March 26, 2009

“Who really shot JFK?” “What’s in Area 51?” and “What mysterious conflict kept Jim Pooley from joining Morrison & Foerster for more than a year?”

These are the questions that have haunted us through the ages. Or at least since the early days of 2006 when Pooley and his crew of IP lawyers made a big splash announcing they were leaving Milbank, Tweed, Hadley & McCloy for MoFo, only to stumble on an unforeseen conflict and be forced to wait a long time and form their own firm before finally consummating the lateral move.

While we have no information about gunmen and grassy knolls, or UFOs buzzing Nevada, we do have something to say about the MoFo thing.

It all started when Pooley announced in late January of 2006 that he would be leaving Milbank for MoFo. The fallout was, by Silicon Valley IP lawyer standards, big. The New York white shoes closed their Silicon Valley office, which Pooley had anchored, and it was hailed as a catch for MoFo. But just a few days later, Pooley was no longer making the jump, and the press release disappeared from the firm’s Web site like a ship in the Bermuda Triangle.

The official line was that the delay was caused by a conflict relating to a piece of litigationPooley was handling and a former MoFo relationship, but no one would say much more. As a result, Pooley was forced to start his own firm, Pooley & Oliver, and wait out the conflict. For 15 months.

On May 1, 2007, MoFo re-announced that Pooley and his band of seven IP lawyers would (finally) join the firm.

Why then? Why on May Day?

No, it’s not a communist plot. However, the very day before, April 30, 2007, U.S. District Judge Mariana Pfaelzer allowed Pooley and his firm to withdraw from a patent case between ICU Medical Inc. and Alaris Medical Systems Inc. ICU’s case had been going badly since it was filed in 2004 by lawyers at Paul, Hastings, Janofsky & Walker, and in 2005 Pooley jumped in to help ICU.

The timing of Pooley withdrawing from the case one day and joining MoFo the next certainly suggests that this was the case that kept him in limbo, and indistinct mumblings from well-placed sources at least provide better confirmation than you’ll find on those alien abduction sites. Pooley himself wouldn’t say a thing. MoFo referred us to partner Peter Pfister, who then refused to comment. The Warren Commission would’ve loved these guys.

So what was the conflict? As with all conspiracy investigations, we have to piece together disparate facts.

FACT: MoFo partner Jay de Groot, who joined MoFoin 2003 , was general counsel at Alaris from 1996 through 2000.

FACT: In the ICU-Alaris patent case, ICU was claiming that Alaris had infringed on its patents from 1997 on.

OBLIGATORY LEAP OF LOGIC: It would’ve been theoretically possible for de Groot not only to remember all sorts of inside stuff Alaris wouldn’t want opposing counsel Pooley to know, but to share that information once Pooley joined the firm. De Groot declined to comment.

It all fits together: Had Pooley joined MoFo while representing ICU against Alaris, Alaris would’ve had a shot at crying conflict to disqualify MoFo.

Diane Karpman, an ethics lawyer, said the doctrine at work here would be imputation, in which one partner’s knowledge is imputed on the rest of the firm. She noted that it’s not the most obvious type of conflict, which may help explain why MoFo missed it at first. She also said that Pooley and MoFo went out of their way to play it by the book in this case. She called the decision to wait “very responsible and very mindful of fiduciary obligations.” We did not ask her whether any of this points to the Freemasons or proves that the moon landing was faked.

Of course, Pooley could have just dropped the case and joined MoFo, but it appears that he wanted to stay until a critical portion was finished. ICU was under scrutiny in the case for pursuing frivolous claims against Alaris, and Pooley was helping to fight those accusations. On April 16, 2007, just days before Pooley would withdraw, Judge Pfaelzer ruled on motions for sanctions against ICU and its counsel. Pfaelzer came down hard on ICU and the lawyers who filed the complaint at Paul, Hastings. She was more gentle with Pooley’s firm, chastising them for making self-serving arguments in defending against the motion for sanctions.

Pooley and MoFo won’t talk about the case publicly. What, the conspiracy theorist demands, do they have to hide? We figure either it’s too messy and nasty a case to go into or someone on the other side is a space alien. Either way, ICU Medical continues to use Pooley for its patent cases.

There you have it. At the bottom of the greatest IP mystery of the modern era, there was no second shooter or reverse-engineered hovercrafts, just an obscure and not-so-juicy conflict.

This story originally appeared in The Recorder.