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  The manufacturer of the Bratz doll, facing the “horns of a difficult dilemma,” has petitioned a federal appeals court to reinstate its lead counsel, whose firm was disqualified about three weeks before going to trial against Mattel Inc. “The very existence of MGA is at stake in this lawsuit, and it would be an egregious denial of due process to deprive it of the opportunity to properly defend itself,” wrote appellate lawyer John Andrews, a partner at Blecher & Collins in Los Angeles, in an emergency motion filed on Dec. 29 with the U.S. Court of Appeals for the 9th Circuit on behalf of MGA Entertainment Inc. The plaintiff “is on the horns of a difficult dilemma, and certifies that emergency relief is needed in less than 21 days in order to avoid irreparable harm,” he wrote. MGA is asking the 9th Circuit to reinstate its lead counsel or, alternatively, give its new lawyer more time to prepare for trial, now scheduled to begin on Jan. 11. Otherwise, MGA will be forced to undertake a four-month trial “while being represented by counsel lacking sufficient trial experience rather than trial counsel of choice,” Andrews wrote. The disqualification was the latest legal headache for MGA, which has replaced its lawyers numerous times during the copyright dispute. The trial will be the second go-round for the two companies over whether Mattel owns the work and ideas of a former employee who designed the Bratz dolls. On Dec. 20, U.S. District Judge David Carter in Santa Ana, Calif., disqualified Los Angeles-based Glaser, Weil, Fink, Jacobs, Howard & Shapiro from representing MGA as lead counsel. Mattel’s lawyers had moved to disqualify Patricia Glaser, head of the firm’s litigation department and lead counsel for MGA. Citing a 2010 California appellate decision called Kirk v. First American Title Ins. Co., Carter ruled that the Los Angeles-based firm had a conflict because it had just hired a former associate from Quinn, Emanuel, Urquhart & Sullivan, which is representing Mattel at trial. The associate, Jennifer Basinger, now a partner at Glaser Weil, had worked on the case for Mattel while at Quinn from 2002 to 2006. Glaser, who was brought in to serve as lead counsel in August, argued that the firm had created an “ethical wall” to prevent Basinger from working on the case or divulging secrets to other lawyers. But Carter found that the only way Glaser could represent MGA would be to handle the case without her trial team and work at the offices of Orrick, Herrington & Sutcliffe, MGA’s litigation counsel. MGA appealed Carter’s decision to the 9th Circuit. In the company’s opening brief, Andrews noted that Basinger had worked only nine hours on the case and that MGA’s lawyers were not invited to participate in the in camera evidentiary proceedings that led to the disqualification ruling. Glaser, Andrews and one of Mattel’s lawyers, Michael Zeller, a partner at Los Angeles-based Quinn, did not return calls for comment. In addition to the disqualification ruling, MGA is appealing two other orders Carter issued on Dec. 21. In one, Carter refused to grant MGA at least two months for its new lead counsel to prepare for trial. MGA told the 9th Circuit it had retained New York-based Skadden, Arps, Slate, Meagher & Flom and Jennifer Keller, a criminal defense attorney at Keller Rackauckas in Irvine, Calif., to step in as lead counsel. Carter also refused to grant a motion by Orrick to withdraw from representing MGA. According to MGA’s emergency motion, Orrick, which MGA retained in July 2009, refused to work with Keller, who specializes in representing lawyers and judges. Neither Keller nor Orrick’s lead counsel on the case, Annette Hurst, a partner in San Francisco, returned calls for comment. MGA’s lead counsel during the first trial was Thomas Nolan, a partner in the Los Angeles office of Skadden. Nolan did not return a call for comment regarding MGA’s current relationship with the firm. During the first trial, a jury awarded $100 million in damages to Mattel, but the 9th Circuit reversed, finding that the judge had abused his discretion in giving Mattel the rights to the dolls. In 2009, MGA replaced Skadden with Glaser and Russell Frackman, a partner at Los Angeles-based Mitchell Silberberg & Knupp. Both were replaced by Orrick a few months later. In a separate ruling on summary judgment motions, Carter found on Dec. 27 that Mattel couldn’t pursue copyright infringement claims against MGA for models of Bratz dolls other than the first four, introduced in 2001, and two later models. Carter allowed Mattel to proceed on trade secret theft allegations. Amanda Bronstad can be contacted at [email protected].  

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