IQ Products Company v. Pandora Mfg Inc, et

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
              _____________________________________

                           No. 01-20764
              _____________________________________


                      IQ PRODUCTS COMPANY,

                                          Plaintiff-Intervenor
                                          Defendant-Counter
                                          Claimant-Appellant,

                                  v.

                   PENNZOIL PRODUCTS COMPANY,

                                          Intervenor Plaintiff-
                                          Counter Defendant-
                                          Appellee,

                                  v.

               PANDORA MANUFACTURING INCORPORATED,
           also known as Snap Products, Incorporated,

                                          Defendant-Appellee.


       __________________________________________________

          Appeal from the United States District Court
                For the Southern District of Texas

       __________________________________________________
                       September 23, 2002



Before DAVIS, DeMOSS, and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Plaintiff IQ Products Co. brought suit against defendants

Pandora Manufacturing, Inc. (formerly known as Snap Products,

Inc.) and Pennzoil Products Co., alleging that defendants falsely
advertised their competing tire inflator product, Fix-A-Flat, in

violation of the Lanham Act.   The district court granted summary

judgment in favor of defendants.      For the reasons given below, we

affirm.

                                I.

     This case involves competing tire inflator products.

Plaintiff IQ Products Co. (“IQ”) manufactures tire inflators

under the brand names Repair Safe, AirUp, and Primis.     Defendant

Pandora Manufacturing, Inc. (formerly known as Snap Products,

Inc.) and later defendant Pennzoil Products Co. (“Pennzoil”)

manufactures a competing tire inflator called Fix-A-Flat.1     IQ

alleges that from early 1994 to February 18, 1999, the defendants

failed to label the product as “flammable” and falsely advertised

Fix-A-Flat as “non-explosive” in violation of the Lanham Act.

Accordingly, IQ argues that it is entitled to lost profits,

disgorgement of defendants’ ill-gotten profits, and attorneys’

fees.

     A tire inflator is a can of chemicals under pressure that a

motorist uses to repair a leak in an automobile tire until a more

permanent repair or replacement can be made.     A motorist uses a

tire inflator to inject pressurized gas into a tire to inflate it

and also to patch the leak with a liquid sealant.     Tire inflators


     1
          The parties sell these tire inflators to retailers, not
directly to consumers.


                                -2-
may be dangerous if their formula is flammable or explosive

because repairmen making permanent repairs to damaged tires use

metal tools and occasionally weld wheel rims while working on

damaged tires.    These activities may create sparks, which can

cause a fire or explosion.

     Snap Products began manufacturing and marketing Fix-A-Flat

in 1990.   In early 1994, Snap introduced a new formula of Fix-A-

Flat, which is at issue in this lawsuit.    IQ contends that this

generation of Fix-A-Flat was both flammable and explosive.    On

November 4, 1997, Snap sold Fix-A-Flat and its “Snap” trade name

to Pennzoil.2    Pennzoil continued to sell Snap’s 1994 formula of

Fix-A-Flat until January 1998, when Pennzoil slightly modified

the formula.    Both parties agree that this slight change did not

significantly alter the flammability or explosiveness of the

product for purposes of this lawsuit.    Pennzoil continued to sell

this slightly modified version of Fix-A-Flat until February 18,

1999, when it recalled the product and began selling a new

formula of Fix-A-Flat.

     IQ argues that from early 1994 to February 18, 1999, the

Fix-A-Flat formula was flammable and explosive.3    Nevertheless,


     2
           Snap changed its name to Pandora on February 1, 1998.
     3
          Because of a release executed between IQ and Pandora in
a prior suit, IQ’s claims are limited to the period of March 25,
1997 through February 18, 1999.    IQ does not contend that the
formulation of Fix-A-Flat that Pennzoil began marketing after
February 18, 1999 is falsely labeled or advertised.

                                 -3-
IQ alleges that the defendants failed to label Fix-A-Flat

properly as “flammable” or “extremely flammable” as required by

federal law.    IQ also maintains that the defendants falsely

advertised that Fix-A-Flat was “non-explosive.”

     IQ brought suit against Snap in June 1998, alleging that the

defendants’ false advertising violated the Lanham Act.    Pandora

(Snap’s new corporate name) filed an answer and counterclaim

against IQ.    In August 1998, Pennzoil intervened and filed a

complaint against IQ.    IQ then counterclaimed against Pennzoil.

     The district court granted the defendants’ motion for

partial summary judgment on March 13, 2001.    The district court

concluded that (1) IQ’s claims that the defendants falsely

advertised Fix-A-Flat as non-flammable were limited to the

defendants’ alleged failure to label Fix-A-Flat properly as

“flammable;” and (2) so construed, IQ’s flammability claims did

not survive summary judgment.    On July 5, 2001, the district

court granted final summary judgment for the defendants on the

remaining issues.    IQ now appeals.

                                 II.

     IQ first argues that the district court erred by granting

summary judgment for the defendants on IQ’s claims that the

defendants falsely advertised Fix-A-Flat as “non-flammable” in

violation of the Lanham Act.    We review the district court’s




                                 -4-
grant of summary judgment de novo.4

     As an initial matter, we must resolve whether the district

court properly limited IQ’s claims to the defendants’ failure to

label Fix-A-Flat cans as “flammable.”    IQ maintains that its

complaint should not be so narrowly construed, but should be read

to allege that the defendants also affirmatively advertised Fix-

A-Flat as “non-flammable.”

     The district court rejected this argument in its March 13,

2001 order granting partial summary judgment to the defendants

and later clarified its holding in its July 5, 2001 order.     The

district court reasoned that:

     IQ never pled any claims related to flammability under the
     Lanham Act other than the failure to label the Fix-A-Flat
     can. IQ never amended its pleading to expand its claim to
     include other affirmative representations of non-
     flammability. Discovery has long been closed, trial is
     imminent, and the time has passed when such an amendment
     would not be severely prejudicial to Defendants.5

     After reviewing the record, we agree.    IQ’s complaint

nowhere alleges that the defendants affirmatively misrepresented

Fix-A-Flat as “non-flammable.”    On the contrary, the complaint

states, in relevant part, that:

     These misrepresentations have occurred because (i) Snap has
     not–as required by federal law–labeled its Fix-A-Flat as
     “Flammable,” thereby falsely representing that Fix-A-Flat is
     “non-flammable” when, indeed, it is not; and (ii) Snap has
     falsely represented Fix-A-Flat as containing a “Non-

     4
          See Blow v. City of San Antonio, 236 F.3d 293, 296 (5th
Cir. 2001).
     5
          R. at 1809-10.

                                  -5-
     Explosive Formula.”6

Admitting that it never expressly alleged that the defendants

affirmatively represented that Fix-A-Flat was “non-flammable,” IQ

urges this court to interpret the term “non-explosive,” as used

in the complaint, to include within its scope the term “non-

flammable.”   This argument is unpersuasive.   Throughout its

complaint, IQ consistently treats its claims that the defendants

failed to label Fix-A-Flat as “flammable” and that they

affirmatively advertised the product as “non-explosive” as two

distinct concepts.   Moreover, while the two terms are related,

they are not mutually exclusive; significantly, according to the

ordinary understanding of the terms, material may be flammable--

that is, tend to burn--while not being explosive.7   Given the

lack of any assertion in the complaint that the defendants made

affirmative misrepresentations that Fix-A-Flat was “non-


     6
          R. at 4.
     7
          Webster’s Third New International Dictionary defines
“flammable” as “capable of being easily ignited and of burning with
extreme rapidity.” Webster’s Third New International Dictionary
864 (1993). It defines “explosive” as “relating to, characterized
or operated by, or suited to cause explosion.”         Id. at 802.
“Explosion,” in turn, is defined as “a violent expansion or
bursting that is accompanied by noise and is caused by a sudden
release of energy from a very rapid chemical reaction, from a
nuclear reaction, or from an escape of gases or vapors under
pressure.” Id.
          In absence of technical expert testimony giving a
specialized technical meaning of a term, we use its ordinary
meaning. IQ offered no expert testimony tending to support the
argument it now advances–i.e. that all flammable materials are
explosive and vice versa.

                                -6-
flammable” and IQ’s failure to amend its complaint in a timely

fashion, we conclude that the district court correctly limited

IQ’s flammability claims to the defendant’s alleged failure to

label the Fix-A-Flat cans as “flammable.”

     IQ next argues that the district court improperly granted

summary judgment for the defendants on its claims that the

defendants failed to properly label Fix-A-Flat as “flammable” or

“extremely flammable” as required by federal law.   IQ asserts

that the omission of the word “flammable” from Fix-A-Flat’s label

misled consumers into believing that the product had passed the

federally-mandated flame extension test required under 16 C.F.R.

§ 1500.3(c)(6)(vii).

     The Lanham Act imposes liability on “[a]ny person who . . .

uses in commerce any . . . false or misleading description of

fact, or false or misleading representation of fact, which . . .

in commercial advertising or promotion, misrepresents the nature,

characteristics, qualities, or geographic origin of his or her or

another person’s goods, services, or commercial activities.”8    As

explained more fully below, the district court granted summary

judgment for the defendants on IQ’s failure to label claims

primarily because it reasoned that IQ was attempting to use the

Lanham Act to circumvent the Federal Hazardous Substances Act




     8
          15 U.S.C. § 1125(a)(1)(B) (2002).

                               -7-
(“FHSA”).9    A brief overview of federal regulation of hazardous

substances is therefore appropriate.

     The FHSA establishes a comprehensive scheme of product

regulation and labeling.10       The Consumer Product Safety

Commission (“CPSC”) is responsible for enforcing the FHSA and

promulgating, interpreting, and enforcing regulations under the

FSHA.11   The CPSC has the discretion to exempt substances from

the FHSA’s full requirements12 and to determine whether to

prosecute FHSA violations.13       The FHSA does not authorize a

private cause of action.

     Since 1994, IQ has complained about Fix-A-Flat to the

Federal Trade Commission (“FTC”) and the CPSC.       The FTC referred

IQ’s complaint to the National Highway Traffic Safety

Administration, which declined to take any regulatory action.

Likewise, the CPSC investigated and refused to take further

action.

     The district court granted partial summary judgment for the

defendants on IQ’s failure to label claims in its March 13, 2001

order.    The district court explained that by bringing a Lanham



     9
             15 U.S.C. §§ 1261-78 (2002).
     10
             Id.
     11
             Id.
     12
             15 U.S.C. § 1262.
     13
             16 C.F.R. § 1009.8.

                                     -8-
Act claim against defendants for failing to properly label Fix-A-

Flat, “IQ is impermissibly attempting to circumvent the FHSA by

converting the Lanham Act into a vehicle to enforce the FHSA,

which bars private actions, and to usurp the regulatory function

of the CPSC here.”14      In reaching this conclusion, the district

court relied on three cases, which we discuss below.

       First, in Mylan Laboratories, Inc. v. Matkari,15 the

plaintiff drug manufacturer brought a Lanham Act claim against a

competing drug manufacturer and its officers, alleging that the

defendants’ use of package inserts, brochures, and advertisements

violated the Lanham Act because these materials falsely

represented or implied that the drugs had been approved by the

FDA.    The Fourth Circuit affirmed the district court’s dismissal

of the case under Rule 12(b)(6).16        The court explained that the

plaintiff did not allege that the defendants affirmatively

represented that the drugs were “FDA-approved.”17        The court

further reasoned that:

       . . . [T]hat fatal deficiency cannot be cured by contentions
       that the very act of placing a drug on the market, with
       standard package inserts often used for FDA-approved drugs,
       somehow implies (falsely) that the drug had been “properly
       approved by the FDA.” Such a theory is, quite simply, too
       great a stretch under the Lanham Act. We agree with the

       14
            R. at 1312.
       15
            7 F.3d 1130, 1137-39 (4th Cir. 1993)
       16
            Id.
       17
            Id. at 1139.

                                    -9-
     defendants that permitting Mylan to proceed on the theory
     that the defendants violated § 43(a) merely by placing their
     drugs on the market would, in effect, permit Mylan to use
     the Lanham Act as a vehicle by which to enforce the Food,
     Drug, and Cosmetic Act . . . .
          Mylan, in short, is not empowered to enforce
     independently the FDCA. . . .18

     Similarly, in Sandoz Pharmaceuticals Corp. v. Richardson-

Vicks,19 the plaintiff, who manufactured children’s cough syrup,

alleged that its competitor violated the Lanham Act by

mislabeling one of its ingredients as “inactive.”    The Third

Circuit affirmed the district court’s denial of a preliminary

injunction.20   The court stated that the FTC and the FDA heavily

regulate drug labeling requirements.21   The court reasoned that

“[n]either of these agencies’ constituent statutes creates an

express or implied private right of action and what the FD&C Act

and the FTC Act do not create directly, the Lanham Act does not

create indirectly, at least not in cases requiring original

interpretation of these Acts or their accompanying

regulations.”22

     Finally, in Dial A Car, Inc. v. Transportation, Inc.,23 the



     18
          Id. (emphasis in original).
     19
          902 F.2d 222, 230-32 (3rd Cir. 1990).
     20
          Id.
     21
          Id. at 231.
     22
          Id. at 231 (internal citations omitted).
     23
          82 F.3d 484, 488-90 (D.C. Cir. 1996).

                                -10-
plaintiff limousine service brought suit against taxi cab

companies, alleging that the companies misrepresented that they

were allowed to provide corporate account transportation services

outside their counties of licensure.     The D.C. Circuit affirmed

the district court’s dismissal of the plaintiff’s claims under

the Lanham Act.24   The court explained that this question was

within the jurisdiction of the local Taxicab Commission.25

Citing Sandoz, the court explained that “[b]y entertaining

appellant’s claim, we would be transforming the Lanham Act into a

handy device to reach and decide all sorts of local law

questions.”26

     This case is analogous to the three cases discussed above,

especially Mylan.   Like the Food, Drug and Cosmetic Act (at issue

in Mylan and Sandoz), the FHSA does not create a private cause of

action.   Rather, the FHSA vests the CPSC with the authority to

enforce federal labeling requirements.     In this case, the CPSC

was aware of Fix-A-Flat’s alleged labeling deficiencies but took

no action.   As a result, IQ essentially seeks to enforce the

labeling requirements of the FHSA–an action which the CPSC, the

enforcing agency, declined to do.      For these reasons, we conclude

that the defendants’ failure to label the product in keeping with


     24
           Id.
     25
           Id. at 488.
     26
           Id. at 490.

                                -11-
FHSA regulations, even if true, does not constitute a false or

misleading statement that is actionable under the Lanham Act.

Thus, we hold that the district court correctly granted summary

judgment for the defendants on IQ’s claims that the defendants

failed to label its product as flammable.

                                  III.

     IQ next argues that the district court erred by granting

summary judgment for the defendants on its claims that the

defendants falsely advertised Fix-A-Flat as “non-explosive” when,

in fact, they knew that this was not true.   This court reviews

the district court’s grant of summary judgment de novo.27

     As stated above, § 43(a) of the Lanham Act provides, in

relevant part:

     Any person who . . . uses . . . any . . . false or
     misleading description of fact, or false or misleading
     representation of fact, which . . . misrepresents the
     nature, characteristics, [or] qualities . . . of his or her
     or another person’s goods . . . shall be liable in a civil
     action by any person who believes that he or she is likely
     to be damaged by such act.28

The plaintiff must establish five elements to make out a prima

facie case of false advertising under the Lanham Act:

     (1)   A false or misleading statement of fact about a
           product;
     (2)   Such statement either deceived or had the capacity to
           deceive a substantial segment of potential consumers;
     (3)   The deception was material, in that it is likely to

     27
          See Blow v. City of San Antonio, 236 F.3d 293, 296 (5th
Cir. 2001).
     28
           15 U.S.C. § 1125(a).

                                  -12-
           influence the consumer’s purchasing decision;
     (4)   The product is in interstate commerce; and
     (5)   The plaintiff has been or is likely to be injured as a
           result of the statement at issue.29

     “The focus of the Lanham Act is on commercial interests

[that] have been harmed by a competitor’s false advertising.”30

To obtain money damages for false advertising under § 43(a) of

the Lanham Act, the plaintiff must first demonstrate that the

advertisement was (1) literally false; or (2) likely to mislead

and confuse customers.31   If the statement at issue is shown to

be literally false, the court must assume that it actually misled

consumers, without requiring any evidence of such deception from

the plaintiff.32   If the statement is shown to be misleading or

ambiguous, however, the plaintiff must demonstrate actual

deception through direct evidence of consumer reaction to the

advertising or evidence of consumer surveys or consumer reaction

tests.33

     IQ alleges that the defendants made several false or

misleading statements that falsely advertised Fix-A-Flat as “non-

explosive.”   First, IQ alleges that the defendants affirmatively

     29
          Pizza Hut, Inc.    v. Papa John’s Int’l, Inc., 227 F.3d
489, 495 (5th Cir. 2000).
     30
          Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 563
(5th Cir. 2001) (internal quotation marks and citation omitted).
     31
           See Pizza Hut, 227 F.3d at 495.
     32
           Id. at 497.
     33
           Id.

                                -13-
misrepresented that the product was “non-explosive,” a statement

that IQ maintains was literally false.        In addition, IQ points

out other statements that the defendants made that, while not

literally false, were misleading and deceptive to consumers.34

     The district court granted summary judgment for the

defendants with respect to all of the contested statements.        The

district court first found that the defendants’ advertisement of

Fix-A-Flat as “non-explosive” was not literally false, and

therefore, actual deception and materiality could not be

presumed.    The court then explained that the summary judgment

evidence did not establish any actual deception or materiality as

to any of the contested statements.

     IQ argues that the district court erred in finding that the

statement that Fix-A-Flat was “non-explosive” was not literally

false.    IQ points to the testimony of its expert, Dr. John

Jacobus to support its position.        Dr. Jacobus reported that he

had tested Fix-A-Flat formula at issue and found that it was

explosive under some circumstances.

     Even if the district court erred in finding that IQ failed

to present a genuine issue of material fact on the literal


     34
          Specifically, IQ alleges that the defendants made the
following misleading statements:     “Do NOT use with other tire
inflator products.    Other products may contain explosive gases
which could cause injury to you or a tire repair professional;” and
“DO NOT WELD ON A RIM WITHOUT FIRST REMOVING THE TIRE FROM THE RIM.
FAILURE TO DO SO COULD CAUSE THE TIRE TO EXPLODE REGARDLESS OF
WHETHER THE TIRE INFLATOR IS USED.”

                                 -14-
falsity of the defendants’ statement that Fix-A-Flat was “non-

explosive,” which we do not decide, IQ failed to produce

competent summary judgment evidence that it was harmed by the

defendants’ allegedly false and misleading advertisement.    IQ

presented no competent summary judgment evidence that indicates

that consumers would have bought IQ’s tire inflator products

instead of Fix-A-Flat in the absence of the defendants’ allegedly

false and misleading statements.

     IQ responds that the testimony of two of its expert

witnesses, Dr. Al E. Birdwell and Yohanne Gupta, establish that

IQ suffered actual harm.    IQ contends that the district court

improperly excluded the testimony of both witnesses under Federal

Rule of Evidence 702.    Dr. Birdwell gave opinions on the

materiality of defendants’ false statements (i.e.-the effect on

the buying decisions of consumers) and the damage to IQ as a

result.   The magistrate judge excluded Dr. Birdwell’s testimony

under Rule 702 because it was based on “insufficient data” and

“unreliable methodology.”35   The magistrate judge explained that

Dr. Birdwell’s opinions were based on the combined effect of the

defendants’ failure to label their product as flammable and the

representation that Fix-A-Flat was “non-explosive.”36   The judge

reasoned that the flammability issue was no longer in the case,

     35
          R. at 1565; see Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993).
     36
           R. at 1565.

                                 -15-
and therefore, was irrelevant.    The judge also found that Dr.

Birdwell did not conduct any market or survey research or any

data that could be subject to testing and verification.37

     The district court also excluded testimony of Yohanne Gupta,

IQ’s CEO, essentially for the same reasons as Dr. Birdwell.       The

magistrate judge reasoned (and the district court subsequently

adopted the reasoning) that Gupta had no reliable basis for his

opinion that “consumers would have purchased [IQ’s] products

instead of Fix-A-Flat if Fix-A-Flat had been properly labeled.”38

Gupta offered no market research or tests to support his

opinions.    Instead, he based his opinion on “common sense.”39

     This court reviews rulings on the admissibility of expert

evidence for abuse of discretion.40     Based on our review of the

record, we cannot say that the district court abused its

discretion in excluding the testimony of Dr. Birdwell and Gupta.

Neither expert conducted reliable survey or market research,

commonly employed by market analysts, to support their

conclusions that consumers would have purchased IQ’s tire

inflators were it not for the defendants’ allegedly misleading




     37
            R. at 1564.
     38
            R. at 1563.
     39
            R. at 1563.
     40
          See St. Martin v. Mobil Exploration & Producing U.S.
Inc., 224 F.3d 402, 405 (5th Cir. 2000).

                                 -16-
statements about the explosiveness of the product.41

Furthermore, both witnesses’ opinions describe the effect of the

combination of defendants’ failure to label the product as

flammable and advertisement of it as non-explosive.     Neither

expert testified about what effect, if any, the defendants’

advertisement of Fix-A-Flat as “non-explosive” had on IQ

independent of the flammability issue.     It follows that the

experts’ opinions were flawed because they based their

conclusions in part on the failure to label claims which the

district court correctly rejected.     For these reasons, we

conclude that the district court did not err in granting the

defendants’ motion for summary judgment on IQ’s claims that the

defendants falsely advertised Fix-A-Flat as “non-explosive.”42

                               IV.

     Finally, IQ contends that it is entitled to a new trial

because 28 U.S.C. § 455(b)(5)(iii) and 28 U.S.C. § 455(a)

mandated the district judge’s disqualification.     Specifically, IQ

maintains that because Judge Harmon’s father-in-law was a retired


     41
          See, for example, Pizza Hut, Inc. v. Papa John’s Int’l,
Inc., 227 F.3d 489, 497 (5th Cir. 2000) (explaining that “the
plaintiff may not rely on the judge or the jury to determine,
‘based solely upon his or her intuitive reaction, whether the
advertisement is deceptive.’”) (internal citation omitted).
     42
          IQ raises a number of other evidentiary objections to the
court’s refusal to consider various summary judgment evidence. We
have considered these objections and conclude that even if the
district court erred, it had no effect on the correctness of its
ruling.

                                -17-
partner of Baker Botts, the firm that represented Pennzoil, she

was required to recuse herself.

     Section 455(b)(5)(iii) provides that a United States judge

“shall” disqualify himself when “[h]e or his spouse, or a person

within the third degree of relationship to either of them, or the

spouse of such a person . . . is known by the judge to have an

interest that could be substantially affected by the outcome of

the proceeding.”   In Potashnick v. Port City Construction Co.,43

the district judge declined to disqualify himself from a case in

which the lawyer for one of the parties was the law partner of

the judge’s father.   This court held that the district judge

should have recused himself under § 455(b)(5)(iii).44   The court

stated that “when a partner in a law firm is related to a judge

within the third degree, that partner will always be ‘known by

the judge to have an interest that could be substantially

affected by the outcome’ of a proceeding involving the partner’s

law firm.”45

     In contrast, in Weinberger v. Equifax, Inc.,46 this court

held that the district judge need not recuse himself where his

son was an associate in a law firm that represented one of the


     43
          609 F.2d 1101 (5th Cir. 1980).
     44
          Id. at 1113.
     45
          Id.
     46
          557 F.2d 456, 463 (5th Cir. 1977).

                                  -18-
parties in the litigation.     The court explained that the son’s

“salary interest as an associate is too remote to fall under this

‘financial interest’ prohibition.”47

     In this case, Judge Harmon’s father-in-law, Frank Harmon,

was a retired partner of Baker Botts from the time the judge

received the case in 1998 until Mr. Harmon’s death on August 5,

1999.     Mr. Harmon received retirement benefits from Baker Botts

until his death, at which point, Mr. Harmon’s son (Judge Harmon’s

husband) received death benefits from the firm.     Both the

retirement and death benefits were fixed sum amounts, with the

exception that part of both formulae included a cost of living

adjustment that included the lesser of (1) “the cost of living

adjustment called for by the U.S. Department of Labor’s U.S.

Consumer Price Index in a given year” or (2) “the percentage

increase in income of the fifth highest paid partner” at Baker

Botts.

     IQ argues that the component of the cost of living

adjustment that takes into account the salary of the fifth

highest paid partner is sufficient to require Judge Harmon’s

disqualification under § 455(b)(5)(iii).     This argument is not

sound.     First, no matter how much money the fifth highest paid

Baker Botts partner earns, the Consumer Price Index always

functioned as a ceiling on the adjustment to which Frank was


     47
             Id.

                                  -19-
entitled.     This is so because Frank or his son was only entitled

to the lesser increase of the two factors.       The interest of Judge

Harmon’s father-in-law and husband in Baker Botts’ earnings is

more remote than an associate’s interest in the financial well-

being of his firm.     An associate’s continued employment or the

amount of his bonus may depend on the financial success of the

firm.     However, this is an insufficient financial interest to

require disqualification under Weinberger.       It follows that Judge

Harmon was not required to recuse herself under 28 U.S.C. §

455(b)(5)(iii).

     Similarly, § 455(a) requires a federal judge to disqualify

himself in any proceeding in which “his impartiality might be

reasonably questioned.”48     This test is objective.49   A judge

should disqualify himself “if the reasonable man, were he to know

all the circumstances, would harbor doubts about the judge’s

impartiality.”50

     Based on the above discussion, we are satisfied that the

fact that Judge Harmon’s father-in-law was a retired partner at

Baker Botts is too remote to raise a reasonable doubt about her

impartiality.      Therefore, Judge Harmon was not required to recuse

herself in this case under either § 455(b)(5)(iii) or § 455(a),


     48
             28 U.S.C. § 4559(a).
     49
             See Potashnick, 609 F.2d at 1111.
     50
             Id.

                                    -20-
and IQ is not entitled to a new trial.

                               V.

     For the reasons given above, the judgment of the district

court is AFFIRMED.



AFFIRMED.




                               -21-