Connectu, Inc. v. Facebook, Inc. et al

Filing 321

MOTION for Clarification of Order or Motion to Lift Stay to Reassert Motion to Disqualify Counsel by Connectu, Inc..(Bailey, Gregg)

Connectu, Inc. v. Facebook, Inc. et al

Doc. 321

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CONNECTU, INC., CAMERON WINKLEVOSS, TYLER WINKLEVOSS, AND DIVYA NARENDRA, Plaintiffs, v. FACEBOOK, INC. MARK ZUCKERBERG, EDUARDO SAVERIN, DUSTIN MOSKOVITZ, ANDREW MCCOLLUM, CHRISTOPHER HUGHES, AND THEFACEBOOK LLC, Defendants.

CIVIL ACTION NO. 1:07-cv-10593 (DPW) Related Action No. 1:04-cv-11923 (DPW)

CONNECTU, INC.'S REQUEST FOR CLARIFICATION OF ORDER OR MOTION TO LIFT STAY TO TO REASSERT ITS MOTION TO DISQUALIFY COUNSEL ConnectU, Inc. ("ConnectU") respectfully requests a clarification of this Court's September 30, 2009 order regarding the effect in these related actions of Judge Ware's disqualification order or, in the alternative, moves this Court to lift the stay entered in these actions on September 30, 2009 for the limited purpose of allowing ConnectU to reassert its Motion to Disqualify Counsel (Docket Document No. 262). In support of this request, ConnectU states as follows:

1.

On January 20, 2009, ConnectU filed its Motion to Disqualify Counsel (Docket Document No. 262) seeking an order to prevent its former attorneys from undertaking to represent interests adverse to ConnectU. See also Memorandum of Law in Support of Motion to Disqualify Counsel (Docket Document No. 263).

Dockets.Justia.com

2.

ConnectU filed a similar motion in the United States District Court for the Northern District of California in Civil Action No. 5:07-CV-01389-JW.

3.

On September 2, 2009, Judge Ware of the United States District Court for the Northern District of California entered an order granting ConnectU's motion to disqualify counsel. The Court's decision specifically applied to the law firms of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP ("Finnegan") and Boies, Schiller & Flexner ("Boies").

4.

On September 30, 2009, this Court (Docket Document Nos. 274 & 275) entered an Order staying the above referenced actions, which Order terminated all outstanding motions, including ConnectU's Motion to Disqualify Counsel, "without prejudice to the motion of any party to reassert them no later than 30 days after the issuance of any mandate of the United States Court of Appeals concerning the judgment entered by the United States District Court for the Northern District of California in Civil Action No. 07-01389-JW."

5.

Despite this Court's stay, and in particular the Court's articulated basis for entering a stay, and despite Judge Ware's unequivocal Order of September 2, 2009, Finnegan continues to represent the Founders in this Court against ConnectU's interests by, inter alia, filing motion papers on or about November 17, 2009.

6.

ConnectU also continues to be harmed as described more fully in its Memorandum of Law in Support of its Motion to Disqualify (Docket Document No. 263).

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7.

Pursuant to Local Rule 7.1, ConnectU has filed herewith a Memorandum of Law in Support of its Request for Clarification or Motion to Lift Stay to Reassert its Motion to Disqualify (Docket Document No. 262).

WHEREFORE, ConnectU, Inc. respectfully requests that this Court clarify its Order of September 30, 2009 to indicate whether the Court considers the Finnegan law firm to be disqualified in this matter; OR

IN THE ALTERNATIVE, ConnectU, Inc. respectfully moves this Court for an Order lifting the stay for the limited purpose of allowing Connect, Inc. to reassert its Motion to Disqualify and to obtain a full consideration of that motion on its merits. ConnectU further moves this Court to enter an Order precluding Finnegan's continued representation of the Founders in these actions pending a lifting of the stay and consideration of the Motion to Disqualify on its merits.

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Respectfully submitted, ConnectU, Inc., By its attorneys, /s/ Gregg P. Bailey Peter M. Durney, BBO # 139260 Gregg P. Bailey, BBO# 638270 CORNELL & GOLLUB 75 Federal Street Boston, MA 02110 [phone] James E. Towery, Esquire Alison P. Buchanan, Esquire HOGE, FENTON, JONES & APPEL, INC. Sixty South Market Street, Suite 1400 San Jose, California 95113 [phone]

CERTIFICATE OF SERVICE I, Gregg P. Bailey, attorney for ConnectU, Inc. hereby certify that on the 7th day of January, 2010, a true copy of the foregoing, ConnectU, Inc.'s Motion to Lift Stay and To Reassert its Motion to Disqualify Counsel, was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing. Paper copies will be served upon anyone indicated as a non-registered participant. /s/ Gregg P. Bailey Gregg P. Bailey _______

CERTIFICATION OF CONSULTATION PURSUANT TO LOCAL RULE 7.1(A)(2) I, Gregg P. Bailey, hereby certify that, pursuant to Local Rule 7.1(A)(2), counsel for ConnectU, Inc. has conferred with counsel for the Founders, counsel for Facebook, and counsel for the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP seeking to narrow the issues in dispute regarding the continued representation of the Founders by the Finnegan law firm. The parties have not reached an acceptable resolution. /s/ Gregg P. Bailey Gregg P. Bailey 4 _______