Pepsico, Inc. v. McMillen, No. 85-1932

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, ESCHBACH and POSNER; POSNER
Citation764 F.2d 458
Decision Date06 June 1985
Docket NumberNo. 85-1932
Parties, 1985-2 Trade Cases 66,661 PEPSICO, INC., and Wilson Sporting Goods Co., Petitioners, v. Honorable Thomas R. McMILLEN, Judge, United States District Court for the Northern District of Illinois, Respondent.

Page 458

764 F.2d 458
54 USLW 2004, 1985-2 Trade Cases 66,661
PEPSICO, INC., and Wilson Sporting Goods Co., Petitioners,
v.
Honorable Thomas R. McMILLEN, Judge, United States District
Court for the Northern District of Illinois, Respondent.
No. 85-1932.
United States Court of Appeals,
Seventh Circuit.
Submitted June 3, 1985.
Decided June 6, 1985.

Page 459

Thomas R. McMillen, Chicago, Ill., pro se.

Roger Pascal, Schiff Hardin & Waite, Chicago, Ill., Arthur S. Friedman, Friedman & Gass, New York City, Marguerite S. Stephens, Howrey & Simon, Washington, D.C., for petitioners.

Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.

POSNER, Circuit Judge.

On June 3, 1985, the defendants in an antitrust suit pending before Judge McMillen in the Northern District of Illinois petitioned us under 28 U.S.C. Sec. 1651 for a writ of mandamus directing the judge to recuse himself from presiding in the case. At the time the petition was filed, Judge McMillen had merely indicated informally that he would not recuse himself; no formal motion of recusal had been filed or acted on. We suspended consideration to give the defendants a chance to file, and the judge to rule on, the motion. The judge denied the formal motion, the parties have submitted additional affidavits, and the matter is now ripe for our decision.

The events leading up to the unusual problem presented by the petition for mandamus began some months ago when Judge McMillen reached retirement age and took senior status. He decided to explore the possibility of resigning from the bench and resuming the practice of law rather than continuing in senior or retired status. He discussed this possibility with the law firm that had employed him before he became a judge, and negotiations proceeded satisfactorily, but he decided to also "test the waters" with other Chicago law firms. To this end he made contact with an old friend of his who was a "headhunter" and who agreed to contact some dozen Chicago firms to see whether any of them might be interested in employing, under various restrictions specified by the judge, a federal district judge who would be resigning from the bench. Although no names were to be mentioned, it was common knowledge in Chicago legal circles that Judge McMillen was contemplating resignation, and no other federal judge in the city was thought to be similarly inclined.

Judge McMillen recalls having told his friend the "headhunter" not to contact either Schiff Hardin & Waite, one of the counsel for the defendants in the antitrust

Page 460

case, or Sachnoff Weaver & Rubenstein, Ltd., counsel for the plaintiff (the Dunlop tire company). The "headhunter" does not recall any such limitation. Judge McMillen had instructed him not to contact other firms that had matters pending before the judge; the disagreement is over whether he had identified the Schiff Hardin and Sachnoff firms as such firms. In any event, whether authorized to or no, the "headhunter" called both firms. Schiff Hardin informed him that it was not interested in hiring the resigning federal district judge (whom it knew to be Judge McMillen). Mr. Sachnoff was out of the office when the "headhunter" called him; he never returned the call. There is an irreconcilable difference of recollection concerning what Mr. Sachnoff told...

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104 practice notes
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...on which recusal was sought, would entertain a significant doubt that justice would be done in the case [citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)]. See also United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. Many of the aforesaid authorities have previously be......
  • U.S. v. Horak, Nos. 86-1473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 1987
    ...(issuing writ of mandamus directing district court to comply with mandatory rule of criminal procedure); Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir.1985) (issuing writ of mandamus directing district judge to recuse Several courts have concluded that a writ of mandamus properly co......
  • U.S. v. Balistrieri, Nos. 84-2001
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 26, 1985
    ...an appropriate remedy against a judge who refuses to recuse himself when required to do so under that statute. Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (granting writ); SCA Services, Inc. v. Morgan, 557 F.2d 110, 117-18 (7th Cir.1977) (per curiam) (same). The writ of mand......
  • Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 13, 2007
    ...55. DeLuca v. Long Island. Lighting Co., Inc., 862 F.2d 427, 428 (2d Cir.1988). 56. Id. at 428-29 (quoting Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th 57. 28 U.S.C. § 455(b)(1). 58. See 8/16/06-8/20/06 Email Correspondence Between Special Master Beebe and Jeremy Sheff Esq., attached t......
  • Request a trial to view additional results
104 cases
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...on which recusal was sought, would entertain a significant doubt that justice would be done in the case [citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)]. See also United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. Many of the aforesaid authorities have previously be......
  • U.S. v. Horak, Nos. 86-1473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 1987
    ...(issuing writ of mandamus directing district court to comply with mandatory rule of criminal procedure); Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir.1985) (issuing writ of mandamus directing district judge to recuse Several courts have concluded that a writ of mandamus properly co......
  • U.S. v. Balistrieri, Nos. 84-2001
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 26, 1985
    ...an appropriate remedy against a judge who refuses to recuse himself when required to do so under that statute. Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (granting writ); SCA Services, Inc. v. Morgan, 557 F.2d 110, 117-18 (7th Cir.1977) (per curiam) (same). The writ of mand......
  • Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 13, 2007
    ...55. DeLuca v. Long Island. Lighting Co., Inc., 862 F.2d 427, 428 (2d Cir.1988). 56. Id. at 428-29 (quoting Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th 57. 28 U.S.C. § 455(b)(1). 58. See 8/16/06-8/20/06 Email Correspondence Between Special Master Beebe and Jeremy Sheff Esq., attached t......
  • Request a trial to view additional results

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