United States District Court, District of New Jersey
November 20, 2001
ROHM AND HAAS COMPANY, PLAINTIFF,
AMERICAN CYANAMID COMPANY, ASHLAND, INC., GAF CORPORATION, GENERAL ELECTRIC COMPANY AND MONSANTO COMPANY, DEFENDANTS.
The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge.
This matter comes before the Court on motion, filed as an Order to Show
Cause, by Defendant, American Cyanamid Company ("American Cyanamid"), to
disqualify counsel for Plaintiff, Rohm and Haas Company ("Rohm and
Haas"). Pursuant to Rule 78 of the Federal Rules of Civil Procedure,
oral argument was heard on November 5, 2001. After carefully reviewing
the record and for the reasons set forth below, Defendant's motion to
disqualify Plaintiff's counsel is denied.
This case involves many individuals and entities, therefore, the
following dramatis personae should prove helpful in understanding the
Rohm and Haas — Plaintiff in both consolidated actions
and one of the parties held jointly and
severally liable for contaminating the
Picillo site in other cases.
Ellen Friedell — In-house counsel for Rohm and Haas.
Schnader, Harrison, — The law firm representing Rohm and
Haas in both
Segal & Lewis, LLP consolidated actions since on or
about April 11, 1995.
John Armstrong — Attorney from the firm of Schnader,
Harrison, Segal & Lewis, LLP
representing the Rohm and Haas
Dennis Suplee — Attorney from the firm of Schnader,
Harrison, Segal & Lewis, LLP representing
the Rohm and Haas Company.
American Cyanamid — Defendant in the 99-1891 action and
co-plaintiff with Rohm and Haas in the
Margaret Tribble — In-house counsel for the American
Sills Cummis Radin — Counsel representing American Cyanamid
Company in this
Tischman Epstein present matter, primarily through
attorney Mark S.
& Gross Olinsky.
Deming Sherman of — Represented American Cyanamid Company
Edwards & Angell approximately 1980 and 1995.
Ashland Inc. — A primarily responsible party
participating in the cleanup of the
GAF Corp. — A primarily responsible party
participating in the cleanup of the
Company — A primarily responsible party
participating in the cleanup of the
Monsanto Company — A primarily responsible party
participating in the cleanup of the
The Performing Group — American Cyanamid Company, along
with Ashland Inc., GAF Corp.,
General Electric Company, Monsanto
Company refer to themselves
collectively as the Performing Group
because they have entered
negotiations with the United States
resolve their liability for
contaminating the site by agreeing
to "perform" part of the
decontamination procedures on the
Picillo site. It is Rohm and Haas
Company's disagreements with the
Performing Group that has prompted
the present litigation (especially
The Picillo Pig Farm Litigation and Efforts
At some point in the mid-1970's, the Picillo pig farm in Rhode Island
was used by dozens of companies for the illegal dumping of hazardous
waste. See Rohm and Haas' Brief in Opposition to the Motion to
Disqualify the Law Firm of Schnader Harrison Segal & Lewis, LLP
("Opposition Brief") at 7. This dumping became public on or about
September 30, 1977, when the site caught fire. See Opposition Brief at
7. A series of legal disputes have arisen since then. In 1988 and 1990,
Rohm and Haas and American Cyanamid, the present litigants and two of
many companies partially responsible for the contamination, were held
jointly and severally liable for past and future response costs for
contaminating the Picillo site. See Brief in Support of the Performing
Group's Motion to Disqualify the Law Firm of Schnader Harrison Segal &
Lewis, LLP ("Supporting Brief") at 3. In each action, Deming Sherman,
Esq. represented both parties. See Certification of Margaret Tribble
("Tribble Cert."), ¶ 2; Supporting Brief at 3.
After the 1990 case, American Cyanamid joined with four other primarily
responsible parties, Ashland Inc., GAF Corp., General Electric Company
and the Monsanto Company (collectively referred to as the Performing
Group) and Rohm and Haas to attempt to account for future response costs
at the Picillo site. See Tribble Cert., ¶ 4; Supporting Brief at
3. These negotiations allegedly led to a rough allocation of financial
responsibility (by percentage), contingent, in part, on the contribution
of some outside groups. See Tribble Cert., ¶ 5, 12; Supporting
Brief at 3-4. These outside groups eventually decided not to participate
in negotiations with the Performing Group and the United States with
regard to the Picillo Site. As a result, all six responsible parties
were called upon to assume a greater percentage of responsibility in
their proposed consent decree with the United States. See Tribble
Cert., ¶ 5; Supporting Brief at 4. American Cyanamid asserts that
Rohm and Haas objected to this potential increase in financial
responsibility and opted out of the negotiations in March 1995. See
Tribble Cert., ¶ 14; Supporting Brief at 4.
Rohm and Haas opted out of the negotiations toward developing a consent
decree because it disagreed with the method of allocation used by the
Performing Group. The Performing Group advocates a drums-on-site
approach. Under this approach, liability is determined by calculating the
percentage of identifiable drums attributable to each of the primarily
responsible parties (Rohm and Haas and the five members of the Performing
Group). Rohm and Haas asserts that this method is improper because a mere
700 out of an estimated 20,000 drums of waste were
identified at the
Picillo site. In contrast, Rohm and Haas advocates a "transhipment"
theory that seeks to assess the percentage of responsibility through a
more roundabout analysis. First Rohm and Haas would obtain discovery on
the total amount of waste sent out by American Cyanamid to various waste
haulers or "transhippers," then Rohm and Haas would subtract the amount
of waste that was dumped in sites other than the Picillo site by these
transhippers. The remaining waste, under a transhipment theory,
constitutes an approximation of the amount of waste dumped by American
Cyanamid at the Picillo site.*fn1
The Conflict of Interest
In March 1995, American Cyanamid and Rohm and Haas were held jointly
and severally liable for contaminating at the Picillo site.
Subsequently, in-house counsel for both companies began exploring the
option of utilizing joint counsel to file contribution actions in order to
recover expenditures incurred in litigation. See Tribble Cert, ¶
7; Supporting Brief at 4-5. These discussions appear, at least in part,
to have been motivated by an impending statute of limitations, set to run
on April 20, 1995. See Suplee Cert, ¶ 3; Armstrong Cert., ¶ 9;
Friedell Cert., ¶ 29. Rohm and Haas hired the law firm of Schnader,
Harrison, Segal & Lewis, LLP ("the Schnader firm") on April 11, 1995 and
American Cyanamid did the same on April 19, 1995, one day before the
running of the applicable limitations statute. See Tribble Cert.,
¶ 7; Tribble Reply Cert., ¶ 2. On April 20, 1995, the Schnader
firm filed contribution suits in the Districts of Rhode Island and New
Jersey on behalf of Rohm and Haas and American Cyanamid.
The Schnader firm was provided with extensive files by Deming Sherman,
former counsel to Rohm and Haas and American Cyanamid. See Supporting
Brief at 5-6. At the time the Schnader firm began the representation in
1995, Dennis Suplee, a Schnader attorney, conducted a routine conflict
check and found no conflict. A few months later in May 1995, American
Cyanamid notified the Schnader firm that a potential conflict was
percieved and separate counsel would be retained to represent American
Cyanamid. See Armstrong Cert., ¶¶ 22-24; Supporting Brief at 2;
Certification of Dennis R. Suplee ("Suplee Cert."), ¶¶ 16-17;
Certification of Ellen Friedell ("Friedell Cert."), 39, 41. Separate
counsel was not actually retained until about September 1995. See
Armstrong Cert., ¶ 28-29; Tribble Cert., ¶ 14.
All the while, the Performing Group continued negotiating with the
United States toward a consent decree (which Rohm and Haas opted out of,
prompting American Cyanamid to refer to Rohm and Haas as "recalcitrant").
To entice settlement, the Performing Group offered to name settling
parties on the consent decree, thus insulating any settling parties from
future contribution liability under CERCLA. See Supporting Brief at 7.
American Cyanamid reached settlement with approximately thirty-six
contributing parties. See Certification of John Armstrong ("Armstrong
Cert."), ¶ 36. In light of notes by American Cyanamid's in-house
counsel stating that Rohm and Haas should be "thrown to the wolves," Rohm
and Haas refers to the settlement negotiations as a smear campaign meant
to eliminate Rohm and Haas' potential sources of contribution. See Reply
Certification of Margaret Tribble ("Tribble Reply Cert."), ¶ 13.
The Alleged Discovery of the Conflict
American Cyanamid maintains that the conflict at issue in this case was
apparently discovered on August 16, 2001 during preparation for a
deposition of Margaret Tribble, in-house counsel for American Cyanamid.
Ms. Tribble was informed that the attorney who would be deposing her was
Dennis Suplee of the Schnader firm. See Supporting Brief at 10. American
Cyanamid contends that the mention of Mr. Suplee's name triggered sudden
recognition in Ms. Tribble*fn2 that Mr. Suplee was a member of the
Schnader firm that formerly represented American Cyanamid in 1995. See
Tr. at 6:7-20. Counsel for American Cyanamid promptly brought this
motion after that incident.
The Potential Prejudice to the Schnader Firm
Since April 1995, the Schnader firm has collected over one hundred
boxes of documents, conducted approximately thirty-nine depositions, and
has been paid attorney's fees in excess of 1.2 million dollars in these
consolidated matters. See Tr. at 7:6-11. Schnader has also amassed a
considerable level of expertise over the factual and legal matters in
this case. See Armstrong Cert., ¶¶ 42-52.
American Cyanamid contends that the Schnader firm violated the New
Jersey Rules of Professional Conduct by representing Rohm and Haas in the
present action (Civil Action No. 99-1891) against American Cyanamid while
having previously represented American Cyanamid in a contribution claim
(Civil Action No. 95-1865) also pending before this Court in this
consolidated action. See Supporting Brief at 1. As mentioned, American
Cyanamid states that this "reversal of loyalties" was only discovered
fortuitously on August 16, 2001 at the preparation for a deposition.
See Supporting Brief at 2. American Cyanamid claims that Rohm and Haas
should be disqualified for this unethical conduct.
I. Standard of Review of Motions to Disqualify.
It is well settled that because motions to disqualify can have such
drastic consequences, courts disfavor such motions and grant them only
"when absolutely necessary." Alexander v. Primerica Holdings, Inc.,
822 F. Supp. 1099, 1114 (D.N.J. 1993) (citing Schiessle v. Stephens,
717 F.2d 417, 420 (7th Cir. 1983)). See also Commonwealth Ins. Co. v.
Graphix Hot Line, Inc., 808 F. Supp. 1200, 1208 (E.D.Pa. 1992); Bennett
Silvershein Assoc. v. Furman, 776 F. Supp. 800, 802 (S.D.N.Y. 1991);
Donohoe v. Consolidated Operating & Production Corp., 691 F. Supp. 109,
118 (N.D.Ill. 1988); Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61
(E.D.Pa. 1986); United States use of Lord Elec. Co. v. Titan Pac.
Constr. Corp., 637 F. Supp. 1556, 1563 (W.D.Wash. 1986); United States
Football League v. National Football League, 605 F. Supp. 1448, 1452
A party seeking disqualification must meet a "heavy burden" of proof
before a court will disqualify an attorney or law firm. See Alexander,
822 F. Supp. at 1114; Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d
Cir. 1983); Bennett Silvershein, 776 F. Supp. at 802 . In light of this
high standard, New Jersey courts engage in a "painstaking analysis of the
facts" when addressing motions for disqualification. Dewey v. R.J.
Reynolds Tobacco Co., 109 N.J. 201, 205 (1988) (citing Reardon v.
Marlayne, Inc., 83 N.J. 460, 469 (1980)). Throughout this analysis, this
Court recognizes that although a party has no right to specific counsel,
International Business Machines Corp. v. Levin, 579 F.2d 271, 283 (3d
Cir. 1978), the selection of counsel by a party is "entitled to
substantial deference." Alexander, 822 F. Supp. at 1114 (citing
Commonwealth Ins., 808 F. Supp. at 1208); Hamilton, 645 F. Supp. at 61 ;
Nemours Found. v. Gilbane, Aetna, Federal Ins. Co., 632 F. Supp. 418, 431
(D.Del. 1986); see also United States v. Miller, 624 F.2d 1198, 1201 (3d
Cir. 1980) (stating that permitting litigants to retain counsel of choice
is an important countervailing policy to disqualification).
As observed by Magistrate Judge Stanley R. Chesler in Carylyle Towers
Condominium Ass. v. Crossland Savings, FSB, 944 F. Supp. 341 (D.N.J.
When pondering the proper outcome for a specific case,
courts must exercise extreme caution not to act under
the misguided belief that disqualification raises the
standard of legal ethics and the public's respect; the
opposite effect is just as likely — encouragement of
vexatious tactics, which increase public cynicism about
the administration of justice.
Id. at 345 (citing Gould Inc. v. Mitsui Mining & Smelting Co.,
738 F. Supp. 1121, 1126 (N.D.Ohio. 1990) (internal quotation marks
American Cyanamid seeks to have the Schnader firm disqualified as
counsel because of an alleged former client conflict under New Jersey
Rule of Professional Conduct 1.9 and in light of a potential appearance
of impropriety as described by New Jersey Rule of Professional Conduct
1.7. The Court will discuss these claims in turn.
II. Former Client Conflict RPC 1.9
New Jersey Rule of Professional Conduct ("RPC") 1.9 governs the conduct
of all attorneys practicing in the State of New Jersey with regard to
former client conflicts. See United States v. Walsh, 699 F. Supp. 469,
472 (D.N.J. 1988). RPC 1.9 states that:
(a) A lawyer who has represented a client in a matter
shall not thereafter: (1) represent another client in
the same or a substantially related matter in which that
client's interests are materially adverse to the
interests of the former client unless the former client
consents after a full disclosure of the circumstances
and consultation with the former client.
RPC 1.9 was enacted to promote attorney loyalty, client
and public respect for the integrity of the bar. See In re
Corn Derivatives Antitrust Litigation, 748 F.2d 157
, 162 (3d Cir. 1984);
Kaselaan & D'Angelo Assocs. Inc. v. D'Angelo, 144 F.R.D. 235, 239
Applying RPC 1.9 requires an assessment of whether American Cyanamid is
a former client of the Schnader firm, whether the current representation
of Rohm and Haas is in the same or a substantially related matter,
whether the representation is materially adverse to American Cyanamid,
and if so, whether consent was given to proceed with the litigation after
full disclosure. See RPC 1.9.
On the present facts, Schnader represented American Cyanamid from April
1995 until September 1995 as a co-plaintiff in two contribution suits,
one in particular before this court in this consolidated action (No.
95-1895) and another in the District of Rhode Island. Thus, American
Cyanamid was indeed a former client of the Schnader firm.
With regard to the substantially related prong of the analysis, matters
are considered substantially related when "it can reasonably be said that
in the course of the former representation the attorney might have
acquired information related to the subject matter of his [or her]
subsequent representation." Ciba-Geigy Corp. v. Alza Corp.,
795 F. Supp. 711, 716 (D.N.J. 1992). The court in Ciba-Giegy Corp.
further explained that "the test focuses on the similarity of the factual
bases of the two representations, rather than on the similarity of the
underlying causes of action." Id. Here, the two matters at issue are so
substantially related that this Court saw fit to consolidate the
matters. In short, the matters are not merely similar, they are
virtually identical. Only different questions of law differentiate these
two cases in this consolidated action.
Turning to the adversity requirement, a conflict arises when
substantially related matters place an attorney in a position that is
materially adverse to a former client. Here, the Schnader firm is
representing its current client, Rohm and Haas, against a former client,
American Cyanamid. On these facts, it is evident that Rohm and Haas and
American Cyanamid are materially adverse to each other for the purposes
of this motion. The record indicates that a former client conflict arose
sometime between American Cyanamid's decision to retain separate counsel
in May, 1995 and the filing of the 99-1891 action on April 26, 1999. Two
ways to eliminate a RPC 1.9 former client conflict of interest are
consent after full disclosure of the conflict and waiver resulting from
an undue delay in moving to disqualify. This Court finds that proper RPC
1.9 consent was not obtained from American Cyanamid by the Schnader
firm. Before discussing waiver, this Court will briefly address the
appearance of impropriety doctrine of RPC 1.7.
III. Appearance of Impropriety RPC 1.7
Even where no actual conflict exists, an attorney can be disqualified
from a case if the "appearance of impropriety" is sufficiently great.
See Rule. RPC 1.7, 1.9(b). Disqualification under this doctrine is
proper where "an ordinary knowledgeable citizen acquainted with the facts"
could conclude that the Schnader firm's representation
of Rohm and Haas
in the present litigation poses a "substantial risk of disservice either
to the public interest or the interest of one of the clients." RPC
1.7(c)(2). This rule is intended to instill public confidence in the
legal profession. See In re Opinion No. 415, 81 N.J. 318, 323-24
(1979). RPC 1.7 does not focus on fanciful possibilities, but rather on
reasonable fears of attorney misconduct. See Dewey, 109 N.J. at 216;
Ciba Geigy Corp. v. Alza Corp., 795 F. Supp. 711, 719 (D.N.J. 1992).
In light of the fact that an actual conflict appears to exist in this
matter, neither a lengthy discussion, nor a conclusive finding regarding
the appearance of impropriety is warranted. In short, the Court finds
the Schnader firm's brief representation of American Cyanamid in 1995 and
the present representation of Rohm and Haas created an actual conflict of
interest under the principles of RPC 1.9 and opts to not discuss how the
appearance of impropriety applies to the present motion. Normally, this
finding would warrant disqualification of the Schnader firm. However, the
facts on record present an additional legal question; whether American
Cyanamid waived the right to bring a motion to disqualify the Schnader
firm. See Tr. at 12:14-22.
Where a conflict of interest exists, disqualification is not required.
See Dewey, 109 N.J. at 215; Alexander, 822 F. Supp. at 1115. A "valid
basis for the denial of a motion to disqualify" is waiver. Id. (citing
Commonwealth Ins., 808 F. Supp. at 1208) and see Zimmerman v. Duggan,
81 B.R. 296, 300 (E.D.Pa. 1987); INA Underwriters Ins. Co. v.
Nalibotsky, 594 F. Supp. 1199, 1204 (E.D.Pa. 1984); Jackson v. J.C.
Penney Co., 521 F. Supp. 1032, 1034-35 (N.D.Ga. 1981). As described by
the court in Alexander:
[A] finding [of waiver] is justified . . . when a former
client was concededly aware of the former attorney's
representation of an adversary but failed to raise an
objection promptly when he had the opportunity. In
[this] circumstance, the person whose confidences and
secrets are at risk of disclosure or misuse is held to
have waived his right to protection from that risk.
Alexander, 822 F. Supp. at 1115 (citing Commonwealth Ins., 808 F. Supp.
at 1208. This approach has been utilized by numerous courts. See,
e.g., Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85
(9th Cir. 1983) (citing additional cases); Central Milk Producers
Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988
, 992 (8th Cir.
1978); Zimmerman, 81 Bankr. at 300 ; INA Underwriters, 594 F. Supp. at
1204 (citing additional cases); Jackson, 521 F. Supp. at 1034-35; Redd
v. Shell Oil Co., 518 F.2d 311
, 314-15 (10th Cir. 1975); Warpar Mfg.
Corp. v. Ashland Oil, Inc., 606 F. Supp. 852, 858-59 (N.D.Ohio. 1984);
Glover v. Libman, 578 F. Supp. 748, 767 (N.D.Ga. 1983); United States v.
Newman, 534 F. Supp. 1113, 1127 (S.D.N.Y. 1982).
The assessment of whether a party moving for disqualification has
waived its right to make such a request requires an analysis of five
(1) the length of the delay in bringing the motion to
(2) when the movant learned of the conflict
(3) whether the movant was represented by counsel during
(4) why the delay occurred
(5) whether disqualification would result in prejudice
to the non-moving party
Alexander, 822 F. Supp. at 1115 (citing cases). The essence of this
whether the party seeking disqualification appears to use the
disqualification motion as a tactical maneuver. See Richardson-Merrell,
Inc. v. Koller, 472 U.S. 424
, 436 (1985) (expressing a concern for the
"tactical use of disqualification motions to harass opposing counsel");
Alexander, 822 F. Supp. at 1116, 1119 (finding that a motion for
disqualification brought three years after the commencement of litigation
where the facts regarding the conflict were known was suspect).
Applying the five-part test for waiver in this case, the facts favor
denial of American Cyanamid's motion to disqualify the Schnader firm.
First, this motion was filed approximately two and a half years after the
case was commenced. American Cyanamid argues that they recognized the
conflict only after in-house counsel heard Dennis Suplee's name and
recognized his position with the Schnader firm. See Tr. at 14:4-8. This
argument does not appear credible. Mr. Suplee's name has appeared on
papers and letters to the Court and was certainly mentioned in
correspondence between the Rohm and Haas and American Cyanamid. See Tr.
at 16:13-22. In fact, the record reflects that it was American Cyanamid's
in-house counsel herself who arranged for the Schnader firm to represent
American Cyanamid in two 1995 contribution actions. See Tribble Cert,
¶ 7; Tribble Reply Cert., ¶ 2; Suplee Cert., ¶ 6; Armstrong
Cert., ¶ 14; Friedell Cert., ¶¶ 30-31. In addition, it was
American Cyanamid's in-house counsel herself who communicated to the
Schnader firm that they were to be replaced by new counsel. See Tribble
Reply Cert., ¶ 3 (stating "At some point, I know that I notified the
Schnader firm of American Cyanamid's intention to engage separate counsel
in the 1995 contribution action to handle the settlements that American
Cyanamid was trying to make with the defendants in that action; however,
the Schnader firm continued to represent American Cyanamid in the 1995
contribution action until the transition to American Cyanamid's new
counsel was made in or around August 31, 1995."). This Court has
difficulty believing that American Cyanamid was unaware of the fact that
Rohm and Haas, by way of attorneys previously retained by American
Cyanamid, had instituted suit against American Cyanamid. As a result,
this factor favors waiver.
The second factor ties into the first. This Court does not give much
weight to American Cyanamid's argument that this conflict was discovered
on August 16, 2001. Rather, this Court observes that this motion was
filed two years and five months after the commencement of the 99-1891
action by Rohm and Haas against American Cyanamid. This delay supports a
finding of waiver.
Third, American Cyanamid was certainly represented by counsel at every
stage of the delay. See Tr. at 14:9-10. They were first represented by
Deming Sherman of the firm of Edwards & Angell. American Cyanamid then
retained the Schnader firm from mid-April through September of 1995.
Subsequently, American Cyanamid replaced the Schnader firm with the firm
of Swidler and Berlin in September of 1995 and have presently retained
the law firm of Sills Cummis Radin Tischman Epstein & Gross representing
their interests before this Court.
As to the fourth factor, it is unclear why the delay occurred. What is
clear is that American Cyanamid should have been aware, and very likely
was aware, of this conflict from the time of the initial filing of the
99-1891 complaint on April 26, 1999. Despite the conflict in this case,
American Cyanamid cannot make such a motion after two and a half years of
passed that calls for such a drastic action. The
appearance that this motion has been brought for strategic purposes is too
great for this Court to overlook. Therefore, this factor also favors
Finally, it is clear that Rohm and Haas would suffer significant
prejudice if the Schnader firm were disqualified from this case. See Tr.
at 14:15-15:12. According to John M. Armstrong, a Schnader attorney,
Rohm and Haas has paid the Schnader firm over 1.2 million dollars in
legal fees and has entrusted the Schnader firm with protecting their
interest in the 99-1891 matter since April 26, 1999 and in general since
April 11, 1995. See Transcript of November 5, 2001 oral argument ("Tr.")
at 7:6-11. It would require a substantial effort and a tremendous
expenditure of legal fees to prepare a new law firm to litigate this
matter at this late stage of litigation.
The time delay in filing of this motion, two years and five months
after commencement of suit, is consistent with other cases where the
undue delay of filing a motion for disqualification was found to
constitute waiver. See, e.g., Alexander v. Primerica Holdings, Inc.,
822 F. Supp. 1099, 1115-16 (D.N.J. 1993) (three-year delay); Commonwealth
Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1208-09 (E.D.Pa.
1992) (two-year delay); Trust Corp. of Montana v. Piper Aircraft Corp.,
701 F.2d 85, 87-88 (9th Cir. 1983) (two-and-one-half year delay); Central
Milk Producers Co-op. v. Sentry Food Stores, Inc., 573 F.2d 988, 992 (8th
Cir. 1978) (over two-year delay); In re Zimmerman, 81 B.R. 296, 300-01
(E.D.Pa. 1987) (almost three-year delay); Warpar Mfg. Corp. v. Ashland
Oil, Inc., 606 F. Supp. 852, 858-59 (N.D. Oh. 1984) (delay of one year
and nine months); Glover v. Libman, 578 F. Supp. 748, 767 (N.D.Ga. 1983)
(delay of thirteen months); Jackson v. J.C. Penney Co., Inc.,
521 F. Supp. 1032, 1034-35 (N.D.Ga. 1981) (delay of fifteen months).
Accordingly, this Court finds that American Cyanamid's motion seeking
disqualification of the Schnader firm is denied as waived. See Tr. at
For the foregoing reasons, this Court holds that American Cyanamid's
motion to disqualify the Schnader firm in this matter is denied because
despite the actual conflict that has arisen in this case, American
Cyanamid's undue delay in bringing this motion constitutes waiver. An
Order accompanies this Opinion.