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Facebook Seeks to DQ Antitrust Plaintiffs’ Firm Over New Hire

May 10, 2021, 6:59 PM

Facebook Inc. is seeking to disqualify one of the law firms leading a case over its alleged scheme to squash rival startups, arguing in California federal court that Keller Lenkner LLC should step aside after hiring an attorney who spent six months preparing the tech giant’s antitrust defense.

“Notwithstanding the obvious conflict of interest created by an attorney switching sides,” Keller Lenkner didn’t screen its new hire until four months after he started, the company says. “Facebook can never know which of the firm’s actions are tainted by that ethical violation.”

Keller Lenkner managing partner Travis Lenkner declined to comment directly on the motion Monday.

“We prefer to speak through our opposition papers, which we look forward to filing,” Lenkner told Bloomberg Law.

The lawsuit, consolidated in the U.S. District Court for the Northern District of California, involves claims by consumers and advertisers that have accused the tech giant of monopolizing social media by exploiting its troves of user data to identify potential competitors to buy, copy, or kill.

The allegations echo the landmark enforcement cases brought by the Federal Trade Commission and nearly every state, separate proposed class actions on behalf of publishers and app developers, and a wave of suits alleging secret collusion between Facebook and Google.

Judge Lucy H. Koh, who’s overseeing only the consumer and advertiser claims, appointed Keller Lenkner to the executive committee for the consumer plaintiffs at a March 18 hearing.

In a May 7 motion asking her to reverse that decision, Facebook says the firm waited too long before honoring its ethical duty to put up a wall between the case and a former Facebook attorney it hired from Kellogg, Hansen, Todd, Figel & Frederick PLLC.

The lawyer came over from Kellogg Hansen in June 2020—after six months of “deeply involved” work on Facebook’s defense against the government antitrust probes—but Keller Lenkner didn’t put up a screen until November, the disqualification motion says.

The firm then “overstated” the screen, including in court, according to Facebook, which claims its concerns were “exacerbated” because Keller Lenkner was removed from a case involving Uber Technologies Inc. for playing “fast and loose with this same ethics rule.”

“This was not an insignificant or incidental representation” but an attorney who worked closely with Facebook and “was frequently entrusted with” its “confidential and privileged information,” the motion says.

Although Keller Lenkner declined to comment, court filings indicate the firm’s position is that it screened the former Kellogg Hansen attorney before taking on any clients adverse to Facebook.

But it should have screened him earlier under ethics rules that apply to any “matter,” not just any “case,” Facebook says.

Facebook is represented by Wilmer Cutler Pickering Hale & Dorr LLP.

Quinn Emanuel Urquhart & Sullivan LLP and Hagens Berman Sobol Shapiro LLP are interim class counsel for the consumers, whose executive committee also includes Keller Lenkner and Lockridge Grindal Nauen PLLP.

Bathaee Dunne LLP and Scott & Scott LLP are interim class counsel for the advertisers, whose executive committee also includes Ahdoot & Wolfson PC and Levin Sedran & Berman LLP.

The case is Klein v. Facebook Inc., N.D. Cal., No. 20-cv-8570, motion to disqualify filed 5/7/21.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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