IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

––––––––––––––––––––––––––––––––––––––––––––– x
ROHM AND HAAS COMPANY, :

Plaintiff, :

v. :
C.A. No. 4309-CC
THE DOW CHEMICAL COMPANY and :
RAMSES ACQUISITION CORP.,
:
Defendants.
:
––––––––––––––––––––––––––––––––––––––––––––– x

PLAINTIFF’S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS’

MOTION TO DISQUALIFY WACHTELL, LIPTON, ROSEN & KATZ FROM
CONDUCTING DISCOVERY AGAINST DOW AND EXAMINING DOW WITNESSES

CONNOLLY BOVE LODGE & HUTZ LLP

Collins J. Seitz, Jr. (No. 2237)
OF COUNSEL: Henry E. Gallagher, Jr. (No. 495)
David E. Ross (No. 5228)
WACHTELL, LIPTON, ROSEN & KATZ Bradley R. Aronstam (No. 5129)
51 West 52nd Street The Nemours Building
New York, New York 10019 1007 North Orange Street
(212) 403-1000 P.O. Box 2207
Wilmington, Delaware 19899
ROHM AND HAAS COMPANY (302) 658-9141
Robert A. Lonergan
100 Independence Mall West Attorneys for Plaintiff Rohm and Haas
Philadelphia, Pennsylvania 19106 Company
(215) 592-3000

Dated: February 9, 2009

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 3

A. Wachtell’s prior representation of Dow.................................................................. 3

B. Wachtell’s representation of Rohm and Haas......................................................... 4

C. Dow engages in ex parte contacts with the FTC in blatant violation of its
obligations under the Merger Agreement ............................................................... 6

D. The nature and scope of the present litigation ........................................................ 8

ARGUMENT................................................................................................................................. 9

DOW’S MOTION TO DISQUALIFY IS

BOTH UNFOUNDED AND UNTIMELY .................................................................................... 9

A. Dow bears a very heavy burden on this motion...................................................... 9

B. Dow is not a current Wachtell client..................................................................... 10

C. Wachtell’s representation of Rohm and Haas does not violate Rule 1.9.............. 15

1. The nature and scope of the prior representation of Dow and of the
current litigation are entirely distinct........................................................ 16

2. Wachtell received no confidences from Dow that it could use to

Dow’s detriment in this proceeding.......................................................... 16

D. Wachtell’s continuing representation of Rohm and Haas will not

undermine the fairness and integrity of the proceedings, but hamstringing
Rohm and Haas’s ability to use its chosen counsel will ....................................... 19

E. Dow’s delay in raising the purported conflict is in itself a sufficient basis

for denying this motion......................................................................................... 22

i
 1. Dow acquiesced in and consented to Wachtell’s representation of
Rohm and Haas by failing to express an objection until after
litigation began.......................................................................................... 23

2. Dow cannot excuse its failure to make a timely objection by

claiming that it was presented with a fait accompli.................................. 24

CONCLUSION............................................................................................................................. 25

-ii-
 TABLE OF AUTHORITIES

Cases: Page

Audio Jam v. Fazelli,

1995 WL 1791087 (Del. Ch. Aug. 17, 1995) ........................................................................... 10

Avacus Partners, L.P. v. Brian,

1990 WL 27538 (Del. Ch. Mar. 9, 1990).................................................................................. 21

Deemer Steel Casting Co. v. E. Coast Erectors, Inc.,

1990 WL 143840 (Del. Ch. Sept. 28, 1990) ............................................................................. 19

Del. Trust Co. v. Brady,

1988 WL 94741 (Del. Ch. Sept. 14, 1988) ............................................................................... 11

Del-Chapel Assocs. v. Ruger,

2000 WL 488562 (Del. Ch. Apr. 17, 2000) ................................................................................ 9

Deptula v. Steiner,
2003 WL 23274846 (Del. Super. Dec. 15, 2003) ................................................................. 9 n.6

Eli Lilly & Co. v. Genentech Inc.,

17 U.S.P.Q.2d 1531 (S.D. Ind. July 17, 1990) ................................................................... 23, 24

Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc.,

142 F. Supp. 2d 579 (D. Del. 2001).................................................................. 9 n.6, 20, 21 n.13

Express Scripts, Inc. v. Crawford,

2007 WL 417193 (Del. Ch. Jan. 25, 2007)............................................................. 10, 20, 21, 22

Hendry v. Hendry,
2005 WL 3359078 (Del. Ch. Dec. 1, 2005)....................................................................... passim

IMC Global, Inc. v. Moffett,

1998 WL 842312 (Del. Ch. Nov. 12, 1998) ....................................................................... 10, 19

In re Appeal of Infotechnology, Inc.,

582 A.2d 215 (Del. 1990) ........................................................................................... 2, 9, 10, 24

In re Appeal of Dunlap,
2008 WL 2415043 (Del. May 6, 2008)................................................................................. 1, 10

J.E. Rhoads & Sons, Inc. v. Wooters,

1996 WL 41162 (Del. Ch. Jan. 26, 1996)........................................................................... 24, 25

Kanaga v. Gannett Co.,

1993 WL 485926 (Del. Super. Oct. 21, 1993).......................................................................... 10

-iii-
Kenton v. Bellevue Four, Inc.,
1999 WL 463684 (Del. Super. Apr. 26, 1999) ......................................................................... 23

Manchester v. Narrangansett Capital, Inc.,

1989 WL 125190 (Del. Ch. Oct. 19, 1989) .............................................................................. 16

McAllister v. Kallop,
1993 WL 205037 (Del. Ch. June 8, 1993)................................................................................ 20

Nemours Found. v. Gilbane,

632 F. Supp. 418 (D. Del. 1986)....................................................................................... 21 n.13

Postorivo v. AG Paintball Holdings, Inc.,

2008 Del. Ch. LEXIS 17 (Del. Ch. Feb. 7, 2008)..................................................................... 12

Sanchez-Caza v. Estate of Whetstone,

2004 WL 2087922 (Del. Super. Sept. 16, 2004) ............................................................... passim

Satellite Fin. Planning Corp. v. First Nat’l Bank of Wilmington,

652 F. Supp. 1281 (D. Del. 1987) ....................................................................................... 16-17

SBC Interactive, Inc. v. Corporate Media Partners,

1997 WL 770715 (Del. Ch. Dec. 9, 1997)............................................................................ 1, 11

Unanue v. Unanue,
2004 WL 602096 (Del. Ch. Mar. 25, 2004)....................................................................... passim

Zirn v. VLI Corp.,

1990 WL 119685 (Del. Ch. Aug. 13, 1990) ............................................................................. 12

Zirn v. VLI Corp.,

1989 WL 79963 (Del. Ch. July 17, 1989)................................................................................. 13

Rules:

Del. Lawyers’ R. Prof’l Conduct 1.7 & cmt. [7] ............................................................... 10-11, 12

Del. Lawyers’ R. Prof’l Conduct 1.9 & cmt. [3] .................................................................... 15, 16

Other Authorities:

7 Am. Jur. 2d ATTORNEYS AT LAW § 137 (2008) ......................................................................... 11

Matthew F. Boyer, In the Wake of Infotechnology: Stricter Scrutiny of Attorney

Disqualification Motions, 22-Winter DEL. LAW. 16 (2005) ...................................................... 9

Charles W. Wolfram, Former-Client Conflicts, 10 GEO. J. LEGAL ETHICS 677

(1997) ....................................................................................................................................... 17

-iv-
 Rohm and Haas Company (“Rohm and Haas”) respectfully submits this brief in

opposition to Dow’s motion to disqualify its chosen counsel, Wachtell, Lipton, Rosen & Katz

(“Wachtell”), from fully representing Rohm and Haas in this litigation. Submitted with this brief

are the affidavits of Robert A. Lonergan, Martin Lipton, Daniel A. Neff, Marc Wolinsky, Jona-

than M. Moses and Gail K. Edelman, to which the Court is respectfully referred.

PRELIMINARY STATEMENT

Dow’s motion to disqualify Wachtell clearly fails the stringent tests applied in our

courts where disqualification of counsel is sought. These motions always carry with them the

risk that they are being made for tactical purposes; this is especially true in expedited proceed-

ings involving sophisticated litigants. Here, Dow has entirely failed to show either that it is a

current client of Wachtell, or that the prior Wachtell engagement involved “the same or a sub-

stantially related matter” such that there is a “substantial risk” that the information Wachtell ob-

tained from Dow would “materially advance” Rohm and Haas’s position here. Hendry v. Hen-

dry, 2005 WL 3359078, at *1 (Del. Ch. Dec. 1, 2005). Dow does not even cite the legal stan-

dard, and has entirely failed to carry its burden to show a conflict by clear and convincing evi-

dence. In re Appeal of Dunlap, 2008 WL 2415043, at *1 (Del. May 6, 2008)

The notion that Dow is currently a Wachtell client is patently frivolous. The

claim is based on the fact that Dow’s Assistant General Counsel received an automated e-mail

form asking him to confirm his mailing address and the fact that Dow’s General Counsel is on an

e-mail distribution list for legal commentaries. Simply put, these are not the kind of communica-

tions that would “create a reasonable expectation” on Dow’s part that Wachtell was representing

its interests at the very same time that it was negotiating against Dow on behalf of Rohm and

Haas. SBC Interactive v. Corporate Media Partners, 1997 WL 770715, at *4 (Del. Ch. Dec. 9,

1997) (emphasis added).

 Dow’s claim that Wachtell should be disqualified under the Rule of Professional

Conduct governing conflicts with former clients carries no more weight. Dow’s argument is that

its “transformative strategy” — a strategy that Dow has touted publicly and prominently since at

least 2006 — “lies at the very heart of the instant litigation.” Dow Br. 11-12. 1 That claim

strains credulity. This is a breach-of-contract case where the defendant admits that it has

breached the contract. The issue for trial is whether events that occurred after the contract was

signed allow Dow to avoid specific performance despite the fact that Dow agreed that Rohm and

Haas would be entitled to that remedy. Indeed, it is Dow that trumpets repeatedly that this case

is about what has happened in the last forty-five days. Direct quote: “For Dow, Rohm and

Haas, and the Merger, the world changed beginning December 28.” Answer, p. 13 (emphasis

added). Any secret strategic thinking two or three years ago that started Dow down the long path

to buying Rohm and Haas is not relevant to this case.

Finally, the lack of persuasive merit of Dow’s motion, and its fundamentally tac-

tical nature, is demonstrated by Dow’s own conduct. Dow has of course known that Rohm and

Haas was represented by Wachtell from June 2008 onwards. Dow’s counsel sat opposite

Wachtell at the negotiating table. But never in the course of these inherently adversarial negotia-

tions, or in the months of interactions that followed, did Dow invoke the conflict it relies upon

now. Time and again, the courts of this State have rejected disqualification motions deployed as

“procedural weapons” for “mere tactical gain.” In re Appeal of Infotechnology, Inc., 582 A.2d

215, 220-21 (Del. 1990). Dow’s motion is meritless, tactically motivated, and untimely. It

should be denied.

1
Memorandum Of Law In Support Of Dow’s Motion To Disqualify Wachtell, Lipton,
Rosen & Katz From Conducting Discovery Against Dow And Examining Dow Witnesses, cited
herein as “Dow Br.”

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 STATEMENT OF FACTS

A. Wachtell’s prior representation of Dow

Wachtell was asked by Dow to provide advice with respect to its takeover de-

fenses in February 2007. At that time, Martin Lipton sent an internal e-mail to Wachtell’s New

Matter Committee that, as Dow points out, said Wachtell’s representation of Dow was “continu-

ing.” 2 Mr. Lipton proceeded to advise Dow on takeover defenses and certain other confidential

matters unrelated to the acquisition of Rohm and Haas. Mr. Lipton last recorded time spent on

Dow matters in September 2007. Lipton Aff. ¶¶ 2-3.

In April 2007, Wachtell’s representation of Dow expanded to include the contro-

versy surrounding two Dow executives, J. Pedro Reinhard and Romeo Kreinberg, whose em-

ployment was terminated after Dow learned that they were attempting to arrange an LBO of the

company without the authorization or knowledge of Dow’s board of directors. Lipton Aff. ¶ 2.

Jonathan Moses, a litigation partner at Wachtell, led a team that conducted an internal investiga-

tion into Reinhard’s and Kreinberg’s activities, provided advice with respect to litigation be-

tween the executives and Dow (although Wachtell did not appear as counsel to Dow in that liti-

gation), and responded to inquiries from the SEC concerning the episode. Wachtell’s work on

these matters was substantially concluded by January 2008. Moses Aff. ¶¶ 2-3. 3

2
This e-mail describing the then-representation as “continuing” was not sent to Dow. It
was produced by Wachtell in response to a third-party subpoena and provided to Dow’s counsel
in connection with the litigation in which the e-mail was produced. Moses Aff. ¶ 6.
3
After January 2008, Wachtell performed only incidental work arising out of the
Kreinberg/Reinhard affair, mostly consisting of responding to a subpoena served on Wachtell by
Kreinberg. Moses Aff. ¶ 4. The litigation brought by Reinhard and Kreinberg was settled on
June 2, 2008. Moses Aff. Ex. A.

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 In the course of the litigation team’s work, Mr. Moses and one associate were

given password access to a database of confidential Dow documents, and Mr. Moses was given

access to Messrs. Reinhard’s and Kreinberg’s e-mails. Moses Aff. ¶ 8. No Wachtell attorney

has accessed the database or the e-mails since 2007. Moses Aff. ¶ 8.

Wachtell has not performed any work for Dow since June 2008. The last bill to

Dow, sent on June 20, 2008, was “[f]or services from November 1, 2007 to May 31, 2008 in

connection with Reinhard/Kreinberg litigation” and totaled $65,000. Moses Aff. Ex. B. Of the

“in excess of $2,000,000” that Dow says it paid Wachtell in “2007 and 2008” (Stuart Aff. ¶ 4),

$65,000 of that sum was billed in 2008. Moses Aff. ¶ 5.

B. Wachtell’s representation of Rohm and Haas

Rohm and Haas retained Wachtell in October 2007 to provide advice in connec-

tion with Rohm and Haas’s consideration of its strategic alternatives. Neff Aff. ¶ 2; Lonergan

Aff. ¶ 2. In June 2008, Rohm and Haas decided to conduct an auction process. Wachtell repre-

sented Rohm and Haas throughout the auction process, including in the negotiation of the initial

confidentiality agreement with Dow, an agreement that included substantive terms restricting

Dow’s conduct and rights including in the event its bid did not succeed. Neff Aff. Ex. A.

Wachtell also represented Rohm and Haas in the negotiation of the Merger Agreement. Many

aspects of both the confidentiality agreement and the Merger Agreement were vigorously negoti-

ated; contrary to the suggestion in Dow’s brief (p. 14), price was not the only focus of the nego-

tiation. Lonergan Aff. ¶ 3; Neff Aff. ¶ 3. Throughout these negotiations, Wachtell regularly in-

teracted with Dow and its counsel and vigorously represented its client, Rohm and Haas. Dow

never suggested to either Wachtell or Rohm and Haas that there was any supposed conflict. Lon-

ergan Aff. ¶ 3; Neff Aff. ¶ 3.

-4-
 On two occasions during negotiations in late June and early July, Charles Kalil,

General Counsel of Dow, telephoned Mr. Lipton. On the first occasion, Mr. Kalil wanted to ad-

dress an issue that had arisen in the negotiation of the confidentiality agreement; on the second,

Mr. Kalil complained about the manner in which Wachtell was conducting the negotiations. Lip-

ton Aff. ¶ 5. Both times Mr. Lipton made clear to Mr. Kalil that Wachtell was representing

Rohm and Haas, that Mr. Lipton was not involved in the negotiations, and that Mr. Lipton would

not discuss the matter with him. Lipton Aff. ¶ 5. On neither occasion did Mr. Kalil object to

Wachtell’s representation of Rohm and Haas or suggest that there was a conflict. Lipton Aff.

¶ 5.

In the months after the Merger Agreement was signed, Dow and its counsel con-

tinued to deal regularly with Wachtell on diligence, antitrust and other matters. Neff Aff. ¶ 4;

Lonergan Aff. ¶ 4. And again, throughout these pre-closing activities, Dow never raised any

concern about Wachtell’s representation of Rohm and Haas. Neff Aff. ¶ 4; Lonergan Aff. ¶ 4.

Beginning in November 2008, Dow began to make requests for further detailed

due diligence about a variety of topics. Dow indicated that the information it was seeking to

gather was “not intended for integration planning purposes,” but instead was part of Dow’s “due

diligence against the representations and warranties” of the Merger Agreement. Neff Aff. ¶ 5,

Ex. B. During a November 25, 2008 call among Dow, Dow’s counsel, Rohm and Haas, and

Wachtell, Dow again stated that this due diligence was not part of integration planning, but was

intended to assess the accuracy of Rohm and Haas’s representations and warranties review.

Since the closing of the Merger was conditioned upon the material accuracy of these representa-

tions and warranties (as provided in Section 6.3(a)(i) of the Merger Agreement), it was plain that

Dow’s interest in testing the accuracy of Rohm and Haas’s representations was adverse to the

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interests of Rohm and Haas. Wachtell represented Rohm and Haas throughout this process. And

once again, Dow never suggested that Wachtell had a conflict. Neff Aff. ¶ 6.

In December 2008, Andrew Liveris, Chairman and Chief Executive of Dow,

called Mr. Lipton. Lipton Aff. ¶ 7. Mr. Liveris said that Mr. Kalil had told him that Mr. Lipton

could not speak to him (or words to that effect), but that he, Mr. Liveris, would nonetheless like

to talk about the Rohm and Haas transaction. Lipton Aff. ¶ 7. Mr. Lipton, as he had done with

Mr. Kalil, told Mr. Liveris that he could not discuss the matter with him. Lipton Aff. ¶ 7.4

C. Dow engages in ex parte contacts with the FTC in blatant

violation of its obligations under the Merger Agreement.

On December 31, 2008, Rohm and Haas and Wachtell first learned that, in viola-

tion of the Merger Agreement, Dow had made at least one ex parte telephone call to the Federal

Trade Commission (“FTC”) seeking to delay receipt of FTC clearance of the Merger. Lonergan

Aff. ¶ 7; Neff Aff. ¶ 7. Wachtell made clear that Rohm and Haas believed Dow had breached

the Merger Agreement. Id. Then, on January 8, 2009, Rohm and Haas learned that Dow had in

fact engaged in a series of ex parte contacts with the FTC seeking delay of the agency’s clear-

ance of the Merger, including ex parte visits by Mr. Liveris with three FTC commissioners.

Lonergan Aff. ¶ 8; Neff Aff. ¶ 8. On that day, Wachtell again vigorously objected to Dow’s

conduct. Id.

4
Mr. Kalil states in his affidavit that Mr. Lipton spoke to Mr. Liveris “throughout 2008”
without specifying the subject matter of those conversations. Why Mr. Kalil recites this hearsay
in an affidavit as opposed to Mr. Liveris is readily explained: Mr. Liveris is a member of the
Citigroup Board of Directors, and Mr. Lipton was advising the Citigroup Board. In connection
with that advice, Mr. Lipton had a number of conversations with directors of Citigroup,
including Mr. Liveris, throughout 2008. None of those conversations involved the provision of
legal advice to Dow. Lipton Aff. ¶¶ 8-9.

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 Only then, on January 9, at a meeting between Daniel Neff and Stephanie Selig-

man of Wachtell, and Dow’s transactional counsel from Shearman & Sterling, did Dow hint at

any purported issue with Wachtell’s representation of Rohm and Haas. Lonergan Aff. ¶ 8; Neff

Aff. ¶ 9. At that meeting, the Wachtell lawyers objected to Dow’s ex parte campaign to delay

FTC clearance, made clear that Dow’s conduct violated the Merger Agreement and asked for an

assurance that Dow would not seek further delay of FTC clearance, an assurance that was not

given at that time. Neff Aff. ¶ 9. At the conclusion of that meeting, John Marzulli, a Shearman

& Sterling partner, stated that he had been asked by Mr. Kalil to ask whether Rohm and Haas

had retained separate litigation counsel. Id. Mr. Neff responded that Wachtell had analyzed the

issue and had determined that Wachtell would be able to represent Rohm and Haas in litigation

against Dow, and that Rohm and Haas therefore did not intend to retain separate litigation coun-

sel. Id. Not another word was heard from Dow on the subject until January 26, the day that suit

was filed.

Wachtell confirmed to Dow’s counsel before the filing of this motion that, with

one exception that did not jeopardize Dow’s client confidences, no Wachtell attorney who has

worked on a matter in which Wachtell represented Dow has had any substantive communication

(whether written or oral) with any Wachtell attorney working on this lawsuit with respect to:

(a) the Rohm and Haas v. Dow lawsuit, before or after the lawsuit was filed, other than in rela-

tion to the instant disqualification issue; or (b) the facts relevant to the Rohm and Haas v. Dow

matter. Wolinsky Aff. Ex. B; see also Lipton Aff. ¶ 10; Moses Aff. ¶ 11. 5

5
The one exception is that on two separate occasions totaling 2.7 hours, Paul Rowe
advised other Wachtell litigators handling the Reinhard/Kreinberg matter with respect to discrete
issues of Delaware law. Mr. Rowe did no further work on Dow matters, was not privy to
privileged communications respecting Dow’s corporate strategy or any other non-public
(footnote continued)

-7-
D. The nature and scope of the present litigation

The premise of Dow’s claim of a conflict is its contention that privileged informa-

tion about its “transformative strategy” constitutes the “factual predicate” of this case. Dow Br.

11-12. But the pleadings make clear that this case turns solely on Dow’s refusal to close the

Merger and whether Rohm and Haas is entitled to an order of specific performance to remedy

that breach. See Compl. ¶¶ 1-5, 41-50. Nothing in the Complaint puts Dow’s historical “trans-

formative strategy” at issue.

Dow’s Answer does not change this. To the contrary, each of Dow’s defenses re-

lies on what Dow characterizes as the “sudden, historic, unforeseen and unforeseeable events of

the past 45 days.” Answer at pp. 59-60; see also, e.g., Answer ¶ 23 (pleading that “a confluence

of dramatic and unforeseeable shocks” that developed after December 28 “cast a dark shadow of

uncertainty” over the Merger); id. at ¶ 44 (“Only when the Kuwaiti entities unexpectedly pur-

ported to reverse their approval of the K-Dow transaction in late December 2008 and failed to

close, in combination with the contemporaneous and subsequent severe deterioration of the

credit markets and industry-wide financial situation, was the viability of the Merger and Dow’s

ability to close threatened.”).

Mr. Liveris, speaking on an earnings call on February 3, 2009, the same day that

Dow filed its Answer, pithily summed up Dow’s case: “December changed everything.”

Wolinsky Aff. Ex. I at 10.

(footnote continued)

information concerning Dow, and has at no time had any contact with Dow personnel in
connection with the Reinhard/Kreinberg or any other matter. Wolinsky Aff. Ex. B. Dow does
not cite Mr. Rowe’s activity as a basis for its motion.

-8-
 ARGUMENT

DOW’S MOTION TO DISQUALIFY IS

BOTH UNFOUNDED AND UNTIMELY.

A. Dow bears a very heavy burden on this motion.

Disqualification motions are generally disfavored “because they often are filed for

tactical reasons rather than bona fide concerns about client loyalty,” Sanchez-Caza v. Estate of

Whetstone, 2004 WL 2087922, at *4 (Del. Super. Sept. 16, 2004), and because “a litigant should,

as much as possible, be able to use the counsel of his choice.” Unanue v. Unanue, 2004 WL

602096, at *2 (Del. Ch. Mar. 25, 2004). The Delaware Supreme Court has counseled the utmost

caution in granting a motion to disqualify, noting that “the purpose of the Rules [of Professional

Conduct] can be subverted when they are invoked by opposing parties as procedural weapons.”

Infotechnology, 582 A.2d at 220. 6

Dow claims that “disqualification is favored in close cases,” citing Del-Chapel

Assocs. v. Ruger, 2000 WL 488562, at *5 (Del. Ch. Apr. 17, 2000). With respect, Del-Chapel

misstated the law of disqualification in Delaware. Since the Delaware Supreme Court’s decision

in Infotechnology, “doubts are now resolved against, rather than in favor of disqualification.”

Matthew F. Boyer, In the Wake of Infotechnology: Stricter Scrutiny of Attorney Disqualification

Motions, 22-Winter DEL. LAW. 16, 16 (2005).

6
See also, e.g., Deptula v. Steiner, 2003 WL 23274846, at *1 (Del. Super. Dec. 13, 2003)
(“The Court must be wary so as to prevent motions to disqualify from being used as just another
weapon in the litigation arsenal.”); Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F.
Supp. 2d 579, 584 (D. Del. 2001) (“It is well known to this court, and many others, that motions
for disqualification are frequently filed as dilatory tactics intended to divert the litigation from
attention to the merits.”).

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 Moreover, a violation of the ethical rules by itself is not necessarily sufficient to

warrant the “severe sanction” of disqualification. Unanue, 2004 WL 602096, at *8; accord Ex-

press Scripts, Inc. v. Crawford, 2007 WL 417193, at *1 (Del. Ch. Jan. 25, 2007). The “party

moving for disqualification bears the burden of proof” to show both (1) “a conflict of interest”

under the Rules of Professional Conduct, and (2) “[i]f a conflict is identified,” that “continued

representation by the conflicted attorney would undermine the integrity of the proceedings.”

Hendry, 2005 WL 3359078, at *2 (citing Infotechnology, 582 A.2d at 216-17); see also, e.g.,

IMC Global, Inc. v. Moffett, 1998 WL 842312, at *2 (Del. Ch. Nov. 12, 1998).

And a “motion to disqualify must contain clear and convincing evidence estab-

lishing a violation of the Delaware Rules of Professional Conduct so extreme that it calls into

question the fairness or the efficiency of the administration of justice.” Dunlap, 2008 WL

2415043, at *1 (emphasis added). “Vague and unsupported allegations are not sufficient to meet

this disqualification standard.” Id. To the contrary, the movant must have “evidence to buttress

his claim of conflict because a litigant should, as much as possible, be able to use the counsel of

his choice.” Kanaga v. Gannett Co., 1993 WL 485926, at *3 (Del. Super. Oct. 4, 1993). Factual

disagreements are resolved in favor of the non-moving party. Audio Jam v. Fazelli, 1995 WL

1791087, at *1 (Del. Ch. Aug. 17, 1995).

Dow has not met this exacting burden. It has failed to show a conflict under the

ethical rules, much less one so extreme that the fairness of the proceedings would be under-

mined. Its failure of proof makes clear that it seeks precisely the sort of improper tactical advan-

tage that the caselaw forbids.

B. Dow is not a current Wachtell client.

Delaware Lawyers’ Rule of Professional Conduct 1.7 provides in relevant part

that “a lawyer shall not represent a client if the representation involves a concurrent conflict of
-10-
interest. A concurrent conflict of interest exists if: … the representation of one client will be

directly adverse to another client . . . .” To evaluate a claim of concurrent conflict of interest, the

Court must first determine to what extent the allegedly conflicted lawyer represents adverse par-

ties at the same time. Unanue, 2004 WL 602096, at *3. Dow contends that Wachtell “has been

acting as Dow’s lawyers” throughout the Firm’s representation of Rohm and Haas. Dow Br. 9.

This contention has no basis in law or fact.

“The assertion that a lawyer-client relationship exists requires a realistic assess-

ment of all aspects of the relationship.” Del. Trust Co. v. Brady, 1988 WL 94741, at *3 (Del.

Ch. Sept. 14, 1998) (emphasis added). Absent an express agreement between the lawyer and cli-

ent, “there would have to be, at the very least, a preexisting relationship that would create a rea-

sonable expectation on the ‘client’s’ part that the attorney was representing his interests, and re-

liance by the client upon that expectation.” SBC Interactive, 1997 WL 770715, at *4 (emphasis

added); see also 7 Am. Jur. 2d ATTORNEYS AT LAW § 137 (2008) (“A plaintiff’s subjective belief

that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a

duty of care owed by the attorney to the plaintiff; instead, it is the intent and conduct of the par-

ties that controls the question as to whether an attorney-client relationship has been created.”

(emphasis added)).

Simply put, any “realistic assessment” of the facts shows that Dow could not have

a “reasonable belief” that Wachtell is Dow’s lawyer. Quite the opposite: Dow was told that at

the outset that Wachtell was representing Rohm and Haas when Dow complained to Mr. Lipton

about the manner in which the responsible Wachtell lawyers were conducting the negotiations.

Lipton Aff. ¶ 5. And then, after the Merger Agreement was signed, when Dow’s litigators initi-

ated a round of post-signing due diligence to test the accuracy of Rohm and Haas’s representa-

-11-
tions and warranties in the Merger Agreement, Wachtell openly assisted Rohm and Haas in de-

flecting Dow’s effort to find an “out” in the agreement.

Wachtell continued to act on behalf of Rohm and Haas and adverse to Dow after

K-Dow collapsed when Dow surreptitiously maneuvered a three-week delay in the closing date

by delaying the receipt of FTC clearance. Neff Aff. ¶¶ 7-9. And once again, during this period,

Mr. Lipton disabused Dow of any notion that Dow was a current Wachtell client. Indeed, Mr.

Liveris knew exactly what the score was, starting the conversation by acknowledging that he had

been told by Mr. Kalil that Mr. Lipton could not discuss the Rohm and Haas matter with him.

Lipton Aff. ¶ 7.

Wachtell’s manifest adversity to Dow throughout this period makes Dow’s sup-

posed belief that Wachtell was still representing it completely unreasonable. The Rules of Pro-

fessional Conduct explicitly recognize that parties to business negotiations such as those that

preceded the execution of the Merger Agreement are adversaries for conflict purposes. See Del.

Lawyers’ R. Prof’l Conduct 1.7 cmt [7] (“Directly adverse conflicts can also arise in transac-

tional matters” and using sale of a business as example). And this Court has repeatedly charac-

terized the parties to corporate acquisition negotiations as adverse. See, e.g., Postorivo v. AG

Paintball Holdings, Inc., 2008 Del. Ch. LEXIS 17, at *20 (Del. Ch. Feb. 7, 2008) (holding that

parties “were in an adversarial relationship” when they negotiated an agreement for the sale of

substantially all of plaintiff’s assets); Zirn v. VLI Corp., 1990 WL 119685, at *8 (Del. Ch.

Aug. 13, 1990) (holding that parties to merger agreement “clearly had adverse interests with re-

spect to the negotiation and documentation” of their contract). The adversarial nature of the par-

-12-
ties is all the more obvious where, as here, multiple companies make competing bids for a target

corporation. See Zirn v. VLI Corp., 1989 WL 79963, at *8 (Del. Ch. July 17, 1989). 7

The “evidence” that Dow presents to support the notion that Dow had a “realistic”

expectation that Wachtell was acting as its counsel and was relying on that expectation after June

2008 is frivolous. The two “WLRK Memos” that Dow cites as evidence of an ongoing attorney-

client relationship were sent to over 4,200 people. Edelman Aff. ¶ 3-4. Recipients included doz-

ens of practitioners, academics, reporters at the Financial Times, Fortune Magazine, The New

York Times, The Wall Street Journal, and members of the judiciary. Edelman Aff. ¶ 2. The

“Key Issues for Directors” memo that Mr. Kalil transmitted to his Board “as the work of Dow’s

attorneys” can be found in its entirety on Harvard Law School’s website. 8 Mr. Stuart, in his turn,

points to a contact update form that a Wachtell paralegal sent to a 1,200 person mailing list — a

mailing list that includes former clients, potential clients, and friends of the Firm in addition to

current clients. Edelman Aff. ¶ 5. None of this constitutes “objective evidence” of an existing

attorney-client relationship.

Dow’s other “evidence” of an ongoing relationship is also without substance.

Dow says that Wachtell has billed Dow over $2 million “[i]n the last two years.” Dow Br. 8.

What Dow fails to disclose is that all but $65,000 of that sum was billed in November 2007 or
7
As an empirical matter, recent high-profile cases make it apparent to any sophisticated
businessperson that the negotiation and execution of a corporate transaction carries with it an
inherent risk of subsequent litigation between the parties. See, e.g., Alliance Data Sys. Corp. v.
Aladdin Solutions, Inc., C.A. No. 3796-VCS (Del. Ch. 2009); Hexion Specialty Chems., Inc. v.
Huntsman Corp., C.A. No. 3841-VCL (Del. Ch. 2008); Clear Channel Broad., Inc. v. Newport
Television LLC, C.A. No. 3550-VCS (Del. Ch. 2008); SLM Corp. v. J.C. Flowers II L.P., C.A.
No. 3279-VCS (Del. Ch. 2007); The Finish Line, Inc. v. UBS Secs. LLC, No. 07-2137-II (III)
(Tenn. Ch. 2007); United Rentals, Inc. v. RAM Holdings, Inc., C.A. No. 3360-CC (Del. Ch.
2007)..
8
See http://blogs.law.harvard.edu/corpgov/2008/12/20/key-issues-for-directors/ (Edelman
Aff. Ex. A).

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earlier, with the remaining $65,000 billed in June 2008. 9 Moses Aff. ¶ 5. The billing evidence

only confirms that Wachtell’s representation of Dow was substantially over by the end of 2007.

Dow’s litany of “interviews and meetings with high-level Dow executives and employees,” Dow

Br. 3, also confirms that Dow is not a current Wachtell client. With the exception of conversa-

tions between Messrs. Liveris and Kalil and Mr. Lipton in 2008 — which, as shown, do not in

any way evidence an ongoing client relationship 10 — everything that Dow lists occurred in

April or May of 2007. Dow Br. 3.

Finally, Dow cites an internal Wachtell e-mail from February 2007 referencing a

then-“continuing” representation of Dow. Dow Br. 6 & Ex. 5. In light of Wachtell’s seven-

month long adverse representation of Rohm and Haas, that two-year-old e-mail cannot support

the weight that Dow would have it carry. 11 There is no current representation, and no conflict on

that basis.

9
Similarly, while Mr. Stuart claims to have 1,300 e-mails exchanged with Wachtell
“during 2007 and 2008” (Stuart Aff. ¶ 3), he is noticeably silent on what proportion of those e-
mails were exchanged in the latter half of 2008.
10
While Mr. Kalil’s affidavit references discussions that he and Mr. Liveris had with Mr.
Lipton in 2008, it is noticeably silent on the subject of those discussions and makes no claim that
Mr. Lipton provided Dow with legal advice in 2008. See Kalil Aff. ¶¶ 9, 12.
11
No one from Dow was copied on this internal Wachtell e-mail. See Dow Br. Ex. 5.
Thus, while Dow argues that Wachtell never “disavowed” its supposed “continuing”
representation (Dow Br. 6), the simple fact is that there was nothing to disavow: no one from
Wachtell ever represented to Dow that the representation was “continuing.” To the contrary, in
June 2008, Mr. Lipton told Mr. Kalil that Wachtell was representing Rohm and Haas, something
that Mr. Kalil already knew because Wachtell lawyers were negotiating against Dow on behalf
of Rohm and Haas. Lipton Aff. ¶ 5.

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C. Wachtell’s representation of Rohm and Haas does not violate Rule 1.9.

Dow also has not met, and cannot meet, its burden on this motion to show by

clear and convincing evidence that Wachtell’s representation of Rohm and Haas violates Dela-

ware’s “former client” rule. Rule of Professional Conduct 1.9 states in pertinent part:

A lawyer who has formerly represented a client in a matter shall

not thereafter represent another person in the same or a substan-
tially related matter in which that person’s interests are materially
adverse to the interests of the former client unless the former client
gives informed consent, confirmed in writing. (Emphasis added.)

Because it is undisputed that this matter is not the “same” as any matter in which

Wachtell represented Dow, the question is whether the current matter is “substantially related” to

Wachtell’s prior representation of Dow. Comment 3 to Rule 1.9 explains that, for such a rela-

tionship to exist, there must be “a substantial risk” that confidential information learned from one

client in an earlier matter would “materially advance” another client’s position in a later matter.

In determining whether the test is met, “courts consider three factors: (1) the na-

ture and scope of the prior representation; (2) the nature of the present litigation; and (3) whether

in the course of prior representation, the former client might have disclosed confidences that

could be detrimental to it in the present litigation.” Unanue, 2004 WL 602096, at *6; see also

Hendry, 2005 WL 3359078, at *4 (applying test to determine that lawyer was not likely to have

obtained confidential information from former client that “materially could advance” new cli-

ent’s position in current litigation); Sanchez-Caza, 2004 WL 2087922, at *3 (similar). None of

these factors shows a “substantial relationship” between the present matter and Wachtell’s prior

work for Dow.

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 1. The nature and scope of the prior representation of Dow
and of the current litigation are entirely distinct.

The nature and scope of Wachtell’s prior representation of Dow is entirely distinct

from the present representation of Rohm and Haas. This action concerns Dow’s refusal to close

the transaction and Rohm and Haas’s request for an order of specific performance, the con-

tracted-for remedy for that breach. See Compl. ¶¶ 1-5, 41-50. Dow’s defenses to specific per-

formance concern what Dow claims are sudden and heretofore unforeseeable changes in the

economy, chemical industry, financial markets and credit markets, and all explicitly hinge on

events and circumstances that arose in the last forty-five days. See, e.g., Answer at 59-61; see

also pp. 8, supra. Dow cannot go beyond the pleadings to conjure up a theory that its “transfor-

mative strategy” is at the “heart” of this matter. See Manchester v. Narrangansett Capital, Inc.,

1989 WL 125190, at *5 (Del. Ch. Oct. 19, 1989) (“A potential conflict based on a potential de-

fense is not the standard.”).

Nothing in Wachtell’s 2007 representation of Dow implicates the issues raised in

the pleadings. Accordingly, the nature and scope of the two representations do not support a

finding of a “substantial relationship.”

2. Wachtell received no confidences from Dow that it

could use to Dow’s detriment in this proceeding.

In order to support a finding of a substantial relationship, information gleaned

from the prior representation must be specifically relevant to the current representation. Com-

ment 3 to Rule 1.9 explains that “[i]n the case of an organizational client, general knowledge of

the client’s policies and practices ordinarily will not preclude a subsequent representation.” Ac-

cordingly, “the court should not allow its imagination to run free with a view to hypothesizing

conceivable but unlikely situations in which confidential information ‘might’ have been dis-

closed which would be relevant to the present suit.” Satellite Fin. Planning Corp. v. First Nat’l

-16-
Bank of Wilmington, 652 F. Supp. 1281, 1284 (D. Del. 1987). “Without any common issues”

between the two representations, there is no basis for finding that the substantial relationship test

has been met. Hendry, 2005 WL 3359078, at *4.

Dow’s attempt to manufacture a substantial relationship by invoking its historical

“transformative strategy” falls of its own weight. To begin with, there was nothing remotely

confidential about Dow’s desire to transform itself, through acquisitions and partnerships, into a

specialty chemical-oriented company. Dow has been proclaiming that strategy to the public

since at least 2006. See, e.g., Wolinsky Aff. Exs. L, M. Indeed, when Dow announced the

Rohm and Haas acquisition on July 10, 2008, Mr. Liveris described the acquisition as “the defin-

ing step in Dow’s transformation to a high-growth, diversified chemicals and materials com-

pany” and told investors that “since March of 2006,” that strategy “has been and continues to be

straightforward and consistent.” Wolinsky Aff. Ex. J at 2-3; see also id. Ex. K at 8.

More fundamentally, however, any confidences about Dow’s 2007-vintage “trans-

formative strategy” are not at the “heart” of the case. They are not even on the periphery. As

noted above, Dow’s entire defense rests on the premise that the world has changed so dramati-

cally since the signing of the Merger Agreement in July 2008 that enforcement of that agreement

is no longer equitable. Thus, on Dow’s theory, the changing world must have likewise eroded

the relevance of anything Wachtell learned about Dow’s strategy in 2007, rendering the claim

that Dow’s dated strategy is at the “heart” of this case utterly implausible. Cf. Charles W. Wolf-

ram, Former-Client Conflicts, 10 GEO. J. LEGAL ETHICS 677, 732 (1997) (intervening events will

“erode whatever salience might originally have attached even to the former client’s inner-most

secrets”).

-17-
 Dow suggests that Wachtell somehow had access to documents about this transac-

tion. Dow Br. 1. For that to be true, Wachtell would have needed a crystal ball. Wachtell was

given access to a database of Dow documents in May 2007, over one year before negotiation of

the Merger Agreement began. Moses Aff. ¶ 8. Only two Wachtell attorneys (neither of whom

has worked on the Rohm and Haas representation) had access to that database, and neither of

them has accessed it since the Fall of 2007. Id. Wachtell could not have seen any documents

about the actual deal negotiated in July 2008.

Dow’s own conduct gives lie to the assertion that Wachtell’s representation of

Rohm and Haas is materially advanced by supposed confidential information concerning Dow’s

evaluation of Rohm and Haas. If that were true, that information would have most advantaged

Wachtell and Rohm and Haas at the time of the negotiation of the Merger Agreement. Thus,

Dow’s claim that it had “no compelling reason” to address the supposed conflict at the time of

the negotiation has it exactly wrong; if information about Dow’s strategic vision had any value, it

was precisely during the period in which Wachtell was advising Rohm and Haas on how to struc-

ture and conduct a bidding process designed to get the best terms from Dow.

Dow also claims that Wachtell’s purported “knowledge of Dow’s planned and po-

tential acquisitions and divestitures” is relevant because “Rohm and Haas” will take the position

that “Dow can address its financial problems” by selling assets. Dow Br. 12. Of course, this is

not only Rohm and Haas’s position, it is Dow’s position: Dow told its shareholders on February

3 that it was exploring the sale of twelve of its assets in order to facilitate the financing of the

Merger. Wolinsky Aff. Ex. I at 12. And once again, any information that Wachtell may have

-18-
seen about Dow’s divestiture strategies is more than a year old and not relevant in a world in

which, as Dow would have it, everything has changed. 12

Finally, the claim that confidential information could be used to Dow’s detriment

is further refuted by the affidavits of Mr. Lipton and Mr. Moses, the Wachtell partners who led

the Dow representation, stating that they have not shared Dow’s client confidences with the

Wachtell lawyers working on the Dow matter. Lipton Aff. ¶ 10; Moses Aff. ¶ 11. Mr.

Wolinsky, the lead Wachtell litigation partner on this matter, has likewise submitted an affidavit

stating that — as he told Dow’s counsel prior to the filing of this motion — the Wachtell lawyers

who worked on the Dow matter have not had substantive communications with the Rohm and

Haas team at Wachtell about this litigation. Wolinsky Aff. ¶ 2. Cf. IMC Global, 1998 WL

842312, at *3 (in Rule of Professional Conduct 1.10 case, court has discretion to rely on attorney

representations as to “the full extent of information flow between them”); Deemer Steel Casting

Co. v. E. Coast Erectors, Inc., 1990 WL 143840, at *4 (Del. Ch. Sept. 28, 1990) (presumption of

shared confidences under Rule 1.10 rebuttable by credible evidence “demonstrating that the at-

torney received no disqualifying confidential information”)

D. Wachtell’s continuing representation of Rohm and Haas will not undermine

the fairness and integrity of the proceedings, but hamstringing Rohm and
Haas’s ability to use its chosen counsel will.

Even if Dow could possibly establish a violation of the ethical rules (which, as set

forth above, it cannot), that violation alone is not sufficient to justify the extraordinary remedy of

12
Recognizing that information of that vintage has no bearing on the issues in the case,
neither party has sought discovery of documents or information related to strategic planning in
2007. Dow’s discovery requests call for documents and information from April 1, 2008, while
all but one of Rohm and Haas’s requests seek documents and information from June 1, 2008
forward. The only exception is Rohm and Haas’s request for discrete financial statements for
Dow’s major joint ventures for the past three years. Wolinsky Aff. Exs. C-H.

-19-
disqualification. See Hendry, 2005 WL 3359078, at *4; Sanchez-Caza, 2004 WL 2087922, at

*4; Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F. Supp. 2d 579, 583 (D. Del. 2001).

“[D]isqualification does not always serve as an appropriate remedy for violations of Rule 1.9.”

Express Scripts, 2007 WL 417193, at *1. “The Court’s inquiry focuses on whether [the law-

yer’s] continued representation of [the current client] will so undermine the integrity and fairness

of the proceedings that [the current client] should be deprived of the counsel of his choosing.”

Unanue, 2004 WL 602096, at *2; accord McAllister v. Kallop, 1993 WL 205037, at *1-*2 (Del.

Ch. June 8, 1993).

Thus, to determine whether disqualification is an appropriate remedy for an ethi-

cal violation, “this Court measures the interests of the former client in protecting confidences

revealed during representation with the prejudice that would be suffered by the current client

were the attorney or firm to be disqualified.” Express Scripts, 2007 WL 417193, at *1; see also

Sanchez-Caza, 2004 WL 2087922, at *4 (court “must weigh the current client’s choice of coun-

sel with a ‘former client’s right to protect confidences revealed in a prior representation’” (cita-

tion omitted)).

Courts routinely deny disqualification when the risk that there were relevant client

confidences disclosed in the prior representation is slight, but the current client would be preju-

diced. See id. at *5 (denying motion where it “would undoubtedly prejudice the Plaintiff by de-

nying him his choice of counsel and by delaying the adjudication of the merits. . . . The likely

prejudice that would result from disqualification is not warranted given the limited, unrelated

-20-
nature of the prior representation and the minimal risk of [the lawyer’s] access to confidential

information regarding [the defendant]”). 13

The prejudice caused by disqualification is especially acute in the context of ex-

pedited proceedings. See, e.g., Express Scripts, 2007 WL 417193, at *2 (disqualification is in-

appropriate remedy in expedited deal litigation “where every tick of the clock counts”); Avacus

Partners, L.P. v. Brian, 1990 WL 27538, at *4 (Del. Ch. Mar. 9, 1990) (presence of “special fac-

tor[s]” such as “an on-going contest for corporate control or a proposed transaction with an early

closing date” amplify non-moving party’s interest in being represented by counsel of its first

choice).

The prejudice Rohm and Haas would suffer if it cannot use its chosen counsel for

key litigation functions is just as severe as the prejudice at issue in Express Scripts, Sanchez-

Caza and the other cases cited above — if not more so. Trial is on March 9 — one month away.

Wachtell’s intimate working knowledge of the transaction cannot be adequately replicated in that

time frame if at all. Lonergan Aff. ¶¶ 9-10. 14 Document discovery is already well under way;

depositions start on February 12 and finish just two weeks thereafter. Excluding Wachtell from

these activities is simply unworkable. Id. In these circumstances, the relief that Dow requests
13
See also Hendry, 2005 WL 3359078, at *4 (same); Elonex, 142 F. Supp. 2d at 584
(denying motion because “[t]here is no doubt that it will be both inefficient and costly for [the
client] to get new counsel up to speed in this matter”); Nemours Found. v. Gilbane, 632 F. Supp.
418, 430 (D. Del. 1986) (noting that it would be prejudicial to deny the client of his choice of
counsel “at this point in the litigation” and taking into account the “excellent working
relationship” that the client had developed with counsel in denying a motion to disqualify).
14
While Rohm and Haas has the utmost confidence in the abilities of its Delaware counsel,
Connolly Bove Lodge & Hutz, Connolly Bove did not participate in the negotiation of the
Merger Agreement, the regulatory approval process, due diligence or the events that led up to the
filing of the suit and is not directly involved in the development of the strategy that Rohm and
Haas has developed to compel Dow to live up to its promises or the day-to-day decision making
implementing that strategy. Connolly Bove therefore does not have the same first-hand
knowledge of the matter as does Wachtell. Lonergan Aff. ¶ 10.

-21-
can in no way be characterized as limited. To the contrary, Dow’s request that Wachtell be dis-

qualified from participating in discovery of Dow (including document discovery) or in examina-

tion of Dow witnesses — the true guts of this litigation — strikes at the very heart of Rohm and

Haas’s ability to prepare for trial.

This is not a case where Rohm and Haas can simply hire new counsel or vastly

expand the role of existing co-counsel and accept a delay in adjudication of the merits. As Rohm

and Haas has previously explained to the Court, any delay resulting from disqualification of

Wachtell would severely hamper Rohm and Haas’s ability to vindicate its rights. Lonergan Aff.

¶ 11. And, as is detailed in the Verified Complaint and in Rohm and Haas’s motion for expe-

dited proceedings, every additional day that the closing is delayed is detrimental to Rohm and

Haas, its shareholders and its employees. Compl. ¶ 40; Mem. of Law in Supp. of Pl.’s Mot. for

Expedited Proceedings at 13-14; Lonergan Aff. ¶ 13-14.

E. Dow’s delay in raising the purported conflict is in

itself a sufficient basis for denying this motion.

In weighing the interests of the former and current clients, another “factor to be

considered is the moving party’s timeliness in notifying opposing counsel of the conflict, be-

cause motions to disqualify are often brought less out of concern for confidentiality than as a tac-

tic in litigation.” Express Scripts, 2007 WL 417193, at *1 (disqualification not an appropriate

remedy in rapidly moving dispute where defendants waited until twenty-one days after learning

the identity of plaintiff’s counsel before giving notice of conflict); see also Sanchez-Caza, 2004

WL 2087922, at *5 (six-month delay between former clients’ learning of the adverse representa-

tion and their objection made it apparent “that the Defendants were not overly concerned about

[the challenged law firm] possessing potentially harmful confidential information”). Dow’s un-

-22-
justifiable delay in raising any objection to Wachtell’s representation of Rohm and Haas itself

defeats disqualification.

1. Dow acquiesced in and consented to Wachtell’s

representation of Rohm and Haas by failing to
express an objection until after litigation began.

If Dow’s claim — that Wachtell’s representation of Rohm and Haas constitutes a

conflict of interest — is to be credited, Dow cannot escape the conclusion that the conflict would

have been patently obvious more than seven months ago at the outset of the negotiations between

the parties. And if any credence is to be given Dow’s claim that confidences about its strategy

were significant, those confidences would have been far more useful to conducting the auction

for Rohm and Haas than in an after-the-fact litigation about a breach. Yet Dow claims that it

was silent during the auction and merger negotiations because there was “no compelling reason”

to object. Dow Br. 14.

This is simply not an excuse for Dow’s conduct. If Dow were truly concerned

about the use of its confidential information against its own interests, it was incumbent upon

Dow to object to Wachtell’s representation of Rohm and Haas in June 2008. See Kenton v.

Bellevue Four, Inc., 1999 WL 463684, at *1 (Del. Super. Apr. 26, 1999) (failure to make timely

objection upon learning the facts supporting a disqualification motion results in waiver of the

right to seek disqualification).

Dow is thus in the same position as the unsuccessful movant in Eli Lilly & Co. v.

Genentech, Inc., 17 U.S.P.Q.2d 1531 (S.D. Ind. 1990). There, Lilly moved to disqualify its for-

mer in-house counsel, Dr. Buting. Dr. Buting, on behalf of Lilly, had negotiated the licensing

agreement with Genentech that was the subject of the litigation, but subsequently became in-

house counsel to Genentech, where his responsibilities included administering that same licens-

ing agreement. Id. at 1532-33. Lilly communicated with Dr. Buting in his new role and raised
-23-
no objection until litigation began. Id. The court concluded that Lilly, by its conduct, had “con-

sented to and acquiesced in” its former lawyer’s “potentially adverse” role ever since Dr. Buting

switched companies. Id. at 1535. Lilly therefore “waived its right to raise disqualification be-

cause it knowingly failed to make a prompt objection.” Id. at 1536.

The same is true here. Dow never objected until it became clear that Rohm and

Haas would litigate Dow’s breaches of the Merger Agreement. Dow’s seven-month-long acqui-

escence in Wachtell’s role as counsel to Rohm and Haas demonstrates that the present motion is

nothing more than the “procedural weapon” that the Supreme Court has warned against. Info-

technology, 582 A.2d at 220.

2. Dow cannot excuse its failure to make a timely objection

by claiming that it was presented with a fait accompli.

Finally, it is no answer for Dow to claim that its failure to object in June 2008

when the conflict was, on Dow’s theory, most acute can be excused because Dow was presented

by Rohm and Haas with its retention of Wachtell as a fait accompli. If there was an issue, it was

incumbent upon Dow to raise it at that time. At a minimum, Dow could have expressed its ob-

jection and taken the position that while it was consenting to Wachtell’s representation of Rohm

and Haas in the merger negotiation, it would object if Wachtell sought to litigate against Dow in

some future dispute.

Dow’s reliance on J.E. Rhoads & Sons, Inc. v. Wooters, 1996 WL 41162, at *5

(Del. Ch. Jan. 26, 1996), for the proposition that a party to a transaction may acquiesce in its for-

mer law firm’s transactional representation of a counterparty, yet still make a timely objection

when litigation later develops is thus completely misplaced. J.E. Rhoads involved the sale of a

business in which all parties to the transaction — buyer, seller, and employees — agreed to be

represented by the same law firm. Id. at *1. When litigation later arose between the employees

-24-
and the buyer, the court held that the litigation was “substantially related to matters in which [the

law firm] previously . . . acted as an intermediary for all parties.” Id. at *4 (emphasis added).

Not even Dow claims that Wachtell represented both parties here in negotiating the Merger

Agreement.

CONCLUSION

Courts understandably are wary of disqualification motions because of their po-

tential for abuse. This motion — brought seven months after Dow was faced with its supposed

counsel sitting across the bargaining table — is a perfect example of why that is so. Dow’s mo-

tion is without merit and untimely. It should be denied.

-25-
 Respectfully submitted,

CONNOLLY BOVE LODGE & HUTZ LLP

/s/ Collins J. Seitz, Jr.

Collins J. Seitz, Jr. (No. 2237)
OF COUNSEL: Henry E. Gallagher, Jr. (No. 495)
David E. Ross (No. 5228)
Paul K. Rowe Bradley R. Aronstam (No. 5129)
Marc Wolinsky The Nemours Building
Elaine P. Golin 1007 North Orange Street
Garrett B. Moritz P.O. Box 2207
Joshua A. Naftalis Wilmington, Delaware 19899
WACHTELL, LIPTON, ROSEN & KATZ Telephone: (302) 658-9141
51 West 52nd Street Facsimile: (302) 658-5614
New York, New York 10019
Telephone: (212) 403-1000 Attorneys for Plaintiff Rohm and Haas
Facsimile: (212) 403-2000 Company

Robert A. Lonergan
ROHM AND HAAS COMPANY
100 Independence Mall West
Philadelphia, Pennsylvania 19106
Telephone: (215) 592-3000
Facsimile: (215) 592-3377

Dated: February 9, 2009

-26-
 CERTIFICATE OF SERVICE

I, Collins J. Seitz, Jr., Esquire, hereby certify that on February 9, 2009, a copy of the

foregoing Memorandum of Law In Opposition To Defendants’ Motion To Disqualify Wachtell,

Lipton, Rosen & Katz From Conducting Discovery Against Dow And Examining Dow Wit-

nesses to be served by LexisNexis File & Serve to counsel of record as follows:

Martin P. Tully, Esquire

Kenneth J. Nachbar, Esquire
Morris, Nichols, Arsht & Tunnell
1201 N. Market Street
Wilmington, DE 19899

/s/ Collins J. Seitz, Jr.

Collins J. Seitz, Jr. (Bar No. 2237)

-27-