In Re Kensington International Ltd.

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Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 5-17-2004 In Re: Kensington Precedential or Non-Precedential: Precedential Docket No. 03-4212 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "In Re: Kensington " (2004). 2004 Decisions. Paper 659. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/659 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BEFORE: FUENTES, SMITH and GARTH, Circuit Judges ___________ (Opinion Filed: May 17, 2004) No. 03-4212 ___________ Roy T. Englert, Jr. (argued) Lawrence S. Robbins IN RE: KENSINGTON Robbins, Russell, Englert, Orseck & INTERNATIONAL LIMITED and Untereiner SPRINGFIELD ASSOCIATES, LLC, 1801 K Street, N.W Petitioners Suite 411 Washington, DC 20006 ___________ John J. Gibbons No. 03-4526 Gibbons, Del Deo, Dolan, Griffinger & ___________ Vecchione One Riverfront Plaza IN RE: D.K. ACQUISITION Newark, NJ 07102 PARTNERS, L.P.; FERNWOOD ASSOCIATES, L.P. Attorneys for Petitioners in 03-4212 AND DEUTSCHE BANK TRUST COMPANY AMERICAS, Petitioners Charles Fried (argued) 1545 Massachusetts Avenue ___________ Cambridge, MA 02138 No. 04-1468 Richard Mancino ___________ Marc Abrams Willkie, Farr & Gallagher IN RE: USG CORPORATION, 787 Seventh Avenue Petitioner New York, NY 10019-6099 On Petitions for Writs of Mandamus Joanne B. Wills to the United States Bankruptcy Court Jennifer L. Scoliard for the District of Delaware Klehr, Harrison, Harvey, Branzburg & (Related to Bankruptcy Nos. 00-03837, Ellers 01-01139 and 01-02094) 919 North Market Street ___________ Suite 1000 Wilmington, DE 19083 Argued on April 19, 2004 1 Attorneys for Petitioners in 03-4526 Stephen C. Neal (argued) 222 Delaware Avenue Scott D. Devereaux P.O. Box 1266, Suite 1200 Cooley Godward Wilmington, DE 19899 3000 El Camino Real 5 Palo Alto Square Richard E. Flamm Palo Alto, CA 94306 2840 College Avenue Suite A Daniel J. DeFranceschi Berkeley, CA 94705 Paul N. Heath Richards Layton & Finger Attorneys for Respondents Owens One Rodney Square Corning, et al. P.O. Box 551 Wilmington, DE 19899 David M. Bernick (argued) Michelle H. Browdy David G. Heiman Janet S. Baer Jones Day Kirkland & Ellis North Point 200 East Randolph Drive 901 Lakeside Avenue Suite 6500 Cleveland, OH 44114-1190 Chicago, IL 60601 Paul R. DeFilippo Christopher Landau Wollmuth, Maher & Deutsch Ashley C. Parrish One Gateway Center Kirkland & Ellis Newark, NJ 07102 655 Fifteenth Street, NW Washington, DC 2005 Attorneys for Petitioner in No. 04-1468 Laura Davis Jones Charles O. Monk, II (argued) David W. Carickhoff, Jr. Saul Ewing Pachulski, Stang, Ziehl, Young, Jones & 100 South Charles Street Weintraub Baltimore, MD 21201 919 North Market Street 16th Floor Norman L. Pernick P.O. Box 8705 J. Kate Stickles Wilmington, DE 19899 Saul Ewing 2 Attorneys for Respondent W.R. Grace & McMonagle and Dean M. Trafelet Co. Daniel K. Hogan Elihu Inselbuch (argued) Law Offices of Daniel K. Hogan Peter Van N. Lockwood 1701 Shallcross Avenue Nathan D. Finch Suite C Caplin & Drysdale Wilmington, DE 19806 399 Park Avenue, 27th Floor New York, NY 10022 Sander L. Esserman Robert T. Brousseau Marla R. Eskin David J. Parsons Mark T. Hurford Stutzman, Bromberg, Esserman & Plifka Campbell & Levine 2323 Bryan Street 800 North King Street Suite 2200 Suite 300 Dallas, TX 75201-2689 Wilmington, DE 19801 Attorneys for Respondent Baron & Budd Attorneys for Respondents Official Claimants Committee of Asbestos Claimants of Owens Corning, Official Committee of Jeffrey S. Trachtman Asbestos Personal Injury Claimants of Kramer, Levin, Naftalis & Frankel W.R. Grace and Official Committee of 919 Third Avenue Asbestos Personal Injury Claimants of 39th Floor USG Corporation New York, NY 10022 Michael J. Crames (argued) Adam G. Landis Jane W. Parver Rebecca L. Butcher Aaron Stiefel Landis, Rath & Cobb Edmund M. Emrich 919 Market Street Kaye Scholar Suite 600, P.O Box 2087 425 Park Avenue Wilmington, DE 19899 New York, NY 10022 Attorneys for Respondent Credit Suisse Edwin J. Harron First Boston Corp Young, Conaway, Stargatt & Taylor P.O. Box 391, 1000 West Street Neal J. Levitsky Brandywine Building, 17th Floor L. Jason Cornell Wilmington, DE 19899 Fox Rothschild 824 North Market Street Attorneys for Respondents James J. Suite 810 3 Wilmington, DE 19899-2323 Armstrong World Industries, Inc. Henry W. Simon Kenneth Pasquale Robert A. Simon Lewis Kruger Simon & Simon Stroock, Stroock & Lavan 3327 Winthrop Avenue 180 Maiden Lane Suite 200 New York, NY 10038 Fort Worth, TX 76116 Attorneys for Intervenor Official Attorneys for Respondent Waters & Committee of Unsecured Creditors of Kraus USG Corporation Edward L. Jacobs Roderick R. McKelvie 26 Audubon Place Fish & Neave P.O. Box 70 1899 Pennsylvania Avenue, NW Fort Thomas, KY 41075 Washington, DC 20006 Attorney for Respondent Harry Grau & Sons Daniel J. Popeo Michael R. Lastowski Richard A. Samp Duane Morris Washington Legal Foundation 1100 North Market Street 2009 Massachusetts Avenue, N.W. Suite 1200 Washington, DC 20036 Wilmington, DE 19801 Attorneys for Amicus Curiae Washington Attorney for Intervenor Official Legal Foundation Committee of Unsecured Creditors of USG Corp. James L. Patton, Jr. Young, Conaway, Stargatt & Taylor Mark E. Felger P.O. Box 391, 1000 West Street Jeffrey R. Waxman Brandywine Building, 17th Floor Cozen & O’Connor Wilmington, DE 19899 1201 Market Street Suite 1400 Attorney for Amicus Curiae Eric D. Wilmington, DE 19801 Green Attorneys for Intervenor Official Timothy K. Lewis Committee of Unsecured Creditors of Schnader Harrison Segal & Lewis 4 2001 Pennsylvania Avenue NW questioned” under 28 U.S.C. § 455(a). Suite 300 The Petitions asserted that disqualification Washington, DC 20006 was also wa r r a n te d u nder 28 U.S.C. § 455(b)(1) as a result of ex Craig Berrington parte communications among Judge Lynda S. Mounts Wolin and his advisors, the parties, and American Insurance Association the attorneys.1 1130 Connecticut Avenue, NW Suite 1000 Following a hearing on December Washington, DC 20015 12, 2003, we concluded that we should not reach the merits of the Mandamus Attorneys for Amicus Curiae American Petitions. Our decision was “prompted by Insurance Association our overarching concern that we [did] not have an adequately developed evidentiary record before us.” In re Kensington Int’l Garth, Circuit Judge: Ltd., 353 F.3d 211, 214 (3d Cir. 2003). “[R]eluctant to act in a complex situation Approximately six months ago, two such as this one, where so many vital emergency petitions were filed in this interests are at stake, without a developed Court asking us to issue Writs of evidentiary record,” we remanded the Mandamus disqualifying Senior District proceedings to Judge Wolin while Court Judge Alfred M. Wolin of the retaining jurisdiction. Id. at 223. We District of New Jersey from continuing to instructed Judge Wolin to vacate his order preside over two of five asbestos-related staying discovery and allow expedited bankruptcies that this Court had assigned discovery to proceed. We also directed to him in December 2001 for coordinated that he issue an expedited ruling on all of case management. The five companies in the recusal motions pending before him. bankruptcy are Owens Corning, W.R. Id. USG Corp. by this time had also filed Grace & Co., USG Corporation, a recusal motion. Armstrong World Industries, Inc., and Federal-Mogul Global, Inc. (collectively, the “Five Asbestos Cases”). 1 The Petitioners had originally moved for recusal in the Bankruptcy The Petitions, which were brought Court, but filed Petitions for Writs of by creditors of Owens Corning and W.R. Mandamus in this Court after Judge Wolin Grace & Co., alleged that Judge Wolin withdrew the recusal motions from the had, through his association with certain Bankruptcy Court and stayed the consulting Advisors which he had corresponding discovery. At the time that appointed, created a perception that his the Petitions were filed, Judge Wolin had impartiality “might reasonably be not ruled on the recusal motions. 5 On remand, Judge Wolin and the from further presiding over those three parties faithfully followed our instructions. bankruptcies. See Alexander v. Primerica Under stringent time restrictions and Holdings, Inc., 10 F.3d 155, 162 (3d Cir. Judge Wolin’s effective oversight, the 1993) (“For purposes of § 455(a) parties conducted extensive discovery into disqualification, it does not matter whether the facts surrounding the recusal motions. the district court judge actually harbors Following an additional round of briefing, any bias against a party or the party’s Judge Wolin issued a comprehensive counsel.”). We emphasize that our review written opinion and order on February 2, of the record has not revealed the slightest 2004 denying the recusal motions both on hint of any actual bias or partisanship by the merits and on timeliness grounds. See Judge Wolin. On the contrary, Judge generally In re Owens Corning, 305 B.R. Wolin has throughout his stewardship 175 (D. Del. 2004). over the Five Asbestos Cases exhibited all of the judicial qualities, ethical conduct, As noted, we retained jurisdiction and characteristics emblematic of the most over the Mandamus Petitions. These experienced, competent, and distinguished Petitions were joined by USG Corp., the Article III jurists. But the test for debtor in the USG Corp. bankruptcy. The disqualification under § 455(a) is not Official Committee of Unsecured actual bias; it is the perception of bias. Creditors in the Armstrong World See id. Industries, Inc. bankruptcy filed a fourth Petition, but due to its late filing we did Second, we find that the motions not consolidate it with the other Petitions. for recusal in the Owens Corning and W.R. Grace & Co. bankruptcies were I. timely under 28 U.S.C. § 455(a). In reaching that conclusion, we disagree with Having exhaustively reviewed the Judge Wolin that it was appropriate, in now developed record, we have reached this case, to impute knowledge of the the following conclusions: grounds for disqualification to the Petitioners. The evil that a timeliness First, a reasonable person, knowing r e q u i r e me n t is i n t e n d e d to all of the relevant circumstances, would prevent—namely, holding in reserve a conclude that Judge Wolin’s impartiality recusal demand until such time that a party might reasonably be questioned in the perceives a strategic advantage—is served Owens Corning, W.R. Grace & Co. and by requiring actual knowledge. Because USG Corp. bankruptcies. Although the the Petitioners did not themselves learn record does not demonstrate that Judge about the Advisors’ conflict of interest Wolin has done anything wrong or (discussed infra) until shortly before they unethical or biased, he must be moved for disqualification, their motions disqualified under 28 U.S.C. § 455(a) were timely. 6 Third, USG Corp. stands on a November 3, 2003 stayed certain different footing. The record discloses proceedings before the Bankruptcy that the USG debtors and Unsecured Courts, we will set a separate date to hear Creditors Committee knew as early as argument on the Armstrong Petition and January 2002 about the Advisors’ conflict. will render a decision in that case in due However, other factors come into play as course. to USG Corp. (which we discuss infra) requiring Judge Wolin’s disqualification. Sixth, we likewise do not rule on, or express an opinion as to, the fifth Fourth, we do not decide whether bankruptcy, Federal-Mogul Global, Inc., the ex parte communications between albeit for a different reason. None of the Judge Wolin, on the one hand, and the parties in Federal-Mogul has moved for Advisors, parties, and attorneys, on the Judge Wolin’s recusal in the Bankruptcy other, provide a separate ground for Court or filed a Petition for Mandamus in disqualification under 28 U.S.C. our Court. Accordingly, we will not § 455(b)(1). Nor do we decide whether disturb Judge Wolin’s assignment in those motions are timely. We feel dealing with the Federal-Mogul Global, constrained, however, to note that we look Inc. bankruptcy. with disfavor upon both the extent to which, and manner in which, Judge Wolin II. BACKGROUND engaged in ex parte communications. Whatever value the ex parte meetings may In our earlier opinion, we described have had in moving the Five Asbestos the parties, the allegations, the responses, Cases along or creating a settlement- the procedures, our standard of review, friendly atmosphere was outweighed by and our standards for disqualification the attendant risks and problems, which under 28 U.S.C. § 455(a) and (b)(1). See are catalogued in some detail in the Kensington, 353 F.3d at 214-22. We Petitioners’ briefs. See also Code of perceive no need to repeat these matters in Conduct for U.S. Judges Canon 3 § A(4) detail, but we will refer to those that are (2003). particularly relevant here, as well as the supplemental concerns and facts that have Fifth, we reach no decision on the come to our attention. Petition for Mandamus filed in the Armstrong World Industries, Inc. After our December 12, 2003 bankruptcy. As mentioned above, that hearing, which gave rise to the expedited Petition was not consolidated with the discovery and Judge Wolin’s expedited Petitions in Owens Corning, W.R. Grace ruling on the recusal motions, we received & Co., and USG Corp. Rather than delay two additional Petitions for a Writ of this opinion, and recognizing that our Mandamus in the USG Corp. and initial orders dated October 30, 2003 and Armstrong World Industries, Inc. 7 bankruptcies. Accordingly, we list the in the discharge of his functions. These parties now seeking Judge Wolin’s Advisors were not selected from any disqualification and those opposing it: judicial category (i.e., they were not federal magistrate judges, special masters, Parties Seeking Recusal2 or law clerks4 ); they consisted of lawyers, Kensington International Ltd, et al.; Credit retired state court judges, and professors Suisse First Boston, as agent for Owens with prior experience in asbestos Corning’s pre-petition bank creditors; litigation. The Petitioners claim that D.K. Acquisition Partners, L.P., et al.; Judge Wolin, who has presided over the USG Corp.; Official Committee of Five Asbestos Cases since December Unsecured Creditors of USG Corp.; 2001, has through his appointment of the Official Committee of Unsecured Advisors and his participation with them Creditors of Armstrong World Industries, in administering the bankruptcies, created Inc. a perception in the mind of the reasonable person that his impartiality could be Parties Opposing Recusal3 questioned, and this being so, that he must Owens Corning; Baron & Budd be disqualified. Claimants; Legal Representative for Future Asbestos Personal Injury Claimants The Petitions filed in the Owens in Owens Corning & USG Corp.; W.R. Corning and W.R. Grace & Co. Grace & Co.; Official Committee of bankruptcies seek Judge Wolin’s Asbestos Personal Injury Claimants of disqualification primarily pursuant to 28 W.R. Grace & Co.; Official Committee of U.S.C. § 455(a), which reads: “Any Asbestos Personal Injury Claimants of justice, judge, or magistrate judge of the USG Corp. United States shall disqualify himself in any proceeding in which his impartiality Essentially, the parties seeking might reasonably be questioned.” As we disqualification assert that Judge Wolin stated in our earlier opinion, “[t]he test for had appointed five Advisors to assist him recusal under § 455(a) is whether a reasonable person, with knowledge of all 2 the facts, would conclude that the judge’s The following amicus curiae supported the recusal petitions: American Insurance Partners and Washington Legal 4 Foundation. As a matter of historical interest, then-District Court Judge Sarokin was 3 Amicus curiae Eric Green, Legal assisted in an action involving the Representative for Future Asbestos Tobacco Industry by a Magistrate Judge Personal Injury Claimants in Federal and a Special Master. See Haines v. Mogul Global, Inc., supported the entities Liggett Group Inc., 975 F.2d 81 (3d Cir. opposing recusal. 1992). 8 impartiality might reasonably be bankruptcy whatever relief, if any, we questioned.” Kensington, 353 F.3d at 220 apply to the Owens Corning, W.R. Grace, (citing Edelstein v. Wilentz, 812 F.2d 128 and USG Corp. bankruptcies. (3d Cir. 1987)). While this test is acknowledged to be the standard for To complete our recital of the disqualification under § 455(a), the matters we must consider, we note that the interpretation of what constitutes a parties in the Federal-Mogul Global, Inc. reasonable person has been contested here. bankruptcy, which is the fifth asbestos- We will discuss that issue later in this related bankruptcy under Judge Wolin’s opinion. charge, have not participated in any of the proceedings which we review.5 After we scheduled the briefing and hearing dates for the Owens Corning and Even though we described the facts W.R. Grace & Co. Petitions, USG Corp. in some detail in our earlier opinion, filed a third Petition for Mandamus. That certain factual circumstances require Petition, while also seekin g further elaboration here because they bear disqualification pursuant to § 455(a), directly on the merits and timeliness of the focused primarily on the standard of petitions. disqualification found in § 455(b)(1). That particular subsection requires a A. The Parties justice, judge, or magistrate judge to disqualify himself only if “he has a The first petition was filed by personal bias or prejudice concerning a Kensington International Limited and party, or personal knowledge of disputed Springfield Associates, LLC, two creditors evidentiary facts concerning the of Owens Corning (collectively, proceeding.” 28 U.S.C. § 455(b)(1). The “Kensington”). That petition was thrust of USG Corp.’s Petition is that followed in short order by a second Judge Wolin acquired personal knowledge petition from D.K. Acquisition Partners, of disputed evidentiary facts by conducting ex parte meetings with the Advisors, parties, and attorneys. 5 An amicus curiae brief was filed by Eric D. Green, who is the More recently, the Official representative for future asbestos Committee of Unsecured Creditors of personal-injury claimants in the Federal- Armstrong World Industries, Inc. (the Mogul bankruptcy. See note 3 supra. An “Armstrong Committee”) also filed a amicus curiae brief does not trigger our Petition for a Writ of Mandamus. That jurisdiction and we lack the authority to Petition neither seeks nor opposes Judge issue a writ of mandamus to non-parties. Wolin’s disqualification. Instead, it asks See In re School Asbestos Litig., 977 F.2d that we extend to the Armstrong 764, 798 (3d Cir. 1992). 9 L.P., Fernwood Associates, L.P., and private practitioners, or academics. Deutsche Bank Trust Company Americas, Pursuant to Judge Wolin’s order, the three creditors of W.R. Grace & Co. Advisors were to “advise the Court and to (c ol le ct iv el y, “D.K. A cquisitio n undertake such responsibilities, including Partners”). The third petition was filed . . . mediation of disputes, holding case more recently by USG Corporation, the m a n a g e me n t c o n f e r e n c e s , a n d debtor in the USG bankruptcy. consultation with counsel, as the Court may delegate to them individually.” The B. Ex Parte Communications and the Advisors could also be delegated “certain Advisors authority to hear matters and to advise the Court on issues that may arise in these five On December 20, 2001, Judge large Chapter 11 cases.” Judge Wolin’s Wolin held a case management conference order provided that he could, “without for the Five Asbestos Cases. Although further notice, appoint any of the there is no official record of what was said Court-Appointed Consultants to act as a at that conference, Judge Wolin produced Special Master to hear any disputed matter a script (“talking points”) which reflects and to make a report and recommendation what he said to the parties. According to to the Court on the disposition of such the script, Judge Wolin announced that matter.” “[i]n order to effectively case manage complex litigation, it is necessary for the Over the next two years, Judge judge to speak and/or meet with attorneys Wolin met repeatedly, on an ex parte on an ex parte basis, without permission basis, with the parties and their attorneys. of adversary attorneys.” Judge Wolin Despite his prior assurance that he would further announced that “[a]ny objection to do so “sparingly,” he acknowledged more such ex parte communications is deemed recently that he met ex parte with waived,” but he assured the parties and interested parties “on innumerable attorneys that he would use his power to occasions.” (Supp. Resp. dated Nov. 20, meet ex parte “sparingly.” None of the 2003). This is supported by the fee parties objected at that time. applications filed by the Advisors, which reveal more than 325 hours of ex parte A week later, Judge Wolin named meetings with the attorneys for various five “Court Appointed Consultants” (the parties in the Five Asbestos Cases. Many “Advisors”) to assist him in the Five of these meetings took place at restaurants Asbestos Cases. The five individuals he over lunch or dinner or at law firms. named were David Gross, Judson Hamlin, During the proceedings on remand, Judge William Dreier, John Keefe, and Francis Wolin acknowledged that he received McGovern, all of whom had prior extra-judicial information at the ex parte experience with asbestos or mass tort conferences. (See Joint Appendix “JA” at litigation either as state court judges, 1165.) 10 The ex parte meetings were not 11 U.S.C. § 502(c),8 the tensions between limited to the parties and their attorneys. various creditor classes, and Rule 706 In the first half of 2002, Judge Wolin and panels.9 These issues are highly relevant the Advisors held a series of four ex parte concerns in asbestos litigation. The meetings at which they discussed, in primary purpose of these meetings was to Advisor McGovern’s words, “[j]ust educate Judge Wolin on the issues likely whatever issue you can think of,” to arise in the Five Asbestos Cases or, as including claims bar dates, the chrysotile Advisor Gross put it, “to assist Judge defense,6 proof of claim forms, pleural Wolin . . . in becoming more conversant plaques,7 the pros and cons of various with the details of the asbestos litigation.” approaches to estimation under One of these initial meetings was 6 attended by Bob Komitor, a plaintiff’s “Of the three basic kinds of attorney. According to Advisor Dreier, asbestos fibers—amosite, crocidolite, and Komitor described an expert, Dr. Peter chrysotile—the straight, solid amosite and Barrett, as “a charlatan” and criticized the crocidolite fibers are less likely to break chrysotile defense. Dr. Barrett had been up in the lungs and more likely to cause previously engaged by USG Corp. While mesothelioma than are the curly, hollow there is no official record of this meeting, chrysotile fibers.” Menne v. Celotex notes taken by Advisor Gross suggest that Corp., 861 F.2d 1453, 1456 (10th Cir. some of the Advisors also expressed 1988). Thus, asbestos manufacturers negative views about the positions taken sometimes raise a so-called “chrysotile by USG’s expert and other USG Corp. defense” when sued by asbestos victims. defenses. We have stated, however, that “[t]he absence or presence of chrysotile in Following this series of initial asbestos products is not an affirmative meetings, Judge Wolin also held an ex defense which would require the parte meeting on November 19, 2002 with presentation of any evidence . . . .” Blancha v. Raymark Indus., 972 F.2d 507, 8 514 (3d Cir. 1992). 11 U.S.C. § 502(c) states: “[t]here shall be estimated for purpose of 7 Pleural plaques is a medical allowance under this section . . . any condition that consists of extensive pleural contingent or unliquidated claim, the thickening on the exterior of the lungs. fixing or liquidation of which, as the case See Dunn v. HOVIC, 1 F.3d 1362, 1365 may be, would unduly delay the (3d Cir. 1993). Pleural plaques are administration of the case.” “frequently seen in people who have been 9 exposed to significant doses of asbestos.” Rule 706 of the Federal Rules of Rogers v. Raymark Indus., 922 F.2d 1426, Evidence permits the court to appoint an 1428 (9th Cir. 1991). independent panel of expert witnesses. 11 Advisors Gross, McGovern and Dreier to During the course of the Five discuss certain issues in the Owens Asbestos Cases, Advisor Hamlin prepared Corning bankruptcy. There is no official a draft opinion in each of the Five transcript of this meeting, but Advisor Asbestos Cases, a role that Hamlin likened Dreier took notes. On remand, Judge to that of a federal magistrate judge. At Wolin rejected inquiries concerning this his deposition, Hamlin explained that he meeting on the ground that it included would normally receive a phone call from settlement discussions. As a result, Judge Wolin’s chambers informing him Advisor Dreier’s notes were filed under that an appeal had been taken from the seal both in the District Court and by us. Bankruptcy Court and that he was to prepare a draft opinion for Judge Wolin. Two days before the meeting, The issues on which he drafted opinions Owens Corning had distributed a draft included, among other things, bar dates for plan of reorganization that was supported asbestos property claims, defenses by by Credit Suisse First Boston, as agent for USG Corp. to asbestos personal injury the pre-petition creditors. The draft plan claims, and proof of claim forms. called for certain issues to be resolved prior to plan confirmation. At the C. The G-I Holdings Bankruptcy November 19th meeting, the Advisors discussed some of the key issues contained Two months before Judge Wolin in the proposed plan with Judge Wolin appointed the Advisors in the Five and explained their effects as well as what Asbestos Cases, the Bankruptcy Court for appear to be certain settlement figures that the District of New Jersey (Chief Judge had been discussed with the parties. Rosemary Gambardella) had appointed Advisor Hamlin to serve as the “Legal At a conference held on November Representative of Present and Future 21, 2002, Judge Wolin stated that he did Holders of Asbestos-Related Demands” in not favor Owens Corning’s proposed plan. still another asbestos-related bankruptcy In January 2003, Owens Corning filed a case captioned In re G-I Holdings Inc. revised plan of reorganization that this The G-I Holdings bankruptcy is not time was supported by the tort claimants related to the Five Asbestos Cases, and who had objected to the first draft plan.10 Judge Wolin has played no role in the G-I Holdings proceedings. There is, however, a substantial likelihood and a tacit, if not express, agreement that some of the future 10 The Petitioners argue that a claimants in G-I Holdings will also have reasonable person could perceive that claims against one or more of the debtors Judge Wolin’s impartiality could in the Five Asbestos Cases. reasonably be questioned in this sequence of events. Less than one month after Judge 12 Wolin appointed the five Advisors, motion. That stay prompted Kensington Hamlin filed an application in G-I to file a petition in our Court seeking a Holdings to engage Advisor Gross as his Writ of Mandamus directing Judge Wolin local counsel. Chief Judge Gambardella either to disqualify himself or to withdraw approved Gross as Hamlin’s local counsel. his discovery stay. D. Kensington’s Recusal Motion E. The District Court’s Responses Almost two years later, Kensington Judge Wolin submitted three filed a motion in the Bankruptcy Court written responses to Kensington’s petition. seeking to recuse Judge Wolin from In his first response, dated November 3, further participation in the Owens Corning 2003, Judge Wolin announced that he bankruptcy. Kensington asserted that would “judge the Motion to Recuse on the Judge Wolin was precluded under 28 law and facts presented after all of the U.S.C. § 455(a) from continuing to parties have been heard in full” and that he preside over the Owens Corning would seek to resolve the motion as bankruptcy because two of his Advisors quickly as possible. (Gross and Hamlin) allegedly had a conflict of interest as a result of their In his second response, dated participation in G-I Holdings. November 21, 2003, Judge Wolin answered the suggestion that his ex parte Three days later, the debtors in the communications with the Advisors and W.R. Grace bankruptcy applied to various attorneys somehow required his Bankruptcy Judge Fitzgerald to appoint recusal. Judge Wolin explained that the Mr. Hamlin as the Legal Representative purpose of the ex parte communications for Future Asbestos Claimants of W.R. “was to ensure that each committee or Grace & Co. The application disclosed corporate constituency was afforded the that Mr. Hamlin was already serving as an opportunity to provide to the Court Advisor to Judge Wolin in the Five insights as to why, in the competition for Asbestos Cases, including, of course, the limited dollars, its claim was just.” Judge W.R. Grace bankruptcy. W.R. Grace & Wolin also wrote that, “[g]iven that these Co. ultimately withdrew its application meetings occurred on a regular basis after Judge Fitzgerald expressed her without complaint and given that the opinion that Hamlin could not serve as the December 20, 2001 case management Futures Representative in the W.R. Grace conference alerted all concerned that ex bankruptcy. parte meetings were part of the District Court’s case management plan, it strikes a On October 23, 2003, Judge Wolin discordant note that the conduct of ex entered an order staying all discovery in parte conferences would be the ground for connection with Kensington’s recusal 13 a recusal motion.”11 instructions that he allow expedited discovery to proceed. We also required In his third response, dated that he rule on the pending recusal December 5, 2003, Judge Wolin again motions. We were motivated primarily by defended his Case Management methods our concern that we did not have an and, in particular, his decision to allow ex adequately developed evidentiary record parte communications. before us. F. D.K. Acquisition Partners’ As we previously stated, on Mandamus Petition February 2, 2004, following expedited discovery, Judge Wolin issued a 102-page Meanwhile, D.K. Acquisition written opinion and order denying the Partners filed a motion in the W.R. Grace motions for recusal. First, Judge Wolin bankruptcy case seeking Judge Wolin’s found that the evidence failed to disclose recusal. A week later, D.K. Acquisition that there was an appearance of Partners filed a petition in this Court impropriety under § 455(a) or that his ex seeking the same relief requested by parte communications required his recusal Kensington. We consolidated D.K. under § 455(b)(1). Second, Judge Wolin Acquisition Partners’ Mandamus Petition determined that the motions were not with Kensington’s Petition. timely because the parties seeking his recusal either had actual or imputed G. Remand knowledge of the facts giving rise to the recusal motions long before the motions Following an extended hearing and were filed. He also charged that the after we had received briefs from the Petitions were prompted by strategic, parties and amici, we remanded the rather than ethical, motivations. proceedings to Judge Wolin with III. JURISDICTION 11 Around the same time that Judge We have jurisdiction to issue Writs Wolin filed his second response, USG of Mandamus under the All Writs Act, 28 Corporation filed a motion in the U.S.C. § 1651(a), which provides that Bankruptcy Court seeking his recusal. “[t]he Supreme Court and all courts USG Corporation argued that the established by Act of Congress may issue extensive ex parte communications all writs necessary or appropriate in aid of between Judge Wolin and the Advisors (as their respective jurisdictions and agreeable well as other persons) provided an to the usages and principles of law.” We independent basis for Judge Wolin’s also retained jurisdiction when we disqualification under both 28 U.S.C. remanded the proceedings to Judge Wolin § 455(a) and (b)(1). for discovery and his ruling. See 14 Kensington, 353 F.3d at 214 (“We will court’s order denying recusal. See S. Rep. retain jurisdiction over any further 93-419 (1973), H. Rep. 93-1453 (1974) proceedings . . . .”). (explaining that the addition of subsection (a) to § 455 was not intended IV. STANDARD OF REVIEW to alter the abuse of discretion standard of review). “When the need for a writ of When a Petition for a Writ of mandamus is determined by this court to Mandamus challenges a district court be ‘clear and indisputable,’ a district judge’s decision not to recuse himself, we judge’s decision not to recuse himself or normally review that decision for an abuse herself necessarily also will have been an of discretion. Selkridge v. United of abuse of discretion or a clear legal error.” 12 Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir. 2004). But the mandamus petitions in Owens Corning and W.R. 12 It is somewhat strange to speak in Grace & Co. are somewhat unique, from a terms of an abuse of discretion where the procedural perspective, in that they arrived underlying statute, 28 U.S.C. § 455, states in our Court before the District Court that a judge “shall” disqualify himself or ruled on the recusal motions. Had we herself if certain grounds are present. The reached the merits at that time instead of abuse of discretion standard may be an remanding to the District Court, we would anachronistic vestige of an earlier version have applied the “clear and indisputable” of § 455. Prior to 1974, § 455 provided in standard that governs Petitions for a Writ its entirety that a judge had to “disqualify of Mandamus. See Kerr v. U.S. Dist. Ct., himself in any case in which he has a 426 U.S. 394, 403 (1976). The abuse of substantial interest, has been of counsel, is discretion standard, even though it may or has been a material witness, or is so have led to the same result, would have related to or connected with any party or had no application. his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, At oral argument, we asked the or other proceeding therein.” 28 U.S.C. § parties to submit supplemental letters 455 (amended 1974) (emphasis added). addressing the appropriate standard of Under that version, a judge had broad review where, as here, a Petition for discretion to deny a recusal request even if Mandamus seeking to disqualify a district the grounds for recusal were present. To court judge precedes a ruling by the the extent judges continue to retain any district court. Having reviewed the discretion under the post-1974 version of submissions made by the parties, we now § 455, it is only to determine if the “facts hold that Judge Wolin’s decision not to asserted as comprising bias, a forbidden recuse himself must be reviewed for an financial interest, kinship, or the abuse of discretion, as it is, in effect, no appearance of partiality bring the trial different than an appeal from a district court judge within the disqualifying 15 Alexander, 10 F.3d at 163 n.9. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. V. DISCUSSION 1997) (“The standard for recusal is whether an A. Standard for Disqualification Under objective observer § 455(a) reasonably might question the judge’s impartiality.”). Whenever a judge’s impartiality “might reasonably be questioned” in a Selkridge, 360 F.3d at 167. judicial proceeding, 28 U.S.C. § 455(a) requires that the judge disqualify himself. A party moving for disqualification The test for recusal under § 455(a) is under § 455(a) need not show actual bias whether a reasonable person, with because § 455(a) “concerns not only knowledge of all the facts, would fairness to individual litigants, but, equally conclude that the judge’s impartiality important, it concerns ‘the public’s might reasonably be questioned. confidence in the judiciary, which may be Alexander, 10 F.3d at 164. irreparably harmed if a case is allowed to proceed before a judge who appears to be “Under § 455(a), if a tainted.’” Alexander, 10 F.3d at 162 reasonable man, were he to (quoting School Asbestos, 977 F.2d at know all the circumstances, 776). would harbor doubts about the judge’s impartiality B. Who is the Hypothetical Reasonable under the applicable Person under § 455(a)? standard, then the judge must recuse.” In re Judge Wolin’s opinion of February Prudential Ins. Co. of 2, 2004 supporting his order denying the America Sales Practices recusal motions held that the reasonable Litigation, 148 F.3d 283, person under § 455(a) is someone “with 343 (3d Cir. 1998) (internal the professional skills and experience in quotations omitted); see mass-tort [asbestos-related] bankruptcies Massachusetts School of sufficient to understand the import of the Law at Andover, Inc. v. facts presented,” thus excluding “laypersons or attorneys not conversant with the basics of mass-tort bankruptcy definition.” 2 Steven Alan Childress & practice.” Owens Corning, 305 B.R. at Martha S. Davis, Federal Standards of 190. In reaching that conclusion, Judge Review § 12.05 (3d ed. 1999). If the Wolin reasoned that, “where proceedings answer to that inquiry is “yes,” are by their nature inscrutable to outsiders, disqualification must follow. the wider world must rely upon those 16 persons actually involved to report on straightforward in this case. The those proceedings’ capacity to produce a gravamen of the Petitions is that Judge fair result.” Id. Wolin was tainted by the involvement of two court-appointed advisors who, at the To the best of our knowledge, same time that they were supposed to be Judge Wolin’s gloss on § 455(a)’s giving neutral advice in the Five Asbestos “reasonable person” standard has no Cases, represented a class of tort claimants precedent. It also appears to be in tension in another, unrelated asbestos-driven with our observation in School Asbestos bankruptcy and espoused views therein on that § 455(a) was enacted by Congress the same disputed issues that are at the because “‘people who have not served on core of the Five Asbestos Cases.13 the bench are often all too willing to indulge suspicions and doubts concerning We are confident that the average the integrity of judges.’” School layperson could grasp this alleged Asbestos, 977 F.2d at 782 (quoting impropriety and, after being fully Liljeberg v. Health Servs. Acquisition informed of all the surrounding Corp., 486 U.S. 847, 864-65 (1988)). circumstances, could draw a conclusion Notably, the School Asbestos lawsuit was about Judge Wolin’s ability to render a precisely the sort of complex, mass-tort fair and impartial decision. That being so, litigation that Judge Wolin believed we perceive no reason to depart from the required a more nuanced definition of the traditional “man on the street” standard. reasonable person. See Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (using “average person on Judge Wolin distinguished School the street” standard); Home Placement Asbestos on the ground that the Serv., Inc. v. Providence Journal Co., 739 appearance of impropriety in that F.2d 671, 676 (1st Cir. 1984) (same); case—the district court judge had attended Potashnick v. Port City Constr. Co., 609 a scientific conference organized by the F.2d 1101, 1111 (5th Cir. 1980) (same). plaintiffs’ counsel—“was simple enough for anyone to grasp.” Owens Corning, Judge Wolin’s definition of the 305 B.R. at 190. Judge Wolin’s hypothetical reasonable person is contrary characterization suggests that the perception of impropriety in the Five Asbestos Cases is, by comparison, too 13 The Petitions also assert that complex for the average person to Judge Wolin should be recused because of comprehend. We cannot agree. his ex parte communications with the Advisors and the parties, but that is No one disputes that asbestos grounded primarily in § 455(b)(1), which bankruptcies are complicated, but the does not employ a reasonable person alleged perception of impropriety is fairly “perception” standard. 17 to the goal of § 455(a). An attorney Before we can decide whether the familiar with asbestos bankruptcies reasonable person might question Judge presumably would have a higher threshold Wolin’s impartiality, we must determine if for conflicts and alleged improprieties his Advisors had a conflict of interest. If than the average layperson. This not, then our inquiry comes to an end contravenes the purpose of § 455, which is because the Petitioners will have failed to “to promote public confidence in the show that they have a clear and integrity of the judicial process.” indisputable right to disqualification. On Liljeberg, 486 U.S. at 860 (citing S. Rep. the other hand, if there was a conflict, then No. 93-419, p. 5 (1973); H.R. Rep. No. we must reach the question of whether that 93-1453, p. 5 (1974)). Accordingly, we conflict might be perceived by the agree with the Fourth Circuit Court of reasonable person as having tainted Judge Appeals that the hypothetical reasonable Wolin. person under § 455(a) must be someone outside the judicial system because Aside from the timeliness of the judicial insiders, “accustomed to the recusal motions, the existence of a conflict process of dispassionate decision making of interest by the Advisors may be the and keenly aware of their Constitutional most sharply contested issue in these and ethical obligations to decide matters proceedings. Judge Wolin explained in solely on the merits, may regard asserted his written opinion that he was an asbestos conflicts to be more innocuous than an “neophyte” when he assumed control of outsider would.” United States v. the Five Asbestos Cases, and that he DeTemple, 162 F.3d 279, 287 (4th Cir. brought the Advisors on board to “inform 1998); see also United States v. Jordan, the Court of the vast landscape of asbestos 49 F.3d 152, 156-57 (5th Cir. 1995) related issues that would permit the Court (remarking that average person on street to make reasoned case management “is less likely to credit judges’ impartiality decisions.” Owens Corning, 305 B.R. at than the judiciary”); In re Mason, 916 198. F.2d 384, 386 (7th Cir. 1990) (noting that lay observer is less inclined to presume We conclude that two of the judge’s impartiality than members of Advisors, Gross and Hamlin, did, in fact, judiciary). Thus, we hold that the operate under a structural conflict of appearance of impropriety must be viewed interests at the same time that they served from the perspective of the objective, as Judge Wolin’s Advisors. This conflict reasonable layperson, who is not arose from the dual roles they played in necessarily familiar with asbestos the Five Asbestos Cases and the G-I bankruptcies and litigation. Holdings bankruptcy. C. Did the Advisors have a Conflict of On the one hand, Gross and Hamlin Interest? clearly had a duty to remain neutral in the 18 Five Asbestos Cases and to provide counsel.14 In those roles, Gross and objective, unbiased information to Judge Hamlin owed the future asbestos claimants Wolin. As Judge Wolin stated in his in G-I Holdings a fiduciary duty to original appointment order, the Advisors’ advance their interests and to see that they role “was to advise the Court and to received the greatest possible share of the undertake [certain] responsibilities, bankruptcy estate.15 To achieve that end, including by way of example and not the very Advisors who were advising limitation, mediation of disputes, holding Judge Wolin had to take positions in G-I case management conference, and Holdings and the Five Asbestos Cases that consultation with counsel . . . .” favored the future asbestos claimants. By their very position as representatives of the We would be hard pressed to future asbestos claimants in G-I Holdings, overstate the importance of the Advisors’ Gross and Hamlin signaled to all that they role in the Five Asbestos Cases. As a result of their appointment, the Advisors 14 had a unique level of access to Judge As we noted earlier, W.R. Grace Wolin. Indeed, Judge Wolin himself & Co.’s motion to appoint Hamlin as a acknowledged in a fee allowance order Futures Representative was withdrawn in that the Advisors “occup[ied] a unique light of Bankruptcy Judge Fitzgerald’s position in the [Five Asbestos] cases not reaction. shared by other persons” and that they 15 Some of the parties opposing “function[ed] in a manner in all respects Judge Wolin’s disqualification have similar to examiners as provided in the emphasized that the future claimants in G- Bankruptcy Code.” The Advisors also I Holdings are, as yet, unidentified had a unique level of influence over Judge individuals because they have not yet Wolin, given the role they played at the developed any outward medical symptoms outset of the Five Asbestos Cases in as a result of their exposure to asbestos. educating Judge Wolin (a self-admitted We are not persuaded that this is a neophyte) on all of the key asbestos- mitigating factor. Although the future related issues. claimants are, by definition, a group of unknown individuals, their interests in On the other hand, Advisors Gross pursuing claims against the asbestos and Hamlin also had a duty to act as manufacturers are clearly identifiable and, zealous advocates for the future asbestos as such, Hamlin and Gross were duty- claimants in the G-I Holdings bankruptcy. bound to further the claimants’ collective Hamlin was at all relevant times the legal interests. In this sense, Hamlin and representative of the present and future Gross’s role could be likened to that of a asbestos personal injury claimants in G-I class representative and his attorney at the Holdings and Gross served as his local inception of a class action lawsuit, before the class members are identified. 19 could not be non-partisan, benign, or Despite his conclusion that “no neutral. conflict exists,” Judge Wolin nevertheless shares Hamlin’s concerns. Recognizing Given their dual roles, we find that that “[t]he core task of any futures Gross and Hamlin had a conflict of representatives is to determine claim interest. The structural conflict arose validity and claim valuation” for future primarily out of the close relationship claimants, Judge Wolin explains that no between the future asbestos claimants and conflict materialized because “[t]he issues the issues in the Five Asbestos Cases and of claim valuation and future claimant G-I Holdings. In both proceedings, the versus present claimant equivalence have debtors were leading manufacturers of been neither briefed nor joined” in the asbestos products who were forced into Five Asbestos Cases. Owens Corning, bankruptcy by a flood of asbestos-related 305 B.R. at 198. Judge Wolin’s claims, including those of future claimants statements further demonstrate the tension not yet identified. Consequently, many of between Hamlin’s and Gross’s dual roles the same legal issues (e.g., bar dates, proof as advisors to Judge Wolin in the Five of claim forms, medical manifestations, Asbestos Cases and Futures etc.) either have arisen or will arise in both Representatives in G-I Holdings. the Five Asbestos Cases and the G-I Holdings bankruptcy. Both Judge Wolin If Gross and Hamlin were and Advisor H amlin implicitly precluded from addressing issues such as acknowledge that there existed a conflict bar dates and claim valuation, we cannot of interest. Hamlin stated in his understand how it could be appropriate for deposition that “[i]f any issue or any them to discuss other issues of importance responsibility was sought from me [by to Futures Claimants in G-I Holdings. If Judge Wolin] in regard to any issue that I both Hamlin and Judge Wolin would felt impinged on by G-I stuff, I would question the Advisors’ ability to remain have asked that assignment be given to neutral with respect to bar dates, a somebody else.” Specifically, Hamlin reasonable person certainly would be stated that “I wouldn’t have touched the suspicious of discussions with the personal injury bar date issue . . . Advisors on potential affirmative defenses [b]ecause that’s what I’m dealing with in to liability, the proper content of proof of G-I.” While the parties opposing recusal claims forms, or the processes for contend that this statement proves there estimating claims under 11 U.S.C. § was no conflict of interest, it proves just 502(c). See supra at 10 (discussing the the opposite. Had there been no conflict, subjects addressed in Judge Wolin’s ex Hamlin would have perceived no need to parte meetings with the Advisors). reject any assignments in the Five Asbestos Cases. As discussed below in Section V-E, these suspicions are heightened by the ex 20 parte nature of the communications Moreover, there is a substantial likelihood between Judge Wolin and his Advisors. that many of the future claimants in G-I We do not hold that ex parte Holdings will also be future claimants in communications alone—in the absence of the Five Asbestos Cases because it is not any conflict of interest—require recusal. unusual for asbestos claimants to bring We emphasize that it is the conflict of claims against different asbestos interest and not the particular specialty of manufacturers. the neutral expert or advisor that concerns us. A judge may engage an expert or As counsel for Kensington argued: someone to assist him who has no conflict and is “disinterested.” Here, however, we [I]t is our view that Judge have concluded that the Advisors were Wolin has rendered a conflicted and were not disinterested. number of rulings favorable Hence, any decision by us that would to tort claimants after preclude a judge from obtaining assistance discussions with the future - from a non-conflicted advisor would - with the advisors who are unnecessarily restrict a judge’s ability to Futures Representatives in communicate with neutral experts. G-I. Indeed, a judge may consult ex parte with a disinterested expert provided that the Do I have a signed, sealed judge “gives notice to the parties of the confession, we urged this person consulted and the substance of the result on Judge Wolin and advice, and affords the parties reasonable he then did it? No, I don’t opportunity to respond.” Code of Conduct have that. But the problem for U.S. Judges Canon 3 § A(4) (2003). here is a 455(a) problem. A reasonable observer, * * * understanding that certain issues were “off limits,” would be concerned by the But this much is undeniable. absence of any mechanism to police those On October 31st, 21 days limits. Indeed, the record before the Court before that [Nov. 21] status contains substantial evidence that these conference, Owens Corning limits were, in fact, violated. Although circulated a draft plan of Hamlin testified that a bar date was not reorganization that was met, discussed by the Advisors, and although in letters in the record Gross testified that he could not recall before you, with great whether a bar date was discussed, the approval by the commercial other three Advisors testified that the issue creditors and great of whether and how to impose a bar date disapproval by the tort was discussed with Judge Wolin. creditors. 21 After the November 21st Judge Wolin stated in his opinion untranscribed hearing at that he met with the Advisors as a group which we recall Judge on only four occasions for a total of Wolin saying he did not like eighteen hours and that, after May 2002, that plan, Owens Corning “the Advisors as a group became went back and formulated a functionally obsolete despite their de jure brand-new plan that is so existence.” Owens Corning, 305 B.R. at favorable to the tort 200. Judge Wolin also emphasized that claimants that they are his meetings with the Advisors consisted coproponents of the plan. merely of discussions, which he defined as This is two days after “consideration of a subject by a group; an meeting with Mr. Gross, a earnest conversation,” and that he never representative of future received any advice, which he defined as claimants. There are real an “opinion about what could or should be appearance problems here, done about a situation or problem.” Id. at even if there are not certain 198 (citing American Heritage College types of smoking guns. Dictionary 397, 20 (3d ed. 1993)). (Transcript of April 19, 2003 Oral Judge Wolin’s distinction between Argument at 47-48, 52-53.) Whether or discussions and advice cuts too fine a line. not we reach the same conclusions that As Kensington points out, “[i]t is hard to counsel did, the fact remains that the fathom why Judge Wolin wanted [a] crash matters set forth in the depositions which course in asbestos litigation if not to assist we ordered, which are too voluminous to him in deciding ‘the merits’ of ‘disputed’ duplicate here but which we have studied, issues that he could expect to face.” do reflect that counsel’s view of the Indeed, the four meetings in early 2002 § 455(a) problem is indeed accurate. between Judge Wolin and the Advisors covered almost all of the major issues in D. Did the Advisors’ Conflict Taint asbestos litigation, including the Rule 706 Judge Wolin? panel, claims bar date, claim forms, pleural registries, fraudulent conveyance We turn now to the question of claims, various defenses, claims whether Gross’s and Hamlin’s conflict of estimation, trust distribution procedures, interest irreversibly tainted Judge Wolin. tensions among the creditor classes, and We obviously do not equate this “taint” of the asbestos claimants’ veto power under Judge Wolin with any wrongdoing or bias 11 U.S.C. § 524(g). on his part. We are fully aware that the § 455(a) standard asks only if a reasonable In deciding whether Gross and person knowing all the circumstances Hamlin’s involvement in the Five might question Judge Wolin’s impartiality. Asbestos Cases and interactions with 22 Judge Wolin leads to disqualification The same factors that required under § 455(a), we find instructive the recusal in Hall apply here. Although Fifth Circuit Court of Appeals’ decision in Gross and Hamlin were not law clerks per Hall v. Small Business Administration, se, they were in some respects the 695 F.2d 175 (5th Cir. 1983). In that case, substantial equivalent of law clerks.17 the losing party moved after trial to Hamlin, for example, drafted legal disqualify the judge and to vacate the opinions in each of the Five Asbestos judgment because it came to light that the Cases for Judge Wolin. Thus, not only judge’s law clerk had, among other things, was Hamlin the “legal researcher[] who accepted, prior to the judgment being [sought] the authorities that affect[ed] the entered, an offer to join the law firm judge’s decision,” but he was also the which represented the winning party. Id. scrivener who, in the first instance, tried at 178. The judge denied the motion on his hand at crafting the decision that, if the ground that the law clerk had never accepted by Judge Wolin, would dispose expressed an opinion to him about the of an appeal taken from the Bankruptcy winning party and because the law clerk Court in one of the Five Asbestos Cases. had accepted the offer of employment only See id. Moreover, Gross and Hamlin held after the judge had made up his mind a special position of trust and influence about the case and had written a rough because they, together with the other three draft of the opinion. Id. Advisors, were perceived by Judge Wolin On appeal to the Fifth Circuit, the court reversed and entered an order recusal in First Interstate Bank of Arizona disqualifying the judge. In reaching that v. Murphy, Weir & Butler, 210 F.3d 983 decision, the court remarked that the goal (9th Cir. 2000). There, a bankruptcy of § 455(a) “is to exact the appearance of judge recused herself because her law impartiality” and therefore it was, in the clerk had continued to have some contact court’s opinion, immaterial “[w]hether or with a Chapter 11 bankruptcy proceeding not the law clerk actually affected the after the law clerk accepted an offer to judge’s decision.” Id. at 179. The court join the law firm representing the also emphasized that law clerks hold a creditors. Id. at 985. special position of trust and influence 17 The “hybrid” status of the insofar that they are “sounding boards for Advisors has given us considerable tentative opinions and legal researchers concern. That concern is expressed in who seek the authorities that affect the note 20, infra. As counsel for Respondent judge’s decision.”16 Id. Owens Corning admitted at our first hearing, he had no knowledge of such a hybrid status or of individuals having 16 The Ninth Circuit Court of assumed that status being asked to assist a Appeals discussed a similar motion for judge. 23 as being experts in the asbestos litigation because they had been influenced by field and depended on them to educate submissions from advocacy groups and him on all the relevant issues. counsel supporting plaintiffs in other lawsuits against the defendant.18 Id. at There is, of course, nothing 261-62. inherently wrong with appointing a panel of experts. But when ex parte discussions The Edgar decision, like the Hall between the judge and the panel veer into decision, is instructive in that the Seventh the merits, recusal may follow. For Circuit Court of Appeals did not hesitate example, in Edgar v. K.L., 93 F.3d 256 to disqualify the district court judge under (7th Cir. 1996), a district court judge appointed, with the parties’ consent, a panel of experts. Although the parties 18 The Edgar court held that the were aware that the panel had ex parte district court judge had acquired meetings with the judge from time to time “personal” knowledge from the panel of to discuss administrative matters, the experts, which is another way of saying parties only discovered later that one of that the judge acquired information from the meetings involved a discussion of the an extrajudicial source. Edgar, 93 F.3d at merits and possibly a preview of the 259. The extrajudicial source doctrine, as panel’s final report. Id. at 257-58. When it is commonly known, provided at one the parties moved to disqualify the judge, time that recusal was not warranted unless he blocked discovery and denied the the grounds for recusal emanated from an motion. A petition for a writ of extrajudicial source (i.e., a source outside mandamus in the Seventh Circuit Court of of the judicial proceedings at hand). See Appeals followed. Id. at 257. Liteky v. United States, 510 U.S. 540, 544- 545 (1994). In Liteky, the Supreme Court The Seventh Circuit issued a writ held that the extrajudicial source also of mandamus disqualifying the judge. As applied to § 455(a), but it tempered its to § 455(a), the court held: “A thoughtful effect by explaining that it was merely a observer aware of all the facts . . . would factor and not a prerequisite for conclude that a preview of evidence by a disqualification. Id. We agree with the panel of experts who had become Edgar court that off-the-record partisans carries an unacceptable potential discussions on substantive issues in for compromising impartiality.” Id. at chambers constitute “personal” or 259-60 (citations omitted). The court also “extrajudicial” knowledge in the sense noted that “[e]xperts appointed and that the information conveyed to the judge supervised by a court carry special weight leaves no trace in the record and cannot because of their presumed neutrality,” and “be controverted or tested by the tools of that the panel of experts appointed by the the adversary process.” Edgar, 93 F.3d at district court judge were not truly neutral 259. 24 § 455(a) even though there was no Wolin, mediate disputes, hold case evidence of actual bias. The theme management conferences, and consult running through both Edgar and Hall is with the attorneys. Hamlin himself that there is an almost irrebutable likened the powers that he exercised to presumption that a judge is “tainted” and those of a magistrate judge. Given these must be disqualified where, as here, he wide-ranging powers, surely the five surrounds himself with individuals who Court-Appointed Advisors were under a may not be truly disinterested. duty to maintain at least the degree of neutrality normally required of law clerks Some of the parties opposing Judge or court-appointed experts. However, that Wolin’s disqualification attempt to neutrality was seriously compromised by distinguish the Hall and Edgar decisions virtue of their participation in G-I on the ground that the Five Asbestos Holdings, a bankruptcy involving many of Cases do not involve a district court’s the same issues present in the bankruptcies relationship with its law clerks or court- assigned to Judge Wolin, many of the appointed experts. The Respondents same creditors, and possibly some of the contend that court-appointed “Advisors,” same asbestos claimants. such as Gross and Hamlin, are mere consultants, of whom pure neutrality is not We also note that Kensington’s required. Reply Brief emphasizes that over a 22- month period Judge Wolin received While the Respondents’ attempt to substantive information from: distinguish Hall and Edgar has some superficial appeal, we believe their • two Advisors (Gross and approach values form over substance and Hamlin), who had a fiduciary duty in G-I relies too heavily on overly-technical Holdings to advance the interests of the categorizations. More importantly, it fails future asbestos claimants (Joint Appendix to take into account the underlying (“JA”) 1545); considerations that drove the courts’ decisions in Hall and Edgar. The primary • two Advisors (Gross and concern in both Hall and Edgar is that a Hamlin), who had an incentive to make party which held a special position of trust helpful precedent in the Five Asbestos and influence over the judge was found to Cases, which they could then rely on (and be not truly disinterested in the outcome of did rely on) in G-I Holdings in support of the proceedings. The same can be said the future claimants (JA 1621, 978B, 980, here. As court-appointed Advisors to 2728); Judge Wolin, Gross and Hamlin were given very broad powers. The order • three Advisors (Gross, Hamlin appointing them provided, among other and McGovern) who met on multiple things, that they could advise Judge occasions with the future representatives 25 in a wide range of asbestos-related cases (3d Cir. 1989) (disqualifying judge under (including the Five Asbestos Cases), to § 455(a) because of ex parte develop a common strategy with respect to communications). We have previously pending asbestos legislation and to discuss described ex parte communications as common issues (JA 1645); and “anathema in our system of justice.” School Asbestos, 977 F.2d at 789. One • two Advisors (Gross and leading reason is that ex parte meetings McGovern) who allegedly breached their are often, as they were here, unrecorded. duties as mediators by disclosing to Judge Consequently, there is no official record of Wolin substantive positions of the what was said during those meetings. Of mediating parties (JA 1393, 1409, 1412, even greater concern is the argument 1432).19 urged upon us by the Petitioners who, without knowledge of what was discussed Given the unique level of access at these meetings, contended that they and influence that Gross and Hamlin had, could not respond to these “silent” facts. the length of their appointment, and the As we explained in City of Pittsburgh v. overlapping issues and clients, we find Simmons, 729 F.2d 953 (3d Cir. 1984): that the reasonable person, with familiarity of these circumstances, would conclude The record taken by a that their conflict of interest tainted Judge certified court reporter is Wolin. always the best evidence of what has been said, what E. The Ex Parte Communications actions have been taken, Contributing to Taint and what rulings have been made. “Meaningful review The extensive ex part e requires that the reviewing communications between Judge Wolin, on tribunal must be able to the one hand, and the Advisors and review a decision of a trial parties, on the other, further support court . . . to determine its disqualification under § 455(a). See correctness and if necessary United States v. Furst, 886 F.2d 558, 583 control the course of the litigation whether by appeal or by use of a writ . . . .” 19 Kensington alleges that Advisors Wood v. Zapata Corp., 482 Gross and McGovern, who served as F.2d 350, 358 (3d Cir. mediators in the Owens Corning 1973) (Biggs, J., bankruptcy, improperly shared with Judge dissenting). Without a Wolin information that they had gained record of the proceedings from the parties during the course of “[w]e are left with mediation. conflicting statements of 26 counsel which cannot be the public interest in truth and fairness”). reconciled and, in any If judges engage in ex parte conversations event, are not part of the with the parties or outside experts, the record and therefore cannot adversary process is not allowed to serve as a basis for function properly and there is an increased adjudication.” Id. risk of an incorrect result. . . . Indeed, the best Attuned to that concern, the Code protection for the litigants, of Conduct for United States Judges the bar, and the bench at cautions that a judge should “neither trial and on appeal is a initiate nor consider ex parte verbatim record. Rather communications on the merits, or than having to speculate procedures affecting the merits, of a upon what was said and the pending or impending proceeding.” Code manner in which an of Conduct for U.S. Judges Canon 3 § argument was made, the A(4) (2003). The rule is designed to court then has before it, prevent all of the evils of ex parte when a record is taken, the communications: “bias, prejudice, exact words of counsel and coercion, and exploitation.” Jeffrey M. the exact words and rulings Shaman et al., Judicial Conduct and of the court. Thus, there is Ethics § 5.03 (3d ed. 2000). The Code no need for characterization provides for only two narrow exceptions. in affidavits or for First, “[a] judge may . . . obtain the advice reconstruction at a later date of a disinterested expert on the law of what the parties or court applicable to a proceeding before the thought each said or meant judge if the judge gives notice to the or what each intended. parties of the person consulted and the substance of the advice, and affords the Id. at 955-56. parties reasonable opportunity to respond.” Code of Conduct for U.S. The other problem is that ex parte Judges Canon 3 § A(4) (2003). Second, communications run contrary to our “[a] judge may, with consent of the adversarial trial system. The adversary parties, confer separately with the parties process plays an indispensable role in our and their counsel in an effort to mediate or system of justice because a debate settle pending matters.” Id. between adversaries is often essential to the truth-seeking function of trials. See Judge Wolin apparently recognized Polk County v. Dodson, 454 U.S. 312, 318 the dangers of ex parte meetings, but (1981) (“The system assumes that relied on two “safeguards” to minimize the adversarial testing will ultimately advance risk. First, Judge Wolin explained that all 27 parties were welcome to participate in the meetings. Thus, the risk of an incorrect ex parte meetings and “as one party left result was still present. This would be of chambers, the next would arrive ready to little consequence if the ex parte meetings debunk the ‘falsehood s’ of its had been limited to procedural matters, but predecessor.” Owens Corning, 305 B.R. Judge Wolin himself explained that “[t]he at 206. Second, Judge Wolin explained purpose of the ex parte meetings was to that he was “no babe in arms.” Id. This ensure that each committee or corporate characterization, which finds expression in constituency was afforded the opportunity Judge Wolin’s February 2, 2004 opinion, to provide to the Court insights as to why, is obviously in tension with his earlier in the competition for limited dollars, its self-characterization as an asbestos claim was just.” (Supp. Resp. at 3.) In “neophyte.” other words, the ex parte meetings went to the very heart of the proceedings. Unfortunately, we do not share Judge Wolin’s confidence that these The ex parte meetings with the safeguards adequately minimized the risks. parties are flawed because, as we have Obviously Judge Wolin is correct when he explained, no opportunity existed for their states that he is “no babe in arms,” but the adversaries to know precisely what was same could be said of the overwhelming said, when it was said, by whom, and what majority of Article III judges. Moreover, effect could be drawn from their offerings. the Code of Judicial Conduct does not On the one hand, although all parties may draw a distinction between newly- at one time or another have been invited to appointed and veteran judges; the general an ex parte meeting with Judge Wolin, the p r o h i b i t io n a g a i n st e x p a r t e probability of “slippage” and omission in communications on the merits applies to the content of the material discussed, all judges. whether procedural or substantive, was evident. As we have stated, no one could As for the second safeguard, we know what had been said or proffered. On must first assume that all parties took the other hand, Judge Wolin’s ex parte equal advantage of Judge Wolin’s meetings with the Advisors presented an invitation to participate in ex parte even more egregious problem. The instant meetings, even though experience informs record reveals a conflict as to what the us that certain parties may be more Advisors brought to the meetings from aggressive than others. But even if all their extrajudicial experience and, in the parties met for the same amount of time case of Hamlin and Gross, from their with Judge Wolin, there was no way for advocate roles in G-I Holdings, and the them to adequately respond to or counter extent of their influence on the entire facts presented by their adversaries process. We know, for instance, that because they had no way of knowing what someone at one of the meetings was said during those unrecorded disparaged a possible expert witness and 28 criticized a defense. Of equal concern is attorneys on an ex parte the record’s disclosure that at a November basis, without permission of 19, 2002 meeting attended by Advisors adversary attorneys. Any Gross, McGovern, and Dreier, matters of objection to such ex parte substance were discussed, but we have no communications is deemed knowledge about their content. The waived. record is silent in this respect. Advisor Dreier made notes in handwriting which While we have no record of any are under seal and we find difficult to objections being registered at that time, we comprehend. No discovery of that cannot regard the silence that meeting was permitted by Judge Wolin. accompanied the preemptive statement that “[a]ny objection to such ex parte We have previously discussed the communications is deemed waived” as distinction between our holding, that manifesting consent. To fulfill the conflicted advisors who participate or principles and objectives of Canon 3 of influence a judge requires the judge’s the Code of Conduct, which proscribes ex disqualification, as distinct from an expert parte communications except with or other assistant to the judge who is consent, affirmative consent is dictated. disinterested and non-conflicted. It should The record reveals no such consent was be understood that we do not hold that a ever given. judge may not or should not have ex parte meetings or communications with the Given all of these considerations, parties or their counsel appearing before we are confident that the reasonable him. However, the hallmark of such person would be troubled by the fact that meetings or communications requires the so many communications between Judge consent of the parties. We have pointed Wolin and Gross or Hamlin took place out in this section that the Code of outside the presence of the parties. If the Conduct for United States Judges structural conflict of interests gave Gross proscribes ex parte communications and Hamlin a motive to give Judge Wolin except where the judge has entered into less-than-neutral advice, it was the ex them with the consent of all the parties. parte meetings that gave them the opportunity. In the absence of the parties, It will be recalled that Judge Wolin Gross and Hamlin were in a position to stated at the December 2001 Case influence Judge Wolin without concern Management Conference that: about judicial constraints or independent challenges from those individuals or In order to effectively case entities with a stake in the outcome of the manage complex litigation, it is necessary for the judge to speak and/or meet with 29 Five Asbestos Cases.20 Notwithstanding that § 455 does not contain an express timeliness F. Were the Recusal Motions Timely requirement, the Courts of Appeals cases Under § 455(a)? that have addressed the issue have concluded that parties seeking disqualification under § 455(a) should do 20 We have previously noted that so in a timely manner. See, e.g., In re IBM the Advisors chosen by Judge Wolin were Corp., 45 F.3d 641, 643 (2d Cir. 1995); In not of the judicial family in the sense that re Apex Oil Co., 981 F.2d 302, 304 (8th they were neither magistrate judges, law Cir. 1992). The reason most often given clerks, or special masters. As such, the for applying a timeliness requirement to Advisors were not subject to the recusal motions is that “[t]he judicial constraints imposed upon judicial process can hardly tolerate the practice of personnel, either through the Code of a litigant with knowledge of circumstances Conduct for United States Judges, the suggesting possible bias or prejudice Code of Conduct for Judicial Employees, holding back, while calling upon the court or Bankruptcy Rule 9003 (“Prohibition of for hopefully favorable rulings, and then Ex Parte Contacts”). We do not imply that seeking recusal when they are not because of their hybrid status as Advisors, forthcoming.” Smith v. Danyo, 585 F.2d that the Advisors breached any of the rules 83, 86 (3d Cir. 1978). Yet timeliness, as by which judicial personnel are bound. the Court in Danyo stated, is but one of We cannot help but point out, however, the factors which engages a court’s that judicial personnel could not have discretion in determining whether a judge undertaken or been engaged in positions shall be relieved from its assignment. Id. or other functions at odds with their judicial position. We are obliged to look On remand, Judge Wolin concluded with disfavor upon appointment of that the motions seeking his recusal were personnel who have the access and untimely under § 455(a). In reaching that influence with the judiciary that the holding, Judge Wolin charged that the Advisors had and yet are not constrained Petitioners either knew or should have from accepting positions that conflict with known about Gross and Hamlin’s their advisory duties. See Code of participation in G-I Holdings long ago, but Conduct for United States Judges Canon 3 waited until October 2003 to act on that § (B)(2) (stating that “[a] judge should information. Judge Wolin also questioned require court officials, staff, and others the Petitioners’ true motivations for filing subject to the judge’s direction and the recusal motions, claiming that they control, to observe the same standards of were not based on ethical considerations fidelity and diligence applicable to the but were strategic maneuvers by the judge”) (emphasis added); see also Notes Petitioners calculated to gain a larger 4 and 18, supra. percentage of the bankruptcy estates, 30 either through a legislative solution or Holdings bankruptcy. While reviewing through delay.21 that opinion, Brodsky noticed that Advisor Gross was listed as the counsel for the Judge Wolin and the parties Futures Representative. This, in turn, opposing recusal have focused primarily prompted an investigation by Brodsky on Mark Brodsky, the senior portfolio which disclosed Hamlin’s role in G-I manager at Elliot Management, which Holdings. Brodsky’s claim that this was provides services to Kensington’s parent the first time he learned of Gross and companies. Brodsky testified that he first Hamlin’s participation in G-I Holdings is learned about Gross and Hamlin’s corroborated by a September 24, 2003 e- participation in G-I Holdings on mail in which Brodsky expresses shock at September 24, 2003, a little more than two Gross’s involvement in G-I Holdings. weeks before Kensington filed the first of the recusal motions. Brodsky testified that It is not surprising, therefore, that he acquired this knowledge from another Judge Wolin in his written opinion found Owens Corning creditor who brought to that Brodsky (or, for that matter, D.K. his attention an opinion issued in the G-I Acquisition Partners) did not have actual knowledge of Gross or Hamlin’s participation in G-I Holdings prior to 21 Congress has recently undertaken September 2003.22 He did conclude, an attempt to improve the current asbestos however, that they either had constructive litigation system. See 150 Cong. Rec. or imputed knowledge prior to September S4103-S4114 (daily ed. Apr. 20, 2004). 2003. Senator Hatch, Chairman of the Senate Judiciary Committee, has introduced As we understand the phrase, Senate Bill 1125, the Fairness in Asbestos constructive knowledge is “knowledge Injury Resolution Act (“FAIR” Act), that one using reasonable care or diligence which is designed to bring compensatory should have, and therefore that is relief to those su ffering from attributed by law to a given person.” mesothelioma and asbestosis. If enacted Black’s Law Dictionary 876 (7th ed. in its current form, the bill would create 1999). Judge Wolin implied that Brodsky for the benefit of asbestos victims a $114 had constructive knowledge of the billion fund under the auspices of a Advisors’ conflict because: (a) Hamlin’s streamlined no-fault system. See id. Senator Frist has described this proposal 22 as “a substantially better means of At the hearing which Judge obtaining compensation than through Wolin held in January 2004, he stated, bankruptcy trusts.” Id. at S4105. Insurers when questioned if he disbelieved and defendant companies for the most part Brodsky, “I don’t disbelieve Mr. Brodsky support the bill. as a matter of fact.” 31 appointment as the Futures Representative Schreiber, 599 F.2d 534, 537 (3d Cir. and Gross’s selection as local counsel in 1979), “sound p ublic policy G-I Holdings was a matter of public considerations . . . militate for the record; (b) asbestos-related trade adoption of a . . . rule that the parties periodicals reported Hamlin and Gross’s should be apprised of any possible ground involvement in G-I Holdings; and (c) for disqualification known privately to the many of the attorneys involved in the Five judge.” The most compelling of these Asbestos Cases knew about Hamlin or public policy considerations is that the Gross’s involvement in G-I Holdings. As judge is in the best position to know of the Judge Wolin explained it, “Brodsky circumstances supporting a recusal surrounded himself with a coterie of motion. The Five Asbestos Cases are no experienced and sophisticated lawyers exception. who through even a modicum of effort would have unearthed Hamlin’s and The record in this case Gross’s G-1 appointments.” demonstrates that Judge Wolin knew about Gross and Hamlin’s participation in We believe Judge Wolin G-I Holdings from or near the inception of improperly placed the burden on the Hamlin’s appointment as the Futures Petitioners to uncover Gross and Hamlin’s Representative.23 Moreover, at least one participation in G-I Holdings. Such a of the parties (USG Corp.) brought requirement does not further the purpose Hamlin’s potential conflict to Judge of § 455(a), which “mandates, at a Wolin’s attention in February 2002, more minimum, the appearance of neutrality and than one-and-one-half years before impartiality in the administration of Kensington filed its recusal motion.24 It is justice.” Alexander, 10 F.3d at 157. In the recusal context, we are satisfied that if 23 there is to be a burden of disclosure, that Gross submitted an affidavit burden is to be placed on the judge to which declared: “At all relevant times, disclose possi b l e g r o un d s f or Judge Wolin was aware of my disqualification. See United States v. representation of Mr. Hamlin in G-I Bosch, 951 F.2d 1546, 1555 n.6 (9th Cir. Holdings.” This was corroborated by 1991) (noting that § 455(a) “has a de facto Hamlin, who testified at his deposition disclosure requirement.”); see also Parker that he informed Judge Wolin at the outset v. Connors Steel Co., 855 F.2d 1510, 1525 that he was the Futures Representative in (11th Cir. 1988) (recognizing that recusal G-I Holdings. motion could have been avoided if judge 24 The record contains a stipulation had disclosed grounds for recusal to signed by USG Corp.’s counsel which parties). unequivocally states that USG Corp. learned in January 2002 about Hamlin’s As we stated in United States v. appointment in G-I Holdings. That same 32 undisputed, however, that Judge Wolin access to a burgeoning stream of never disclosed to the parties, either on or information in the Five Asbestos cases off the record, that Gross and Hamlin were does not naturally lead to the conclusion actively participating as zealous advocates that they should have known about the in G-I Holdings. participation of Hamlin and Gross in G-I Holdings. We are persuaded that nothing There may be instances in which short of actual knowledge of the facts constructive knowledge is so pervasive giving rise to the recusal motions and the that it is tantamount to actual knowledge, Petitions for Mandamus would satisfy the but this is not one of those instances. See, § 455(a) timeliness factor here. e.g., Nat’l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 958-59 (2d In addition to relying on Cir. 1978) (finding that parties had constructive knowledge, Judge Wolin constructive knowledge of judge’s former found that the Petitioners had imputed affiliation with a large law firm located in knowledge of Gross and Hamlin’s same community); Universal City Studios participation in G-I Holdings. “Imputed v. Reimerdes, 104 F. Supp. 2d 334, 353 knowledge” means that knowledge (S.D.N.Y. 2000) (same).25 The parties’ attributed to one person may be deemed to give notice to another party. month, Judge Wolin issued an order We agree with Judge Wolin that appointing Hamlin to serve as a Special imputed knowledge can, under limited Master in the USG Corp. bankruptcy. circumstances, render a recusal motion Although USG Corp. acquiesced to that untimely. For example, when a party’s appointment, it wrote Judge Wolin a letter attorney is aware of the grounds expressing its concern that “an unsatisfied supporting recusal, but fails to act until the party” might later try to overturn an judge issues an adverse ruling, the recusal approved plan of reorganization by motion is not timely See, e.g., E. & J. claiming that Hamlin was conflicted. Gallo Winery v. Gallo Cattle Co., 967 25 The parties opposing recusal F.2d 1280, 1295 (9th Cir. 1992) (denying have directed our attention to In re Allied- as untimely motion for disqualification Signal, Inc., 891 F.2d 967 (1st Cir. 1989), where party’s attorney knew about alleged wherein the Court of Appeals for the First conflict but did not file motion until after Circuit affirmed a district court judge’s judgment was entered against him). Aside decision not to recuse himself based in from the fact that the attorney is only one part on constructive knowledge. It is step removed from the client, the attorney important to note, however, that this and client have an agency relationship and observation was not made in the context of a timeliness determination under § 455(a), but rather on assessment of the merits. 33 therefore any facts known by the attorney S.D.N.Y. 1992) (“The duty [of the may generally be imputed to the client. committee and its counsel] extends to the See Restatement (Second) of Agency § class as a whole, not to its individual 9(3) (1958) (“A person has notice of a fact members.”); In re Levy, 54 B.R. 805, 807 if his agent has knowledge of the fact . . . (Bankr. S.D.N.Y. 1985) (“Counsel for the .”). creditors’ committee do not represent any individual creditor’s interest in this case; We do not, however, agree with they [are] retained to represent the entire Judge Wolin that the recusal motions in unsecured creditor class.”). So while the the Five Asbestos Cases present an Committee had a duty to represent the appropriate avenue for imputing collective interests of the unsecured knowledge to the Petitioners. There are creditors, it did not have the authority to simply “too many dots that must be bind each individual creditor. This stands connected” before the Petitioners can be in stark contrast to the attorney-client deemed to have known about Gross and relationship we discussed above. Hamlin’s participation in G-I Holdings. For example, Judge Wolin determined that In looking at the issue of timeliness knowledge could be imputed to through the lens of imputed knowledge, Kensington through the law firm of Davis we find that the record in this case Polk & Wardwell, which is lead counsel discloses facts that are too far removed for the Unsecured Creditors Committee in and far too attenuated from the concept of the Owens Corning bankruptcy. A Davis knowledge that would cause a party to Polk partner testified that he received an e- take action to vindicate their interest. We mail in October 2001 disclosing Hamlin’s have pursued the trail of imputed appointment in G-I Holdings. Judge knowledge that the record has laid out Wolin concluded that this constituted before us, and we are satisfied that the notice to the Petitioners in Owens Corning knowledge allegedly imputed could not because the Unsecured Creditors have led any of the participants to the Committee and Davis Polk owed a point where they could be deemed to have fiduciary duty directly to Kensington. “known” about the conflict of the Advisors. If connecting the dots could not While it is true that the Unsecured have led to such a conclusion, then it is Creditors Committee in Owens Corning evident to us that in order to sustain the represented Kensington’s interests in the principles of § 455(a), where a judge’s Owens Corning bankruptcy, it is impartiality may appear to be questioned, established that a Creditors Committee we must require actual knowledge (or its owes a fiduciary duty to the unsecured undeniable equivalent) to be shown. creditors as a whole, not to the individual Because the Petitioners in Owens Corning members. See Drexel Burnham Lambert and W.R. Grace & Co. did not have actual Group, 138 B.R. 717, 722 (Bankr. knowledge of the conflict of the Advisors 34 which we have discussed and which the stands in a different posture than does record discloses, we hold that the motions Kensington or D.K. Acquisition Partners seeking Judge Wolin’s recusal under § insofar as Judge Wolin’s disqualification 455(a) were timely. is concerned. The record reveals, with no uncertainty, that Kensington and D.K. G. Disqualification Under § 455(b)(1) Acquisition Partners did not have actual knowledge of the Advisors’ conflict until We express no view on the S eptember a n d O c t o b e r 2 0 0 3 , timeliness of the motions for respectively, and that they filed motions disqualification under § 455(b)(1). As seeking Judge Wolin’s disqualification mentioned above, the Petitioners also seek weeks later. Judge Wolin’s disqualification under § 455(b)(1) on the basis of his ex parte On the other hand, USG became communications with the Advisors, aware of the Advisors’ conflict in January parties, and attorneys. Because we have 2002. See Note 25, supra. It did not take determined that Judge Wolin must be any action, however, until after the disqualified under § 455(a), there is no motions filed by Kensington and D.K. need to reach the issues of timeliness or Acquisition gave rise to a similar motion the merits of § 455(b)(1). See School by USG. We assume this is the reason Asbestos, 977 F.2d at 781 (declining to why USG’s motion (and ensuing Petitions reach § 455(b)(1) issue where for Mandamus) focused principally on disqualification was warranted under § § 455(b)(1) and the ex parte 455(a)). Section 455(b)(1) is embraced communications that Judge Wolin had within the perception that a reasonable with the Advisors, the parties, the person might entertain that the judge’s attorneys, and others. We will not impartiality might reasonably be speculate, however, on this score because questioned.26 USG’s Petitions were also couched in terms of § 455(a) and dealt as well with VI. USG Debtors and the Official the Advisors’ conflict which we have Committee of Unsecured Creditors discussed in connection with the (collectively, “USG”) Kensington and D.K. Acquisition Partners Petitions. As we previously indicated, USG If timeliness turned solely on “actual knowledge” and constituted the 26 Because we are not addressing only factor we could consider in deciding disqualification under § 455(b)(1), we whether to reach the merits of a recusal express no view as to whether the claims motion, we might well have second made by the Petitioners relying on § thoughts about relieving Judge Wolin of 455(b)(1) require disqualification. his assignment over the USG Corp. 35 bankruptcy. But as we explained earlier in decision that favored it.27 As USG’s this opinion, timeliness is just one of the Unsecured Creditors Committee has factors—albeit a significant one—which argued, § 455(a) contains no explicit engages our discretion in determining timeliness requirement and “the whether another judge should be assigned seriousness of the grounds for recusal that to oversee the USG Corp. bankruptcy. See exist on this record far outweighs any Danyo, 585 F.2d at 86. significance that might exist on the date the Motion was filed.”28 If, as USG As the Danyo Court noted and as claims, public policy is the polestar to we have recounted, “[t]he judicial process which we must look, it is these concerns can hardly tolerate the practice of a litigant of public policy that are implicated in with knowledge of circumstances USG’s Petitions. suggesting possible bias or prejudice holding back, while calling upon the court First, Judge Wolin had issued just for hopefully favorable rulings, and then one adverse ruling at the time that USG’s seeking recusal when they are not motion was filed and, as mentioned, this forthcoming.” Id. at 86. The Danyo ruling was favorable to USG. As both the Court went on to caution circumspection USG Committee and USG Debtors have by stating “[b]ut especially when the taken pains to point out, Judge Wolin has circumstances giving rise to the charge of issued no substantive rulings in their case bias occur or are discovered after the case at all, other than the one ruling which we has commenced, timeliness should be have just recounted. Moreover, the measured not in some absolute and Motions to Recuse filed by USG were arbitrary manner from the date of filed only after the Owens Corning discovery, but with respect to the future stages of the case.” Id. at 86 (emphasis 27 added). Danyo then instructs us that we On February 19, 2003, Judge are to consider an appropriate Wolin issued a case management order accommodation between the competing instructing the USG Debtor to propose a institutional interest in avoiding the bar date for asbestos cancer claimants and appearance of impropriety, on the one proof of claim form. This ruling had been hand, and avoiding the abuse of § 455(a) opposed by the asbestos claimants. procedure, on the other. Cf. id. 28 Brief of Petitioner the Official Committee of Unsecured Creditors of The record informs us that the USG USG Corporation, et al. in Support of debtors had one meeting with Judge Wolin Petitions for a Writ of Mandamus (citing in early 2002. At the time that it filed its In re Edgar, 93 F.3d at 257 (noting that motion to recuse Judge Wolin, it had “passage of time is not conclusive if the received but one ruling in all the justification for disqualification is intervening time, and that ruling was a compelling”)). 36 Petitioners and the W.R. Grace Petitioners We would be remiss if we did not had filed theirs. It is of interest to note close this opinion, which concerns Senior that insofar as the Petitions seeking District Judge Alfred M. Wolin, with disqualification of Judge Wolin, none of thoughts that were so ably expressed years them seeks to overturn any of his prior ago by our colleague, Senior Judge rulings. Rather, the recusal proceedings Ruggero J. Aldisert. Judge Aldisert wrote are concerned only with his continuing for the Court in Haines v. Liggett Group, into the “future stages”of these cases. Inc., 975 F.2d 81, 98 (3d Cir. 1992), a case which required the reassignment of USG seeks Judge Wolin’s recusal another distinguished District Court because, as we have been made aware Judge. The Court held in Haines that during the discovery that took place after Judge Sarokin, the district court judge our first hearing, the Advisors billed their who had to be reassigned, had exhibited fees equally to each of the Five Asbestos the “appearance of partiality” in presiding Cases on the theory that the issues over an action against the Tobacco concerned each case equally. There is, Industry. We take the liberty of repeating therefore, some logic in USG’s argument verbatim Judge Aldisert’s words as they that it should be entitled to the same appeared in the Haines opinion because remedy which we have decided is they are so appropriate and relevant here: necessary in Owens Corning and W.R. Grace. The right to trial by an impartial judge “is a basic We are not disposed to have the requirement of due issue of timeliness trump what we have process.” In re Murchison, concluded are the principles of § 455(a), 349 U.S. 133, 136, 75 S. Ct. even though the record discusses no 623, 625, 99 L. Ed. 942 improper acts by Judge Wolin. In light of (1955). To fulfill this the record that has been developed, and in requirement—and to avoid light of the factors which have been both bias and th e outlined in Danyo, supra, and their appearance of bias—this application to USG, we are satisfied that, court has supervisory in the unique context of this case, it is authority to order cases appropriate for us to disqualify Judge reassigned to another Wolin from administering the USG district court judge. Lewis bankruptcy, just as we have disqualified v. Curtis, 671 F.2d 779, 789 him from administering the Owens (3d Cir.), cert. denied, 459 Corning and W.R. Grace bankruptcies. U.S. 880, 103 S. Ct. 176, 74 L. Ed.2d 144 (1982). VII. Therein we stated: 37 I mp a r t i a l i t y a n d t h e 15 years29 and is no stranger appearance of impartiality to this court; he is well in a judicial officer are the known and respected for sine qua non of the magnificent abilities and American legal system. In outstanding jurisprudential Commonwealth Coatings and judicial temperament. Corp. v. Continental On the basis of our Casualty Co., 393 U.S. 145, collective experience, we 89 S. Ct. 337, 340, 21 L. would not agree that he is Ed.2d 301 (1968), the incapable of discharging United States Supreme judicial duties free from Court stated: “[A]ny bias or prejudice. tribunal permitted by law to Unfortunately, that is not try cases and controversies the test. It is not our not only must be unbiased subjective impressions of but also must avoid even the his impartiality gleaned appearance of bias.” after reviewing his decisions these many years; 671 F.2d at 789. See also rather, the polestar is Nicodemus v. Chrysler “[i]mpartiality and the Corp., 596 F.2d 152, 157 appearance of impartiality.” (6th Cir. 1979); United States v. Robin, 553 F.2d 8, Haines, 975 F.2d at 98. 10-11 (2d Cir. 1977) (en b a n c ) (per curi am) . VIII. CONCLUSION Reassignment is appropriate to “preserve not only the We conclude as follows: reality but also the appearance of the proper The Kensington, D.K. Acquisition functioning of the judiciary Partners, and USG Corp. Petitioners have as a neutral, impartial demonstrated a clear and indisputable administrator of justice.” right to have the Writs of Mandamus United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989). 29 Judge Wolin has been a federal district court judge for seventeen years. The district judge in Prior to joining the federal judiciary, he this case has been a served as a judge on the County District distinguished member of the Court and Superior Court of New Jersey federal judiciary for almost for seven years. 38 issue. The record reveals that the Because Judge Wolin, a United Advisors’ conflict, which cannot at this States District Court Judge from the stage be disassociated from Judge Wolin District of New Jersey, was appointed in as well as the ex parte meetings that the the District of Delaware as Coordinator of Advisors and Judge Wolin participated in, Case Management for the Five Asbestos reveal an abuse of discretion that requires Cases by the then-Chief Judge of this disqualification. If these circumstances Court (Senior Judge Edward R. Becker), were revealed to a reasonable person, it we deem it appropriate to file this Opinion would undoubtedly lead to a perception and Writ of Mandamus with the present that Judge Wolin’s impartiality might be Chief Judge of this Court (Judge Anthony seriously questioned. J. Scirica) for either appointment or reassignment of the Owens Corning, W.R. As to Kensington, D.K. Acquisition Grace & Co. and USG Corp. bankruptcies Partners, and USG Corp., who have asked to another judge within the Third Circuit us to issue a Writ of Mandamus pursuant to 28 U.S.C. § 292(b).30 disqualifying Judge Wolin from further presiding over the Owens Corning, W.R. Grace & Co. and USG Corp. bankruptcies, we will grant their request. In re Kensington Int’l Ltd. Nos. 03-4212, et al. We will take no action at this time with respect to the Armstrong World Industries, Inc. bankruptcy, but will FUENTES, Circuit Judge, dissenting. schedule appropriate briefing and argument on the Petition for Mandamus In November 2001, then-Chief filed by the Official Committee of Judge Becker of this Court ordered the Unsecured Creditors of Armstrong World consolidation of the Five Asbestos Cases Industries, Inc. on the grounds that “these bankruptcy cases, which carry with them tens of We will take no action in the thousands asbestos claims, need to be Federal-Mogul Global, Inc. bankruptcy, consolidated before a single judge so that leaving its administration with Judge Wolin. 30 28 U.S.C. § 292(b) provides: We will vacate any and all stays “The chief judge of a circuit may, in the that we previously imposed on the District public interest, designate and assign Court and Bankruptcy Court proceedings, temporarily any district judge of the circuit so that the matters pending or to be to hold a district court in any district brought before the District and within the circuit.” Bankruptcy Courts may be resumed. 39 a coordinated plan for management can be A. developed and implemented.” JA at 191. First, I must disagree with my Judge Becker stressed the magnitude of colleagues’ conclusion that Gross and this task, noting that because “a significant Hamlin had a conflict of interest. The portion of the asbestos cases in this majority discerns that “Gross and Hamlin, country are proceeding under the aegis of did, in fact, operate under a structural this litigation, I deem this assignment and conflict of interest” arising “from the dual consolidation critically important to the roles they played in the Five Asbestos administration of justice.” Id. at 191-92. Cases and the G-I Holdings bankruptcy.” Judge Wolin accepted this Court’s Maj. Op. at 18. The majority agrees with mandate and immediately set himself to Petitioners that Gross and Hamlin are the task of managing this unprecedentedly conflicted by their futures representative large asbestos bankruptcy litigation. My roles because the issues in G-I overlap to colleagues, disapproving of the manner in such a great degree with those in the Five which Judge Wolin executed his mandate, Asbestos Cases. Specifically, the majority have decided that he must be recused. writes: “By their very position as I disagree with this conclusion for representatives of the future asbestos several reasons. First, I cannot concur that claimants in G-I Holdings, Gross and a reasonable observer would perceive any Hamlin signaled to all that they could not appearance of partiality on the part of be non-partisan, benign or neutral.” Maj. Judge Wolin: specifically, I do not agree Op. at 19. that the Advisors labored under any sort of There is no doubt, as the Supreme conflict, nor do I perceive Judge Wolin’s Court recognized long ago, that “[c]ourts practice of ex parte communications to have (at least in the absence of legislation warrant his recusal. I find it telling that to the contrary) inherent power to provide Petitioners have not asked, and the themselves with appropriate instruments majority has not seen a need, for any of required for the performance of their Judge Wolin’s prior rulings to be duties. This power includes authority to disturbed. In my view, this fact belies the appoint persons unconnected with the seriousness of the taint that Petitioners court to aid judges in the performance of have sought to ascribe to Judge Wolin’s specific judicial duties, as they may arise court. Second, the petitions for recusal in in the progress of a cause.” In re Peterson, this case are clearly untimely, and should 253 U.S. 300, 312 (1920) (Brandeis, J.) be rejected on that basis alone. (internal citations omitted). Although Accordingly, I must respectfully dissent “there is no statute which expressly from my colleagues’ decision to recuse authorizes” the appointment of the Judge Wolin. Advisors in this case, “the court possesses I. the inherent power to supply itself with this instrument for the administration of 40 justice when deemed by it essential.” 31 Id. d e b t o r -d e f e n d a n t ’ s C h a p t e r 1 1 The Advisors may well have been reorganization plan is confirmed, while e x t r a o r d i n a r y a n d unp reced ente d future claimants are those who do not appointments in this asbestos bankruptcy manifest any injury until after the plan is proceeding, but this is a case of confirmed. Because asbestosis symptoms e x t r a o r d i n ary a n d u n p r e c e d e n te d can take an extremely long time to complexity and magnitude. In that light, I manifest themselves, and because the cannot agree that a reasonable observer, whole point of Chapter 11 proceedings is with knowledge of all of the relevant facts, to give the debtor finality as to pre- would discern their role as creating any bankruptcy liabilities, future claimants are appearance of partiality. given their own “futures representative.” This representative is charged with To see why this is true, one need representing the interests of future only look at the role of a futures claimants, i.e., by maximizing their share representative in asbestos bankruptcy of the trust corpus. Much like unnamed litigation. In an asbestos bankruptcy class members are bound to the results of proceeding, all present and future asbestos a class action, a future claimant is bound claims are steered away from the bankrupt by the resolution to which his or her debtor and applied to a properly funded representative agrees. By definition, trust approved by the bankruptcy court. future claimants are unidentified during Present asbestos litigants are those who the plan process, so the futures suffer asbestos-related injury before the representative does not have any concrete clients, only a nebulous “client” comprised 31 of latent future interests. The Advisors appointed by Judge Wolin were: 1) William Dreier, a retired Consequently, Gross and Hamlin do New Jersey appellate judge and products not have any clients in G-I, nor will they liability expert; 2) David Gross, a New have any clients by the point at which their Jersey lawyer and mediator who had job in G-I is finished: their duty is to previously served as counsel for both promote the collective interest of those asbestos plaintiffs and defendants; 3) C. parties that will have future claims against Judson Hamlin, a retired New Jersey the G-I post-confirmation trust. In other Superior Court judge who had managed all words, Gross and Hamlin are charged with asbestos litigation in New Jersey for a safeguarding future claimants’ “cut” of the number of years; 4) John Keefe, a retired G-I trust. This duty does not place Gross New Jersey appellate judge who had and Hamlin in a materially adverse managed all asbestos litigation in New position to the estates in the Five Asbestos Jersey for a different period of time; and 5) Cases, nor does it give them a direct Francis McGovern, a Duke University law interest in manipulating those estates in professor with his area of expertise in mass any way. See In re Marvel Entertainment tort litigation. 41 Group, Inc., 140 F.3d 463, 476 (3d Cir. division of the trusts in the Five Asbestos 1998) (“one is a ‘disinterested person’ only Cases. if he has no interest that is materially Despite the total lack of adverse to a party in interest in the commonality among the parties and bankruptcy”). subject matter in G-I and the Five Petitioners’ failure to point out any Asbestos Cases, the majority perceives the interest held by Gross or Hamlin is appearance of a conflict because, as an unsurprising, given that they do not asbestos bankruptcy case, G-I contains represent any of the parties in the Five similar issues to those in the Five Asbestos Asbestos Cases. While there may be some Cases. 32 In my view, this simply cannot overlap among those who eventually share constitute grounds for a reasonable, fully in the money set aside for future claimants informed observer to perceive a conflict, in the Five Asbestos Cases and those who and the majority does not explain why it share in the money set aside for future would constitute such grounds. It is true claim ants in G-I , the “partie s” that decisions from Judg e W olin t h e m s e l v es — t h e f u t u r e c l ai m a n t benefitting future claimants in the Five interests—are distinct. The clear Asbestos Cases might benefit the G-I distinction between the futures claimants future claimants, but this does not make in G-I and those in the Five Asbestos Gross and Hamlin non-neutral as Judge Cases is highlighted by the facts that future Wolin’s Advisors. Any person with claimants in the Five Asbestos Cases could expertise in a given field invariably forms be present claimants in G-I or vice versa, opinions about that field. For example, and that Gross and Hamlin will not even judges are empowered to appoint attorneys know which claimants fall into which as experts. It is almost certain that an category until their roles are concluded. expert attorney will have opinions about Moreover, the subject matters of the cases are entirely different. As 32 The majority contends that observed before, the G-I litigation is a Hamlin and Judge Wolin implicitly dispute over how to divide the assets of the conceded a conflict when they stated that G-I trust. Similarly, each of the Five Hamlin would have had to recuse himself Asbestos Cases is a dispute over how to from any assignment in the Five Asbestos divide the assets of the trust of one of the Cases dealing too closely with G-I. Maj. five debtors. In other words, the money at Op. at 19. A reasonable observer, stake in G-I has no relation whatsoever to however, would not view Hamlin’s and the money at stake in any of the Five Judge Wolin’s cautious statement about Asbestos Cases, and the responsibility held self-recusal in hypothetical situations as an by Gross and Hamlin to maximize future admission that a structural conflict actually G-I asbestos claimants’ share of the G-I existed, or even that recusal would be trust presents no duty with respect to the mandatory in those hypothetical situations. 42 the matters within his or her expertise. informed judicial advisor (or judge). The Accordingly, it is possible, if not probable, majority gleans an appearance of conflict that the attorney will have opinions about from the mere existence of similarities the merits of the case for which he or she between the Five Asbestos Cases and G-I, is called. Furthermore, it is also possible, but a reasonable observer with knowledge if not probable, that the practice upon of all relevant facts33 would easily pierce which the attorney built his or her through these superficial similarities and expertise will contain clients that would be conclude that there is no conflict. benefitted by the judge’s ruling in a certain B. way. These are just natural consequences of the attorney being an expert in his or her Because I find that Gross and field, but would not cause the reasonable Hamlin were not conflicted by their roles observer to demand the judge’s recusal in G-I, I find it necessary to briefly discuss because the attorney is “conflicted.” Petitioners’ other allegations of conflict. Similarly, a judge would obviously not The second purported conflict is the have to recuse himself from all criminal attendance by Gross, Hamlin and cases if his law clerk was committed to McGovern at the futures representatives’ working for the Federal Defender after his meetings. Petitioners assert that because or her clerkship. Although the law clerk t h e m e e t i n g s in c l u d e d f u t u r e s would arguably have an incentive to promote pro-defendant precedent, no reasonable observer would demand that 33 The majority correctly observes the judge screen off the law clerk from all that the reasonable person envisioned by § criminal cases. 455(a) is a lay person, not a member of the In short, there is no colorable basis asbestos bar. However, even if the District for perceiving Gross and Hamlin to be Court’s description of the reasonable “non-neutral.” They do not represent any person was technically wrong, the practical parties in the Five Asbestos Cases, they do import of this mistake was minimal. As not directly represent any interest respondents observe, the “reasonable materially adverse to any of those parties, observer” in recusal cases must still have and the subject matter of their “knowledge of all the facts.” In re representation is wholly separate from the Kensington Int’l Ltd., 353 F.3d 211, 220 subject matter of the Five Asbestos Cases. (3d Cir. 2003) (emphasis added). Thus, At most, Petitioners have shown that Gross although the reasonable person is a lay and Hamlin have opinions about the person, the observer with which the Court subject matter in front of them as a result is concerned is a lay person with complete of their knowledge of asbestos litigation, knowledge of the demands and intricacies but strong opinions about the law are to be of asbestos bankruptcy litigation, as well expected in any well-educated and well- as the actual events that transpired in the District Court. 43 representatives for the Five Asbestos Asbestos Cases were spun in any particular Cases and had as their goal the promotion light to the Advisors. This case is of future claimants’ interests in the therefore more like Bonds than School planning of upcoming legislation, the Asbestos. neutrality of the three Advisors was Petitioners’ final three grounds of compromised. Attendance at a conference conflict are also unpersuasive. First, or meeting where a particular point of Petitioners’ argument that Gross’s view is advocated or dominates the advocacy for the Keene Creditors Trust discussion, however, does not by itself created a conflict fails for the same create a reasonable question as to a judge’s reasons that he and Hamlin were not impartiality. United States v. Bonds, 18 conflicted by their roles in G-I. Second, F.3d 1327, 1330-31 (6th Cir. 1994). Petitioners allege that after Gross and Going to such a conference creates no McGovern acted as mediators, they more of an appearance of bias than reading divulged confidential information gathered a law review article or book with the same in that capacity from the parties to Judge viewpoint. Id. at 1330-32. Wolin, and that this constituted an ethical In Bonds, the criminal defendants breach of their mediator duties. The appealed a conviction based largely on record indicates that Gross made some challenged DNA evidence, and then reports of his mediation discussions to moved for rehearing en banc after losing Judge Wolin, and that McGovern did, in the appeal. Id. at 1328. The defendants fact, report to the Advisors and Judge unsuccessfully sought the recusal of an Wolin that the parties to an earlier appellate judge from the en banc panel mediation in Owens Corning disagreed on because that judge had attended a scholarly the extent of Owens Corning’s tort conference in which the speakers liability, estimating it to be anywhere from vigorously defended the FBI’s DNA $6 to 20 billion.34 Furthermore, methods and denigrated defense counsel McGovern has testified that disclosures of challenging those methods. Id. at 1329. In the mediation’s substance, even to the refusing to grant the recusal motion, the decisionmaker in the case, are an ethical Bonds court specifically distinguished In breach. re School Asbestos Litig., 977 F.2d 764, At most, Petitioners have shown 782 (3d Cir. 1992), on the grounds that the that McGovern and Gross may have conference in the latter case was actually breached their ethical duties as mediators; funded by the judge in that case, and provided a pre-screening of the plaintiffs’ case on the actual facts of the case. 18 34 F.3d at 1330-31. This case has neither of Petitioners contend that this these salient attributes, as there is no account is verified by Dreier’s notes, but evidence that the actual facts of the Five Dr e ier’s pe nma nship ma ke s th is impossible to confirm. JA at 3122-35. 44 however, Petitioners have not shown any Judge Wolin’s practice of ex parte way in which this purported breach would communications contributed to an actually constitute a conflict or an appearance of partiality: “If the structural appearance of partiality on Judge Wolin’s conflicts of interest gave Gross and part. Petitioners have no evidence that the Hamlin a motive to give Judge Wolin less- mediations’ substance was conveyed to than-neutral advice, it was the ex parte Judge Wolin in a manner that would bias meetings that gave them the opportunity.” him in the Five Asbestos Cases. Indeed, Maj. Op. at 29. Of course, if there were no as Judge Wolin has pointed out in his conflict to begin with, then Judge W olin’s opinion, the total amount of Owens ex parte conferences with his Advisors Corning’s liability was not the key were no more objectionable than any settlement issue in the case; rather, judge’s ex parte communications with his because the bankruptcy dispute is over the or her law clerks. Thus, the ex parte distribution of the pie rather than its size, communications with the Advisors clearly the truly sensitive information in this case did not provide any independent grounds would be the parties complicated claims as for recusal. to their shares of the estate. While I share my colleagues’ Finally, Petitioners contend that wariness of the scope of Judge Wolin’s ex Hamlin’s nomination as a futures parte contacts with the parties, I do not representative in Grace created a conflict, find those contacts disturbing to the point and that Hamlin admitted as much. of requiring his recusal under § 455(a). Hamlin, of course, merely observed that if Petitioner USG’s brief implies that ex he became the futures representative in parte contacts in themselves cause a Grace, he would have to leave his Advisor judge’s impartiality to be reasonably position. Hamlin’s observation, in fact, questioned. This blanket indictment of ex highlights why his role in G-I did parte communications is belied by caselaw not create a conflict here: as a Grace in both this Circuit and others. In re futures representative, he would be Prudential Ins. Co. Am. Sales Practices fighting with other creditors of Grace over Litig. Agent Actions, 278 F.3d 175, 182, n. the proper distribution of the Grace estate. 5 (3d Cir. 2002) (stating that “any As a G-I futures representative, in contrast, r e ason able a ttorn e y w o u l d h a ve he has no direct interest in the division of understood that Judge Wolin could the Grace estate. In conclusion, for the permissib ly engage in ex parte reasons stated above, none of Petitioners’ communication in a complex class action” arguments that a conflict existed is and noting recusal movant’s concession persuasive. that premising his motion on Judge Wolin’s ex parte contacts was baseless) C. (internal quotations omitted); Aiken The majority also comments that County v. BSP Div. of Envirotech Corp., 45 866 F.2d 661, 679 (4th Cir. 1989) (recusal the qualitative circumstances of the inquiry based on ex parte contacts must contacts and their consequences in making take all circumstances of contact into their decisions. In this case, Judge W olin account). made his practice of using ex parte communications widely known at the Indeed, contrary to USG’s outset of the bankruptcy proceedings, and arguments, cases ordering recusal on the the record indicates that while every single basis of ex parte contacts did so based on party did not participate, there was no the contacts’ specific circumstances, not as favoritism given to any particular bloc of part of some general rule against ex parte interests. JA at 1854-70. The only contacts. In United States v. Kelly, 888 suspicious circumstance alleged by USG is F.2d 732, 745 (11th Cir. 1989), for that Judge Wolin issued a Case example, the Eleventh Circuit recused the Management Order favoring USG’s judge in question because the judge position on setting a bar date, had communicated ex parte with a friend’s numerous ex parte contacts with asbestos wife regarding the friend’s decision to claimants’ counsel, and then “retreated” testify; indeed, the judge himself conceded from enforcing the Case Management the appearance of impropriety. Similarly, Order. However, the Case Management the School Asbestos court recused a trial Order itself was not binding, but explicitly judge who, in his personal capacity, had described itself as a proposal that was unwittingly attended a conference subject to comment by all interested sponsored by the plaintiffs in his case on parties, after which it might not be the very topics central to his case, funded executed. JA at 286. In conclusion, there by money he had approved for plaintiffs’ is noth ing ab out t he ex parte fund. School Asbestos, 977 F.2d at 781- communications in this case to warrant 82. In that case, we ruled that all of those recusal. facts in concert, combined with the judge’s own recognition of a possible taint, D. warranted recusal. Id. at 782-83. In other Because I would reject Petitioners’ words, the ex parte contacts in those cases § 455(a) challenge, I reach the §455(b)(1) possessed attributes that made them challenge as well, and conclude that the ex specifically vulnerable to allegations of parte communications here do not warrant bias. recusal under § 455(b)(1). In relevant part, In trying to analogize to these cases, 28 U.S.C. § 455(b)(1) demands a judge’s USG makes much of the large number of recusal when “he has . . . personal ex parte contacts in this case, but does not knowledge of disputed evidentiary facts cite to any caselaw that indicates that the concerning the proceeding.” Accord quantity of contacts is a factor in Kensington, 353 F.3d at 219, n. 6. determining recusal. Rather, as indicated Canvassing caselaw from various above, courts ordering recusal examined jurisdictions, Judge Wolin held that the 46 proscribed knowledge in § 455(b)(1) does 1322, 1329 (8th Cir. 1985) (same); United not include information gained ex parte States v. Bailey, 175 F.3d 966, 969 (11th within a judicial proceeding, generally Cir. 1999) (same); In re Beard, 811 F.2d known facts, opinions on broad topics 818, 829, n. 16 (4th Cir. 1987) (knowledge formed outside the courtroom, or acquired by judge through ex parte irrelevant facts. Rather, the District Court communication did not fall under § concluded, § 455(b)(1) mandates recusal if 455(b)(1) because it was acquired during and only if “a specific, disputed fact at “the course of his judicial duties”); United issue in the case was within the judge’s States v. Yousef, 327 F.3d 56, 170 (2d Cir. prior, non-judicially acquired knowledge.” 2003) (same); United States v. Flowers, JA at 104. Petitioners argue that ex parte 818 F.2d 464, 468-69 (6th Cir. 1987) contacts are almost entirely forbidden by (recusal not warranted where “all the §455(b)(1). Respondents counter that the information the judge acquired about the District Court’s standard was basically case arose from his association with the correct, and that § 455(b)(1) recusal is only proceeding”); In re Grand Jury 95–1, 118 triggered if a judge gains information on a F.3d 1433, 1438 (10th Cir. 1997) disputed evidentiary fact outside of (information must be obtained outside judicial proceedings, or if he shows actual course of judicial proceeding, such as “by bias. witnessing the events at issue in the proceeding”) (internal quotations omitted). As discussed above, case law in this Court casts doubt on Petitioners’ sweeping The Circuits also seem to agree indictment of ex parte communications. with Respondents that recusal is only See In re Prudential, 278 F.3d at 182, n. 5. appropriate under § 455(b)(1) when the Furthermore, other Circuits unanimously knowledge gained is pertinent to a specific support Respondents’ contention that disputed fact at issue in the case before the §455(b)(1) recusal requires the “personal judge. United States v. DeTemple, 162 knowledge” to have its source outside of F.3d 279, 285 (4th Cir. 1998) (judge’s the matter over which the judge is kno wle d g e o f f a c t s g ai n e d b y presiding. Bogosian v. Woloohojian, 158 representation of one of defendant’s prior F.3d 1, 11 (1st Cir. 1998) (information creditors did not require recusal because gained by judge “acting in a judicial none of those facts was “a disputed capacity . . . was not ‘personal’ knowledge evidentiary fact in the criminal trial”); raising a recusal question”); Conkling v. United States v. Smith, 210 F.3d 760, 764 Turner, 138 F.3d 577, 592-93 (5th Cir. (7th Cir. 2000) (judge’s extrajudicial 1998) (same); Lac du Flambeau Band of knowledge that anhydrous ammonia is a Lake Superior Chippewa Indians v. Stop dangerous substance did not justify recusal Treaty Abuse–Wisc., Inc., 991 F.2d 1249, from sentencing defendant even though 1255-56 (7th Cir. 1993) (same); Hale v. danger posed by anhydrous ammonia was Firestone Tire & Rubber Co., 756 F.2d material fact at issue because danger posed 47 was not in dispute). This Court has agreed broad proposition that any information that the “disputed evidentiary facts” gained by the judge outside the adversarial described in § 455(b)(1) are “matters process (i.e., ex parte) mandates recusal. underlying the cause of action.” Plechner Rather, in Edgar the recused judge sent a v. Widener College, Inc., 569 F.2d 1250, panel of appointed experts to personally 1263 (3d Cir. 1977). inspect the conditions of an Illinois mental health facility that was found to be Petitioners’ attempts to establish a constitutionally infirm. Id. at 257. In per se rule requiring recusal for ex parte other words, the Edgar judge’s officers communications are unavailing. For obtained first-hand knowledge of disputed example, they cite to Price Bros. Co. v. evidentiary facts at the heart of the case, Philadelphia Gear Corp., 629 F.2d 444, and that circumstance squarely fits within 446 (6th Cir. 1980), but that case was not the requirements for recusal outlined by a recusal case, and dealt with a judge Judge W olin in his opinion. whose law clerk gathered facts through first-hand observation of the allegedly Petitioners’ final attempt to create defective pipe at the heart of the lawsuit; an unconditional nexus between ex parte in other words, the judge gained communications and recusal lies in a extrajudicial knowledge regarding a reference to the Code of Judicial Conduct, disputed fact at the heart of the litigation. wh ich cautio ns ag ainst ex parte The Price Bros. court explicitly stated, communications. Code of Conduct for however, that “not every ex parte United States Judges, 175 F.R.D. 363, communication to the trial court” is Canon 3(A)(4). However, the Code impermissible. Id. Similarly, United tellingly leaves out ex parte States v. Craven, 239 F.3d 91 (1st Cir. communications in its listing of grounds 2001), cited by USG, is not a recusal case for disqualification, refuting Petitioners’ either, and also stated “that not every ex claim that the Code endorses recusal based parte contact between a judge and a court- on ex parte contacts. Id. at Canon 3(C). appointed expert” is improper. Id. at 103, Furthermore, although the Code was n. 3. Petitioners do cite a recusal case, largely codified in 28 U.S.C. § 455, see Hathcock v. Navistar Int’l Transp. Co., 53 Ausherman v. Bank of Am. Corp., 216 F.3d 36, 41 (4th Cir. 1995), but in that F.Supp.2d 530, 531 (D. Md. 2002), case the judge was recused on § 455(a) “violations of the Code do not necessarily grounds because he had plaintiff’s counsel give rise to a violation of” that statute. draft an opinion for him without informing Andrade v. Chojnacki, 338 F.3d 448, 459 opposing counsel. (5th Cir. 2003). Indeed, as Respondents point out, the fact that Congress codified The precedent most strongly urged so much of the Code but did not codify the by Petitioners as persuasive in this case is prohibition on ex parte communications Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), evinces a Congressional judgment that ex but even that case does not stand for the 48 parte communications do not warrant warrants recusal if the judge or an recusal per se. In short, ex parte attendant officer could become a direct communications must give the judge witness in the case. Because Petitioners information on a specific disputed material cannot demonstrate such circumstances in fact gleaned from outside the judiciary this case in regard to Judge W olin, his process to warrant recusal under § recusal is not warranted under § 455(b)(1). 455(b)(1). 35 II. Petitioners fail to show that Judge Even if I believed that any of Wolin gained any “personal” knowledge Petitioners’ recusal arguments had merit, I from outside judicial proceedings, as all of would deny Petitioners’ motion as the ex parte contacts in this case were untimely. conducted within the context of Judge Wolin’s management of the case, as A. announced in December 2001. Petitioners Most troubling in this case is the rely on Judge W olin’s statement that he conduct of Petitioners USG and the USG learned information that was “extra- Unsecured Creditors. As the majority judicial,” but Judge Wolin’s opinion recognizes, both of these Petitioners knew rejected the allegation that he learned any of the Advisors’ alleged conflict in information that was “extra-judicial” in the January 2002. Furthermore, it is sense prohibited by § 455(b)(1). USG also undisputed that all parties knew of the ex argues that if the ex parte communications parte scheme in December 2001, at the at issue in this case are not deemed inception of Judge W olin’s control of the e xtrajud icial, then no ex par te Five Asbestos Cases. It is also undisputed communication can ever justify recusal. that no motion for recusal was made until USG’s argument is overstated: ex parte October 2003. This Circuit has joined contacts are extrajudicial if they are others in imposing a timeliness received by a judicial officer in his requirement on recusal motions. E.g., “personal” capacity, i.e., through first-hand United States v. Rosenberg, 806 F.2d perception of disputed matters such as in 1169, 1173 (3d Cir. 1986). In determining Edgar. Put another way, § 455(b)(1) whether a request for recusal is timely, the Court considers the time elapsed between the complained-of conduct and the motion, 35 the timeline of the case between the Kensington also cites to Flamm, conduct and the motion, and the effect of Judicial Disqualification § 14.1, which in recusal on the case going forward. Smith turn cites to state law cases for the v. Danyo, 585 F.2d 83, 86 (3d Cir. 1978); proposition that ex parte contacts Apple v. Jewish Hosp. and Med. Ctr., 829 demand recusal; § 455(b)(1), a federal F.2d 326, 334 (2d Cir. 1987). These statute, is clearly not implicated by these factors, taken together, effectively citations. 49 disallow recusal motions by “a litigant because Judge Wolin announced that all with know ledge of c ircumstances objections would be deemed waived. I do suggesting possible bias or prejudice not believe that a responsible attorney holding back, while calling upon the court would have reasonably reacted to Judge for hopefully favorable rulings, and then Wolin’s instruction in that manner. First, seeking recusal when they are not Judge Wolin’s statement most naturally forthcoming.” Smith, 585 F.2d at 86. indicates that under his announced practice, any objections to any particular USG and the USG Unsecured ex parte communication would be waived, Creditors perfectly fit the Smith court’s not that parties could not voice their description of the “sneak attack” litigant. objections to the practice itself. Second, Astonishingly, these two Petitioners kept even if USG and the USG Unsecured silent about the matters underlying their Creditors felt that their objection would motions for over 20 months. USG tries to fail before Judge Wolin, attorneys minimize the appearance of delay by routinely make seemingly futile objections observing that Judge Wolin’s December for the purpose of preserving their 2001 statement only disclosed that he objection on the record. See Lightning would “sparingly” resort to ex parte Lube, Inc. v. Witco Corp., 4 F.3d 1153, communications, and alleging that it did 1181, n. 16 (3d Cir. 1993) (attorney’s not know of the actual scope of the ex failure to object not excused by belief that parte communications until late 2003. As objection would be futile). Third, even if mentioned above, however, the quantity of USG and the USG Unsecured Creditors ex parte communications is irrelevant to felt that objection would be futile, they had USG’s claim: it is undisputed that USG the available remedy that they have chosen knew that Judge Wolin was (allegedly to exercise now, two years later: a motion improperly) engaging in ex parte for recusal. In short, USG and the USG communications to some extent for almost Unsecured Creditors have no colorable two years before it brought its motion to excuse for why they did not proceed for recuse, and that is the relevant measure of more than 20 months with their efforts to the time elapsed. USG cites to Edgar, 93 recuse Judge Wolin. F.3d at 257, but in that case a one-year delay in bringing the recusal motion was The majority seems to recognize justified because the movants had only that USG and the USG Unsecured recently discovered the objectionable Creditors have no excuse for their dilatory qualitative nature of the ex parte contacts conduct, but then proceeds to excuse that at issue. conduct anyway on the grounds that USG had no improper motive for its recusal USG and the USG Unsecured motion. Specifically, the majority Creditors also try to excuse their delay by observes that the timeliness requirement arguing that they did not feel empowered was crafted largely to prevent parties from to object to the ex parte communications 50 trying to recuse a judge once they felt that Accordingly, I would reject the § 455(a) they were losing their case. The majority challenge to Judge Wolin’s ex parte then accepts USG’s allegation that the only practice on timeliness grounds with respect ruling made by Judge Wolin so far has to USG.36 been in its favor: the aforementioned B. February 2003 Case Management Order. The majority concludes that, because USG Although I do not find the conduct had not yet suffered any adverse ruling, it of the Petitioners in Owens Corning and did not have the fear of losing that lays at Grace as clearly inexcusable as that of the the heart of the timeliness requirement, Petitioners in USG, I would still find their and that there is therefore no need to recusal motions untimely as well. The enforce the timeliness requirement against recusal motion on ex parte grounds is USG. clearly untimely for the reasons stated earlier: namely, that all parties knew of Of course, as USG has itself Judge Wolin’s plan for ex parte observed in its argument that it suffered communications in December 2001. The prejudice from the ex parte contacts, the recusal motion on conflict grounds, District Court eventually refused to enforce that Case M anagement Order, meaning that, in effect, the District Court 36 ruled against USG’s wishes. USG cannot, I would also find Petitioners’ § on the one hand, claim in support of its 455(b)(1) claim untimely. Although no recusal argument that it has perceived published decision from this Court has Judge Wolin’s ex parte contacts as decided whether § 455(b) has a timeliness predisposing him against USG, and then requirement, it is worth noting that almost on the other hand, claim that Judge Wolin every other Circuit that has considered the has shown no predisposition against USG question has implicitly or explicitly to bolster its timeliness claim. In any recognized such a requirement. Apple, event, even if USG had not suffered any 829 F.2d at 334 (applying requirement to adverse rulings yet, it does not change the § 455(b) motion); Oglala Sioux Tribe of fact that USG has no justification for its Pine Ridge Indian Reservation v. delay in bringing its motion to recuse, as Homestake Mining Co., 722 F.2d 1407, well as the fact that the delay to this case 1414 (8th Cir. 1983) (same); E. & J. Gallo that will result from recusal will erase two Winery v. Gallo Cattle Co., 967 F.2d 1280, years of case management. As this Court 1295 (9th Cir. 1992) (same); Summers v. has previously noted, delay in this case Singletary, 119 F.3d 917, 920-21 (11th could be catastrophic to many of the Cir. 1997) (explicitly rejecting argument constituencies involved, and that issue that timeliness requirement applies only to looms especially large in this timeliness § 455(a) motions and not § 455(b) inquiry. Kensington, 353 F.3d at 224-25. motions); United States v. York, 888 F.2d 1050, 1054-55 (5th Cir. 1989) (same). 51 however, requires further discussion with (notice to creditors’ committee constituted respect to the Owens Corning and Grace notice to individual creditors). Petitioners. These Petitioners contend that Imputing the Unsecured Creditors their motion is timely because they did not Committees’ knowledge to creditors actually know of the alleged conflict until makes sense. As a parallel example, September 2003. I agree with the majority Respondents point out that the Asbestos that constructive knowledge is not Claimants Committee is presumed to sufficient to trigger timeliness concerns, speak for all claimants; it would be but that imputed knowledge can staggeringly onerous to require notice of sometimes be sufficient. However, I relevant events to be given to all 200,000+ disagree with the majority’s conclusion asbestos claimants rather than the that we should not impute the Owens Committee, which represents their Corning and Grace Unsecured Creditors collective interest. There is no reason why Committees’ knowledge of the alleged unsecured creditors should be given any conflicts to the Owens Corning and Grace different treatment than their asbestos Petitioners. claimant counterparts; to the contrary, It is uncontroverted that the firms of given that in bankruptcy cases creditors Davis Polk & Wardwell and Stroock & within each constituency change on a Stroock & Lavan, counsels for the Owens regular basis, the necessity of using the Corning and W.R. Grace Unsecured Unsecured Creditors Committee as a Creditors Committees respectively, learned conduit of notice to unsecured creditors is of the alleged conflicts no later than even more manifest. Indeed, the January 2002. A party, of course, is streamlining function of these Committees charged with the knowledge of its counsel. is largely their reason for existing in the E.g., Veal v. Geraci, 23 F.3d 722, 725 (2d first place. Finally, imputing knowledge Cir. 1994). Therefore, both of the from the Committees to individual Unsecured Creditors Committees knew of creditors would safeguard the interests the alleged conflicts. The Unsecured behind the timeliness requirement. In Creditors Committees are fiduciaries of all particular, this rule would prevent unsecured creditors, including Kensington Creditors Committees from strategically and the Grace Creditors. Woods v. City preserving recusal claims by insulating Nat’l Bank & Trust Co., 312 U.S. 262, 268 those claims from individual creditors, and (1941); In re Mountain States Power Co., would encourage Creditors Committees to 118 F.2d 405, 407 (3d Cir. 1941). execute their duties to creditors more Accordingly, notice to the Unsecured vigilantly. Creditors Committees is the equivalent of Kensington and the Grace Creditors notice to Kensington and the Grace cite authority purportedly against this rule, Creditors. In re Harris Management Co., but the cited cases do not contradict the Inc., 791 F.2d 1412, 1415 (9th Cir. 1986) rule of imputing notice. In re Levy, 54 52 B.R. 805, 806-07 (Bankr. S.D.N.Y. 1985), consolidation, which was opposed by the merely states the truism that a Committee bank creditors. Under the status quo, the represents the collective interest of its bank creditors would get almost a full members, rather than any member’s return on their credits; on the other hand, individual interest. Kunica v. St. Jean under substantive consolidation, the debts Fin., Inc., 63 F.Supp.2d 342, 347 of all subsidiaries would be thrown into a (S.D.N.Y. 1999), simply quotes the single bankruptcy estate with that of underlying bankruptcy opinion, which in Owens Corning, putting the bank creditors turn made its decision not to impute notice on an equal footing with all other creditors on the grounds that the notice to the of Owens Corning. According to Judge Committee in that case was oral and Wolin, the effect of consolidation on the informal. Kunica v. St. Jean Fin., Inc., 233 banks would be to eliminate more than $1 B.R. 46, 57 (S.D.N.Y. 1999). Here, in billion in debt guaranteed by the Owens contrast, Davis Polk and Stroock received Corning subsidiaries. The District Court written notice of the alleged conflicts. In held a hearing in April 2003 on the In re Masters, Inc., 149 B.R. 289, 292-93 substantive consolidation issue, and an (E.D.N.Y. 1992), Petitioners’ next cited opinion was pending on that matter when case, the court held that actual notice to Kensington asked for Judge W olin’s individual creditors was required in the recusal. This set of facts and specific context of Bankr. R. 9019(a). circumsta nc e s le a ds me to tw o Finally, Petitioners cite to Maldonado v. conclusions. First, Kensington had an Ramirez, 757 F.2d 48 (3d Cir. 1985), but incentive to seek Judge Wolin’s recusal: in that case does not deal with creditors its moving papers, Kensington has committees at all and is therefore indicated its belief that Judge Wolin has inapposite. In conclusion, Stroock’s and implicitly promoted this claimant-friendly Davis Polk’s knowledge of the alleged plan, and whether Kensington is correct or conflicts should count as knowledge on the not, it has clearly shown that it finds Judge parts of the Grace Creditors and Wolin to be ill-disposed to its interests.37 Kensington, and the motion to recuse on conflict grounds is therefore untimely. 37 It is worth noting that although As for the Grace Petitioners, Judge Wolin has not yet made any Judge Wolin observed that they were also significant rulings in Owens Corning or holders of bank debt, and so they might Grace, he was, at the time the recusal reasonably have feared a fate similar to petitions were filed, on the cusp of issuing that anticipated by Kensington in Owens a ruling on the issue of “substantive Corning. Furthermore, two of the Grace consolidation.” After much debate, Owens Petitioners are themselves holders of Corning had submitted a reorganization Owens Corning’s bank debt, meaning that plan that incorp orated substantive they have the same interest in Owens Corning that Kensington does. 53 Second, recusal would lead to months if not years of delay in Owens Corning, as it would at the very least require a retrial of the extremely contentious substantive consolidation issue, and threatens to nullify over tw o years of case management. See Kensington, 353 F.3d at 224, n. 14 (“assigning another judge to the Owens Corning bankruptcy would set the proceedings in Owens Corning back at least one year”). As this Court noted in its earlier opinion, the brunt of this delay falls upon the claimants themselves, who wait for the conclusion of this bankruptcy proceeding for resolution of their claims. See id. at 224, n. 13. III. Pursuant to a mandate from this Court, Judge Wolin took admittedly extraordinary measures to manage an unprecedentedly large and complex asbestos bankruptcy proceeding. Although his methods were unconventional, none of them would inspire within the reasonable and informed observer legitimate questions regard ing Judge W olin’s impartiality. I fear that in moving for Judge Wolin’s recusal, Petitioners have employed a guerrilla tactic timed to serve their own economic interests in this case, rather than the interests of justice and judicial integrity. In the end, putting the stamp of judicial approval on this kind of litigious gamesmanship threatens to undermine the integrity of our judicial proceedings far more than any techniques employed by Judge Wolin. I must respectfully dissent. 54