In a pending Celebrex patent action worth potentially a billion dollars brought by Brigham Young University against Pfizer Inc., BYU recently scored a few points by convincing Magistrate Judge Brooke Wells that Pfizer’s counsel should be disqualified. Pfizer is represented by Winston & Strawn, including partner Gene Schaerr. Mr. Schaerr previously represented BYU in unrelated matters since 2001 while other Winston partners represented Pfizer in the Celebrex dispute. Magistrate Judge Wells remarked in her order that “Allowing Winston, who has represented BYU since 2005, and Mr. Schaerr, who has represented BYU since 2001, to suddenly shift all allegiances for the sake of monetary gain in a troubled economy undermines the interests of the parties, the legal profession, and the intent of the Rules of Professional Conduct.”
Winston’s conflict arose due to its lateral hire of Mr. Schaerr from Sidley Austin in 2005 and an interpretation of a waiver of conflict. The matter has been raised before the judge presiding over the case, District Court Judge Ted Stewart, who may or may not agree with Magistrate Judge Wells’ decision. This is just a reminder to play carefully with lateral hires. Good luck.
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