Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Judge's mandatory recusal duty raised in Supreme Court petitions, (Aug 25, 2014)

By Jeffrey May, J.D.

The U.S. Supreme Court has been asked to consider whether a district court judge should have recused himself in related antitrust and trade secrets disputes between E.I. Du Pont de Nemours & Co. (DuPont) and foreign rival Kolon Industries, Inc. On July 24, 2014, Kolon filed a petition for certiorari, seeking review of a decision of the U.S. Court of Appeals in Richmond, Virginia, rejecting claims that DuPont engaged in monopolization or attempted monopolization of the U.S. para-aramid market with its “Kevlar” fiber through long-term, exclusive supply agreements. On August 20, Kolon filed a second petition, seeking review of the appellate court's decision in a companion case, overturning a jury’s $919.9 million verdict in favor of DuPont against Kolon for trade-secret misappropriation but rejecting Kolon’s contention that it should be awarded judgment as a matter of law (Kolon Industries, Inc. v. E.I. Du Pont de Nemours & Co., Dkt. 14-77; Dkt. 14-207).

Kolon’s ultimately unsuccessful antitrust claims were raised in DuPont’s action against it for the theft and misappropriation of its Kevlar trade secrets. The antitrust and trade secrets claims were severed.

For purposes of both disputes, Kolon had argued that the district court judge should have recused himself due to a conflict of interest. According to Kolon, the district judge was a partner at a law firm that had served as trial counsel to DuPont in a prior litigation, which became a matter in controversy in the case.

The judge refused to recuse himself on the basis that Kolon did not file a timely motion for disqualification. Kolon had delayed in filing its recusal motion for almost a year after it learned of the alleged conflict that was the basis for the recusal motion, the court noted. The Fourth Circuit, reading an implied timeliness requirement into the federal recusal statute, excused the district judge's failure to disqualify himself.

In its petitions, Kolon asks the Court specifically, whether under 28 U.S.C. §455(b), a federal judge is relieved of his mandatory statutory duty of self-disqualification, simply because neither party filed a timely motion to disqualify the judge.

According to the petitions, the Fourth Circuit's statutory construction is squarely contrary to the text of the statute and to congressional intent. In addition, Kolon asks the Court to resolve the split among the circuits on the issue.

Attorneys: Stephen B. Kinnaird (Paul Hastings LLP) for Kolon Industries, Inc.

Companies: E.I. Du Pont de Nemours & Co.; Kolon Industries, Inc.

News: Antitrust