In Re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION
965 F. Supp. 2d 104
D.D.C.2013Background
- Latham & Watkins represented UP in the MDL beginning October 4, 2012, after conflicts checks found no conflicts.
- Oxbow, an absent class member, sued in a Related Case against UP and pursued discovery-related access in MDL proceedings.
- Oxbow previously engaged Latham on various matters since 2004, including a 2011 engagement letter with a broad conflicts waiver limited to Oxbow entities named in that letter.
- On July 31, 2012, Oxbow appeared in the MDL, and UP, represented by Latham (and others), opposed at least one of Oxbow’s motions; Latham states it did not assist UP in opposing Oxbow’s access motion.
- Oxbow moved to disqualify Latham on Rule 1.7(b)(1) grounds, asserting a direct adverse position between UP in the MDL and Oxbow in the Related Case, and argued that the MDL and Related Case constitute the same matter.
- The court ultimately denied Oxbow’s motion to disqualify, concluding no Rule 1.7(b)(1) violation occurred and that unnamed class members are generally not firm clients for conflict purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Latham’s MDL representation violated Rule 1.7(b)(1) by adverse positions to Oxbow. | Oxbow: MDL and Related Case are the same matter; UP adversarial stance harms Oxbow. | Latham: MDL and Related Case are separate matters; unnamed class members are not firm clients. | No, no Rule 1.7(b)(1) violation found. |
| Whether MDL and Related Case are the same matter. | Yes; same claims and parties create direct conflict. | No; separate matters with distinct proceedings. | Not the same matter. |
| Whether Oxbow as an unnamed class member creates direct adversity in the MDL. | Unnamed class member pursuing claims creates a conflict with UP. | Unnamed class members are not clients; no adversity. | Unnamed class member status does not create direct adversity here. |
| Whether Oxbow’s Motion for Access affects conflict ruling or triggers Rule 1.7(d) safe harbor. | Motion for Access signals broader adversity. | Safe harbor applies; conflict not foreseeably arising. | Conflict excused; disqualification still inappropriate. |
Key Cases Cited
- Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir. 1999) (conflict rules not drafted for class-action providers and may be at odds with class actions)
- In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992) (conflicts motions must be scrutinized; not routine)
- Laker Airways v. Pan Am. World Airways, 103 F.R.D. 22 (D.D.C. 1984) (conflicts balancing in interests of justice; conflicts must be proven)
- Lewis v. NFL, 146 F.R.D. 5 (D.D.C. 1992) (atypical class-member conflicts; distinguishable facts)
- Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17 (D.D.C. 2008) (disqualification standards and pleadings; court scrutiny)