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No. 12-1587
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:11-cv-00622-REP)
Argued:
Decided:
April 3, 2014
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
de
Nemours
and
Company
(DuPont).
We
also
consider
Finding no reversible
error, we affirm.
I.
A.
The merits of this case concern Kolons claim that DuPont
attempted to wield, or did wield, monopoly power over the U.S.
para-aramid
fiber
market
in
violation
of
Section
of
the
Teijin
Aramid
(formerly
Three para-aramid
a
division
of
the
Dutch
company
Akzo
N.V.),
and
Kolon--sell
their
para-aramid
share
of
the
U.S.
para-aramid
market
(the
relevant
is
time-intensive
expensive,
and
potential
that
DuPont,
despite
Teijins
encroachment,
earned
profit margins of as high as 75% between 1997 and 2005 and had
the ability to price discriminate among its customers.
considered
Anticipating
Kolons
Kolons
market
potential
entry
to
be
encroachment,
threat.
DuPont
began
entry,
gaskets),
cables.
including
tires,
auto
short
manufactured
fibers
rubber
(pulp
goods,
for
and
brakes
fiber
and
optic
executing
multi-year
supply
agreements
with
high-volume
supply
contracts
contained
restrictions,
such
as
result
of
these
allegedly
anticompetitive
practices,
As
Kolon
for
the
its
U.S.
part,
market
attributes
to
4
Kolons
Kolons
own
failure
to
shortcomings.
U.S.
foothold,
using
only
seven
sales
agents,
October
2009.
Meanwhile,
DuPont
defends
its
supply
noting
agreements
with
that
it
entered
twenty-one
U.S.
into
only
customers,
twenty-five
collectively
agreements,
customer
to
DuPont
purchase
says,
some
only
amount
of
portion
Kevlar,
obligated
and
these
Of
the
had
Meanwhile, none of
notes
that
the
majority
had
no
supply
agreement
with
In
supply
agreements--frustrated
penetration.
Kolons
U.S.
market
B.
DuPont brought suit against Kolon alleging the theft and
misappropriation of its Kevlar trade secrets (the trade secrets
case).
antitrust
case),
monopolized
and
market
through
attempted
its
aramid customers.
Procedure
alleging
to
supply
that
DuPont
monopolize
agreements
the
with
had
U.S.
illegally
para-aramid
high-volume
para-
The
Kolon
filed
an
12(b)(6),
amended
to
dismiss
counterclaim,
Kolons
followed
by
second
amended
E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc. (DuPont I), 637 F.3d 435
(4th Cir. 2011).
On remand, the district court tried the trade secrets claim
separately, culminating in a $919.9 million jury verdict for
DuPont on September 14, 2011.
the two claims.
to
Kolon
in
the
case.
6
First,
the
district
court
denied
Kolons
motions
transaction-level
sales
to
and
compel
cost
DuPonts
data,
production
concluding
that
of
this
produced.
motions--filed
on
The
district
grounds
court
described
also
denied
below--for
Kolons
recusal
and
II.
Before turning to the merits of the antitrust claims, we
first consider Kolons argument that the district court judge
was required to recuse himself in both the instant antitrust
case and the trade secrets case, which is also now before us on
appeal.
recusal
motion
is
based
on
the
district
court
the
instant
Teijins
dispute.
In
predecessor,
the
1980s,
became
DuPont
embroiled
and
in
Akzo
several
N.V.,
patent
at the time of the Akzo case, the district court judge was a
partner at McGuireWoods.
Because McGuireWoods
2009
the
clerk
of
court
issued
notice
informing
the
The judge
days
motion
if
or
they
believed
otherwise
otherwise.
objected
to
Neither
the
party
judges
filed
continued
believed
the
Akzo
matter
was
central
to
both
its
case.
In
the
antitrust
8
case,
Kolon
began
seeking
the
Akzo
litigation--which
also
included
It contended
a
counterclaim
course
secret.
of
In
that
litigation
August
2010,
and
therefore
the
district
were
no
court
longer
ordered
files
and
to
produce
responsive
documents.
Later
that
telephone
conversation
in
which
Fitzpatrick
had
asked
the
year
later,
on
July
20,
2011,
Kolon
filed
production
of
documents]
indicating
role
by
Your
Kolon
court,
Kolons
counsel
explained
that
the
source
of
its
concern was the May 1985 letter from Mr. Fitzpatrick to the
district court judge.
The district court judge then ordered DuPont to produce any
documents
which
concerning
ultimately
his
involvement
comprised
only
in
the
the
two
Akzo
litigation,
documents
described
above: the May 1985 letter from Mr. Fitzpatrick to the judge
requesting
copy
of
the
Akzo
Complaint,
and
the
judges
further
represented
documents
that
from
those
documents
made
similar
inquiry
they
the
into
had
the
reviewed
Fitzpatrick
contained
matter,
the
representations
all
Cella
with
privileged documents.
10
the
files
judges
Kolons
name;
respect
counsel
non-privileged
and
that
DuPonts
to
the
none
of
counsel
files
judge
determined
that
he
had
no
recollection
of
the
antitrust
case
was
underway
Meanwhile, discovery in
following
our
March
2011
As in the
discovery
and
of
October
the
Akzo
of
2011
litigation
filed
files,
reciprocal
and
in
motions
on
November
30,
2011,
two
months
after
the
jury
verdict in the trade secrets case, and two days before motions
for summary judgment were due in the antitrust case, Kolon filed
its recusal motion, which the district court denied. 2
B.
28 U.S.C. 455(b)(2), the provision on which Kolon relies,
provides that any judge of the United States shall disqualify
himself
[w]here in private practice he served as a lawyer in
the matter in controversy, or a lawyer with whom he
previously
practiced
law
served
during
such
association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness
concerning it.
28
U.S.C.
455(a),
which
also
has
some
relevance
to
our
with
the
court,
and
despite
the
mandatory
text
of
had delayed in filing its recusal motion for almost a year after
it learned of the alleged conflict, the district court denied
Kolons motion as untimely.
Ruling in the alternative on the merits, the district court
concluded that even ignoring the untimeliness of Kolons motion,
recusal
was
unnecessary
under
455(b)(2)
since
the
Akzo
Id. at
528 (quoting United States v. DeTemple, 162 F.3d 279, 286 (4th
Cir. 1998)).
13
C.
We
review
discretion.
judges
recusal
decision
for
abuse
of
Cir. 1989).
We first consider Kolons challenge to the district courts
holding that
455(b)(2)
includes
timely-filing
requirement
court
Owens,
erred
by
relying
on
in
which
we
said
that
in
455,
such
requirement
is
judicially
Appellants Br. at
be[en]
questioned,
personal
bias
or
not
455(b)(1)
prejudice. 5
Id.
scenario
at
59.
14
Kolons
enough
view,
the
455(a)
to
explain
the
and
(b)
presence
provisions
of
are
timeliness
parties.
the
parties
to
the
proceeding
waiver
of
any
ground
for
be
accepted . . . .).
From
Kolons
perspective,
Appellants
Br.
at
60
(quoting
United
States
v.
Gipson, 835 F.2d 1323, 1325 (10th Cir. 1988) (internal quotation
marks omitted)).
party
motion
as
condition
precedent
to
enforcing
section
15
Id.
D.
While
Kolons
arguments
do
not
entirely
lack
merit,
we
party
seeking
recusal
in
Owens
did
not
specify
which
provision of 455 required it, and we did not cabin our holding
to
any
specific
defendant,
after
provision
publicly
of
that
accusing
section.
the
In
Owens,
then-Governor
of
the
West
902
F.2d at 1155.
In our view, these facts could plausibly fit under either
of two subsections, 455(a) or 455(b)(1).
But
the
on
the
judges
other,
as
perceived
the
district
allegiance
to
court
here
the
West
or
prejudice
concerning
the
left
only
with
Owenss
defendant--the
Governors
unqualified
announcement
that
prescription,
we
decline
to
read
Given that
Owenss
timeliness
dissenting
colleague
correctly
observes
that
Owens
cites a case discussing 455(a) alone, and that our later cases
in that line have yet to address 455(b). 6
The limitations of
as
with
455(a)
recusal,
for
example--the
F.2d
1050,
1055
(5th
Cir.
1989),
and
is
vital . . . to
non-waivability
of
455(b)
recusal
does
not
Meanwhile,
excuse
17
partys
delay
in
filing.
As
the
Fifth
Circuit
Whereas
parties
from
section
agreeing
455(e)
among
prohibits
themselves
explained,
to
judge
and
abrogate
the
section
disqualification
litigation.
Id.
issue
at
reasonable
time
in
the
for
455(a)
timeliness
requirement
is
similarly
In
analysis
must
any
event,
begin
while
with
the
we
certainly
statutes
agree
plain
that
our
language,
the
here.
Even
the
plain
meaning
of
statute
is
not
Inc.,
(1989)
489
U.S.
235,
242
18
(alteration
in
original)
(internal
promote
quotation
public
process.
marks
omitted).
confidence
in
the
Section
integrity
455
of
serves
the
to
judicial
In our view,
failing
to
for
recusal
under
insist
on
455(b)
timeliness
directly
requirement
undermines
that
seeking
legislative
goal. 7
In
keeping
with
that
end,
our
sister
circuits
have
v. Hoich, 560 F.3d 780, 789-91 (8th Cir. 2009) ( 455(a) and
(b)); Omega Engg, Inc. v. Omega, S.A., 432 F.3d 437, 447-48 (2d
Cir. 2005) ( 455(b)); Stone Hedge Props. v. Phoenix Capital
Corp.,
71
F.
Appx
138,
141
(3d
Cir.
2003)
(unpublished)
19
only
two
timeliness requirement.
circuits
have
refused
to
read
in
SCA Services v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), but
has since called that decision into question on more than one
occasion, see Schurz Commcns, Inc. v. FCC, 982 F.2d 1057, 1060
(7th Cir. 1992) (SCA Services is a weak precedent[.]) (Posner,
J., in chambers); United States v. Murphy, 768 F.2d 1518, 1539
(7th Cir. 1985) (observing that our decision [in SCA Services]
stands alone).
to
de
facto
filing
obligation
under
principles
of
equity.
stratagem.
legitimately
As
be
the
asked
Fifth
whether
Circuit
the
20
observed,
spectacle
of
it
an
might
attorney
detrimental
to
public
impressions
of
the
Delesdernier, 666
enact
455(a)
to
allow
counsel
to
make
subvert
that
legislative
intent
merely
Congress did
a
judicial
game
Id.
of
the
We should
because
party
the
parties)
nonetheless
prejudice
to
one
has
ignore
party
in
Thus,
particular,
conflict,
waiver
and
cannot
will
not
but
be
seeks
said
produce
to
the
21
important
judiciary
is
than
ensuring
upheld.
that
Dissent
at
the
impartiality
50.
As
with
of
the
the
waiver
455,
herself.
The
that
judge
has
duty
to
recuse
himself
or
scenario
independently
we
address
determines,
here
even
arises
if
only
wrongly,
when
that
he
judge
need
not
Both efficiency
recusal
consider
rais[ing]
motions
whether
the
under
Kolon
455(a)
complied
and
with
disqualification . . . [of
(b)
that
the
alike,
next
requirement
by
judge] at
the
we
Owens, 902
F.2d
at
1156
(quoting
Satterfield
v.
Edenton-Chowan
Bd.
of
It did not.
The fact that the district court judge had been a partner
at McGuireWoods at the time of the Akzo litigation was public
knowledge when Kolon first sought discovery of the Akzo case
materials in the antitrust case in August 2009.
Given Kolons
notice
to
the
parties
informing
them
of
the
judges
Kolon
became
aware
of
the
judges
direct
(if
recusal
motion
almost
year
before
it
first
suggested
23
disqualification . . .
[of
the
judge]
at
the
earliest
moment
Id. 9
that
DuPont
knew
first
of
the
district
court
judges
fact
until
August 2010.
it
eventually
produced
its
privilege
log
in
Akzo case was not the only (or even necessarily the strongest)
basis for Kolons eventual 455(b)(2) recusal motion: if, as
Kolon believed, the Akzo litigation was actually a matter in
controversy,
the
mere
involvement
of
the
judges
former
law
24
dissenting
colleague
warns
that
our
decision
as
to
who
is
no
longer
permitted
to
conduct
further
Dissent at 57
We have
In
hardly
impair
public
confidence
more
than
would
rule
(8th
1996)
Cir.
marks omitted).
(alteration
in
original)
(internal
quotation
25
within
its
discretion
in
denying
Kolons
recusal
motion
on
timeliness grounds. 10
III.
We
next
consider
Kolons
challenges
of
which
has
substantial
discovery
discretion,
caused
may
to
certain
of
the
found
where
prejudice.
denial
of
Nicholas
v.
Wyndham Intl, Inc., 373 F.3d 537, 543 (4th Cir. 2004).
A.
Throughout
their
analysis,
discovery,
Kolon
to
sought
enable
access
its
to
experts
DuPonts
to
perform
transaction-
court
information
Kolon
leave
as
to
denied
overly
Kolons
broad
reformulate
and
its
initial
requests
unduly
burdensome,
request.
Conceding
for
but
that
The
this
gave
its
should
in
native
format
from
any
existing
10
26
more
relevant
than
the
information
DuPont
had
already
had
shown
that
production
of
the
requested
documents
J.A. 1020-22.
justified
by
the
courts
determination
that
the
Kolon insists
and
because
an
affidavit
from
DuPonts
Global
requested,
regarding
which
included
customers,
all
geographic
27
transaction-level
location,
dates,
details
products,
considering
the
Id.
district
courts
wide
also
appeals
the
district
courts
grant
of
for
District
the
of
United
States
Virginia
notice . . . for
by
[a]
District
failing
replacement
to
Court
give
the
Eastern
reasonable
written
deposition
for
notice
that
it
served on October 21, 2011, and had wasted the time the court
had extended it for completion of its depositions.
Again,
we
see
no
discretionary ruling.
cause
to
disturb
the
J.A. 2715.
district
courts
21,
2011.
As
the
district
28
court
determined,
this
30(b)(1),
Although
Kolon
reasonable
under
which
maintains
the
requires
that
the
circumstances,
reasonable
five-days
the
notice.
notice
district
court
was
acted
IV.
Finally,
we
consider
Kolons
challenge
to
the
district
we
review
de
novo,
viewing
all
facts
and
reasonable
Cir. 2009).
In general, summary judgment is appropriate where there is
no genuine issue as to any material fact.
56(a).
Fed. R. Civ. P.
judgment
is
an
important
Anderson v. Liberty
for
dealing
with
antitrust cases, Oksanen v. Page Meml Hosp., 945 F.2d 696, 708
(4th
Cir.
1991)
(en
banc),
and
that
antitrust
cases
are
first
review
the
district
courts
grant
of
summary
and
(2)
willfully
acquires
or
maintains
that
power.
the
market.
relevant
market
it
is
truly
predominant
in
the
White Bag Co. v. Intl Paper Co., 579 F.2d 1384, 1387
that
found
when
controlled
market.
monopolization
seventy
to
has
one
been
hundred
percent
the
of
defendant
the
relevant
at 1387).
Beyond
focused
percentage
on
the
particularly
durability
with
an
market
eye
share,
of
the
toward
some
courts
defendants
other
firms
have
market
also
power,
(in)ability
to
these
standards,
the
district
court
held
that
market,
at
the
summary
judgment
stage
the
district
Kolons own expert takes the view that DuPont had a maximum
market share of 59 percent during the relevant time period, and
that DuPonts market share decreased to 55 percent during that
three year period rather than increased.
This
decline
in
DuPonts
market
Id.
share,
combined
with
[T]he
the
fact
district
that
court
there
are
continued,
significant
is
entry
insufficient
to
Id.
Id.
correct that DuPonts market share of less than 60% during the
relevant
period
does
not
necessarily
foreclose
finding
of
have
previously
drawn
the
line
for
monopoly
power.
See
although
Kolon
is
also
correct
that
certain
something
Furthermore,
durability
this
in
uncontested
greater
evidence
the
facts
than
market
falls
market.
As
demonstrate
short
the
that
power
of
showing
district
DuPont
under
court
has
1.).
DuPonts
observed,
experienced
if
Kolon
had
presented
triable
issue
on
the
maintained
that
power.
To
violate
this
prong,
competitive
advantage,
or
to
destroy
competitor.
Although
illegal,
exclusive
they
may
dealing
be
an
maintaining a monopoly.
agreements
improper
are
means
not
of
per
se
acquiring
or
The
these
lines,
foreclosed
adversely
traders
affect
to
enter
is
we
important
competition,
into
or
significantly limited[.]
Tampa
Elec.,
demonstrated
demonstrate
365
U.S.
the
observed
because,
the
remain
that
for
[t]he
the
contract
opportunities
in
that
market
for
market
to
other
must
be
substantial
that
have
328).
Once
foreclosure,
conduct
34
had
it
plaintiff
must
negative
then
impact
has
also
on
v. Ralston Purina Co., 810 F.2d 1289, 1295 (4th Cir. 1987).
The district court held there was no genuine issue that
DuPonts
supply
agreements
had
not
foreclosed
substantial
at
best,
did
nothing
to
reveal
the
amount
supply
of
Kolon,
agreements--many
of
which
were
non-exclusive--with
court
also
Id. at *15.
concluded
that
Kolon
had
put
forth
no
overall
ascendance
competition,
fatally
noting
undercut
that
that
claim.
Teijins
Id.
relentless
Finally,
the
35
appeal,
theory.
While
Id. at *16-18.
Kolon
it
again
does
stresses
not
deny
its
critical
that
DuPont
bridge
had
supply
competition,
shortsighted.
Kolons
market
Tampa
Pointing
entry
as
to
a
Elec.,
evidence
threat,
365
U.S.
that
Kolon
at
DuPont
argues
329--was
perceived
that
DuPont
in
the
key
commercially
sustainable
short
entry
Appellants Br. at
of
DuPonts
supply
agreements,
these
Id. at 32.
See United
States v. Dentsply Intl, Inc., 399 F.3d 181 (3d Cir. 2005)
(reversing summary judgment, holding that Dentsplys exclusivity
agreements with key product distributors could deny efficient
36
Wal-Mart
could
have
cut
LePages
off
from
key
retail
we
acknowledge
that
singular
emphasis
on
the
Kolon
commerce
in
failed
to
show
the
entire
what
relevant
proportionate
market
was
volume
of
foreclosed
by
the
plaintiffs
in
Dentsply
and
LePages,
Kolon
And even if we
based
critical
on
bridge
the
fact
cases
that
foreclosed
the
the
defendants
in
plaintiffs
those
access
to
We are not
convinced
distinction
that,
as
Kolon
without a difference.
observed,
unlike
contends,
this
with
Dentsplys
and
is
agreements
that
*18.
In
sum,
we
conclude
that
neither
the
probable
nor
the
in
substantial
share
of
the
affected.
line
of
commerce
Accordingly, those
issue
of
material
as
to
either
prong,
summary
next
review
the
district
courts
grant
of
summary
Attempted
monopolization
employs
methods,
means
and
at
453
(quoting
&
Med.
Supplies
&
DuPont I, 637
Serv.,
Inc.
v.
Pleasant Valley Hosp., Inc., 981 F.2d 160, 166 (4th Cir. 1992)).
To prevail on an attempted monopolization claim under 2, a
claimant
must
show
(1)
specific
intent
to
monopolize
Spectrum
neither
demonstrate
satisfied
substantial
since
(1)
foreclosure
Kolon
of
the
had
failed
relevant
to
market
meaning
there
was
no
dangerous
probability
of
arguing
that
DuPont
entered
these
agreements
rivals
on
some
basis
other
than
efficiency,
of
success
prong,
Kolon
it
is
fair
to
On the dangerous
maintains
that
even
if
monopoly
power,
it
was
at
least
consistent
with
Id. at 23-24
(citing M & M Med. Supplies, 981 F.2d at 168 (4th Cir. 1992)
([C]laims involving greater than 50% share should be treated as
attempts at monopolization when the other elements for attempted
monopolization are also satisfied.)).
again,
even
viewing
the
evidence
in
the
light
most
customer
supply
agreements--did
not
have
the
at 327; see also IIIB Areeda & Hovenkamp, Antitrust Law 806a,
at
412
(3d
exclusionary
ed.
2008)
conduct
([T]he
should
apply
40
same
to
basic
both
definition
of
monopolization
and
attempt claims.).
show
that
business
the
agreements
justification
or
were
anticompetitive
against
DuPonts
as
own
without
interest.
during
the
relevant
period.
As
the
district
court
And even if
we
affirm
the
district
courts
grant
of
V.
In sum, we conclude that following Owens, recusals under 28
U.S.C.
455(b)
requirement,
and
include
that
the
judicially
district
41
implied
court
timely-filing
acted
within
its
the
merits
of
Kolons
antitrust
suit,
we
agree
with
the
fact
sufficient
to
sustain
either
its
attempted
or
42
Will,
requires
United
449
an
U.S.
absence
States
v.
200,
215
(1980),
of
actual
bias
Werner,
916
F.2d
but
in
the
175,
[f]airness
178
trial
of
(4th
cases,
Cir.
1990)
Id.
(internal
quotation
marks
omitted).
absolute
duty
for
federal
judges:
they
must
recuse
In
creating
this
duty,
Congress
28 U.S.C.
placed
the
(1994).
I thus disagree with the majoritys unwarranted imposition
of a timeliness requirement that shifts the burden of bringing
forward recusal grounds under 455(b)(2) from the judge to the
litigants.
That
decision
flies
43
in
the
face
of
the
plain
language
and
thwarts
455(b)(2).
the
clear
congressional
purpose
of
See
United States v. Lindsey, 556 F.3d 238, 246-47 (4th Cir. 2009).
Even accepting that timeliness plays some limited role under
455(b)(2),
further
disagree
with
the
majoritys
conclusion
grounds with which the judge was already well aware) within a
reasonable time after being presented with voluminous discovery
that
had
been
(DuPont).
impeded
by
E.I.
DuPont
De
Nemours
&
Company
litigation
para-aramid
fiber,
with
Akzo
Twaron,
N.V.,
including
which
a
sold
case
filed
competing
in
the
In that
(now
McGuireWoods)
and
(Fitzpatrick Cella).
Fitzpatrick,
Cella,
Harper
&
Scinto
2009,
DuPont
instituted
this
action
against
Kolon,
recounts,
issued
prior
the
brief
district
notice
partnership
at
judge,
through
informing
the
McGuireWoods
As the
the
clerk
parties
of
the
instructed
the
and
of
Kolon filed an
August
2009,
early
in
discovery,
Kolon
sought
access
to
that
documents
it
had
no
from
the
Akzo
litigation.
Kolon
and
documents.
was
again
informed
Undeterred,
that
after
the
45
McGuireWoods
close
of
possessed
discovery
no
Kolon
served
subpoena
on
Fitzpatrick
Cella,
which
revealed
that
The
that
he
had
no
recollection
whatsoever
(J.A. 689).
of
any
As the majority
The district
46
[w]here
in
private
practice
[the
judge]
served
as
concerning
the
matter.
28
U.S.C.
455(b)(2).
28 U.S.C.
majoritys
I disagree.
timely-filing
requirement
is
misconstrued
Assn,
377
F.3d
345,
350
(4th
Cir.
2004).
It
is
well
terms.
could
requirements.
Cir. 1980).
120
(5th
not
be
plainer;
it
forth
no
procedural
Cir.
1982)
(noting
that
even
after
statutory
Congress
omission
of
any
reference
to
additional
signals
required
under
mandatory
recusals
accepting
that
that
455(b).
may
not
waiver
and
timely-filed
First,
be
waived
timeliness
455(e)
by
the
are
motion
is
provides
parties.
distinct
not
that
Even
issues,
United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989), the
non-waiver of 455(b) recusals reinforces the mandatory nature
of the section; if the presiding judge has a triggering event
under 455(b), the judge is disqualified and must recuse even
if the parties oppose his recusal.
49
yet
another
signal.
[n]otwithstanding
the
That
statutes
provision
preceding
states
that,
provisions,
if
455(b)(4),
divests
himself
455(f).
the
or
This
judge
may
herself
provision
of
remain
in
the
the
interest.
represents
Congresss
case
28
if
he
U.S.C.
response
to
provision
specifically
efficiency
to
of
455(b).
this
are
less
one
The
area
fact
suggests
important
than
that
Congress
that
timeliness
ensuring
spoke
that
and
the
Health
(1988).
Acquisition
Corp.,
486
U.S.
847,
858
n.7
serves
to
removing
Put
Servs.
Liljeberg
increase
even
simply,
the
public
confidence
appearance
avoiding
the
of
in
the
impropriety
appearance
of
or
judiciary
by
partiality).
impropriety
is
as
50
These codes
system
that,
is
based
upon
the
notion
when
the
judge
has
judge
will
recuse
urging by a party.
himself
or
herself
regardless
of
any
directed to the judge, rather than the parties, and is selfenforcing on the part of the judge.
Thus,
if
section
the
455,
herself.
judge
that
is
aware
judge
has
Id. at 868.
of
a
duty
to
for
recusal
recuse
under
himself
or
51
shall
has a
or has
to or
render
on the
Cir. 1980). 5
the
majority,
responsibility
from
the
judges
to
the
litigants when that duty and responsibility should lie with us.
As the Federal Circuit has explained:
Application of a timeliness requirement requires a
fixed point or bench mark from which the timeliness or
untimeliness of an action can be measured (e.g. 10
days after event X; before event Y). There is no such
provision anywhere in section 455.
Nor could there
be.
The statute deals only with action of a judge.
It has nothing to do with actions of counsel.
Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1418 (Fed.
Cir. 1989) (emphasis added).
Finally, to the extent one insists that timeliness should
play a role in recusal, I agree with Kolon that the role should
be tied to equitable considerations and limited in scope.
In
proscribe
completed
motions
trial
and
that
would
chastised
have
parties
invalidated
that
would
fully
sit
on
52
where a party learns of information that the judge does not (or
may
not)
possess
litigation
equity.
but
then
strategymakes
sits
sense
on
as
that
information
matter
of
as
fairness
a
or
to start over has rested not on the mere passage of time, but
on
the
events
equity/fairness
that
had
occurred
considerations
in
and
deciding
the
balancing
whether
to
of
expunge
1419.
Applying such a limited rule here leads inescapably to the
conclusion that Kolon acted in a timely fashion.
As recounted
the district court was aware that Kolon was pursuing discovery
of
the
Akzo
litigation.
Given
these
circumstances,
Kolons
majority
reaches
the
opposite
conclusion
by
In my view, Owens
like
provides
this
that
proceeding
in
questioned.
one,
involving
455(b).
shall
disqualify
judge
which
his
impartiality
28 U.S.C. 455(a).
Section
himself
might
455(a) 7
in
reasonably
any
be
under
455(a),
see
Newport
News
Holdings
Corp.
v.
54
Virtual City Vision, Inc., 650 F.3d 423, 432 (4th Cir. 2011);
United States v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008).
Conversely, of more relevance here is United States v. Lindsey,
556 F.3d 238, 246-47 (4th Cir. 2009).
judge
Assistant
had
previously
worked
as
an
United
States
motion,
potential
recusal
Although
the
recusal
was
the
district
participation,
participation
of
and
at
no
that
thus
the
criminal
district
judge
one
time
required.
judge
was
brought
is
Id.
defendant
under
unaware
it
to
nonetheless
at
247.
the
455(b)(3).
of
his
raised
his
prior
attention,
his
undisputed,
and
In
reaching
this
district
fell
judge
within
455(b),
recusal
was
required
raised
early
enough
in
the
litigation
that
no
prejudice
point.
The
district
judge
knew,
from
outset
of
As discovery began,
the judge had before him multiple requests from Kolon to look
into the Akzo litigation and pleadings and filings, indicating
that the Akzo litigation was central to Kolons defense on the
merits of the trade secrets claims.
56
judge
to
self-enforce
those
statutory
provisions. 10
To
the
raising
the
issue
in
July,
prior
to
trial
on
the
trade
secrets claims.
At the end of the day, the majoritys determination that
Kolons recusal requests were untimely means that a district
judge who, by the majoritys own determination, is no longer
permitted
secrets
to
conduct
claims,
further
presided
proceedings
over
trial
involving
that
ended
the
in
trade
a
one
concluded
that
Kolons
request
is
appropriately
10
57
under 455(b)(2). 11
In In re
Rodgers, 537 F.2d 1196 (4th Cir. 1976), the criminal defendants
were charged with using illegal means to procure the passage of
a
racetrack
judges
consolidation
former
individuals
who
law
firm
were
not
bill
had
in
Maryland.
represented
criminally
The
presiding
separate
charged
but
group
of
engaged
in
The
Id. at 1198.
11
58
Id.
evidence
of
matters
served as a lawyer.
in
Id.
which
the
judges
former
partner
923 F.2d 731, 733-35 (9th Cir. 1991) (finding 455(b)(2) matter
in
controversy
requirement
satisfied
when
judges
former
law
is that DuPont made public many of these secrets during the Akzo
litigation.
of
fact
and
excluded
reversible
this
error.
all
deposition
and
evidencean
See
excerpts
Trade
exclusion
Secrets
we
Case
The district
today
at
summaries
rule
14-15.
was
This
DuPont
contendsat
least
as
to
this
appealthat
the
of
the
trade
secret
claim
from
the
antitrust
Thus, the
remand
judge.
for
new
proceedings
I therefore dissent.
60
before
different
district