Centripetal Networks, Inc. v. Cisco Systems, Inc.

Filing 619

OPINION AND ORDER denying #551 Motion for Miscellaneous Relief. Signed by District Judge Henry C. Morgan, Jr., on 10/2/20. (bpet, )

Case 2:18-cv-00094-HCM-LRL Document 619 Filed 10/02/20 Page 1 of 15 PageID# 23869

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

OCT - 2 2020

Norfolk Division

CLERK. U.S. DISTRICT COURT

CENTRIPETAL NETWORKS,INC.,

NORFOLK. VA

Plaintiff,
Civil Action No. 2;18cv94

V.

CISCO SYSTEMS,INC.,
Defendant.

OPINION AND ORDER

This matter is before the Court on Cisco Systems, Inc.'s, ("Cisco") Motion for
Miscellaneous Relief. In its motion, Cisco argues that recusal is mandatory under 28 U.S.C §
455(a) and (b)(4).
I. BACKGROUND

While presiding over this case, the Court has made Cisco and Centripetal's counsel aware
of any possible conflict. The first disclosure came on March 2, 2020, where the Court's former
law clerk, Neil McBride, entered the case on behalf of Cisco. The Court promptly notified the

parties and disclosed that the Court had "visited Neil's home and he has visited mine and we
have had family dinners together many times over the years." Counsel for both parties responded
that recusal was not necessary as a result of Mr. McBride's representation of Cisco. Next, during
the pre-trial conference, the Court disclosed that it had purchased 200 shares of Zoom stock

based on a recommendation by a service over the internet. At that time, neither party objected to
the ownership of Zoom stock. Thereafter, the Court conducted a bench trial "spanning nearly
eight weeks over Zoom, producing a 3,507-page record with twenty-six witnesses and over 300

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exhibits." Doc. 564 at 2. As a result of an enormous variation in damages calculations by the

opposing damages experts, the Court request additional data relevant to damages and after
receipt ofthis information the Court heard final arguments on June 25,2020.
On August 11, 2020, the Court's administrative assistant discovered during preparation
of the Court's judicial financial disclosure reporting that the Court's spouse owned 100 shares of
Cisco stock valued at $4,687.99 and advised the Court. The Court promptly investigated the

issue and confirmed that the shares were purchased as a result of her brokers recommendation.

The Court's spouse had no independent recollection of approving the transaction. The next day,
August 12,2020,the Court disclosed the existence of the shares to the parties.

Court's Email

to Counsel [Attached as Ex. One]. The Court detailed that "full draft of my opinion had been
prepared before I received this information yesterday. Virtually every issue was decided prior

thereto." Id Also explaining that the shares "did not and could not have influenced my opinion
on any of the issues in this case." Id Centripetal quickly notified the Court that it had no

objection based on the representations by the Court. Cisco responded, nine days later, by filing

the instant motion for recusal. The Court ordered a response by Centripetal, ifthey be so advised.
Centripetal responded by objecting to Cisco's motion and Cisco filed a rebuttal brief. The Court
conducted a hearing on the motion and heard oral argument on September 9, 2020. At the
hearing, the Court informed the parties that he had discussed the issue with his spouse and, as a
result, the Court contacted their personal attorney to request the creation of a blind trust to divest

the shares. The Court provided the completed trust documents to the parties at the hearing
Moreover, at the hearing on Cisco's current motion, the Court disclosed a previous

purchase by the Court and his spouse of 100 shares each of Crowdstrike stock. Similar, to Zoom,
Crowdstrike was purchased on the basis of a recommendation of an internet service. The Court

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later discovered that Crowdstrike primarily engaged in the business of developing cybersecurity
technology and had a previous intelligence sharing agreement with Centripetal.

PTX-1600.

After learning of this information, the Court and his spouse divested their shares in Crowdstrike.
Due to the indirect nature of Crowdstrike as a potential competitor of both parties, the Court did
not disclose this transaction until the hearing date.
11. LEGAL STANDARD AND ANALYSIS

28 U.S.C § 455(a)requires that ajudge ofthe United States "shall disqualify himselfin
any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
The next section ofthe statute, 455(b)lays out specific circumstances where recusal is required.
Section 455(b)(4)lays out one ofthese circumstances at issue here where:

He knows that he. individually or as a fiduciary, or his spouse or minor child residing in
his household, has a financial interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially affected by the outcome
ofthe proceeding
28 U.S.C § 455(b)(4)(emphasis added). In its rebuttal brief, Cisco argues that the Court should
have immediately recused itself and it should not have been required to file its initial motion to
recuse.

Under section 455, "[a] judge is as much obliged not to recuse himself when it is not
called for as he is obliged to when it is." Muchnick v. Thomson Corp. Tin re Literarv Works in

Elec. Databases Convrieht Litig.k 509 F.3d 136, 140 (2d Cir. 2007). Therefore, in deciding a
motion for recusal under section 455,judges "must balance our duty to appear impartial against

several practical considerations, including the availability of other judges, the cost in judicial
resources of recusal and reassignment of the case to different judges, and the interest of the

parties and the public in a swift resolution ofthe dispute." Id (citation omitted).

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In analyzing section 455, the Supreme Court in Lilieberg v. Health Services Acquisition
Corp.. held that scienter is not a requirement of 455(a), but is a requirement of 455(b)(4).
Lilieberg v. Health Services Acq. Corp.. 486 U.S. 847, 859 (1988). Therefore, recusal under

section 455(b)(4) imposes "actual knowledge" of the disqualifying financial interest. C. Tel. Co.
of Virginia v. Sprint Commun. Co. of Virginia. Inc.. No. 3:09CV720, 2011 WL 6178652, at *5
(E.D. Va. Dec. 12,2011)(collecting cases imposing the "actual knowledge" test), affd. 715 F.3d
501 (4th Cir. 2013)(on other grounds). However, the test for recusal under section 455(a), is

"when a reasonable person, knowing the relevant facts, would expect that a justice, judge, or
magistrate knew of circumstances creating an appearance of partiality." Id at *7 (quoting

Lilieberg. 486 U.S. at 850). Therefore, for section 455(a),"recusal is required even when ajudge
lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable
person, knowing all the circumstances, would expect that the judge would have actual

knowledge." Lilieberg. 486 U.S. at 860-61. The Court will first address recusal under 455(a) and
then turn to 455(b)(4).
i. Section 455(a)

The Second Circuit, in Chase Manhattan explained that disqualification is required when

"(i) a reasonable person, knowing all the facts, would conclude that the judge has a disqualifying
interest in a party under Section 455(b)(4), and (ii) such a person would also conclude that the
judge knew of that interest yet heard the case." Chase Manhattan Bank. 343 F.3d at 128.

Accordingly, recusal under section 455(a) is an objective test looking at "what a reasonable
person knowing all the facts would conclude." C. Tel. Co. of Virginia. 2011 WL 6178652, at *7

(quoting Chase Manhattan Bank v. Affiliated FM Ins. Co.. 343 F.3d 120, 127(2d Cir. 2003)).

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Cisco, in its motion for recusal, contends that in light of"the Court's decision to order it

to trial in unusual circumstances, and its featuring as a topic of marital conversation, a reasonable
observer is likely to conclude that, at the very least, the Court 'should have known' of the
ownership of Cisco stock when the purchase occurred in October 2019 . . .

Doc. 557 at 8.

Moreover, Cisco avers that the requirement of a judge to take "reasonable efforts inform himself
about the personal financial interests of his spouse" under section 455(c) would have allowed the
Court to uncover this interest back in October of 2019.

id at 7. Cisco's contention is that a

reasonable inquiry would have revealed the stock interest before trial of the case. It specifically
suggests that "any such process—^whether it involved preclearing stock purchases before they
happen; monitoring purchase confirmation documents as they are issued; or reviewing brokerage
statements showing stock holdings—^would have revealed the Cisco stock holding shortly after

the purchase." Doc. 557 at 7. Cisco argues that a reasonable person would conclude that the
Court should have been known because the "purchase confirmation was addressed to the Court's

spouse at home" and "the Court has 'frequently' mentioned Cisco and Centripetal to the Court's
spouse." Id at 7. Accordingly, Cisco argues "[a] reasonable observer would believe that—

pursuant to a 'reasonable effort' to ascertain investments by the Court's spouse—^the Court
would have done more than simply complete its annual disclosure." Doc. 569 at 6.

Centripetal, in opposition, responds that the facts presented would not lead a reasonable
person to conclude that the Court knew of this interest but proceeded despite that interest.
Centripetal notes the "touchstone of the inquiry is reasonableness, not exhaustive and constant

vigilance to the point of reviewing mail separately addressed to judges' spouses, as Cisco
proposes." Doc. 564 at 8. Centripetal argues that the inquiry is judged on a reasonableness
standard and reasonableness is confirmed by the legislative history of the section 455

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highlighting that "the judge need not know what they are [his spouse's investments], but must
merely make a reasonable effort to inform himself of their investments." Id.(quoting H.R. Rep.

No. 93-1453 (1974), 1974 U.S.C.C.A.N. 6351, 6356) (emphasis added).' Accordingly,
Centripetal concludes "[ejither way, Cisco's unsupported insinuations do not establish an
appearance of bias under Section 455(a)." Id The Court agrees with Centripetal. The Court

FINDS that a reasonable person would not conclude that the Court knew of his spouse's
ownership and proceeded to hear the case nonetheless, where the Court avers he was notified
about the stock during the preparation of his annual financial disclosures and immediately
notified counsel.

The factually similar case of Central Telephone Co. of Virginia v. Sprint Commun. Co.
of Virginia. Inc.. 3:09CV720, 2011 WL 6178652, at *5 (E.D. Ya. Dec. 12, 2011) is particularly
persuasive. In Central Telephone, "at a time when the preparation of the opinion on Sprint's

counterclaim was underway and when the presiding judge was preparing the annual financial
disclosure statement required of federal judges, the presiding judge became aware that, at all

times during which he had presided over this action, he owned stock in CenturyLink
[Plaintiffs]." C. Tel. Co. of Virginia. 2011 WL 6178652, at *1."As soon as the presiding judge
realized that he owned the CenturyLink stock, he informed the parties of the situation during a
conference call." Id at *2. Therefore, the Court promptly notified that parties that "he was
unaware" of the share's ownership during the proceedings at issue. Id at *8. The court

determined there that "a reasonable person would understand that it would be unlikely for a

'Specifically, Centripetal states:
what about the importance ofthis case or the Court's mentioning of Cisco during discussions with his wife
should have put the Court on notice of his wife's forgotten financial transaction facilitated by her separate
broker? Cisco does not say. Surely Cisco is not arguing that a reasonable observer would believe that the
Court's wife does remember her interest and disclosed it to the Court during these conversations and the
Court is now lying.
Doc. 564 at 9.

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judge, who has all along known about his ownership of disqualifying stock, to suddenly bring

that ownership to the parties' attention after devoting many weeks of his time to deciding a
complex jurisdictional motion, to resolving summary judgment motions, to presiding over two
trial sessions, and to preparing findings offact and conclusions oflaw." Id
These facts are directly analogous to the situation presented here. After teaming of his
spouse's financial interest while preparing annual financial disclosures, the Court promptly
notified counsel that he was unaware that his spouse had purchased shares of Cisco stock. A
reasonable person would find it unlikely that a judge would now disclosure his spouse's

ownership of disqualifying stock after devoting months of his time engaging in mling of pre-trial
motions, holding a Markman hearing, and conducting an almost six-week bench trial while
drafting findings of fact and conclusions of law that total over 150 pages. Like Central

Telephone, the circumstances presented here make it difficult to believe that a reasonable person
viewing these facts would conclude that the Court "knew of that interest yet heard the case." See

Chase Manhattan Bank. 343 F.3d at 128. Cisco, both in their reply brief and on oral argument,
noted that Central Telephone is inapplicable because the Fourth Circuit affirmed Central
Telephone on the grounds that the stock interest fell under the mutual fund exception outlined in
section 455(d)(4)(i).

C. Tel. Co. of Virginia v. Sprint Commun. Co. of Virginia. Inc.. 715

F.3d 501, 516(4th Cir. 2013). The fact that the Fourth Circuit found that the interest fell under a
safe harbor provision of the statute, which is not applicable here, does not distract from the
persuasiveness of a decision that found recusal, under similar facts, was unwarranted. S^ C. Tel.
Co. of Virginia. 2011 WL 6178652, at *8.

Furthermore, Cisco argues that the factual situation presented here is more akin to that in

other cases where recusal was warranted. Specifically, Cisco argues that the reasoning in Central

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Telephone "cannot be reconciled with either Chase Manhattan or Shell Oil; each judge in those

cases also 'brought [the] financial interest to the parties' attentionJust after [they] discovered the

ownership,' and would have been no more likely to 'run the risk of impeachment or perhaps
prosecution for knowingly deciding a case from which he knew he should have recused
himself" However, the factual circumstances in both Chase Manhattan and Shell Oil are quite
different than presented in this case.
In Chase Manhattan, the Second Circuit found that the objective observer would have

concluded that the presiding judge knew of his ownership in stock where as a result of a merger
the stock was not held in the name of the party to the case but was purchased in the name of the
previous company. There, "the merger was widely publicized, the judge received letters from

officials from the new company (in which he held the stock) on that company's letterhead during
litigation, witnesses at trial discussed the merger, and the judge's opinion containing his findings
of fact referred to the newly merged company as a party." C. Tel. Co. of Virginia. 2011 WL
6178652, at *9 (discussing Chase Manhattan). None of those circumstances are present here.
Therefore, there was no indication the Court at any point in this case knew that his spouse had
purchased Cisco before review of his financial reports. Accordingly, this case is factually distinct
from Chase Manhattan.

Turning to Shell Oil, the Federal Circuit found that the presiding judge had actual
knowledge of his wife's stock ownership in a party for purposes of determining a section
455(b)(4) violation. In that case, the weight of prompt disclosure of an interest under the

reasonable observer standard was never discussed because the court was not analyzing the
motion under the standard for 455(a) but instead was dealing with 455(b)(4).

Shell Oil Co. v.

U.S.. 672 F.3d 1283, 1289 (Fed. Cir. 2012)(noting "the subsection at issue here" is 455(b)(4)).

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Additionally, in Shell Oil, the record reflects knowledge of his wife's financial interest in

Chevron at least as early as May 15, 2009 when he completed his certified Financial Disclosure
Report disclosing an interest in "Chevron Texaco Stock.'" Id at 1291. This "May 15, 2009

disclosure date post-dates the trial judge's February 2, 2008 and March 31, 2009 opinions

addressing the oil companies' motions for summary judgment as to liability and damages, it pre
dates his September 28, 2009 decision denying the government's motion for reconsideration vdth
respect to damages, as well as his October 30, 2009 entry of final judgment." Id The presiding
judge in Shell Oil, notified the parties of his knowledge of the interest on November 16, 2009,

six-months after completing his disclosure report. Shell Oil involved a six-month period without
disclosure and during that period the presiding judge continually made decisions in the interim
after actual knowledge of the interest. This is factually distinct that the situation presented here
where the Court made immediate disclosure to the parties and had already decided virtually all
issues in the bench trial.

Finally, Cisco frequently cites Lilieberg v. Health Services Acq. Corp.. 486 U.S. 847
(1988) as support that recusal is warranted. This is another case where the factual circumstances

are drastically different. Centripetal highlights these differences in their opposition motion noting
the judge there:

(1) sat on the Board of Trustees of an interested party, yet somehow forgot about its
interest in land that was purchased for over $6 million dollars and stood to increase its
value by 60% when the litigation arose;
(2) attended a meeting discussing negotiations relevant to this interest days before the
case was filed, which showed he had actual knowledge of the interest even if he later

forgot;
(3) despite ten years of regular Board meeting attendance, missed the one meeting at
which his trial was discussed, and the other trustees remarkably chose not to "call to the

judge's attention the obvious conflict of interest" of a University trustee presiding over
this particular trial; and
(4) failed to review the minutes mailed to him for that missed meeting, which would
have revealed that the trial had been discussed.

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Doc. 564 at 10 n. 5 (citing Lilieberg. 486 U.S. at 857, 865-67). The totality of the circumstances
present in Lilieberg are fundamentally different than present before the Court. In Lilieberg. the
plurality offacts point that the presiding judge had complete awareness ofthe conflicting interest
by sitting on the board of trustees and sitting in on meetings where the interest was discussed.
This is drastically different than the Court's spouses independent purchase of stock on the advice

of an independent broker without providing any information to the Court.
Moreover, a reasonable observer would consider the Court's candor and history of
disclosing possible conflicts in this case. As discussed supra, the Court has continually disclosed

potential conflictual issues to counsel including Mr. McBride's representation of Cisco and
ownership of Zoom stock. It is unreasonable to assume that this Court would be so forthcoming
regarding possible conflicts and at the same time conceal a more direct conflict of stock
ownership of a named party. Therefore, a reasonable observer would weigh the Court's repeated
candor in favor of a finding that it had no knowledge of its spouse's Cisco stock ownership.
Furthermore, the Court evidenced its pattern of dealing with potential stock ownership conflicts
by the manner in which it dealt with the Crowdstrike purchase. When the Court discovered that

Crowdstrike may be a competitor in the similar cybersecurity technology with Cisco and
Centripetal, the Court and the Court's spouse promptly sold their shares. Accordingly, it would
an unreasonable presumption that a reasonable person viewing the facts would conclude that the

Court would act any differently with knowledge of his spouse's ownership of Cisco.
For all the reasons stated, the Court FINDS that a reasonable person would not conclude
that the Court knew of that interest and yet heard the case. Therefore, section 455(a) does not
warrant recusal.

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ii. Section 455(b)(4)

Turning to section 455(b), as stated supra, recusal under this section requires "actual
knowledge" of the disqualifying financial interest. C. Tel. Co. of Virginia. 2011 WL 6178652, at
*5 (collecting cases imposing the "actual knowledge" test). Here, the case of Central Telephone
is again persuasive in the Court's analysis.

In Central Telephone, the presiding judge found section 455(b)(4) to not apply to the
facts because there was "no actual knowledge of the conflict." The conflict was discovered by

the presiding judge "at a time when the preparation of the opinion on Sprint's coimterclaim was
underwav and when the presiding judge was preparing the annual financial disclosure statement

required of federal judges ..." C. Tel. Co. of Virginia. 2011 WL 6178652, at *1. Similarly, the
Court only discovered the ownership during preparation of an annual financial disclosure report.
However, here, the Court represented that every issue was "virtually" decided in this case before
there was actual knowledge of the Cisco stock. Thus, in Central Telephone, the drafting of the

presiding judge's decision was "underway," which is comparable to this Court's mostly drafted
opinion. Moreover, this Court rests on the persuasive logic illustrated by the Ninth Circuit in
Davis V. Xerox. 811 F.2d 1293, 1296 (9th Cir. 1987). There, the court noted that the right course
under section 455(b)is:

to proceed on a case by case basis, determining the existence of disqualifying knowledge
at the time the judge sat, in the way that a state of mind is normally determined, from
inspection of all the circumstances. If a reasonable person would conclude from all the
circumstances are such that a reasonable person would conclude that the judge had not
forgotten but continued to know, his rulings must be vacated.
Davis V. Xerox. 811 F.2d 1293,1296(9th Cir. 1987).

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iii. Divestment under 455(f)

Based on the findings above, the Court FINDS that section 455(a) or 455(b)(4) do not

apply to the facts before the Court. The Court still recognizes that any section 455(b)(4) conflict
can be cured by the divestment provision of Section 455(f). Section 455(f) states that
Notwithstanding the preceding provisions of this section, if any justice,judge, magistrate
judge, or bankruptcy judge to whom a matter has been assigned would be disqualified,
after substantial judicial time has been devoted to the matter, because of the appearance
or discovery, after the matter was assigned to him or her, that he or she individually or as
a fiduciary, or his or her spouse or minor child residing in his or her household, has a
financial interest in a party (other than an interest that could be substantially affected by
the outcome), disqualification is not required if the justice, judge, magistrate judge,
bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of
the interest that provides the grounds for the disqualification.
28 U.S.C. § 455(f). Therefore, the requirements for divestiture are met when "(0 the district

judge devoted 'substantial judicial time' to the matter before 'appearance or discovery' of the
conflict;(ii) his financial interest cannot be substantially affected by the outcome ofthe case; and
(iii) he divested himself of the interest once he discovered it." Chase Manhattan Bank. 343 F.3d

at 131. The Second Circuit has explained that this section "is meant to help judges strike a

balance between the duty to recuse when their impartiality might reasonably be questioned and
the need to resolve cases expeditiously and without undue collateral litigation." Muchnick v.
Thomson Com.(In re Literarv Works in Elec. Databases Copvright Litig.). 509 F.3d 136, 142

(2d Cir. 2007). It is undisputed in this case that there is substantial judicial time invested. The
Court had devoted months of time into this matter engaging in ruling of pre-trial motions,

holding a Markman hearing, conducting an almost six-week bench trial and drafting extensive
findings offact and conclusions oflaw in a 150-plus page opinion.

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Cisco argues that section 455(f) is unavailable under these circumstances because the
Court has not and cannot promptly divest the stock at issue and the financial interest would be
substantially affected by the outcome. See Doc. 557 at 5. The Court disagrees with Cisco on both
grounds. Cisco avers divestiture is unavailable because "prompt" disclosure is required by
section 455(f). A reading ofthe statute indicates no mention "as to the timing of the divestiture."
Doc. 564 at 12. Centripetal avers Cisco's argument fails because the idea "that divesture is no
longer available because the Court's spouse did not divest her shares within Cisco's arbitrary
window of undefined 'promptness.'" Upon receipt of the Court's notification, Cisco did not
request that the Court's wife immediately divest if she had not done so already. See Doc. 564 at
13 (Centripetal noting that "Cisco's argument that divestiture cannot happen because divestiture
has not yet happened is simply wrong."

Additionally, Cisco notes that the interest held by the Court's spouse cannot fall under

the divestiture provisions of section 455(f) because the interest would be substantially affected
by the account where Centripetal has requested such a high amount of damages. The Court finds
the case of Kev Pharm.. Inc. v. Mvlan Laboratories Inc.. 24 F. Supp. 2d 480, 483 (W.D. Pa.

1998) as persuasive on this issue. In that case, the judge found divesting 151 shares with a value
of $10,185.18 "was an effective cure for the discovery of the interest, particularly where the

investment had been in a Targe, publicly held corporation with diverse interests and revenues in
the billions.'" Doc. 564 at 14 (quoting Kev Pharm.. Inc. v. Mvlan Laboratories Inc.. 24 F. Supp.
2d 480,483(W.D. Pa. 1998)). Here, the Court's spouse owned 100 shares of Cisco stock valued
at $4,687.99. Cisco, similar to the company in Kev Pharm is a large, publicly held corporation
with billions in revenue. Therefore, the Court finds that divesture is appropriate under the

circumstances. Cisco points to the previously discussed case of Chase Manhattan as an example

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that divestiture is unavailable in this case. As noted supra, that case has substantially different

facts. In Chase Manhattan, the "disqualifying circumstances here appeared in 1997, [as such]
they cannot be cured by a divestiture in 2000, long after the district judge's conduct of the bench
trial, findings of fact, and issuance ofjudgment." Chase Manhattan Bank. 343 F.3d at 132. A

three-year gap between identification of conflicting ownership and divestiture is drastically

different than the less than a month gap presented in this case.
In light of this guidance, the Court's spouse has proceeded to divest the Cisco shares into

a blind trust. Divestment to a blind trust is the proper remedy as the Court finds that an outright
sale of the stock would undermine the purpose of section 455. Generally, section 455 "is

designed to promote public confidence in the impartiality of the judicial process ...." Muchnick
V. Thomson Com. Qn re Literary Works in Elec. Databases Copvright Litig.). 509 F.3d 136, 140
(2d Cir. 2007) (citing H.R. Rep. No. 93-1453. reprinted in 1974 U.S.C.C.A.N. 6351, 6355).
Section 455(f) was incorporated for exactly the type of situations where the Court discovers an
interest after substantial time and resources have been devoted to the case.

Kidder. Peabodv

& Co. V. Maxus Enerev Corp.. 925 F.2d 556, 561 (2d Cir. 1991)("We think that section 455(f)
directly applies to this situation. Nearly three years of the litigants' time and resources and
substantial judicial efforts have been devoted to the litigation.")

If the Court were to decide in Centripetal's favor then that decision may be seen to
benefit the Court if his spouse's stock is sold. In arguments on liability and damages, the Court

noted the enormous discrepancy in the damages amounts of the parties' respective damages
experts and asked for further financial data. A reasonable attorney might conclude that the Court
intended to award damages and apparently both sides did so.

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Centripetal promptly waived any objection while Cisco filed a motion to recuse nine days
later. Under the circumstances, the Court FINDS nine days to be a reasonable time within which
Cisco may act.

The situation is somewhat of a reverse bias allegation as it is Cisco, in which the stock is

owned, seeking recusal. Cisco's theory is that the Court would change its opinion to one less
favorable to it in order to shore up its appearance of propriety. Such an allegation makes it
difficult for the Court to consider the outright sale of this stock. During the interim period

between notification of counsel regarding the stock and the issuance of this opinion, the Court
has performed no further work on its draft opinion on the merits. An outright sale of the stock
would be inappropriate as the Court may appear to benefit itself in order to comply with the
provisions of 455(f). Accordingly, the Court's spouse has divested her shares of Cisco stock by

placing them in a blind trust to remove control from the Court and his spouse. This solution
intends to abide by the statutory purposes of impartiality required by section 455 as well as the
timely divestiture required by 455(f).
III. CONCLUSION

In conclusion, the Court DENIES Cisco's Motion for Miscellaneous Relief. The Clerk is

REQUESTED to distribute a copy of this Opinion and Order to counsel of record.
It is SO ORDERED.

/s/

Henry Coke Morgan, Jr.

Senior United Slates District Jud^
Norfolk, Virginia

October ^,2020

Henry Coke Morgan,Jr.s:!.

Senior Untied States District Judge

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^