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(Reuters) - A federal judge on Friday raised an ethics question about whether Kellogg, Hansen, Todd, Figel & Frederick can represent a plaintiff in multidistrict antitrust litigation against Alphabet's Google Inc and Facebook Inc while also defending the social media giant in a lawsuit brought by the Federal Trade Commission.
U.S. District Judge P. Kevin Castel in Manhattan federal court brought up the inquiry on his own at a hearing as part of a broader discussion about scheduling in the MDL involving claims that Google and Facebook suppress competition in the market for online advertising.
More than a dozen lawsuits from U.S. states, small businesses, publishers and advertisers were transferred to the Southern District of New York in August and assigned to Castel. In the MDL, Kellogg Hansen partner John Thorne represents the British media company Associated Newspapers Ltd, which runs the Daily Mail news outlet, in a case against Google. Kellogg Hansen's Mark Hansen is leading the defense of Facebook in the FTC's antitrust lawsuit in Washington, D.C.
Castel said any joint plaintiffs' meetings where strategy is discussed in the MDL could expose Kellogg Hansen to an ethics conflict. Castel directed the law firm to respond to him in about a week about why the firm does not face a conflict.
"It's very unwieldy in cases in which Google and Facebook are both defendants. To have you as Facebook's lawyer sit in the room, I don't know how that would work. But I'm going to give you an opportunity to lay that out," Castel said at the hearing.
A lawyer for Facebook in the MDL who attended the hearing, Kevin Orsini, co-leader of the litigation department at Cravath, Swaine & Moore, did not respond to a message seeking comment on Friday.
Thorne also did not respond to messages seeking comment after the hearing. Thorne's colleague Mark Hansen, a lead attorney for Facebook in the FTC lawsuit, declined to comment.
Addressing Castel at Friday's hearing, Thorne said the Daily Mail had made a choice to bring a case against Google "and that is what we are pursuing."
Thorne said Kellogg Hansen was a "deeply invested" advocate for the Daily Mail. He described the "huge legal fees" it took to investigate and develop the Daily Mail's lawsuit, filed in April in Manhattan federal court before the multidistrict transfer order was issued.
"We really can't sit still or go on the sidelines. The Daily Mail wants the arrangement it's got," Thorne said. "It has no claim against Facebook."
Thorne said he would plan to step out of any plaintiffs' strategy meetings that delved into the effort to hold Facebook liable for alleged antitrust violations.
Castel said he was "not accusing anyone of acting in bad faith here." He called Kellogg Hansen's situation "tough" and an "odd lineup."
"I don't have the solution or answer as to how you get walled off in meetings," Castel said.
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:
Meet the Big Law alum leading the FTC's lawsuit against Facebook
U.S. judicial panel moves Texas lawsuit against Google to New York
Kellogg Hansen to defend Facebook in U.S. antitrust lawsuits
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September 25, 2021 at 04:40AM
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Kellogg Hansen's Facebook work spurs judge's conflict inquiry - Reuters
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