Corporate Law

Despite conflict, Covington can represent Minnesota in major enviro suit against 3M, judge rules


A five-year legal battle over which law firm will represent the state of Minnesota in a major environmental case against 3M Co. has put the parties back where they were when the case began in 2010.

Covington & Burling will continue to represent Minnesota, despite a conflict concerning the law firm’s prior work for the company over a period of more than 12 years. That’s because 3M waited too long to object, a Hennepin County judge ruled last week.

The Feb. 5 decision (PDF) by Judge John McShane followed a 2012 trial court ruling removing Covington, as well as an intermediate appellate court affirmation of that ruling in 2013. But in 2014 the state supreme court sent the matter back to the trial court, to make factual findings needed to determine whether 3M Co. had waived its right to object to the conflict, as the Minneapolis Star Tribune reported at the time.

Although there was no ongoing attorney-client relationship between the law firm and 3M when the state filed suit against the company, with Covington’s help, the 2010 case is substantially related to work the law firm previously did for 3M, McShane found. And “through its prior representation of 3M, Covington received specific facts that are not only relevant to the [2010] case but which go to the core legal issues in the case.”

However, 3M did not object to the conflict until April 2012, more than a year after the suit was filed, when fact discovery was almost concluded, even though it knew of the conflict by early 2011, the judge wrote. “This is an extraordinarily long delay, given the amount of pretrial preparation and discovery that was done during that period of time.”

While providing the trial court with a roadmap that led to the ruling that Covington could represent Minnesota, the supreme court also pointed out that 3M has other potential remedies as far as the conflict is concerned, McShane notes in his opinion. They include attorney disciplinary action and a lawsuit for breach of fiduciary duty.

Related coverage:

ABAJournal.com: “Booted from big enviro case, Covington blames ex-client for not protesting conflict earlier”

ABAJournal.com: “Appeals court disqualifies BigLaw firm in big enviro case, says it can’t simply switch sides”

Minneapolis Star Tribune: “Stalled lawsuit over 3M chemical pollution will proceed, district judge decides”


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