Kellogg Hansen’s Facebook Work Boosts Judge’s Conflict Investigation


  • Law firm defends Facebook in FTC antitrust lawsuit in Washington, DC
  • Kellogg Hansen represents Daily Mail as a plaintiff in MDL in which Facebook and Google are defendants
  • “I am not accusing anyone of acting in bad faith here”, said the judge

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(Reuters) – A federal judge on Friday raised an ethical question over whether Kellogg, Hansen, Todd, Figel & Frederick can represent a plaintiff in a multi-district antitrust dispute against Alphabet’s Google Inc and Facebook Inc while defending the giant of social media in a lawsuit filed by the Federal Trade Commission.

U.S. District Judge P. Kevin Castel of Manhattan Federal Court raised the investigation on his own at a hearing as part of a larger discussion of programming in the MDL involving allegations that Google and Facebook are removing competition from the online advertising market.

More than a dozen lawsuits from US states, small businesses, publishers and advertisers were moved to the Southern District of New York in August and attributed to Castel. In MDL, Kellogg Hansen partner John Thorne represents British media company Associated Newspapers Ltd, which runs the Daily Mail newspaper, in a case against Google. Mark Hansen of Kellogg Hansen leads Facebook defense in FTC Washington, DC antitrust lawsuit

Castel said any joint meeting of plaintiffs where the strategy is discussed in the MDL could expose Kellogg Hansen to an ethical conflict. Castel has asked the law firm to respond in about a week on why the firm is not facing a conflict.

“It’s very complicated in the cases where both Google and Facebook are accused. Having you sit as Facebook’s lawyer in the room, I don’t know how that would work. But I’ll give you the opportunity. to explain it, Castel said at the hearing.

A Facebook attorney in the MDL who attended the hearing, Kevin Orsini, co-head 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, Facebook’s lead lawyer in the FTC lawsuit, declined to comment.

Speaking to Castel at Friday’s hearing, Thorne said the Daily Mail has made the choice to file a complaint against Google “and this is what we are pursuing.”

Thorne said Kellogg Hansen was a “deeply invested” defender of the Daily Mail. He described the “enormous legal costs” it took to investigate and develop the Daily Mail lawsuit, filed in April in Manhattan federal court before the multidistrict transfer order was issued.

“We really can’t stand still or sit on the sidelines. The Daily Mail wants the arrangement it has,” Thorne said. “He has no claim against Facebook.”

Thorne said he plans to withdraw from all strategic meetings of plaintiffs that discuss efforts to hold Facebook accountable for alleged violations of antitrust laws.

Castel said he was “not accusing anyone of acting in bad faith here”. He called Kellogg Hansen’s situation “difficult” and “a strange alignment”.

“I don’t have the solution or the answer on how you get stuck in meetings,” Castel said.

The case is In re: Google Digital Advertising Antitrust Litigation, US District Court for the Southern District of New York, No. 1: 21-cv-03446.

Lawyers for the plaintiffs include W. Mark Lanier of the Lanier law firm; David Boies de 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 Facebook lawsuit

US judicial panel moves Texas lawsuit against Google to New York

Kellogg Hansen to defend Facebook in US antitrust lawsuits

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