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A federal appeals court has denied MGA Entertainment Inc.’s request to reinstate its lead counsel and delay trial against Mattel Inc. after a federal judge disqualified the firm last month. The U.S. Court of Appeals for the 9th Circuit on Thursday upheld U.S. District Judge David Carter’s order disqualifying Glaser, Weil, Fink, Jacobs, Howard & Shapiro. The judge found that the Los Angeles-based firm, which stepped into the case in November, had a potential conflict representing MGA because it had just hired a former associate from Quinn Emanuel Urquhart & Sullivan, Mattel’s lead counsel. The 9th Circuit’s decision means both sides will go to trial this month. Opening statements are scheduled for Jan. 18. The trial is 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, which MGA manufactures. The 9th Circuit said it lacked jurisdiction to consider MGA’s interlocutory appeal of the disqualification ruling. The appellate panel also denied MGA’s writ petition to overturn the ruling, saying: “In these circumstances, disqualification may indeed have been mandatory under California law.” On Dec. 20, Carter disqualified Glaser Weil but permitted Patricia Glaser, head of the firm’s litigation department, to continue representing MGA as long as she worked at the offices of Orrick, Herrington & Sutcliffe, MGA’s litigation counsel, and maintained no contact with her own trial team. Glaser, who had argued that her firm had created an “ethical wall” to prevent the associate, Jill Basinger, from working on the case, refused the arrangement and withdrew from the case. Glaser did not return a call seeking comment about the 9th Circuit’s decision. Basinger, now a partner at Glaser Weil, worked at Quinn from 2002 to 2006. In MGA’s brief appealing Carter’s ruling, its lawyer, Maxwell Blecher of Los Angeles-based Blecher & Collins, argued that Basinger worked only nine hours on the case. But Mattel’s lawyer, Susan Estrich, a partner at Los Angeles-based Quinn Emanuel, said Basinger spent 1,400 hours working for Mattel while at Quinn. Estrich also argued that dozens of lawyers at Orrick, which MGA retained in 2009, have been handling the case in recent months. Estrich and Blecher did not return calls for comment. In addition to the disqualification ruling, MGA had appealed Carter’s Dec. 21 order denying a continuance that would allow MGA’s new lead counsel time to prepare for trial. Mattel disputed that the disqualification of Glaser Weil warranted continuance. “It would be unprecedented to force a District Court to continue a trial because a party suddenly decides, right before trial, that its longtime counsel (consisting of dozens of lawyers at a respected firm) isn’t good enough anymore,” Estrich wrote. In a Jan. 5 reply brief, Blecher said the request to delay the trial date didn’t arise until Glaser’s firm was disqualified. “This litigation threatens MGA’s very existence and the survival of competition in the billion dollar fashion doll industry,” he wrote. Meanwhile, MGA moved to have Thomas McConville, a partner in the Irvine, Calif., office of Orrick and a former federal prosecutor, and Jennifer Keller, a criminal defense attorney at Keller Rackauckas in Irvine, serve as co-lead counsel. Carter, who sits in Santa Ana, Calif., approved that request on Jan. 4. The two are the latest to represent MGA in its litigation against Mattel. During the first trial, MGA retained Thomas Nolan, a partner in the Los Angeles office of Skadden, Arps, Slate, Meagher & Flom. 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. Amanda Bronstad can be contacted at [email protected].

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