Antitrust Counsel Beware: Divergent Disqualification Decisions Raise Questions About Positional Conflicts
By LEE F. BERGER, PANTEHA ABDOLLAHI, & ANDREW R. BOOTH
Modern antitrust litigation typically involves a web of parties: named class representatives, unnamed class members, opt-out or “direct action” plaintiffs (usually large corporations), state attorneys general, third parties (subpoena targets and amici) and defendants (also usually large corporations). Antitrust attorneys entering the fray usually are careful to address standard conflicts issues: ensuring that no directly adverse party is a client of the firm, getting waivers and establishing ethical walls when a conflict can be resolved, and helping the client to find alternative, unconflicted counsel when it cannot. But increasingly, large corporate litigants are opting out of class actions and filing their own separate direct action lawsuits, creating an additional layer of potential conflicts questions. Such opt-out cases bring to the fore the issue of whether a “positional conflict” constitutes an ethical rules violation and supports disqualification of counsel.