Preview
Com YN DH F&F YW DY
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
21
28
MICHAEL BRUNO (SBN 166805)
BRIAN P. MASCHLER (SBN 111824 )
GORDON REES SCULLY MANSUKHANI LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: (415) 986-5900
Facsimile: (415) 986-8054
Attorneys for Defendants,
VEECO INSTRUMENTS INC. and ULTRATECH, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
ANDREW M. HAWRYLUK, an individual, | CASE NO. 5:18-cv-02489-LHK
Plaintiff,
EFENDANTS’ REPLY MEMORANDUM
vs. N SUPPORT OF MOTION TO
ISQUALIFY PLAINTIFF’S COUNSEL
VEECO INSTRUMENTS INC., a Delaware
corporation, ULTRATECH, INC., and DOES | Date: December 18, 2018
1 through 50, Time: 9:00 a.m.
Dept. 13
Defendants. Judge: Hon. James L. Stoelker
[Accompanying Papers: Declaration of
Gregory Robbins; Supplemental Declaration
of Robert Bradshaw; Declaration of Brian P.
Maschler; Defendants’ Objections to
Declarations]
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELRM NY NR NNN NY KN SY Be eB Ee Se ee Re ee
ou A A BR ON Ss SF OD rm IN DH BF Bw NY KH DD we BDH HW F&F YW N
Il.
Il.
Iv,
TABLE OF CONTENTS
INTRODUCTION .....ccsccscseessseeseessessecsseescsssensnsnasesnensisstecarennessucesessuasuuesseesessnesnssessssneges
RELEVANT PROCEDURAL BACKGROUND ......:sssssssessseresenreeceneenesneensensatenress
CURIALE’S CONFLICT OF INTEREST BARS HIS REPRESENTATION OF
PLAINTIFF IN THIS CASE. ......-ssssessessesseecsnesssesssesseeotssssensesseenecnaneaneasesnonnenssnssransaas
CONCLUSION .........cscscsesssesssesecseesseessessesnsecsenscesnesaesceneneenseceecanesannanssansascnneancenensneegees
-i-
Page
eas 1
said 6
lB
wave 11
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELOo em IN DH HW BF WHY
RM NY YN NY N NY KR SF SF KF Fe Be ee ee eS
old A aA BF oN = SD eI DH BF WN | SD
TABLE OF AUTHORITIES
Page(s)
Cases
Beltran v. Avon Products, Inc.
(C.D. Cal. 2012) 867 F. Supp. 2d. 1068 .
City and County of San Francisco v. Cobra Solutions, Inc.
(2006) 38 Cal. 4th, 839.0... .essssesescsssssessetesssssneccesssonassscesssnansssseennnnanscssenssoeseeussnssnionannesnnssreseseessy 9
Farris v. Fireman’s Fund Ins. Co.
(2004) 119 Cal. App. 4th 671 ....cescceesceesessecseseceseesesneerenseesesnessnessneenssanennseaeasseavenncensenanes 9, 10
Faughn y. Perez
(2006) 145 Cal. App. 4th 592 .....cecssescssssecsessseseneenssnneessesnessesacsseconeasssenensanssenssesrccneseaccanennanneenens 9
Flatt v. Sup. Ct.
(1994) 9 Cal. 4th 275 oo. ssseecssescssesesnesssecsnssecsnceeseessunecnscreneesreesseerssesessesnsersnnsceseessnnesanseeusasenncnte 10
H. F. Ahmanson & Co. v. Salomon Bros., Inc.
(1991) 229 Cal. App. 3d. 1445 .svsccscsssssssssssstnsssssstneessenstsssssnnannnesaeistnntnteneeneentns 10
Henriksen v. Great American Savings & Loan
(1992) 11 Cal. App. 109 csescessensessssesctsnescsesstisstsstsstnstnseatneerstnstisetsstnneaeisnenenentte 10
Khani y. Ford Motor Co.
(2013)215!Cal App Ath 916 cseeccnceesnntereencsnescseneisgnsnseniisenntserppsntetetnetneeesenemnes 9
Rules
California Rule of Professional Conduct
Rule 3-31 O....ccscccccsesssscusssnesnssnsccarcerssvecqusssscsssssasenscesssuecsacensssnenuserscensessesseseasenessaeansens
California Rule Professional Conduct
Rule 3-700....cccsessscsseessessscsesssecenecesecsessessessacsseseseasessnecsecaneastesensavenssqsussaeaseaussesseeseennenaneeneeneessny# 10
“ii-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELCo Oo ND
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. INTRODUCTION
This case presents an irreconcilable conflict of interest of the worst order:
1. An attorney and his law firms (Curiale) served as a client’s (Ultratech) primary
employment counsel for over 30 years. During those three-plus decades, Curiale handled dozens
of employment litigation matters and pre-litigation counseling matters for Ultratech. He advised
Ultratech on employment and anti-discrimination policies and practices, assisted in the
preparation of employment manuals, company policy statements and employee agreements,
independent contractor agreements, commission plans and severance agreements, and provided
trainings and seminars on employment-related matters, including the prevention and handling of
age discrimination claims. (Declaration of Robert Bradshaw [“Bradshaw Dec.”] {ff 2-8, 10, 14.)
(See also Exhibit A to Bradshaw Dec.: Curiale’s agreement to provide Ultratech with “labor and
employment law services including advice and counseling, training (both domestic and
international), litigation and defense and traditional labor law matters.”) For much of that
period, Curiale was on an annual retainer with Ultratech. In negotiating the terms of one his
retainer agreements, which was renewed for multiple years, Curiale represented to Ultratech that
he “personally assumed responsibility for all of [its] matters” and promised he would “monitor
all of Ultratech’s matters “closely to make sure [it received] the very best representation
possible,” and that he would “be there for” Ultratech. (/d.)
2. Among the age discrimination matters Curiale handled for Ultratech concerned an
analysis of potential age discrimination claims that could be brought against one of the
company’s shareholders for making allegedly discriminatory comments about its then-
Chairman/CEO (Arthur Zafiropoulo) and CFO (Bruce Wright) (Bradshaw Dec. { 8). Curiale
prepared a memorandum concerning potential age discrimination claims, which specifically
advised Ultratech on age discrimination law and how to handle such claims. (/d.; Exh. F to
Bradshaw Dec.). In that same legal memorandum, Curiale advised his client on the ethical
implications of his representing the company’s CEO and CFO as individuals, and specifically,
that such representation could pose a potential conflict of interest as between their interests and
the company’s. (/d.) Curiale concluded: “it would appear that any individual representation by
al-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S.
COUNSELc2 Oe QW KH H BF WN =
NN YY YN NN YN Se Se Be Se Be ese Se me em
eo 1 DWH FF OBO NHN |= SOD we IY DH BBW NHN KH S
Curiale Wilson may require informed written consent by Ultratech.” (Id.; emphasis added).
33 As recently as May 2017, Curiale put on a training session for Ultratech in which
he provided advice on, among other employment-related issues, anti-age discrimination policies
and practices. (Bradshaw Dec. § 7; Exhs. D, E to Bradshaw Dec.)
4, In the course of Curiale’s decades’ long representation of Ultratech, he interacted
directly with the upper-most echelon of the company’s management, including its Chairman of
the Board and Chief Executive Officer, Arthur Zafiropoulo, its CFO, Bruce Wright, its head of
Human Resources, and members of the company’s board of directors. He was privy to the
company’s highly sensitive and confidential matters, including those pertaining to its
employment policies and practices, personally guided the company through employment-related
claims asserted by current and former employees, and formulated strategy for dealing with those
claims. (Bradshaw Dec. {ff 2-8, 10, 14).
5. When Ultratech announced it was merging with another company (Veeco) and
there would be personnel implications, Curiale aligned himself with some of the company’s top
executives, including Chairman/CEO Zafiropoulo and CFO Wright, and participated in the
implementation of their separation agreements and negotiation and drafting of their benefits
packages. (Bradshaw Dec. para. 10; Supplemental Bradshaw Dec. ff 2, 3; Exhs. A-C). He
threatened legal action if the company does not accede to his demands made on behalf of those
individuals. (Exh. H to Bradshaw Dec.). At no time did Curiale notify Ultratech (or Veeco) in
writing that he had withdrawn from his long-standing representation of his client, Ultratech.
(Robbins Declaration J 3; Bradshaw Dec. 4 4). He has produced no such writing with his
opposition to this motion.
6. On February 9, 2018 (approximately 8 months after the client’s merger had
closed), Curiale sent a letter to the Senior Vice President of Human Resources (Robert
Bradshaw), who had taken over the human resource functions for Ultratech:
“Dear Bob,
Since we have communicated about a number of issues in the past, I wanted to
give you a heads-up. Dr. Andew Hawryluk has retained our firm to bring an
action against Veeco Instruments, Inc. and Ultratech International, Inc. (sic) for
a
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELoe IY DH HW FB WN
10
age discrimination, retaliation, failure to prevent discrimination, breach of
contract, breach of the covenant of good faith and fair dealing, intentional
interference with contract and negligent interference with contract.”
(Bradshaw Dec. { 11; Exh. G to Bradshaw Dec.; Declaration of Michael D. Bruno [Bruno
Dec.”] 43). As noted, “age discrimination, retaliation, [and] failure to prevent discrimination”
were among the specific subjects on which Curiale previously had represented and advised
Ultratech. At the time the attorney sent this letter, his new client, Dr. Hawryluk, was still
employed by Ultratech as its Chief Technology Officer. Indeed, in this letter Curiale demanded:
“During the pendency of the litigation, Dr. Hawryluk will remain employed by Veeco” and
threatened to add as individual defendants any Ultratech employee who “harassed” Dr.
Hawryluk. (Jd.)
7 Two weeks later (February 23, 2018), Curiale sent another letter to Mr. Bradshaw,
in which he threatened to bring suit on behalf of two other Ultratech employees, former
Chairman and CEO Art Zafirapoulo and former CFO Bruce Wright. (Bradshaw Dec. § 12; Exh.
H to Bradshaw Dec.) Curiale claimed in the letter that those two employees “are now being
required to make contributions towards their health care coverage that they were not required to
make at Ultratech. I have advised them that this is a breach of their agreement with Veeco.” (/d.).
Thus, in this letter Curiale claimed familiarity with both Ultratech’s and Veeco’s policies.
8. In response, Ultratech, through counsel, advised Curiale in no uncertain terms that
his representation of employees Hawryluk, Zafirapoulo and Wright on matters and claims
adverse to Ultratech and Veeco posed an “incurable conflict of interest,” that it categorically did
not waive this conflict or otherwise consent to this representation, and demanded that the
attorney return to Ultratech/Veeco all of their documents in his possession. (Bruno Dec. { 5;
Exhib A to Bruno Dec.; Bradshaw Dec. q 13).
9. Despite this clear and unequivocal direction from Ultratech that Curiale’s
representation of the company’s executives created a conflict of interest and that it did not
consent to such representation of adverse interests, Curiale filed suit against the client’s parent
(Veeco) on behalf of Dr. Hawryluk anyway. This lawsuit involves Hawryluk’s prior
3.
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S
COUNSEL0 OW NY HH PF YW YD &
RN NN NN N NY YD Se Be ee Be we ewe Se ee
oa IT A A FF YW YN = SF BG eI DH RB BW YD S& S
employment at Ultratech, Curiale’s long-standing employment client. The case attacks
Ultratech’s employment policies and practices; Plaintiff alleges age discrimination and failure to
prevent discrimination—again, matters on which Curiale previously had advised Ultratech. (See,
e.g., Amended Complt. [Exh. B to Bruno Dec.] 4 52: “Defendants have taken and maintained the
discriminatory practices for all times relevant to the claims in this lawsuit and continue to engage
in unlawful conduct.”) In the original Complaint, which was brought only against Veeco and not
Ultratech, Curiale expressly acknowledged that “Veeco’s lawyers [had] sent Hawryluk’attorneys
(a letter] demanding they terminate their representation of Hawryluk because of...allegations of
conflict of interest.” (Complaint, { 38, p. 10, Exh. B to Bruno Dec.) . Thus, Curiale admits in
this very pleading that Ultratech/Veeco had opposed his representation of its former CTO
Hawryluk on conflict of interest grounds, and that he knew of the conflict and his former client’s
position that he could not ethically represent Plaintiff in this case.
10. After the case had been removed to federal court on diversity grounds and Veeco
had filed an Answer to the Complaint asserting, inter alia, that Ultratech remained Hawryluk’s
employer following the merger with Veeco, Curiale filed an amended complaint in the federal
action, adding Ultratech, as a defendant. (Exh. E to Bruno Dec.) With Ultratech added as a
defendant, the incurable conflict of interest was brought into even sharper focus, and Curiale
could not claim (factually or legally) that no conflict of interest existed because he had not
represented the corporate parent, Veeco.
This conflict of interest is clear, undeniable and known at all relevant times to Curiale.
His opposition to this motion offers no facts or law that call into question that he must be
disqualified as Plaintiff's counsel. In his opposition he attempts, unsuccessfully, to distance
himself from his prior representation of Ultratech. For example, he conspicuously omits any
reference to his prior engagements in which he specifically counseled Ultratech on age
discrimination issues and admitted to Ultratech that his representation of individual company
officers could present a conflict of interest vis a vis the company, for which a conflicts
waiver/consent would be required. (Bradshaw Dec. { 8; Exh. F). His protestations that he was
not privy to Ultratech’s sensitive and confidential information during his three-plus decades of
-4-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S
COUNSELCo em YN DH BF YW NY =
mM NN NN NN ND ese ee Se Be Se eRe Be ee
ota A A BF YBN S&F SG Owe BE DH KH FF BW NH KH
legal work for the company, incredible on their face, are belied by his contemporaneous touting
of his indispensable role as company employment counsel and the tremendous breadth of his
legal services he had performed and would perform for it. (See, e.g., Exh. A to Bradshaw Dec.).
To wit, when it served Curiale’s purposes, i.e., to get or maintain Ultratech’s business, he
trumpeted his essential role as counsel for the company. He had direct access to its top
management—an undeniable fact confirmed by his eventual representation of members of that
same management group. (E.g., Exh. H to Bradshaw Dec.; Exhs. A-C to Supp. Bradshaw Dec.)
His disavowal of the scope and nature of his representation of Ultratech and of his access to and
knowledge of the company’s confidential information, ring hollow. Under these circumstances,
access to the client’s confidential information in the course of legal representation is legally
presumed, There was no “Chinese Wall” in effect during Curiale’s representation of Ultratech,
nor does he adduce any facts suggesting that possibility.
Curiale’s denial that he did not do legal work for Veeco (contradicted by his own
statements in his letter to Mr. Bradshaw of February 9, 2018) is of no moment here: he chose to
add Ultratech, his long-standing client, as a defendant in this case. The subject matter of that
extended representation, and its implications for his representation of interests directly adverse to
Ultratech, thus became squarely at issue. The subject matter of Curiale’s representation of
Ultratech—regardless of whether Curiale claims that representation was over when he started
representing then-Ultratech employee Hawryluk—clearly and undeniably overlap with the
subject matter of this case. To be clear, Curiale’s prior representation of Ultratech ethically
forecloses, on conflict of interest grounds, his representation of one of its former top officers
against Ultratech in this case. Contrary to Plaintiff's apparent suggestion, for a conflict to exist,
it is not required that the attorney have represented the moving party in the same dispute against
his non-client, and then switch sides, or that there be concurrent representation of those adverse
interests. Subsequent representation of adverse interests against a former client where, as here,
the prior representation had a substantial relationship to the present dispute, creates a conflict of
interest that compels disqualification. See Cal. Rule of Professional Conduct 3-310(E) (“A
member shall not, without the informed written consent of the... former client, accept
5.
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSEL0 ON DH HW PB WN =
RMN NY YN NN DN | S| Be oe Se Se Be Se SE
eo aA A BF Oo Hh |-— SC oe me Ia DH HF WN SK SD
employment adverse to the... former client...where by reason of the representation of
the...former client he has obtained confidential information material to the employment.”)
The declaration of Mr. Kehr, who has no first-hand knowledge of any of the facts and
relies solely on the truncated version provided by Mr. Curiale, cannot salvage Curiale’s tainted
representation. That declaration, which consists of inadmissible legal argument, should be
stricken in its entirety. (See: Defendants’ Objections to Declarations, filed herewith.)
Last, as discussed below, Curiale’s contention that this motion to disqualify was a tactical
maneuver to avoid previously scheduled depositions, is spurious. The motion was filed five (5)
weeks before those depositions were scheduled to take place. Defendants will produce those
witnesses for deposition when new counsel has appeared for Plaintiff. Defendants appropriately
did not file this motion until after Ultratech, Curiale’s client for over 30 years, had been added as
a defendant in this case, and until after their counsel had conducted, in responding to discovery, a
thorough review of the records pertaining to Curiale’s prior representation. (See Bruno Dec.
4/12). Curiale was told and knew of his conflict of interest before the lawsuit was filed, and
Defendants repeatedly advised him that they intended to pursue this motion if he persisted in his
representation of the plaintiff. (See Bruno Dec. § 9; Exh. H to Bruno Dec.). He cannot claim
surprise. He cannot properly represent Plaintiff in this case.
Il. RELEVANT PROCEDURAL BACKGROUND
As noted, Ultratech, the company that Curiale had represented for over 30 years, was not
added as a defendant in this case until Plaintiff filed his Amended Complaint, in the federal court
action, on or about May 21, 2018. The Amended Complaint was not served on Ultratech until
over a week later. Thus, Plaintiff's contention that this case had been “litigated for 7 months”
before this motion was filed, is misleading. This case is in its infancy; there has been very little
activity in it. No trial date, dispositive motion deadline or discovery cut-off has been set. Other
than this motion, no motion of any kind has been filed. There have been no case management
conferences yet in this case. (Maschler Dec. { 2) Plaintiff has propounded initial special
interrogatories, form interrogatories and requests, and Defendants Ultratech and Veeco have
timely served written responses. No depositions by either side have been taken. Defendants filed
6-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELfw WN
Co Om IU Dn a
the instant motion approximately five (5) weeks before the first deposition, noticed by Plaintiff's
counsel, was scheduled to be taken. With the addition of Ultratech as a defendant, and as defense
counsel’s review of the Ultratech/Curiale files confirmed that a clear conflict of interest did exist
(see Bruno Dee. para. 12), defense counsel purposefully refrained from serving any discovery
until after the disqualification motion was decided. (Maschler Dec. [ 3).
After Ultratech was added as a defendant in the federal case, which defeated diversity
jurisdiction, the District Court, on its own initiative, canceled a previously scheduled status
conference and remanded the case to this Court. (Bruno Dec. 11). As previously noted, in the
parties’ Joint Case Management Conference Statement, filed by Plaintiff and Defendants on July
18, 2018, Defendants stated that one of the legal issues in the case was: “In light of Plaintiff's
counsel’s prior representation of Ultratech, whether they are ethically permitted to represent
interests adverse to Ultratech in this case.” (Exh. H to Bruno Dec. at p. 7, Il. 17-18). In the
“Motions Contemplated by Defendants” section of this Joint CMC Statement, Defendants
identified “a motion to disqualify Plaintiff's counsel.” (/d. at p. 7, 1. 26).
After the case was remanded back to state court, the Court, per the Hon. Mary Arand, set
a Status Conference for October 4, 2018. Defendants filed the instant motion the day before that
status conference, October 3, 2018. Defendants noticed the hearing on this motion for the first
date the Court clerk indicated was available, December 18, 2018. (Maschler Dec. { 5).
At the October 4, 2018 Status Conference, Judge Arand noted that a motion to disqualify
had been filed. As Plaintiff notes in his opposition, Judge Arand advised the parties that the filing
of the motion effectively stayed all proceedings in the case. Counsel for Plaintiff, Christopher
Keller, attempted to argue the merits of this motion, said he wanted to “set a trial date now,” and
complained about the December 18, 2018 hearing date. (/d, at 6). Judge Arand stated she was
not hearing argument on or deciding the motion during that status conference, but advised
Plaintiff's counsel that she would consider an ex parte application to move up the hearing date.
Mr. Keller said he intended to file such an application. (/d.).
Plaintiff's counsel notified defense counsel that they intended to file an ex parte
application to move up the hearing date on this motion. Defense counsel advised Plaintiff's
-7-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELYD UWF YB
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
counsel that they would nor oppose that application and provided Plaintiffs counsel with a list of
dates. (/d. at ] 7; Exhs. A-C to Maschler Dec.) Plaintiff noticed the ex parte application for
October 10, 2018. Defendants sent an attorney to attend the hearing on the application.
Unfortunately, because Plaintiff's counsel did not comply with the Court’s filing requirements
for ex parte applications, Plaintiff's application could not be heard on that date. Over Plaintiff's
counsel’s objections, Judge Arand advised the parties she would not hear the application unless
and until Plaintiff complied with the Court’s rules. (Maschler Dec. 8).' Plaintiff of course
could have refiled the application (in conformity with Court rules), and since Defendants were
not opposing it, the Court likely would have set an earlier hearing on this motion. However,
Plaintiff's counsel chose not to refile the motion and to preserve the current hearing schedule on
this motion. (/d.). Defendants stipulated that the time for bringing a motion to compel
concerning previously served discovery responses would be stayed pending the ruling on the
instant motion. (/d; Exhs. B, C to Maschler Dec.)
Thus, having foregone his opportunity to accelerate the hearing on this motion, Plaintiff
cannot be heard to claim he was prejudiced by its timing. He cannot validly claim, for example,
that the temporary postponement of depositions (which will be rescheduled after the Court’s
ruling on this motion) caused him even an inconvenience. He has made no colorable showing of
prejudice, period.
Ill. © CURIALE’S CONFLICT OF INTEREST BARS HIS REPRESENTATION OF
PLAINTIFF IN THIS CASE.
It is undisputed that Curiale represented and counseled Ultratech for approximately three
decades on a variety of employment matters, including litigation matters, employee claims and
age discrimination matters—the very subject matter implicated in this case. Robert Bradshaw,
the Senior Vice President of Human Resources for Ultratech/Veeco, has laid out specifically in
his declaration the types of employment matters on which Curiale had represented and counseled
Ultratech before declaring he was representing Hawryluk (and former officers Zafiropoulo and
' Plaintiff filed a peremptory challenge to Judge Arand six days later, on October 16, 2018. Judge Stoelker was
assigned to the case on or about November 2, 2018.
-8-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S
COUNSELUF Bw
oD mI DN
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Wright) on claims adverse to Ultratech. (Bradshaw Dec. ff 2-8, 10, 14). These matters included
Curiale’s analysis of potential age discrimination claims, in which Curiale prepared a
memorandum that not only advised Ultratech on strategy with respect to such claims, but also
advised that his representation of the company’s individual officers in respect of such claim
could pose a conflict of interest vis a vis the company, which would require a consent (conflicts
waiver) by Ultratech. (/d. at ] 8; Exh. F, last 3 pages). Tellingly, neither Curiale nor Mr. Kehr
makes any mention of this key memorandum, which was prepared in June 2016.
Mr. Bradshaw also attests in detail that in the course of Curiale’s omnibus representation
of Ultratech from 1984-2017 he was provided access to Ultratech’s highly sensitive and
confidential information. (Bradshaw Dec. { 2-8, 10, 14).? For example, Mr. Bradshaw states that
in the course of Curiale’s prior representation of Ultratech, he “devised and advocated
Ultratech’s legal positions and strategy. He was directly privy to the company’s thought
processes and business constraints.” (/d. at 6). Mr. Bradshaw goes on to state:
There is no way in this case to avoid the use of confidential information
about Ultratech that was disclosed to Curiale during the 33+ years he
represented the Company. Permitting him to serve as Hawryluk’s counsel
would irreparably and unfairly Prejudice the interests of Ultratech and its
corporate parent, Veeco. (/d. at q 14).
In short, contrary to the straw man propped up by Curiale (and Mr. Fehr), Defendants
have not simply made a “generalized reference to a lawyer having formerly represented the
moving party” (Opp. 14:15); they have demonstrated, through sworn testimony and documents
prepared by Curiale himself, that there is a substantial relationship between Curiale’s prior
representation of Ultratech and his current representation of Ultratech’s former Chief
Technology Officer Hawryluk. Cases cited by Plaintiff, including Faughn v. Perez (2006) 145
Cal. App. 4" 592, and Khani v. Ford Motor Co. (2013) 215 Cal. App. 4" 916, involved such
generalized references to the attorneys’ prior representation, and are factually inapposite. Here,
there is a direct nexus between Curiale’s counseling of Ultratech, and the issues raised in this
2 Mr. Bradshaw states in his Declaration (at { 6) that Curiale’s representation of Ultratech extended into 2017 and
provides an invoice for and examples of work Curiale did for the company in April and May of 2017 (/d. at ¥ 5, 7;
Exhs. B, D, E). Defendants’ brief makes one inadvertent reference to 2018 (at p. 1), a typographical error.
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S
COUNSELYA WwW FF wWN
0
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
lawsuit. As a matter of law, if the former client shows there is a “substantial relationship”
between the current and former representations, it is presumed that the attorney in question
“possesses confidential information adverse to the former client” and disqualification is
mandatory. (Henriksen v, Great American Savings & Loan (1992) 11 Cal. App. 109, 114; see
also Flatt v. Sup. Ct. (1994) 9 Cal. 4" 275, 283; Farris v. Firemen’s Fund Ins. Co. (2004) 119
Cal. App. 4" 671, 678 [where the attorney’s prior “placement” vis a vis the former client was
“direct and personal,” access to material confidential information is presumed]; H. F. Ahmanson
& Co. v. Salomon Bros., Inc. (1991) 229 Cal. App. 3d. 1445, 1453; Beltran v. Avon Products,
Inc. (C.D. Cal. 2012) 867 F. Supp. 2d. 1068, 1081-83). Plaintiff's discovery requests propounded
in this case, which seek, inter alia, information on Ultratech’s general employment policies and
practices that Curiale advised on, are further testament to the fact that this case implicates the
subject matter of Curiale’s prior representation. (Maschler Dec. {§ 11-13; Exhs. D, E to
Maschler Dec.)
Curiale’s statement that he “never represented Ultratech at any time relevant to
Hawryluk’s allegations” (Opp. 11:9-10), is simply false. By his own admission, he was
providing legal services to Ultratech at least until May 2017. Hawryluk signed the Change in
Control Severance Agreement, which is Exhibit A to the Complaint, on January 31, 2017. (See
also Am. Complt. § 4, 20-21 i? As noted, Curiale never provided a written notice of withdrawal
to Ultratech. (See Cal. Rule Prof. Conduct 3-700(A)(2)[*A member shall not withdraw from
employment until the member has...give[n] due notice to the client.”]) His conjecture that
Veeco’s in-house counsel “knew” he had discontinued his representation of subsidiary Ultratech
is just that—conjecture—and false. (Declaration of Gregory Robbins { 3). That Ultratech
retained other law firms over the years is irrelevant to this motion.
Curiale’s contentions that “Veeco’s HR team, not Ultratech’s responded to Hawryluk and
his allegations,” and “Veeco is defending this case on behalf of itself and Ultratech” are at once
* Plaintiff devotes much of his argument to denying Curiale drafted his Change in Control Severance Agreement.
Defendants have not claimed he did. Rather, Mr. Bradshaw states in his declaration that “[w]hile still representing
Ultratech, Curiale also represented some of those Ultratech offices in negotiations concerning those agreements and
enforcing their terms.” (Bradshaw Dec. 10.)
-10-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S
COUNSELom ND DH BF WP =
ww N NY NY NY NN KN KR | SF S&S Se Se Be Se Ye
ou A AWA BF BN |= SOC eI DAH BF Bw NH = S
misleading and legally irrelevant. As stated in Mr. Bradshaw’s Declaration, following the
merger, Ultratech remained a separate corporate entity, although Veeco assumed many of its
personnel functions. (Bradshaw Dec. {| 9). As Senior VP- Human Resources, Mr. Bradshaw is
responsible for overseeing the HR and employment-related matters of Veeco’s subsidiary,
Ultratech, and has personal knowledge of same. (/d.) Gordon & Rees represents both Ultratech
and Veeco in this case; both are involved in defending against Hawryluk’s claims.
IV. CONCLUSION
For the foregoing reasons, the Court should GRANT Defendants’ Motion to Disqualify
Plaintiff's Counsel.
Respectfully submitted,
Dated: December 10, 2018 GO) MANSUKHANI, LLP
By:
Attorneys for Defendants Veeco Instruments
Inc. and Ultratech, Inc.
-11-
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S
COUNSEL
Preview
Com YN DH F&F YW DY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 MICHAEL BRUNO (SBN 166805) BRIAN P. MASCHLER (SBN 111824 ) GORDON REES SCULLY MANSUKHANI LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 Attorneys for Defendants, VEECO INSTRUMENTS INC. and ULTRATECH, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ANDREW M. HAWRYLUK, an individual, | CASE NO. 5:18-cv-02489-LHK Plaintiff, EFENDANTS’ REPLY MEMORANDUM vs. N SUPPORT OF MOTION TO ISQUALIFY PLAINTIFF’S COUNSEL VEECO INSTRUMENTS INC., a Delaware corporation, ULTRATECH, INC., and DOES | Date: December 18, 2018 1 through 50, Time: 9:00 a.m. Dept. 13 Defendants. Judge: Hon. James L. Stoelker [Accompanying Papers: Declaration of Gregory Robbins; Supplemental Declaration of Robert Bradshaw; Declaration of Brian P. Maschler; Defendants’ Objections to Declarations] DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELRM NY NR NNN NY KN SY Be eB Ee Se ee Re ee ou A A BR ON Ss SF OD rm IN DH BF Bw NY KH DD we BDH HW F&F YW N Il. Il. Iv, TABLE OF CONTENTS INTRODUCTION .....ccsccscseessseeseessessecsseescsssensnsnasesnensisstecarennessucesessuasuuesseesessnesnssessssneges RELEVANT PROCEDURAL BACKGROUND ......:sssssssessseresenreeceneenesneensensatenress CURIALE’S CONFLICT OF INTEREST BARS HIS REPRESENTATION OF PLAINTIFF IN THIS CASE. ......-ssssessessesseecsnesssesssesseeotssssensesseenecnaneaneasesnonnenssnssransaas CONCLUSION .........cscscsesssesssesecseesseessessesnsecsenscesnesaesceneneenseceecanesannanssansascnneancenensneegees -i- Page eas 1 said 6 lB wave 11 DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELOo em IN DH HW BF WHY RM NY YN NY N NY KR SF SF KF Fe Be ee ee eS old A aA BF oN = SD eI DH BF WN | SD TABLE OF AUTHORITIES Page(s) Cases Beltran v. Avon Products, Inc. (C.D. Cal. 2012) 867 F. Supp. 2d. 1068 . City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th, 839.0... .essssesescsssssessetesssssneccesssonassscesssnansssseennnnanscssenssoeseeussnssnionannesnnssreseseessy 9 Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal. App. 4th 671 ....cescceesceesessecseseceseesesneerenseesesnessnessneenssanennseaeasseavenncensenanes 9, 10 Faughn y. Perez (2006) 145 Cal. App. 4th 592 .....cecssescssssecsessseseneenssnneessesnessesacsseconeasssenensanssenssesrccneseaccanennanneenens 9 Flatt v. Sup. Ct. (1994) 9 Cal. 4th 275 oo. ssseecssescssesesnesssecsnssecsnceeseessunecnscreneesreesseerssesessesnsersnnsceseessnnesanseeusasenncnte 10 H. F. Ahmanson & Co. v. Salomon Bros., Inc. (1991) 229 Cal. App. 3d. 1445 .svsccscsssssssssssstnsssssstneessenstsssssnnannnesaeistnntnteneeneentns 10 Henriksen v. Great American Savings & Loan (1992) 11 Cal. App. 109 csescessensessssesctsnescsesstisstsstsstnstnseatneerstnstisetsstnneaeisnenenentte 10 Khani y. Ford Motor Co. (2013)215!Cal App Ath 916 cseeccnceesnntereencsnescseneisgnsnseniisenntserppsntetetnetneeesenemnes 9 Rules California Rule of Professional Conduct Rule 3-31 O....ccscccccsesssscusssnesnssnsccarcerssvecqusssscsssssasenscesssuecsacensssnenuserscensessesseseasenessaeansens California Rule Professional Conduct Rule 3-700....cccsessscsseessessscsesssecenecesecsessessessacsseseseasessnecsecaneastesensavenssqsussaeaseaussesseeseennenaneeneeneessny# 10 “ii- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELCo Oo ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This case presents an irreconcilable conflict of interest of the worst order: 1. An attorney and his law firms (Curiale) served as a client’s (Ultratech) primary employment counsel for over 30 years. During those three-plus decades, Curiale handled dozens of employment litigation matters and pre-litigation counseling matters for Ultratech. He advised Ultratech on employment and anti-discrimination policies and practices, assisted in the preparation of employment manuals, company policy statements and employee agreements, independent contractor agreements, commission plans and severance agreements, and provided trainings and seminars on employment-related matters, including the prevention and handling of age discrimination claims. (Declaration of Robert Bradshaw [“Bradshaw Dec.”] {ff 2-8, 10, 14.) (See also Exhibit A to Bradshaw Dec.: Curiale’s agreement to provide Ultratech with “labor and employment law services including advice and counseling, training (both domestic and international), litigation and defense and traditional labor law matters.”) For much of that period, Curiale was on an annual retainer with Ultratech. In negotiating the terms of one his retainer agreements, which was renewed for multiple years, Curiale represented to Ultratech that he “personally assumed responsibility for all of [its] matters” and promised he would “monitor all of Ultratech’s matters “closely to make sure [it received] the very best representation possible,” and that he would “be there for” Ultratech. (/d.) 2. Among the age discrimination matters Curiale handled for Ultratech concerned an analysis of potential age discrimination claims that could be brought against one of the company’s shareholders for making allegedly discriminatory comments about its then- Chairman/CEO (Arthur Zafiropoulo) and CFO (Bruce Wright) (Bradshaw Dec. { 8). Curiale prepared a memorandum concerning potential age discrimination claims, which specifically advised Ultratech on age discrimination law and how to handle such claims. (/d.; Exh. F to Bradshaw Dec.). In that same legal memorandum, Curiale advised his client on the ethical implications of his representing the company’s CEO and CFO as individuals, and specifically, that such representation could pose a potential conflict of interest as between their interests and the company’s. (/d.) Curiale concluded: “it would appear that any individual representation by al- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S. COUNSELc2 Oe QW KH H BF WN = NN YY YN NN YN Se Se Be Se Be ese Se me em eo 1 DWH FF OBO NHN |= SOD we IY DH BBW NHN KH S Curiale Wilson may require informed written consent by Ultratech.” (Id.; emphasis added). 33 As recently as May 2017, Curiale put on a training session for Ultratech in which he provided advice on, among other employment-related issues, anti-age discrimination policies and practices. (Bradshaw Dec. § 7; Exhs. D, E to Bradshaw Dec.) 4, In the course of Curiale’s decades’ long representation of Ultratech, he interacted directly with the upper-most echelon of the company’s management, including its Chairman of the Board and Chief Executive Officer, Arthur Zafiropoulo, its CFO, Bruce Wright, its head of Human Resources, and members of the company’s board of directors. He was privy to the company’s highly sensitive and confidential matters, including those pertaining to its employment policies and practices, personally guided the company through employment-related claims asserted by current and former employees, and formulated strategy for dealing with those claims. (Bradshaw Dec. {ff 2-8, 10, 14). 5. When Ultratech announced it was merging with another company (Veeco) and there would be personnel implications, Curiale aligned himself with some of the company’s top executives, including Chairman/CEO Zafiropoulo and CFO Wright, and participated in the implementation of their separation agreements and negotiation and drafting of their benefits packages. (Bradshaw Dec. para. 10; Supplemental Bradshaw Dec. ff 2, 3; Exhs. A-C). He threatened legal action if the company does not accede to his demands made on behalf of those individuals. (Exh. H to Bradshaw Dec.). At no time did Curiale notify Ultratech (or Veeco) in writing that he had withdrawn from his long-standing representation of his client, Ultratech. (Robbins Declaration J 3; Bradshaw Dec. 4 4). He has produced no such writing with his opposition to this motion. 6. On February 9, 2018 (approximately 8 months after the client’s merger had closed), Curiale sent a letter to the Senior Vice President of Human Resources (Robert Bradshaw), who had taken over the human resource functions for Ultratech: “Dear Bob, Since we have communicated about a number of issues in the past, I wanted to give you a heads-up. Dr. Andew Hawryluk has retained our firm to bring an action against Veeco Instruments, Inc. and Ultratech International, Inc. (sic) for a DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELoe IY DH HW FB WN 10 age discrimination, retaliation, failure to prevent discrimination, breach of contract, breach of the covenant of good faith and fair dealing, intentional interference with contract and negligent interference with contract.” (Bradshaw Dec. { 11; Exh. G to Bradshaw Dec.; Declaration of Michael D. Bruno [Bruno Dec.”] 43). As noted, “age discrimination, retaliation, [and] failure to prevent discrimination” were among the specific subjects on which Curiale previously had represented and advised Ultratech. At the time the attorney sent this letter, his new client, Dr. Hawryluk, was still employed by Ultratech as its Chief Technology Officer. Indeed, in this letter Curiale demanded: “During the pendency of the litigation, Dr. Hawryluk will remain employed by Veeco” and threatened to add as individual defendants any Ultratech employee who “harassed” Dr. Hawryluk. (Jd.) 7 Two weeks later (February 23, 2018), Curiale sent another letter to Mr. Bradshaw, in which he threatened to bring suit on behalf of two other Ultratech employees, former Chairman and CEO Art Zafirapoulo and former CFO Bruce Wright. (Bradshaw Dec. § 12; Exh. H to Bradshaw Dec.) Curiale claimed in the letter that those two employees “are now being required to make contributions towards their health care coverage that they were not required to make at Ultratech. I have advised them that this is a breach of their agreement with Veeco.” (/d.). Thus, in this letter Curiale claimed familiarity with both Ultratech’s and Veeco’s policies. 8. In response, Ultratech, through counsel, advised Curiale in no uncertain terms that his representation of employees Hawryluk, Zafirapoulo and Wright on matters and claims adverse to Ultratech and Veeco posed an “incurable conflict of interest,” that it categorically did not waive this conflict or otherwise consent to this representation, and demanded that the attorney return to Ultratech/Veeco all of their documents in his possession. (Bruno Dec. { 5; Exhib A to Bruno Dec.; Bradshaw Dec. q 13). 9. Despite this clear and unequivocal direction from Ultratech that Curiale’s representation of the company’s executives created a conflict of interest and that it did not consent to such representation of adverse interests, Curiale filed suit against the client’s parent (Veeco) on behalf of Dr. Hawryluk anyway. This lawsuit involves Hawryluk’s prior 3. DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL0 OW NY HH PF YW YD & RN NN NN N NY YD Se Be ee Be we ewe Se ee oa IT A A FF YW YN = SF BG eI DH RB BW YD S& S employment at Ultratech, Curiale’s long-standing employment client. The case attacks Ultratech’s employment policies and practices; Plaintiff alleges age discrimination and failure to prevent discrimination—again, matters on which Curiale previously had advised Ultratech. (See, e.g., Amended Complt. [Exh. B to Bruno Dec.] 4 52: “Defendants have taken and maintained the discriminatory practices for all times relevant to the claims in this lawsuit and continue to engage in unlawful conduct.”) In the original Complaint, which was brought only against Veeco and not Ultratech, Curiale expressly acknowledged that “Veeco’s lawyers [had] sent Hawryluk’attorneys (a letter] demanding they terminate their representation of Hawryluk because of...allegations of conflict of interest.” (Complaint, { 38, p. 10, Exh. B to Bruno Dec.) . Thus, Curiale admits in this very pleading that Ultratech/Veeco had opposed his representation of its former CTO Hawryluk on conflict of interest grounds, and that he knew of the conflict and his former client’s position that he could not ethically represent Plaintiff in this case. 10. After the case had been removed to federal court on diversity grounds and Veeco had filed an Answer to the Complaint asserting, inter alia, that Ultratech remained Hawryluk’s employer following the merger with Veeco, Curiale filed an amended complaint in the federal action, adding Ultratech, as a defendant. (Exh. E to Bruno Dec.) With Ultratech added as a defendant, the incurable conflict of interest was brought into even sharper focus, and Curiale could not claim (factually or legally) that no conflict of interest existed because he had not represented the corporate parent, Veeco. This conflict of interest is clear, undeniable and known at all relevant times to Curiale. His opposition to this motion offers no facts or law that call into question that he must be disqualified as Plaintiff's counsel. In his opposition he attempts, unsuccessfully, to distance himself from his prior representation of Ultratech. For example, he conspicuously omits any reference to his prior engagements in which he specifically counseled Ultratech on age discrimination issues and admitted to Ultratech that his representation of individual company officers could present a conflict of interest vis a vis the company, for which a conflicts waiver/consent would be required. (Bradshaw Dec. { 8; Exh. F). His protestations that he was not privy to Ultratech’s sensitive and confidential information during his three-plus decades of -4- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S COUNSELCo em YN DH BF YW NY = mM NN NN NN ND ese ee Se Be Se eRe Be ee ota A A BF YBN S&F SG Owe BE DH KH FF BW NH KH legal work for the company, incredible on their face, are belied by his contemporaneous touting of his indispensable role as company employment counsel and the tremendous breadth of his legal services he had performed and would perform for it. (See, e.g., Exh. A to Bradshaw Dec.). To wit, when it served Curiale’s purposes, i.e., to get or maintain Ultratech’s business, he trumpeted his essential role as counsel for the company. He had direct access to its top management—an undeniable fact confirmed by his eventual representation of members of that same management group. (E.g., Exh. H to Bradshaw Dec.; Exhs. A-C to Supp. Bradshaw Dec.) His disavowal of the scope and nature of his representation of Ultratech and of his access to and knowledge of the company’s confidential information, ring hollow. Under these circumstances, access to the client’s confidential information in the course of legal representation is legally presumed, There was no “Chinese Wall” in effect during Curiale’s representation of Ultratech, nor does he adduce any facts suggesting that possibility. Curiale’s denial that he did not do legal work for Veeco (contradicted by his own statements in his letter to Mr. Bradshaw of February 9, 2018) is of no moment here: he chose to add Ultratech, his long-standing client, as a defendant in this case. The subject matter of that extended representation, and its implications for his representation of interests directly adverse to Ultratech, thus became squarely at issue. The subject matter of Curiale’s representation of Ultratech—regardless of whether Curiale claims that representation was over when he started representing then-Ultratech employee Hawryluk—clearly and undeniably overlap with the subject matter of this case. To be clear, Curiale’s prior representation of Ultratech ethically forecloses, on conflict of interest grounds, his representation of one of its former top officers against Ultratech in this case. Contrary to Plaintiff's apparent suggestion, for a conflict to exist, it is not required that the attorney have represented the moving party in the same dispute against his non-client, and then switch sides, or that there be concurrent representation of those adverse interests. Subsequent representation of adverse interests against a former client where, as here, the prior representation had a substantial relationship to the present dispute, creates a conflict of interest that compels disqualification. See Cal. Rule of Professional Conduct 3-310(E) (“A member shall not, without the informed written consent of the... former client, accept 5. DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL0 ON DH HW PB WN = RMN NY YN NN DN | S| Be oe Se Se Be Se SE eo aA A BF Oo Hh |-— SC oe me Ia DH HF WN SK SD employment adverse to the... former client...where by reason of the representation of the...former client he has obtained confidential information material to the employment.”) The declaration of Mr. Kehr, who has no first-hand knowledge of any of the facts and relies solely on the truncated version provided by Mr. Curiale, cannot salvage Curiale’s tainted representation. That declaration, which consists of inadmissible legal argument, should be stricken in its entirety. (See: Defendants’ Objections to Declarations, filed herewith.) Last, as discussed below, Curiale’s contention that this motion to disqualify was a tactical maneuver to avoid previously scheduled depositions, is spurious. The motion was filed five (5) weeks before those depositions were scheduled to take place. Defendants will produce those witnesses for deposition when new counsel has appeared for Plaintiff. Defendants appropriately did not file this motion until after Ultratech, Curiale’s client for over 30 years, had been added as a defendant in this case, and until after their counsel had conducted, in responding to discovery, a thorough review of the records pertaining to Curiale’s prior representation. (See Bruno Dec. 4/12). Curiale was told and knew of his conflict of interest before the lawsuit was filed, and Defendants repeatedly advised him that they intended to pursue this motion if he persisted in his representation of the plaintiff. (See Bruno Dec. § 9; Exh. H to Bruno Dec.). He cannot claim surprise. He cannot properly represent Plaintiff in this case. Il. RELEVANT PROCEDURAL BACKGROUND As noted, Ultratech, the company that Curiale had represented for over 30 years, was not added as a defendant in this case until Plaintiff filed his Amended Complaint, in the federal court action, on or about May 21, 2018. The Amended Complaint was not served on Ultratech until over a week later. Thus, Plaintiff's contention that this case had been “litigated for 7 months” before this motion was filed, is misleading. This case is in its infancy; there has been very little activity in it. No trial date, dispositive motion deadline or discovery cut-off has been set. Other than this motion, no motion of any kind has been filed. There have been no case management conferences yet in this case. (Maschler Dec. { 2) Plaintiff has propounded initial special interrogatories, form interrogatories and requests, and Defendants Ultratech and Veeco have timely served written responses. No depositions by either side have been taken. Defendants filed 6- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELfw WN Co Om IU Dn a the instant motion approximately five (5) weeks before the first deposition, noticed by Plaintiff's counsel, was scheduled to be taken. With the addition of Ultratech as a defendant, and as defense counsel’s review of the Ultratech/Curiale files confirmed that a clear conflict of interest did exist (see Bruno Dee. para. 12), defense counsel purposefully refrained from serving any discovery until after the disqualification motion was decided. (Maschler Dec. [ 3). After Ultratech was added as a defendant in the federal case, which defeated diversity jurisdiction, the District Court, on its own initiative, canceled a previously scheduled status conference and remanded the case to this Court. (Bruno Dec. 11). As previously noted, in the parties’ Joint Case Management Conference Statement, filed by Plaintiff and Defendants on July 18, 2018, Defendants stated that one of the legal issues in the case was: “In light of Plaintiff's counsel’s prior representation of Ultratech, whether they are ethically permitted to represent interests adverse to Ultratech in this case.” (Exh. H to Bruno Dec. at p. 7, Il. 17-18). In the “Motions Contemplated by Defendants” section of this Joint CMC Statement, Defendants identified “a motion to disqualify Plaintiff's counsel.” (/d. at p. 7, 1. 26). After the case was remanded back to state court, the Court, per the Hon. Mary Arand, set a Status Conference for October 4, 2018. Defendants filed the instant motion the day before that status conference, October 3, 2018. Defendants noticed the hearing on this motion for the first date the Court clerk indicated was available, December 18, 2018. (Maschler Dec. { 5). At the October 4, 2018 Status Conference, Judge Arand noted that a motion to disqualify had been filed. As Plaintiff notes in his opposition, Judge Arand advised the parties that the filing of the motion effectively stayed all proceedings in the case. Counsel for Plaintiff, Christopher Keller, attempted to argue the merits of this motion, said he wanted to “set a trial date now,” and complained about the December 18, 2018 hearing date. (/d, at 6). Judge Arand stated she was not hearing argument on or deciding the motion during that status conference, but advised Plaintiff's counsel that she would consider an ex parte application to move up the hearing date. Mr. Keller said he intended to file such an application. (/d.). Plaintiff's counsel notified defense counsel that they intended to file an ex parte application to move up the hearing date on this motion. Defense counsel advised Plaintiff's -7- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELYD UWF YB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel that they would nor oppose that application and provided Plaintiffs counsel with a list of dates. (/d. at ] 7; Exhs. A-C to Maschler Dec.) Plaintiff noticed the ex parte application for October 10, 2018. Defendants sent an attorney to attend the hearing on the application. Unfortunately, because Plaintiff's counsel did not comply with the Court’s filing requirements for ex parte applications, Plaintiff's application could not be heard on that date. Over Plaintiff's counsel’s objections, Judge Arand advised the parties she would not hear the application unless and until Plaintiff complied with the Court’s rules. (Maschler Dec. 8).' Plaintiff of course could have refiled the application (in conformity with Court rules), and since Defendants were not opposing it, the Court likely would have set an earlier hearing on this motion. However, Plaintiff's counsel chose not to refile the motion and to preserve the current hearing schedule on this motion. (/d.). Defendants stipulated that the time for bringing a motion to compel concerning previously served discovery responses would be stayed pending the ruling on the instant motion. (/d; Exhs. B, C to Maschler Dec.) Thus, having foregone his opportunity to accelerate the hearing on this motion, Plaintiff cannot be heard to claim he was prejudiced by its timing. He cannot validly claim, for example, that the temporary postponement of depositions (which will be rescheduled after the Court’s ruling on this motion) caused him even an inconvenience. He has made no colorable showing of prejudice, period. Ill. © CURIALE’S CONFLICT OF INTEREST BARS HIS REPRESENTATION OF PLAINTIFF IN THIS CASE. It is undisputed that Curiale represented and counseled Ultratech for approximately three decades on a variety of employment matters, including litigation matters, employee claims and age discrimination matters—the very subject matter implicated in this case. Robert Bradshaw, the Senior Vice President of Human Resources for Ultratech/Veeco, has laid out specifically in his declaration the types of employment matters on which Curiale had represented and counseled Ultratech before declaring he was representing Hawryluk (and former officers Zafiropoulo and ' Plaintiff filed a peremptory challenge to Judge Arand six days later, on October 16, 2018. Judge Stoelker was assigned to the case on or about November 2, 2018. -8- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF'S COUNSELUF Bw oD mI DN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wright) on claims adverse to Ultratech. (Bradshaw Dec. ff 2-8, 10, 14). These matters included Curiale’s analysis of potential age discrimination claims, in which Curiale prepared a memorandum that not only advised Ultratech on strategy with respect to such claims, but also advised that his representation of the company’s individual officers in respect of such claim could pose a conflict of interest vis a vis the company, which would require a consent (conflicts waiver) by Ultratech. (/d. at ] 8; Exh. F, last 3 pages). Tellingly, neither Curiale nor Mr. Kehr makes any mention of this key memorandum, which was prepared in June 2016. Mr. Bradshaw also attests in detail that in the course of Curiale’s omnibus representation of Ultratech from 1984-2017 he was provided access to Ultratech’s highly sensitive and confidential information. (Bradshaw Dec. { 2-8, 10, 14).? For example, Mr. Bradshaw states that in the course of Curiale’s prior representation of Ultratech, he “devised and advocated Ultratech’s legal positions and strategy. He was directly privy to the company’s thought processes and business constraints.” (/d. at 6). Mr. Bradshaw goes on to state: There is no way in this case to avoid the use of confidential information about Ultratech that was disclosed to Curiale during the 33+ years he represented the Company. Permitting him to serve as Hawryluk’s counsel would irreparably and unfairly Prejudice the interests of Ultratech and its corporate parent, Veeco. (/d. at q 14). In short, contrary to the straw man propped up by Curiale (and Mr. Fehr), Defendants have not simply made a “generalized reference to a lawyer having formerly represented the moving party” (Opp. 14:15); they have demonstrated, through sworn testimony and documents prepared by Curiale himself, that there is a substantial relationship between Curiale’s prior representation of Ultratech and his current representation of Ultratech’s former Chief Technology Officer Hawryluk. Cases cited by Plaintiff, including Faughn v. Perez (2006) 145 Cal. App. 4" 592, and Khani v. Ford Motor Co. (2013) 215 Cal. App. 4" 916, involved such generalized references to the attorneys’ prior representation, and are factually inapposite. Here, there is a direct nexus between Curiale’s counseling of Ultratech, and the issues raised in this 2 Mr. Bradshaw states in his Declaration (at { 6) that Curiale’s representation of Ultratech extended into 2017 and provides an invoice for and examples of work Curiale did for the company in April and May of 2017 (/d. at ¥ 5, 7; Exhs. B, D, E). Defendants’ brief makes one inadvertent reference to 2018 (at p. 1), a typographical error. DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S COUNSELYA WwW FF wWN 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lawsuit. As a matter of law, if the former client shows there is a “substantial relationship” between the current and former representations, it is presumed that the attorney in question “possesses confidential information adverse to the former client” and disqualification is mandatory. (Henriksen v, Great American Savings & Loan (1992) 11 Cal. App. 109, 114; see also Flatt v. Sup. Ct. (1994) 9 Cal. 4" 275, 283; Farris v. Firemen’s Fund Ins. Co. (2004) 119 Cal. App. 4" 671, 678 [where the attorney’s prior “placement” vis a vis the former client was “direct and personal,” access to material confidential information is presumed]; H. F. Ahmanson & Co. v. Salomon Bros., Inc. (1991) 229 Cal. App. 3d. 1445, 1453; Beltran v. Avon Products, Inc. (C.D. Cal. 2012) 867 F. Supp. 2d. 1068, 1081-83). Plaintiff's discovery requests propounded in this case, which seek, inter alia, information on Ultratech’s general employment policies and practices that Curiale advised on, are further testament to the fact that this case implicates the subject matter of Curiale’s prior representation. (Maschler Dec. {§ 11-13; Exhs. D, E to Maschler Dec.) Curiale’s statement that he “never represented Ultratech at any time relevant to Hawryluk’s allegations” (Opp. 11:9-10), is simply false. By his own admission, he was providing legal services to Ultratech at least until May 2017. Hawryluk signed the Change in Control Severance Agreement, which is Exhibit A to the Complaint, on January 31, 2017. (See also Am. Complt. § 4, 20-21 i? As noted, Curiale never provided a written notice of withdrawal to Ultratech. (See Cal. Rule Prof. Conduct 3-700(A)(2)[*A member shall not withdraw from employment until the member has...give[n] due notice to the client.”]) His conjecture that Veeco’s in-house counsel “knew” he had discontinued his representation of subsidiary Ultratech is just that—conjecture—and false. (Declaration of Gregory Robbins { 3). That Ultratech retained other law firms over the years is irrelevant to this motion. Curiale’s contentions that “Veeco’s HR team, not Ultratech’s responded to Hawryluk and his allegations,” and “Veeco is defending this case on behalf of itself and Ultratech” are at once * Plaintiff devotes much of his argument to denying Curiale drafted his Change in Control Severance Agreement. Defendants have not claimed he did. Rather, Mr. Bradshaw states in his declaration that “[w]hile still representing Ultratech, Curiale also represented some of those Ultratech offices in negotiations concerning those agreements and enforcing their terms.” (Bradshaw Dec. 10.) -10- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S COUNSELom ND DH BF WP = ww N NY NY NY NN KN KR | SF S&S Se Se Be Se Ye ou A AWA BF BN |= SOC eI DAH BF Bw NH = S misleading and legally irrelevant. As stated in Mr. Bradshaw’s Declaration, following the merger, Ultratech remained a separate corporate entity, although Veeco assumed many of its personnel functions. (Bradshaw Dec. {| 9). As Senior VP- Human Resources, Mr. Bradshaw is responsible for overseeing the HR and employment-related matters of Veeco’s subsidiary, Ultratech, and has personal knowledge of same. (/d.) Gordon & Rees represents both Ultratech and Veeco in this case; both are involved in defending against Hawryluk’s claims. IV. CONCLUSION For the foregoing reasons, the Court should GRANT Defendants’ Motion to Disqualify Plaintiff's Counsel. Respectfully submitted, Dated: December 10, 2018 GO) MANSUKHANI, LLP By: Attorneys for Defendants Veeco Instruments Inc. and Ultratech, Inc. -11- DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL