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

DIAZ, Before SHEDD and Circuit Judges, DAVIS, and Senior Judge. Circuit by published Affirmed opinion. Judge DIAZ opinion, wrote the in which Senior Judge joined. DAVIS Judge SHEDD wrote a dissenting opinion.

DIAZ, Judge: Circuit case, In this Act Sherman we review the district court’s grant of summary judg- ment in favor of Defendant-Appellee E.I. Du Pont (“Du- de Nemours Company and Pont”). We also consider challenges by Plaintiff-Appellant Kolon Industries Incor- (“Kolon”) porated to certain district court’s rulings discovery and its denial of Kolon’s recusal motion. Finding no re- error, versible we affirm.

I.

A. The merits of this case concern Kolon’s claim that DuPont attempted wield, to wield, did power monopoly over the U.S. para-aramid fiber market in violation of Stephen ARGUED: Kinnaird, Blake Section Act, the Sherman 15 U.S.C. Paul Hastings LLP, D.C., Washington, for 2.1 Para-aramid is a strong, complex 1. We recite relevant facts the light most done our parties’ best to honor the oft-over- favorable Kolon. doing, so we have keep zealous desires to purportedly certain identifying encroachment, began DuPont tires, armor, body fiber used synthetic viewed the market other variety segments cables, and a optic fiber short including auto para-aramid entry, hospitable Three products. industrial (for- tires, Teijin Aramid gaskets), brakes and (pulp for producers DuPont, fibers — company Dutch op- division fiber merly goods, rubber manufactured para- their N.V.), Kolon—sell Kolon, Akzo DuPont According to tic cables. consumers. to U.S. fibers aramid executing strategy undertook then high- with agreements supply fiber para-aramid multi-year invented DuPоnt seg- entire identified controlled each period customers volume its Kevlar© pur- market customers these para-aramid ment, requiring U.S. competing its introduced Teijin para-aramid fiber. of their all most or chase in 1987 market the U.S. fiber Twaron© during the rel- from requirements share of away at DuPont’s chipped has and period. time evant Ac- since 1990. every year market re- contained contracts supply These witnesses, expert Kolon’s one to cording com- purchase strictions, as volume such (the peri- time relevant during 2006-2009 clauses, “meet and release” and mitments para-aram- of the U.S. od), share DuPont’s para-aramid any competing required and (the geographic relevant market id designated at a a bid markets) propose 59% to high from seller fell product existing most of this than DuPont’s with amount 55% lower to in 2006 in- from Teijin. the customer prohibited to going price, loss DuPont’s seller of competing forming highly market para-aramid The U.S. to match right DuPont a gave and price, Teijin, and DuPont between concentrated these a result As offer. any competing of U.S. for 99% account together Kolon practices, anticompetitive allegedly concentration market This extreme sales. than de industry’s high more insists, achieved it part to the never least in owes at showed, para- during relevant Kolon As share entry barriers. market minimis and contrast, is time-intensive was able production Kolon By aramid period. time test customers potential and expensive, para-aram- comparable other penetrate to product to para-aramid each and “qualify” markets, Europe. as such id needs, a particular their meets ensure Kolon’s attributes DuPont, part, its for six months to typically takes process to market the U.S. penetrate failure evidence to this addition In years. three According to shortcomings. own Kolon’s high barriers and concentration of market only a “feeble DuPont, undertook Kolon Du- evidence adduced entry, Kolon foothold, using a U.S. to establish encroachment, effort” Teijin’s Pont, despite in- inadequately agents, sales only seven as 75% high as margins of profit earned supply offerings ability product vesting had the 2005 and 1997 and between per- only a small contacting its customers. among capacity, discriminate price of Octo- as customers centage potential para- into the foray U.S. made its Meanwhile, its DuPont defends ber its Heracron© in 2005 market with aramid re- competitive a agreements supply Du- showed evidence Kolon’s fiber. practices, of such Teijin’s use sponse to entry market Kolon’s considered Pont demands. consumer as driven potential Kolon’s Anticipating abe threat. informa- (without objection) such However, disclosed seal. information sensitive knowledge. tion, public it as we treat already court has extent to the DuPont also attempts to diminish the attempted monopoly claims, and remanded reach of its supply agreements, noting that the matter to the district court for further it entered into twenty-five agree- proceedings. E.I. du de Pont Nemours & ments with twenty-one customers, U.S. Indus., (DuPont Co. v. Kolon I), Inc. collectively accounting only a small (4th Cir.2011). F.3d 435 percentage of its U.S. revenue. Of those remand, On the district court tried the agreements, says, DuPont only a portion trade secrets claim separately, culminating obligated the purchase customer to some in a jury million $919.9 verdict for DuPont Kevlar, amount and these typical September 14, 2011. The court then durations of years two or shorter. Mean- formally severed the two claims. The while, none of supply DuPont’s agreements court also issued several rulings adverse to precluded competitors from qualifying Kolon in the antitrust First, case. products their with the customer while the district court denied Kolon’s motions to DuPont agreement inwas effect. And of compel production DuPont’s of transac- the group of “key” customers Kolon identi- tion-level data, sales and cost concluding fied as necessary to establish a foothold for that this discovery significantly would bur- effective competition, DuPont notes that den DuPont and would not any be more the majority had supply no agreement useful than aggregate sales and cost during DuPont the relevant period. data DuPont had already produced. The Appellee’s Br. at short, district court also denied Kolon’s mo- submits that myriad self-inflicted fail- tions—filed on grounds described below— ures —not DuPont’s supply agreements— for recusal disqualification in both the frustrated Kolon’s U.S. market pen- antitrust and trade secrets cases. The etration. district court further denied Kolon’s re- quest depose a corporate DuPont repre-

B. sentative concerning its strategic use of DuPont brought against suit Kolon al- supply agreements. Finally, the district leging the theft and misappropriation of its court granted summary judgment to Du- (the Kevlar trade secrets “trade secrets Pont on both claims, Sherman Act dismiss- case”). Kolon’s answer included the in- ing them prejudice. timely Kolon (the stant counterclaim case”), “antitrust noted this appeal. alleging that DuPont had illegally monopo- lized and attempted to monopolize the U.S. II. para-aramid market through its supply Before turning to the merits of the anti- agreements with high-volume para-aramid claims, trust we first consider Kolon’s ar- customers. moved, DuPont under Federal gument that the district court judge Rule of was Civil 12(b)(6), Procedure to dismiss required to recuse himself in Kolon’s both the counterclaim. The district court instant antitrust case granted trade motion, secrets with leave to amend. case, which is also now Kolon filed before us on ap- an counterclaim, amended fol- peal. See E.I. du Pont by lowed de Nemours second & Co. counterclaim, amended Indus., Inc., Kolon No. which (argued 12-1260 also dismissed for failure to 17, 2013). May claim, state a again with leave to amend. declined further amend the coun- A.

terclaim, opting instead to appeal the dis- missal. reversed, We holding that Kolon Kolon’s recusal motion is based had pleaded adequately both its actual and district court judge’s involvement, in while para-aramid that, monopolize the U.S. tent accord- litigation in private practice, market. Kolon, a matter contro- presents ing to 1980s, In the dispute.

versy in the instant case, beginning In the trade secrets N.V., Teijin’s predeces- Akzo DuPont and extensive dis- Kolon conducted April patent in several sor, embroiled became litigation Akzo on the theo- covery into the manufacture relating to the lawsuits DuPont’s asserted trade secrets ry that In one such fibers. para-aramid sale in the course of that had been revealed in the United sued DuPont dispute, longer Akzo and therefore were no litigation the Eastern Dis- court August for the district District Court secret. States DuPont, McGuireWoods, and Fitz- of an infringement ordered Virginia trict Akzo case files to review the patrick Celia para-aramid patent. Akzo documents. produce responsive and to case, DuPont was defended Akzo In the month, produced ap- DuPont Later that Celia, Har- Fitzpatrick, the law firms by documents, thirty boxes of proximately Celia”) and (“Fitzpatrick per & Scinto Fitzpatrick privilege log, with a from along (now & Battle “McGuire- Woods McGuire files. Celia’s Woods”). time of and at the In the 1980s privilege log on the One of the entries case, judge was the district court the Akzo Fitzpatrick May that in Mr. showed result, aAs at McGuireWoods. partner Fitzpatrick Celia had sent in an affiliated partner limited he was a at McGuire- judge, partner court then pay- small continued to receive entity, and Woods, confirming telephone a letter fur- of rent for from McGuireWoods ments Fitzpatrick had conversation also McGuireWoods nishings. Because him a facsimile of to send asked pres- as counsel to served privilege complaint filed Akzo. the clerk of May litigation, ent that, Mr. Fitz- per indicated log also informing parties notice court issued a faxed him request, patrick’s financial interest. judge’s related complaint. of the copy a that he did not judge noted then The later, July Nearly year a on exist- disqualification for grounds believe one opposing filed a memorandum Kolon ed, to file a parties the but he instructed jury instructions proposed of DuPont’s they if days 20 believed motion within In that memoran- secrets case. the trade motion filed a Neither otherwise. dum, “compelled that was Kolon stated con- objected judge’s to the or otherwise question is some out that there point in the case. participation tinued adjudicat- should be Your Honor whether matter was cen- believed the Akzo pro- Kolon to DuPont’s these matters ing [due secrets by defense of the trade indicating tral to both its a role documents] duction of antitrust maintenance of the stage case and its in the earliest Honor Your case, Indus., began Kolon Inc. v. E.I. case. In the antitrust Kolon litigation.” Akzo Co., F.Supp.2d Akzo case files seeking discovery of the Nemours & du Pont de (E.D.Va.2012) (quoting that the Akzo 3:09-cv- 2009. It contended August omitted). 1247) (emphasis a counter- included Docket No. litigation also —which DuPont, conference with subsequent telephone which was ulti- In a claim filed court, explained counsel Kolon’s pursuant settlement the mately resolved May the concern was source of its exports Akzo’s Unit- that restricted Fitzpatrick to the district Du- from Mr. letter relevant evidence ed States —was judge. in- its court anticompetitive practices and Pont’s judge district court then came to a ordered head over proposed Kolon’s produce any

DuPont to documents con- discovery files, litigation of the Akzo and in cerning his involvement the Akzo litiga- September and October 2011 filed recip- tion, ultimately comprised only the rocal respectively motions seeking to com- two documents described above: the May pel protect that information. Fitzpatrick 1985 letter from Mr. to the Then, 30, 2011, on November two requesting copy of the Akzo Com- months after jury verdict in the trade plaint, judge’s responsive facsimile case, days secrets and two before motions sheet, Complaint cover with the attached. summary for judgment were due in Following inquiry matter, further into the case, Kolon’s counsel antitrust Kolon represented they filed its recusal mo- tion, reviewed all non-privileged which the district court documents denied.2 Fitzpatrick from the Celia files and that none of those documents contained the B.

judge’s name; DuPont’s counsel made sim- ilar representations with respect to the 455(b)(2), 28 U.S.C. provision on privileged files’ documents. relies, which Kolon provides any

After reviewing the two relevant docu- judge of thе States disqualify United shall ments, the district court determined himself that he had no recollection of the commu- [wjhere in private practice he served as Fitzpatrick nication with any or of involve- lawyer in the in controversy, matter or ment in the litigation. Akzo Kolon said lawyer he previously prac- whom nothing more then about the issue. ticed law served during such association During inquiries, these the trade secrets lawyer as a concerning matter, scheduled,

trial began as and the jury the judge or such lawyer has been a returned a million dollar verdict $920 material concerning witness it. DuPont after a seven-week trial. Mean- while, discovery 455(a), U.S.C. which also antitrust case has some underway following March relevance to inquiry, our our provides rever- sal of the district “[any ‍​‌​​​​​​‌​‌​​‌​‌​‌​‌​​​‌​​​‌‌​‌​​‌​‌​​‌‌​​‌‌‌​​‌‍initial judge] court’s dismissal. of the United States shall case, As in the trade parties secrets disqualify himself in any proceeding in memorandum, supporting its motion and See Docket No. at 19. reply And in its suggested Kolon also that the motion, district court regarding that January "revisit its refusal to recuse” from the trade insisted that a formal motion for recusal was case, apparently secrets referring to the dis- 1843, unnecessary. See Docket No. at 19 247, cussion 2; July. of recusal in Docket No. at 1830, (responding 26-27). to Docket No. at 248, Docket No. at 31. Kolon filed no During January hearing 2012 on Kolon’s separate motion for recusal in the trade se- motion judgment for a new trial and as a time, crets case at that briefly but did refer- case, matter of law in trade the secrets coun- ence subsequent recusal filings. several again for requested sel Kolon that the district 9, 2011, On December reply Kolon filed a judge court recuse himself. The re- support of judgment its for a motion as a so, explaining fused to do that he did not have law; footnote, matter of in a it reminded the a recusal motion before him in that case. position court of its that the should not later, 27, 2012, days January Three Kolon regarding have ruled jury the adverse instruc- filed disqualifica- its motion for recusal and tions. See Docket at No. 13. On De- tion in the trade secrets case. The district cember Kolon asked the court to consider court denied the recusal motions in both recusal in its supporting memorandum its Februaiy cases on 21. stay injunction motion to the proceedings.

167 455(b)(2) timely-filing re- § includes a reasonably be might impartiality his satisfy. failed to that Kolon quirement questioned.”3 that district court maintains the Kolon that al court reasoned district Owens, relying on in which we by erred whether a § silent on 455 is itself though an essential ele- that is “[t]imeliness said timely file a seeking recusal must motion,” and that not- a recusal ment of court, the despite with the motion explicit of an withstanding the absence 455(b) judge] (“[Any § mandatory text of §in such a timely-filing requirement himself....”), ma the disqualify ... shall “judicially implied.” is 902 requirement one, circuits, including this have jority of at F.2d 1155. § a timeliness re that 455 includes found submits, Kolon does not language, This Indus., F.Supp.2d Kolon quirement. because it “broad- speaks here control alia, v. United States (citing, inter ly specify 455 and did not about seсtion (4th Cir.1990)). Owens, 1154, 1155 902 F.2d apply should to requirement whether this delayed Accordingly, because Kolon (b) (a) solely both subsections year for almost a its recusal motion filing 455(a).” [subjsection Br. at Appellant’s conflict, alleged the it learned of the after view, likely” in- Kolon’s Owens “more as un Kolon’s motion court denied district 455(a) § in which a situation under volved timely. might rea- judge’s “impartiality [have] merits, on the Ruling in alternative sonably questioned,” be[en] ig- that even court concluded 455(b)(1) “personal implicating § scenario motion, untimeliness of Kolon’s noring the According- Id. at 59. prejudice.”5 bias or 455(b)(2) § unnecessary under recusal merely resolved ly, Kolon believes Owens was not “suffi- litigation the Akzo since required re- timely motion is when the instant action to ciently related” to 455(a), leaving § under implicated cusal the same matter parts “constitute respect question open (quoting at 528 United controversy.”4 Id. 455(b). § (4th DeTemple, v. States (b) 455(a) view, § In Kolon’s Cir.1998)). enough explain are different provisions requirement of a timeliness presence C. absence of such despite the in the former judge’s recusal deci review a We 455(b) 455(a), § § the latter. Unlike States of discretion. United for abuse sion See parties. waived may not be Mitchell, Cir. 455(e) (“No [judge] shall ac- U.S.C. 1989). proceeding parties from the cept disqualification any ground challenge to waiver first consider We Kolon’s (b). in subsection Where holding enumerated district court’s statute, Additionally, held that re- court district separate 28 U.S.C. recusal 3.A 455(a). unnecessary Since cusal was opportunity per parties provides with one ruling, we do not appeal does not presiding an case to file affidavit it. address prejudice regard- judge personal or bias has sufficient, ac- party. is ing a If the affidavit 455(b)(1) requires judge § to 28 U.S.C. 5. faith, good companied a certificate personal he has “[w]here recuse himself filed, assigned to timely judge will be another party, per- concerning a or prejudice bias or proceeding. did not seek recusal Kolon evidentiary knowledge disputed facts sonal ground in the court. on this district concerning proceeding.” [a] ground disqualification only view, for arises un- In our plausibly these facts could (a), may subsections, 455(a) der subsection fit under accept- waiver be either of two 455(b)(1). ed-”). hand, On the one From Kolon’s the scenar- perspective, io in 455(b) (e) Owens could certainly speak to “juris- subsections create a 455(a)’s § concern with situations where a limitation dictional authority of a judge’s impartiality might reasonably be case,” judge participate given in a questioned. other, But on the as dis- leaving judge sponte with a sua obli- determined, trict court here judge’s gation to recuse himself or herself when perceived allegiance to the Virginia West he or she predicate knows the facts im- Governor reasonably could have concerned 455(b). § plicating Appellant’s Br. at 60 personal “a prejudice bias or concerning” (quoting Gipson, United States v. the defendant —the Governor’s accuser— (10th Cir.1988) (internal F.2d 455(b)(1). implicating § thus Given this omitted)). quotation Thus, marks ambiguity, we are left with Owens’s continues, timely “requiring party mo- unqualified announcement that “[timeli- precedent tion as a condition to enforcing ness an is essential element of a recusal 455(b) contrary section runs to statutory motion” which “judicially implied in design, effectively relieving judge § 455.” 902 F.2d at 1155. Given that personal his statutory duty.” Id. blanket prescription, we decline to read

Owens’s requirement timeliness so narrow- D. ly 455(b). § as to exclude Our dissenting colleague correctly ob- While arguments Kolon’s do not serves that Owens cites a case discussing entirely merit, lack we conclude that 455(a) alone, § and that our later cases in 455(b), 455(a), § § like timely- includes a 455(b).6 line have yet address filing requirement under Owens and that cases, past however, limitations of are Kolon failed to with it. comply not controlling, particularly because the policy As parties underlying and the district rationale court Owens’s timeli- requirement have ness acknowledged, applies just seeking forcefully re- 455(b) §to any as to cusal Owens not other recusal specify did provi- scenar- io. §of required it, sion and we did not holding cabin our any specific provision 455(a) just as with a recusal, Here — Owens, section. the defendant, example for requirement of timeli- —the publicly

after accusing the then-Governor “prohibits ness knowing concealment anof Virginia of West bribery, filed a motion ethical for strategic issue purposes,” Unit- for recusal based on the presiding judge’s York, ed States v.

“long association” Governor, with the Cir.1989), who and “is vitаl ... prevent responsible judge’s appoint- delay,” Owens, waste and ment to various offices. 902 F.2d at Meanwhile, the non-waivability of a says 6. The dissent that our Though decision in United did partic- not recall his Lindsey, (4th Cir.2009), States v. 556 F.3d 238 case, ipation in the earlier nor was he made against cuts imposing a require- timeliness it, aware of we vacated his order. But 455(b). ment respect, With all we do case, judge's Robinson did learn of the not share Lindsey, that view. In the presiding prior filing involvement until after appeal. his district court participated in defen- Thus, See id. at 246-47. no timeliness issue dant Lonnie years Robinson’s case twelve ear- ever wholly inapposite arose: the case is here. lier as an Assistant Attorney. United States

169 in ‘promote public confidence 455(b) party’s “serves not excuse § recusal does ” judicial Dis- integrity process.’ Fifth ex- As the Circuit delay filing. (quoting Liljeberg are distinct at 181 v. Health and timeliness sent plained, “waiver 847, York, Corp., F.2d at 1055. Whereas 486 U.S. 858 Acquisition 888 Servs. issues.” 455(e) 7, 2194, and the 100 L.Ed.2d 855 prohibits n. 108 S.Ct. “section (1988)). view, themselves agreeing among on a parties failing from In our to insist 455(b),” a “timeliness section abrogate requirement seeking recusal timeliness 455(b) to raise the parties forces the requirement directly § undermines that time at a reasonable disqualification issue legislative goal.7 if the Id. And even litigation.” in the end, our sister keeping In qua- imply §of 455 does mandatory text overwhelmingly found a time circuits have judge’s au- limitation on a si-jurisdictional despite ly filing implied to be requirement view, case, in hear a our thority to See, e.g., Am. Prairie the text’s silence. against limitation must be balanced Hoich, 780, 560 F.3d 789-91 Constr. Co. v. efficiency fairness and served interests of Cir.2009) (§ 455(a) (8th (b)); Omega and we an- requirement timeliness by the S.A., 437, Omega, v. 432 F.3d Eng’g, Inc. nounced in Owens. Cir.2005) (§ (2d 455(b)); Stone 447-48 reading criticizes our Ow- The dissent Corp., 71 Hedge Props, Capital v. Phoenix statutory support no finding ens as (3d Cir.2003) 138, (unpub Fed.Appx. 141 455(b). textual We note text of lished) (§ 455(b)); Rog United States v. 455(a) require- timeliness support for a (9th Cir.1997) ers, 1377, 119 F.3d 1380-83 similarly lacking, and ment is (§ 455(a) (b)); Single Summers v. similarly provision under that is language (11th Cir.1997) 917, F.3d 920-21 tary, 119 precedent mandatory, yet under our (5th (§ 455(b)); York, F.2d at 1053-55 888 dispute. any requirement beyond is Cir.1989) (§ 455(a) (b)). event, certainly agree that our while we Meanwhile, only circuits have re- two plain analysis begin with the statute’s must requirement. to read in a timeliness fused pro- language, the absence of a timeliness first, so in SCA Seventh Circuit did inquiry further vision does not foreclose (7th 110, 117 Morgan, v. 557 F.2d Services meaning of a statute plain here. Even the Cir.1977), called that decision but has since “in the rare cases [in is not conclusive occasion, on more than one question into of a statute application the literal which] FCC, Commc’ns, Inc. v. 982 see Schurz demonstrably at odds produce will a result (7th Cir.1992) (“SCA 1057, Ser- 1060 Unit- with the intentions of its drafters.” (Posner, J., Enters., Inc., precedent.]”) vices is a weak ed v. Ron Pair States chambers); Murphy, United States L.Ed.2d 109 S.Ct. U.S. (observ- (7th Cir.1985) (internal (alteration (1989) 768 F.2d original) omitted). ing [in Services] that “our decision SCA marks Section quotation history. legislative only piece of relevant legislative history murky at 7. Section 455’s Porterie, amendment,] Rather, 666 F.2d "prior best. See Delesdernier v. to the 1982). Congress Cir. When 119-121 timely оbjec generally that a courts had held De the Justice revised the statute necessary.” Del tion under the old 455 was suggest adding explicit time partment an did esdernier, ”Thus[,] at 121. Con § 144. requirement like that found in liness easily gress' act could as have failure to [s] so, Congress declined to do Id. at 120. judicial that the result of a belief been the decision in dissent believes that our friend Id. gloss 455 would survive.” on old section inquiry.” at 180. But our Dissent "end[s] omitted). (internal quotation marks hardly Department’s suggestion is the Justice 170 alone”). 455(b)(4)

stands The Federal § has Circuit to remain on the case if he has also impose § declined to a formal 455 devoted substantial time the matter and filing requirement, in doing but so created divests himself of the interest8. The dis- what to a filing obligation amounts de facto sent reads the limitation provision of this principles equity. under of See Polaroid to financial legislative conflicts alone as a Co., Corp. v. Eastman Kodak determination that “timeliness and effi- (Fed.Cir.1989) 1421 no strict (finding are ciency important less than ensuring requirement timeliness but denying Ko- impartiality the judiciary dak’s requested relief due to its unreason- upheld.” Dissent at 181. As with the § ably tardy objection). 455 however, 455(f) provision, § waiver pres- recognize

We the countervailing interest ents a clean trade-off between efficiency in removing any judge who even bears impartiality. It does not address the slightest appearance of But partiality. we concerns about tactical sandbagging pres- should ignore not harm that would ent in this case. ensue if litigants permitted were to treat The dissent also that our contends deci-

motions for recusal as little than more today sion “pivots responsibility [for recu- stratagem. the Fifth observed, As Circuit judges sal] from the litigants.” to the Dis- “it might legitimately be whether asked sent at 182. That is entirely spectacle correct. an attorney dragging his agree We with our friend that when opponent through a long and costly pro judge “is grounds aware of ceeding, only to recusal by conclude moving for under section disqualification duty has a judge, of the is not equally recuse himself or public detrimental herself.” impressions Dissent at of the (internal judicial omitted). system” quotation as is a potentially marks biased The Delesdernier, judge. (in scenario we F.2d address here only arises when omitted). quotation ternal marks judge independently determines, “Con even if gress 455(a) § did not enact wrongly, allow that he need not recuse and a game counsel to amake ju party federal does not affirmatively seek recusal— ” diciary’s obligations.... ethical is, Id. We until an adverse decision has been should not legislative subvert that intent handed down. Both efficiency integri- merely party because a instead seeks re- ty require that we not party’s reward a 455(b). § cusal under tactics these circumstances.

Nor are by we moved the fact parties may not waive recusal under E. 455(b). § (the context, everyone judge and the parties) has acknowledged a Having held that Owens’s timely-filing conflict, but seeks nonetheless to ignore it. requirement applies to recusal motions un Thus, waiver cannоt be prejudice said to 455(a) (b) alike, § der we next consid one in particular, and pro- will not er whether Kolon complied with that re duce the gamesmanship we here. condemn quirement by “raising] disqualification 455(f). same must be said of ... judge] [of the at the earliest moment provision That permits a judge with a fi- after knowledge Owens, [its] the facts.” nancial conflict interest under 902 F.2d at 1156 (quoting Satterfield judge's 8. The May district disclosure of sal where a interest financial not imme- a financial present interest does not diately an issue controversy "could be substantially 455(f), 455(b)(4) requires recu- affected the outcome of proceeding.” one, August 2010. For Educ., log privilege Bd. Edenton-Chowan Cir.1975)). in the Akzo case judge’s direct involvement It did not. 567, 574-75 (or necessarily even the was not the judge court the fact that district eventual for Kolon’s strongest) basis at partner a McGuireWoods been had 455(b)(2) if, as Kolon recusal motion: public litigation was of the Akzo the time believed, litigation actually was a the Akzo sought discov- when Kolon first knowledge controversy, in the mere involve- matter in anti- the Akzo case materials ery of the law judge’s partners— of the former ment Given Kolon’s August in 2009. case trust clearly aware—would which Kolon court rec- litigation Akzo scouring of the another, his For required have recusal. Kolon had ords, clear that it further seems withholding of the relevant DuPont’s initial represent- known that McGuireWoods long why, af- explain does not communications case. Kolon was DuPont in the Akzo ed disclosure, Kolon failed to eventual its ter potential the con- formally alerted to also nearly a issue for disqualification the raise the clerk of court May when flict year. informing parties notice to the its issued in an financial interest judge’s of the them that our dissenting colleague warns Our Fi- entity affiliated with McGuireWoods. only diminish as to recusal will decision judge’s aware nally, Kolon became “At the for our public respect profession. (if in the negligible) involvement direct writes, “determina- day,” end of the he our Du- August when litigation

Akzo requests were tion that Kolon’s recusal privilege and the Akzo files produced Pont judge who untimely means that a district log. to conduct fur- longer permitted ... is no sum, every fact Kolon knew trade se- involving the proceedings ther motion eventually recusal predicated its a trial that presided over claims[] crets suggested first year a before it almost and a in a one billion verdict ended dollar July might appropriate, be recusal shut- production twenty-year worldwide finally filed its year a before over and (empha- at 184 injunction.” Dissent down motion, in November recusal first omitted). pre- did The district sis record, clearly failed Kolon quite On this trial, our decision a side over such ... the disqualification [of “raise the past. We have rewrite the here cannot [its] after judge] at the earliest moment however, that separately, concluded Id.9 knowledge of the facts.” be vacated verdict must trade secrets evidentiary rulings. judge’s based on the view, Nor, untimeliness in our is Kolon’s view, verdict —however single a In оur first knew by the fact excused hardly exists can longer no large judge’s involvement district court —that would more than confidence impair public alert the court case and failed to Akzo transforming rule recusal eventually produced its a that fact until it Kolon, $920 jury rendered adverse to recognize filed its motion to We that Kolon court's all tran- This had recuse in this case verdict for DuPont. million before ruling summary of an adverse recusal issuance filed its spired by the time Kolon not be judgment. here should But its actions while Ko- case. So motion in the antitrust that Kolon’s in a vacuum. viewed Recall in the sandbagging may be obvious lon’s a counterclaim claims arose antitrust case, global context of antitrust isolated action, proceed- trade secrets DuPont’s clear events makes view of the relevant case, be- quickly than antitrust ed more after suf- until held its fire on recusal case, In that judge. the same district fore case. fering in the secrets a defeat trade universally rulings issued series of quiver into an in the “additional arrow of vant than the information DuPont al- (2) [anticipated] in the face of ad- ready provided; advocates request remained rulings.” Emps. (3) verse In re Kan. Pub. extensive”; Ret. “sweeping and DuPont had (8th Cir.1996) Sys., 85 F.3d shown production of the requested (alteration (internal original) quotation documents “significantly would be burden- omitted). marks We therefore hold that some”; (4) request had been filed the district court acted within its discretion very late in discovery period, without in denying Kolon’s recusal motion on time- adequate explanation delay Ko- grounds.10 liness lon. J.A. 1020-22.

III. While we do necessarily share the district court’s view Kolon’s re We next consider Kolon’s chal quested transaction-level data would have lenges to certain of the district court’s been no more relevant aggregate than the discovery rulings. We review such rulings data DuPont provided, had theretofore we discretion, for may abuse of be discovery nevertheless find that the denial discovery found where “denial of has was sufficiently justified by the court’s de caused prejudice.” substantial Nicholas v. termination that the production would Int’l, Inc., Wyndham have (4th unduly been Cir.2004). burdensome. Kolon in

sists that thfe burden to DuPont was mini mal it requested only because “single A. spreadsheet” which it said could be “readi Throughout discovery, to enable its ex- ly compiled any existing database,” from perts perform analysis, their Appellant’s omitted), Br. at (emphasis sought access to DuPont’s transaction-level and because an affidavit from DuPont’s sales, and market-segment pricing, and Financing Global Director indicated that margin data. The district court denied already had an existing spread requests Kolon’s initial for this information sheet containing some of requested overly unduly burdensome, broad and transaction-level data. ignores But this gave but Kolon leave to reformulate its the sweeping nature of the information request. Conceding that its initial re- requested, which included all transaction- quests overbroad, had been Kolon eventu- customers, level details regarding geo ally requested production spreadsheet of a location, dates, graphic products, amounts, with data fields relevant to certain contest- ‍​‌​​​​​​‌​‌​​‌​‌​‌​‌​​​‌​​​‌‌​‌​​‌​‌​​‌‌​​‌‌‌​​‌‍cost, price, margins, profits. And ed issues. request indicated that the even if DuPont did have this information in responsive document should be in native “existing database[s],” that does not mean “any format from existing Ap- database.” it would very not have been burdensome to omitted). pellee’s (emphasis Br. at 43 compile the information into a “single The district court again denied Kolon’s spreadsheet.” Id. (1) request, concluding that DuPont had already produced Particularly extensive considering documentation pertinent on the topics, such that the re- court’s “wide latitude in controlling discov- quested data would any not be ery,” Fin., more rele- Inc., Rowland v. Am. Gen. light merits, holding, In of our we do not address required. recusal was not that, the district court’s ruling alternative (4th Cir.2003), general, we decline to summary judgment is appro ruling. disturb its priate where there is genuine no issue as any 56(a). material fact. Fed.R.Civ.P. genuine A issue of material fact exists

B. when there sufficient evidence on which appeals Kolon also the district court’s jury reasonable could return a verdict grant protective barring order Rule nonmoving favor of the party. Anderson 30(b)(6) deposition of DuPont on its strate- Inc., Liberty Lobby, v. 477 U.S. agreements. gic supply Justifying use (1986). 106 S.Ct. 91 L.Ed.2d 202 We order, explained the district court explained have summary judgment is Kolon had violated Federal Rule of Civil “an important tool for dealing with anti 30(b)(1) 30(H) Procedure and Rule cases,” trust Oksanen Page Mem’l Local Rules for the United States District Cir.1991) (en Hosp., 945 F.2d Court for the Eastern District Virginia banc), and that “partic antitrust cases are by “failing give reasonable written no- ularly well-suited for Rule 56 utilization” replacement tice ... deposition [a] no- due to the entanglement “unusual of legal 21, 2011,” tice it served on October they and factual issues” present, often wasted the time the court had Everett, Thompson Inc. v. Nat’l Cable Ad completion extended it for of deposi- its ven, L.P., (4th 57 F.3d Cir. tions. J.A. 1995). Again, we see no cause to disturb discretionary ruling. district court’s A. attempts pin

While Kolon to for the blame firstWe review the district grant court’s DuPont, discovery delays on it concedes summary judgment on monopo- Kolon’s that it gave days’ five for the notice lization claim. replacement deposition notice on served 21, 2011. October As the district court § 2 Act, Under of the Sherman a determined, this violated Local Rule Civil defendant is liable for monopolization a 30(H), generally requires which eleven (1) claim when that defendant possesses days’ notice of a deposition, advance (2) monopoly power willfully acquires 30(b)(1), Federal Rule Civil Procedure I, power. maintains that DuPont requires “reasonable” notice. Al at 441. In granting summary F.3d judg though Kolon five-days’ maintains DuPont, ment to the district court held notice was reasonable under the circum that Kolon genuine failed to create a issue stances, the district court acted within its of material prong, fact either conclud in conсluding discretion otherwise. ing that possessed DuPont neither monop

oly power engaged nor in willful mainte IV. nance power. of such We address each element turn. Finally, we consider challenge Kolon’s to grant summary district court’s judg- ment on its two ruling antitrust claims—a novo,

we viewing review de all “Monopoly power facts and power inferences in the prices competition.” reasonable therefrom control or exclude light Kolon, most favorable to the nonmov- United v. E.I. du States Pont de Nemours Peters, Co., ing party. 377, 391, See Pueschel 577 & 351 U.S. 76 S.Ct. (4th Cir.2009). (1956). possesses L.Ed. 1264 A defendant (which Kolon identified Europe than market if relevant power monopoly market), its the court to led comparable in the market.” “truly predominant it is sig- are fact that there Co., “[T]he conclusion. Paper 579 F.2d Int’l Bag v.Co. White barriers,” court Cir.1974). entry there nificant Although 1384, 1387 fill the factual continued, insufficient to “is share that market percentage fixed is no claim.” Id. monopolization in Kolon’s gaps monopoly resolves whether conclusively to control clearly power lacks the “DuPont exists, has nev- Supreme Court power court competition,” prices mar- and exclude than 75% less with er found “otherwise, summarized, it would have Anti- monopoly power. have ket share its the decrease in prevent been able Desk Ed. Regulation: Trade Laws & trust one its the rise of share and market have observed that And we 3.02[2][c][ii]. Id. major competitors.” found has been monopolization “when seventy to one hun- defendant controlled in the all evidence viewing Even market.” relevant percent dred Kolon, we agree light most favorable I, (quoting at 450 White DuPont did not the district court 1387). F.2d at Bag, 579 para- in the U.S. monopoly power possess share, market “some Beyond percentage period during market the relevant aramid durability on the also focused courts have First, although 2006 and 2009. between particu- power, the defendant’s market DuPont’s market Kolon is correct other eye an toward firms’ larly with during relevant of less than 60% share at 451 market.” Id. to enter the (in)ability necessarily foreclose does not period cases). (citing weigh it does finding monopoly power, Quite finding. sim heavily against such standards, district Applying these significantly falls short percentage this monopoly ply, lacked that DuPont court held drawn the previously of where we have (according ruling to our power. Whereas I, monopoly power. for See DuPont I) plead line adequately had in DuPont market (identifying at 450 70% alleg monopoly power element ed the range share as bottom controlled over 70% that DuPont ing had monopoly power). market, finding summary at the the relevant the district court found judgment stage Meanwhile, is also cor although Kolon significant actually possessed that DuPont factors do demon that certain other rect of that mar alleged 70% ly less than in the market strength DuPont’s strate Indus., Inc., v. E.I. du Pont ket. Kolon entry, ability price to high barriers to (e.g., 3:11-ev-622, Co., & No. De Nemours discriminate, margins), a show high profit 2012). (E.D.Va. 5, 1155218, Apr. *12 WL power” is not of DuPont’s “market ing observed, “Kolon’s own fact,” court “In pos that DuPont prove to itself sufficient DuPont had the view that expert takes “monopoly power.” See Eastman sesses dur percent market share of 59 maximum Servs., Inc., Image Technical Kodak Co. and that Du period, relevant ing the time 451, 481, 112 S.Ct. 504 U.S. per to 55 Pont’s market share decreased (1992) power un (“Monopoly L.Ed.2d 265 rather year period that three during cent course, something requires, § 2 der Id. than increased.” 1.”). power than market greater Furthermore, share, falls short this evidence market This decline DuPont’s in the durability market. showing DuPont’s as- Teijin’s corresponding combined with observed, uncontested As the district court and the cendance fact has experi- that DuPont facts demonstrate in the prices United States charging lower steady, decades-long signif- loss in enced account the relative strength par- Teijin. ties, icant market share to proportionate volume of com- merce involved relation to the total Ultimately, light of DuPont’s reduced volume of commerce in the relevant market share and lack of durable market area, market probable and the immedi- power, jury the evidence cannot sustain a ate and future effects which pre-emption finding “power that DuPont had the of that share of might the market have prices control or exclude competition,” competition effective therein. Pont, v. du United States 351 U.S. at “truly predominant 76 S.Ct. or was Id. at 81 S.Ct. 623. during period, the market” the relevant lines, Along these we have observed that Bag, 579 F.2d at White 1387.

“[t]he market share impor- foreclosed is because, tant for the contract adversely affect competition, ‘the opportunities for Even if Kolon presented a triable other traders to enter into or remain in element, issue on the monopoly-power Ko- that market must be significantly limit- lon also needed show that DuPont will- ” I, ed[.]’ DuPont 637 F.3d at 451 (quoting fully power. maintained that To violate Elec., Tampa 365 U.S. at 81 S.Ct. prong, engage this a defendant must 623). plaintiff Once a has demonstrated competition, gain conduct “to foreclose foreclosure, substantial it must then also competitive advantage, or to destroy a demonstrate that the conduct had “a nega- Kodak, competitor.” Eastman 504 U.S. at impact tive on competition in the market 482-83, element, S.Ct. On this as a whole.” Chuck’s Feed & Seed Co. v. theory Kolon’s was—and is—that DuPont Co., Ralston Purina alleged maintained its monopoly power (4th Cir.1987). through the of long-term, multi-year, use supply agreements exclusive with certain The district court held there was no para-aramid U.S. customers. genuine supply issue that DuPont’s agree- Although dealing agreements exclusive ments had not foreclosed a por- substantial are not per illegal, they “may se be an view, tion of the market. In its Kolon had improper means of acquiring or maintain- not sufficiently attempted quantify to fore- I, ing monopoly.” DuPont 637 F.3d at market, closure of the entire relevant (citing Corp., United States v. Grinnell instead had focused on DuPont’s al- 563, 576, 1698, 384 U.S. 86 S.Ct. 16 leged particulаr foreclosure of seg- market (1966)). L.Ed.2d Supreme The Court ments. degree Kolon’s evidence of the has held that an dealing arrange- exclusive foreclosure in those segments, which the ment does not violate antitrust laws unless best,” court characterized as “scant at did probable its competi- effect is “foreclose “nothing to reveal the amount of foreclo- tion in a substantial share of the line of sure in [para-aramid] the market as a commerce affected.” Tampa Elec. v.Co. Kolon, whole.” 2012 WL at *14. Co., 320, 327, Nashville Coal 365 U.S. 81 The court concluded that since DuPont (1961). S.Ct. 5 L.Ed.2d 580 supply agreements many had of which — explained: Court were only twenty-one non-exclusive—with To substantiality 1,000 determine given of approximately potential commer- case, necessary it is weigh proba- customers, cial para-aramid U.S. per- effect ble of the contract on the centage not, relevant of foreclosure could “as a competition, law, area of effective taking into matter grounds constitute sufficient key product with distrib sivity agreements foreclosure.” finding of substantial for a competi scale to deny utors could efficient at *15. Id. SM, tors); LePage’s Inc. v. Kolon had concluded that The court also Cir.2003) (en banc) (reversing sum (3d sup- that DuPont’s evidence” “put forth no holding that 3M’s bundled mary judgment, negative effect on had ply agreements- like agreements superstores with rebate Teijin’s noting that competition, overall cut Le- K-Mart and could have Wal-Mart fatаlly undercut ascendance” “relentless “key pipelines neces Page’s off from retail rejected Finally, the court that claim. Id. compete profitably”). sary permit it to twenty- that DuPont’s argument Kolon’s substantially arrangements supply one that a sin acknowledge we While market foreclosed the entire relevant percentage on the of cus gular emphasis a “critical crossing Kolon from blocking in foreclosed cannot resolve the tomers “high volume” customers. Id. bridge” to (as important of a few quiry foreclosure at *16-18. substantially could foreclose ac customers again stresses its “crit- appeal, Kolon On market), agree with the dis cess to a we theory. it does not bridge” ical While trict court that Kolon failed to show what supply agreements deny that DuPont had commerce” in “proportionate volume of 1,000 roughly only twenty-one of the with market was foreclosed the entire relevant para-aramid commercial potential U.S. agreements. Tampa by DuPont’s supply customers, Kolon contends that district Elec., 623; at see 365 U.S. 81 S.Ct. figures on those its emphasis court’s —and I, (discussing F.3d at 451 also DuPont “probable effect of disregard importance of market share foreclos of effective on the relevant area contracts] ed). Likewise, “critical although Kolon’s Elec., competition,” Tampa 365 U.S. bridge” theory certainly plausible, shortsighted. 81 S.Ct. 623—-was application support evidence does not its per- that DuPont Pointing to evidence here. threat, entry Kolon’s market ceived plaintiffs Dentsply .Unlike argues “strategically that DuPont LePage’s, Kolon offered no evidence high- supply agreements entered into (or customers even access to the foreclosed key commercially volume customers in segments) to the identified market ... entry segments that Kolon sustainable necessary to achieve scale ‍​‌​​​​​​‌​‌​​‌​‌​‌​‌​​​‌​​​‌‌​‌​​‌​‌​​‌‌​​‌‌‌​​‌‍the broader sought Appellant’s to enter.” Br. at 27- if para-aramid market. And even we U.S. rela- despite Kolon submits that significance of those customers assume tively low number and short duration of segments, and market Kolon does not dis- agree- supply agreements, DuPont’s these supply agreements pute bridge’ ‘critical ments “choked off the “key” than half of its identified with fewer entry into the market” be- Kolon’s U.S. within, segments. customers those they Kolon’s access to the cause foreclosed important high-volume customers. most Meanwhile, DuPont distin- persuasively at Id. LePage’s based on guishes Dentsply and in those “criti- cases from the the fact that defendants points Kolon to two which, view, plaintiffs’ bridge” embrace cal cases foreclosed Third Circuit its than to distribution networks rather bridge” approach. See Unit access this “critical Int'l, Inc., not convinced We are Dentsply 399 F.3d end-customers. ed States contends, (3d Cir.2005) that, “a distinc- as Kolon this is (reversing summary 181 Reply Br. at exclu- tion without difference.” judgment, holding Dentsply’s that observed, 15. As the district court unlike Focusing only on the final two prongs, Dentsply’s agreements with 3M’s that and thе district court found neither satisfied (1) foreclosed access distribution networks since Kolon had failed to demonstrate necessary many shown to be to reach end- substantial foreclosure of the relevant customers, presents “the record no reason resulting market from supply DuPont’s to think that Kolon could not sell to other agreements, meaning there was no anti- customers occupying segment (2) same of conduct; competitive DuPont had para-aramid ... market as customers lost market during share peri- relevant supply agreements have Du- od and prevent had failed to Teijin’s ascen- Kolon, Pont.” dance, WL *18. at meaning there dangerous was no of probability monopolization successful sum, we conclude that neither DuPont. probable nor the actual effect of DuPont’s supply agreements was to com- “foreclose Kolon first contends that DuPont’s sup- petition a substantial share of the line of ply agreements were anticompetitive, ar- Elec., commerce affected.” Tampa 365 guing entered these agree- U.S. at Accordingly, 81 S.Ct. 623. against ments its own interest in order to agreements those do not violate the willful block entry. Kolon’s market Appellant’s maintenance prong of our monopoliza- Br. at (citing M M Supplies, 31-32 & Med. tion inquiry. Kolon Because failed raise (noting 981 F.2d at 166 “a firm where genuine issue of material fact as to either attempting has been to exclude rivals on prong, summary judgment was appropri- some other than efficiency, basis it is fair ate on monopolization its claim. to characterize its predato- behavior as

ry”))- “dangerous On the probability of B. prong, success” maintains even if share of the para-aramid DuPont’s U.S. We next grant review court’s market did constitute monopoly actual summary judgment on Kolon’s attempt- power, it at least consistent with a monopolization ed claim. “dangerous probability” achieving such “Attempted monopolization power. at (citing Id. 23-24 MM & Med. ‘methods, employs practices means and (4th Supplies, Cir.1992) 981 F.2d at 168 would, successful, if accomplish (“[Cjlaims mo involving greater than 50% nopolization, which, though falling share should be attempts treated as short, approach so nevertheless as to close monopolization when the other elements ” dangerous create a probability of it.’ Du for attempted monopolization are also sat- I, Pont 637 F.3d at (quoting isfied.”)). M & M And Kolon 447, 456, 884, U.S. 122 Kolon, 113 S.Ct. light L.Ed.2d dence most favorable (1993). 247 the claim fails. it denied above, al- acted within its discretion when

First, DuPont’s as discussed on timeliness Kolon’s recusal motion conduct—its custom- anticompetitive leged grounds. not have the agreements supply er —did competi- “foreclosing] effect of probable defer to the district court’s consider- We of the line of in a share tion substantial overseeing discovery able discretion Elec., Tampa commerce affected.” discovery rulings. not disturb its On will 623; also IIIB see 81 S.Ct. .U.S. suit, of Kolon’s antitrust we the merits Law Hovenkamp, Antitrust Areeda & that Kolon agree with the district court (“[T]he 2008) ¶ (3d 806a, same at 412 ed. of material failed to raise a triable issue exclusionary conduct basic definition attempt- either its fact sufficient to sustain monopolization apply to both should monopolization claims. ed or actual claims.”). Nor, contrary to its attempt judgment of the district court is agree- Kolon show that the suggestion, did hereby anticompetitive as without ments were justification against DuPont’s business AFFIRMED. Rather, DuPont introduced

own interest. it entered the unrebutted evidence SHEDD, dissenting: Judge, Circuit re- agreements competitive as a supply have an “ab- judges I dissent. Federal Teijin’s prac- use of that same sponse to ... and cases within duty solute to hear tice, requested because customers Will, jurisdiction,” v. their United States them. 200, 215, 101 S.Ct. U.S. Second, genuine a Kolon has not raised “[fjairness (1980), ... L.Ed.2d 392 but re- “dangerous prob- issue that DuPont had actual bias in the quires an absence of ability” successfully achieving monopoly Werner, cases,” trial of United States power during period. the relevant As the (4th Cir.1990) (internal observed, DuPont’s market district court omitted). end, To that quotation marks steady share had decline for seven- been system always “our of law has endeavored years, proven teen and DuPont has unable of unfair- prevent probability even the Teijin or exclude prices to control U.S. (internal quotation ness.” Id. marks if entering from the market. And even omitted). principle, Consistent with this preclude declining market share does another Congress explicitly has created finding monopoly power, pointed duty judges: they absolute for federаl indicating to no evidence affirmative any must recuse themselves from case “dangerous probability” that DuPont where, practice judge] “in private [the regain sooner or its former would later lawyer matter in con- served as market dominance. troversy, lawyer or a with whom [the affirm the district Accordingly, we judge] practiced served previously law grant summary judgment court’s to Du- during lawyer such association as a con- attempted monopolization Pont on Kolon’s cerning the matter.” 28 U.S.C. 455(b)(2). claim. creating duty, In this Con- gress “placed obligation identify V. grounds upon the existence of those sum, himself, following requiring rather than recu- we conclude Ow- 455(b) ens, response in- to a affidavit.” recusals under 28 U.S.C. sal States, Liteky v. 510 U.S. judicially implied timely-filing clude a re- United (1994). 127 L.Ed.2d 474 quirement, and that the district court S.Ct. disagree I thus the with un majority’s partner below was a at McGuireWoods’ imposition warranted of a timeliness re Richmond office. Documents reflect that quirement that the bring shifts burden of during litigation the Akzo the district ing grounds forward recusal under judge spoke with from Fitz- co-counsel 455(b)(2) § judge litigants. from the to the patrick phone Celia on the and sent a That decision in the face plain flies letter a copy with of Akzo’s complaint at- language and the congres thwarts clear tached to him. 455(b)(2). purpose sional of It is also DuPont instituted this action precedent. inconsistent with our See Kolon, against arguing that Kolon misap- United States v. Lindsey, 556 F.3d propriated its trade secrets. (4th Cir.2009). As the ma- 246-47 Even accepting jority recounts, the judge, district through plays timeliness some limited role un court, the 455(b)(2), clerk of der I issued disagree further a brief notice the majority’s informing parties conclusion that Kolon judge’s Indus prior tries, (Kolon), Inc. acted in untimely partnership an at McGuireWoods and in- Rather, manner here. Kolon moved for parties structed the to move for recusal if (on grounds recusal judge’s they believed it was warranted. judge with which the was well already judge no took further action on the issue. aware) within a reasonable time be after Kolon filed an answer counterclaim, and a ing presented with discovery voluminous contending DuPont’s actions in the impeded by had been E.I. DuPont De market para-aramid fibers violated the (DuPont). Company Nemours & Finally, antitrust In August laws. early in view, in my judge presiding district in discovery, Kolon sought access to docu- this squarely case falls within the terms of ments from the litigation, Akzo believing 455(b)(2) in both this appeal and the that DuPont had public made the trade companion appeal, E.I. DuPont De Nem secrets it was now claiming Kolon had Inc., ours & v.Co. Kolon Industries No. misappropriated. DuPont’s counsel (Trade Case). 12-1260 Secrets I would (McGuireWoods) informed Kolon that thus summary vacate the judgment order had no documents litigation. from the Akzo in this appeal pro and remand for further Kolon renewed this request prior to the ceedings. discovery close of in April 2010 and was again pos- informed McGuireWoods I. Undeterred, sessed no documents. after I begin with a brief recitation of the the close discovery Kolon served a sub- pertinent facts. DuPont has сommercially poena Celia, on Fitzpatrick which revealed produced para-aramid fibers that Fitzpatrick Celia did have documents name Kevlar© since 1970s. In the from the litigation. Akzo These materials 1980s, engaged liti- worldwide were turned over to in August gation N.V., with Akzo which sold a com- The judge, involvement in- district peting para-aramid fiber, Twaron©, in- cluding the letter he Fitzpatrick sent to cluding a case in the Eastern filed District Celia, highlighted, part was but was (the Virginia litigation). Akzo In that 59,000 roughly page production. litigation, represented by DuPont was (now McGuire While the district judge Woods & Battle not made McGuire- Woods) Celia, aware of Fitzpatrick, the letter until Harper July & it can- Celia). (Fitzpatrick Scinto During not be disputed throughout discovery time of litigation, district was aware that Kolon intended 455(e). that, al- majority concludes by § The DuPont’s claims against itself

to defend waivable, mandatory recusal a though not the publicized DuPont had contending that 455(b) a subject to § is nonetheless Upon litigation. in the Akzo secrets trade requirement and stringent timeliness July in the letter informed of being case. long waited too this simply trade secrets case trial in the prior to disagree. I claims,1 antitrust of the prior to severance that he had “no recollec- judge stated timely-filing requirement majority’s The any First, involvement tion whatsoever” for several reasons. is misconstrued (J.A. 689). majority As the litigation. the addition of words simply it constitutes recounts, rule judge refused to interpreting stat further to the statute. “When a formally plain language.” filed until Kolon we start with on recusal utes Ass’n, Dep’t in both the trade se- Labor v. N.C. Growers for recusal U.S. motion Cir.2004). (4th “It is 377 F.3d 350 the antitrust case. crets and the statute’s established that when well pro- claims trade secrets Eventually, the function of the plain, is the sole language jury in a and culminated to trial ceeded disposition re least where the courts—at The district million. award of $919.9 not absurd2 —is to by the text is quired world- twenty-year a judge later entered to its terms.” Lamie according enforce it injunction shutdown production wide Tr., 526, 534, 124 540 U.S. v. United States DuPont’s granted Kolon and against na- (2004) (inter 1023, 157 L.Ed.2d 1024 S.Ct. on the anti- summary judgment tion for omitted). The statu quotation nal marks claims. trust 455(b) §of could not be tory language procedural no re plainer; it “sets forth II. Sibla, States v. quirements.” United 455(b) (9th Cir.1980). provides that recusal is also Section See F.2d “[wjhere alia, private Porterie, mandatory, inter Delesdernier Cir.1982) lawyer a judge] served as that “even after” practice (noting [the “ lawyer § a controversy, matter in in 1974 455 still statutory amendments require law served previously practiced explicit procedural he contains no whom ments”). lawyer any con- refer Congress’ association as omission during such prerequi as a timely-filed 28 U.S.C. ence to a motion cerning the matter.” 455(b) 455(b)(2). ‍​‌​​​​​​‌​‌​​‌​‌​‌​‌​​​‌​​​‌‌​‌​​‌​‌​​‌‌​​‌‌‌​​‌‍our § recusal should end Mandatory § recusal is not site to all, lightly do not inquiry.3 “[w]e After by parties. 28 U.S.C. waivable claims, The, slippery slope. It can lead to subject "can be a are the canon antitrust private judicial public and texts to trade revision of appeal, were severed from the of this view) (in judges’ more reason- September 2011. make them claims in secrets invoking hurdle for able.” Id. at 237. The absurdity very high Id. The majority's canon is thus “a one.” 2. The reference to the nothing "plausible misplaced. reason[]” There is absurd fact that there is canon is 455(b) timely-filing requirement omitting my reading discussed about —as statute, 455(b) absurdity infra, given purpose "forecloses recourse to Exploration & Prod. entirely plausible Congress did intend canon.” Little v. Shell not Co., (5th Cir.2012). requirement. impose timely-filing The disregard absurdity canon allows courts to by requir- majority compounds error adhering its statutory to the text 3.The text when timely ing be raised in a disposition that recusal result in a that no reason- “would be parties, but that recusal person approve.” Antonin Scalia fashion able could noted, 455(b) Garner, As Reading raised in a formal motion. Bryan A. Law: The Inter- & (2012). requirements. procedural More- Legal But the includes no pretation Texts 234 Congress has omitted from Congress’s response judicial assume its economy adopted requirements text that it nonethe concerns, and, importantly, it is limited to apply.” Immigra less intends to Jama v. 455(b). a single provision §of fact Enforcement, tion and Customs 543 U.S. that Congress spoke specifically to this one 335, 341, 125 S.Ct. 160 L.Ed.2d 708 suggests area that timeliness and efficien- (2005). cy important are less than ensuring

Second, the impartiality judiciary as if this silence were not of the upheld. is enough, § sig 455 contains two additional addition, In I a timely-filing believe re timely-filed that a nals motion is not re quirement subverts the statute’s intent. 455(b). 455(e) First, § quired § Section 455 “promote sеrves to public con provides mandatory may recusals integrity judicial fidence the pro the by parties. accepting be waived the Even Liljeberg cess.” v. Health Servs. Acquisi and timeliness are “waiver distinct 847, Corp., tion 486 U.S. 858 n. 108 S.Ct. issues,” York, United States 888 F.2d (1988). 2194, 100 L.Ed.2d 855 See also (5th 1050, 1055 Cir.1989), the non-waiver of F,2d Delesdemier, 666 at 121 (noting stat 455(b) § mandatory recusals reinforces the ute public serves “to increase confidence in section; nature of the if presiding the the judiciary by removing appear even the judge a triggering has event under impropriety ance of or partiality”). “Put 455(b), § judge disqualified simply, avoiding appearance impro must recuse even if parties oppose his priety is as important in developing public 455(f) Second, § provides yet recusal. an judicial confidence in our system as avoid that, signal. provision other That states ing impropriety itself.” United States v. “[njotwithstanding” the preceding statute’s Jordan, Cir.1995). 155-56 provisions, judge if a has invested “sub The statute was amended 19744 to har judicial stantial time” “to the matter” and § monize 455 with existing by then law “clari discovers that he has a financial con fy[ing] and 455(b)(4), broadening] grounds § flict of interest under judicial judge may disqualification remain in the if case he “divests and to conform himself or recently adopted herself of the interest.” with the ABA Code of 455(f). § provision Conduct, (1987).” U.S.C. represents This Judicial Canon 3C Un over, requirement accompanied of a by motion is further a certificate of counsel of by § undercut the existence of 28 U.S.C. stating good record that it is made in faith. provides: That statutе Section which was in existence at the party any proceeding Whenever a ain Congress § clearly time amended illus- timely district court makes files a Congress require trates knew how to a judge sufficient affidavit that before filing raising judge's preju- formal bias or pending personal whom the matter is has a 455(b). § dice and declined to do so in prejudice against bias or either him or in any party, judge favor adverse such shall 4. Prior to the 1974 amendments the statute therein, proceed no further but another provided: judge assigned pro- shall be to hear such Any justice judge or of the United States ceeding. disqualify any shall himself in case in which The affidavit shall state the facts and the interest, he has a substantial has been of prejudice reasons for the belief that bias or counsel, witness, is or has been a material exists, and shall be filed not less than ten any or is so related to or connected with days beginning before the of the term at attorney heard, improp- or his as to render it proceeding is to be or er, trial, good opinion, in his for him to sit on the cause shall be shown for failure to file party may appeal, proceeding within such time. A file or other therein. ed.). any (1970 one such affidavit in It case. shall be 28 U.S.C. 455 and limited equitable considerations n. 108 S.Ct. 2194. tied at 858

jeberg, 486 U.S. fact, apply- In cases independently scope. the earliest exist codes of conduct These con- by judges ing requirement followed a timeliness were must be 455 and Indeed, gamesman- our party. primarily parties’ by action cerned absent instance, in upon losing For system ship is based after case. entire recusal York, that, major- has informa when the 888 F.2d at cited notion of the subsections of triggers one that a timeliness re- ity, tion that the court noted 455(b), will recuse himself “proscribe motions quirement served any urging by par regardless of fully herself have invalidated a com- that would fact, § “is of this ty. recognition parties trial” and chastised pleted par rather than the judge, to the directed gleaned prior information would sit on ties, self-enforcing part on the and is until the trial’s outcome. See also trial Sibla, Thus, 624 F.2d at 867-68. judge.” (finding re- Conforte, 624 F.2d at 879-880 for recu- judge grounds if “is aware of untimely information cusal motion where 455, judge has a section sal under prior was learned to trial but not raised at to himself or herself.” Id. duty trial); recuse v. Hedge Props, until after Stone provisions “may these be as 138, 868. While Capital Corp., Fed.Appx. Phoenix 71 action,” party Cir.2003) a to the (3d (motion serted also untimely 141 when judge. with the primary duty remains judg- party prior learned of information to Conforte, 624 F.2d States v. United until five ment but recusal was not raised (9th Cir.1980).5 timely filing The re 880 later, ap- years judgment well after majori quirement, implemented by Ctr., Hosp. v. Med. peal); Apple Jewish & judges from the ty, pivots responsibility (2d Cir.1987) (noting F.2d 334 duty responsi litigants when entry whether motion was “made after the us. As the Federal bility should lie with judgment” of is one of four factors explained: has Circuit determining request timely). if was A require- requirement a timeliness in such circum- Application of “timeliness” point party a fixed or bench a learns of informa- requires ment stances —where (or not) may judge the timeliness or un- tion that the does not mark from which possess an action can measured but then sits on information timeliness of be X; a days litigation strategy after event before event as a sense as (e.g. 10 —makes Y). Thus, any- equity. of fairness or provision There is no such matter Nor most of these cases refusal of courts “[t]he where in section 455. could there action ‘start over’ has rested not on the mere be. The statute deals time, nothing passage of but on the events that had judge. It has to do with balancing equity/fair- occurred and the actions counsel. in deciding ness considerations whether to Co., Kodak Corp. Polaroid Eastman history’s events from expunge those (Fed.Cir.1989) (emphasis Corp., Polaroid 867 F.2d at 1419. pages.” added). Applying extent one insists that such a limited rule here leads Finally, to the recusal, I play inescapably should a role to the conclusion that Kolon timeliness timely Kolon that the role should be acted in fashion. As recounted agree with end, require parties require every appeal we we to file a do not each To this Corporate Disclosure Statement under Feder- requesting to file motion the recusal Appellate 26.1 al Rule of Procedure so judges. certain generate disqualifications; we can our own above, impeded discovery (4th Whorley, States v. 550 F.3d Cir.2008). turned Conversely, Akzo documents and over volumi- of more relevance discovery that did not highlight nous here is Lindsey, United States v. 556 F.3d Cir.2009). judge’s prior litigation. district role in the 246-47 In Lindsey, Moreover, at аll times the judge district court previously worked aware that pursuing was Kolon was discov- as an Assistant United States Attorney on ery of litigation. the Akzo Given these the criminal defendant’s case more than a circumstances, specific raising Kolon’s of decade earlier. For the ap- first time on prior peal recusal to trial the trade secrets of the denial of his 18 U.S.C. 3582(c) § sufficiently timely motion, claims is under the criminal defendant 455(b)(2). § potential raised the recusal of the district 455(b)(3). judge Although the majority opposite reaches the con district prior unaware of his by misconstruing, clusion and then incor participation, and no one brought it to his rectly on, Owens, relying United States v. attention, participation “his at that time is (4th Cir.1990).6 undisputed,” nonetheless and recusal was view, my Owens limited recusals un thus required. Id. In reaching 455(a) der and has no relevance to result, this we included neither a citation cases, one, 455(b). involving like this nor a Owens discussion of timeliness. 455(a)7 provides Section Instead, simply that, we concluded be- disqualify “shall in any proceeding himself cause judge fell within impartiality might in which his reasonably 455(b), § required recusal was regardless 455(a). § questioned.” be 28 U.S.C. Ow of Thus, when the issue was raised. con- interpreting only ens itself relied on a case trary to the I majority, our believe most 455(a), Delesdernier, § see 666 F.2d at precedent relevant supports the conclusion 121,8 our citing and cases to Owens’ timeli timeliness is not relevant under requirement ness have all arisen under 455(b).9 § 455(a), § Newport Holdings see News Vision, Inc., Corp. sum, v. City Virtual 650 In emplоyed by major- the rule (4th Cir.2011); F.3d ity 432 United timely a recusal motion if only is —that relies, majority part, 6. The also majority misapprehends importance on the 9.The imposing decisions of our sister circuits a Lindsey. According majority, to the Owens course, requirement. "agree- timeliness Of timely-filing requirement mandates in all among appeals ment courts of on an issue ... § Lindsey, although 455 cases. In the recusal invariably garnish Supreme does not Court appeal, issue was not raised until there is no States, approval.” McMellon v. United 387 timeliness, wholly discussion about which is (4th Cir.2004) (en banc) (Motz, F.3d my consistent with view that timeliness is J., dissenting). plain language Given the 455(b) § they irrelevant cases because 455(b), § unpersuasive. I find these decisions recusal, hinge mandatory on nature of the section, 455(b) specific timely § raising This like has no not the of it. If timeliness was Nonetheless, requirement. cases, timeliness for important majori- § in all as the case, purposes accept of this I that the lan- ty suggests, surely the issue would have at guage susceptible requirement is more to a Lindsey. Lindsey’s least been identified in party judge that the raise issue with the silence on timeliness reinforces the requirement and that such a is mandated thorough case’s discussion of recusal under Owens. 455(b) mandatory § proposition. as a fact, specifically In Delesdemier reserved the 455(b). question § timeliness See De- lesdemier, 666 F.2d at 123 n. 3. twenty-year shut- production moment after worldwide [its] “at the earliest raised not, facts,” injunction. does I (Majority Op. at down Such result knowledge think, judi- any delay inspire publiс confidence 170), whether regardless of ciary. majority’s judges The rule leaves or by gamesmanship whether caused duty with no enforceable to remove them- litigation early enough was raised by a party. selves from cases absent action incompa- result-is prejudice that no would cannot with the squared This result be purpose language tible with the purpose language. statute’s 455(b) required by prece- and is not our proves point. This case dent. III. knew, judge from the outset of

district prior rep- law firm was litigation, that his Having request concluded that Kolon’s represented a client that it when resenting court, this I now appropriately before discovery began, As partner. he was un- required address whether recusal was him judge multiple requests had before 455(b)(2).11 der have held that We litigation from Kolon to look into the Alezo judge simply “need not recuse himself be- filings, indicating pleadings possesses tangential some rela- cause he litigation the Akzo was central to Kolon’s tionship proceedings.” to the United on the merits of the trade secrets defense Cherry, States not a claims. This is case which Cir.2003). case, however, In this the dis- discovered, instance, financial informa- judge “tangential” trict more than a judge tion that the was unaware of and sat relationship. on that information until after trial. precedent Our establishes that the “mat- times, was, this case the at all aware controversy” ter includes more than the of the facts relevant to recusal under brought by In In claims DuPont. re 455(b)(2) up and it was to the (4th Cir.1976), Rodgers, statutory provisions.10 self-enforce those charged criminal were with us- defendants any placed To the extent burden is ing illegal procure passage means to Kolon, by raising it that burden satisfied Maryland. a racetrack consolidation bill in July, prior the issue to trial on the trade presiding judge’s The former firm law secrets claims. represented separate group of individu- day, majority’s criminally charged At the end of the als who were not but engaged lobbying determination that Kolon’s recusal re- in similar efforts. The quests untimely argued were means that a district criminal that defendants thus who, recuse; by the majority’s part argu- own determi- should as of this nation, ment, longer is no to conduct permitted argued they the defendants proceedings involving further intending the trade se- were to have his former law (and clients) claims, presided a trial partner testify crets over some of the they ended in a one billion dollar verdict and a gain pas- means undertook to issue, My opinion suggest majority should not be read to 11. The declines to this address judge engaged case, that the district in actual bias yet companion “supervi- in the uses its Rather, impartiality pur- in this case. sory powers” under 28 U.S.C. 2106 to re- 455(b)(2) pose disqualify judges, §of is to proceedings mand the case for further before they particular even if case, have no actual bias in a judge. another district See Trade Secrets Case great appear- because of the risk of the at 15-16. impartiality ance of bias or in a certain set of appearance cases. That is the issue in this case. Moreover, sage my view, consolidation bill. Govern- case. recusal was recusal, latest, opposed contending required, very ment at the by July prior “matter” was not the “matter controver- to the severance of the trade secret sy” counterclaim, because was not the “actual case claim from the antitrust before the court.” Id. at 1198. Even ac- which September 21, occurred on statute, Thus, cepting reading we mandatory court’s recu- required found recusal was because “the sal in the trade secrets claims likewise actual case before the court consists of mandates recusal on the antitrust counter- by more than charges brought by claims brought Kolon. It

government. also includes the defense case,

asserted the accused.” Id. In that IV. triggered recusal thus because the reasons, For the foregoing I would va- defendants’ “in proposed part defense cate summary judgment and remand for least, will consist evidence of matters proceedings new before a different district judge’s partner former served as judge. I therefore dissent. lawyer.” Id. See also Preston v. United

States, (9th Cir.1991) 733-35 455(b)(2)

(finding in controversy matter

requirement judge’s satisfied when former partners represented

law a company that

was not a to the court case but

might pro- be liable an indemnification ceeding if plaintiffs prevailed in the LLC, T-MOBILE NORTHEAST case). underlying Plaintiff-Appellee, clear, Rodgers As makes Akzo a mat- v. in controversy ter in this action. Kolon’s The LOUDOUN COUNTY BOARD OF defense to DuPont’s trade secrets claims is SUPERVISORS, Defendant- public many DuPont made of these Appellant. during litigatiоn. secrets the Akzo It cites to, materials, including other a letter from LLC, T-Mobile Northeast counsel, McGuireWoods, DuPont’s stating Plaintiff-Appellant, agreed that DuPont to “totally declassify documents, all trial exhibit proposed all findings deposition excerpts of fact and all County The Loudoun Board of and summaries submitted to the Court.” Supervisors, Defendant- (J.A. 13347). 12-1260 at The district court Appellee. excluded this evidence—an exclusion we 12-2396, Nos. 12-2397.

today rule was reversible error. See Trade Secrets Case at 14-15. This evi- Appeals, United States Court of dence, pertinent defense, so to Kolon’s Fourth Circuit. makes Akzo ‍​‌​​​​​​‌​‌​​‌​‌​‌​‌​​​‌​​​‌‌​‌​​‌​‌​​‌‌​​‌‌‌​​‌‍a in controversy. matter Argued: Dec. DuPont contends—at least as to this April Decided: appeal the antitrust claims are too —that attenuated from Akzo to be the same mat-

ter in controversy. reality, litiga- this

tion all the same action and the same notes even Serv., Supplies Med. Inc. v. & Pleasant though “DuPont’s market share declined Inc., Valley Hosp., slightly three-year over the period, that Cir.1992)). To an prevail attempted not, law, does as a matter preclude monopolization 2,§ claim under a claimant finding monopoly power, much less a (1) must show a specific intent to monopo dangerous probability achieving it.” Id. (2) market, lize a relevant predatory at 24 (citing finding monopoly cases power (3) acts, anticompetitive a dangerous share). despite a declining market probability of monopolization. successful Spectrum Sports, McQuillan, Inc. v. again, even viewing But the evi

Case Details

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

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 3, 2014

Citation: 748 F.3d 160

Docket Number: 12-1587

Court Abbreviation: 4th Cir.