In re Kensington International Limited, No. 03-4212 (Fed. 3rd Cir. 5/17/2004)
| Decision Date | 17 May 2004 |
| Docket Number | No. 04-1468.,No. 03-4526.,No. 03-4212.,03-4212.,03-4526.,04-1468. |
| Parties | IN RE: KENSINGTON INTERNATIONAL LIMITED and SPRINGFIELD ASSOCIATES, LLC, Petitioners. IN RE: D.K. ACQUISITION PARTNERS, L.P.; FERNWOOD ASSOCIATES, L.P. AND DEUTSCHE BANK TRUST COMPANY AMERICAS, Petitioners. IN RE: USG CORPORATION, Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Roy T. Englert, Jr. (argued), Lawrence S. Robbins, Robbins, Russell, Englert, Orseck & Untereiner, 1801 K Street, N.W, Suite 411, Washington, DC 20006 and John J. Gibbons, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, One Riverfront Plaza, Newark, NJ 07102, Attorneys for Petitioners in 03-4212
Charles Fried (argued), 1545 Massachusetts Avenue, Cambridge, MA 02138, Richard Mancino, Marc Abrams, Willkie, Farr & Gallagher, 787 Seventh Avenue, New York, NY 10019-6099 and Joanne B. Wills, Jennifer L. Scoliard, Klehr, Harrison, Harvey, Branzburg & Ellers, 919 North Market Street, Suite 1000, Wilmington, DE 19083, Attorneys for Petitioners in 03-4526
Stephen C. Neal (argued), Scott D. Devereaux, Cooley Godward, 3000 El Camino Real, 5 Palo Alto Square, Palo Alto, CA 94306, Daniel J. DeFranceschi, Paul N. Heath, Richards Layton & Finger, One Rodney Square, P.O. Box 551, Wilmington, DE 19899, David G. Heiman, Jones Day, North Point, 901 Lakeside Avenue, Cleveland, OH 44114-1190 and Paul R. DeFilippo, Wollmuth, Maher & Deutsch, One Gateway Center, Newark, NJ 07102, Attorneys for Petitioner in No. 04-1468
Charles O. Monk, II (argued), Saul Ewing, 100 South Charles Street, Baltimore, MD 21201, Norman L. Pernick, J. Kate Stickles, Saul Ewing, 222 Delaware Avenue, P.O. Box 1266, Suite 1200, Wilmington, DE 19899 and Richard E. Flamm, 2840 College Avenue, Suite A, Berkeley, CA 94705, Attorneys for Respondents Owens Corning, et al.
David M. Bernick (argued), Michelle H. Browdy, Janet S. Baer, Kirkland & Ellis, 200 East Randolph Drive, Suite 6500, Chicago, IL 60601, Christopher Landau, Ashley C. Parrish, Kirkland & Ellis, 655 Fifteenth Street, NW, Washington, DC 2005 and Laura Davis Jones, David W. Carickhoff, Jr., Pachulski, Stang, Ziehl, Young, Jones & Weintraub, 919 North Market Street, 16th Floor, P.O. Box 8705, Wilmington, DE 19899, Attorneys for Respondent W.R. Grace & Co.
Elihu Inselbuch (argued), Peter Van N. Lockwood, Nathan D. Finch, Caplin & Drysdale, 399 Park Avenue, 27th Floor, New York, NY 10022 and Marla R. Eskin, Mark T. Hurford, Campbell & Levine, 800 North King Street, Suite 300, Wilmington, DE 19801, Attorneys for Respondents Official Committee of Asbestos Claimants of Owens Corning, Official Committee of Asbestos Personal Injury Claimants of W.R. Grace and Official Committee of Asbestos Personal Injury Claimants of USG Corporation
Michael J. Crames (argued), Jane W. Parver, Aaron Stiefel, Edmund M. Emrich, Kaye Scholar, 425 Park Avenue, New York, NY 10022 and Edwin J. Harron, Young, Conaway, Stargatt & Taylor, P.O. Box 391, 1000 West Street, Brandywine Building, 17th Floor, Wilmington, DE 19899, Attorneys for Respondents James J. McMonagle and Dean M. Trafelet
Daniel K. Hogan, Law Offices of Daniel K. Hogan, 1701 Shallcross Avenue, Suite C, Wilmington, DE 19806 and Sander L. Esserman, Robert T. Brousseau, David J. Parsons, Stutzman, Bromberg, Esserman & Plifka, 2323 Bryan Street, Suite 2200, Dallas, TX 75201-2689, Attorneys for Respondent Baron & Budd Claimants
Jeffrey S. Trachtman, Kramer, Levin, Naftalis & Frankel, 919 Third Avenue, 39th Floor, New York, NY 10022 and Adam G. Landis, Rebecca L. Butcher, Landis, Rath & Cobb, 919 Market Street, Suite 600, P.O Box 2087, Wilmington, DE 19899, Attorneys for Respondent Credit Suisse First Boston Corp
Neal J. Levitsky, L. Jason Cornell, Fox Rothschild, 824 North Market Street, Suite 810, Wilmington, DE 19899-2323 and
Henry W. Simon, Robert A. Simon, Simon & Simon, 3327 Winthrop Avenue, Suite 200, Fort Worth, TX 76116, Attorneys for Respondent Waters & Kraus
Edward L. Jacobs, 26 Audubon Place, P.O. Box 70, Fort Thomas, KY 41075, Attorney for Respondent Harry Grau & Sons
Michael R. Lastowski, Duane Morris, 1100 North Market Street, Suite 1200, Wilmington, DE 19801, Attorney for Intervenor Official Committee of Unsecured Creditors of USG Corp.
Mark E. Felger, Jeffrey R. Waxman, Cozen & O'Connor, 1201 Market Street, Suite 1400, Wilmington, DE 19801, Attorneys for Intervenor Official Committee of Unsecured Creditors of Armstrong World Industries, Inc.
Kenneth Pasquale, Lewis Kruger, Stroock, Stroock & Lavan, 180 Maiden Lane, New York, NY 10038, Attorneys for Intervenor Official Committee of Unsecured Creditors of USG Corporation
Roderick R. McKelvie, Fish & Neave, 1899 Pennsylvania Avenue, NW, Washington, DC 20006 and Daniel J. Popeo, Richard A. Samp, Washington Legal Foundation, 2009 Massachusetts Avenue, N.W., Washington, DC 20036, Attorneys for Amicus Curiae Washington Legal Foundation
James L. Patton, Jr., Young, Conaway, Stargatt & Taylor, P.O. Box 391, 1000 West Street, Brandywine Building, 17th Floor, Wilmington, DE 19899, Attorney for Amicus Curiae Eric D. Green
Timothy K. Lewis, Schnader Harrison Segal & Lewis, 2001 Pennsylvania Avenue NW, Suite 300, Washington, DC 20006 and Craig Berrington, Lynda S. Mounts, American Insurance Association, 1130 Connecticut Avenue, NW, Suite 1000, Washington, DC 20015, Attorneys for Amicus Curiae American Insurance Association
BEFORE: FUENTES, SMITH and GARTH, Circuit Judges.
Approximately six months ago, two emergency petitions were filed in this Court asking us to issue Writs of Mandamus disqualifying Senior District Court Judge Alfred M. Wolin of the District of New Jersey from continuing to preside over two of five asbestos-related bankruptcies that this Court had assigned to him in December 2001 for coordinated case management. The five companies in bankruptcy are Owens Corning, W.R. Grace & Co., USG Corporation, Armstrong World Industries, Inc., and Federal-Mogul Global, Inc. (collectively, the "Five Asbestos Cases").
The Petitions, which were brought by creditors of Owens Corning and W.R. Grace & Co., alleged that Judge Wolin had, through his association with certain consulting Advisors which he had appointed, created a perception that his impartiality "might reasonably be questioned" under 28 U.S.C. § 455(a). The Petitions asserted that disqualification was also w arrant ed un de r 28 U.S.C. § 455(b)(1) as a result of ex parte communications among Judge Wolin and his advisors, the parties, and the attorneys.1
Following a hearing on December 12, 2003, we concluded that we should not reach the merits of the Mandamus Petitions. Our decision was "prompted by our overarching concern that we [did] not have an adequately developed evidentiary record before us." In re Kensington Int'l Ltd., 353 F.3d 211, 214 (3d Cir. 2003). "[R]eluctant to act in a complex situation such as this one, where so many vital interests are at stake, without a developed evidentiary record," we remanded the proceedings to Judge Wolin while retaining jurisdiction. Id. at 223. We instructed Judge Wolin to vacate his order staying discovery and allow expedited discovery to proceed. We also directed that he issue an expedited ruling on all of the recusal motions pending before him. Id. USG Corp. by this time had also filed a recusal motion.
On remand, Judge Wolin and the parties faithfully followed our instructions. Under stringent time restrictions and Judge Wolin's effective oversight, the parties conducted extensive discovery into the facts surrounding the recusal motions. Following an additional round of briefing, Judge Wolin issued a comprehensive written opinion and order on February 2, 2004 denying the recusal motions both on the merits and on timeliness grounds. See generally In re Owens Corning, 305 B.R. 175 (D. Del. 2004).
As noted, we retained jurisdiction over the Mandamus Petitions. These Petitions were joined by USG Corp., the debtor in the USG Corp. bankruptcy. The Official Committee of Unsecured Creditors in the Armstrong World Industries, Inc. bankruptcy filed a fourth Petition, but due to its late filing we did not consolidate it with the other Petitions.
Having exhaustively reviewed the now developed record, we have reached the following conclusions:
First, a reasonable person, knowing all of the relevant circumstances, would conclude that Judge Wolin's impartiality might reasonably be questioned in the Owens Corning, W.R. Grace & Co. and USG Corp. bankruptcies. Although the record does not demonstrate that Judge Wolin has done anything wrong or unethical or biased, he must be disqualified under 28 U.S.C. § 455(a) from further presiding over those three bankruptcies. See Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993) (). We emphasize that our review of the record has not revealed the slightest hint of any actual bias or partisanship by Judge Wolin. On the contrary, Judge Wolin has throughout his stewardship over the Five Asbestos Cases exhibited all of the judicial qualities, ethical conduct, and characteristics emblematic of the most experienced, competent, and distinguished Article III jurists. But the test for disqualification under § 455(a) is not actual bias; it is the perception of bias. See id.
Second, we find that the motions for recusal in the Owens Corning and W.R. Grace & Co. bankruptcies were timely under 28 U.S.C. § 455(a). In reaching that conclusion, we disagree with Judge Wolin that it was appropriate, in this case, to impute knowledge of the grounds for disqualification to the Petitioners. The evil that a timeliness requirement is...
To continue reading
Request your trial