Kolon Industries Incorporated v. E. I. DuPont De Nemour

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cv-00622-REP. [999329344]. [12-1587]

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 1 of 60

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1587

KOLON INDUSTRIES INCORPORATED,
Plaintiff – Appellant,
v.
E.I. DUPONT DE NEMOURS & COMPANY,
Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:11-cv-00622-REP)

Argued:

May 17, 2013

Decided:

April 3, 2014

Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Senior Judge Davis joined. Judge Shedd wrote a dissenting
opinion.

ARGUED: Stephen Blake Kinnaird, PAUL HASTINGS LLP, Washington,
D.C., for Appellant.
Kent A. Gardiner, CROWELL & MORING, LLP,
Washington, D.C., for Appellee.
ON BRIEF: Daniel B. Goldman,
PAUL HASTINGS LLP, New York, New York; Jeff G. Randall, Igor V.
Timofeyev, Samer M. Musallam, PAUL HASTINGS LLP, Washington,
D.C., for Appellant. David D. Cross, Jeffrey L. Poston, CROWELL
& MORING, LLP, Washington, D.C.; Adam H. Charnes, KILPATRICK
TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for
Appellee.

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 2 of 60

DIAZ, Circuit Judge:
In this Sherman Act case, we review the district court’s
grant of summary judgment in favor of Defendant-Appellee E.I. du
Pont

de

Nemours

and

Company

(“DuPont”).

We

also

consider

challenges by Plaintiff-Appellant Kolon Industries Incorporated
(“Kolon”) to certain of the district court’s discovery rulings
and its denial of Kolon’s recusal motion.

Finding no reversible

error, we affirm.

I.
A.
The merits of this case concern Kolon’s claim that DuPont
attempted to wield, or did wield, monopoly power over the U.S.
para-aramid

fiber

market

in

Sherman Act, 15 U.S.C. § 2. 1

violation

of

Section

2

of

the

Para-aramid is a strong, complex

synthetic fiber used in body armor, tires, fiber optic cables,
and a variety of other industrial products.
producers--DuPont,

Teijin

Aramid

1

(formerly

Three para-aramid
a

division

of

the

We recite the relevant facts in the light most favorable
to Kolon.
In so doing, we have done our best to honor the
parties’ oft-overzealous desires to keep certain purportedly
sensitive information under seal.
However, to the extent the
district court has already disclosed (without objection) such
information, we treat it as public knowledge.

2

Appeal: 12-1587

Doc: 60

Dutch

company

Filed: 04/03/2014

Akzo

N.V.),

Pg: 3 of 60

and

Kolon--sell

their

para-aramid

fibers to U.S. consumers.
DuPont invented para-aramid fiber in 1965, and for a period
controlled the entire U.S. para-aramid market with its Kevlar©
fiber.

Teijin introduced its competing Twaron© fiber to the

U.S. market in 1987 and has chipped away at DuPont’s share of
that market every year since 1990.

According to one of Kolon’s

expert witnesses, during 2006-2009 (the relevant time period),
DuPont’s

share

of

the

U.S.

para-aramid

market

(the

relevant

geographic and product markets) fell from a high of 59% in 2006
to 55% in 2009, with most of this loss going to Teijin.
The U.S. para-aramid market is highly concentrated between
Dupont and Teijin, which together account for 99% of U.S. sales.
This extreme market concentration owes at least in part to the
industry’s high entry barriers.
production

is

time-intensive

As Kolon showed, para-aramid
and

expensive,

and

potential

customers test and “qualify” each para-aramid product to ensure
it meets their particular needs, a process that typically takes
six months to three years.

In addition to this evidence of

market concentration and high barriers to entry, Kolon adduced
evidence

that

DuPont,

despite

Teijin’s

encroachment,

earned

profit margins of as high as 75% between 1997 and 2005 and had
the ability to price discriminate among its customers.

3

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 4 of 60

Kolon made its foray into the U.S. para-aramid market in
2005 with its Heracron© fiber.
DuPont

considered

Anticipating

Kolon’s

Kolon’s

Kolon’s evidence showed that

market

potential

entry

to

be

encroachment,

a

threat.

DuPont

began

identifying segments of the market that it viewed as hospitable
to

entry,

gaskets),
cables.

including
tires,

auto

short

manufactured

fibers

rubber

(pulp

goods,

for
and

brakes
fiber

and

optic

According to Kolon, DuPont then undertook a strategy of

executing

multi-year

supply

agreements

with

high-volume

customers in each identified segment, requiring these customers
to purchase most or all of their para-aramid requirements from
DuPont during the relevant time period.
These

supply

contracts

contained

restrictions,

such

as

volume purchase commitments and “meet and release” clauses, that
required any competing para-aramid seller to propose a bid at a
designated lower amount than DuPont’s existing price, prohibited
the customer from informing the competing seller of DuPont’s
price, and gave DuPont a right to match any competing offer.
a

result

of

these

allegedly

anticompetitive

practices,

As

Kolon

insists, it never achieved more than a de minimis market share
during the relevant time period.

By contrast, Kolon was able to

penetrate other comparable para-aramid markets, such as Europe.
DuPont,
penetrate

for

the

its

U.S.

part,
market

attributes
to
4

Kolon’s

Kolon’s
own

failure

to

shortcomings.

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 5 of 60

According to DuPont, Kolon undertook only a “feeble effort” to
establish

a

U.S.

foothold,

using

only

seven

sales

agents,

inadequately investing in product offerings and supply capacity,
and contacting only a small percentage of potential customers as
of

October

2009.

Meanwhile,

DuPont

defends

its

supply

agreements as a competitive response to Teijin’s use of such
practices, and as driven by consumer demands.
DuPont also attempts to diminish the reach of its supply
agreements,

noting

agreements

with

that

it

entered

twenty-one

U.S.

into

only

customers,

twenty-five
collectively

accounting for only a small percentage of its U.S. revenue.
those

agreements,

customer

to

DuPont

purchase

says,

some

only

amount

a

of

portion
Kevlar,

typical durations of two years or shorter.

obligated
and

these

Of
the
had

Meanwhile, none of

DuPont’s supply agreements precluded competitors from qualifying
their products with the customer while the DuPont agreement was
in effect.

And of the group of “key” customers Kolon identified

as necessary to establish a foothold for effective competition,
DuPont

notes

that

the

majority

had

DuPont during the relevant period.

no

supply

agreement

Appellee’s Br. at 38.

with
In

short, DuPont submits that myriad self-inflicted failures--not
DuPont’s

supply

agreements--frustrated

penetration.

5

Kolon’s

U.S.

market

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 6 of 60

B.
DuPont brought suit against Kolon alleging the theft and
misappropriation of its Kevlar trade secrets (the “trade secrets
case”).

Kolon’s answer included the instant counterclaim (the

“antitrust

case”),

monopolized

and

market

through

attempted
its

aramid customers.
Procedure

alleging
to

supply

that

DuPont

monopolize

agreements

the

with

had
U.S.

illegally
para-aramid

high-volume

para-

DuPont moved, under Federal Rule of Civil
counterclaim.

The

district court granted that motion, with leave to amend.

Kolon

filed

an

12(b)(6),

amended

to

dismiss

counterclaim,

Kolon’s

followed

by

a

second

amended

counterclaim, which was also dismissed for failure to state a
claim, again with leave to amend.

Kolon declined to further

amend the counterclaim, opting instead to appeal the dismissal.
We reversed, holding that Kolon had adequately pleaded both its
actual and attempted monopoly claims, and remanded the matter to
the district court for further proceedings.

E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc. (DuPont I), 637 F.3d 435
(4th Cir. 2011).
On remand, the district court tried the trade secrets claim
separately, culminating in a $919.9 million jury verdict for
DuPont on September 14, 2011.
the two claims.
to

Kolon

in

the

The court then formally severed

The court also issued several rulings adverse
antitrust

case.
6

First,

the

district

court

Appeal: 12-1587

denied

Doc: 60

Filed: 04/03/2014

Kolon’s

motions

transaction-level

sales

to
and

Pg: 7 of 60

compel
cost

DuPont’s

data,

production

concluding

that

of
this

discovery would significantly burden DuPont and would not be any
more useful than the aggregate sales and cost data DuPont had
already

produced.

motions--filed

on

The

district

grounds

court

described

also

denied

below--for

Kolon’s

recusal

and

disqualification in both the antitrust and trade secrets cases.
The district court further denied Kolon’s request to depose a
DuPont corporate representative concerning its strategic use of
supply agreements.

Finally, the district court granted summary

judgment to DuPont on both Sherman Act claims, dismissing them
with prejudice.

Kolon timely noted this appeal.

II.
Before turning to the merits of the antitrust claims, we
first consider Kolon’s argument that the district court judge
was required to recuse himself in both the instant antitrust
case and the trade secrets case, which is also now before us on
appeal.

See E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc., No. 12-1260 (argued May 17, 2013).
A.
Kolon’s

recusal

motion

is

based

on

the

district

court

judge’s involvement, while in private practice, in litigation
that, according to Kolon, presents a matter in controversy in
7

Appeal: 12-1587

the

Doc: 60

instant

Filed: 04/03/2014

Teijin’s

dispute.

In

predecessor,

Pg: 8 of 60

the

1980s,

became

DuPont

embroiled

and

in

Akzo

several

N.V.,
patent

lawsuits relating to the manufacture and sale of para-aramid
fibers.

In one such dispute, Akzo sued DuPont in the United

States District Court for the Eastern District of Virginia for
infringement of an Akzo para-aramid patent.
In the Akzo case, DuPont was defended by the law firms
Fitzpatrick, Cella, Harper & Scinto (“Fitzpatrick Cella”) and
McGuire Woods & Battle (now “McGuireWoods”).

In the 1980s and

at the time of the Akzo case, the district court judge was a
partner at McGuireWoods.

As a result, he was a limited partner

in an affiliated entity, and continued to receive small payments
from McGuireWoods of rent for furnishings.

Because McGuireWoods

also served as counsel to DuPont in the present litigation, in
May

2009

the

clerk

of

court

issued

a

notice

informing

parties of the judge’s related financial interest.

the

The judge

noted then that he did not believe grounds for disqualification
existed, but he instructed the parties to file a motion within
20

days

motion

if
or

they

believed

otherwise

otherwise.

objected

to

Neither
the

party

judge’s

filed

a

continued

participation in the case.
Kolon

believed

the

Akzo

matter

was

central

to

both

its

defense of the trade secrets case and its maintenance of the
antitrust

case.

In

the

antitrust
8

case,

Kolon

began

seeking

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 9 of 60

discovery of the Akzo case files in August 2009.
that

the

Akzo

litigation--which

also

included

It contended
a

counterclaim

filed by DuPont, and which was ultimately resolved pursuant to a
settlement that restricted Akzo’s exports to the United States-was relevant evidence of DuPont’s anticompetitive practices and
its intent to monopolize the U.S. para-aramid market.
In the trade secrets case, beginning in April 2010, Kolon
conducted extensive discovery into the Akzo litigation on the
theory that DuPont’s asserted trade secrets had been revealed in
the

course

secret.

of
In

that

litigation

August

therefore

the

2010,

and

district

were

no

court

longer
ordered

McGuireWoods, DuPont, and Fitzpatrick Cella to review the Akzo
case

files

and

to

produce

responsive

documents.

Later

that

month, DuPont produced approximately thirty boxes of documents,
along with a privilege log, from Fitzpatrick Cella’s files.
One of the entries on the privilege log showed that in May
1985, Mr. Fitzpatrick of Fitzpatrick Cella had sent the district
court judge, then a partner at McGuireWoods, a letter confirming
a

telephone

conversation

in

which

Fitzpatrick

had

asked

the

judge to send him a facsimile of the complaint filed by Akzo.
The privilege log also indicated that, per Mr. Fitzpatrick’s
request, the judge had faxed him a copy of the complaint.
Nearly

a

year

later,

on

July

20,

2011,

Kolon

filed

a

memorandum opposing one of DuPont’s proposed jury instructions
9

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

in the trade secrets case.

Pg: 10 of 60

In that memorandum, Kolon stated

that it was “compelled to point out that there is some question
whether Your Honor should be adjudicating these matters [due to
DuPont’s

production

of

documents]

indicating

a

role

by

Honor in the earliest stage of the Akzo litigation.”

Your
Kolon

Indus., Inc. v. E.I. du Pont de Nemours & Co., 846 F. Supp. 2d
515, 519 (E.D. Va. 2012) (quoting 3:09-cv-58, Docket No. 1247)
(emphasis omitted).
the

court,

In a subsequent telephone conference with

Kolon’s

counsel

explained

that

the

source

of

its

concern was the May 1985 letter from Mr. Fitzpatrick to the
district court judge.
The district court judge then ordered DuPont to produce any
documents
which

concerning

ultimately

his

involvement

comprised

only

in

the

the

two

Akzo

litigation,

documents

described

above: the May 1985 letter from Mr. Fitzpatrick to the judge
requesting

a

copy

of

the

Akzo

Complaint,

and

the

judge’s

responsive facsimile cover sheet, with the Complaint attached.
Following

further

represented
documents

that

from

those

documents

made

similar

inquiry
they

the

into

had

the

reviewed

Fitzpatrick

contained

matter,

the

representations

all

Cella

with

privileged documents.

10

the

files

judge’s

Kolon’s

name;

respect

counsel

non-privileged

and

that

DuPont’s
to

the

none

of

counsel
files’

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 11 of 60

After reviewing the two relevant documents, the district
court

judge

determined

that

he

had

no

recollection

of

the

communication with Fitzpatrick or of any involvement in the Akzo
litigation.

Kolon said nothing more then about the issue.

During these inquiries, the trade secrets trial began as
scheduled, and the jury returned a $920 million dollar verdict
for DuPont after a seven-week trial.
the

antitrust

case

was

underway

Meanwhile, discovery in

following

our

March

reversal of the district court’s initial dismissal.

2011

As in the

trade secrets case, the parties came to a head over Kolon’s
proposed
September

discovery
and

of

October

the

Akzo

of

2011

litigation
filed

files,

reciprocal

and

in

motions

respectively seeking to compel and protect that information.
Then,

on

November

30,

2011,

two

months

after

the

jury

verdict in the trade secrets case, and two days before motions
for summary judgment were due in the antitrust case, Kolon filed
its recusal motion, which the district court denied. 2

2

In its motion and supporting memorandum, Kolon also
suggested that the district court “revisit its refusal to
recuse” from the trade secrets case, apparently referring to the
discussion of recusal in July. Docket No. 247, at 2; Docket No.
248, at 31.
Kolon filed no separate motion for recusal in the
trade secrets case at that time, but did briefly reference
recusal in several subsequent filings.
On December 9, 2011,
Kolon filed a reply in support of its motion for a judgment as a
matter of law; in a footnote, it reminded the court of its
position that the judge should not have ruled regarding the
adverse jury instructions.
See Docket No. 1738, at 13.
On
(Continued)
11

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 12 of 60

B.
28 U.S.C. § 455(b)(2), the provision on which Kolon relies,
provides that any judge of the United States shall disqualify
himself
[w]here in private practice he served as a lawyer in
the matter in controversy, or a lawyer with whom he
previously
practiced
law
served
during
such
association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness
concerning it.
28

U.S.C.

§ 455(a),

which

also

has

some

relevance

to

our

inquiry, provides that “[any judge] of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 3

December 23, Kolon asked the court to consider recusal in its
memorandum supporting its motion to stay the injunction
proceedings.
See Docket No. 1813, at 19.
And in its reply
regarding that motion, on January 11, Kolon insisted that a
formal motion for recusal was unnecessary. See Docket No. 1843,
at 19 (responding to Docket No. 1830, at 26-27).
During a
January 2012 hearing on Kolon’s motion for a new trial and
judgment as a matter of law in the trade secrets case, counsel
for Kolon again requested that the district court judge recuse
himself. The judge refused to do so, explaining that he did not
have a recusal motion before him in that case.
Three days
later, on January 27, 2012, Kolon filed its motion for recusal
and disqualification in the trade secrets case.
The district
court denied the recusal motions in both cases on February 21.
3

A separate recusal statute, 28 U.S.C. § 144, provides
parties with one opportunity per case to file an affidavit that
the presiding judge has a personal bias or prejudice regarding a
party.
If the affidavit is sufficient, accompanied by a
certificate of good faith, and timely filed, another judge will
(Continued)
12

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 13 of 60

The district court reasoned that although § 455 is itself
silent on whether a party seeking recusal must timely file a
motion

with

the

court,

and

despite

the

mandatory

text

of

§ 455(b) (“[Any judge] . . . shall disqualify himself . . . .”),
the majority of circuits, including this one, have found that
§ 455 includes a timeliness requirement.

Kolon Indus., 846 F.

Supp. 2d at 522 (citing, inter alia, United States v. Owens, 902
F.2d 1154, 1155 (4th Cir. 1990)).

Accordingly, because Kolon

had delayed in filing its recusal motion for almost a year after
it learned of the alleged conflict, the district court denied
Kolon’s motion as untimely.
Ruling in the alternative on the merits, the district court
concluded that even ignoring the untimeliness of Kolon’s motion,
recusal

was

unnecessary

under

§ 455(b)(2)

since

the

Akzo

litigation was not “sufficiently related” to the instant action
to “constitute parts of the same matter in controversy.” 4

Id. at

528 (quoting United States v. DeTemple, 162 F.3d 279, 286 (4th
Cir. 1998)).

be assigned to the proceeding.
Kolon did not seek recusal on
this ground in the district court.
4

Additionally, the district court held that recusal was
unnecessary under § 455(a).
Since Kolon does not appeal that
ruling, we do not address it.

13

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 14 of 60

C.
We

review

discretion.

a

judge’s

recusal

decision

for

abuse

of

United States v. Mitchell, 886 F.2d 667, 671 (4th

Cir. 1989).
We first consider Kolon’s challenge to the district court’s
holding that

§ 455(b)(2)

includes

a

timely-filing

requirement

that Kolon failed to satisfy.

Kolon maintains that the district

court

Owens,

erred

by

relying

on

in

which

we

said

that

“[t]imeliness is an essential element of a recusal motion,” and
that notwithstanding the absence of an explicit timely-filing
requirement
implied.”

in

§ 455,

such

a

requirement

is

“judicially

902 F.2d at 1155.

This language, Kolon submits, does not control here because
it speaks only “broadly about section 455 and did not specify
whether this requirement should apply to both subsections (a)
and (b) or solely to [sub]section 455(a).”
58.

Appellant’s Br. at

In Kolon’s view, Owens “more likely” involved a situation

under § 455(a) in which the judge’s “impartiality might [have]
reasonably
implicating

be[en]

questioned,”

“personal

bias

or

5

not

a

§ 455(b)(1)

prejudice.” 5

Id.

scenario
at

59.

28 U.S.C. § 455(b)(1) requires a judge to recuse himself
“[w]here he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
[a] proceeding.”

14

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 15 of 60

Accordingly, Kolon believes Owens merely resolved that a timely
motion is required when recusal is implicated under § 455(a),
leaving open that question with respect to § 455(b).
In
different

Kolon’s
enough

view,

the

§ 455(a)

to

explain

the

and

(b)

presence

provisions

of

a

are

timeliness

requirement in the former despite the absence of such in the
latter.

Unlike § 455(a), § 455(b) may not be waived by the

parties.

See 28 U.S.C. § 455(e) (“No [judge] shall accept from

the

parties

to

the

proceeding

a

waiver

of

disqualification enumerated in subsection (b).

any

ground

for

Where the ground

for disqualification arises only under subsection (a), waiver
may

be

accepted . . . .”).

From

Kolon’s

perspective,

subsections 455(b) and (e) create a “jurisdictional limitation
on the authority of a judge to participate in a given case,”
leaving the judge with a sua sponte obligation to recuse himself
or herself when he or she knows the predicate facts implicating
§ 455(b).

Appellant’s

Br.

at

60

(quoting

United

States

v.

Gipson, 835 F.2d 1323, 1325 (10th Cir. 1988) (internal quotation
marks omitted)).
party

motion

as

Thus, Kolon continues, “requiring a timely
a

condition

precedent

to

enforcing

section

455(b) runs contrary to statutory design, effectively relieving
the judge of his personal statutory duty.”

15

Id.

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 16 of 60

D.
While

Kolon’s

arguments

do

not

entirely

lack

merit,

we

conclude that § 455(b), like § 455(a), includes a timely-filing
requirement under Owens and that Kolon failed to comply with it.
As the parties and the district court have acknowledged,
the

party

seeking

recusal

in

Owens

did

not

specify

which

provision of § 455 required it, and we did not cabin our holding
to

any

specific

defendant,

after

provision
publicly

of

that

accusing

section.
the

In

Owens,

then-Governor

of

the
West

Virginia of bribery, filed a motion for recusal based on the
presiding judge’s “long association” with the Governor, who was
responsible for the judge’s appointment to various offices.

902

F.2d at 1155.
In our view, these facts could plausibly fit under either
of two subsections, 455(a) or 455(b)(1).

On the one hand, the

scenario in Owens could certainly speak to § 455(a)’s concern
with situations where a judge’s impartiality might reasonably be
questioned.
determined,

But
the

on

the

judge’s

other,

as

perceived

the

district

allegiance

to

court

here

the

West

Virginia Governor could reasonably have concerned “a personal
bias

or

prejudice

concerning”

the

accuser--thus implicating § 455(b)(1).
are

left

only

with

Owens’s

defendant--the

Governor’s

Given this ambiguity, we

unqualified

announcement

that

“[t]imeliness is an essential element of a recusal motion” which
16

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 17 of 60

is “judicially implied in § 455.”
blanket

prescription,

we

902 F.2d at 1155.

decline

to

read

Given that

Owens’s

timeliness

requirement so narrowly as to exclude § 455(b).
Our

dissenting

colleague

correctly

observes

that

Owens

cites a case discussing § 455(a) alone, and that our later cases
in that line have yet to address § 455(b). 6

The limitations of

past cases, however, are not controlling, particularly because
the policy rationale underlying Owens’s timeliness requirement
applies just as forcefully to § 455(b) as to any other recusal
scenario.
Here--just

as

with

a

§ 455(a)

recusal,

for

example--the

requirement of timeliness “prohibits knowing concealment of an
ethical issue for strategic purposes,” United States v. York,
888

F.2d

1050,

1055

(5th

Cir.

1989),

and

“is

vital . . . to

prevent waste and delay,” Owens, 902 F.2d at 1156.
the

non-waivability

of

a

§ 455(b)

6

recusal

does

not

Meanwhile,
excuse

a

The dissent says that our decision in United States v.
Lindsey, 556 F.3d 238 (4th Cir. 2009), cuts against imposing a
timeliness requirement under § 455(b). With all respect, we do
not share that view.
In Lindsey, the presiding district court
judge had participated in defendant Lonnie Robinson’s case
twelve years earlier as an Assistant United States Attorney.
Though the judge did not recall his participation in the earlier
case, nor was he made aware of it, we vacated his order. But in
that case, Robinson did not learn of the judge’s prior
involvement until after filing his appeal.
See id. at 246–47.
Thus, no timeliness issue ever arose: the case is wholly
inapposite here.

17

Appeal: 12-1587

Doc: 60

party’s

Filed: 04/03/2014

delay

in

filing.

Pg: 18 of 60

As

the

Fifth

Circuit

“waiver and timeliness are distinct issues.”
1055.

Whereas

parties

from

“section

agreeing

455(e)

among

prohibits

themselves

explained,

York, 888 F.2d at
the

to

judge

and

abrogate

the

section

455(b),” a “timeliness requirement forces the parties to raise
the

disqualification

litigation.”

Id.

issue

at

a

reasonable

time

in

the

And even if the mandatory text of § 455 does

imply a quasi-jurisdictional limitation on a judge’s authority
to hear a case, in our view, that limitation must be balanced
against the interests of fairness and efficiency served by the
timeliness requirement we announced in Owens.
The dissent criticizes our reading of Owens as finding no
support in the statutory text of § 455(b).
support

for

a

§ 455(a)

timeliness

We note that textual

requirement

is

similarly

lacking, and that the language under that provision is similarly
mandatory, yet under our precedent that requirement is beyond
dispute.

In

analysis

must

any

event,

begin

while

with

the

we

certainly

statute’s

agree

plain

that

our

language,

the

absence of a timeliness provision does not foreclose further
inquiry

here.

Even

the

plain

meaning

of

a

statute

is

not

conclusive “in the rare cases [in which] the literal application
of a statute will produce a result demonstrably at odds with the
intentions of its drafters.”

United States v. Ron Pair Enters.,

Inc.,

(1989)

489

U.S.

235,

242

18

(alteration

in

original)

Appeal: 12-1587

Doc: 60

(internal
‘promote

Filed: 04/03/2014

quotation
public

process.’ ”

marks

Pg: 19 of 60

omitted).

confidence

in

the

Section
integrity

455
of

“serves

the

to

judicial

Dissent at 50 (quoting Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)).

In our view,

failing

to

for

recusal

under

insist

on

a

§ 455(b)

timeliness
directly

requirement

undermines

that

seeking

legislative

goal. 7
In

keeping

with

that

end,

our

sister

circuits

have

overwhelmingly found a timely filing requirement to be implied
despite the text’s silence.

See, e.g., Am. Prairie Constr. Co.

v. Hoich, 560 F.3d 780, 789-91 (8th Cir. 2009) (§ 455(a) and
(b)); Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 447-48 (2d
Cir. 2005) (§ 455(b)); Stone Hedge Props. v. Phoenix Capital
Corp.,

71

F.

App’x

138,

141

(3d

Cir.

2003)

(unpublished)

(§ 455(b)); United States v. Rogers, 119 F.3d 1377, 1380-83 (9th

7

Section 455’s legislative history is murky at best.
See
Delesdernier v. Porterie, 666 F.2d 116, 119–121 (5th Cir. 1982).
When Congress revised the statute in 1974, the Justice
Department did suggest adding an explicit timeliness requirement
like that found in § 144. Id. at 120. Congress declined to do
so, and our friend in dissent believes that decision “end[s] our
inquiry.”
Dissent at 48.
But the Justice Department’s
suggestion is hardly the only piece of relevant legislative
history.
Rather, “prior to the 1974 amendment[,] courts had
generally held that a timely objection under the old § 455 was
necessary.”
Delesdernier,
666
F.2d
at
121.
“Thus[,]
Congress’[s] failure to act could as easily have been the result
of a belief that the judicial gloss on old section 455 would
survive.” Id. (internal quotation marks omitted).

19

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 20 of 60

Cir. 1997) (§ 455(a) and (b)); Summers v. Singletary, 119 F.3d
917, 920-21 (11th Cir. 1997) (§ 455(b)); York, 888 F.2d at 105355 (5th Cir. 1989) (§ 455(a) and (b)).
Meanwhile,

only

two

timeliness requirement.

circuits

have

refused

to

read

in

a

The Seventh Circuit did so first, in

SCA Services v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), but
has since called that decision into question on more than one
occasion, see Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1060
(7th Cir. 1992) (“SCA Services is a weak precedent[.]”) (Posner,
J., in chambers); United States v. Murphy, 768 F.2d 1518, 1539
(7th Cir. 1985) (observing that “our decision [in SCA Services]
stands alone”).

The Federal Circuit has also declined to impose

a formal § 455 filing requirement, but in doing so created what
amounts

to

a

de

facto

filing

obligation

under

principles

of

equity.

See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415,

1421 (Fed. Cir. 1989) (finding no strict timeliness requirement
but denying Kodak’s requested relief due to its unreasonably
tardy § 455 objection).
We recognize the countervailing interest in removing any
judge who bears even the slightest appearance of partiality.
But we should not ignore the harm that would ensue if litigants
were permitted to treat motions for recusal as little more than
a

stratagem.

legitimately

As
be

the

asked

Fifth

whether

Circuit
the

20

observed,

spectacle

of

“it
an

might

attorney

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 21 of 60

dragging his opponent through a long and costly proceeding, only
to conclude by moving for disqualification of the judge, is not
equally

detrimental

to

public

impressions

of

system” as is a potentially biased judge.

the

Delesdernier, 666

F.2d at 121 (internal quotation marks omitted).
not

enact

§ 455(a)

to

allow

counsel

to

make

subvert

that

legislative

intent

merely

“Congress did
a

federal judiciary’s ethical obligations . . . .”
not

judicial

game

Id.

of

the

We should

because

a

party

instead seeks recusal under § 455(b).
Nor are we moved by the fact that parties may not waive
recusal under § 455(b).
and

the

parties)

nonetheless
prejudice

to

one

has

ignore
party

in

In that context, everyone (the judge
acknowledged
it.

Thus,

particular,

a

conflict,

waiver
and

cannot

will

not

but
be

seeks

said

produce

to
the

gamesmanship we condemn here.
The same must be said of § 455(f).

That provision permits

a judge with a financial conflict of interest under § 455(b)(4)
to remain on the case if he has devoted substantial time to the
matter and divests himself of the interest 8.

The dissent reads

the limitation of this provision to financial conflicts alone as
8

The district judge’s May 2009 disclosure of a financial
interest does
not
present
an
issue
under
§ 455(f),
as
§ 455(b)(4) requires recusal only where a financial interest not
immediately in controversy “could be substantially affected by
the outcome of the proceeding.”

21

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 22 of 60

a legislative determination that “timeliness and efficiency are
less

important

judiciary

is

than

ensuring

upheld.”

that

Dissent

at

the

impartiality

50.

As

with

of

the

the

waiver

provision, however, § 455(f) presents a clean trade-off between
efficiency and impartiality.

It does not address the concerns

about tactical sandbagging present in this case.
The dissent also contends that our decision today “pivots
responsibility [for recusal] from the judges to the litigants.”
Dissent at 52.

That is not entirely correct.

We agree with our

friend that when a judge “is aware of grounds for recusal under
section

455,

herself.”
The

that

judge

has

a

duty

to

recuse

himself

or

Dissent at 51 (internal quotation marks omitted).

scenario

independently

we

address

determines,

here
even

arises

if

only

wrongly,

when

that

a

he

judge

need

not

recuse and a party does not affirmatively seek recusal--that is,
until an adverse decision has been handed down.

Both efficiency

and integrity require that we not reward a party’s tactics in
these circumstances.
E.
Having held that Owens’s timely-filing requirement applies
to

recusal

consider
“rais[ing]

motions

whether
the

under

Kolon

§ 455(a)

complied

and
with

disqualification . . . [of

(b)
that
the

alike,

next

requirement

by

judge] at

the

earliest moment after [its] knowledge of the facts.”
22

we

Owens, 902

Appeal: 12-1587

F.2d

Doc: 60

at

Filed: 04/03/2014

1156

(quoting

Pg: 23 of 60

Satterfield

v.

Edenton-Chowan

Educ., 530 F.2d 567, 574-75 (4th Cir. 1975)).

Bd.

of

It did not.

The fact that the district court judge had been a partner
at McGuireWoods at the time of the Akzo litigation was public
knowledge when Kolon first sought discovery of the Akzo case
materials in the antitrust case in August 2009.

Given Kolon’s

scouring of the Akzo litigation court records, it further seems
clear that Kolon had long known that McGuireWoods represented
DuPont in the Akzo case.

Kolon was also formally alerted to the

potential conflict in May 2009, when the clerk of court issued
its

notice

to

the

parties

informing

them

of

the

judge’s

financial interest in an entity affiliated with McGuireWoods.
Finally,

Kolon

became

aware

of

the

judge’s

direct

(if

negligible) involvement in the Akzo litigation in August 2010,
when DuPont produced the Akzo files and privilege log.
In sum, Kolon knew every fact that eventually predicated
its

recusal

motion

almost

a

year

before

it

first

suggested

recusal might be appropriate, in July 2011, and over a year
before it finally filed its first recusal motion, in November
2011.

On this record, Kolon quite clearly failed to “raise the

23

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

disqualification . . .

[of

the

Pg: 24 of 60

judge]

after [its] knowledge of the facts.”

at

the

earliest

moment

Id. 9

Nor, in our view, is Kolon’s untimeliness excused by the
fact

that

DuPont

knew

first

of

the

district

court

judge’s

involvement in the Akzo case and failed to alert the court of
that

fact

until

August 2010.

it

eventually

produced

its

privilege

log

in

For one, the judge’s direct involvement in the

Akzo case was not the only (or even necessarily the strongest)
basis for Kolon’s eventual § 455(b)(2) recusal motion: if, as
Kolon believed, the Akzo litigation was actually a matter in
controversy,

the

mere

involvement

of

the

judge’s

former

law

partners--of which Kolon was clearly aware--would have required
his recusal.

For another, DuPont’s initial withholding of the

relevant communications does not explain why, after its eventual

9

We recognize that Kolon filed its motion to recuse in this
case before the district court’s issuance of an adverse ruling
on summary judgment. But its actions here should not be viewed
in a vacuum.
Recall that Kolon’s antitrust claims arose as a
counterclaim to DuPont’s trade secrets action, which proceeded
more quickly than the antitrust case, before the same district
judge.
In that case, the judge issued a series of rulings
universally adverse to Kolon, and a jury rendered a $920 million
verdict for DuPont.
This had all transpired by the time Kolon
filed its recusal motion in the antitrust case.
So while
Kolon’s sandbagging may not be obvious in the isolated context
of the antitrust case, a global view of the relevant events
makes clear that Kolon held its fire on recusal until after
suffering a defeat in the trade secrets case.

24

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 25 of 60

disclosure, Kolon failed to raise the disqualification issue for
nearly a year.
Our

dissenting

colleague

warns

that

our

decision

as

to

recusal will only diminish public respect for our profession.
"At the end of the day," he writes, our "determination that
Kolon's recusal requests were untimely means that a district
judge

who

.

.

.

is

no

longer

permitted

to

conduct

further

proceedings involving the trade secrets claims[] presided over a
trial that ended in a one billion dollar verdict and a twentyyear worldwide production shutdown injunction."
(emphasis omitted).

Dissent at 57

The district judge did preside over such a

trial, and our decision here cannot rewrite the past.

We have

concluded separately, however, that the trade secrets verdict
must be vacated based on the judge’s evidentiary rulings.

In

our view, a single verdict--however large--that no longer exists
can

hardly

impair

public

confidence

more

than

would

a

rule

transforming recusal under § 455 into an “additional arrow in
the quiver of advocates in the face of [anticipated] adverse
rulings.”

In re Kan. Pub. Emps. Ret. Sys., 85 F.3d 1353, 1360

(8th

1996)

Cir.

marks omitted).

(alteration

in

original)

(internal

quotation

We therefore hold that the district court acted

25

Appeal: 12-1587

Doc: 60

within

its

Filed: 04/03/2014

discretion

in

Pg: 26 of 60

denying

Kolon’s

recusal

motion

on

timeliness grounds. 10

III.
We

next

consider

Kolon’s

challenges

district court’s discovery rulings.
abuse

of

discretion,
has

substantial

discovery

which

caused

may

to

certain

of

the

We review such rulings for
be

found

where

of

Nicholas

prejudice.”

“denial

v.

Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).
A.
Throughout
their

analysis,

discovery,
Kolon

to

sought

enable
access

its
to

experts

DuPont’s

to

perform

transaction-

level and market-segment sales, pricing, and margin data.
district

court

information
Kolon

leave

as
to

denied
overly

Kolon’s
broad

reformulate

and
its

initial

requests

unduly

burdensome,

request.

Conceding

for
but
that

The
this
gave
its

initial requests had been overbroad, Kolon eventually requested
production of a spreadsheet with data fields relevant to certain
contested issues.
document
database.”

should

The request indicated that the responsive
be

in

native

format

from

“any

existing

Appellee’s Br. at 43 (emphasis omitted).

10

In light of our holding, we do not address the district
court’s alternative ruling that, on the merits, recusal was not
required.

26

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 27 of 60

The district court again denied Kolon’s request, concluding
that (1) DuPont had already produced extensive documentation on
the pertinent topics, such that the requested data would not be
any

more

relevant

than

the

information

DuPont

had

already

provided; (2) the request remained “sweeping and extensive”; (3)
DuPont

had

shown

that

production

of

the

requested

documents

would be “significantly burdensome”; and (4) the request had
been filed very late in the discovery period, without adequate
explanation for the delay by Kolon.

J.A. 1020-22.

While we do not necessarily share the district court’s view
that Kolon’s requested transaction-level data would have been no
more relevant than the aggregate data DuPont had theretofore
provided, we nevertheless find that the discovery denial was
sufficiently

justified

by

the

court’s

determination

production would have been unduly burdensome.

that

the

Kolon insists

that the burden to DuPont was minimal because it requested only
a “single spreadsheet” which it said could be “readily compiled
from any existing database,” Appellant’s Br. at 43 (emphasis
omitted),

and

because

an

affidavit

from

DuPont’s

Global

Financing Director indicated that DuPont already had an existing
spreadsheet containing some of the requested transaction-level
data.

But this ignores the sweeping nature of the information

requested,
regarding

which

included

customers,

all

geographic
27

transaction-level
location,

dates,

details
products,

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 28 of 60

amounts, price, cost, margins, and profits.

And even if DuPont

did have this information in “existing database[s],” that does
not mean it would not have been very burdensome to compile the
information into a “single spreadsheet.”
Particularly

considering

the

Id.

district

court’s

“wide

latitude in controlling discovery,” Rowland v. Am. Gen. Fin.,
Inc., 340 F.3d 187, 195 (4th Cir. 2003), we decline to disturb
its ruling.
B.
Kolon

also

appeals

the

district

court’s

grant

of

a

protective order barring a Rule 30(b)(6) deposition of DuPont on
its strategic use of supply agreements.

Justifying that order,

the district court explained that Kolon had violated Federal
Rule of Civil Procedure 30(b)(1) and Rule 30(H) of the Local
Rules

for

District

the

of

United

States

Virginia

notice . . . for

by

[a]

District

“failing

replacement

to

Court
give

the

Eastern

reasonable

written

deposition

for

notice

that

it

served on October 21, 2011,” and had wasted the time the court
had extended it for completion of its depositions.
Again,

we

see

no

discretionary ruling.

cause

to

disturb

the

J.A. 2715.

district

court’s

While Kolon attempts to pin blame for the

discovery delays on DuPont, it concedes that it gave only five
days’ notice for the replacement deposition notice it served on
October

21,

2011.

As

the

district
28

court

determined,

this

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 29 of 60

violated Local Civil Rule 30(H), which generally requires eleven
days’ advance notice of a deposition, and Federal Rule Civil
Procedure

30(b)(1),

Although

Kolon

reasonable

under

which

maintains
the

requires
that

the

circumstances,

“reasonable”
five-days’

the

notice.

notice

district

court

was
acted

within its discretion in concluding otherwise.

IV.
Finally,

we

consider

Kolon’s

challenge

to

the

district

court’s grant of summary judgment on its two antitrust claims--a
ruling

we

review

de

novo,

viewing

all

facts

and

reasonable

inferences therefrom in the light most favorable to Kolon, the
nonmoving party.

See Pueschel v. Peters, 577 F.3d 558, 563 (4th

Cir. 2009).
In general, summary judgment is appropriate where there is
no genuine issue as to any material fact.
56(a).

Fed. R. Civ. P.

A genuine issue of material fact exists when there is

sufficient evidence on which a reasonable jury could return a
verdict in favor of the nonmoving party.
Lobby, Inc., 477 U.S. 242, 248 (1986).
summary

judgment

is

“an

important

Anderson v. Liberty

We have explained that
tool

for

dealing

with

antitrust cases,” Oksanen v. Page Mem’l Hosp., 945 F.2d 696, 708
(4th

Cir.

1991)

(en

banc),

and

that

antitrust

cases

are

“particularly well-suited for Rule 56 utilization” due to the
29

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 30 of 60

“unusual entanglement of legal and factual issues” they often
present, Thompson Everett, Inc. v. Nat’l Cable Adver., L.P., 57
F.3d 1317, 1322 (4th Cir. 1995).
A.
We

first

review

the

district

court’s

grant

of

summary

judgment on Kolon’s monopolization claim.
Under § 2 of the Sherman Act, a defendant is liable for a
monopolization claim when that defendant (1) possesses monopoly
power

and

(2)

willfully

acquires

DuPont I, 637 F.3d at 441.

or

maintains

that

power.

In granting summary judgment to

DuPont, the district court held that Kolon failed to create a
genuine issue of material fact on either prong, concluding that
DuPont neither possessed monopoly power nor engaged in willful
maintenance of such power.

We address each element in turn.
1.

“Monopoly power is the power to control prices or exclude
competition.”

United States v. E.I. du Pont de Nemours & Co.,

351 U.S. 377, 391 (1956).
in

the

market.”

relevant

market

A defendant possesses monopoly power
if

it

is

“truly

predominant

in

the

White Bag Co. v. Int’l Paper Co., 579 F.2d 1384, 1387

(4th Cir. 1974).

Although there is no fixed percentage market

share that conclusively resolves whether monopoly power exists,
the Supreme Court has never found a party with less than 75%
market share to have monopoly power.
30

Antitrust Laws & Trade

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 31 of 60

Regulation: Desk Ed. § 3.02[2][c][ii].

And we have observed

that

found

“when

controlled
market.”

monopolization
seventy

to

has

one

been

hundred

percent

the
of

defendant

the

relevant

DuPont I, 637 F.3d at 450 (quoting White Bag, 579 F.2d

at 1387).
Beyond
focused

percentage

on

the

particularly

durability

with

an

enter the market.”
Applying

market

eye

share,

of

the

toward

“some

courts

defendant’s

other

firms’

have

market

also

power,

(in)ability

to

Id. at 451 (citing cases).

these

standards,

DuPont lacked monopoly power.

the

district

court

held

that

Whereas (according to our ruling

in DuPont I) Kolon had adequately pleaded the monopoly power
element by alleging that DuPont had controlled over 70% of the
relevant

market,

at

the

summary

judgment

stage

the

district

court found that DuPont actually possessed significantly less
than the alleged 70% of that market.

Kolon Indus., Inc., v.

E.I. du Pont Nemours & Co., No. 3:11-cv-622, 2012 WL 1155218, at
*12 (E.D. Va. Apr. 5, 2012).

“In fact,” the court observed,

“Kolon’s own expert takes the view that DuPont had a maximum
market share of 59 percent during the relevant time period, and
that DuPont’s market share decreased to 55 percent during that
three year period rather than increased.”
This

decline

in

DuPont’s

market

Id.
share,

combined

with

Teijin’s corresponding ascendance and the fact that DuPont was
31

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 32 of 60

charging lower prices in the United States than in Europe (which
Kolon identified as a comparable market), led the court to its
conclusion.
barriers,”

“[T]he
the

fact

district

that

court

there

are

continued,

significant

“is

entry

insufficient

fill the factual gaps in Kolon’s monopolization claim.”

to
Id.

“DuPont clearly lacks the power to control prices and exclude
competition,” the court summarized, “otherwise, it would have
been able to prevent the decrease in its market share and the
rise of one of its major competitors.”

Id.

Even viewing all evidence in the light most favorable to
Kolon, we agree with the district court that DuPont did not
possess monopoly power in the U.S. para-aramid market during the
relevant period between 2006 and 2009.

First, although Kolon is

correct that DuPont’s market share of less than 60% during the
relevant

period

does

not

necessarily

foreclose

a

finding

of

monopoly power, it does weigh heavily against such a finding.
Quite simply, this percentage falls significantly short of where
we

have

previously

drawn

the

line

for

monopoly

power.

See

DuPont I, 637 F.3d at 450 (identifying 70% market share as the
bottom of the range for a finding of monopoly power).
Meanwhile,

although

Kolon

is

also

correct

that

certain

other factors do demonstrate DuPont’s strength in the market
(e.g., high barriers to entry, ability to price discriminate,
high profit margins), a showing of DuPont’s “market power” is
32

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 33 of 60

not itself sufficient to prove that DuPont possesses “monopoly
power.”

See Eastman Kodak Co. v. Image Technical Servs., Inc.,

504 U.S. 451, 481 (1992) (“Monopoly power under § 2 requires, of
course,

something

Furthermore,
durability

this

in

uncontested

greater
evidence

the

facts

than

market

falls

market.

As

demonstrate

short

the

that

power
of

showing

district
DuPont

under

court

has

§ 1.”).
DuPont’s
observed,

experienced

a

steady, decades-long loss in significant market share to Teijin.
Ultimately, in light of DuPont’s reduced market share and
lack of durable market power, the evidence cannot sustain a jury
finding that DuPont had the “power to control prices or exclude
competition,” United States v. DuPont, 351 U.S. at 391, or was
“truly predominant in the market” during the relevant period,
White Bag, 579 F.2d at 1387.
2.
Even

if

Kolon

had

presented

a

triable

issue

on

the

monopoly-power element, Kolon also needed to show that DuPont
willfully

maintained

that

power.

To

violate

this

prong,

a

defendant must engage in conduct “to foreclose competition, to
gain

a

competitive

advantage,

or

Eastman Kodak, 504 U.S. at 482-83.

to

destroy

a

competitor.”

On this element, Kolon’s

theory was--and is--that DuPont maintained its alleged monopoly
power through the use of long-term, multi-year, exclusive supply
agreements with certain U.S. para-aramid customers.
33

Appeal: 12-1587

Doc: 60

Although
illegal,

Filed: 04/03/2014

exclusive

they

“may

Pg: 34 of 60

dealing

be

an

maintaining a monopoly.”

agreements

improper

are

means

not

se

acquiring

of

per

or

DuPont I, 637 F.3d at 451 (citing

United States v. Grinnell Corp., 384 U.S. 563, 576 (1966).

The

Supreme Court has held that an exclusive dealing arrangement
does not violate antitrust laws unless its probable effect is to
“foreclose competition in a substantial share of the line of
commerce affected.”

Tampa Elec. Co. v. Nashville Coal Co., 365

U.S. 320, 327 (1961).

The Court explained:

To determine substantiality in a given case, it is
necessary to weigh the probable effect of the contract
on the relevant area of effective competition, taking
into account the relative strength of the parties, the
proportionate volume of commerce involved in relation
to the total volume of commerce in the relevant market
area, and the probable immediate and future effects
which pre-emption of that share of the market might
have on effective competition therein.
Id. at 329.
Along
share

these

lines,

foreclosed

adversely
traders

affect
to

enter

is

we

important

competition,
into

or

significantly limited[.]’”
Tampa

Elec.,

demonstrated
demonstrate

365

U.S.

the

observed

because,
‘the

remain

that

for

“[t]he

the

contract

opportunities
in

that

market

for

market

to

other

must

be

DuPont I, 637 F.3d at 451 (quoting
at

substantial
that

have

328).

Once

foreclosure,

conduct

34

had

“a

it

a

plaintiff

must

negative

then
impact

has
also
on

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 35 of 60

competition in the market as a whole.”

Chuck’s Feed & Seed Co.

v. Ralston Purina Co., 810 F.2d 1289, 1295 (4th Cir. 1987).
The district court held there was no genuine issue that
DuPont’s

supply

agreements

portion of the market.

had

not

foreclosed

a

substantial

In its view, Kolon had not sufficiently

attempted to quantify foreclosure of the entire relevant market,
and instead had focused only on DuPont’s alleged foreclosure of
particular market segments.

Kolon’s evidence of the degree of

foreclosure in those segments, which the court characterized as
“scant

at

best,”

did

“nothing

to

reveal

the

amount

foreclosure in the [para-aramid] market as a whole.”
2012 WL 1155218, at *14.
had

supply

of

Kolon,

The court concluded that since DuPont

agreements--many

of

which

were

non-exclusive--with

only twenty-one of approximately 1,000 potential commercial U.S.
para-aramid customers, the percentage of foreclosure could not,
“as a matter of law, constitute sufficient grounds for a finding
of substantial foreclosure.”
The

court

also

Id. at *15.

concluded

that

Kolon

had

“put

forth

no

evidence” that DuPont’s supply agreements had a negative effect
on

overall

ascendance”

competition,
fatally

noting

undercut

that

that
claim.

Teijin’s
Id.

“relentless
Finally,

the

court rejected Kolon’s argument that DuPont’s twenty-one supply
arrangements substantially foreclosed the entire relevant market

35

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 36 of 60

by blocking Kolon from crossing a “critical bridge” to “high
volume” customers.
On

appeal,

theory.

While

Id. at *16-18.
Kolon
it

again

does

stresses

not

deny

its

“critical

that

DuPont

bridge”

had

supply

agreements with only twenty-one of the roughly 1,000 potential
U.S. commercial para-aramid customers, Kolon contends that the
district court’s emphasis on those figures--and its disregard of
the “probable effect of the contract[s] on the relevant area of
effective

competition,”

shortsighted.
Kolon’s

market

Tampa

Pointing
entry

as

to
a

Elec.,
evidence

threat,

365

U.S.

that

Kolon

at

DuPont

argues

329--was
perceived

that

DuPont

“strategically entered into supply agreements with high-volume
customers

in

the

key

commercially

sustainable

segments . . . that Kolon sought to enter.”
7, 27-28.
and

short

entry

Appellant’s Br. at

Kolon submits that despite the relatively low number
duration

of

DuPont’s

supply

agreements,

these

agreements “choked off the ‘critical bridge’ to Kolon’s entry
into the U.S. market” because they foreclosed Kolon’s access to
the most important high-volume customers.

Id. at 32.

Kolon points to two cases from the Third Circuit which, in
its view, embrace this “critical bridge” approach.

See United

States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005)
(reversing summary judgment, holding that Dentsply’s exclusivity
agreements with key product distributors could deny efficient
36

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 37 of 60

scale to competitors); LePage’s Inc. v. 3M, 324 F.3d 141, 160
(3d Cir. 2003) (en banc) (reversing summary judgment, holding
that 3M’s bundled rebate agreements with superstores like K-Mart
and

Wal-Mart

could

have

cut

LePage’s

off

from

“key

retail

pipelines necessary to permit it to compete profitably”).
While

we

acknowledge

that

a

singular

emphasis

on

the

percentage of customers foreclosed cannot resolve the inquiry
(as foreclosure of a few important customers could substantially
foreclose access to a market), we agree with the district court
that

Kolon

commerce”

in

failed

to

show

the

entire

what

relevant

DuPont’s supply agreements.

“proportionate
market

of

foreclosed

was

volume

by

Tampa Elec., 365 U.S. at 329; see

also DuPont I, 637 F.3d at 451 (discussing the importance of
market share foreclosed).

Likewise, although Kolon’s “critical

bridge” theory is certainly plausible, the evidence does not
support its application here.
Unlike

the

plaintiffs

in

Dentsply

and

LePage’s,

Kolon

offered no evidence that access to the foreclosed customers (or
even to the identified market segments) was necessary to achieve
scale in the broader U.S. para-aramid market.

And even if we

assume the significance of those customers and market segments,
Kolon does not dispute that DuPont had supply agreements with
fewer than half of its identified “key” customers within those
segments.
37

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 38 of 60

Meanwhile, DuPont persuasively distinguishes Dentsply and
LePage’s

based

“critical

on

bridge”

the

fact

cases

that

foreclosed

the
the

defendants

in

plaintiffs’

those

access

to

distribution networks rather than end-customers.

We are not

convinced

distinction

that,

as

Kolon

without a difference.”
observed,

unlike

contends,

this

Reply Br. at 15.

with

Dentsply’s

and

is

“a

As the district court
3M’s

agreements

that

foreclosed access to distribution networks shown to be necessary
to reach many end-customers, “the record presents no reason to
think that Kolon could not sell to other customers occupying the
same segment of the para-aramid market . . . as customers that
have supply agreements with DuPont.”

Kolon, 2012 WL 1155218, at

*18.
In

sum,

we

conclude

that

neither

the

probable

nor

the

actual effect of DuPont’s supply agreements was to “foreclose
competition

in

a

substantial

share

of

the

affected.”

Tampa Elec., 365 U.S. at 327.

line

of

commerce

Accordingly, those

agreements do not violate the willful maintenance prong of our
§ 2 monopolization inquiry.
genuine

issue

of

material

Because Kolon failed to raise a
fact

as

to

either

prong,

summary

judgment was appropriate on its monopolization claim.
B.
We

next

review

the

district

court’s

grant

judgment on Kolon’s attempted monopolization claim.
38

of

summary

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

“Attempted

Pg: 39 of 60

monopolization

employs

‘methods,

means

and

practices which would, if successful, accomplish monopolization,
and which, though falling short, nevertheless approach so close
as to create a dangerous probability of it.’ ”
F.3d

at

453

(quoting

M

&

M

Med.

Supplies

&

DuPont I, 637
Serv.,

Inc.

v.

Pleasant Valley Hosp., Inc., 981 F.2d 160, 166 (4th Cir. 1992)).
To prevail on an attempted monopolization claim under § 2, a
claimant

must

show

(1)

a

specific

intent

to

monopolize

a

relevant market, (2) predatory or anticompetitive acts, and (3)
a dangerous probability of successful monopolization.

Spectrum

Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).
Focusing only on the final two prongs, the district court
found

neither

demonstrate

satisfied

substantial

since

(1)

foreclosure

Kolon
of

the

had

failed

relevant

to

market

resulting from DuPont’s supply agreements, meaning there was no
anticompetitive conduct; and (2) DuPont had lost market share
during the relevant period and had failed to prevent Teijin’s
ascendance,

meaning

there

was

no

dangerous

probability

of

successful monopolization by DuPont.
Kolon first contends that DuPont’s supply agreements were
anticompetitive,

arguing

that

DuPont

entered

these

agreements

against its own interest in order to block Kolon’s market entry.
Appellant’s Br. at 31-32 (citing M & M Med. Supplies, 981 F.2d
at 166 (noting that where “a firm has been attempting to exclude
39

Appeal: 12-1587

rivals

Doc: 60

on

Filed: 04/03/2014

some

basis

other

Pg: 40 of 60

than

efficiency,

characterize its behavior as predatory”)).
probability

of

success”

prong,

Kolon

it

is

fair

to

On the “dangerous

maintains

that

even

if

DuPont’s share of the U.S. para-aramid market did not constitute
actual

monopoly

power,

it

was

at

least

consistent

“dangerous probability” of achieving such power.

with

a

Id. at 23-24

(citing M & M Med. Supplies, 981 F.2d at 168 (4th Cir. 1992)
(“[C]laims involving greater than 50% share should be treated as
attempts at monopolization when the other elements for attempted
monopolization are also satisfied.”)).

And Kolon notes that

even though “DuPont’s market share declined slightly over the
three-year period, that does not, as a matter of law, preclude a
finding of monopoly power, much less a dangerous probability of
achieving it.”

Id. at 24 (citing cases finding monopoly power

despite a declining market share).
But

again,

even

viewing

the

evidence

in

the

light

most

favorable to Kolon, the claim fails.
First, as discussed above, DuPont’s alleged anticompetitive
conduct--its

customer

supply

agreements--did

not

have

the

probable effect of “foreclos[ing] competition in a substantial
share of the line of commerce affected.”

Tampa Elec., 365 U.S.

at 327; see also IIIB Areeda & Hovenkamp, Antitrust Law ¶ 806a,
at

412

(3d

exclusionary

ed.

2008)

conduct

(“[T]he

should

apply
40

same
to

basic

both

definition

of

monopolization

and

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

attempt claims.”).
show

that

business

the

Pg: 41 of 60

Nor, contrary to its suggestion, did Kolon

agreements

justification

or

were

anticompetitive

against

DuPont’s

as

own

without
interest.

Rather, DuPont introduced unrebutted evidence that it entered
the supply agreements as a competitive response to Teijin’s use
of that same practice, and because customers requested them.
Second, Kolon has not raised a genuine issue that DuPont
had a “dangerous probability” of successfully achieving monopoly
power

during

the

relevant

period.

As

the

district

court

observed, DuPont’s market share had been in steady decline for
seventeen years, and DuPont has proven unable to control U.S.
prices or exclude Teijin from entering the market.

And even if

declining market share does not preclude a finding of monopoly
power, Kolon pointed to no affirmative evidence indicating a
“dangerous probability” that DuPont would sooner or later regain
its former market dominance.
Accordingly,

we

affirm

the

district

court’s

grant

of

summary judgment to DuPont on Kolon’s attempted monopolization
claim.

V.
In sum, we conclude that following Owens, recusals under 28
U.S.C.

§ 455(b)

requirement,

and

include
that

a

the

judicially
district
41

implied

court

timely-filing

acted

within

its

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 42 of 60

discretion when it denied Kolon’s recusal motion on timeliness
grounds.
We defer to the district court’s considerable discretion in
overseeing discovery and will not disturb its discovery rulings.
On

the

merits

of

Kolon’s

antitrust

suit,

we

agree

with

the

district court that Kolon failed to raise a triable issue of
material

fact

sufficient

to

sustain

either

its

attempted

or

actual monopolization claims.
The judgment of the district court is hereby
AFFIRMED.

42

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 43 of 60

SHEDD, Circuit Judge, dissenting:
I dissent.

Federal judges have an “absolute duty . . . to

hear and decide cases within their jurisdiction,” United States
v.

Will,

requires
United

449
an

U.S.

200,

absence

States

v.

215

(1980),

of

actual

bias

Werner,

916

F.2d

but
in

the

175,

(internal quotation marks omitted).

“[f]airness

178

trial

of

(4th

.

.

.

cases,”

Cir.

1990)

To that end, “our system of

law has always endeavored to prevent even the probability of
unfairness.”

Id.

(internal

quotation

marks

omitted).

Consistent with this principle, Congress has explicitly created
another

absolute

duty

for

federal

judges:

they

must

recuse

themselves from any case where, “in private practice [the judge]
served as a lawyer in the matter in controversy, or a lawyer
with whom [the judge] previously practiced law served during
such association as a lawyer concerning the matter.”
§ 455(b)(2).

In

creating

this

duty,

Congress

28 U.S.C.

“placed

the

obligation to identify the existence of those grounds upon the
judge himself, rather than requiring recusal only in response to
a party affidavit.”

Liteky v. United States, 510 U.S. 540, 548

(1994).
I thus disagree with the majority’s unwarranted imposition
of a timeliness requirement that shifts the burden of bringing
forward recusal grounds under § 455(b)(2) from the judge to the
litigants.

That

decision

flies
43

in

the

face

of

the

plain

Appeal: 12-1587

Doc: 60

language

Filed: 04/03/2014

and

thwarts

§ 455(b)(2).

the

Pg: 44 of 60

clear

congressional

purpose

It is also inconsistent with our precedent.

of
See

United States v. Lindsey, 556 F.3d 238, 246-47 (4th Cir. 2009).
Even accepting that timeliness plays some limited role under §
455(b)(2),

I

further

disagree

with

the

majority’s

conclusion

that Kolon Industries, Inc. (Kolon), acted in an untimely manner
here.

Rather, Kolon moved for the district judge’s recusal (on

grounds with which the judge was already well aware) within a
reasonable time after being presented with voluminous discovery
that

had

been

(DuPont).

impeded

by

E.I.

DuPont

De

Nemours

&

Company

Finally, in my view, the district judge presiding in

this case falls squarely within the terms of § 455(b)(2) in both
this appeal and the companion appeal,

E. I. DuPont De Nemours &

Co. v. Kolon Industries Inc., No. 12-1260 (Trade Secrets Case).
I would thus vacate the summary judgment order in this appeal
and remand for further proceedings.
I.
I begin with a brief recitation of the pertinent facts.
DuPont has commercially produced para-aramid fibers under the
name Kevlar© since the 1970s.
worldwide

litigation

para-aramid

fiber,

with

In the 1980s, DuPont engaged in

Akzo

Twaron©,

N.V.,

including

which
a

sold

case

a

filed

Eastern District of Virginia (the Akzo litigation).

competing
in

the

In that

litigation, DuPont was represented by McGuire Woods & Battle
44

Appeal: 12-1587

Doc: 60

(now

Filed: 04/03/2014

McGuireWoods)

and

(Fitzpatrick Cella).

Pg: 45 of 60

Fitzpatrick,

Cella,

Harper

&

Scinto

During the time of the litigation, the

district judge below was a partner at McGuireWoods’ Richmond
office.

Documents reflect that during the Akzo litigation the

district judge spoke with co-counsel from Fitzpatrick Cella on
the phone and sent a letter with a copy of Akzo’s complaint
attached to him.
In

2009,

DuPont

instituted

this

action

against

Kolon,

arguing that Kolon misappropriated its trade secrets.
majority
court,
judge’s

recounts,

issued
prior

a

the

brief

district

partnership

at

through

informing

notice

judge,

the

McGuireWoods

As the

the

clerk

parties

of

the

instructed

the

and

of

parties to move for recusal if they believed it was warranted.
The judge took no further action on the issue.

Kolon filed an

answer and a counterclaim, contending that DuPont’s actions in
the market for para-aramid fibers violated the antitrust laws.
In

August

2009,

early

in

discovery,

Kolon

sought

access

to

documents from the Akzo litigation, believing that DuPont had
made public the trade secrets it was now claiming Kolon had
misappropriated.

DuPont’s counsel (McGuireWoods) informed Kolon

that

documents

it

had

no

from

the

Akzo

litigation.

Kolon

renewed this request prior to the close of discovery in April
2010

and

documents.

was

again

informed

Undeterred,

that

after

the

45

McGuireWoods
close

of

possessed

discovery

no

Kolon

Appeal: 12-1587

served

Doc: 60

a

Filed: 04/03/2014

subpoena

on

Pg: 46 of 60

Fitzpatrick

Cella,

which

revealed

that

Fitzpatrick Cella did have documents from the Akzo litigation.
These materials were turned over to Kolon in August 2010.

The

involvement of the district judge, including the letter he sent
to Fitzpatrick Cella, was not highlighted, but was part of a
roughly 59,000 page production.
While the district judge was not made aware of the letter
until July 2011, it cannot be disputed that throughout discovery
the judge was aware that Kolon intended to defend itself against
DuPont’s claims by contending that DuPont had publicized the
trade secrets in the Akzo litigation.

Upon being informed of

the letter in July 2011, prior to trial in the trade secrets
case and prior to severance of the antitrust claims, 1 the judge
stated

that

he

had

“no

recollection

involvement in that litigation.

whatsoever”

(J.A. 689).

of

any

As the majority

further recounts, the judge refused to rule on recusal until
Kolon formally filed a motion for recusal in both the trade
secrets and the antitrust case.
Eventually, the trade secrets claims proceeded to trial and
culminated in a jury award of $919.9 million.

The district

judge later entered a twenty-year worldwide production shutdown
1

The antitrust claims, which are the subject of this
appeal, were severed from the trade secrets claims in September
2011.

46

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 47 of 60

injunction against Kolon and granted DuPont’s motion for summary
judgment on the antitrust claims.
II.
Section 455(b) provides that recusal is mandatory, inter
alia,

“[w]here

in

private

practice

[the

judge]

served

as

a

lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a
lawyer

concerning

the

matter.”

28

U.S.C.

§ 455(b)(2).

Mandatory recusal is not waivable by the parties.
§ 455(e).

28 U.S.C.

The majority concludes that, although not waivable, a

mandatory recusal under § 455(b) is nonetheless subject to a
stringent timeliness requirement and that Kolon simply waited
too long in this case.
The

majority’s

for several reasons.

I disagree.

timely-filing

requirement

is

misconstrued

First, it simply constitutes the addition

of words to the statute.

“When interpreting statutes we start

with the plain language.”

U.S. Dep’t of Labor v. N.C. Growers

Ass’n,

377

F.3d

345,

350

(4th

Cir.

2004).

“It

is

well

established that when the statute’s language is plain, the sole
function of the courts-at least where the disposition required
by the text is not absurd 2-is to enforce it according to its

2

The majority’s reference to the absurdity canon is
misplaced.
There is nothing absurd about my reading of
§ 455(b)—as discussed infra, given the purpose of the statute,
(Continued)
47

Appeal: 12-1587

Doc: 60

terms.”

Filed: 04/03/2014

Pg: 48 of 60

Lamie v. United States Tr., 540 U.S. 526, 534 (2004)

(internal quotation marks omitted).
§ 455(b)

could

requirements.”
Cir. 1980).
120

(5th

not

be

plainer;

it

The statutory language of
“sets

forth

no

procedural

United States v. Sibla, 624 F.2d 864, 867 (9th
See also Delesdernier v. Porterie, 666 F.2d 116,

Cir.

1982)

(noting

that

“even

after”

statutory

amendments in 1974 Ҥ 455 still contains no explicit procedural
requirements”).

Congress’

omission

of

any

reference

to

a

timely-filed motion as a prerequisite to § 455(b) recusal should
end our inquiry. 3

After all, “[w]e do not lightly assume that

it is entirely plausible that Congress did not intend to impose
a timely-filing requirement.
The absurdity canon allows courts
to disregard statutory text when adhering to the text “would
result in a disposition that no reasonable person could
approve.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 234 (2012). But the canon “can be
a slippery slope. It can lead to judicial revision of public and
private texts to make them (in the judges' view) more
reasonable.” Id. at 237. The hurdle for invoking the canon is
thus “a very high one.” Id. The fact that there is a “plausible
reason[]” for omitting a timely-filing requirement in § 455(b)
“forecloses recourse to the absurdity canon.”
Little v. Shell
Exploration & Prod. Co., 690 F.3d 282, 291 (5th Cir. 2012).
3

The majority compounds its error by requiring not only
that recusal be raised in a timely fashion by the parties, but
that recusal be raised in a formal motion.
As noted, § 455(b)
includes no procedural requirements.
Moreover, the requirement
of a motion is further undercut by the existence of 28 U.S.C.
§ 144. That statute provides:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a
(Continued)
48

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 49 of 60

Congress has omitted from its adopted text requirements that it
nonetheless intends to apply.”

Jama v. Immigration and Customs

Enforcement, 543 U.S. 335, 341 (2005).
Second, as if this silence were not enough, § 455 contains
two

additional

signals

required

under

mandatory

recusals

accepting

that

that

§ 455(b).
may

not

“waiver

and

a

timely-filed

First,
be

§

waived

timeliness

455(e)
by

the

are

motion

is

provides
parties.

distinct

not
that
Even

issues,”

United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989), the
non-waiver of § 455(b) recusals reinforces the mandatory nature
of the section; if the presiding judge has a triggering event
under § 455(b), the judge is disqualified and must recuse even
if the parties oppose his recusal.

Second, § 455(f) provides

personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists, and
shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be
heard, or good cause shall be shown for failure to
file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by
a certificate of counsel of record stating that it is
made in good faith.
Section 144, which was in existence at the time Congress
amended § 455, clearly illustrates that Congress knew how to
require a formal filing raising a judge’s bias or prejudice and
declined to do so in § 455(b).

49

Appeal: 12-1587

Doc: 60

yet

Filed: 04/03/2014

another

signal.

“[n]otwithstanding”

the

Pg: 50 of 60

That
statute’s

provision
preceding

states

that,

provisions,

if

a

judge has invested “substantial judicial time” “to the matter”
and then discovers that he has a financial conflict of interest
under

§ 455(b)(4),

“divests

himself

§ 455(f).

the
or

This

judge

may

herself

in

the

the

case

interest.”

represents

provision

of

remain

28

Congress’s

if

he

U.S.C.

response

to

judicial economy concerns, and, importantly, it is limited to a
single

provision

specifically
efficiency

to

of

§ 455(b).

this

are

less

one

The

area

fact

important

than

Congress

that

suggests

that

timeliness

ensuring

spoke

that

and
the

impartiality of the judiciary is upheld.
In addition, I believe a timely-filing requirement subverts
the statute’s intent.

Section 455 serves to “promote public

confidence in the integrity of the judicial process.”
v.

Health

(1988).

Acquisition

Corp.,

486

U.S.

847,

858

n.7

See also Delesdernier, 666 F.2d at 121 (noting statute

serves

“to

removing
“Put

Servs.

Liljeberg

increase

even

simply,

the

public

confidence

appearance

avoiding

the

of

in

the

impropriety

appearance

of

or

judiciary

by

partiality”).

impropriety

is

as

important in developing public confidence in our judicial system
as avoiding impropriety itself.”
F.3d 152, 155-56 (5th Cir. 1995).

50

United States v. Jordan, 49
The statute was amended in

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 51 of 60

1974 4 to harmonize § 455 with existing law by “clarify[ing] and
broaden[ing] the grounds for judicial disqualification and to
conform with the recently adopted ABA Code of Judicial Conduct,
Canon 3C (1987).”

Liljeberg, 486 U.S. at 858 n.7.

These codes

of conduct exist independently of § 455 and must be followed by
judges absent action by a party.

Indeed, our entire recusal

system

that,

is

based

upon

the

notion

when

the

judge

has

information that triggers one of the subsections of § 455(b),
that

judge

will

recuse

urging by a party.

himself

or

herself

regardless

of

any

In recognition of this fact, § 455 “is

directed to the judge, rather than the parties, and is selfenforcing on the part of the judge.”
Thus,

if

section

the
455,

herself.”

judge
that

“is

aware

judge

has

Id. at 868.

of
a

Sibla, 624 F.2d at 867-68.
grounds

duty

to

for

recusal

recuse

under

himself

or

While these provisions “may be asserted

also by a party to the action,” the primary duty remains with
the judge.
4

United States v. Conforte, 624 F.2d 869, 880 (9th

Prior to the 1974 amendments the statute provided:

Any justice or judge of the United States
disqualify himself in any case in which he
substantial interest, has been of counsel, is
been a material witness, or is so related
connected with any party or his attorney as to
it improper, in his opinion, for him to sit
trial, appeal, or other proceeding therein.
28 U.S.C. § 455 (1970 ed.).

51

shall
has a
or has
to or
render
on the

Appeal: 12-1587

Doc: 60

Cir. 1980). 5
the

majority,

Filed: 04/03/2014

Pg: 52 of 60

The timely filing requirement, as implemented by
pivots

responsibility

from

the

judges

to

the

litigants when that duty and responsibility should lie with us.
As the Federal Circuit has explained:
Application of a “timeliness” requirement requires a
fixed point or bench mark from which the timeliness or
untimeliness of an action can be measured (e.g. 10
days after event X; before event Y). There is no such
provision anywhere in section 455.
Nor could there
be.
The statute deals only with action of a judge.
It has nothing to do with actions of counsel.
Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1418 (Fed.
Cir. 1989) (emphasis added).
Finally, to the extent one insists that timeliness should
play a role in recusal, I agree with Kolon that the role should
be tied to equitable considerations and limited in scope.

In

fact, the earliest cases applying a timeliness requirement were
concerned primarily with parties’ gamesmanship after losing a
case.

For instance, in York, 888 F.2d at 1055, cited by the

majority, the court noted that a timeliness requirement served
to

“proscribe

completed

motions

trial”

and

that

would

chastised

have

parties

invalidated
that

would

a

fully

sit

on

information gleaned prior to trial until the trial’s outcome.
5

To this end, we require parties to file a Corporate
Disclosure Statement under Federal Rule of Appellate Procedure
26.1 so that we can generate our own disqualifications; we do
not require each party in every appeal to file a motion
requesting the recusal of certain judges.

52

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 53 of 60

See also Conforte, 624 F.2d at 879-880 (finding recusal motion
untimely where information was learned prior to trial but not
raised until after trial); Stone Hedge Props. v. Phoenix Capital
Corp., 71 Fed. App’x 138, 141 (3d Cir. 2003) (motion untimely
when party learned of information prior to judgment but recusal
was not raised until five years later, well after judgment and
appeal); Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334
(2d Cir. 1987) (noting whether motion was “made after the entry
of judgment” is one of four factors in determining if request
was timely).

A timeliness requirement in such circumstances—

where a party learns of information that the judge does not (or
may

not)

possess

litigation
equity.

but

then

strategy—makes

sits

sense

on

as

a

that

information

matter

of

as

fairness

a
or

Thus, in most of these cases “[t]he refusal of courts

to ‘start over’ has rested not on the mere passage of time, but
on

the

events

equity/fairness

that

had

occurred

considerations

in

those events from history’s pages.”

and

deciding

the

balancing

whether

to

of

expunge

Polaroid Corp., 867 F.2d at

1419.
Applying such a limited rule here leads inescapably to the
conclusion that Kolon acted in a timely fashion.

As recounted

above, DuPont impeded the discovery of Akzo documents and turned
over voluminous discovery that did not highlight the district
judge’s role in the prior litigation.
53

Moreover, at all times

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 54 of 60

the district court was aware that Kolon was pursuing discovery
of

the

Akzo

litigation.

Given

these

circumstances,

Kolon’s

specific raising of recusal prior to trial in the trade secrets
claims is sufficiently timely under § 455(b)(2).
The

majority

reaches

the

opposite

conclusion

by

misconstruing, and then incorrectly relying on, United States v.
Owens, 902 F.2d 1154, 1155 (4th Cir. 1990). 6

In my view, Owens

is limited to recusals under § 455(a) and has no relevance to
cases,

like

provides

this

that

proceeding

a

in

questioned.”

one,

involving

§ 455(b).

“shall

disqualify

judge

which

his

impartiality

28 U.S.C. § 455(a).

Section
himself

might

455(a) 7
in

reasonably

any
be

Owens itself relied on a case

interpreting only § 455(a), see Delesdernier, 666 F.2d at 121, 8
and our cases citing to Owens’ timeliness requirement have all
arisen

under

§

455(a),

see

Newport

News

Holdings

Corp.

v.

6

The majority also relies, in part, on the decisions of our
sister circuits imposing a timeliness requirement.
Of course,
“agreement among courts of appeals on an issue . . . does not
invariably garnish Supreme Court approval.”
McMellon v. United
States, 387 F.3d 329, 361 (4th Cir. 2004) (en banc) (Motz, J.,
dissenting). Given the plain language of § 455(b), I find these
decisions unpersuasive.
7

This section, like § 455(b) has no specific timeliness
requirement.
Nonetheless, for purposes of this case, I accept
that the language is more susceptible to a requirement that the
party raise the issue with the judge and that such a requirement
is mandated by Owens.
8

In fact, Delesdernier specifically reserved the timeliness
question under § 455(b). See Delesdernier, 666 F.2d at 123 n.3.

54

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 55 of 60

Virtual City Vision, Inc., 650 F.3d 423, 432 (4th Cir. 2011);
United States v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008).
Conversely, of more relevance here is United States v. Lindsey,
556 F.3d 238, 246-47 (4th Cir. 2009).

In Lindsey, the district

judge

Assistant

had

previously

worked

as

an

United

States

Attorney on the criminal defendant’s case more than a decade
earlier.
U.S.C.

For the first time on appeal of the denial of his 18
§3582(c)

motion,

potential

recusal

Although

the

recusal

was

the

district

participation,
participation

of

and
at

no
that

thus

the

criminal

district

judge

one

time

required.

judge

was

brought
is
Id.

defendant
under

unaware

it

to

nonetheless
at

247.

the

§ 455(b)(3).

of

his

raised

his

prior

attention,

“his

undisputed,”

and

In

reaching

this

result, we included neither a citation to Owens nor a discussion
of timeliness.

Instead, we simply concluded that, because the

district

fell

judge

within

§ 455(b),

regardless of when the issue was raised.

recusal

was

required

Thus, contrary to the

majority, I believe our most relevant precedent supports the
conclusion that timeliness is not relevant under § 455(b). 9

9

The majority misapprehends the importance of Lindsey.
According to the majority, Owens mandates a timely-filing
requirement in all § 455 cases.
In Lindsey, although the
recusal issue was not raised until appeal, there is no
discussion about timeliness, which is wholly consistent with my
view that timeliness is irrelevant to § 455(b) cases because
they hinge on the mandatory nature of the recusal, not the
(Continued)
55

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 56 of 60

In sum, the rule employed by the majority—that a recusal
motion is timely only if raised “at the earliest moment after
[its] knowledge of the facts,” (Majority Op. at 22), regardless
of whether any delay was caused by gamesmanship or whether it
was

raised

early

enough

in

the

litigation

that

no

prejudice

would result—is incompatible with the language and purpose of
§ 455(b) and is not required by our precedent.
the

point.

The

district

judge

knew,

from

This case proves
the

outset

of

litigation, that his prior law firm was representing a client
that it represented when he was partner.

As discovery began,

the judge had before him multiple requests from Kolon to look
into the Akzo litigation and pleadings and filings, indicating
that the Akzo litigation was central to Kolon’s defense on the
merits of the trade secrets claims.

This is not a case in which

a party discovered, for instance, financial information that the
judge was unaware of and sat on that information until after
trial.

In this case the judge was, at all times, aware of the

facts relevant to recusal under § 455(b)(2) and it was up to the

timely raising of it.
If timeliness was as important in all §
455 cases, as the majority suggests, surely the issue would have
at least been identified in Lindsey.
Lindsey’s silence on
timeliness only reinforces the case’s thorough discussion of
recusal under § 455(b) as a mandatory proposition.

56

Appeal: 12-1587

judge

Doc: 60

to

Filed: 04/03/2014

self-enforce

those

Pg: 57 of 60

statutory

provisions. 10

To

the

extent any burden is placed on Kolon, it satisfied that burden
by

raising

the

issue

in

July,

prior

to

trial

on

the

trade

secrets claims.
At the end of the day, the majority’s determination that
Kolon’s recusal requests were untimely means that a district
judge who, by the majority’s own determination, is no longer
permitted
secrets

to

conduct

claims,

further

presided

proceedings

over

a

trial

involving

that

ended

the
in

trade
a

one

billion dollar verdict and a twenty-year worldwide production
shutdown injunction.

Such a result does not, I think, inspire

public confidence in the judiciary.

The majority’s rule leaves

judges with no enforceable duty to remove themselves from cases
absent action by a party.

This result cannot be squared with

the statute’s purpose or language.
III.
Having

concluded

that

Kolon’s

request

is

appropriately

before this court, I now address whether recusal was required

10

My opinion should not be read to suggest that the
district judge engaged in actual bias or impartiality in this
case.
Rather, the purpose of § 455(b)(2) is to disqualify
judges, even if they have no actual bias in a particular case,
because of the great risk of the appearance of bias or
impartiality in a certain set of cases. That appearance is the
issue in this case.

57

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

under § 455(b)(2). 11

Pg: 58 of 60

We have held that a judge “need not recuse

himself simply because he possesses some tangential relationship
to the proceedings.”
(4th Cir. 2003).

United States v. Cherry, 330 F.3d 658, 665

In this case, however, the district judge had

more than a “tangential” relationship.
Our precedent establishes that the “matter in controversy”
includes more than the claims brought by DuPont.

In In re

Rodgers, 537 F.2d 1196 (4th Cir. 1976), the criminal defendants
were charged with using illegal means to procure the passage of
a

racetrack

judge’s

consolidation

former

individuals

who

law

firm

were

not

similar lobbying efforts.

bill

had

in

Maryland.

represented

criminally

a

The

presiding

separate

charged

but

group

of

engaged

in

The criminal defendants thus argued

that the judge should recuse; as part of this argument, the
defendants argued that they were intending to have his former
law partner (and some of the clients) testify as to the means
they undertook to gain passage of the consolidation bill.

The

Government opposed recusal, contending that the “matter” was not
the “matter in controversy” because it was not the “actual case
before the court.”

Id. at 1198.

11

Even accepting that reading of

The majority declines to address this issue, yet in the
companion case, uses its “supervisory powers” under 28 U.S.C. §
2106 to remand the case for further proceedings before another
district judge. See Trade Secrets Case at 15-16.

58

Appeal: 12-1587

Doc: 60

Filed: 04/03/2014

Pg: 59 of 60

the statute, we found recusal was required because “the actual
case before the court consists of more than the charges brought
by the government.
accused.”

Id.

It also includes the defense asserted by the

In that case, recusal was thus triggered because

the defendants’ proposed defense “in part at least, will consist
of

evidence

of

matters

served as a lawyer.”

in

Id.

which

the

judge’s

former

partner

See also Preston v. United States,

923 F.2d 731, 733-35 (9th Cir. 1991) (finding §455(b)(2) matter
in

controversy

requirement

satisfied

when

judge’s

former

law

partners represented a company that was not a party to the court
case but might be liable in an indemnification proceeding if the
plaintiffs prevailed in the underlying case).
As Rodgers makes clear, Akzo is a matter in controversy in
this action.

Kolon’s defense to DuPont’s trade secrets claims

is that DuPont made public many of these secrets during the Akzo
litigation.

It cites to, including other materials, a letter

from DuPont’s counsel, McGuireWoods, stating that DuPont agreed
to “totally declassify all trial exhibit documents, all proposed
findings

of

fact

and

submitted to the Court.”
court

excluded

reversible

this

error.

all

deposition

and

(J.A. 12-1260 at 13347).

evidence—an
See

excerpts

Trade

exclusion

Secrets

we

Case

The district

today

at

summaries

rule

14-15.

was
This

evidence, so pertinent to Kolon’s defense, makes Akzo a matter
in controversy.
59

Appeal: 12-1587

Doc: 60

DuPont

Filed: 04/03/2014

contends—at

least

Pg: 60 of 60

as

to

this

appeal—that

the

antitrust claims are too attenuated from Akzo to be the same
matter in controversy.

In reality, this litigation is all the

same action and the same case.

Moreover, in my view, recusal

was required, at the very latest, by July 2011, prior to the
severance

of

the

trade

secret

claim

from

the

counterclaim, which occurred on September 21, 2011.

antitrust
Thus, the

district court’s mandatory recusal in the trade secrets claims
likewise mandates recusal on the antitrust counterclaims brought
by Kolon.
IV.
For the foregoing reasons, I would vacate summary judgment
and

remand

judge.

for

new

proceedings

I therefore dissent.

60

before

a

different

district