Kellogg Hansen denies ethics conflict over Facebook defense

REUTERS/Dado Ruvic
  • Law firm represents plaintiff Daily Mail in MDL proceedings where client Facebook is a defendant
  • Manhattan federal judge raised concerns on his own
  • In new filing, Kellogg Hansen describes wall between plaintiff, defense work

(Reuters) - Kellogg, Hansen, Todd, Figel & Frederick is urging a New York federal judge not to disqualify the law firm from representing a news media plaintiff in antitrust multidistrict litigation in which another client, Facebook Inc, is a defendant facing liability over alleged market power abuses.

The law firm responded on Friday to concerns raised by U.S. District Judge P. Kevin Castel at a recent hearing in the MDL that is pending before him in Manhattan federal court. Castel said Kellogg Hansen's role as plaintiffs' counsel appeared potentially at odds with the firm's other work defending Facebook in an antitrust lawsuit in Washington, D.C., federal court.

In its court filing, Kellogg Hansen denied that its client in the MDL, U.K.-based plaintiff Associated Newspapers Ltd, owner of the Daily Mail publication, was adverse to Facebook. The Daily Mail in April sued only Google Inc for alleged antitrust claims, Kellogg Hansen partner John Thorne said, and the complaint was later centralized with other cases in which Facebook was a defendant.

"The Kellogg Hansen counsel for Daily Mail have been 'walled off' from participation in any matter involving Facebook," Thorne told Castel. "Kellogg Hansen has put in place an ethical wall to ensure that no attorney working on behalf of Daily Mail will access or obtain Facebook materials, and vice versa."

Thorne did not immediately return a message seeking comment on Monday, nor did Cravath, Swaine & Moore partner Kevin Orsini, co-head of the firm's litigation team and a lawyer for Facebook in the MDL.

More than a dozen complaints alleging advertising-related antitrust violations against Google and Facebook were transferred to Castel in August. The plaintiffs are small and large news publishers, Texas and 14 other states, small businesses and advertisers.

Lawyers for Google and Facebook have denied violating competition law.

Kellogg Hansen said the firm would not participate in discussions with other plaintiffs in the MDL about claims against Facebook, and the firm committed to not seeking discovery from Facebook or its employees.

At a status conference last month, Castel raised what he called possible "serious issues" on duty of loyalty for Kellogg Hansen.

The Daily Mail, Castel said, might want Kellogg Hansen to assert "a claim against Facebook but you can't do that because that's your present client. There may be discovery sought of Facebook. There may be joint prosecution meetings in which strategy is discussed about how to most effectively build a case against Facebook."

Castel called Kellogg Hansen's position a "tough situation" and said he'd weigh how the firm thinks it can make its two roles work simultaneously.

The case is In re: Google Digital Advertising Antitrust Litigation, U.S. District Court for the Southern District of New York, No. 1:21-cv-03446.

Plaintiffs' lawyers include W. Mark Lanier of the Lanier Law Firm; David Boies of Boies Schiller Flexner

For Google: Eric Mahr of Freshfields Bruckhaus Deringer

For Facebook: Kevin Orsini of Cravath, Swaine & Moore

Read more:

Kellogg Hansen's Facebook work spurs judge's conflict inquiry

U.S. judicial panel moves Texas lawsuit against Google to New York

Meet the Big Law alum leading the FTC's lawsuit against Facebook

Kellogg Hansen to defend Facebook in U.S. antitrust lawsuits

Our Standards: The Thomson Reuters Trust Principles.