Friday, September 23, 2011


The order concludes:

The petition is granted. The district court is directed to vacate its order disqualifying Cooper and the Floyd & Buss law firm from further representation in this case.

Judge Newman in dissent:

The issue is not simply whether Nintendo’s informa- tion may be used against itself during this litigation; the issue is the integrity of the system of legal representation in today’s world of mobile lawyers and large law firms with interacting clients. Thus the system of firewalls has been accepted for many situations. Here, however, it appears that Cooper in his new employment is associated with issues involving his former employer, and that his former employment was at the highest level in interaction with Nintendo’s legal and strategic interests. If there is doubt, it must be resolved in favor of the entity whose information is in jeopardy.


The majority of this panel, in considering this court’s mandamus authority in local disqualification matters, overlooks the most important: that even in the face of irreparable harm, the district court’s reasonable conclu- sion is within that court’s discretion. The Ninth Circuit, whose law we apply here, has made clear “that a district court has the prime responsibility for controlling the conduct of lawyers practicing before it, and that an order disqualifying counsel will not be disturbed if the record reveals ‘any sound’ basis for the district court’s action.” In re Coordinated PreTrial Proceedings in Petroleum Prod- ucts Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir. 1981) (citing Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir. 1976)).
Our task is to ensure that the district court’s decision was not a “clear abuse of discretion or ‘usurpation of judicial power.’” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953) (citation omitted). That standard cannot be met where, as here, there is plausible support for the district court’s ruling. See In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985) (noting that “if a rational and substantial legal argument can be made in support of the rule in question, the case is not appropriate for man- damus.”).


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