## Facts

- Wyeth and related entities owned patents covering the use of rapamycin in drug-eluting coronary stents to reduce restenosis after angioplasty.
- Wyeth sued Abbott (XIENCE stent) and Boston Scientific (PROMUS stent supplied by Abbott) in a patent infringement action in the District of New Jersey.
- Boston Scientific retained Howrey LLP as defense counsel in the U.S. infringement litigation.
- Around the same period, a Howrey office represented a Wyeth-related European entity in a European Patent Office opposition involving related drug-eluting stent technology.
- Wyeth moved to disqualify Howrey from representing Boston Scientific, asserting an ethical conflict based on concurrent representation and risk to Wyeth’s confidential information.
- A magistrate judge granted Wyeth’s motion and ordered Howrey disqualified.
- Abbott and Boston Scientific sought review by the district judge.

## Issues

1. Whether Howrey had a disqualifying conflict of interest by representing Boston Scientific against Wyeth in U.S. patent litigation while also representing a Wyeth-related affiliate in a European patent proceeding involving similar technology.
2. Whether the U.S. Wyeth plaintiffs and the European Wyeth affiliate should be treated as the same “client” for conflict purposes.
3. Whether the European opposition and the U.S. infringement action were “substantially related” such that confidential information would be at material risk of adverse use.
4. Whether the evidentiary showing justified the drastic remedy of disqualification.

## Decision

- The district court reversed the magistrate judge’s disqualification order.
- The court denied Wyeth’s motion to disqualify Howrey.
- The court concluded the record did not support treating the Wyeth affiliate and the U.S. plaintiffs as the same client for the conflict analysis at issue.
- The court found the European patent opposition and the U.S. infringement action were not shown to be substantially related in the manner required for disqualification.
- The court held Wyeth did not present concrete, non-speculative evidence that Howrey possessed Wyeth confidential information that was material and could be used adversely in the U.S. case.
- The court determined disqualification would be disproportionate given the weak showing of prejudice or risk of trial taint.

## Legal Principles

- Motions to disqualify counsel are disfavored and require a clear showing that continued representation threatens the integrity of the proceedings or materially prejudices an opposing party.
- Conflict analysis turns on whether an attorney-client relationship exists with the movant (or the relevant affiliate) and whether the matters are the same or substantially related such that relevant confidences are likely to have been obtained.
- Corporate affiliation alone does not automatically make all affiliates the same “client” for conflict purposes; the movant must show facts warranting such treatment in the specific representation.
- Overlap in a general technology area is insufficient to establish a “substantial relationship” without a closer connection between issues and a meaningful risk that confidential information could be used adversely.
- Disqualification requires more than inference or speculation about access to confidential information; the movant must show a real and material risk of misuse.

## Conclusion

The court permitted defense counsel to remain in the patent case because Wyeth failed to demonstrate that the foreign affiliate representation created a substantially related, adverse concurrent-client conflict or a concrete risk that Wyeth confidences would be used against it, and disqualification was not warranted on the record presented.


Wyeth v. Abbott Laboratories, No. 3:08-cv-00230 (JAP), 2010 U.S. Dist. LEXIS 11032 (D.N.J. Feb. 8, 2010)