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Serial Adversaries Are Still No Big Deal: Cherdak v. Koko Fitclub

Judge Indira Talwani issued an order on plaintiff Erik Cherdak’s renewal of his motion to disqualify. And once again, she found that for Cooley, serial adversaries are still no issue. Judge Talwani again found no evidence that Cooley’s representation of two separate defendants in two separate litigations against Mr. Cherdak constituted a disqualifying conflict of interest.

Cooley, which represents Koko FitClub in this litigation, had previously represented Core Industries, LLC, in a dispute with Mr. Cherdak. That dispute ultimately resulted in a confidential settlement agreement. Mr. Cherdak renewed his motion to disqualify after Cooley utilized language and materials from the Core settlement agreement while preparing a draft settlement between Koko FitClub and Mr. Cherdak – even though Cooley emphasized that the Core settlement agreement itself had not been shared with Koko FitClub.

To Judge Talwani, these actions would at best go to a breach of Cooley’s obligations under the Core settlement agreement (and it wasn’t at all clear that Cooley had committed such a breach). In Judge Talwani’s view, Mr. Cherdak continued to focus on the perceived unfair advantage gained by Cooley through its purported access to and use of confidential information. But he had once more failed to demonstrate that Cooley’s obligations to Koko FitClub and to Core were impaired by Cooley’s representation of both parties.

The outcome here further underscores that to be successful on a motion for disqualification, a litigant must focus on the relationship between the attorney and the parties he or she represents.

The case is Erik B. Cherdak v. Koko Fitclub, LLC and Kok Fitness, Inc., No. 14-cv-10371-IT, in the District of Massachusetts. A copy of the order can be found here.

© 2020 Proskauer Rose LLP. National Law Review, Volume V, Number 190


About this Author

Laura Stafford, ProskauerRose, litigation, patent infrigement, IP

Laura Stafford is an associate in the Litigation Department. Laura’s practice encompasses a variety of complex matters, with a focus on high-profile patent infringement disputes across several different industries. She has experience in all stages of the litigation process, including pre-suit diligence, discovery, summary judgment, and trial. Laura has worked on a range of matters in the federal courts as well as before the International Trade Commission.