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Bd. of Regents of the Univ. of Neb. v. BASF Corp.

United States District Court for the District of Nebraska

August 17, 2006, Decided

4:04CV3356

Opinion

MEMORANDUM AND ORDER

Intervening plaintiff Monsanto Company ("Monsanto") has moved to disqualify defendant BASF Corporation's ("BASF") counsel in this action, Gregg F. LoCascio, Charanjit Brahma, and the firm of Kirkland & Ellis LLP ("K&E"). Monsanto claims that K&E has a conflict of interest which disqualifies them from ethically representing BASF in this case.

Monsanto claims that it has been a client of K&E since 2000, in that it is a defendant represented by K&E in pending litigation in Mississippi. Monsanto contends that its interests in this case are directly adverse to those of BASF and that Monsanto did not give K&E informed consent to represent BASF in this litigation. It concludes that K&E's continued representation of BASF in this case is prohibited by both the Nebraska Rules of Professional Conduct and the Nebraska Code of Professional Responsibility and thus by the local rules of this court.

BASF counters with arguments that K&E has represented BASF for years, that it did not learn of Monsanto's claim to an exclusive license of the technology at the center [*3]  of this case until after it had commenced its representation of BASF, and that it did obtain Monsanto's informed consent to continue representing BASF in this case. It further contends that the Mississippi litigation is unrelated to this case and Monsanto's motion is part of a broader strategy to extract business concessions from BASF. It argues that the alleged conflict, if it exists, was created by Monsanto and was "thrust upon" K&E, and further, that disqualification would deny BASF its counsel of choice to its significant prejudice. Filing 86. 1

FACTS

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2006 U.S. Dist. LEXIS 58255 *; 2006 WL 2385363

BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA, Plaintiff, v. BASF CORPORATION, Defendant, and MONSANTO COMPANY, Intervening Plaintiff.

Subsequent History: Motion granted by Bd. of Regents of the Univ. of Neb. v. BASF Corp., 2006 U.S. Dist. LEXIS 64153 (D. Neb., Sept. 6, 2006)

Prior History: Bd. of Regents v. BASF Corp., 2006 U.S. Dist. LEXIS 25556 (D. Neb., Mar. 23, 2006)

CORE TERMS

informed consent, technology, license, lawyers, confirmed, circumstances, conflicting interest, disqualify, rights, continued representation, biotechnology, no evidence, disqualification motion, professional conduct, proposed course, Counterclaims, intervene, parties, new counsel, confidential, acquisition, concurrent, argues, inform, exclusive license, news release, disqualification, non-exclusive, resistance, discovery