Do federal judges protect their own?

Before Blawgletter suggests an answer, let’s look at the case that raises the question.

The Fourth Circuit upheld a summary judgment for E. I. DuPont de Nemours & Co., ruling that the South Korean plaintiff, Kolon Industries Incorporated, failed to raise a fact issue either as to DuPont’s “monopoly power” in the U.S. market for para-aramid fibers (e.g., Kevlar) or as to its “willful maintenance” of the monopoly power it did not have. Kolon Indus., Inc. v. E. I. DuPont de Nemours & Co., No. 12-1587 (4th Cir. Apr. 3, 2014) (http://www.ca4.uscourts.gov/Opinions/Published/121587.P.pdf).

The panel held, 2-1, that DuPont’s sub-60-percent-and-dropping share of the market didn’t give it “durable” power to control price or exclude rivals. The majority also agreed with the district court that Kolon did not present proof that DuPont’s exclusive supply agreements with customers foreclosed Kolon from gaining a “critical bridge” to a big market share big enough to sustain it as a viable competitive source of para-aramids.

The panel also concluded that Kolon’s delay in asking the district court to recuse himself — due to his participation as counsel for DuPont in an earlier lawsuit that involved patents on para-aramid fibers and financial interest in his old law firm — warranted denial of the tardy motion for recusal.

The panel separately vacated a trade secrets judgment for just shy of $1 billion against Kolon. The district court erred, the panel held, by refusing to let Kolon present evidence that DuPont disclosed some of the alleged trade secrets in the earlier lawsuit. It also ordered that the district court on remand must assign a new judge to hear the case going forward.

Those last two parts of the decision will not go in the law books. The panel chose not to publish the separate opinion. Kolon Indus., Inc. v. E. I. DuPont de Nemours & Co., No. 12-1587 (4th Cir. Apr. 3, 2014) (per curiam) (http://www.ca4.uscourts.gov/Opinions/Unpublished/121260.U.pdf).

The panel’s choice — splitting the case into two opinions, using the one it published to talk about the antitrust claim and forfeiture of the right to recusal of the trial judge, and dealing with the trade secrets case and removal of the judge who survived formal recusal in the non-precedential and unpublished one — suggests that their honors wished not to embarrass their colleague any more than they had to. We will leave to you what that implies about the question at the top of this post.