Attorney’s Office is material t
the Arbitrati n, no
n save K&K fr m
disqualification. In addition, the Firm is too small for any screen to be effective; and
even if K&K were large enough for a screen to be effective, the screen K&K erected is
not effectivebecause, among other things, it was not implementedin a timely manner.
Disqualification of K&K is also required because a serious appearance of
impropriety permeates this matter. First, K&K was instrumental in launching the
criminal Investigation led by Mr. Casey because K&K referred the matter of Lehan’s
sale of ARS to Respondents directly to Mr. Casey’s attention when he was at the U.S.
Attorney’sOffice. Later, after Mr. Casey pursued the Investigation at K&K’s behest and
learned confidentialinfomation using the subpoenapower and investigative resources of
the federal government, K&K turned around and hired Mr. Casey as a partner. Then, in
timing that can only be described as suspicious,after telling FINRA to put the Arbitration
“on hold” for a year, Respondents notified FINRA that they wanted to move forward
with it on October 7, 2009,just six days afier MK C‘aseyjoined the Firm.
Mandel, which has been acting as co-counsel to and working closely with
K&K in the Arbitration, should also be disqualified as it presumably has acquired
whatever informationand knowledge K&K now has concerningthe Arbitration.
Ths application for disqualification is properly brought here, rather than
before the FINRA arbitration panel, because it is well-settled that disqualification issues
arising in connection with arbitration proceedings are to be decided by courts, not
arbitrators, even when the arbitration is pending.’
To be clear, Petitioners are not seeking to have Respondents’ substantive claims decided in court, merely the disqualificationissue. The substantive claims will be resolved irr the Arbitration.
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