Federal prosecutors are asking to disqualify Orrick, Herrington & Sutcliffe and partner Randy Luskey from representing a former Jawbone employee accused of taking company trade secrets to rival Fitbit.
In a motion filed Aug. 3, Assistant U.S. Attorney Amie Rooney, the lead government lawyer prosecuting trade secret theft charges against Orrick client Katherine Mogal and five other former Jawbone employees, wrote that Orrick and Luskey are conflicted since they previously represented Fitbit and Mogul’s co-defendants in the investigation and in prior civil litigation with Jawbone.
Mogal’s five co-defendants have all hired their own lawyers, but Rooney wrote Aug. 3 that Luskey’s continued representation of Mogal “presents potential conflicts of interest because it is substantially related to Mr. Luskey’s previous representation of her co-defendants.”
“Mr. Luskey’s decision to continue representing Mogal potentially violates the Sixth Amendment rights of both Mogal and her co-defendants, as well as numerous Standards of Professional Conduct promulgated by the State Bar of California which bind attorneys appearing before this court,” Rooney wrote.
Orrick partner Walt Brown, who also represents Mogal in the criminal case, responded to an email message sent to Luskey and a firm spokesman Monday. ”Ms. Mogal has chosen Orrick as her counsel, the motion is without merit, and we intend to oppose it,” Brown wrote. Orrick’s Melinda Haag, the former U.S. attorney for the Northern District of California, has also entered an appearance for Mogal in the case.
The indictment charging Mogal was filed in June. It alleges that she and fellow former Jawbone employees Ana Rosario, Patrick Narron, Patricio Romano, Rong Zhang and Jing Qui Weiden possessed Jawbone’s technical and financial data, marketing plans, pricing information and other trade secrets after resigning from the company in 2014 and 2015 and leaving for Fitbit.
According to a letter attached as an exhibit to the Aug. 3 motion, Rooney last year informed Luskey and Gibson, Dunn & Crutcher partner Debra Wong Yang, who also represented Fitbit, that the government thought that representing the company and potential individuals targets in the investigation raised actual and potential conflicts. According to the motion, Gibson continued to represent the company and Orrick represented the six individuals prior to the indictment. The motion says Luskey informed Rooney last year by phone that Orrick didn’t perceive any conflicts, but had gotten client waivers.
In the Aug. 3 motion, Rooney noted that since the charges were filed Luskey had informed the government he had gotten written waivers from all six defendants in the criminal case. But the prosecutor wrote that Luskey’s previous work for the company still potentially puts him at odds with Mogal.
“It may be in Mogal’s interest to offer information against Fitbit in a possible plea negotiation if the company was involved in orchestrating the theft of Jawbone’s trade secrets, but because Mogal’s counsel is paid by Fitbit, his own interest is at odds with his client’s,” Rooney wrote. “Furthermore, Orrick’s previous representation of Fitbit in substantially related civil litigation only exacerbates the potential for conflict.”
Read the motion: