 21-1807-MN, for instance, gives us some insight into an issue that I'm surprised doesn't come up more often in this world of multinational megacorps and ultrafirms.
The plaintiff, Harbour, was a plucky little biotech startup that represented by the less little DLA Piper. DLA Piper, in turn, had previously represented pharma giant Amgen in some of its many pursuits around the globe including, reviewing “Amgen’s Worldwide Compliance and Business Ethics Program.” At the time the suit here began, however, the only active engagement between DLA and Amgen was limited to "Power Purchase Agreement Advice."
The defendant, Teneobio, was once a plucky little startup as well. After DLA agreed to represent Harbour, but before the complaint was filed, Tonebio was purchased by Amgen. Following the acquisition, Tonebio no longer "operate[s] as an independent business" and " does not have a separate legal department."
Ba-da-boom. Conflict.
The only wrinkle is the timing. Under the model rule (which Delaware's adopted), the analysis becomes more loosy-goosy if the conflict was "thrust upon" the firm. That is, if the firm couldn't have foreseen the conflict when it started the second representation. Here retired Judge Robinson, acting as special master, found the relative size of Amgen and DLA piper weighed against foreseeability and thus, disqualification
Where, as here, both the client (Amgen) and the law firm (DLA) are global in scope with multiple affiliates, it is critical to the integrity of the judicial process that “the client” be clearly identified. That did not happen here, and an unforeseeable conflict arose, It was Teneobio/Amgen’s burden to prove that disqualification is the most appropriate remedy under these circumstances. I have concluded that the burden of proof was not met and, therefore, I recommend that the Motion be denied.
Harbour Antibodies BV v. Teneobio, Inc., C.A. No. 21-1807 at 15 (D. Del. Oct. 3, 2022) (Report and Recommendation of Special Master).
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
