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In the most recent skirmish in a courtroom battle between independent Coca-Cola bottlers and the soft drink giant over distribution rights to Wal-Mart Stores Inc., The Coca-Cola Co. has asked a federal judge to bar the executive director of the Coca-Cola Bottlers Association from providing legal input to the case. Coke wants U.S. District Judge Jack T. Camp to disqualify W. Thomas Haynes, citing his 16-year tenure as an in-house lawyer for Coke and his familiarity with many of the contractual issues at the heart of the case. Haynes left the company in 2002 to become president of the bottlers’ association. At issue are the claims of 55 bottlers from throughout the country that Coca-Cola and its affiliated bottler, Coca-Cola Enterprises, violated agreements protecting the other bottlers’ marketing deals with retailers by shipping Powerade, a Cola-Cola product, to Wal-Mart warehouses, thus cutting out the smaller bottlers. Coke in June filed a motion under seal against Haynes and seeking the return of proprietary property it alleged he possesses. The motion claimed that Haynes’ participation in the case violated agreements with his former employer and the Georgia Rules of Professional Conduct regarding attorney-client privilege and attorney work-product protections. “Indeed,” said that motion, “Haynes testified in his deposition that while employed by the Company, he represented the Company in various discussions with the Bottlers and [the association] regarding the meaning and effect of the warehouse delivery provisions of the Powerade Marketing and Distribution Agreement � the same provision of the same contract that is at issue in this case.” Coke’s filings state that Haynes and his former company had discussed possible conflicts arising from Haynes’ position as president of the bottlers’ group as early as 2003, and that he and the company drafted a “Letter Agreement” that “waived certain conflicts of interest based upon, and in return for, certain promises and representations by Haynes.” At that time, Coke said, “Haynes expressly represented that he was �not serving as a lawyer for [CCBA] or any other Coca-Cola bottler.” He also agreed to avoid participation in discussion of several particular areas, including “the use of certain types of third-party distributors” of related brands, specifically including Powerade. In response, the bottlers’ association filed an opposition brief on Tuesday blasting Coca-Cola for “attempting to renege on repeated statements of consent � authorizing a former employee to change jobs within a corporate family and continue working for the benefit of the business as a whole.” The company, says the bottlers’ association brief, has offered no evidence to support its claims that Haynes promised not to provide legal advice to the bottlers; nor, it says, is there any proof that Haynes has “disclosed or threatened to disclose” any confidential information. “Mr. Haynes has been scrupulous in abstaining from providing evidence” to the plaintiffs’ lawyers, said the brief. The case features high-powered lawyers form across the country including a team from Powell Goldstein joining the slate of plaintiffs attorneys on the bottlers’ behalf, and local lawyers from King & Spalding, Alston & Bird, Miller & Martin and Smith, Gambrell & Russell among the defense team. Perhaps the local firepower made getting a comment on the issue from Georgia legal ethics experts a difficult task. But New York University law professor and legal ethicist Stephen Gillers said in an e-mail conversation the case was a slam-dunk, in his view. “The alleged facts present what in my opinion is a textbook case of conflict of interest,” said Gillers. “Lawyers, whether retained or employed, may not oppose former clients in matters factually related to their prior work. That is true even if the former lawyer does not formally appear in the adverse matter. The former lawyer cannot informally assist the lawyer who does appear. “Furthermore,” he continued, “when the lawyer worked in the general counsel’s office, even if not the GC himself, the courts have disqualified him from opposing his former client on matters within the general area of his former work, even if he did not work on the specific matter.” Gillers, who had reviewed only the company’s motion to exclude Haynes prior to commenting, did include one caveat. “The only open question for me would be the scope of Coca-Cola’s waiver of �certain conflicts’ by the identified Letter Agreement,” he said. Gillers also pointed out an issue not yet addressed. “There is a separate issue that Coca-Cola has apparently chosen not to press�i.e., whether the work the former GC has already done on the matter in consultation with the law firm representing the Bottlers has tainted that law firm.” A representative for the bottlers could not be reached by press time. Coca-Cola spokesman Dan Schafer said he would have no immediate comment on the bottlers’ recent filing, but that Coke’s position was very clear. “We think he’s ethically and legally prohibited from acting as an attorney against us because of his actions as an attorney working for us,” said Schafer. “There’s a big difference between being the executive director and working as legal counsel.” The case is Ozarks Coca-Cola/Dr. Pepper Bottling Co. v. The Coca-Cola Co., No. 1:06-CV-00853-JTC (U.S. Dist. Ct. April 10, 2006). Greg Land can be reached at [email protected]

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