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McGuireWoods and former partner Eliot Disner aren’t wasting any time before slugging it out over control of a $49 million class action against BAR/BRI, the nation’s leading bar review company. Less than two weeks after Disner says disagreement over strategy led to his ouster from the firm, the plaintiff antitrust lawyer asked a federal judge to name him “co-lead counsel” in the BAR/BRI litigation. McGuireWoods fired back the next day, arguing Disner � already in line for a 30 percent cut of the attorneys fees � should have no role whatsoever. A brief signed by McGuireWoods partner Sidney Kanazawa claims the ousted attorney hadn’t yet filed papers to represent any lead plaintiffs, so he lacked standing to represent the class. The class action, filed in 2005, alleged that West Publishing and Kaplan Inc., both major players in the legal test prep market, cut a secret deal to give West’s BAR/BRI a virtual monopoly over bar review courses, and Kaplan less competition in LSAT preparation classes. In February, McGuireWoods reached a proposed settlement that would pay class members about $125 each, and commit West to making certain disclosures to law students who enroll for its course as early as their first year. U.S. District Judge Manuel Real has scheduled a June 18 hearing over the settlement’s approval. Disner � who had represented the class since before McGuireWoods acquired his former firm last year � penned a brief last month criticizing the deal, claiming the plaintiffs could do much better if they went to trial. Days later, according to Disner, McGuireWoods’ Virginia-based managing partner hand-delivered a termination letter. The latest filings in Rodriguez v. West, 05-3222, brought on behalf of a class of some 300,000 current and former law students, expose fresh details about the rift at McGuireWoods that led to Disner’s termination on May 23.
In his ex parte application “to speak freely” for three plaintiffs who oppose the BAR/BRI settlement, Eliot Disner also asks the Central District court to help him access case files at the McGuireWoods office.

Disner, who has set up shop two blocks away from his old firm’s Los Angeles office, said in his May 31 brief that McGuireWoods’ in-house “ethics expert,” identified by Disner as McLean, Va., partner Thomas Spahn, supported at least part of Disner’s position against the settlement, but “his views were overlooked as [McGuireWoods] hired outside counsel to opine about its purported conflict.” Spahn could not be reached at his Virginia office late on Monday. The outside lawyer McGuireWoods consulted was John Beisner, a Washington, D.C., partner at O’Melveny & Myers. In his ex parte application “to speak freely” for three plaintiffs who oppose the BAR/BRI settlement, Disner also asks the Central District court to help him access case files at the McGuireWoods office. Disner said Monday that he was given 20 minutes before being ushered out of the office the day he was fired. “I just wrote it [the ex parte motion] from memory basically. I got it mostly right but not completely,” he said, noting he got a filing date wrong. McGuireWoods’ brief uses Disner’s own words from a March declaration to portray him as a “flip-flopping advocate,” one who supported preliminary approval of the settlement. Disner’s declaration also countered some of the plaintiffs’ opposition. “Whether Mr. Disner may ethically represent parties in opposition to the proposed settlement given his participation in the mediation for the class, his declaration under oath supporting preliminary approval of the settlement, and his prior representation of the class … is questionable,” Kanazawa wrote. The firm’s brief notes he is still entitled to receive 30 percent of any attorneys fees McGuireWoods collects from the case. At least one objecting plaintiff has estimated total fees at about $12 million.

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