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

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1587
KOLON INDUSTRIES INCORPORATED,
Plaintiff – Appellant,
v.
E.I. DUPONT DE NEMOURS & COMPANY,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cv-00622-REP)
Argued: May 17, 2013 Decided: April 3, 2014
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Senior Judge Davis joined. Judge Shedd wrote a dissenting
opinion.
ARGUED: Stephen Blake Kinnaird, PAUL HASTINGS LLP, Washington,
D.C., for Appellant. Kent A. Gardiner, CROWELL & MORING, LLP,
Washington, D.C., for Appellee. ON BRIEF: Daniel B. Goldman,
PAUL HASTINGS LLP, New York, New York; Jeff G. Randall, Igor V.
Timofeyev, Samer M. Musallam, PAUL HASTINGS LLP, Washington,
D.C., for Appellant. David D. Cross, Jeffrey L. Poston, CROWELL
& MORING, LLP, Washington, D.C.; Adam H. Charnes, KILPATRICK
TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for
Appellee.
DIAZ, Circuit Judge:
In this Sherman Act case, we review the district court’s
grant of summary judgment in favor of Defendant-Appellee E.I. du
Pont de Nemours and Company (“DuPont”). We also consider
challenges by Plaintiff-Appellant Kolon Industries Incorporated
(“Kolon”) to certain of the district court’s discovery rulings
and its denial of Kolon’s recusal motion. Finding no reversible
error, we affirm.
I.
A.
The merits of this case concern Kolon’s claim that DuPont
attempted to wield, or did wield, monopoly power over the U.S.
para-aramid fiber market in violation of Section 2 of the
Sherman Act, 15 U.S.C. § 2. 1 Para-aramid is a strong, complex
synthetic fiber used in body armor, tires, fiber optic cables,
and a variety of other industrial products. Three para-aramid
producers--DuPont, Teijin Aramid (formerly a division of the
1
We recite the relevant facts in the light most favorable
to Kolon. In so doing, we have done our best to honor the
parties’ oft-overzealous desires to keep certain purportedly
sensitive information under seal. However, to the extent the
district court has already disclosed (without objection) such
information, we treat it as public knowledge.
2
Dutch company Akzo N.V.), and Kolon--sell their para-aramid
fibers to U.S. consumers.
DuPont invented para-aramid fiber in 1965, and for a period
controlled the entire U.S. para-aramid market with its Kevlar©
fiber. Teijin introduced its competing Twaron© fiber to the
U.S. market in 1987 and has chipped away at DuPont’s share of
that market every year since 1990. According to one of Kolon’s
expert witnesses, during 2006-2009 (the relevant time period),
DuPont’s share of the U.S. para-aramid market (the relevant
geographic and product markets) fell from a high of 59% in 2006
to 55% in 2009, with most of this loss going to Teijin.
The U.S. para-aramid market is highly concentrated between
Dupont and Teijin, which together account for 99% of U.S. sales.
This extreme market concentration owes at least in part to the
industry’s high entry barriers. As Kolon showed, para-aramid
production is time-intensive and expensive, and potential
customers test and “qualify” each para-aramid product to ensure
it meets their particular needs, a process that typically takes
six months to three years. In addition to this evidence of
market concentration and high barriers to entry, Kolon adduced
evidence that DuPont, despite Teijin’s encroachment, earned
profit margins of as high as 75% between 1997 and 2005 and had
the ability to price discriminate among its customers.
3
Kolon made its foray into the U.S. para-aramid market in
2005 with its Heracron© fiber. Kolon’s evidence showed that
DuPont considered Kolon’s market entry to be a threat.
Anticipating Kolon’s potential encroachment, DuPont began
identifying segments of the market that it viewed as hospitable
to entry, including auto short fibers (pulp for brakes and
gaskets), tires, manufactured rubber goods, and fiber optic
cables. According to Kolon, DuPont then undertook a strategy of
executing multi-year supply agreements with high-volume
customers in each identified segment, requiring these customers
to purchase most or all of their para-aramid requirements from
DuPont during the relevant time period.
These supply contracts contained restrictions, such as
volume purchase commitments and “meet and release” clauses, that
required any competing para-aramid seller to propose a bid at a
designated lower amount than DuPont’s existing price, prohibited
the customer from informing the competing seller of DuPont’s
price, and gave DuPont a right to match any competing offer. As
a result of these allegedly anticompetitive practices, Kolon
insists, it never achieved more than a de minimis market share
during the relevant time period. By contrast, Kolon was able to
penetrate other comparable para-aramid markets, such as Europe.
DuPont, for its part, attributes Kolon’s failure to
penetrate the U.S. market to Kolon’s own shortcomings.
4
According to DuPont, Kolon undertook only a “feeble effort” to
establish a U.S. foothold, using only seven sales agents,
inadequately investing in product offerings and supply capacity,
and contacting only a small percentage of potential customers as
of October 2009. Meanwhile, DuPont defends its supply
agreements as a competitive response to Teijin’s use of such
practices, and as driven by consumer demands.
DuPont also attempts to diminish the reach of its supply
agreements, noting that it entered into only twenty-five
agreements with twenty-one U.S. customers, collectively
accounting for only a small percentage of its U.S. revenue. Of
those agreements, DuPont says, only a portion obligated the
customer to purchase some amount of Kevlar, and these had
typical durations of two years or shorter. Meanwhile, none of
DuPont’s supply agreements precluded competitors from qualifying
their products with the customer while the DuPont agreement was
in effect. And of the group of “key” customers Kolon identified
as necessary to establish a foothold for effective competition,
DuPont notes that the majority had no supply agreement with
DuPont during the relevant period. Appellee’s Br. at 38. In
short, DuPont submits that myriad self-inflicted failures--not
DuPont’s supply agreements--frustrated Kolon’s U.S. market
penetration.
5
B.
DuPont brought suit against Kolon alleging the theft and
misappropriation of its Kevlar trade secrets (the “trade secrets
case”). Kolon’s answer included the instant counterclaim (the
“antitrust case”), alleging that DuPont had illegally
monopolized and attempted to monopolize the U.S. para-aramid
market through its supply agreements with high-volume para-
aramid customers. DuPont moved, under Federal Rule of Civil
Procedure 12(b)(6), to dismiss Kolon’s counterclaim. The
district court granted that motion, with leave to amend. Kolon
filed an amended counterclaim, followed by a second amended
counterclaim, which was also dismissed for failure to state a
claim, again with leave to amend. Kolon declined to further
amend the counterclaim, opting instead to appeal the dismissal.
We reversed, holding that Kolon had adequately pleaded both its
actual and attempted monopoly claims, and remanded the matter to
the district court for further proceedings. E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc. (DuPont I), 637 F.3d 435(4th Cir. 2011).
On remand, the district court tried the trade secrets claim
separately, culminating in a $919.9 million jury verdict for
DuPont on September 14, 2011. The court then formally severed
the two claims. The court also issued several rulings adverse
to Kolon in the antitrust case. First, the district court
6
denied Kolon’s motions to compel DuPont’s production of
transaction-level sales and cost data, concluding that this
discovery would significantly burden DuPont and would not be any
more useful than the aggregate sales and cost data DuPont had
already produced. The district court also denied Kolon’s
motions--filed on grounds described below--for recusal and
disqualification in both the antitrust and trade secrets cases.
The district court further denied Kolon’s request to depose a
DuPont corporate representative concerning its strategic use of
supply agreements. Finally, the district court granted summary
judgment to DuPont on both Sherman Act claims, dismissing them
with prejudice. Kolon timely noted this appeal.
II.
Before turning to the merits of the antitrust claims, we
first consider Kolon’s argument that the district court judge
was required to recuse himself in both the instant antitrust
case and the trade secrets case, which is also now before us on
appeal. See E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., No. 12-1260 (argued May 17, 2013).
A.
Kolon’s recusal motion is based on the district court
judge’s involvement, while in private practice, in litigation
that, according to Kolon, presents a matter in controversy in
7
the instant dispute. In the 1980s, DuPont and Akzo N.V.,
Teijin’s predecessor, became embroiled in several patent
lawsuits relating to the manufacture and sale of para-aramid
fibers. In one such dispute, Akzo sued DuPont in the United
States District Court for the Eastern District of Virginia for
infringement of an Akzo para-aramid patent.
In the Akzo case, DuPont was defended by the law firms
Fitzpatrick, Cella, Harper & Scinto (“Fitzpatrick Cella”) and
McGuire Woods & Battle (now “McGuireWoods”). In the 1980s and
at the time of the Akzo case, the district court judge was a
partner at McGuireWoods. As a result, he was a limited partner
in an affiliated entity, and continued to receive small payments
from McGuireWoods of rent for furnishings. Because McGuireWoods
also served as counsel to DuPont in the present litigation, in
May 2009 the clerk of court issued a notice informing the
parties of the judge’s related financial interest. The judge
noted then that he did not believe grounds for disqualification
existed, but he instructed the parties to file a motion within
20 days if they believed otherwise. Neither party filed a
motion or otherwise objected to the judge’s continued
participation in the case.
Kolon believed the Akzo matter was central to both its
defense of the trade secrets case and its maintenance of the
antitrust case. In the antitrust case, Kolon began seeking
8
discovery of the Akzo case files in August 2009. It contended
that the Akzo litigation--which also included a counterclaim
filed by DuPont, and which was ultimately resolved pursuant to a
settlement that restricted Akzo’s exports to the United States--
was relevant evidence of DuPont’s anticompetitive practices and
its intent to monopolize the U.S. para-aramid market.
In the trade secrets case, beginning in April 2010, Kolon
conducted extensive discovery into the Akzo litigation on the
theory that DuPont’s asserted trade secrets had been revealed in
the course of that litigation and therefore were no longer
secret. In August 2010, the district court ordered
McGuireWoods, DuPont, and Fitzpatrick Cella to review the Akzo
case files and to produce responsive documents. Later that
month, DuPont produced approximately thirty boxes of documents,
along with a privilege log, from Fitzpatrick Cella’s files.
One of the entries on the privilege log showed that in May
1985, Mr. Fitzpatrick of Fitzpatrick Cella had sent the district
court judge, then a partner at McGuireWoods, a letter confirming
a telephone conversation in which Fitzpatrick had asked the
judge to send him a facsimile of the complaint filed by Akzo.
The privilege log also indicated that, per Mr. Fitzpatrick’s
request, the judge had faxed him a copy of the complaint.
Nearly a year later, on July 20, 2011, Kolon filed a
memorandum opposing one of DuPont’s proposed jury instructions
9
in the trade secrets case. In that memorandum, Kolon stated
that it was “compelled to point out that there is some question
whether Your Honor should be adjudicating these matters [due to
DuPont’s production of documents] indicating a role by Your
Honor in the earliest stage of the Akzo litigation.” Kolon
Indus., Inc. v. E.I. du Pont de Nemours & Co., 846 F. Supp. 2d
515, 519 (E.D. Va. 2012) (quoting 3:09-cv-58, Docket No. 1247)
(emphasis omitted). In a subsequent telephone conference with
the court, Kolon’s counsel explained that the source of its
concern was the May 1985 letter from Mr. Fitzpatrick to the
district court judge.
The district court judge then ordered DuPont to produce any
documents concerning his involvement in the Akzo litigation,
which ultimately comprised only the two documents described
above: the May 1985 letter from Mr. Fitzpatrick to the judge
requesting a copy of the Akzo Complaint, and the judge’s
responsive facsimile cover sheet, with the Complaint attached.
Following further inquiry into the matter, Kolon’s counsel
represented that they had reviewed all the non-privileged
documents from the Fitzpatrick Cella files and that none of
those documents contained the judge’s name; DuPont’s counsel
made similar representations with respect to the files’
privileged documents.
10
After reviewing the two relevant documents, the district
court judge determined that he had no recollection of the
communication with Fitzpatrick or of any involvement in the Akzo
litigation. Kolon said nothing more then about the issue.
During these inquiries, the trade secrets trial began as
scheduled, and the jury returned a $920 million dollar verdict
for DuPont after a seven-week trial. Meanwhile, discovery in
the antitrust case was underway following our March 2011
reversal of the district court’s initial dismissal. As in the
trade secrets case, the parties came to a head over Kolon’s
proposed discovery of the Akzo litigation files, and in
September and October of 2011 filed reciprocal motions
respectively seeking to compel and protect that information.
Then, on November 30, 2011, two months after the jury
verdict in the trade secrets case, and two days before motions
for summary judgment were due in the antitrust case, Kolon filed
its recusal motion, which the district court denied. 2
2
In its motion and supporting memorandum, Kolon also
suggested that the district court “revisit its refusal to
recuse” from the trade secrets case, apparently referring to the
discussion of recusal in July. Docket No. 247, at 2; Docket No.
248, at 31. Kolon filed no separate motion for recusal in the
trade secrets case at that time, but did briefly reference
recusal in several subsequent filings. On December 9, 2011,
Kolon filed a reply in support of its motion for a judgment as a
matter of law; in a footnote, it reminded the court of its
position that the judge should not have ruled regarding the
adverse jury instructions. See Docket No. 1738, at 13. On
(Continued)
11
B.
28 U.S.C. § 455(b)(2), the provision on which Kolon relies,
provides that any judge of the United States shall disqualify
himself
[w]here in private practice he served as a lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such
association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness
concerning it.
28 U.S.C. § 455(a), which also has some relevance to our
inquiry, provides that “[any judge] of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 3
December 23, Kolon asked the court to consider recusal in its
memorandum supporting its motion to stay the injunction
proceedings. See Docket No. 1813, at 19. And in its reply
regarding that motion, on January 11, Kolon insisted that a
formal motion for recusal was unnecessary. See Docket No. 1843,
at 19 (responding to Docket No. 1830, at 26-27). During a
January 2012 hearing on Kolon’s motion for a new trial and
judgment as a matter of law in the trade secrets case, counsel
for Kolon again requested that the district court judge recuse
himself. The judge refused to do so, explaining that he did not
have a recusal motion before him in that case. Three days
later, on January 27, 2012, Kolon filed its motion for recusal
and disqualification in the trade secrets case. The district
court denied the recusal motions in both cases on February 21.
3
A separate recusal statute, 28 U.S.C. § 144, provides
parties with one opportunity per case to file an affidavit that
the presiding judge has a personal bias or prejudice regarding a
party. If the affidavit is sufficient, accompanied by a
certificate of good faith, and timely filed, another judge will
(Continued)
12
The district court reasoned that although § 455 is itself
silent on whether a party seeking recusal must timely file a
motion with the court, and despite the mandatory text of
§ 455(b) (“[Any judge] . . . shall disqualify himself . . . .”),
the majority of circuits, including this one, have found that
§ 455 includes a timeliness requirement. Kolon Indus., 846 F.
Supp. 2d at 522 (citing, inter alia, United States v. Owens, 902
F.2d 1154, 1155 (4th Cir. 1990)). Accordingly, because Kolon
had delayed in filing its recusal motion for almost a year after
it learned of the alleged conflict, the district court denied
Kolon’s motion as untimely.
Ruling in the alternative on the merits, the district court
concluded that even ignoring the untimeliness of Kolon’s motion,
recusal was unnecessary under § 455(b)(2) since the Akzo
litigation was not “sufficiently related” to the instant action
to “constitute parts of the same matter in controversy.” 4 Id. at
528 (quoting United States v. DeTemple, 162 F.3d 279, 286 (4th
Cir. 1998)).
be assigned to the proceeding. Kolon did not seek recusal on
this ground in the district court.
4
Additionally, the district court held that recusal was
unnecessary under § 455(a). Since Kolon does not appeal that
ruling, we do not address it.
13
C.
We review a judge’s recusal decision for abuse of
discretion. United States v. Mitchell, 886 F.2d 667, 671 (4th
Cir. 1989).
We first consider Kolon’s challenge to the district court’s
holding that § 455(b)(2) includes a timely-filing requirement
that Kolon failed to satisfy. Kolon maintains that the district
court erred by relying on Owens, in which we said that
“[t]imeliness is an essential element of a recusal motion,” and
that notwithstanding the absence of an explicit timely-filing
requirement in § 455, such a requirement is “judicially
implied.” 902 F.2d at 1155.
This language, Kolon submits, does not control here because
it speaks only “broadly about section 455 and did not specify
whether this requirement should apply to both subsections (a)
and (b) or solely to [sub]section 455(a).” Appellant’s Br. at
58. In Kolon’s view, Owens “more likely” involved a situation
under § 455(a) in which the judge’s “impartiality might [have]
reasonably be[en] questioned,” not a § 455(b)(1) scenario
implicating “personal bias or prejudice.” 5 Id. at 59.
5
28 U.S.C. § 455(b)(1) requires a judge to recuse himself
“[w]here he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
[a] proceeding.”
14
Accordingly, Kolon believes Owens merely resolved that a timely
motion is required when recusal is implicated under § 455(a),
leaving open that question with respect to § 455(b).
In Kolon’s view, the § 455(a) and (b) provisions are
different enough to explain the presence of a timeliness
requirement in the former despite the absence of such in the
latter. Unlike § 455(a), § 455(b) may not be waived by the
parties. See 28 U.S.C. § 455(e) (“No [judge] shall accept from
the parties to the proceeding a waiver of any ground for
disqualification enumerated in subsection (b). Where the ground
for disqualification arises only under subsection (a), waiver
may be accepted . . . .”). From Kolon’s perspective,
subsections 455(b) and (e) create a “jurisdictional limitation
on the authority of a judge to participate in a given case,”
leaving the judge with a sua sponte obligation to recuse himself
or herself when he or she knows the predicate facts implicating
§ 455(b). Appellant’s Br. at 60 (quoting United States v.
Gipson, 835 F.2d 1323, 1325 (10th Cir. 1988) (internal quotation
marks omitted)). Thus, Kolon continues, “requiring a timely
party motion as a condition precedent to enforcing section
455(b) runs contrary to statutory design, effectively relieving
the judge of his personal statutory duty.” Id.15
D.
While Kolon’s arguments do not entirely lack merit, we
conclude that § 455(b), like § 455(a), includes a timely-filing
requirement under Owens and that Kolon failed to comply with it.
As the parties and the district court have acknowledged,
the party seeking recusal in Owens did not specify which
provision of § 455 required it, and we did not cabin our holding
to any specific provision of that section. In Owens, the
defendant, after publicly accusing the then-Governor of West
Virginia of bribery, filed a motion for recusal based on the
presiding judge’s “long association” with the Governor, who was
responsible for the judge’s appointment to various offices. 902
F.2d at 1155.
In our view, these facts could plausibly fit under either
of two subsections, 455(a) or 455(b)(1). On the one hand, the
scenario in Owens could certainly speak to § 455(a)’s concern
with situations where a judge’s impartiality might reasonably be
questioned. But on the other, as the district court here
determined, the judge’s perceived allegiance to the West
Virginia Governor could reasonably have concerned “a personal
bias or prejudice concerning” the defendant--the Governor’s
accuser--thus implicating § 455(b)(1). Given this ambiguity, we
are left only with Owens’s unqualified announcement that
“[t]imeliness is an essential element of a recusal motion” which
16
is “judicially implied in § 455.” 902 F.2d at 1155. Given that
blanket prescription, we decline to read Owens’s timeliness
requirement so narrowly as to exclude § 455(b).
Our dissenting colleague correctly observes that Owens
cites a case discussing § 455(a) alone, and that our later cases
in that line have yet to address § 455(b). 6 The limitations of
past cases, however, are not controlling, particularly because
the policy rationale underlying Owens’s timeliness requirement
applies just as forcefully to § 455(b) as to any other recusal
scenario.
Here--just as with a § 455(a) recusal, for example--the
requirement of timeliness “prohibits knowing concealment of an
ethical issue for strategic purposes,” United States v. York,
888 F.2d 1050, 1055 (5th Cir. 1989), and “is vital . . . to
prevent waste and delay,” Owens, 902 F.2d at 1156. Meanwhile,
the non-waivability of a § 455(b) recusal does not excuse a
6
The dissent says that our decision in United States v.
Lindsey, 556 F.3d 238 (4th Cir. 2009), cuts against imposing a
timeliness requirement under § 455(b). With all respect, we do
not share that view. In Lindsey, the presiding district court
judge had participated in defendant Lonnie Robinson’s case
twelve years earlier as an Assistant United States Attorney.
Though the judge did not recall his participation in the earlier
case, nor was he made aware of it, we vacated his order. But in
that case, Robinson did not learn of the judge’s prior
involvement until after filing his appeal. See id. at 246–47.
Thus, no timeliness issue ever arose: the case is wholly
inapposite here.
17
party’s delay in filing. As the Fifth Circuit explained,
“waiver and timeliness are distinct issues.” York, 888 F.2d at
1055. Whereas “section 455(e) prohibits the judge and the
parties from agreeing among themselves to abrogate section
455(b),” a “timeliness requirement forces the parties to raise
the disqualification issue at a reasonable time in the
litigation.” Id. And even if the mandatory text of § 455 does
imply a quasi-jurisdictional limitation on a judge’s authority
to hear a case, in our view, that limitation must be balanced
against the interests of fairness and efficiency served by the
timeliness requirement we announced in Owens.
The dissent criticizes our reading of Owens as finding no
support in the statutory text of § 455(b). We note that textual
support for a § 455(a) timeliness requirement is similarly
lacking, and that the language under that provision is similarly
mandatory, yet under our precedent that requirement is beyond
dispute. In any event, while we certainly agree that our
analysis must begin with the statute’s plain language, the
absence of a timeliness provision does not foreclose further
inquiry here. Even the plain meaning of a statute is not
conclusive “in the rare cases [in which] the literal application
of a statute will produce a result demonstrably at odds with the
intentions of its drafters.” United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989) (alteration in original)
18
(internal quotation marks omitted). Section 455 “serves to
‘promote public confidence in the integrity of the judicial
process.’ ” Dissent at 50 (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)). In our view,
failing to insist on a timeliness requirement for seeking
recusal under § 455(b) directly undermines that legislative
goal. 7
In keeping with that end, our sister circuits have
overwhelmingly found a timely filing requirement to be implied
despite the text’s silence. See, e.g., Am. Prairie Constr. Co.
v. Hoich, 560 F.3d 780, 789-91 (8th Cir. 2009) (§ 455(a) and
(b)); Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 447-48 (2d
Cir. 2005) (§ 455(b)); Stone Hedge Props. v. Phoenix Capital
Corp., 71 F. App’x 138, 141 (3d Cir. 2003) (unpublished)
(§ 455(b)); United States v. Rogers, 119 F.3d 1377, 1380-83 (9th
7
Section 455’s legislative history is murky at best. See
Delesdernier v. Porterie, 666 F.2d 116, 119–121 (5th Cir. 1982).
When Congress revised the statute in 1974, the Justice
Department did suggest adding an explicit timeliness requirement
like that found in § 144. Id. at 120. Congress declined to do
so, and our friend in dissent believes that decision “end[s] our
inquiry.” Dissent at 48. But the Justice Department’s
suggestion is hardly the only piece of relevant legislative
history. Rather, “prior to the 1974 amendment[,] courts had
generally held that a timely objection under the old § 455 was
necessary.” Delesdernier, 666 F.2d at 121. “Thus[,]
Congress’[s] failure to act could as easily have been the result
of a belief that the judicial gloss on old section 455 would
survive.” Id. (internal quotation marks omitted).
19
Cir. 1997) (§ 455(a) and (b)); Summers v. Singletary, 119 F.3d
917, 920-21 (11th Cir. 1997) (§ 455(b)); York, 888 F.2d at 1053-
55 (5th Cir. 1989) (§ 455(a) and (b)).
Meanwhile, only two circuits have refused to read in a
timeliness requirement. The Seventh Circuit did so first, in
SCA Services v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), but
has since called that decision into question on more than one
occasion, see Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1060
(7th Cir. 1992) (“SCA Services is a weak precedent[.]”) (Posner,
J., in chambers); United States v. Murphy, 768 F.2d 1518, 1539
(7th Cir. 1985) (observing that “our decision [in SCA Services]
stands alone”). The Federal Circuit has also declined to impose
a formal § 455 filing requirement, but in doing so created what
amounts to a de facto filing obligation under principles of
equity. See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415,
1421 (Fed. Cir. 1989) (finding no strict timeliness requirement
but denying Kodak’s requested relief due to its unreasonably
tardy § 455 objection).
We recognize the countervailing interest in removing any
judge who bears even the slightest appearance of partiality.
But we should not ignore the harm that would ensue if litigants
were permitted to treat motions for recusal as little more than
a stratagem. As the Fifth Circuit observed, “it might
legitimately be asked whether the spectacle of an attorney
20
dragging his opponent through a long and costly proceeding, only
to conclude by moving for disqualification of the judge, is not
equally detrimental to public impressions of the judicial
system” as is a potentially biased judge. Delesdernier, 666
F.2d at 121 (internal quotation marks omitted). “Congress did
not enact § 455(a) to allow counsel to make a game of the
federal judiciary’s ethical obligations . . . .” Id. We should
not subvert that legislative intent merely because a party
instead seeks recusal under § 455(b).
Nor are we moved by the fact that parties may not waive
recusal under § 455(b). In that context, everyone (the judge
and the parties) has acknowledged a conflict, but seeks
nonetheless to ignore it. Thus, waiver cannot be said to
prejudice one party in particular, and will not produce the
gamesmanship we condemn here.
The same must be said of § 455(f). That provision permits
a judge with a financial conflict of interest under § 455(b)(4)
to remain on the case if he has devoted substantial time to the
matter and divests himself of the interest 8. The dissent reads
the limitation of this provision to financial conflicts alone as
8
The district judge’s May 2009 disclosure of a financial
interest does not present an issue under § 455(f), as
§ 455(b)(4) requires recusal only where a financial interest not
immediately in controversy “could be substantially affected by
the outcome of the proceeding.”
21
a legislative determination that “timeliness and efficiency are
less important than ensuring that the impartiality of the
judiciary is upheld.” Dissent at 50. As with the waiver
provision, however, § 455(f) presents a clean trade-off between
efficiency and impartiality. It does not address the concerns
about tactical sandbagging present in this case.
The dissent also contends that our decision today “pivots
responsibility [for recusal] from the judges to the litigants.”
Dissent at 52. That is not entirely correct. We agree with our
friend that when a judge “is aware of grounds for recusal under
section 455, that judge has a duty to recuse himself or
herself.” Dissent at 51 (internal quotation marks omitted).
The scenario we address here arises only when a judge
independently determines, even if wrongly, that he need not
recuse and a party does not affirmatively seek recusal--that is,
until an adverse decision has been handed down. Both efficiency
and integrity require that we not reward a party’s tactics in
these circumstances.
E.
Having held that Owens’s timely-filing requirement applies
to recusal motions under § 455(a) and (b) alike, we next
consider whether Kolon complied with that requirement by
“rais[ing] the disqualification . . . [of the judge] at the
earliest moment after [its] knowledge of the facts.” Owens, 902
22
F.2d at 1156 (quoting Satterfield v. Edenton-Chowan Bd. of
Educ., 530 F.2d 567, 574-75 (4th Cir. 1975)). It did not.
The fact that the district court judge had been a partner
at McGuireWoods at the time of the Akzo litigation was public
knowledge when Kolon first sought discovery of the Akzo case
materials in the antitrust case in August 2009. Given Kolon’s
scouring of the Akzo litigation court records, it further seems
clear that Kolon had long known that McGuireWoods represented
DuPont in the Akzo case. Kolon was also formally alerted to the
potential conflict in May 2009, when the clerk of court issued
its notice to the parties informing them of the judge’s
financial interest in an entity affiliated with McGuireWoods.
Finally, Kolon became aware of the judge’s direct (if
negligible) involvement in the Akzo litigation in August 2010,
when DuPont produced the Akzo files and privilege log.
In sum, Kolon knew every fact that eventually predicated
its recusal motion almost a year before it first suggested
recusal might be appropriate, in July 2011, and over a year
before it finally filed its first recusal motion, in November
2011. On this record, Kolon quite clearly failed to “raise the
23
disqualification . . . [of the judge] at the earliest moment
after [its] knowledge of the facts.” Id. 9
Nor, in our view, is Kolon’s untimeliness excused by the
fact that DuPont knew first of the district court judge’s
involvement in the Akzo case and failed to alert the court of
that fact until it eventually produced its privilege log in
August 2010. For one, the judge’s direct involvement in the
Akzo case was not the only (or even necessarily the strongest)
basis for Kolon’s eventual § 455(b)(2) recusal motion: if, as
Kolon believed, the Akzo litigation was actually a matter in
controversy, the mere involvement of the judge’s former law
partners--of which Kolon was clearly aware--would have required
his recusal. For another, DuPont’s initial withholding of the
relevant communications does not explain why, after its eventual
9
We recognize that Kolon filed its motion to recuse in this
case before the district court’s issuance of an adverse ruling
on summary judgment. But its actions here should not be viewed
in a vacuum. Recall that Kolon’s antitrust claims arose as a
counterclaim to DuPont’s trade secrets action, which proceeded
more quickly than the antitrust case, before the same district
judge. In that case, the judge issued a series of rulings
universally adverse to Kolon, and a jury rendered a $920 million
verdict for DuPont. This had all transpired by the time Kolon
filed its recusal motion in the antitrust case. So while
Kolon’s sandbagging may not be obvious in the isolated context
of the antitrust case, a global view of the relevant events
makes clear that Kolon held its fire on recusal until after
suffering a defeat in the trade secrets case.
24
disclosure, Kolon failed to raise the disqualification issue for
nearly a year.
Our dissenting colleague warns that our decision as to
recusal will only diminish public respect for our profession.
"At the end of the day," he writes, our "determination that
Kolon's recusal requests were untimely means that a district
judge who . . . is no longer permitted to conduct further
proceedings involving the trade secrets claims[] presided over a
trial that ended in a one billion dollar verdict and a twenty-
year worldwide production shutdown injunction." Dissent at 57
(emphasis omitted). The district judge did preside over such a
trial, and our decision here cannot rewrite the past. We have
concluded separately, however, that the trade secrets verdict
must be vacated based on the judge’s evidentiary rulings. In
our view, a single verdict--however large--that no longer exists
can hardly impair public confidence more than would a rule
transforming recusal under § 455 into an “additional arrow in
the quiver of advocates in the face of [anticipated] adverse
rulings.” In re Kan. Pub. Emps. Ret. Sys., 85 F.3d 1353, 1360
(8th Cir. 1996) (alteration in original) (internal quotation
marks omitted). We therefore hold that the district court acted
25
within its discretion in denying Kolon’s recusal motion on
timeliness grounds. 10
III.
We next consider Kolon’s challenges to certain of the
district court’s discovery rulings. We review such rulings for
abuse of discretion, which may be found where “denial of
discovery has caused substantial prejudice.” Nicholas v.
Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).
A.
Throughout discovery, to enable its experts to perform
their analysis, Kolon sought access to DuPont’s transaction-
level and market-segment sales, pricing, and margin data. The
district court denied Kolon’s initial requests for this
information as overly broad and unduly burdensome, but gave
Kolon leave to reformulate its request. Conceding that its
initial requests had been overbroad, Kolon eventually requested
production of a spreadsheet with data fields relevant to certain
contested issues. The request indicated that the responsive
document should be in native format from “any existing
database.” Appellee’s Br. at 43 (emphasis omitted).
10
In light of our holding, we do not address the district
court’s alternative ruling that, on the merits, recusal was not
required.
26
The district court again denied Kolon’s request, concluding
that (1) DuPont had already produced extensive documentation on
the pertinent topics, such that the requested data would not be
any more relevant than the information DuPont had already
provided; (2) the request remained “sweeping and extensive”; (3)
DuPont had shown that production of the requested documents
would be “significantly burdensome”; and (4) the request had
been filed very late in the discovery period, without adequate
explanation for the delay by Kolon. J.A. 1020-22.
While we do not necessarily share the district court’s view
that Kolon’s requested transaction-level data would have been no
more relevant than the aggregate data DuPont had theretofore
provided, we nevertheless find that the discovery denial was
sufficiently justified by the court’s determination that the
production would have been unduly burdensome. Kolon insists
that the burden to DuPont was minimal because it requested only
a “single spreadsheet” which it said could be “readily compiled
from any existing database,” Appellant’s Br. at 43 (emphasis
omitted), and because an affidavit from DuPont’s Global
Financing Director indicated that DuPont already had an existing
spreadsheet containing some of the requested transaction-level
data. But this ignores the sweeping nature of the information
requested, which included all transaction-level details
regarding customers, geographic location, dates, products,
27
amounts, price, cost, margins, and profits. And even if DuPont
did have this information in “existing database[s],” that does
not mean it would not have been very burdensome to compile the
information into a “single spreadsheet.” Id.Particularly considering the district court’s “wide
latitude in controlling discovery,” Rowland v. Am. Gen. Fin.,
Inc., 340 F.3d 187, 195 (4th Cir. 2003), we decline to disturb
its ruling.
B.
Kolon also appeals the district court’s grant of a
protective order barring a Rule 30(b)(6) deposition of DuPont on
its strategic use of supply agreements. Justifying that order,
the district court explained that Kolon had violated Federal
Rule of Civil Procedure 30(b)(1) and Rule 30(H) of the Local
Rules for the United States District Court for the Eastern
District of Virginia by “failing to give reasonable written
notice . . . for [a] replacement deposition notice that it
served on October 21, 2011,” and had wasted the time the court
had extended it for completion of its depositions. J.A. 2715.
Again, we see no cause to disturb the district court’s
discretionary ruling. While Kolon attempts to pin blame for the
discovery delays on DuPont, it concedes that it gave only five
days’ notice for the replacement deposition notice it served on
October 21, 2011. As the district court determined, this
28
violated Local Civil Rule 30(H), which generally requires eleven
days’ advance notice of a deposition, and Federal Rule Civil
Procedure 30(b)(1), which requires “reasonable” notice.
Although Kolon maintains that the five-days’ notice was
reasonable under the circumstances, the district court acted
within its discretion in concluding otherwise.
IV.
Finally, we consider Kolon’s challenge to the district
court’s grant of summary judgment on its two antitrust claims--a
ruling we review de novo, viewing all facts and reasonable
inferences therefrom in the light most favorable to Kolon, the
nonmoving party. See Pueschel v. Peters, 577 F.3d 558, 563 (4th
Cir. 2009).
In general, summary judgment is appropriate where there is
no genuine issue as to any material fact. Fed. R. Civ. P.
56(a). A genuine issue of material fact exists when there is
sufficient evidence on which a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). We have explained that
summary judgment is “an important tool for dealing with
antitrust cases,” Oksanen v. Page Mem’l Hosp., 945 F.2d 696, 708
(4th Cir. 1991) (en banc), and that antitrust cases are
“particularly well-suited for Rule 56 utilization” due to the
29
“unusual entanglement of legal and factual issues” they often
present, Thompson Everett, Inc. v. Nat’l Cable Adver., L.P., 57
F.3d 1317, 1322 (4th Cir. 1995).
A.
We first review the district court’s grant of summary
judgment on Kolon’s monopolization claim.
Under § 2 of the Sherman Act, a defendant is liable for a
monopolization claim when that defendant (1) possesses monopoly
power and (2) willfully acquires or maintains that power.
DuPont I, 637 F.3d at 441. In granting summary judgment to
DuPont, the district court held that Kolon failed to create a
genuine issue of material fact on either prong, concluding that
DuPont neither possessed monopoly power nor engaged in willful
maintenance of such power. We address each element in turn.
1.
“Monopoly power is the power to control prices or exclude
competition.” United States v. E.I. du Pont de Nemours & Co.,
351 U.S. 377, 391 (1956). A defendant possesses monopoly power
in the relevant market if it is “truly predominant in the
market.” White Bag Co. v. Int’l Paper Co., 579 F.2d 1384, 1387
(4th Cir. 1974). Although there is no fixed percentage market
share that conclusively resolves whether monopoly power exists,
the Supreme Court has never found a party with less than 75%
market share to have monopoly power. Antitrust Laws & Trade
30
Regulation: Desk Ed. § 3.02[2][c][ii]. And we have observed
that “when monopolization has been found the defendant
controlled seventy to one hundred percent of the relevant
market.” DuPont I, 637 F.3d at 450 (quoting White Bag, 579 F.2d
at 1387).
Beyond percentage market share, “some courts have also
focused on the durability of the defendant’s market power,
particularly with an eye toward other firms’ (in)ability to
enter the market.” Id. at 451 (citing cases).
Applying these standards, the district court held that
DuPont lacked monopoly power. Whereas (according to our ruling
in DuPont I) Kolon had adequately pleaded the monopoly power
element by alleging that DuPont had controlled over 70% of the
relevant market, at the summary judgment stage the district
court found that DuPont actually possessed significantly less
than the alleged 70% of that market. Kolon Indus., Inc., v.
E.I. du Pont Nemours & Co., No. 3:11-cv-622, 2012 WL 1155218, at
*12 (E.D. Va. Apr. 5, 2012). “In fact,” the court observed,
“Kolon’s own expert takes the view that DuPont had a maximum
market share of 59 percent during the relevant time period, and
that DuPont’s market share decreased to 55 percent during that
three year period rather than increased.” Id.This decline in DuPont’s market share, combined with
Teijin’s corresponding ascendance and the fact that DuPont was
31
charging lower prices in the United States than in Europe (which
Kolon identified as a comparable market), led the court to its
conclusion. “[T]he fact that there are significant entry
barriers,” the district court continued, “is insufficient to
fill the factual gaps in Kolon’s monopolization claim.” Id.“DuPont clearly lacks the power to control prices and exclude
competition,” the court summarized, “otherwise, it would have
been able to prevent the decrease in its market share and the
rise of one of its major competitors.” Id.Even viewing all evidence in the light most favorable to
Kolon, we agree with the district court that DuPont did not
possess monopoly power in the U.S. para-aramid market during the
relevant period between 2006 and 2009. First, although Kolon is
correct that DuPont’s market share of less than 60% during the
relevant period does not necessarily foreclose a finding of
monopoly power, it does weigh heavily against such a finding.
Quite simply, this percentage falls significantly short of where
we have previously drawn the line for monopoly power. See
DuPont I, 637 F.3d at 450 (identifying 70% market share as the
bottom of the range for a finding of monopoly power).
Meanwhile, although Kolon is also correct that certain
other factors do demonstrate DuPont’s strength in the market
(e.g., high barriers to entry, ability to price discriminate,
high profit margins), a showing of DuPont’s “market power” is
32
not itself sufficient to prove that DuPont possesses “monopoly
power.” See Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451, 481 (1992) (“Monopoly power under § 2 requires, of
course, something greater than market power under § 1.”).
Furthermore, this evidence falls short of showing DuPont’s
durability in the market. As the district court observed,
uncontested facts demonstrate that DuPont has experienced a
steady, decades-long loss in significant market share to Teijin.
Ultimately, in light of DuPont’s reduced market share and
lack of durable market power, the evidence cannot sustain a jury
finding that DuPont had the “power to control prices or exclude
competition,” United States v. DuPont, 351 U.S. at 391, or was
“truly predominant in the market” during the relevant period,
White Bag, 579 F.2d at 1387.
2.
Even if Kolon had presented a triable issue on the
monopoly-power element, Kolon also needed to show that DuPont
willfully maintained that power. To violate this prong, a
defendant must engage in conduct “to foreclose competition, to
gain a competitive advantage, or to destroy a competitor.”
Eastman Kodak, 504 U.S. at 482-83. On this element, Kolon’s
theory was--and is--that DuPont maintained its alleged monopoly
power through the use of long-term, multi-year, exclusive supply
agreements with certain U.S. para-aramid customers.
33
Although exclusive dealing agreements are not per se
illegal, they “may be an improper means of acquiring or
maintaining a monopoly.” DuPont I, 637 F.3d at 451 (citing
United States v. Grinnell Corp., 384 U.S. 563, 576 (1966). The
Supreme Court has held that an exclusive dealing arrangement
does not violate antitrust laws unless its probable effect is to
“foreclose competition in a substantial share of the line of
commerce affected.” Tampa Elec. Co. v. Nashville Coal Co., 365
U.S. 320, 327 (1961). The Court explained:
To determine substantiality in a given case, it is
necessary to weigh the probable effect of the contract
on the relevant area of effective competition, taking
into account the relative strength of the parties, the
proportionate volume of commerce involved in relation
to the total volume of commerce in the relevant market
area, and the probable immediate and future effects
which pre-emption of that share of the market might
have on effective competition therein.
Id. at 329.
Along these lines, we have observed that “[t]he market
share foreclosed is important because, for the contract to
adversely affect competition, ‘the opportunities for other
traders to enter into or remain in that market must be
significantly limited[.]’” DuPont I, 637 F.3d at 451 (quoting
Tampa Elec., 365 U.S. at 328). Once a plaintiff has
demonstrated substantial foreclosure, it must then also
demonstrate that the conduct had “a negative impact on
34
competition in the market as a whole.” Chuck’s Feed & Seed Co.
v. Ralston Purina Co., 810 F.2d 1289, 1295 (4th Cir. 1987).
The district court held there was no genuine issue that
DuPont’s supply agreements had not foreclosed a substantial
portion of the market. In its view, Kolon had not sufficiently
attempted to quantify foreclosure of the entire relevant market,
and instead had focused only on DuPont’s alleged foreclosure of
particular market segments. Kolon’s evidence of the degree of
foreclosure in those segments, which the court characterized as
“scant at best,” did “nothing to reveal the amount of
foreclosure in the [para-aramid] market as a whole.” Kolon,
2012 WL 1155218, at *14. The court concluded that since DuPont
had supply agreements--many of which were non-exclusive--with
only twenty-one of approximately 1,000 potential commercial U.S.
para-aramid customers, the percentage of foreclosure could not,
“as a matter of law, constitute sufficient grounds for a finding
of substantial foreclosure.” Id. at *15.
The court also concluded that Kolon had “put forth no
evidence” that DuPont’s supply agreements had a negative effect
on overall competition, noting that Teijin’s “relentless
ascendance” fatally undercut that claim. Id. Finally, the
court rejected Kolon’s argument that DuPont’s twenty-one supply
arrangements substantially foreclosed the entire relevant market
35
by blocking Kolon from crossing a “critical bridge” to “high
volume” customers. Id. at *16-18.
On appeal, Kolon again stresses its “critical bridge”
theory. While it does not deny that DuPont had supply
agreements with only twenty-one of the roughly 1,000 potential
U.S. commercial para-aramid customers, Kolon contends that the
district court’s emphasis on those figures--and its disregard of
the “probable effect of the contract[s] on the relevant area of
effective competition,” Tampa Elec., 365 U.S. at 329--was
shortsighted. Pointing to evidence that DuPont perceived
Kolon’s market entry as a threat, Kolon argues that DuPont
“strategically entered into supply agreements with high-volume
customers in the key commercially sustainable entry
segments . . . that Kolon sought to enter.” Appellant’s Br. at
7, 27-28. Kolon submits that despite the relatively low number
and short duration of DuPont’s supply agreements, these
agreements “choked off the ‘critical bridge’ to Kolon’s entry
into the U.S. market” because they foreclosed Kolon’s access to
the most important high-volume customers. Id. at 32.
Kolon points to two cases from the Third Circuit which, in
its view, embrace this “critical bridge” approach. See United
States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005)
(reversing summary judgment, holding that Dentsply’s exclusivity
agreements with key product distributors could deny efficient
36
scale to competitors); LePage’s Inc. v. 3M, 324 F.3d 141, 160
(3d Cir. 2003) (en banc) (reversing summary judgment, holding
that 3M’s bundled rebate agreements with superstores like K-Mart
and Wal-Mart could have cut LePage’s off from “key retail
pipelines necessary to permit it to compete profitably”).
While we acknowledge that a singular emphasis on the
percentage of customers foreclosed cannot resolve the inquiry
(as foreclosure of a few important customers could substantially
foreclose access to a market), we agree with the district court
that Kolon failed to show what “proportionate volume of
commerce” in the entire relevant market was foreclosed by
DuPont’s supply agreements. Tampa Elec., 365 U.S. at 329; see
also DuPont I, 637 F.3d at 451 (discussing the importance of
market share foreclosed). Likewise, although Kolon’s “critical
bridge” theory is certainly plausible, the evidence does not
support its application here.
Unlike the plaintiffs in Dentsply and LePage’s, Kolon
offered no evidence that access to the foreclosed customers (or
even to the identified market segments) was necessary to achieve
scale in the broader U.S. para-aramid market. And even if we
assume the significance of those customers and market segments,
Kolon does not dispute that DuPont had supply agreements with
fewer than half of its identified “key” customers within those
segments.
37
Meanwhile, DuPont persuasively distinguishes Dentsply and
LePage’s based on the fact that the defendants in those
“critical bridge” cases foreclosed the plaintiffs’ access to
distribution networks rather than end-customers. We are not
convinced that, as Kolon contends, this is “a distinction
without a difference.” Reply Br. at 15. As the district court
observed, unlike with Dentsply’s and 3M’s agreements that
foreclosed access to distribution networks shown to be necessary
to reach many end-customers, “the record presents no reason to
think that Kolon could not sell to other customers occupying the
same segment of the para-aramid market . . . as customers that
have supply agreements with DuPont.” Kolon, 2012 WL 1155218, at
*18.
In sum, we conclude that neither the probable nor the
actual effect of DuPont’s supply agreements was to “foreclose
competition in a substantial share of the line of commerce
affected.” Tampa Elec., 365 U.S. at 327. Accordingly, those
agreements do not violate the willful maintenance prong of our
§ 2 monopolization inquiry. Because Kolon failed to raise a
genuine issue of material fact as to either prong, summary
judgment was appropriate on its monopolization claim.
B.
We next review the district court’s grant of summary
judgment on Kolon’s attempted monopolization claim.
38
“Attempted monopolization employs ‘methods, means and
practices which would, if successful, accomplish monopolization,
and which, though falling short, nevertheless approach so close
as to create a dangerous probability of it.’ ” DuPont I, 637
F.3d at 453 (quoting M & M Med. Supplies & Serv., Inc. v.
Pleasant Valley Hosp., Inc., 981 F.2d 160, 166 (4th Cir. 1992)).
To prevail on an attempted monopolization claim under § 2, a
claimant must show (1) a specific intent to monopolize a
relevant market, (2) predatory or anticompetitive acts, and (3)
a dangerous probability of successful monopolization. Spectrum
Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).
Focusing only on the final two prongs, the district court
found neither satisfied since (1) Kolon had failed to
demonstrate substantial foreclosure of the relevant market
resulting from DuPont’s supply agreements, meaning there was no
anticompetitive conduct; and (2) DuPont had lost market share
during the relevant period and had failed to prevent Teijin’s
ascendance, meaning there was no dangerous probability of
successful monopolization by DuPont.
Kolon first contends that DuPont’s supply agreements were
anticompetitive, arguing that DuPont entered these agreements
against its own interest in order to block Kolon’s market entry.
Appellant’s Br. at 31-32 (citing M & M Med. Supplies, 981 F.2d
at 166 (noting that where “a firm has been attempting to exclude
39
rivals on some basis other than efficiency, it is fair to
characterize its behavior as predatory”)). On the “dangerous
probability of success” prong, Kolon maintains that even if
DuPont’s share of the U.S. para-aramid market did not constitute
actual monopoly power, it was at least consistent with a
“dangerous probability” of achieving such power. Id. at 23-24
(citing M & M Med. Supplies, 981 F.2d at 168 (4th Cir. 1992)
(“[C]laims involving greater than 50% share should be treated as
attempts at monopolization when the other elements for attempted
monopolization are also satisfied.”)). And Kolon notes that
even though “DuPont’s market share declined slightly over the
three-year period, that does not, as a matter of law, preclude a
finding of monopoly power, much less a dangerous probability of
achieving it.” Id. at 24 (citing cases finding monopoly power
despite a declining market share).
But again, even viewing the evidence in the light most
favorable to Kolon, the claim fails.
First, as discussed above, DuPont’s alleged anticompetitive
conduct--its customer supply agreements--did not have the
probable effect of “foreclos[ing] competition in a substantial
share of the line of commerce affected.” Tampa Elec., 365 U.S.
at 327; see also IIIB Areeda & Hovenkamp, Antitrust Law ¶ 806a,
at 412 (3d ed. 2008) (“[T]he same basic definition of
exclusionary conduct should apply to both monopolization and
40
attempt claims.”). Nor, contrary to its suggestion, did Kolon
show that the agreements were anticompetitive as without
business justification or against DuPont’s own interest.
Rather, DuPont introduced unrebutted evidence that it entered
the supply agreements as a competitive response to Teijin’s use
of that same practice, and because customers requested them.
Second, Kolon has not raised a genuine issue that DuPont
had a “dangerous probability” of successfully achieving monopoly
power during the relevant period. As the district court
observed, DuPont’s market share had been in steady decline for
seventeen years, and DuPont has proven unable to control U.S.
prices or exclude Teijin from entering the market. And even if
declining market share does not preclude a finding of monopoly
power, Kolon pointed to no affirmative evidence indicating a
“dangerous probability” that DuPont would sooner or later regain
its former market dominance.
Accordingly, we affirm the district court’s grant of
summary judgment to DuPont on Kolon’s attempted monopolization
claim.
V.
In sum, we conclude that following Owens, recusals under 28
U.S.C. § 455(b) include a judicially implied timely-filing
requirement, and that the district court acted within its
41
discretion when it denied Kolon’s recusal motion on timeliness
grounds.
We defer to the district court’s considerable discretion in
overseeing discovery and will not disturb its discovery rulings.
On the merits of Kolon’s antitrust suit, we agree with the
district court that Kolon failed to raise a triable issue of
material fact sufficient to sustain either its attempted or
actual monopolization claims.
The judgment of the district court is hereby
AFFIRMED.
42
SHEDD, Circuit Judge, dissenting:
I dissent. Federal judges have an “absolute duty . . . to
hear and decide cases within their jurisdiction,” United States
v. Will, 449 U.S. 200, 215 (1980), but “[f]airness . . .
requires an absence of actual bias in the trial of cases,”
United States v. Werner, 916 F.2d 175, 178 (4th Cir. 1990)
(internal quotation marks omitted). To that end, “our system of
law has always endeavored to prevent even the probability of
unfairness.” Id. (internal quotation marks omitted).
Consistent with this principle, Congress has explicitly created
another absolute duty for federal judges: they must recuse
themselves from any case where, “in private practice [the judge]
served as a lawyer in the matter in controversy, or a lawyer
with whom [the judge] previously practiced law served during
such association as a lawyer concerning the matter.” 28 U.S.C.
§ 455(b)(2). In creating this duty, Congress “placed the
obligation to identify the existence of those grounds upon the
judge himself, rather than requiring recusal only in response to
a party affidavit.” Liteky v. United States, 510 U.S. 540, 548
(1994).
I thus disagree with the majority’s unwarranted imposition
of a timeliness requirement that shifts the burden of bringing
forward recusal grounds under § 455(b)(2) from the judge to the
litigants. That decision flies in the face of the plain
43
language and thwarts the clear congressional purpose of
§ 455(b)(2). It is also inconsistent with our precedent. See
United States v. Lindsey, 556 F.3d 238, 246-47 (4th Cir. 2009).
Even accepting that timeliness plays some limited role under §
455(b)(2), I further disagree with the majority’s conclusion
that Kolon Industries, Inc. (Kolon), acted in an untimely manner
here. Rather, Kolon moved for the district judge’s recusal (on
grounds with which the judge was already well aware) within a
reasonable time after being presented with voluminous discovery
that had been impeded by E.I. DuPont De Nemours & Company
(DuPont). Finally, in my view, the district judge presiding in
this case falls squarely within the terms of § 455(b)(2) in both
this appeal and the companion appeal, E. I. DuPont De Nemours &
Co. v. Kolon Industries Inc., No. 12-1260 (Trade Secrets Case).
I would thus vacate the summary judgment order in this appeal
and remand for further proceedings.
I.
I begin with a brief recitation of the pertinent facts.
DuPont has commercially produced para-aramid fibers under the
name Kevlar© since the 1970s. In the 1980s, DuPont engaged in
worldwide litigation with Akzo N.V., which sold a competing
para-aramid fiber, Twaron©, including a case filed in the
Eastern District of Virginia (the Akzo litigation). In that
litigation, DuPont was represented by McGuire Woods & Battle
44
(now McGuireWoods) and Fitzpatrick, Cella, Harper & Scinto
(Fitzpatrick Cella). During the time of the litigation, the
district judge below was a partner at McGuireWoods’ Richmond
office. Documents reflect that during the Akzo litigation the
district judge spoke with co-counsel from Fitzpatrick Cella on
the phone and sent a letter with a copy of Akzo’s complaint
attached to him.
In 2009, DuPont instituted this action against Kolon,
arguing that Kolon misappropriated its trade secrets. As the
majority recounts, the district judge, through the clerk of
court, issued a brief notice informing the parties of the
judge’s prior partnership at McGuireWoods and instructed the
parties to move for recusal if they believed it was warranted.
The judge took no further action on the issue. Kolon filed an
answer and a counterclaim, contending that DuPont’s actions in
the market for para-aramid fibers violated the antitrust laws.
In August 2009, early in discovery, Kolon sought access to
documents from the Akzo litigation, believing that DuPont had
made public the trade secrets it was now claiming Kolon had
misappropriated. DuPont’s counsel (McGuireWoods) informed Kolon
that it had no documents from the Akzo litigation. Kolon
renewed this request prior to the close of discovery in April
2010 and was again informed that McGuireWoods possessed no
documents. Undeterred, after the close of discovery Kolon
45
served a subpoena on Fitzpatrick Cella, which revealed that
Fitzpatrick Cella did have documents from the Akzo litigation.
These materials were turned over to Kolon in August 2010. The
involvement of the district judge, including the letter he sent
to Fitzpatrick Cella, was not highlighted, but was part of a
roughly 59,000 page production.
While the district judge was not made aware of the letter
until July 2011, it cannot be disputed that throughout discovery
the judge was aware that Kolon intended to defend itself against
DuPont’s claims by contending that DuPont had publicized the
trade secrets in the Akzo litigation. Upon being informed of
the letter in July 2011, prior to trial in the trade secrets
case and prior to severance of the antitrust claims, 1 the judge
stated that he had “no recollection whatsoever” of any
involvement in that litigation. (J.A. 689). As the majority
further recounts, the judge refused to rule on recusal until
Kolon formally filed a motion for recusal in both the trade
secrets and the antitrust case.
Eventually, the trade secrets claims proceeded to trial and
culminated in a jury award of $919.9 million. The district
judge later entered a twenty-year worldwide production shutdown
1
The antitrust claims, which are the subject of this
appeal, were severed from the trade secrets claims in September
2011.
46
injunction against Kolon and granted DuPont’s motion for summary
judgment on the antitrust claims.
II.
Section 455(b) provides that recusal is mandatory, inter
alia, “[w]here in private practice [the judge] served as a
lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a
lawyer concerning the matter.” 28 U.S.C. § 455(b)(2).
Mandatory recusal is not waivable by the parties. 28 U.S.C.
§ 455(e). The majority concludes that, although not waivable, a
mandatory recusal under § 455(b) is nonetheless subject to a
stringent timeliness requirement and that Kolon simply waited
too long in this case. I disagree.
The majority’s timely-filing requirement is misconstrued
for several reasons. First, it simply constitutes the addition
of words to the statute. “When interpreting statutes we start
with the plain language.” U.S. Dep’t of Labor v. N.C. Growers
Ass’n, 377 F.3d 345, 350 (4th Cir. 2004). “It is well
established that when the statute’s language is plain, the sole
function of the courts-at least where the disposition required
by the text is not absurd 2-is to enforce it according to its
2
The majority’s reference to the absurdity canon is
misplaced. There is nothing absurd about my reading of
§ 455(b)—as discussed infra, given the purpose of the statute,
(Continued)
47
terms.” Lamie v. United States Tr., 540 U.S. 526, 534 (2004)
(internal quotation marks omitted). The statutory language of
§ 455(b) could not be plainer; it “sets forth no procedural
requirements.” United States v. Sibla, 624 F.2d 864, 867 (9th
Cir. 1980). See also Delesdernier v. Porterie, 666 F.2d 116,
120 (5th Cir. 1982) (noting that “even after” statutory
amendments in 1974 Ҥ 455 still contains no explicit procedural
requirements”). Congress’ omission of any reference to a
timely-filed motion as a prerequisite to § 455(b) recusal should
end our inquiry. 3 After all, “[w]e do not lightly assume that
it is entirely plausible that Congress did not intend to impose
a timely-filing requirement. The absurdity canon allows courts
to disregard statutory text when adhering to the text “would
result in a disposition that no reasonable person could
approve.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 234 (2012). But the canon “can be
a slippery slope. It can lead to judicial revision of public and
private texts to make them (in the judges' view) more
reasonable.” Id. at 237. The hurdle for invoking the canon is
thus “a very high one.” Id. The fact that there is a “plausible
reason[]” for omitting a timely-filing requirement in § 455(b)
“forecloses recourse to the absurdity canon.” Little v. Shell
Exploration & Prod. Co., 690 F.3d 282, 291 (5th Cir. 2012).
3
The majority compounds its error by requiring not only
that recusal be raised in a timely fashion by the parties, but
that recusal be raised in a formal motion. As noted, § 455(b)
includes no procedural requirements. Moreover, the requirement
of a motion is further undercut by the existence of 28 U.S.C.
§ 144. That statute provides:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a
(Continued)
48
Congress has omitted from its adopted text requirements that it
nonetheless intends to apply.” Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 341 (2005).
Second, as if this silence were not enough, § 455 contains
two additional signals that a timely-filed motion is not
required under § 455(b). First, § 455(e) provides that
mandatory recusals may not be waived by the parties. Even
accepting that “waiver and timeliness are distinct issues,”
United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989), the
non-waiver of § 455(b) recusals reinforces the mandatory nature
of the section; if the presiding judge has a triggering event
under § 455(b), the judge is disqualified and must recuse even
if the parties oppose his recusal. Second, § 455(f) provides
personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists, and
shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be
heard, or good cause shall be shown for failure to
file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by
a certificate of counsel of record stating that it is
made in good faith.
Section 144, which was in existence at the time Congress
amended § 455, clearly illustrates that Congress knew how to
require a formal filing raising a judge’s bias or prejudice and
declined to do so in § 455(b).
49
yet another signal. That provision states that,
“[n]otwithstanding” the statute’s preceding provisions, if a
judge has invested “substantial judicial time” “to the matter”
and then discovers that he has a financial conflict of interest
under § 455(b)(4), the judge may remain in the case if he
“divests himself or herself of the interest.” 28 U.S.C.
§ 455(f). This provision represents Congress’s response to
judicial economy concerns, and, importantly, it is limited to a
single provision of § 455(b). The fact that Congress spoke
specifically to this one area suggests that timeliness and
efficiency are less important than ensuring that the
impartiality of the judiciary is upheld.
In addition, I believe a timely-filing requirement subverts
the statute’s intent. Section 455 serves to “promote public
confidence in the integrity of the judicial process.” Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7
(1988). See also Delesdernier, 666 F.2d at 121 (noting statute
serves “to increase public confidence in the judiciary by
removing even the appearance of impropriety or partiality”).
“Put simply, avoiding the appearance of impropriety is as
important in developing public confidence in our judicial system
as avoiding impropriety itself.” United States v. Jordan, 49
F.3d 152, 155-56 (5th Cir. 1995). The statute was amended in
50
1974 4 to harmonize § 455 with existing law by “clarify[ing] and
broaden[ing] the grounds for judicial disqualification and to
conform with the recently adopted ABA Code of Judicial Conduct,
Canon 3C (1987).” Liljeberg, 486 U.S. at 858 n.7. These codes
of conduct exist independently of § 455 and must be followed by
judges absent action by a party. Indeed, our entire recusal
system is based upon the notion that, when the judge has
information that triggers one of the subsections of § 455(b),
that judge will recuse himself or herself regardless of any
urging by a party. In recognition of this fact, § 455 “is
directed to the judge, rather than the parties, and is self-
enforcing on the part of the judge.” Sibla, 624 F.2d at 867-68.
Thus, if the judge “is aware of grounds for recusal under
section 455, that judge has a duty to recuse himself or
herself.” Id. at 868. While these provisions “may be asserted
also by a party to the action,” the primary duty remains with
the judge. United States v. Conforte, 624 F.2d 869, 880 (9th
4
Prior to the 1974 amendments the statute provided:
Any justice or judge of the United States shall
disqualify himself in any case in which he has a
substantial interest, has been of counsel, is or has
been a material witness, or is so related to or
connected with any party or his attorney as to render
it improper, in his opinion, for him to sit on the
trial, appeal, or other proceeding therein.
28 U.S.C. § 455 (1970 ed.).
51
Cir. 1980). 5 The timely filing requirement, as implemented by
the majority, pivots responsibility from the judges to the
litigants when that duty and responsibility should lie with us.
As the Federal Circuit has explained:
Application of a “timeliness” requirement requires a
fixed point or bench mark from which the timeliness or
untimeliness of an action can be measured (e.g. 10
days after event X; before event Y). There is no such
provision anywhere in section 455. Nor could there
be. The statute deals only with action of a judge.
It has nothing to do with actions of counsel.
Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1418 (Fed.
Cir. 1989) (emphasis added).
Finally, to the extent one insists that timeliness should
play a role in recusal, I agree with Kolon that the role should
be tied to equitable considerations and limited in scope. In
fact, the earliest cases applying a timeliness requirement were
concerned primarily with parties’ gamesmanship after losing a
case. For instance, in York, 888 F.2d at 1055, cited by the
majority, the court noted that a timeliness requirement served
to “proscribe motions that would have invalidated a fully
completed trial” and chastised parties that would sit on
information gleaned prior to trial until the trial’s outcome.
5
To this end, we require parties to file a Corporate
Disclosure Statement under Federal Rule of Appellate Procedure
26.1 so that we can generate our own disqualifications; we do
not require each party in every appeal to file a motion
requesting the recusal of certain judges.
52
See also Conforte, 624 F.2d at 879-880 (finding recusal motion
untimely where information was learned prior to trial but not
raised until after trial); Stone Hedge Props. v. Phoenix Capital
Corp., 71 Fed. App’x 138, 141 (3d Cir. 2003) (motion untimely
when party learned of information prior to judgment but recusal
was not raised until five years later, well after judgment and
appeal); Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334
(2d Cir. 1987) (noting whether motion was “made after the entry
of judgment” is one of four factors in determining if request
was timely). A timeliness requirement in such circumstances—
where a party learns of information that the judge does not (or
may not) possess but then sits on that information as a
litigation strategy—makes sense as a matter of fairness or
equity. Thus, in most of these cases “[t]he refusal of courts
to ‘start over’ has rested not on the mere passage of time, but
on the events that had occurred and the balancing of
equity/fairness considerations in deciding whether to expunge
those events from history’s pages.” Polaroid Corp., 867 F.2d at
1419.
Applying such a limited rule here leads inescapably to the
conclusion that Kolon acted in a timely fashion. As recounted
above, DuPont impeded the discovery of Akzo documents and turned
over voluminous discovery that did not highlight the district
judge’s role in the prior litigation. Moreover, at all times
53
the district court was aware that Kolon was pursuing discovery
of the Akzo litigation. Given these circumstances, Kolon’s
specific raising of recusal prior to trial in the trade secrets
claims is sufficiently timely under § 455(b)(2).
The majority reaches the opposite conclusion by
misconstruing, and then incorrectly relying on, United States v.
Owens, 902 F.2d 1154, 1155 (4th Cir. 1990). 6 In my view, Owens
is limited to recusals under § 455(a) and has no relevance to
cases, like this one, involving § 455(b). Section 455(a) 7
provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Owens itself relied on a case
interpreting only § 455(a), see Delesdernier, 666 F.2d at 121, 8
and our cases citing to Owens’ timeliness requirement have all
arisen under § 455(a), see Newport News Holdings Corp. v.
6
The majority also relies, in part, on the decisions of our
sister circuits imposing a timeliness requirement. Of course,
“agreement among courts of appeals on an issue . . . does not
invariably garnish Supreme Court approval.” McMellon v. United
States, 387 F.3d 329, 361 (4th Cir. 2004) (en banc) (Motz, J.,
dissenting). Given the plain language of § 455(b), I find these
decisions unpersuasive.
7
This section, like § 455(b) has no specific timeliness
requirement. Nonetheless, for purposes of this case, I accept
that the language is more susceptible to a requirement that the
party raise the issue with the judge and that such a requirement
is mandated by Owens.
8
In fact, Delesdernier specifically reserved the timeliness
question under § 455(b). See Delesdernier, 666 F.2d at 123 n.3.
54
Virtual City Vision, Inc., 650 F.3d 423, 432 (4th Cir. 2011);
United States v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008).
Conversely, of more relevance here is United States v. Lindsey,
556 F.3d 238, 246-47 (4th Cir. 2009). In Lindsey, the district
judge had previously worked as an Assistant United States
Attorney on the criminal defendant’s case more than a decade
earlier. For the first time on appeal of the denial of his 18
U.S.C. §3582(c) motion, the criminal defendant raised the
potential recusal of the district judge under § 455(b)(3).
Although the district judge was unaware of his prior
participation, and no one brought it to his attention, “his
participation at that time is nonetheless undisputed,” and
recusal was thus required. Id. at 247. In reaching this
result, we included neither a citation to Owens nor a discussion
of timeliness. Instead, we simply concluded that, because the
district judge fell within § 455(b), recusal was required
regardless of when the issue was raised. Thus, contrary to the
majority, I believe our most relevant precedent supports the
conclusion that timeliness is not relevant under § 455(b). 9
9
The majority misapprehends the importance of Lindsey.
According to the majority, Owens mandates a timely-filing
requirement in all § 455 cases. In Lindsey, although the
recusal issue was not raised until appeal, there is no
discussion about timeliness, which is wholly consistent with my
view that timeliness is irrelevant to § 455(b) cases because
they hinge on the mandatory nature of the recusal, not the
(Continued)
55
In sum, the rule employed by the majority—that a recusal
motion is timely only if raised “at the earliest moment after
[its] knowledge of the facts,” (Majority Op. at 22), regardless
of whether any delay was caused by gamesmanship or whether it
was raised early enough in the litigation that no prejudice
would result—is incompatible with the language and purpose of
§ 455(b) and is not required by our precedent. This case proves
the point. The district judge knew, from the outset of
litigation, that his prior law firm was representing a client
that it represented when he was partner. As discovery began,
the judge had before him multiple requests from Kolon to look
into the Akzo litigation and pleadings and filings, indicating
that the Akzo litigation was central to Kolon’s defense on the
merits of the trade secrets claims. This is not a case in which
a party discovered, for instance, financial information that the
judge was unaware of and sat on that information until after
trial. In this case the judge was, at all times, aware of the
facts relevant to recusal under § 455(b)(2) and it was up to the
timely raising of it. If timeliness was as important in all §
455 cases, as the majority suggests, surely the issue would have
at least been identified in Lindsey. Lindsey’s silence on
timeliness only reinforces the case’s thorough discussion of
recusal under § 455(b) as a mandatory proposition.
56
judge to self-enforce those statutory provisions. 10 To the
extent any burden is placed on Kolon, it satisfied that burden
by raising the issue in July, prior to trial on the trade
secrets claims.
At the end of the day, the majority’s determination that
Kolon’s recusal requests were untimely means that a district
judge who, by the majority’s own determination, is no longer
permitted to conduct further proceedings involving the trade
secrets claims, presided over a trial that ended in a one
billion dollar verdict and a twenty-year worldwide production
shutdown injunction. Such a result does not, I think, inspire
public confidence in the judiciary. The majority’s rule leaves
judges with no enforceable duty to remove themselves from cases
absent action by a party. This result cannot be squared with
the statute’s purpose or language.
III.
Having concluded that Kolon’s request is appropriately
before this court, I now address whether recusal was required
10
My opinion should not be read to suggest that the
district judge engaged in actual bias or impartiality in this
case. Rather, the purpose of § 455(b)(2) is to disqualify
judges, even if they have no actual bias in a particular case,
because of the great risk of the appearance of bias or
impartiality in a certain set of cases. That appearance is the
issue in this case.
57
under § 455(b)(2). 11 We have held that a judge “need not recuse
himself simply because he possesses some tangential relationship
to the proceedings.” United States v. Cherry, 330 F.3d 658, 665
(4th Cir. 2003). In this case, however, the district judge had
more than a “tangential” relationship.
Our precedent establishes that the “matter in controversy”
includes more than the claims brought by DuPont. In In re
Rodgers, 537 F.2d 1196 (4th Cir. 1976), the criminal defendants
were charged with using illegal means to procure the passage of
a racetrack consolidation bill in Maryland. The presiding
judge’s former law firm had represented a separate group of
individuals who were not criminally charged but engaged in
similar lobbying efforts. The criminal defendants thus argued
that the judge should recuse; as part of this argument, the
defendants argued that they were intending to have his former
law partner (and some of the clients) testify as to the means
they undertook to gain passage of the consolidation bill. The
Government opposed recusal, contending that the “matter” was not
the “matter in controversy” because it was not the “actual case
before the court.” Id. at 1198. Even accepting that reading of
11
The majority declines to address this issue, yet in the
companion case, uses its “supervisory powers” under 28 U.S.C. §
2106 to remand the case for further proceedings before another
district judge. See Trade Secrets Case at 15-16.
58
the statute, we found recusal was required because “the actual
case before the court consists of more than the charges brought
by the government. It also includes the defense asserted by the
accused.” Id. In that case, recusal was thus triggered because
the defendants’ proposed defense “in part at least, will consist
of evidence of matters in which the judge’s former partner
served as a lawyer.” Id. See also Preston v. United States,
923 F.2d 731, 733-35 (9th Cir. 1991) (finding §455(b)(2) matter
in controversy requirement satisfied when judge’s former law
partners represented a company that was not a party to the court
case but might be liable in an indemnification proceeding if the
plaintiffs prevailed in the underlying case).
As Rodgers makes clear, Akzo is a matter in controversy in
this action. Kolon’s defense to DuPont’s trade secrets claims
is that DuPont made public many of these secrets during the Akzo
litigation. It cites to, including other materials, a letter
from DuPont’s counsel, McGuireWoods, stating that DuPont agreed
to “totally declassify all trial exhibit documents, all proposed
findings of fact and all deposition excerpts and summaries
submitted to the Court.” (J.A. 12-1260 at 13347). The district
court excluded this evidence—an exclusion we today rule was
reversible error. See Trade Secrets Case at 14-15. This
evidence, so pertinent to Kolon’s defense, makes Akzo a matter
in controversy.
59
DuPont contends—at least as to this appeal—that the
antitrust claims are too attenuated from Akzo to be the same
matter in controversy. In reality, this litigation is all the
same action and the same case. Moreover, in my view, recusal
was required, at the very latest, by July 2011, prior to the
severance of the trade secret claim from the antitrust
counterclaim, which occurred on September 21, 2011. Thus, the
district court’s mandatory recusal in the trade secrets claims
likewise mandates recusal on the antitrust counterclaims brought
by Kolon.
IV.
For the foregoing reasons, I would vacate summary judgment
and remand for new proceedings before a different district
judge. I therefore dissent.
60