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Enzo Life Sciences, Inc. v. Adipogen Corporation

United States District Court, Third Circuit

November 20, 2013

ENZO LIFE SCIENCES, INC., a New York corporation Plaintiff;
v.
ADIPOGEN CORPORATION, a California corporation, et al., Defendants.

Joseph Benedict Cicero, Esq. (argued), Cousins Chipman & Brown LLP, Wilmington, DE; Adam Cole, Esq. (argued), Cousins Chipman & Brown LLP, New York, NY, Attorneys for the Plaintiff.

John Leonard Reed, Esq. (argued), DLA Piper LLP, Wilmington, DE; James W. Weller, Esq. (argued), Nixon Peabody LLP, New York, NY, Attorneys for the Defendants.

MEMORANDUM OPINION

RICHARD G. ANDREWS, District Judge.

Presently before the Court for disposition is Defendants Adipogen, Corp., et. al.'s Motion to Disqualify Cousins Chipman & Brown, LLP as counsel to Plaintiff. (D.I. 117). This matter has been fully briefed (D.I. 118, 123, 126, 136, 137) and the Court held oral argument on September 12, 2013. (D.I. 138, hereinafter "Tr."). For the reasons set forth herein, the Defendants' motion is GRANTED.

BACKGROUND

On January 27, 2011, Plaintiff commenced this action against Defendants. (D.I. 1). Defendants retained the San Diego office of DLA Piper to serve as lead counsel and hired Mr. Reed of Edwards Angel Palmer & Dodge ("EAPD") as local counsel. (D.I. 14). DLA Piper's San Diego office resigned from the case due to their involvement in the underlying dispute, and Defendants in turn retained Mr. Ortego and Ms. Lukeman of Nixon Peabody in March 2011 to serve as lead counsel. (D.I. 27). Subsequently, Mr. Reed, along with other attorneys from EAPD, joined DLA Piper and continued as local counsel for the Defendants. (D.I. 123 at 7).

As part of DLA Piper's representation of the Defendants, the firm had Attorney Paul Brown work on Defendants' case. Mr. Brown logged the following hours:

• October 5, 2011 - Mr. Brown participated in a forty-minute long mediation teleconference with Magistrate Judge Burke;
• November 29, 2011 - Mr. Brown spent over two and a half hours reviewing and editing the ex parte mediation statement and discussing it with Mr. Reed and Mr. Avello;
• December 1, 2011 - Mr. Brown spent 45 minutes speaking with and writing to Mr. Cicero regarding the mediation;
• December 2, 2011 - Mr. Brown spent over an hour and a half again speaking to Mr. Cicero regarding the mediation and other issues;
• December 14, 2011 - Mr. Brown spent another four hours on the ex parte mediation statement;

(D.I. 126 at 5; Tr. 5). Furthermore, Mr. Brown signed a notice of service on September 15, 2011 (D.I. 51), a stipulation and proposed order on December 5, 2011 (D.I. 60), a response to a motion for the application for the issuance of letters of request for the production of documents of a third party in Switzerland on December 19, 2011 (D.I. 65), a declaration in connection with the aforementioned response on December 19, 2011 (D.I. 66), and a stipulation and proposed order on December 23, 2011 (D.I. 67). Mr. Brown then withdrew his appearance from the case on January 6, 2012. (D.I. 69).

Then on April 23, 2013, near the close of fact discovery (D.I. 108), Plaintiffs counsel withdrew. (D.I. 110). The Law Firm of Cousins Chipman & Brown, of which Mr. Brown is a named partner, entered its appearance on May 3, 2011. (D.I. 111). The firm notified Defendants of Mr. Brown's conflict and that an ethical screen would be imposed. The procedures of the screen were:

The following procedures are being employed by Cousins Chipman & Brown, LLP (the "Firm") with respect to the Enzo life Sciences, Inc. v. Adipogen Corp., et al. matter pending in the United States District Court for the District of Delaware (the "matter") and MUST BE FOLLOWED by all lawyers and personnel of the firm.
(1) No lawyer or other personnel of the firm is permitted to communicate with Paul Brown relating to the matter.
(2) Paul Brown shall not have access to any files or other information relating to the Matter, including information in electronic form.
(3) All files or information related to the Matter shall be maintained in designated file drawers, clearly labeled to indicate that access by Paul Brown is forbidden.
(4) All files or information related to the Matter stored electronically on the Firm's server shall be stored in a specifically designated folder, and only lawyers and personnel of the Firm assigned to ...

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