IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

 

HEALTH ALLIANCE PLAN OF ) 

MICHIGAN, HAP PREFERRED, ) 

INCORPORATED, and ALLIANCE ) Case No: 2:14-cv-13788-LPZ-MJH 

HEALTH AND LIFE INSURANCE ) 

COMPANY, ) Hon. Lawrence P. Zatkoff 

 ) 

 Plaintiffs, ) 

v. ) 

 ) 

BLUE CROSS BLUE SHIELD OF ) 

MICHIGAN MUTUAL INSURANCE ) 

COMPANY, a Michigan mutual ) 

insurance company, ) 

 ) 

 Defendant. ) 

 ) 

DEFENDANT BLUE CROSS BLUE SHIELD OF MICHIGAN’S MOTION 

TO STAY ALL PROCEEDINGS PENDING A RULING ON ITS MOTION 

TO DISQUALIFY PLAINTIFFS’ COUNSEL 

Robert A. Phillips (P58496) 

BLUE CROSS BLUE SHIELD OF 

MICHIGAN 

600 Lafayette East, MC 1925 

Detroit, MI 48226 

313-225-0536 

rphillips@bcbsm.com 

Todd M. Stenerson (P51953) 

D. Bruce Hoffman 

(Adm. E.D. MI, DC Bar 495385) 

Neil K. Gilman 

(Adm. E.D. MI, DC Bar 449226) 

Jonathan H. Lasken 

(Adm. E.D. MI, DC Bar 997251) 

HUNTON & WILLIAMS LLP 

2200 Pennsylvania Ave., NW 

Washington, DC 20037 

202-955-1500 

tstenerson@hunton.com 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 1 of 10 Pg ID 196
2 

Defendant Blue Cross Blue Shield of Michigan (“BCBSM”), by its 

undersigned counsel, submits this Motion to Stay All Proceedings Pending a 

Ruling on its Motion to Disqualify Plaintiffs’ Counsel. In support of its motion, 

BCBSM relies upon the authorities and arguments set forth in the incorporated 

brief. 

As required by Local Rule 7.1(a)(2)(A), BCBSM’s counsel conferred with 

attorneys for Plaintiffs entitled to be heard on this Motion. BCBSM explained the 

nature and legal basis of the motion and requested, but did not obtain, concurrence 

in the relief sought. 

Respectfully submitted, 

HUNTON & WILLIAMS LLP 

By: /s/Todd M. Stenerson 

Todd M. Stenerson 

220 Pennsylvania Ave, N.W. 

Washington, D.C. 20037 

(202) 955-1500 

tstenerson@hunton.com 

October 23, 2014 Attorney for Defendant 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 2 of 10 Pg ID 197
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

 

HEALTH ALLIANCE PLAN OF ) 

MICHIGAN, HAP PREFERRED, ) 

INCORPORATED, and ALLIANCE ) Case No: 2:14-cv-13788-LPZ-MJH 

HEALTH AND LIFE INSURANCE ) 

COMPANY, ) Hon. Lawrence P. Zatkoff 

 ) 

 Plaintiffs, ) 

v. ) 

 ) 

BLUE CROSS BLUE SHIELD OF ) 

MICHIGAN MUTUAL INSURANCE ) 

COMPANY, a Michigan mutual ) 

insurance company, ) 

 ) 

 Defendant. ) 

 ) 

DEFENDANT BLUE CROSS BLUE SHIELD OF MICHIGAN’S BRIEF IN 

SUPPORT OF ITS MOTION TO STAY ALL PROCEEDINGS PENDING A 

RULING ON ITS MOTION TO DISQUALIFY PLAINTIFFS’ COUNSEL 

Robert A. Phillips (P58496) 

BLUE CROSS BLUE SHIELD OF 

MICHIGAN 

600 Lafayette East, MC 1925 

Detroit, MI 48226 

313-225-0536 

rphillips@bcbsm.com 

Todd M. Stenerson (P51953) 

D. Bruce Hoffman 

(Adm. E.D. MI, DC Bar 495385) 

Neil K. Gilman 

(Adm. E.D. MI, DC Bar 449226) 

Jonathan H. Lasken 

(Adm. E.D. MI, DC Bar 997251) 

HUNTON & WILLIAMS LLP 

2200 Pennsylvania Ave., NW 

Washington, DC 20037 

202-955-1500 

tstenerson@hunton.com 

 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 3 of 10 Pg ID 198
CONTROLLING OR MOST APPROPRIATE AUTHORITY 

A stay is proper because a district court may not decide a dispositive motion, 

or make any other rulings affecting the proceedings in a case, until it decides a 

pending disqualification motion. Bowers v. The Ophthalmology Group, 733 F.3d 

647, 654 (6th Cir. 2013). 

 

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ii 

ISSUE PRESENTED 

Whether the Court should stay all proceedings pending the outcome of defendant’s 

motion to disqualify plaintiffs’ counsel pursuant to clearly established precedent 

holding that a district court may not make any rulings affecting the proceedings in 

the case until it decides a pending disqualification motion? 

Defendant Answers: Yes. 

Plaintiff Answers: No. 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 5 of 10 Pg ID 200
INTRODUCTION 

Blue Cross Blue Shield of Michigan (“BCBSM”) respectfully moves for an 

Order staying all activities in this case until after the Court has decided BCBSM’s 

contemporaneous motion to disqualify HAP’s counsel, David Ettinger.1

 As 

explained in that motion, Mr. Ettinger has an irreconcilable ethical conflict that 

threatens to undermine the integrity of this proceeding and compromise the fair 

administration of justice. A stay is necessary to prevent the taint of Mr. Ettinger’s 

ethical conflict from spreading throughout this proceeding while BCBSM’s 

disqualification motion is pending. 

ARGUMENT 

I. A Stay is Necessary Because the Court Must Decide the Disqualification 

Motion Before Any Other Motions to Ensure that the Proceedings Are 

Not Tainted by Mr. Ettinger’s Ethical Conflict 

The Sixth Circuit has unequivocally held that a district court may not decide 

any dispositive motion, or make any other ruling affecting the proceedings in the 

case, until it decides a pending disqualification motion. Bowers v. The 

Ophthalmology Group, 733 F.3d 647, 654 (6th Cir. 2013) (holding a “district court 

must rule on a motion for disqualification of counsel prior to ruling on a 

dispositive motion”). Such a rule is necessary “because the success of a 

disqualification motion has the potential to change the proceedings entirely.” Id. at 

 1

 Dkt. 14. 

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2 

654. It is therefore not practical for the Court and the parties to proceed with 

dispositive motions—including BCBSM’s motion to dismiss—while there is a 

potential that HAP’s strategy and allegations may change under the direction of 

new, unbiased counsel.2

 

The plain implication of the Sixth Circuit’s rationale in Bowers is that a stay 

is required pending the Court’s decision on a motion to disqualify. “When counsel 

is disqualified, a court should not reach the other questions or motions presented to 

it through the disqualified counsel.” Id. at 654-55 (vacating the lower court’s 

decision, while allowing new counsel “not subject to the possible taint of 

confidential information” to renew the motion). This rationale extends directly to 

the motion to dismiss BCBSM plans to file in response to HAP’s complaint and 

any initial discovery disputes that the parties may have because “[c]onflicts of 

interest, left unchecked, could taint an entire case and call into question the 

integrity of the attorney-client relationship.”3

 

Simply put, the Court cannot entertain motions or other pleadings when a 

party’s counsel is operating under an ethical cloud. See Living Cross Ambulance, 

 2

 Although the Bowers court indicated that the rule was “especially important” 

in the context of a summary judgment motion (because “there is a risk that 

confidential information could be used in preparing or defending the motion”), the 

principle is equally applicable to a motion to dismiss. Id. at n. 5. 

3 Living Cross Ambulance Service, Inc. v. New Mexico Pub. Reg. Comm’n, No. 

34,366, 2014 WL 4401473, at *5 (N.M. Sept. 8, 2014) (citing Bowers, 733 F.3d at 

654-55).

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3 

2014 WL 4401473, at *5 (holding, “once a party moves to disqualify an adverse 

party’s counsel . . . all substantive proceedings must cease until the tribunal 

determines whether counsel is disqualified”). If it were to do so, any decisions 

made by that court would potentially have to be reconsidered after new pleadings 

are submitted by counsel unencumbered by an ethical conflict. Bowers further 

illustrates that a stay makes sense as a matter of good case management and the 

preservation of party and judicial resources because a court “cannot know to what 

extent the disqualified counsel’s conflict colored the pending motions.” In re 

Woodruff, 2014 WL 4258378 at *5 (N. Mar. I. Aug. 26, 2014) (citing Bowers, 733 

F.3d at 649). It is therefore “safest to give replacement counsel a chance” to make 

its own independent judgments about what arguments to make in support of or in 

opposition to any given motion. Id. 

Given the early stage of this case, HAP will not be prejudiced by a stay 

while the Court decides BCBSM’s disqualification motion. HAP filed its 

complaint—which was signed by Mr. Ettinger—on October 1, 2014. The parties 

have not taken any further substantive action that would result in undue prejudice 

to HAP if its counsel is disqualified. Absent a stay, however, Mr. Ettinger’s 

involvement in the early stages of discovery and motion practice will result in an 

ethical cloud hanging over this case and potentially void any action the Court takes 

to resolve motions tainted by his influence. 

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4 

CONCLUSION 

For the foregoing reasons, the Court should stay all proceedings until twenty 

days after the appearance of HAP’s replacement counsel or the Court denies the 

motion. 

Respectfully submitted, 

HUNTON & WILLIAMS LLP 

By: /s/Todd M. Stenerson 

Todd M. Stenerson 

220 Pennsylvania Ave, N.W. 

Washington, D.C. 20037 

(202) 955-1500 

tstenerson@hunton.com 

October 23, 2014 Attorney for Defendant 

 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 9 of 10 Pg ID 204
5 

CERTIFICATE OF SERVICE

I hereby certify that on October 14, 2014, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system, which will send 

notification of such filling to all parties of record. 

/s/Todd M. Stenerson 

Todd M. Stenerson 

220 Pennsylvania Ave, N.W. 

Washington, D.C. 20037 

(202) 955-1500 

tstenerson@hunton.com 

October 23, 2014 Attorney for Defendant 

2:14-cv-13788-DPH-MJH Doc # 16 Filed 10/23/14 Pg 10 of 10 Pg ID 205