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.
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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).
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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.
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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.
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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.
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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).
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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.
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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).
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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.
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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.
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and IQ is not entitled to a new trial.
V.
For the reasons given above, the judgment of the district
court is AFFIRMED.
AFFIRMED.
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