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Kolon Industries Incorporated v E.I. DuPont De Nemours & Company

Case No. 12-1587 (C.A. 4, Apr. 3, 2014)

In this Sherman Act case, we review the district court’s grant of summary judgment in favor of Defendant-Appellee E.I. du Pont de Nemours and Company (“DuPont”). We also consider challenges by Plaintiff-Appellant Kolon Industries Incorporated (“Kolon”) to certain of the district court’s discovery rulings and its denial of Kolon’s recusal motion. Finding no reversible error, we affirm.

I.



A.



The merits of this case concern Kolon’s claim that DuPont attempted to wield, or did wield, monopoly power over the U.S. para-aramid fiber market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. Para-aramid is a strong, complex synthetic fiber used in body armor, tires, fiber optic cables, and a variety of other industrial products. Three para-aramid producers--DuPont, Teijin Aramid (formerly a division of the Dutch company Akzo N.V.), and Kolon--sell their para-aramid fibers to U.S. consumers.

DuPont invented para-aramid fiber in 1965, and for a period controlled the entire U.S. para-aramid market with its Kevlar© fiber. Teijin introduced its competing Twaron© fiber to the U.S. market in 1987 and has chipped away at DuPont’s share of that market every year since 1990. According to one of Kolon’s expert witnesses, during 2006-2009 (the relevant time period), DuPont’s share of the U.S. para-aramid market (the relevant geographic and product markets) fell from a high of 59% in 2006 to 55% in 2009, with most of this loss going to Teijin.

The U.S. para-aramid market is highly concentrated between Dupont and Teijin, which together account for 99% of U.S. sales. This extreme market concentration owes at least in part to the industry’s high entry barriers. As Kolon showed, para-aramid production is time-intensive and expensive, and potential customers test and “qualify” each para-aramid product to ensure it meets their particular needs, a process that typically takes six months to three years. In addition to this evidence of market concentration and high barriers to entry, Kolon adduced evidence that DuPont, despite Teijin’s encroachment, earned profit margins of as high as 75% between 1997 and 2005 and had the ability to price discriminate among its customers.
 

 

Judge(s): Albert Diaz
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Antitrust , Civil Procedure
 
Circuit Court Judge(s)
Andre Davis
Albert Diaz
Dennis Shedd

 
Trial Court Judge(s)
Robert Payne

 
Appellant Lawyer(s) Appellant Law Firm(s)
Daniel Goldman Paul Hastings LLP
Stephen Kinnaird Paul Hastings LLP
Samer Musallam Paul Hastings LLP
Jeff Randall Paul Hastings LLP
Igor Timofeyev Paul Hastings LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
David Cross Crowell & Moring LLP
Kent Gardiner Crowell & Moring LLP
Jeffrey Poston Crowell & Moring LLP
Adam Charnes Kilpatrick Townsend & Stockton LLP

 

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Click the maroon box above for a formatted PDF of the decision.
throughout discovery, to enable its experts to perform requirement in the former despite the absence of such in the recusal under § 455(b) as a mandatory proposition. timely raising of it. if timeliness was as important in all § to remain on the case if he has devoted substantial time to the f.2d at 121 (internal quotation marks omitted). “congress did from mcguirewoods of rent for furnishings. because mcguirewoods permitted to conduct further proceedings involving the trade white bag, 579 f.2d at 1387. 455(b) runs contrary to statutory design, effectively relieving favor of any adverse party, such judge shall proceed unlike the plaintiffs in dentsply and lepage’s, kolon united states v. grinnell corp., 384 u.s. 563, 576 (1966). the ultimately, in light of dupont’s reduced market share and to fitzpatrick cella, was not highlighted, but was part of a share of the line of commerce affected.” tampa elec., 365 u.s. 57 market concentration and high barriers to entry, kolon adduced demonstrate that the conduct had “a negative impact on f.3d at 453 (quoting m & m med. supplies & serv., inc. v. argued: stephen blake kinnaird, paul hastings llp, washington, judge’s prior partnership at mcguirewoods and instructed the 33 defendant – appellee. notice . . . for [a] replacement deposition notice that it during the relevant period and had failed to prevent teijin’s rule of civil procedure 30(b)(1) and rule 30(h) of the local requesting a copy of the akzo complaint, and the judge’s on overall competition, noting that teijin’s “relentless applying these standards, the district court held that requesting the recusal of certain judges. that the burden to dupont was minimal because it requested only 30 power and (2) willfully acquires or maintains that power. power through the use of long-term, multi-year, exclusive supply (7th cir. 1985) (observing that “our decision [in sca services] kolon's recusal requests were untimely means that a district result, we included neither a citation to owens nor a discussion agreements with key product distributors could deny efficient from dupont’s counsel, mcguirewoods, stating that dupont agreed his recusal. for another, dupont’s initial withholding of the transaction-level sales and cost data, concluding that this 58 overseeing discovery and will not disturb its discovery rulings. the matter in controversy, or a lawyer with whom he dupont’s claims by contending that dupont had publicized the nearly a year later, on july 20, 2011, kolon filed a e. we next consider kolon’s challenges to certain of the imply a quasi-jurisdictional limitation on a judge’s authority implied.” 902 f.2d at 1155. previously practiced law served during such association as a require a formal filing raising a judge’s bias or prejudice and arrangements substantially foreclosed the entire relevant market system” as is a potentially biased judge. delesdernier, 666 of whether any delay was caused by gamesmanship or whether it information into a “single spreadsheet.” id. i dissent. federal judges have an “absolute duty . . . to mandatory recusal is not waivable by the parties. 28 u.s.c. present, thompson everett, inc. v. nat’l cable adver., l.p., 57 roughly 59,000 page production. a legislative determination that “timeliness and efficiency are 40 recusal under § 455(b) directly undermines that legislative judiciary is upheld.” dissent at 50. as with the waiver exploration & prod. co., 690 f.3d 282, 291 (5th cir. 2012). 4 parties. see 28 u.s.c. § 455(e) (“no [judge] shall accept from at the time of the akzo case, the district court judge was a foreclose access to a market), we agree with the district court during the relevant time period. by contrast, kolon was able to parties’ oft-overzealous desires to keep certain purportedly iii. the disqualification issue at a reasonable time in the before this court, i now address whether recusal was required that kolon’s requested transaction-level data would have been no the limitations of unfairness.” id. (internal quotation marks omitted). documents. undeterred, after the close of discovery kolon ascendance” fatally undercut that claim. id. finally, the (fitzpatrick cella). during the time of the litigation, the latter. unlike § 455(a), § 455(b) may not be waived by the c. for the foregoing reasons, i would vacate summary judgment shutdown injunction. such a result does not, i think, inspire 2010 and was again informed that mcguirewoods possessed no from any existing database,” appellant’s br. at 43 (emphasis judge or such lawyer has been a material witness resulting from dupont’s supply agreements, meaning there was no reason[]” for omitting a timely-filing requirement in § 455(b) regarding that motion, on january 11, kolon insisted that a the district court further denied kolon’s request to depose a anticipating kolon’s potential encroachment, dupont began be. the statute deals only with action of a judge. the point. the district judge knew, from the outset of past cases, however, are not controlling, particularly because i begin with a brief recitation of the pertinent facts. required. “particularly well-suited for rule 56 utilization” due to the section 455(b) provides that recusal is mandatory, inter was required, at the very latest, by july 2011, prior to the 60 attempted to quantify foreclosure of the entire relevant market, our dissenting colleague warns that our decision as to those documents contained the judge’s name; dupont’s counsel 120 (5th cir. 1982) (noting that “even after” statutory matter and divests himself of the interest8 1421 (fed. cir. 1989) (finding no strict timeliness requirement (e.g., high barriers to entry, ability to price discriminate, the court, kolon’s counsel explained that the source of its at mcguirewoods at the time of the akzo litigation was public 28 u.s.c. § 455 (1970 ed.). 55 6 requirement. nonetheless, for purposes of this case, i accept that the akzo litigation was central to kolon’s defense on the overwhelmingly found a timely filing requirement to be implied diaz, circuit judge: recuse” from the trade secrets case, apparently referring to the appeal, were severed from the trade secrets claims in september district court’s mandatory recusal in the trade secrets claims 7 knowledge when kolon first sought discovery of the akzo case the ability to price discriminate among its customers. lindsey, 556 f.3d 238 (4th cir. 2009), cuts against imposing a first, as discussed above, dupont’s alleged anticompetitive submitted to the court.” (j.a. 12-1260 at 13347). the district of evidence of matters in which the judge’s former partner case and prior to severance of the antitrust claims,1 reasonable.” id. at 237. the hurdle for invoking the canon is cir. 2005) (§ 455(b)); stone hedge props. v. phoenix capital appellee. 43 legitimately be asked whether the spectacle of an attorney less important than ensuring that the impartiality of the on the relevant area of effective competition, taking thus, if the judge “is aware of grounds for recusal under with whom [the judge] previously practiced law served during motions--filed on grounds described below--for recusal and the statute’s purpose or language. (“[c]laims involving greater than 50% share should be treated as claim. united states v. lindsey, 556 f.3d 238, 246-47 (4th cir. 2009). judge to self-enforce those statutory provisions.10 participation at that time is nonetheless undisputed,” and 58. in kolon’s view, owens “more likely” involved a situation plaintiffs prevailed in the underlying case). inquiry, provides that “[any judge] of the united states shall judgment on kolon’s attempted monopolization claim. and contacting only a small percentage of potential customers as forward recusal grounds under § 455(b)(2) from the judge to the separately, culminating in a $919.9 million jury verdict for its notice to the parties informing them of the judge’s court judge, then a partner at mcguirewoods, a letter confirming assigned to hear such proceeding. meanwhile, only two circuits have refused to read in a district judge fell within § 455(b), recusal was required 28 u.s.c. § 455(b)(2), the provision on which kolon relies, case. for instance, in york, 888 f.2d at 1055, cited by the inquiry here. even the plain meaning of a statute is not court found that dupont actually possessed significantly less competition in a substantial share of the line of commerce effective competition,” tampa elec., 365 u.s. at 329--was it has nothing to do with actions of counsel. *18. akzo case was not the only (or even necessarily the strongest) § 2 monopolization inquiry. because kolon failed to raise a different enough to explain the presence of a timeliness this extreme market concentration owes at least in part to the makes and files a timely and sufficient affidavit that it improper, in his opinion, for him to sit on the file it within such time. a party may file only one made similar representations with respect to the files’ requirements.” united states v. sibla, 624 f.2d 864, 867 (9th untimeliness of an action can be measured (e.g. 10 and which, though falling short, nevertheless approach so close commerce” in the entire relevant market was foreclosed by disqualification in both the antitrust and trade secrets cases. a. demonstrated substantial foreclosure, it must then also cables. according to kolon, dupont then undertook a strategy of while kolon’s arguments do not entirely lack merit, we filed by dupont, and which was ultimately resolved pursuant to a settlement that restricted akzo’s exports to the united states-- antitrust cases,” oksanen v. page mem’l hosp., 945 f.2d 696, 708 455(b)(2), i further disagree with the majority’s conclusion dragging his opponent through a long and costly proceeding, only conversely, of more relevance here is united states v. lindsey, again, we see no cause to disturb the district court’s impartiality of the judiciary is upheld. litigation was not “sufficiently related” to the instant action paul hastings llp, new york, new york; jeff g. randall, igor v. 38 material fact sufficient to sustain either its attempted or to any specific provision of that section. in owens, the court judge determined that he had no recollection of the j., in chambers); united states v. murphy, 768 f.2d 1518, 1539 monopolization are also satisfied.”)). and kolon notes that id. at 329. "at the end of the day," he writes, our "determination that that recusal be raised in a timely fashion by the parties, but agreements, noting that it entered into only twenty-five district court’s discovery rulings. we review such rulings for furthermore, this evidence falls short of showing dupont’s party’s delay in filing. as the fifth circuit explained, judge’s former law firm had represented a separate group of responsibility [for recusal] from the judges to the litigants.” days’ advance notice of a deposition, and federal rule civil exclusionary conduct should apply to both monopolization and the affidavit shall state the facts and the reasons similar lobbying efforts. the criminal defendants thus argued its ruling. finally, kolon became aware of the judge’s direct (if even to the identified market segments) was necessary to achieve of a motion is further undercut by the existence of 28 u.s.c. owens, 902 f.2d 1154, 1155 (4th cir. 1990).6 communication with fitzpatrick or of any involvement in the akzo herself.” id. at 868. while these provisions “may be asserted tardy § 455 objection). monopolized and attempted to monopolize the u.s. para-aramid 19 such association as a lawyer concerning the matter.” 28 u.s.c. involvement in the akzo case and failed to alert the court of more relevant than the aggregate data dupont had theretofore dupont during the relevant period. appellee’s br. at 38. in participation, and no one brought it to his attention, “his the court also concluded that kolon had “put forth no the district court judge then ordered dupont to produce any the district judge’s may 2009 disclosure of a financial the scenario we address here arises only when a judge 6 stringent timeliness requirement and that kolon simply waited u.s. market in 1987 and has chipped away at dupont’s share of a separate recusal statute, 28 u.s.c. § 144, provides “waiver and timeliness are distinct issues.” york, 888 f.2d at competition,” united states v. dupont, 351 u.s. at 391, or was case before the court consists of more than the charges brought had supply agreements--many of which were non-exclusive--with typical durations of two years or shorter. meanwhile, none of interpreting only § 455(a), see delesdernier, 666 f.2d at 121,8 case before the district court’s issuance of an adverse ruling 35 grant of summary judgment in favor of defendant-appellee e.i. du the customer from informing the competing seller of dupont’s market share foreclosed). likewise, although kolon’s “critical f.3d 1317, 1322 (4th cir. 1995). scheduled, and the jury returned a $920 million dollar verdict court’s grant of summary judgment on its two antitrust claims--a genuine issue of material fact as to either prong, summary 10 customers test and “qualify” each para-aramid product to ensure with the plain language.” u.s. dep’t of labor v. n.c. growers para-aramid fiber, twaron©, including a case filed in the dupont notes that the majority had no supply agreement with thus “a very high one.” id. the fact that there is a “plausible motion is required when recusal is implicated under § 455(a), penetrate the u.s. market to kolon’s own shortcomings. more useful than the aggregate sales and cost data dupont had litigants when that duty and responsibility should lie with us. inferences therefrom in the light most favorable to kolon, the grounds with which the judge was already well aware) within a (1988). see also delesdernier, 666 f.2d at 121 (noting statute for the fourth circuit established that when the statute’s language is plain, the sole been a material witness, or is so related to or amendments in 1974 “§ 455 still contains no explicit procedural quite simply, this percentage falls significantly short of where result in a disposition that no reasonable person could even if kolon had presented a triable issue on the have on effective competition therein. (1994). before it finally filed its first recusal motion, in november although exclusive dealing agreements are not per se secrets claims, presided over a trial that ended in a one blanket prescription, we decline to read owens’s timeliness more quickly than the antitrust case, before the same district § 455 includes a timeliness requirement. kolon indus., 846 f. pipelines necessary to permit it to compete profitably”). states, 387 f.3d 329, 361 (4th cir. 2004) (en banc) (motz, j., verdict in favor of the nonmoving party. anderson v. liberty abuse of discretion, which may be found where “denial of in the trade secrets case. in that memorandum, kolon stated under § 455(b)(2).11 the presiding judge has a personal bias or prejudice regarding a that 3m’s bundled rebate agreements with superstores like k-mart judges with no enforceable duty to remove themselves from cases connected with any party or his attorney as to render efficiency are less important than ensuring that the acquisition corp., 486 u.s. 847, 858 n.7 (1988)). in our view, filed an amended counterclaim, followed by a second amended after [its] knowledge of the facts.” id.9 washington, d.c., for appellee. on brief: daniel b. goldman, a party discovered, for instance, financial information that the observed, dupont’s market share had been in steady decline for is “judicially implied in § 455.” 902 f.2d at 1155. given that inapposite here. 44 § 455(b) (“[any judge] . . . shall disqualify himself . . . .”), of a timeliness requirement that shifts the burden of bringing motion or otherwise objected to the judge’s continued of that same practice, and because customers requested them. certificate of good faith, and timely filed, another judge will district of virginia by “failing to give reasonable written have a recusal motion before him in that case. three days bottom of the range for a finding of monopoly power). this decline in dupont’s market share, combined with 248, at 31. kolon filed no separate motion for recusal in the id. at 59. involvement in that litigation. (j.a. 689). as the majority ruling we review de novo, viewing all facts and reasonable (internal quotation marks omitted). section 455 “serves to no further therein, but another judge shall be even viewing all evidence in the light most favorable to memorandum opposing one of dupont’s proposed jury instructions “[t]imeliness is an essential element of a recusal motion,” and f.3d 152, 155-56 (5th cir. 1995). the statute was amended in had a “dangerous probability” of successfully achieving monopoly not subvert that legislative intent merely because a party dispute. in any event, while we certainly agree that our we recognize that kolon filed its motion to recuse in this 56 the party seeking recusal in owens did not specify which we reversed, holding that kolon had adequately pleaded both its had extended it for completion of its depositions. j.a. 2715. judges absent action by a party. indeed, our entire recusal more than a “tangential” relationship. it meets their particular needs, a process that typically takes attempted to wield, or did wield, monopoly power over the u.s. we first consider kolon’s challenge to the district court’s judgment as a matter of law in the trade secrets case, counsel individuals who were not criminally charged but engaged in application of a “timeliness” requirement requires a iii. particularly with an eye toward other firms’ (in)ability to practices which would, if successful, accomplish monopolization, (4th cir. 2011). accordingly, kolon believes owens merely resolved that a timely whenever a party to any proceeding in a district court foreclosure in those segments, which the court characterized as controversy, the mere involvement of the judge’s former law 18 discretionary ruling. while kolon attempts to pin blame for the federal judiciary’s ethical obligations . . . .” id. we should to the proceedings.” united states v. cherry, 330 f.3d 658, 665 2011. on this record, kolon quite clearly failed to “raise the occasion, see schurz commc’ns, inc. v. fcc, 982 f.2d 1057, 1060 filed its recusal motion in the antitrust case. so while view that timeliness is irrelevant to § 455(b) cases because anticompetitive, arguing that dupont entered these agreements not itself sufficient to prove that dupont possesses “monopoly accounting for only a small percentage of its u.s. revenue. of been filed very late in the discovery period, without adequate second, kolon has not raised a genuine issue that dupont tampa elec., 365 u.s. at 328). once a plaintiff has judgment on the antitrust claims. here. rather, kolon moved for the district judge’s recusal (on section 455, that judge has a duty to recuse himself or of october 2009. meanwhile, dupont defends its supply matter in controversy. in reality, this litigation is all the that “when monopolization has been found the defendant provides that any judge of the united states shall disqualify 45 trade secrets case at that time, but did briefly reference (4th cir. 1974). although there is no fixed percentage market of judgment” is one of four factors in determining if request despite the text’s silence. see, e.g., am. prairie constr. co. into account the relative strength of the parties, the 8 of substantial foreclosure.” id. at *15. nearly a year. “critical bridge” cases foreclosed the plaintiffs’ access to earlier. for the first time on appeal of the denial of his 18 verdict in the trade secrets case, and two days before motions under § 455(a) in which the judge’s “impartiality might [have] the district court for further proceedings. e.i. du pont de the outcome of the proceeding.” to kolon. in so doing, we have done our best to honor the and integrity require that we not reward a party’s tactics in its view, embrace this “critical bridge” approach. see united kolon, we agree with the district court that dupont did not discovery would significantly burden dupont and would not be any u.s.c. §3582(c) motion, the criminal defendant raised the educ., 530 f.2d 567, 574-75 (4th cir. 1975)). it did not. 4 iv. canon 3c (1987).” liljeberg, 486 u.s. at 858 n.7. these codes has since called that decision into question on more than one provides that a judge “shall disqualify himself in any 1 at the end of the day, the majority’s determination that parties from agreeing among themselves to abrogate section suggestion is hardly the only piece of relevant legislative when party learned of information prior to judgment but recusal beyond percentage market share, “some courts have also that fact until it eventually produced its privilege log in leaving open that question with respect to § 455(b). himself that the language is more susceptible to a requirement that the its former market dominance. basis for kolon’s eventual § 455(b)(2) recusal motion: if, as particularly considering the district court’s “wide year worldwide production shutdown injunction." dissent at 57 uncontested facts demonstrate that dupont has experienced a successful monopolization by dupont. six months to three years. in addition to this evidence of supp. 2d at 522 (citing, inter alia, united states v. owens, 902 focused on the durability of the defendant’s market power, this appeal and the companion appeal, e. i. dupont de nemours & position that the judge should not have ruled regarding the proceedings. see docket no. 1813, at 19. and in its reply so, and our friend in dissent believes that decision “end[s] our lepage’s based on the fact that the defendants in those in an affiliated entity, and continued to receive small payments appeal); apple v. jewish hosp. & med. ctr., 829 f.2d 326, 334 observed, unlike with dentsply’s and 3m’s agreements that those agreements, dupont says, only a portion obligated the § 455(b) and is not required by our precedent. this case proves beginning of the term at which the proceeding is to be august 2010. for one, the judge’s direct involvement in the actual monopolization claims. untimely where information was learned prior to trial but not honor in the earliest stage of the akzo litigation.” kolon 14 supply agreements. finally, the district court granted summary that notwithstanding the absence of an explicit timely-filing partner at mcguirewoods. as a result, he was a limited partner although kolon maintains that the five-days’ notice was power during the relevant period. as the district court month, dupont produced approximately thirty boxes of documents, may not) possess but then sits on that information as a the majority compounds its error by requiring not only significantly limited[.]’” dupont i, 637 f.3d at 451 (quoting amounts, price, cost, margins, and profits. and even if dupont the quiver of advocates in the face of [anticipated] adverse disqualify himself in any proceeding in which his impartiality first consider kolon’s argument that the district court judge district court has already disclosed (without objection) such noted then that he did not believe grounds for disqualification single provision of § 455(b). the fact that congress spoke law partner (and some of the clients) testify as to the means the judge enforcement, 543 u.s. 335, 341 (2005). published while we do not necessarily share the district court’s view judicial economy concerns, and, importantly, it is limited to a to “totally declassify all trial exhibit documents, all proposed the supply agreements as a competitive response to teijin’s use reasonably be[en] questioned,” not a § 455(b)(1) scenario information as overly broad and unduly burdensome, but gave as the parties and the district court have acknowledged, proceeding in which his impartiality might reasonably be document should be in native format from “any existing recusal might be appropriate, in july 2011, and over a year severance of the trade secret claim from the antitrust participation in the case. genuine issue of material fact on either prong, concluding that here--just as with a § 455(a) recusal, for example--the 528 (quoting united states v. detemple, 162 f.3d 279, 286 (4th dupont i, 637 f.3d at 450 (identifying 70% market share as the materials in the antitrust case in august 2009. given kolon’s requirement, and that the district court acted within its even though “dupont’s market share declined slightly over the 515, 519 (e.d. va. 2012) (quoting 3:09-cv-58, docket no. 1247) a judge with a financial conflict of interest under § 455(b)(4) indus., inc. v. e.i. du pont de nemours & co., 846 f. supp. 2d further recounts, the judge refused to rule on recusal until the majority misapprehends the importance of lindsey. 16 in keeping with that end, our sister circuits have responsive facsimile cover sheet, with the complaint attached. obligation to identify the existence of those grounds upon the synthetic fiber used in body armor, tires, fiber optic cables, at 166 (noting that where “a firm has been attempting to exclude a. 7, 27-28. kolon submits that despite the relatively low number finally, to the extent one insists that timeliness should above: the may 1985 letter from mr. fitzpatrick to the judge lacking, and that the language under that provision is similarly party raise the issue with the judge and that such a requirement “scant at best,” did “nothing to reveal the amount of motion is timely only if raised “at the earliest moment after fewer than half of its identified “key” customers within those 3 stands alone”). the federal circuit has also declined to impose lack of durable market power, the evidence cannot sustain a jury the judge took no further action on the issue. kolon filed an in a vacuum. recall that kolon’s antitrust claims arose as a u.s. commercial para-aramid customers, kolon contends that the case files and to produce responsive documents. later that 32 probability of success” prong, kolon maintains that even if made in good faith. inadequately investing in product offerings and supply capacity, does not violate antitrust laws unless its probable effect is to one of the entries on the privilege log showed that in may kolon’s motion as untimely. served on october 21, 2011,” and had wasted the time the court recusal issue was not raised until appeal, there is no (continued) a. conclusive “in the rare cases [in which] the literal application would result—is incompatible with the language and purpose of issue in this case. but we should not ignore the harm that would ensue if litigants counterclaim to dupont’s trade secrets action, which proceeded 8 to this end, we require parties to file a corporate district judge engaged in actual bias or impartiality in this foreclosed access to distribution networks shown to be necessary consider whether kolon complied with that requirement by within its discretion in denying kolon’s recusal motion on dupont on september 14, 2011. the court then formally severed requested, which included all transaction-level details fibers to u.s. consumers. our precedent establishes that the “matter in controversy” in that line have yet to address § 455(b).6 judge who . . . is no longer permitted to conduct further course, something greater than market power under § 1.”). to reach many end-customers, “the record presents no reason to and (b) or solely to [sub]section 455(a).” appellant’s br. at § 455(b). appellant’s br. at 60 (quoting united states v. litigation, dupont was represented by mcguire woods & battle judgment to dupont on both sherman act claims, dismissing them 28 u.s.c. § 455(a), which also has some relevance to our according to dupont, kolon undertook only a “feeble effort” to the timely filing requirement, as implemented by i would thus vacate the summary judgment order in this appeal characterize its behavior as predatory”)). on the “dangerous that kolon failed to satisfy. kolon maintains that the district attorney on the criminal defendant’s case more than a decade dupont had shown that production of the requested documents judge. in that case, the judge issued a series of rulings pont de nemours and company (“dupont”). we also consider *12 (e.d. va. apr. 5, 2012). “in fact,” the court observed, this language, kolon submits, does not control here because aramid customers. dupont moved, under federal rule of civil violated local civil rule 30(h), which generally requires eleven 48 12 § 455(e). the majority concludes that, although not waivable, a challenges by plaintiff-appellant kolon industries incorporated disqualification . . . [of the judge] at the earliest moment f.2d 1154, 1155 (4th cir. 1990)). accordingly, because kolon discovery has caused substantial prejudice.” nicholas v. potential conflict in may 2009, when the clerk of court issued element by alleging that dupont had controlled over 70% of the affirmed by published opinion. judge diaz wrote the opinion, in the supreme court has never found a party with less than 75% in addition, i believe a timely-filing requirement subverts rather, dupont introduced unrebutted evidence that it entered in the trade secrets case, beginning in april 2010, kolon relevant market, at the summary judgment stage the district market.” white bag co. v. int’l paper co., 579 f.2d 1384, 1387 trade secrets case, the parties came to a head over kolon’s litigation. kolon said nothing more then about the issue. agreements with twenty-one u.s. customers, collectively 5 district court denied kolon’s initial requests for this § 144. that statute provides: but denying kodak’s requested relief due to its unreasonably it learned of the alleged conflict, the district court denied end our inquiry.3 conclusion. “[t]he fact that there are significant entry discretion when it denied kolon’s recusal motion on timeliness a slippery slope. it can lead to judicial revision of public and defense of the trade secrets case and its maintenance of the trial. in this case the judge was, at all times, aware of the § 455(b)(2). in creating this duty, congress “placed the nemours & co. v. kolon indus., inc. (dupont i), 637 f.3d 435 accepting that “waiver and timeliness are distinct issues,” judge who bears even the slightest appearance of partiality. prices or exclude teijin from entering the market. and even if commerce affected.” tampa elec. co. v. nashville coal co., 365 “forecloses recourse to the absurdity canon.” little v. shell percentage of customers foreclosed cannot resolve the inquiry to kolon in the antitrust case. first, the district court 39 § 455(b)(2). it is also inconsistent with our precedent. see “strategically entered into supply agreements with high-volume the “matter in controversy” because it was not the “actual case 917, 920-21 (11th cir. 1997) (§ 455(b)); york, 888 f.2d at 1053- misplaced. there is nothing absurd about my reading of verdict for dupont. this had all transpired by the time kolon designated lower amount than dupont’s existing price, prohibited to harmonize § 455 with existing law by “clarify[ing] and concluded separately, however, that the trade secrets verdict by the text is not absurd2 have supply agreements with dupont.” kolon, 2012 wl 1155218, at a formal § 455 filing requirement, but in doing so created what achieving it.” id. at 24 (citing cases finding monopoly power district judge spoke with co-counsel from fitzpatrick cella on against the interests of fairness and efficiency served by the i. worldwide litigation with akzo n.v., which sold a competing 1 goal.7 controlled the entire u.s. para-aramid market with its kevlar© evidence” that dupont’s supply agreements had a negative effect relevant communications does not explain why, after its eventual 2. which ultimately comprised only the two documents described finally, we consider kolon’s challenge to the district concern was the may 1985 letter from mr. fitzpatrick to the equally detrimental to public impressions of the judicial § 455(b)—as discussed infra, given the purpose of the statute, silent on whether a party seeking recusal must timely file a and its denial of kolon’s recusal motion. finding no reversible scenario in owens could certainly speak to § 455(a)’s concern the dissent also contends that our decision today “pivots heard, or good cause shall be shown for failure to court erred by relying on owens, in which we said that 6 judge later entered a twenty-year worldwide production shutdown 36 power, kolon pointed to no affirmative evidence indicating a “agreement among courts of appeals on an issue . . . does not of conduct exist independently of § 455 and must be followed by two additional signals that a timely-filed motion is not is limited to recusals under § 455(a) and has no relevance to to 55% in 2009, with most of this loss going to teijin. its strategic use of supply agreements. justifying that order, timely-filed motion as a prerequisite to § 455(b) recusal should prevent waste and delay,” owens, 902 f.2d at 1156. meanwhile, majority, i believe our most relevant precedent supports the regulation: desk ed. § 3.02[2][c][ii]. and we have observed law has always endeavored to prevent even the probability of the policy rationale underlying owens’s timeliness requirement absent action by a party. this result cannot be squared with 2012 wl 1155218, at *14. the court concluded that since dupont 46 three-year period, that does not, as a matter of law, preclude a ruling in the alternative on the merits, the district court a “single spreadsheet” which it said could be “readily compiled interpretation of legal texts 234 (2012). but the canon “can be we recognize the countervailing interest in removing any parties with one opportunity per case to file an affidavit that protective order barring a rule 30(b)(6) deposition of dupont on dupont, the district court held that kolon failed to create a monopoly power, it does weigh heavily against such a finding. counterclaim, which was also dismissed for failure to state a this case falls squarely within the terms of § 455(b)(2) in both nor are we moved by the fact that parties may not waive high profit margins), a showing of dupont’s “market power” is subsections 455(b) and (e) create a “jurisdictional limitation v. the fact that the district court judge had been a partner bias or prejudice concerning” the defendant--the governor’s and then discovers that he has a financial conflict of interest provided, we nevertheless find that the discovery denial was a dangerous probability of successful monopolization. spectrum 2 formal motion for recusal was unnecessary. see docket no. 1843, shedd, circuit judge, dissenting: volume” customers. id. at *16-18. the parties to the proceeding a waiver of any ground for and a variety of other industrial products. three para-aramid that market every year since 1990. according to one of kolon’s after all, “[w]e do not lightly assume that evidence, so pertinent to kolon’s defense, makes akzo a matter in the akzo case, dupont was defended by the law firms of the akzo litigation. given these circumstances, kolon’s cir. 1989) (emphasis added). support in the statutory text of § 455(b). we note that textual dupont during the relevant time period. to determine substantiality in a given case, it is para-aramid fiber market in violation of section 2 of the by the government. it also includes the defense asserted by the [its] knowledge of the facts,” (majority op. at 22), regardless expert witnesses, during 2006-2009 (the relevant time period), that, according to kolon, presents a matter in controversy in conclusion that timeliness is not relevant under § 455(b).9 i thus disagree with the majority’s unwarranted imposition trial, appeal, or other proceeding therein. agreements as a competitive response to teijin’s use of such the majority also relies, in part, on the decisions of our presiding judge’s “long association” with the governor, who was when dupont produced the akzo files and privilege log. district judge below was a partner at mcguirewoods’ richmond to the total volume of commerce in the relevant market on the authority of a judge to participate in a given case,” generally held that a timely objection under the old § 455 was determined, the judge’s perceived allegiance to the west as to create a dangerous probability of it.’ ” dupont i, 637 3 section 455’s legislative history is murky at best. see united states v. whorley, 550 f.3d 326, 339 (4th cir. 2008). to hear a case, in our view, that limitation must be balanced district court that kolon failed to raise a triable issue of applies just as forcefully to § 455(b) as to any other recusal sister circuits imposing a timeliness requirement. of course, u.s. 320, 327 (1961). the court explained: responsible for the judge’s appointment to various offices. 902 judge. twelve years earlier as an assistant united states attorney. amounts to a de facto filing obligation under principles of partners--of which kolon was clearly aware--would have required as avoiding impropriety itself.” united states v. jordan, 49 disqualify himself in any case in which he has a rodgers, 537 f.2d 1196 (4th cir. 1976), the criminal defendants district of virginia, at richmond. robert e. payne, senior d.c., for appellant. david d. cross, jeffrey l. poston, crowell was not raised until five years later, well after judgment and executing multi-year supply agreements with high-volume that case, robinson did not learn of the judge’s prior equity/fairness considerations in deciding whether to expunge virginia of bribery, filed a motion for recusal based on the dupont’s supply agreements had not foreclosed a substantial dupont’s supply agreements. tampa elec., 365 u.s. at 329; see three year period rather than increased.” id. no. 12-1587 judge’s role in the prior litigation. moreover, at all times (reversing summary judgment, holding that dentsply’s exclusivity 25 sports, inc. v. mcquillan, 506 u.s. 447, 456 (1993). efficiency and impartiality. it does not address the concerns teijin’s corresponding ascendance and the fact that dupont was ass’n, 377 f.3d 345, 350 (4th cir. 2004). “it is well conclude that § 455(b), like § 455(a), includes a timely-filing rivals on some basis other than efficiency, it is fair to adversely affect competition, ‘the opportunities for other industry’s high entry barriers. as kolon showed, para-aramid 556 f.3d 238, 246-47 (4th cir. 2009). in lindsey, the district proportionate volume of commerce involved in relation majority, the court noted that a timeliness requirement served v. hoich, 560 f.3d 780, 789-91 (8th cir. 2009) (§ 455(a) and while the district judge was not made aware of the letter inc., 489 u.s. 235, 242 (1989) (alteration in original) also by a party to the action,” the primary duty remains with production is time-intensive and expensive, and potential fibers. in one such dispute, akzo sued dupont in the united 59 appellant’s br. at 31-32 (citing m & m med. supplies, 981 f.2d counterclaim, which occurred on september 21, 2011. thus, the not require each party in every appeal to file a motion be tied to equitable considerations and limited in scope. in not mean it would not have been very burdensome to compile the 10 and remand for further proceedings. of a statute will produce a result demonstrably at odds with the matter of law; in a footnote, it reminded the court of its united states v. werner, 916 f.2d 175, 178 (4th cir. 1990) in this sherman act case, we review the district court’s market.” dupont i, 637 f.3d at 450 (quoting white bag, 579 f.2d relevant period does not necessarily foreclose a finding of which senior judge davis joined. judge shedd wrote a dissenting the instant dispute. in the 1980s, dupont and akzo n.v., like that found in § 144. id. at 120. congress declined to do litigation, that his prior law firm was representing a client ruling, we do not address it. a telephone conversation in which fitzpatrick had asked the on remand, the district court tried the trade secrets claim rules for the united states district court for the eastern majority recounts, the district judge, through the clerk of appeal. see e.i. du pont de nemours & co. v. kolon indus., [a] proceeding.” recusal under § 455(b). in that context, everyone (the judge d. in sum, we conclude that following owens, recusals under 28 the antitrust claims, which are the subject of this having concluded that kolon’s request is appropriately too long in this case. i disagree. over voluminous discovery that did not highlight the district “kolon’s own expert takes the view that dupont had a maximum independently determines, even if wrongly, that he need not served a subpoena on fitzpatrick cella, which revealed that survive.” id. (internal quotation marks omitted). this action. kolon’s defense to dupont’s trade secrets claims 17 lawyer concerning the matter.” 28 u.s.c. § 455(b)(2). timeliness requirement we announced in owens. concerned primarily with parties’ gamesmanship after losing a supreme court has held that an exclusive dealing arrangement before shedd and diaz, circuit judges, and davis, senior circuit 9 during these inquiries, the trade secrets trial began as “dupont clearly lacks the power to control prices and exclude nor, in our view, is kolon’s untimeliness excused by the fill the factual gaps in kolon’s monopolization claim.” id. for kolon again requested that the district court judge recuse party motion as a condition precedent to enforcing section district judge. (3:11-cv-00622-rep) we first review the district court’s grant of summary or personal knowledge of disputed evidentiary facts concerning though the judge did not recall his participation in the earlier § 455(b)(4) requires recusal only where a financial interest not litigants. that decision flies in the face of the plain distribution networks rather than end-customers. we are not rulings.” in re kan. pub. emps. ret. sys., 85 f.3d 1353, 1360 provided; (2) the request remained “sweeping and extensive”; (3) such affidavit in any case. it shall be accompanied by reasonable under the circumstances, the district court acted grounds. to ‘start over’ has rested not on the mere passage of time, but the judge was aware that kolon intended to defend itself against u.s.c. § 455(b) include a judicially implied timely-filing profit margins of as high as 75% between 1997 and 2005 and had of the antitrust case, a global view of the relevant events congress has omitted from its adopted text requirements that it merits of the trade secrets claims. this is not a case in which another absolute duty for federal judges: they must recuse maintaining a monopoly.” dupont i, 637 f.3d at 451 (citing that recusal be raised in a formal motion. as noted, § 455(b) at 327; see also iiib areeda & hovenkamp, antitrust law ¶ 806a, declining market share does not preclude a finding of monopoly that had been impeded by e.i. dupont de nemours & company in the relevant market if it is “truly predominant in the the merits of this case concern kolon’s claim that dupont illegal, they “may be an improper means of acquiring or applying such a limited rule here leads inescapably to the of the section; if the presiding judge has a triggering event & moring, llp, washington, d.c.; adam h. charnes, kilpatrick “[w]here he has a personal bias or prejudice concerning a party, along with a privilege log, from fitzpatrick cella’s files. party. if the affidavit is sufficient, accompanied by a section 455, that judge has a duty to recuse himself or that judge will recuse himself or herself regardless of any teijin’s predecessor, became embroiled in several patent finding that dupont had the “power to control prices or exclude information that triggers one of the subsections of § 455(b), regardless of when the issue was raised. thus, contrary to the in fact, delesdernier specifically reserved the timeliness in light of our holding, we do not address the district stated that he had “no recollection whatsoever” of any congress’[s] failure to act could as easily have been the result accordingly, we affirm the district court’s grant of recuse and a party does not affirmatively seek recusal--that is, it speaks only “broadly about section 455 and did not specify para-aramid is a strong, complex dupont’s supply agreements--frustrated kolon’s u.s. market error, we affirm. 31 power.” see eastman kodak co. v. image technical servs., inc., demonstrate substantial foreclosure of the relevant market § 455(b) could not be plainer; it “sets forth no procedural 49 before turning to the merits of the antitrust claims, we cir. 1997) (§ 455(a) and (b)); summers v. singletary, 119 f.3d culminated in a jury award of $919.9 million. the district findings of fact and all deposition excerpts and summaries conform with the recently adopted aba code of judicial conduct, 51 scale in the broader u.s. para-aramid market. and even if we enforcing on the part of the judge.” sibla, 624 f.2d at 867-68. 455 cases, as the majority suggests, surely the issue would have himself simply because he possesses some tangential relationship willfully maintained that power. to violate this prong, a 504 u.s. 451, 481 (1992) (“monopoly power under § 2 requires, of and short duration of dupont’s supply agreements, these competition.” united states v. e.i. du pont de nemours & co., geographic and product markets) fell from a high of 59% in 2006 the statute, we found recusal was required because “the actual share foreclosed is important because, for the contract to ethical issue for strategic purposes,” united states v. york, to recusal motions under § 455(a) and (b) alike, we next while we acknowledge that a singular emphasis on the show that the agreements were anticompetitive as without mandatory, yet under our precedent that requirement is beyond conclusion that kolon acted in a timely fashion. as recounted penetrate other comparable para-aramid markets, such as europe. “antitrust case”), alleging that dupont had illegally information gleaned prior to trial until the trial’s outcome. on the events that had occurred and the balancing of parties to move for recusal if they believed it was warranted. impartiality in a certain set of cases. that appearance is the ii. at 1387). we have previously drawn the line for monopoly power. see kolon points to two cases from the third circuit which, in virginia governor could reasonably have concerned “a personal cir. 1980). see also delesdernier v. porterie, 666 f.2d 116, the district court reasoned that although § 455 is itself initial requests had been overbroad, kolon eventually requested “[t]imeliness is an essential element of a recusal motion” which 2 19744 townsend & stockton llp, winston-salem, north carolina, for litigation strategy—makes sense as a matter of fairness or any justice or judge of the united states shall disqualification enumerated in subsection (b). where the ground the non-waivability of a § 455(b) recusal does not excuse a in sum, we conclude that neither the probable nor the by raising the issue in july, prior to trial on the trade at 412 (3d ed. 2008) (“[t]he same basic definition of mcguirewoods, dupont, and fitzpatrick cella to review the akzo they undertook to gain passage of the consolidation bill. the section 144, which was in existence at the time congress market through its supply agreements with high-volume para- cir. 1989). antitrust claims are too attenuated from akzo to be the same d.c., for appellant. kent a. gardiner, crowell & moring, llp, until july 2011, it cannot be disputed that throughout discovery agreements with certain u.s. para-aramid customers. under § 2 of the sherman act, a defendant is liable for a if the parties oppose his recusal. second, § 455(f) provides 47 equity. thus, in most of these cases “[t]he refusal of courts gipson, 835 f.2d 1323, 1325 (10th cir. 1988) (internal quotation and disqualification in the trade secrets case. the district january 2012 hearing on kolon’s motion for a new trial and scale to competitors); lepage’s inc. v. 3m, 324 f.3d 141, 160 for several reasons. first, it simply constitutes the addition at least been identified in lindsey. lindsey’s silence on recusal was unnecessary under § 455(b)(2) since the akzo f.2d at 1155. the dissent says that our decision in united states v. the market for para-aramid fibers violated the antitrust laws. but again, even viewing the evidence in the light most 21 (as foreclosure of a few important customers could substantially invariably garnish supreme court approval.” mcmellon v. united (emphasis omitted). in a subsequent telephone conference with at 19 (responding to docket no. 1830, at 26-27). during a a racetrack consolidation bill in maryland. the presiding with situations where a judge’s impartiality might reasonably be identifying segments of the market that it viewed as hospitable the pertinent topics, such that the requested data would not be lawyer in the matter in controversy, or a lawyer with whom he name kevlar© since the 1970s. in the 1980s, dupont engaged in trial, and our decision here cannot rewrite the past. we have personal bias or prejudice either against him or in despite a declining market share). the most important high-volume customers. id. at 32. the district court held there was no genuine issue that previously practiced law served during such my opinion should not be read to suggest that the i. parties of the judge’s related financial interest. the judge second, as if this silence were not enough, § 455 contains that kolon industries, inc. (kolon), acted in an untimely manner delesdernier v. porterie, 666 f.2d 116, 119–121 (5th cir. 1982). in august 2009, early in discovery, kolon sought access to disclosure, kolon failed to raise the disqualification issue for himself. the judge refused to do so, explaining that he did not competition,” the court summarized, “otherwise, it would have e.i. du pont nemours & co., no. 3:11-cv-622, 2012 wl 1155218, at “truly predominant in the market” during the relevant period, 7 mcguire woods & battle (now “mcguirewoods”). in the 1980s and later, on january 27, 2012, kolon filed its motion for recusal for the belief that bias or prejudice exists, and ‘promote public confidence in the integrity of the judicial monopolization claim when that defendant (1) possesses monopoly 10 actual and attempted monopoly claims, and remanded the matter to district court granted that motion, with leave to amend. kolon agreements with only twenty-one of the roughly 1,000 potential sherman act, 15 u.s.c. § 2.1 facts relevant to recusal under § 455(b)(2) and it was up to the theory. while it does not deny that dupont had supply the same must be said of § 455(f). that provision permits gamesmanship we condemn here. polaroid corp. v. eastman kodak co., 867 f.2d 1415, 1418 (fed. kolon does not dispute that dupont had supply agreements with we defer to the district court’s considerable discretion in dupont, for its part, attributes kolon’s failure to leaving the judge with a sua sponte obligation to recuse himself although the district judge was unaware of his prior transforming recusal under § 455 into an “additional arrow in kolon formally filed a motion for recusal in both the trade “dangerous probability” that dupont would sooner or later regain 20 days if they believed otherwise. neither party filed a 455(b),” a “timeliness requirement forces the parties to raise market share of 59 percent during the relevant time period, and (citing m & m med. supplies, 981 f.2d at 168 (4th cir. 1992) (4th cir. 2003). in this case, however, the district judge had trade secrets in the akzo litigation. upon being informed of immediately in controversy “could be substantially affected by the two claims. the court also issued several rulings adverse kolon leave to reformulate its request. conceding that its of a belief that the judicial gloss on old section 455 would sufficient evidence on which a reasonable jury could return a the letter in july 2011, prior to trial in the trade secrets must be vacated based on the judge’s evidentiary rulings. in suggested that the district court “revisit its refusal to establish a u.s. foothold, using only seven sales agents, implicating “personal bias or prejudice.”5 kolon industries incorporated, the dissent criticizes our reading of owens as finding no kolon believed the akzo matter was central to both its insists, it never achieved more than a de minimis market share about tactical sandbagging present in this case. then, on november 30, 2011, two months after the jury nonmoving party. see pueschel v. peters, 577 f.3d 558, 563 (4th was timely). a timeliness requirement in such circumstances— theory was--and is--that dupont maintained its alleged monopoly requirement so narrowly as to exclude § 455(b). argued: may 17, 2013 decided: april 3, 2014 only twenty-one of approximately 1,000 potential commercial u.s. intentions of its drafters.” united states v. ron pair enters., on appeal, kolon again stresses its “critical bridge” omitted), and because an affidavit from dupont’s global “monopoly power is the power to control prices or exclude judgment on kolon’s monopolization claim. judge’s involvement, while in private practice, in litigation defendant must engage in conduct “to foreclose competition, to dupont contends—at least as to this appeal—that the convinced that, as kolon contends, this is “a distinction 26.1 so that we can generate our own disqualifications; we do or herself when he or she knows the predicate facts implicating iv. court, issued a brief notice informing the parties of the department did suggest adding an explicit timeliness requirement 11 december 23, kolon asked the court to consider recusal in its recusal in several subsequent filings. on december 9, 2011, proceedings involving the trade secrets claims[] presided over a 54 the district court was aware that kolon was pursuing discovery court rejected kolon’s argument that dupont’s twenty-one supply also dupont i, 637 f.3d at 451 (discussing the importance of holding that § 455(b)(2) includes a timely-filing requirement to prevail on an attempted monopolization claim under § 2, a arguing that kolon misappropriated its trade secrets. as the id. at financial interest in an entity affiliated with mcguirewoods. affected.” tampa elec., 365 u.s. at 327. accordingly, those same action and the same case. moreover, in my view, recusal a result of these allegedly anticompetitive practices, kolon as rodgers makes clear, akzo is a matter in controversy in b. already produced. the district court also denied kolon’s nonetheless to ignore it. thus, waiver cannot be said to bridge” theory is certainly plausible, the evidence does not conduct--its customer supply agreements--did not have the 1985, mr. fitzpatrick of fitzpatrick cella had sent the district relevant period between 2006 and 2009. first, although kolon is billion dollar verdict and a twenty-year worldwide production (emphasis omitted). the district judge did preside over such a under § 455(b)(4), the judge may remain in the case if he segments . . . that kolon sought to enter.” appellant’s br. at volume purchase commitments and “meet and release” clauses, that judge has invested “substantial judicial time” “to the matter” that it was “compelled to point out that there is some question suffering a defeat in the trade secrets case. dupont brought suit against kolon alleging the theft and for disqualification arises only under subsection (a), waiver nonetheless intends to apply.” jama v. immigration and customs case but might be liable in an indemnification proceeding if the of words to the statute. “when interpreting statutes we start meanwhile, dupont persuasively distinguishes dentsply and we have held that a judge “need not recuse the majority’s timely-filing requirement is misconstrued yet another signal. that provision states that, absence of a timeliness provision does not foreclose further requirement under owens and that kolon failed to comply with it. timeliness only reinforces the case’s thorough discussion of 9 september and october of 2011 filed reciprocal motions claimant must show (1) a specific intent to monopolize a 28 possess monopoly power in the u.s. para-aramid market during the system is based upon the notion that, when the judge has cir. 1998)). (continued) we recite the relevant facts in the light most favorable 9 in 2009, dupont instituted this action against kolon, questioned.” 28 u.s.c. § 455(a). owens itself relied on a case herself.” dissent at 51 (internal quotation marks omitted). cir. 1980).5 kolon also appeals the district court’s grant of a 55 (5th cir. 1989) (§ 455(a) and (b)). support for a § 455(a) timeliness requirement is similarly by blocking kolon from crossing a “critical bridge” to “high “[n]otwithstanding” the statute’s preceding provisions, if a renewed this request prior to the close of discovery in april (2d cir. 1987) (noting whether motion was “made after the entry traders to enter into or remain in that market must be play a role in recusal, i agree with kolon that the role should 23 in my view, owens customers in each identified segment, requiring these customers any more relevant than the information dupont had already made public the trade secrets it was now claiming kolon had 11 eastern district of virginia (the akzo litigation). in that and our cases citing to owens’ timeliness requirement have all these supply contracts contained restrictions, such as sca services v. morgan, 557 f.2d 110, 117 (7th cir. 1977), but virtual city vision, inc., 650 f.3d 423, 432 (4th cir. 2011); may be accepted . . . .”). from kolon’s perspective, spreadsheet containing some of the requested transaction-level actual effect of dupont’s supply agreements was to “foreclose the judge before whom the matter is pending has a earliest moment after [its] knowledge of the facts.” owens, 902 steady, decades-long loss in significant market share to teijin. information, we treat it as public knowledge. 41 26 corp., 71 fed. app’x 138, 141 (3d cir. 2003) (motion untimely dupont’s production of documents] indicating a role by your 50 wyndham int’l, inc., 373 f.3d 537, 543 (4th cir. 2004). in sum, kolon knew every fact that eventually predicated sensitive information under seal. however, to the extent the dutch company akzo n.v.), and kolon--sell their para-aramid antitrust case. in the antitrust case, kolon began seeking requirement in all § 455 cases. in lindsey, although the the majority of circuits, including this one, have found that would be “significantly burdensome”; and (4) the request had potential recusal of the district judge under § 455(b)(3). sufficiently justified by the court’s determination that the requirement of timeliness “prohibits knowing concealment of an function of the courts-at least where the disposition required marks omitted)). thus, kolon continues, “requiring a timely production of a spreadsheet with data fields relevant to certain the majority reaches the opposite conclusion by partners represented a company that was not a party to the court been able to prevent the decrease in its market share and the shortsighted. pointing to evidence that dupont perceived were charged with using illegal means to procure the passage of explanation for the delay by kolon. j.a. 1020-22. penetration. judge had previously worked as an assistant united states they hinge on the mandatory nature of the recusal, not the timeliness grounds.10 also served as counsel to dupont in the present litigation, in judge who, by the majority’s own determination, is no longer kolon’s recusal requests were untimely means that a district along these lines, we have observed that “[t]he market (continued) no genuine issue as to any material fact. fed. r. civ. p. area, and the probable immediate and future effects universally adverse to kolon, and a jury rendered a $920 million questioned. but on the other, as the district court here competition in the market as a whole.” chuck’s feed & seed co. 34 kolon’s sandbagging may not be obvious in the isolated context likewise mandates recusal on the antitrust counterclaims brought lobby, inc., 477 u.s. 242, 248 (1986). we have explained that its recusal motion, which the district court denied.2 mandatory recusal under § 455(b) is nonetheless subject to a (continued) portion of the market. in its view, kolon had not sufficiently fact, the earliest cases applying a timeliness requirement were district court’s emphasis on those figures--and its disregard of substantial interest, has been of counsel, is or has a certificate of counsel of record stating that it is by kolon. that it represented when he was partner. as discovery began, rise of one of its major competitors.” id. office. documents reflect that during the akzo litigation the hear and decide cases within their jurisdiction,” united states its recusal motion almost a year before it first suggested even accepting that timeliness plays some limited role under § that dupont’s market share decreased to 55 percent during that judgment was appropriate on its monopolization claim. eventually, the trade secrets claims proceeded to trial and reversible error. see trade secrets case at 14-15. this gaskets), tires, manufactured rubber goods, and fiber optic because of the great risk of the appearance of bias or -is to enforce it according to its discretion. united states v. mitchell, 886 f.2d 667, 671 (4th secrets claims. agreements “choked off the ‘critical bridge’ to kolon’s entry (3d cir. 2003) (en banc) (reversing summary judgment, holding inquiry.” dissent at 48. but the justice department’s dupont also attempts to diminish the reach of its supply in kolon’s view, the § 455(a) and (b) provisions are dupont has commercially produced para-aramid fibers under the thus, no timeliness issue ever arose: the case is wholly completed trial” and chastised parties that would sit on discussion about timeliness, which is wholly consistent with my interest does not present an issue under § 455(f), as 42 timofeyev, samer m. musallam, paul hastings llp, washington, cites a case discussing § 455(a) alone, and that our later cases foreclosure in the [para-aramid] market as a whole.” kolon, claim, again with leave to amend. kolon declined to further in controversy requirement satisfied when judge’s former law decisions unpersuasive. claims is sufficiently timely under § 455(b)(2). companion case, uses its “supervisory powers” under 28 u.s.c. § adverse jury instructions. see docket no. 1738, at 13. on dupont lacked monopoly power. whereas (according to our ruling the majority, pivots responsibility from the judges to the existed, but he instructed the parties to file a motion within fixed point or bench mark from which the timeliness or under § 455(b), the judge is disqualified and must recuse even accused.” id. in that case, recusal was thus triggered because the “probable effect of the contract[s] on the relevant area of opinion. customer to purchase some amount of kevlar, and these had f.2d at 1156 (quoting satterfield v. edenton-chowan bd. of their analysis, kolon sought access to dupont’s transaction- durability in the market. as the district court observed, public confidence in the judiciary. the majority’s rule leaves recusal was thus required. id. at 247. in reaching this monopoly-power element, kolon also needed to show that dupont business justification or against dupont’s own interest. corp., 71 f. app’x 138, 141 (3d cir. 2003) (unpublished) judge himself, rather than requiring recusal only in response to marks omitted). we therefore hold that the district court acted makes clear that kolon held its fire on recusal until after above, dupont impeded the discovery of akzo documents and turned case and the trade secrets case, which is also now before us on (internal quotation marks omitted). the statutory language of themselves from any case where, “in private practice [the judge] regarding customers, geographic location, dates, products, (now mcguirewoods) and fitzpatrick, cella, harper & scinto were permitted to treat motions for recusal as little more than disclosure statement under federal rule of appellate procedure into the akzo litigation and pleadings and filings, indicating the limitation of this provision to financial conflicts alone as to purchase most or all of their para-aramid requirements from confidence in the integrity of the judicial process.” liljeberg 5 recusal will only diminish public respect for our profession. plaintiff – appellant, involvement until after filing his appeal. see id. at 246–47. (8th cir. 1996) (alteration in original) (internal quotation unnecessary under § 455(a). since kolon does not appeal that . the dissent reads failing to insist on a timeliness requirement for seeking appeal from the united states district court for the eastern case. rather, the purpose of § 455(b)(2) is to disqualify a timely-filing requirement. the absurdity canon allows courts summary judgment is “an important tool for dealing with “put simply, avoiding the appearance of impropriety is as b. the judge of his personal statutory duty.” id. 2106 to remand the case for further proceedings before another agreements do not violate the willful maintenance prong of our history. rather, “prior to the 1974 amendment[,] courts had 1. respectively seeking to compel and protect that information. 27 serves “to increase public confidence in the judiciary by dissent at 52. that is not entirely correct. we agree with our than the alleged 70% of that market. kolon indus., inc., v. timeliness requirement. the seventh circuit did so first, in to disregard statutory text when adhering to the text “would v. will, 449 u.s. 200, 215 (1980), but “[f]airness . . . maintenance of such power. we address each element in turn. be assigned to the proceeding. kolon did not seek recusal on database.” appellee’s br. at 43 (emphasis omitted). reasonable time after being presented with voluminous discovery actual monopoly power, it was at least consistent with a includes no procedural requirements. moreover, the requirement “as a matter of law, constitute sufficient grounds for a finding misappropriated. dupont’s counsel (mcguirewoods) informed kolon states district court for the eastern district of virginia for additionally, the district court held that recusal was 1055. whereas “section 455(e) prohibits the judge and the necessary.” delesdernier, 666 f.2d at 121. “thus[,] (§ 455(b)); united states v. rogers, 119 f.3d 1377, 1380-83 (9th prior to the 1974 amendments the statute provided: documents concerning his involvement in the akzo litigation, 15 whether your honor should be adjudicating these matters [due to e.i. dupont de nemours & company, these materials were turned over to kolon in august 2010. the 13 29 the defendants’ proposed defense “in part at least, will consist other factors do demonstrate dupont’s strength in the market specifically to this one area suggests that timeliness and fitzpatrick cella did have documents from the akzo litigation. financing director indicated that dupont already had an existing 24 “attempted monopolization employs ‘methods, means and ascendance, meaning there was no dangerous probability of para-aramid customers, the percentage of foreclosure could not, of two subsections, 455(a) or 455(b)(1). on the one hand, the urging by a party. in recognition of this fact, § 455 “is having held that owens’s timely-filing requirement applies did have this information in “existing database[s],” that does theory that dupont’s asserted trade secrets had been revealed in involvement of the district judge, including the letter he sent requires an absence of actual bias in the trial of cases,” until an adverse decision has been handed down. both efficiency data. but this ignores the sweeping nature of the information support its application here. the phone and sent a letter with a copy of akzo’s complaint scenario. in its motion and supporting memorandum, kolon also short, dupont submits that myriad self-inflicted failures--not served as a lawyer in the matter in controversy, or a lawyer district court judge. 7 the majority’s reference to the absurdity canon is court excluded this evidence—an exclusion we today rule was 4 dupont i, 637 f.3d at 441. in granting summary judgment to affirmed. private texts to make them (in the judges' view) more case”). kolon’s answer included the instant counterclaim (the raised until after trial); stone hedge props. v. phoenix capital was required to recuse himself in both the instant antitrust pleasant valley hosp., inc., 981 f.2d 160, 166 (4th cir. 1992)). focusing only on the final two prongs, the district court clear that kolon had long known that mcguirewoods represented is mandated by owens. concluded that even ignoring the untimeliness of kolon’s motion, relevant market, (2) predatory or anticompetitive acts, and (3) within its discretion in concluding otherwise. the district court explained that kolon had violated federal directed to the judge, rather than the parties, and is self- days after event x; before event y). there is no such to the misappropriation of its kevlar trade secrets (the “trade secrets cir. 2009). b. production would have been unduly burdensome. kolon insists favorable to kolon, the claim fails. trial that ended in a one billion dollar verdict and a twenty- was raised early enough in the litigation that no prejudice as the federal circuit has explained: and remand for new proceedings before a different district anticompetitive conduct; and (2) dupont had lost market share our dissenting colleague correctly observes that owens not share that view. in lindsey, the presiding district court controlled seventy to one hundred percent of the relevant includes more than the claims brought by dupont. in in re can hardly impair public confidence more than would a rule october 21, 2011. as the district court determined, this (internal quotation marks omitted). to that end, “our system of case, nor was he made aware of it, we vacated his order. but in level and market-segment sales, pricing, and margin data. the and instead had focused only on dupont’s alleged foreclosure of and wal-mart could have cut lepage’s off from “key retail this section, like § 455(b) has no specific timeliness is that dupont made public many of these secrets during the akzo our view, a single verdict--however large--that no longer exists states v. dentsply int’l, inc., 399 f.3d 181 (3d cir. 2005) 53 documents from the akzo litigation, believing that dupont had discussion of recusal in july. docket no. 247, at 2; docket no. correct that dupont’s market share of less than 60% during the see also conforte, 624 f.2d at 879-880 (finding recusal motion lawsuits relating to the manufacture and sale of para-aramid “unusual entanglement of legal and factual issues” they often summary judgment to dupont on kolon’s attempted monopolization same segment of the para-aramid market . . . as customers that court’s alternative ruling that, on the merits, recusal was not judges, even if they have no actual bias in a particular case, 351 u.s. 377, 391 (1956). a defendant possesses monopoly power requirement in § 455, such a requirement is “judicially a stratagem. as the fifth circuit observed, “it might defendants argued that they were intending to have his former request, the judge had faxed him a copy of the complaint. kolon filed a reply in support of its motion for a judgment as a answer and a counterclaim, contending that dupont’s actions in dupont invented para-aramid fiber in 1965, and for a period in our view, these facts could plausibly fit under either secret. in august 2010, the district court ordered the u.s. para-aramid market is highly concentrated between may 2009 the clerk of court issued a notice informing the gain a competitive advantage, or to destroy a competitor.” to “proscribe motions that would have invalidated a fully provision anywhere in section 455. nor could there might reasonably be questioned.”3 (dupont). finally, in my view, the district judge presiding in which pre-emption of that share of the market might “foreclose competition in a substantial share of the line of contested issues. the request indicated that the responsive scouring of the akzo litigation court records, it further seems think that kolon could not sell to other customers occupying the price, and gave dupont a right to match any competing offer. as dupont and teijin, which together account for 99% of u.s. sales. (b)); omega eng’g, inc. v. omega, s.a., 432 f.3d 437, 447-48 (2d 22 dupont considered kolon’s market entry to be a threat. we next review the district court’s grant of summary discovery of the akzo case files in august 2009. it contended to “constitute parts of the same matter in controversy.”4 into the u.s. market” because they foreclosed kolon’s access to specific raising of recusal prior to trial in the trade secrets procedure 12(b)(6), to dismiss kolon’s counterclaim. the served as a lawyer.” id. see also preston v. united states, “dangerous probability” of achieving such power. id. at 23-24 judge was unaware of and sat on that information until after united states v. york, 888 f.2d 1050, 1055 (5th cir. 1989), the 923 f.2d 731, 733-35 (9th cir. 1991) (finding §455(b)(2) matter 1419. question under § 455(b). see delesdernier, 666 f.2d at 123 n.3. discovery delays on dupont, it concedes that it gave only five 2005 with its heracron© fiber. kolon’s evidence showed that judge to send him a facsimile of the complaint filed by akzo. of timeliness. instead, we simply concluded that, because the according to the majority, owens mandates a timely-filing analysis must begin with the statute’s plain language, the kolon identified as a comparable market), led the court to its judge had participated in defendant lonnie robinson’s case concerning it. removing even the appearance of impropriety or partiality”). dupont in the akzo case. kolon was also formally alerted to the not enact § 455(a) to allow counsel to make a game of the when congress revised the statute in 1974, the justice customers in the key commercially sustainable entry misconstruing, and then incorrectly relying on, united states v. particular market segments. kolon’s evidence of the degree of 28 u.s.c. § 455(b)(1) requires a judge to recuse himself that it had no documents from the akzo litigation. kolon in sum, the rule employed by the majority—that a recusal conducted extensive discovery into the akzo litigation on the that the akzo litigation--which also included a counterclaim the district court again denied kolon’s request, concluding 5 those events from history’s pages.” polaroid corp., 867 f.2d at provision of § 455 required it, and we did not cabin our holding evidence that dupont, despite teijin’s encroachment, earned the judge had before him multiple requests from kolon to look seventeen years, and dupont has proven unable to control u.s. the privilege log also indicated that, per mr. fitzpatrick’s 52 united states court of appeals ii. non-waiver of § 455(b) recusals reinforces the mandatory nature litigation. it cites to, including other materials, a letter injunction against kolon and granted dupont’s motion for summary approve.” antonin scalia & bryan a. garner, reading law: the infringement of an akzo para-aramid patent. 37 declined to do so in § 455(b). 2011. barriers,” the district court continued, “is insufficient to a party affidavit.” liteky v. united states, 510 u.s. 540, 548 provision, however, § 455(f) presents a clean trade-off between attempts at monopolization when the other elements for attempted friend that when a judge “is aware of grounds for recusal under privileged documents. eastman kodak, 504 u.s. at 482-83. on this element, kolon’s dupont corporate representative concerning its strategic use of segments. in dupont i) kolon had adequately pleaded the monopoly power “divests himself or herself of the interest.” 28 u.s.c. following further inquiry into the matter, kolon’s counsel association as a lawyer concerning the matter, or the memorandum supporting its motion to stay the injunction it is entirely plausible that congress did not intend to impose market share to have monopoly power. antitrust laws & trade important in developing public confidence in our judicial system (continued) the judgment of the district court is hereby fiber. teijin introduced its competing twaron© fiber to the kolon made its foray into the u.s. para-aramid market in for dupont after a seven-week trial. meanwhile, discovery in accuser--thus implicating § 455(b)(1). given this ambiguity, we (“kolon”) to certain of the district court’s discovery rulings kolon first contends that dupont’s supply agreements were documents from the fitzpatrick cella files and that none of dissenting). given the plain language of § 455(b), i find these timeliness requirement under § 455(b). with all respect, we do b. fitzpatrick, cella, harper & scinto (“fitzpatrick cella”) and on summary judgment. but its actions here should not be viewed mandatory recusals may not be waived by the parties. even to conclude by moving for disqualification of the judge, is not motion with the court, and despite the mandatory text of inc., no. 12-1260 (argued may 17, 2013). are left only with owens’s unqualified announcement that procedure 30(b)(1), which requires “reasonable” notice. dupont’s share of the u.s. para-aramid market (the relevant that the judge should recuse; as part of this argument, the days’ notice for the replacement deposition notice it served on (7th cir. 1992) (“sca services is a weak precedent[.]”) (posner, found neither satisfied since (1) kolon had failed to process.’ ” dissent at 50 (quoting liljeberg v. health servs. without a difference.” reply br. at 15. as the district court litigation.” id. and even if the mandatory text of § 455 does offered no evidence that access to the foreclosed customers (or alia, “[w]here in private practice [the judge] served as a shall be filed not less than ten days before the its intent to monopolize the u.s. para-aramid market. meanwhile, although kolon is also correct that certain co. v. kolon industries inc., no. 12-1260 (trade secrets case). producers--dupont, teijin aramid (formerly a division of the judge. i therefore dissent. kolon’s recusal motion is based on the district court to entry, including auto short fibers (pulp for brakes and these circumstances. as necessary to establish a foothold for effective competition, required under § 455(b). first, § 455(e) provides that broaden[ing] the grounds for judicial disqualification and to we review a judge’s recusal decision for abuse of attached to him. court denied the recusal motions in both cases on february 21. language and thwarts the clear congressional purpose of their products with the customer while the dupont agreement was on the merits of kolon’s antitrust suit, we agree with the practices, and as driven by consumer demands. required any competing para-aramid seller to propose a bid at a v. before the court.” id. at 1198. even accepting that reading of charging lower prices in the united states than in europe (which the antitrust case was underway following our march 2011 attempt claims.”). nor, contrary to its suggestion, did kolon 8 dupont’s share of the u.s. para-aramid market did not constitute in controversy. that (1) dupont had already produced extensive documentation on a. whether this requirement should apply to both subsections (a) denied kolon’s motions to compel dupont’s production of with prejudice. kolon timely noted this appeal. dupont’s supply agreements precluded competitors from qualifying assume the significance of those customers and market segments, extent any burden is placed on kolon, it satisfied that burden amend the counterclaim, opting instead to appeal the dismissal. 3 had delayed in filing its recusal motion for almost a year after share that conclusively resolves whether monopoly power exists, the statute’s intent. section 455 serves to “promote public in effect. and of the group of “key” customers kolon identified the majority declines to address this issue, yet in the 56(a). a genuine issue of material fact exists when there is probable effect of “foreclos[ing] competition in a substantial in general, summary judgment is appropriate where there is against its own interest in order to block kolon’s market entry. 2 consistent with this principle, congress has explicitly created “rais[ing] the disqualification . . . [of the judge] at the enter the market.” id. at 451 (citing cases). amended § 455, clearly illustrates that congress knew how to district judge. see trade secrets case at 15-16. proposed discovery of the akzo litigation files, and in (4th cir. 1991) (en banc), and that antitrust cases are § 455(f). this provision represents congress’s response to arisen under § 455(a), see newport news holdings corp. v. reversal of the district court’s initial dismissal. as in the that kolon failed to show what “proportionate volume of and the parties) has acknowledged a conflict, but seeks fact that dupont knew first of the district court judge’s represented that they had reviewed all the non-privileged inc., 340 f.3d 187, 195 (4th cir. 2003), we decline to disturb was relevant evidence of dupont’s anticompetitive practices and government opposed recusal, contending that the “matter” was not kolon’s market entry as a threat, kolon argues that dupont secrets and the antitrust case. v. ralston purina co., 810 f.2d 1289, 1295 (4th cir. 1987). [w]here in private practice he served as a lawyer in the course of that litigation and therefore were no longer the judge. united states v. conforte, 624 f.2d 869, 880 (9th prejudice one party in particular, and will not produce the kolon believed, the akzo litigation was actually a matter in for summary judgment were due in the antitrust case, kolon filed v. health servs. acquisition corp., 486 u.s. 847, 858 n.7 finding of monopoly power, much less a dangerous probability of requirements”). congress’ omission of any reference to a 888 f.2d 1050, 1055 (5th cir. 1989), and “is vital . . . to dupont neither possessed monopoly power nor engaged in willful where a party learns of information that the judge does not (or negligible) involvement in the akzo litigation in august 2010, instead seeks recusal under § 455(b). equity. see polaroid corp. v. eastman kodak co., 867 f.2d 1415, after reviewing the two relevant documents, the district defendant, after publicly accusing the then-governor of west 20 this ground in the district court. necessary to weigh the probable effect of the contract terms.” lamie v. united states tr., 540 u.s. 526, 534 (2004) latitude in controlling discovery,” rowland v. am. gen. fin., cases, like this one, involving § 455(b). section 455(a)7


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