In re Cathode Ray Tube Antitrust Litig.

Full title: IN RE: CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION This Order Relates To…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Aug 31, 2015

MDL No. 1917 (N.D. Cal. Aug. 31, 2015)

Opinion

MDL No. 1917 Case No. C-07-5944-SC

08-31-2015

IN RE: CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION This Order Relates To: ALL ACTIONS

ORDER SETTING HEARING FOR OBJECTIONS TO APPOINTMENT OF SPECIAL MASTER

The Court has received objections to the appointment of U.S. Magistrate Judge (Ret.) James Larson ("Judge Larson") as a Special Master to hear those motions before the Court as described at the Status Conference held on August 7, 2015. See ECF No. 4021; see also ECF No. 3986; Fed. R. Civ. P. 53(a)(1)(C).

The Court is not in the habit of releasing preliminary rulings. However, to ensure parties can address the concerns of the Court at a hearing the Court will order herein, the Court makes a rare exception and discloses that it leans toward a finding that the marital relationship of the proposed Special Master to Judge Illston is irrelevant.

Judge Larson is an honest, reliable, and trustworthy individual whose many years of service to the Court give the Court great confidence in his ability to be fair and impartial when considering judicial opinions authored by his spouse. The Court is equally confident that he will use his own resources when making decisions, and will consider the need for an order that he not be permitted to discuss the substance of this case with his wife until after this case is done.

Insofar as parties cite 28 U.S.C. § 455, the Court is inclined to find that the precedent supports this appointment. Section 455, Subsection (a) states in relevant part that: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The United States Supreme Court has clarified that the goal of this subsection is to "avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists. . . ." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). The test, as reformulated by the Ninth Circuit, has been:

"'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" Herrington v. County of Sonoma, 834 F.2d 1488, 1502 (9th Cir. 1987) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). "Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits." In re Mason, 916 F.2d 384, 385 (7th Cir. 1990). The "reasonable person" in this context means a "well-informed, thoughtful observer," as opposed to a "hypersensitive or unduly suspicious person." Id. at 386.
In determining whether disqualification is warranted under § 455(a), we also apply the general rule that questions about a judge's impartiality must stem from "extrajudicial" factors, Liteky v. United States, 510 U.S. 540, 554[] (1994), that is, from
sources other than the judicial proceeding at hand. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir. 1991) (citing Toth v. Trans World Airlines, 862 F.2d 1381, 1388 (9th Cir. 1988)).

We are also mindful "that section 455(a) claims are fact driven, and as a result, the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue." United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999).

Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005). Clemens also cited approvingly the list by the Tenth Circuit in Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). See Clemens, 428 F.3d at 1178-79.

As applied, the Ninth Circuit has clarified that many instances do not rise to a level requiring recusal. See S.E.C. v. ING USA Annuity & Life Ins. Co., 360 F. App'x 826, 828 (9th Cir. 2009) ("There is no authority for the proposition that judges must recuse themselves if they served as mediators in a related proceeding."); Clemens, 428 F.3d at 1179-80 (all the Federal Judges in a judicial district did not need to be recused after collective death threats); Jorgensen v. Cassiday, 320 F.3d 906, 911-12 (9th Cir. 2003) (where a former law clerk who finished working for a judge eight years ago threatened to use his influence to guarantee a favorable judgment, the judge did not have to recuse himself); Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998-1001 (9th Cir. 2003) (Judge Patel did not need to recuse herself when pursuing her administrative role as an enforcer of the behavior and standards for an already appointed special master). Simple "conclusions and opinions" are also insufficient allegations of prejudice. Keyter v. Locke, 182 F. App'x 684, 685-86 (9th Cir. 2006).

Here, two cases are particularly instructive. See In re Smith, 317 F.3d 918, 933-34 (9th Cir. 2002); Perry v. Schwarzenegger, 630 F.3d 909, 915-16 (9th Cir. 2011). In Smith, the Ninth Circuit established that:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . . Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Id. at 933 (quoting Liteky, 510 U.S. at 555) (emphasis in original). Rather, expression of opinions only require recusal where they "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Id. (quoting Liteky, 510 U.S. at 555). Based on this understanding of Liteky, the Ninth Circuit in Smith found that an opinion from a prior proceeding can only be a basis for recusal where the opinions display "a deep-seated favoritism or antagonism." Id. (internal citation omitted). Thus, the predisposition of the judge in Smith to approve a settlement with modification did not show any bias, and the fact that the inclination did not change through many hearings was insufficient "to indicate that it was impossible for [that judge] to change his mind." Id. Even adverse rulings did not rise to the level of the "deep-seated antagonism or favoritism [required] to render a fair judgment impossible." Id. Smith thus held that "[e]ven if Judge Jones clung to his opinion, a little stubbornness is not ordinarily grounds for disqualification." Id. at 934.

In Perry, the Ninth Circuit examined an instance where a Judge did not recuse himself in spite of very public statements and actions by his wife that were directly on point. See Perry, 630 F.3d at 914-16. There, the judge reasoned that his "recusal under § 455(a) would still be appropriate only if a reasonable person with knowledge of all the facts would reasonably believe that, by virtue of [his] marriage, [he] might approach and decide this case differently than [he] would have otherwise approached and decided it." Id. at 914 (citations omitted). Perry then catalogued how the judge's wife had no interest in the outcome of the case (beyond that of any American interested in that type of case), and how even though the judge's wife headed (part of) an organization (the ACLU) with an interest in that case, the ACLU had no filings before the court and thus had nothing to gain. Id. at 914-915. The court then expressly considered that even though the views of the judge's wife or those of the ACLU may come before the court,

"[the judge's wife] is an independent person who need not obtain [her husband's] approval or agreement to advocate for whatever social causes she chooses. The views are hers, not [her husband's], and [the judge does] not in any way condition [his] opinions on the positions she takes regarding any issues."

Id. at 916. Therefore, the panel reasoned that a reasonable person who truly knew all the facts would not believe the judge would be partial or biased due to his wife's views on social policy, "whether those views are publicly expressed and advocated for, or not, and whether advocated for by her in her private capacity or in her capacity as head of the ACLU/SC." Id. The court also cited that the judge in that case had been a jurist for 30 years, and any person familiar with his record would not reasonably believe that beliefs of his wife would bias him. See id.

Here, the Court's sense is that certain parties are concerned that Judge Larson, after 14 years of federal service, will be swayed by the written opinions of his wife Judge Susan Illston, a Federal, Article III Judge of 20 years. These same parties seem concerned that Judge Larson will give greater weight or deference to decisions by Judge Illston. Yet Smith clearly teaches that former judicial decisions do not yield bias absent a deep-seated favoritism or antagonism which is clearly lacking in this case. And Perry stands for the proposition that a spouse's personal or professional opinions do not always yield bias to a federal judge such that recusal is required. The concerned parties offer merely "conclusions and opinions," and thus fail to offer a sufficient allegation of bias. Keyter, 182 F. App'x at 685-86.

The Court recognizes the key difference from Perry that certain parties would no doubt cite -- that unlike the judge in Perry, Judge Larson would be forced to evaluate the judicial opinions decided by his wife. True, it may be awkward for parties to argue to Judge Larson that he should reach a finding contrary to that of his wife, or for Judge Larson to hear such arguments. But under Section 455 this justifies only permissible rather than mandatory recusal. Critically, Judge Illston has nothing to gain or lose from her husband's conclusions -- even if Judge Larson were to uniformly agree or uniformly disagree with Judge Illston, Judge Illston would be no better off, no worse off, and no more or less likely to be upheld or reversed on appeal. Armed with that simple knowledge, any reasonable person familiar with the circumstances -- to include Judge Larson's judicial record and that of his spouse -would not hesitate to affirm that the decisions Judge Larson will reach will be fair, equitable, and will in no way grant any improper deference to the work product of his spouse. Therefore, the Court is inclined to overrule the pending objection.

To ensure adequate opportunity to be heard, the Court hereby ORDERS that there be a hearing at which interested parties may appear before the Court. See Fed. R. Civ. P. 53(b)(1). Parties are not required to attend if they do not wish to be heard further on this matter. The hearing will be Friday morning, September 11, 2015, at 10:00 am, at the San Francisco Courthouse, 17th Floor, Courtroom 1.

IT IS SO ORDERED.

Dated: August 31, 2015

/s/_________

UNITED STATES DISTRICT JUDGE