[00:00:00] Speaker 02:
OK.

[00:00:02] Speaker 02:
Same cast, essentially.

[00:00:04] Speaker 02:
Next case for argument is 23-1526, South Bend versus Fitbeck.

[00:00:12] Speaker 02:
All right, Mr. Fuller, when you'll be ready.

[00:00:15] Speaker 03:
Thank you, Your Honor.

[00:00:18] Speaker 03:
If it pleases the court, 28 USC 455A requires a district court judge, Joshua Svante,

[00:00:31] Speaker 03:
recuse themselves if their partiality could be reasonably questioned.

[00:00:38] Speaker 03:
Now, 455B and C lay out additional instances where recusal... And you rest now just on 455A, right?

[00:00:50] Speaker 03:
Correct, Your Honor.

[00:00:51] Speaker 03:
We rest on 455A, although we certainly would propose that

[00:00:59] Speaker 03:
if somehow 455A were viewed as not requiring recusal, that the spousal connection that is listed in 455B and C would also dictate recusal.

[00:01:12] Speaker 03:
But we think the primary, most straightforward application is 455A.

[00:01:17] Speaker 02:
What about the timely misquestion that was raised by the district court?

[00:01:21] Speaker 02:
And I think you said in your brief that she didn't rest on that.

[00:01:24] Speaker 02:
I read her as resting on that as well.

[00:01:26] Speaker 02:
I read her as relying on that.

[00:01:28] Speaker 02:
She didn't say, I'm not going to rule on that.

[00:01:30] Speaker 02:
She ruled on that.

[00:01:32] Speaker 02:
So if that's the case, what's your response, particularly with respect to all the matters other than Ajax?

[00:01:40] Speaker 02:
With regard to all the matters other than timing?

[00:01:42] Speaker 03:
Than Ajax, the timing issue.

[00:01:45] Speaker 02:
OK.

[00:01:47] Speaker 03:
The timing issue, the idea that CellSpin somehow knew about this all along and waited until this, you know,

[00:01:56] Speaker 03:
bad summary judgment motion to spring it on the court and try to avoid this argument with the court is false.

[00:02:05] Speaker 02:
Well, if this information was available for years, something must have triggered if you say that you had no reason to look at it.

[00:02:12] Speaker 02:
So what was the timing of that?

[00:02:14] Speaker 03:
What triggered it internally for our side was the

[00:02:19] Speaker 03:
I think it was a centripetal case that caused us to look closely at this issue combined with the district court's disclosures and the publication of those in combination with these new revelations as to the spouse of the district court relationship with certain companies.

[00:02:44] Speaker 03:
So when those pieces started to fall together,

[00:02:49] Speaker 03:
Um, we certainly investigated it and we brought it to the, we realized it was after the summary judgment motion.

[00:02:57] Speaker 03:
The timing was less than perfect.

[00:02:59] Speaker 03:
Admittedly, we certainly wish we would have had that information earlier, but nevertheless, the district court had the information and 455A doesn't call upon the parties to bring it to the district court's attention.

[00:03:15] Speaker 03:
The district court, certainly at the time that Google was advertised as purchasing and owning Fitbit, which is a defendant in the case, should have alerted the district court to the fact that, wait a minute, I have millions of dollars invested in an index fund that holds Google.

[00:03:37] Speaker 03:
My spouse does extensive work for companies that have

[00:03:45] Speaker 03:
very large funding from Google.

[00:03:48] Speaker 03:
These facts don't look good.

[00:03:52] Speaker 03:
A reasonable observer under 455A might call my partiality into question.

[00:03:58] Speaker 03:
At that point, it was incumbent upon the district court, not CELSPIN, to raise these issues.

[00:04:05] Speaker 03:
We did raise the issues as soon as, again, all the facts came to our knowledge and presented them to the district court.

[00:04:14] Speaker 03:
as you know, the district court didn't reject out of hand and base the decision to deny recusal based on timing, but based on the subjective facts that the district court entered into the record to essentially rebut the facts that SELSA been presented, which would be available to the reasonable public observer.

[00:04:38] Speaker 03:
Now the standard would be not the

[00:04:41] Speaker 03:
subjective belief of the court as to whether or not there is an actual bias.

[00:04:48] Speaker 03:
Cases are very clear that it's an objective standard based on what information will be available.

[00:04:55] Speaker 05:
Can we just get back for a moment to the timeliness question?

[00:04:59] Speaker 05:
So Google acquired Fitbit in February of 2021.

[00:05:05] Speaker 04:
Correct.

[00:05:05] Speaker 05:
Right?

[00:05:06] Speaker 05:
And that was

[00:05:10] Speaker 05:
a matter of widespread public knowledge.

[00:05:14] Speaker 05:
And I don't think you have denied that you knew about that acquisition roughly when it happened.

[00:05:22] Speaker 05:
OK?

[00:05:22] Speaker 05:
Absolutely.

[00:05:23] Speaker 05:
OK.

[00:05:24] Speaker 05:
And so from then until the summary judgment proceeding is a year and some months, the Ajax situation is different.

[00:05:35] Speaker 05:
If I remember right,

[00:05:38] Speaker 05:
judge's husband joined Ajax in, what, March of 2022?

[00:05:44] Speaker 05:
Correct.

[00:05:46] Speaker 05:
Either the motion had just been filed or the summer judgment was about to be filed.

[00:05:52] Speaker 05:
What do we know about the availability of knowledge of that?

[00:06:01] Speaker 05:
I assume that the amount of publicity about

[00:06:05] Speaker 05:
Him joining Ajax didn't match the amount of publicity of Google acquiring Fitbit, was there?

[00:06:13] Speaker 03:
It wasn't front page news, certainly, which is

[00:06:21] Speaker 03:
part of the reason why.

[00:06:22] Speaker 05:
Does the record say anything specifically?

[00:06:25] Speaker 05:
It says you didn't learn about that until November or something.

[00:06:32] Speaker 03:
It was later in the year.

[00:06:33] Speaker 03:
November sounds about right.

[00:06:35] Speaker 05:
Do you happen to know when his LinkedIn page revealed

[00:06:45] Speaker 03:
I don't know the date of the LinkedIn update.

[00:06:49] Speaker 03:
Certainly, again, I'm sure that's a matter of public record or on the way back, perhaps, as to when the timing of that.

[00:06:58] Speaker 03:
What I do know is that CellSpin Investigated began to look into

[00:07:06] Speaker 03:
Okay.

[00:07:07] Speaker 03:
What are these dealings of the spouse of the district court judge?

[00:07:11] Speaker 05:
This is now, I guess, not so much timing, and this is really focused just on the Ajax piece of the case, which it feels like is in a category of its own.

[00:07:24] Speaker 05:
What do we know about

[00:07:30] Speaker 05:
how much of the funding of Ajax comes from Google itself, as opposed to, I'm remembering, there's a vaguer phrase.

[00:07:41] Speaker 05:
Google and others.

[00:07:43] Speaker 05:
That might be a very different situation if it was 90% Google and 10% others as opposed to the other way around.

[00:07:50] Speaker 05:
Do we know?

[00:07:51] Speaker 03:
I don't believe we know the specific breakdown.

[00:07:54] Speaker 03:
We do know that I believe, off the top of my head, I believe it's $700 million is total investment.

[00:08:00] Speaker 05:
That's the total investment into Ajax.

[00:08:02] Speaker 03:
Total investment, yes, by Google and its affiliating partner.

[00:08:07] Speaker 02:
Can I ask, I'm sorry to interrupt, but

[00:08:09] Speaker 02:
Is that investment directly to Ajax to distribute to the companies under its umbrella organization?

[00:08:16] Speaker 02:
When you say Ajax, do you mean the companies that are related to Ajax?

[00:08:22] Speaker 03:
My understanding is Ajax essentially owns these companies.

[00:08:28] Speaker 03:
Owns these companies?

[00:08:31] Speaker 03:
My understanding is yes.

[00:08:33] Speaker 03:
or venture capital that have investments in all of these companies.

[00:08:36] Speaker 03:
And so to the extent the funding is to the companies, it's inseparable from Ajax.

[00:08:43] Speaker 03:
Now, our point is simply that however the nuts and bolts of the funding might work, the public perceives one thing, and that is that we have a spouse of a district court judge who is hearing a case involving

[00:09:01] Speaker 03:
Google as essentially a defendant, because it owns Fitbit.

[00:09:06] Speaker 03:
And we have a spouse who clearly has incentive with Google to further Google's business interests.

[00:09:17] Speaker 02:
Well, as you said, I interrupted Judge Toronto who was trying to discern how much of the $700 million.

[00:09:23] Speaker 02:
I think there's nothing in the record to show whether Google's interest is $3 or $300 million, right?

[00:09:31] Speaker 03:
Fair enough.

[00:09:32] Speaker 05:
We don't know the exact... And nothing about, nothing in the record specifically about essentially the flow of the money, whether the Google Consortium gives $700 million to Ajax.

[00:09:46] Speaker 05:
What happens to that money?

[00:09:47] Speaker 05:
Does Ajax now have possession of it under instructions about how much of it needs to be used to provide seed money for the various startups?

[00:09:58] Speaker 05:
Ajax

[00:10:00] Speaker 05:
How does Ajax pay its bills?

[00:10:03] Speaker 05:
How does Ajax pay its bills?

[00:10:06] Speaker 05:
Including whatever this contract is with the judge's husband.

[00:10:12] Speaker 03:
I do not know the details of how Ajax compensates.

[00:10:15] Speaker 05:
Is there an allegation that part of the Google Consortium investment

[00:10:22] Speaker 05:
pays Ajax's expenses.

[00:10:26] Speaker 03:
I believe our contention would be that a reasonable assumption based on these facts is that the spouse's position within Ajax is such that he is incentivized for all of these companies to succeed to the greatest extent possible using obviously Google funding.

[00:10:48] Speaker 05:
Do I remember right that

[00:10:52] Speaker 05:
Judge Rogers' opinions, I think you said her husband has equity in Ajax.

[00:11:00] Speaker 05:
And the response was he doesn't have equity in the startups.

[00:11:04] Speaker 05:
I don't think she ever said he doesn't have equity in Ajax.

[00:11:09] Speaker 05:
And she said he's not an employee of Ajax, but is a contractor.

[00:11:13] Speaker 05:
Is that the sum total of what we have in front of us?

[00:11:20] Speaker 03:
For him to be called a contractor of Ajax, I'm not sure what that means exactly.

[00:11:26] Speaker 03:
We do know that his public LinkedIn information identifies him as a, I think, operating officer or something.

[00:11:33] Speaker 03:
Operating partner or operations partner, one of those two.

[00:11:36] Speaker 03:
And so that would belie a contractor relationship.

[00:11:42] Speaker 04:
So can anyone know what the contractor is?

[00:11:47] Speaker 04:
How does that help you with respect to showing the financial interests under Section A of the statute?

[00:11:53] Speaker 03:
I think how we would answer that question is, again, the background information that the public is not privy to is not how the inquiry is supposed to proceed.

[00:12:12] Speaker 03:
The inquiry proceeds by, under 455A,

[00:12:15] Speaker 03:
totality of the circumstances, this being one fact of many.

[00:12:22] Speaker 03:
And when you layer these facts on top of one another, whether there is a contractor relationship with AJ.

[00:12:30] Speaker 04:
If this fact doesn't help you, it hurts you.

[00:12:33] Speaker 03:
How so, Your Honor?

[00:12:35] Speaker 04:
You've argued here that you don't know what the contractor does or what a contractor is.

[00:12:43] Speaker 03:
The public has no idea he's a contractor.

[00:12:46] Speaker 03:
The public looks at his LinkedIn profile.

[00:12:49] Speaker 04:
You're making assertions.

[00:12:51] Speaker 04:
You're the one that's using what's essentially a legal term.

[00:12:55] Speaker 04:
But you don't have, apparently, the evidence to back that up one way or the other.

[00:13:02] Speaker 03:
We don't know.

[00:13:03] Speaker 03:
And that is part of the 455A problem.

[00:13:06] Speaker 04:
Well, if you don't know because you don't have evidence, how do you expect the public to know?

[00:13:12] Speaker 03:
That's the point, Your Honor, is that the public doesn't know.

[00:13:14] Speaker 03:
The public perceives that there is a clear financial relationship between Google and Ajax and the Ajax company.

[00:13:24] Speaker 03:
That fact's undisputed.

[00:13:25] Speaker 03:
The public perceives that Mr. Rogers has this position within Ajax based on publicly available information, operating partner.

[00:13:37] Speaker 03:
Now, to what extent

[00:13:40] Speaker 03:
his compensation is actually tied to Google, not a matter of public knowledge.

[00:13:47] Speaker 02:
Does the public know how much Google may have funded?

[00:13:52] Speaker 02:
I still don't know whether it's Ajax or whether it's any one of the companies under Ajax.

[00:13:57] Speaker 02:
Does the public know that?

[00:13:59] Speaker 03:
The public doesn't know.

[00:14:01] Speaker 03:
And our position on this is, again, the Ajax question

[00:14:08] Speaker 03:
is one of many facts that must be considered in totality.

[00:14:13] Speaker 02:
You said that a few minutes ago.

[00:14:14] Speaker 02:
Sure.

[00:14:15] Speaker 02:
By one of many facts, do you mean the other things you've alleged?

[00:14:19] Speaker 02:
Correct.

[00:14:20] Speaker 02:
But what if they come off the table easily on a time that is scrammed, and you're just hypothetically, and you're just left with Ajax?

[00:14:27] Speaker 02:
Then all of that argument drops out, correct?

[00:14:32] Speaker 03:
If we are precluded from making a recusal argument based on timing,

[00:14:38] Speaker 03:
and are limited to only the Ajax question, if I understand your honor's question correctly, then we would still suggest that public perception would a reasonable observer call into question the bias of the district court judge in light of the fact that... So my recollection, tell me if I'm wrong, is that the standard for a 455A or the general, you know,

[00:15:09] Speaker 05:
impartiality, my reason would be questioned, is it always comes with knowing all of the facts.

[00:15:15] Speaker 05:
That is, you can't get, to put it too crudely, the ignorant person's general impression.

[00:15:25] Speaker 05:
We posit that all the facts are known.

[00:15:28] Speaker 05:
What are we supposed to do in a situation where there are all kinds of facts that feel like they might be relevant that are just unknown?

[00:15:38] Speaker 05:
You're not making an argument that I don't know more discovery was needed or I don't even know if discovery is done in a in a 455 situation I don't know how discovery could be done the question that to answer your honor's question.

[00:15:52] Speaker 03:
Yes, you don't you don't take the extreme person who Only reads and does nothing else.

[00:16:00] Speaker 03:
I believe the case law would say that

[00:16:02] Speaker 03:
The opposite end of the spectrum is not the test either.

[00:16:06] Speaker 03:
It's a reasonably inquisitive person, not someone who is hyper inquisitive and who would turn over every rock and stone to investigate what is going on in the background.

[00:16:17] Speaker 03:
So we have this average reasonable observer standard.

[00:16:21] Speaker 02:
So what in your view does an average reasonable observer know about the relationship with Ajax?

[00:16:27] Speaker 02:
It knows that maybe Google gave

[00:16:30] Speaker 02:
something, but we have no idea how much.

[00:16:32] Speaker 02:
We don't know who Google gave it to.

[00:16:33] Speaker 02:
Now, you mentioned to me in responding earlier that Ajax owns all of these companies.

[00:16:39] Speaker 02:
I don't think... I may have misspoke on that, Your Honor.

[00:16:42] Speaker 03:
The relationship between Ajax and Ajax companies, I'm not fully aware of this.

[00:16:49] Speaker 02:
You also mentioned it owns, and then I think you said it has equity.

[00:16:52] Speaker 02:
I don't see anything on the record.

[00:16:55] Speaker 03:
These are Ajax affiliated companies that Ajax is the VC for.

[00:17:00] Speaker 03:
So our connection is literally what we have presented that a public observer would know.

[00:17:06] Speaker 03:
And those are the publicly available facts of the press releases, the statements about the funding, the position of Mr. Rogers was in the company, and the relationship of the companies to Ajax.

[00:17:19] Speaker 03:
Those facts.

[00:17:21] Speaker 04:
Do you have any evidence?

[00:17:24] Speaker 04:
How much, if any, money from Google actually flows through HX?

[00:17:30] Speaker 03:
We don't have that breakdown.

[00:17:33] Speaker 04:
Okay.

[00:17:33] Speaker 04:
That's key.

[00:17:36] Speaker 05:
Can I ask you, this is not about the details.

[00:17:39] Speaker 05:
This is about harmless error.

[00:17:41] Speaker 05:
So at least for 455A, probably even for 455B as well.

[00:17:47] Speaker 05:
But I think we're essentially talking about 455A here.

[00:17:52] Speaker 05:
There's a well-established harmless error test that needs to be applied, our Shell case, the Supreme Court's Liljiburg case, right?

[00:18:00] Speaker 05:
So I'm thinking about this.

[00:18:05] Speaker 05:
Let's just assume for a minute.

[00:18:07] Speaker 05:
OK, now I'm looking back to the case that we just heard argument in.

[00:18:13] Speaker 05:
Assume that we agree as to Garmin that the OAuth problem is a decisive problem.

[00:18:26] Speaker 05:
That is a decisive problem for infringement.

[00:18:28] Speaker 05:
That summary judgment as to Garmin was properly based on that because

[00:18:34] Speaker 05:
The identification was too late.

[00:18:37] Speaker 05:
Garmin is not here in this appeal.

[00:18:41] Speaker 05:
Garmin therefore does not have a, is not subject to any live objection that decision-making as to it was somehow adversely influenced by the Google problem.

[00:19:02] Speaker 05:
At that point for Fitbit, the OAuth lateness actually disposes of the Fitbit case.

[00:19:16] Speaker 05:
That ground is sufficient to support summary judgment.

[00:19:19] Speaker 05:
Why does that not mean that any difficulty of a 455 nature

[00:19:27] Speaker 05:
that there might be is harmless because the result is foreordained from a proper decision on the OAuth as to Garmin.

[00:19:40] Speaker 05:
And I'll add Fossil also.

[00:19:42] Speaker 03:
Sure.

[00:19:43] Speaker 03:
If I understand your honest question, we would counter that by saying that the district court's view on OAuth is consistent

[00:19:55] Speaker 03:
on the OAuth theory and on the application of specific source code implementations for all the defendants, including Garmin.

[00:20:03] Speaker 03:
The theory that the district court used is consistent for all three, namely that somehow the original contentions were not

[00:20:16] Speaker 03:
broad enough to include these specific applications.

[00:20:19] Speaker 03:
So the application as to Fitbit on the OAuth question is identical to the application that the court took with respect to fossil and garments.

[00:20:30] Speaker 03:
So the approach that the court took with respect to Fitbit would be tainted by the 455 question and therefore the identical approach that the court took with regard to the other defendants

[00:20:46] Speaker 03:
would likewise be taken.

[00:20:47] Speaker 05:
And we think there's case law, and we cited in our brief that- Trouble is you, I mean, putting aside Nikon for a second, you did not preserve by appealing any challenge based on 455 as to any of the other defendants.

[00:21:07] Speaker 05:
I mean, Nikon is here, but we're about to hear about White.

[00:21:12] Speaker 05:
It shouldn't be here.

[00:21:13] Speaker 05:
But putting aside Nikon,

[00:21:15] Speaker 05:
Garmin and Fossil are undisputedly not here as to this.

[00:21:20] Speaker 05:
So there is no 455 objection to them.

[00:21:22] Speaker 05:
You originally made one, and the district court said that the problem with the relation to Fitbit taints the rest.

[00:21:30] Speaker 05:
But you don't have that anymore.

[00:21:35] Speaker 03:
There is not a specific 455.

[00:21:37] Speaker 03:
objection as to Garmin, if I understand you're on it correctly.

[00:21:40] Speaker 03:
I think that's correct.

[00:21:42] Speaker 03:
Now, we would, and I believe we cited in our briefs, that once the 455 question gets resolved in favor of recusal as to any defendant, that recusal as to the entire case is the proper remedy.

[00:21:57] Speaker 03:
And so I believe that is the law on that point, and we would stand on that law.

[00:22:04] Speaker 05:
Do you have anything briefly to say about

[00:22:06] Speaker 05:
Nikon?

[00:22:07] Speaker 05:
Why?

[00:22:07] Speaker 05:
In your view, it should be here.

[00:22:09] Speaker 05:
Or do you agree now that it shouldn't be here because there's not actually a notice of appeal filed in the Nikon case?

[00:22:17] Speaker 03:
Well, I think I would probably just stand on a brief on that point.

[00:22:20] Speaker 03:
We think that all of the information, the district court summary judgment order was to all defendants.

[00:22:27] Speaker 03:
The appeal that was filed was filed in each and every case.

[00:22:31] Speaker 03:
So the idea that

[00:22:33] Speaker 03:
somehow one defendant was excluded is incorrect.

[00:22:41] Speaker 03:
The district court certainly resolved all of the matters in its MSJ order and repealed the appeal is in effect to all defendants.

[00:22:49] Speaker 03:
So all defendants are properly here.

[00:23:02] Speaker 00:
Good morning, Your Honors.

[00:23:03] Speaker 00:
Adam Steinmetz for the defendant appellee Fitbit.

[00:23:07] Speaker 00:
Only the defendant appellee Fitbit.

[00:23:09] Speaker 00:
I don't speak for any of the other defendants, unlike in the previous case.

[00:23:14] Speaker 00:
Your Honors, from Fitbit's perspective, this is a motion that should not have been filed.

[00:23:19] Speaker 00:
And once it was denied, it's an appeal that should not have been filed.

[00:23:23] Speaker 00:
The district court, obviously, Your Honors, are familiar with the opinion.

[00:23:26] Speaker 00:
She called it extreme and meritless, an attack on the judiciary.

[00:23:30] Speaker 05:
Let's assume that at least as to Ajax, I don't share that characterization.

[00:23:36] Speaker 00:
Yes, that's fair, Your Honor.

[00:23:38] Speaker 00:
It does sound like Your Honors have identified the timeliness requirements and the problem with respect to the other issues.

[00:23:45] Speaker 00:
With respect to Ajax, Your Honor, I think Your Honors hit on it during your questioning of opposing counsel on this, which is... Yes, sir?

[00:23:52] Speaker 04:
If we find that the motion was untimely, does that affect the argument you're about to make?

[00:23:59] Speaker 00:
I think the motion was untimely with respect to the requirements for timeliness and the concerns that have been raised by the Ninth Circuit and other circuits, which is that litigants are going to use the judicial ethics rules as a litigation strategy to gain tactical advantage.

[00:24:16] Speaker 00:
If your honors find that that's what happened here with respect to any of the allegations, then the fact that there may have been

[00:24:22] Speaker 00:
I'll call it later breaking news with respect to Ajax, because it was, as Your Honor identified, well before this motion was filed.

[00:24:29] Speaker 00:
But the fact that there was one piece of the motion that was then included among four allegations, I don't know that that saves the self-spin from the concerns that underlie the Timeliness Report.

[00:24:41] Speaker 02:
No, no, no.

[00:24:42] Speaker 02:
But I understand Judge Toronto is just asking you, let's assume that there's not a different timeliness problem, if any, with respect to Ajax.

[00:24:50] Speaker 02:
Yes.

[00:24:51] Speaker 02:
What do we do with that?

[00:24:52] Speaker 00:
Absolutely.

[00:24:53] Speaker 00:
I was just adjusting Judge Raina's question in that we feel that the timeliness problem is that this was strategic overall and that Ajax is a conveniently later application than the others.

[00:25:04] Speaker 00:
But with respect to Ajax, I think the problem as Your Honor has identified is that

[00:25:09] Speaker 00:
The recusal requirements are based on what a reasonable observer would know, and the allegations here are based on apparently what a reasonable observer would not know.

[00:25:21] Speaker 00:
They don't have evidence.

[00:25:23] Speaker 00:
They've attempted to shift the burden to the judge

[00:25:27] Speaker 00:
to the defendants their briefs are replete with.

[00:25:30] Speaker 05:
Well, it just as a procedure.

[00:25:31] Speaker 05:
How is this supposed to work when there's a very limited amount of public information?

[00:25:37] Speaker 05:
So we know this is a venture capital firm.

[00:25:40] Speaker 05:
That's what the website says.

[00:25:42] Speaker 05:
There's sort of general knowledge about, not in my mind, but in Silicon Valley maybe, about how venture capital firms get their money, how the firm

[00:25:54] Speaker 05:
pays its expenses, how the firm invests, and what the relationship is between the startup and the financier.

[00:26:08] Speaker 05:
Procedurally, when you say, boy, this raises a lot of questions, does Salesman have a route to get more facts, or what?

[00:26:20] Speaker 00:
Your Honor, I don't know what their route would be to get more facts about this, whether it would be to serve subpoenas or to raise this as an issue with the district court and then seek discovery on it.

[00:26:29] Speaker 00:
I don't have a suggestion as to what the route is.

[00:26:33] Speaker 00:
What I do know is that the law requires a substantial heavy burden on the party that's seeking to disqualify the judge.

[00:26:40] Speaker 00:
I agree that 455 is self-fulfilling, that the judge is under obligation to recuse if she feels that there is a reasonable perception of bias.

[00:26:48] Speaker 05:
But as the party bringing a motion... I'm just to be clear, sometimes it's not just how she feels, right?

[00:26:57] Speaker 05:
Sometimes the appellate court says, you felt wrong.

[00:27:00] Speaker 00:
Absolutely, Your Honor.

[00:27:01] Speaker 00:
Yes.

[00:27:02] Speaker 00:
The law does require, as the party bringing the motion and seeking to disqualify the judge, that there is a burden on

[00:27:10] Speaker 00:
the party that's seeking to provide evidence, to provide facts, not speculation about how tranche investments work or how certain partner benefits.

[00:27:23] Speaker 05:
But in deciding whether that obligation has not been fulfilled, I guess I sort of want to know how might it have done better

[00:27:36] Speaker 05:
Well, again, I guess there's no alternative than, you know, what more can you do than say, this is kind of the way the venture capital funding mechanism works when you have a gigantic company with lots of money and it's interested if

[00:27:49] Speaker 05:
you know, both for doing public good and for maybe, you know, buying some startup if it pans out.

[00:27:57] Speaker 05:
We're going to give a lot of money and, you know, there are these professionals who are very good at spending their time trying to suss out, you know, separate the good from the bad.

[00:28:11] Speaker 00:
Your Honor, again, I don't have a specific mechanism that could have been used, how they could have done better.

[00:28:16] Speaker 00:
I will say in this case, separating this from

[00:28:19] Speaker 00:
a different case where there is a venture capital firm at issue.

[00:28:25] Speaker 00:
In this case, in particular, your honor asked, do we know how much money Google invested?

[00:28:28] Speaker 00:
And as you said, they put in their brief, it's Google among others.

[00:28:32] Speaker 00:
If your honor is in the appendix, and this is at

[00:28:35] Speaker 00:
appendix 141, 174, and 178 with respect to the specific portfolio companies.

[00:28:42] Speaker 00:
Google has mentioned, as they know, among others, including, for example, on 141, particularly for, this is for the Planet Company, the portfolio company, Google, among Coke Industries, and Time Ventures, and BlackRock, there is no evidence in the record as to how much Google would have invested in these.

[00:29:05] Speaker 00:
The problem with the allegation is, whether or not they could have done better, judges are presumed to be impartial.

[00:29:11] Speaker 00:
It is the judge's job to maintain, as it is for any judge, to maintain a knowledge of what financial interests she has and the financial interests of anybody in her family.

[00:29:23] Speaker 00:
There's no allegation that she failed to keep a prize of her husband's employment or anything of that nature.

[00:29:30] Speaker 00:
She was well aware of these facts, as a reasonable observer would be well aware of these facts.

[00:29:34] Speaker 00:
and based solely on the evidence that has been provided by CellSpin, it's Google, I'm on 178 now, Appendix 178, Ripple Foods raised money from Google, Coleslaw, S2G, Tau, Soil Disease Testing, there are

[00:29:49] Speaker 00:
Allegations are simply not specific to Google at all.

[00:29:52] Speaker 00:
And to shift the burden to the judge and to the defendants, the brief constantly says, the judge didn't deny this.

[00:29:59] Speaker 00:
The defendants didn't deny this.

[00:30:01] Speaker 02:
Your time runs out.

[00:30:03] Speaker 02:
Can you address Judge Toronto's question to your friend with regard to why, I don't want to use the word moot, it's not moot, but why the grant of summary judgment against companies that are not affected by this directive?

[00:30:18] Speaker 02:
Your friend said, well, everything was tainted, even though Nikon did an appeal and whatever.

[00:30:23] Speaker 02:
Everybody's tainted automatically.

[00:30:25] Speaker 02:
What's your response?

[00:30:26] Speaker 00:
Our response is that it's harmless error under all three of the Lillibur factors, particularly in this case.

[00:30:32] Speaker 00:
The appellate process has been played out.

[00:30:35] Speaker 00:
Your honor's just heard oral argument in an appeal in which all of the defendants are here to defend themselves.

[00:30:40] Speaker 00:
In this case, there's only an appeal as to one of the defendants, Fitbit.

[00:30:45] Speaker 00:
Nikon will represent itself and affirm that they're not

[00:30:48] Speaker 00:
properly here.

[00:30:49] Speaker 00:
But as Judge Sharonto noted, the summary judgment is going to be

[00:30:55] Speaker 00:
If Your Honor has affirmed the summary judgment on grounds that are overlapping with Fitbit, then even if not under the law, even if there were something to vacate, on a factual basis, sending it back to the district court to simply rubber stamp it because the same reasoning would apply to Fitbit, we would agree that the first harmless error factor weighs in favor of not vacating the summary judgment, even if there is a 455 problem.

[00:31:18] Speaker 00:
The second Lilleberg factor is the impact on other litigants

[00:31:23] Speaker 00:
the other litigants are not here to defend themselves in this 455 appeal.

[00:31:27] Speaker 00:
And that is critical because they'd be prejudiced by having the entire summary judgment order thrown out on the basis of allegations or an appeal directed solely at Fitbit.

[00:31:38] Speaker 00:
And I think I'd be remiss if I didn't mention the third summary judgment factor, which I think the impact on the public perception of the judiciary

[00:31:47] Speaker 00:
if this type of conduct in delaying to bring a motion like this, and then that results in vacating an entire summary judgment order as to multiple defendants because of allegations that are late brought against one defendant, would be drastic in our view.

[00:32:06] Speaker 00:
So I don't know if I have responded to every question.

[00:32:09] Speaker 00:
Unless the court has other questions, we're happy to rest on our briefing as to the specific issues.

[00:32:16] Speaker 00:
Thank you.

[00:32:26] Speaker 01:
I please the court, Seth Lloyd for Nikon.

[00:32:28] Speaker 01:
Just briefly, Your Honors, because Celston failed to file a notice of appeal in a separate case against Nikon, it deprived this court of jurisdiction to grant any relief in that case.

[00:32:39] Speaker 01:
And it's clear from Selspin's Notice of Appeal, this Appendix 2167, the Notice of Appeal identifies only the Fitbit action as the action being appealed, names only Fitbit.

[00:32:51] Speaker 01:
It was docketed only in the Fitbit case.

[00:32:54] Speaker 01:
And Selspin paid only a single filing fee, docketing fee, in the Fitbit case.

[00:33:00] Speaker 01:
So there is no appeal from the case against Nikon.

[00:33:03] Speaker 01:
And so the order that was entered

[00:33:05] Speaker 01:
in the Nikon case is now final and unappealable and cannot be altered by this court because Selspin deprived the court of jurisdiction.

[00:33:14] Speaker 05:
Can you remind me, if you know, how did you get into this caption?

[00:33:18] Speaker 01:
When we filed our opposition to Selspin's recusal motion, it initially

[00:33:30] Speaker 01:
Our response initially got put on the Fitbit docket.

[00:33:34] Speaker 01:
And so then we got listed in the caption of the Fitbit docket.

[00:33:37] Speaker 01:
And at the time that this appeal was filed, we were still listed in the caption there.

[00:33:44] Speaker 01:
We contacted the clerk's office after we got listed on the docket for this appeal.

[00:33:50] Speaker 01:
And they've corrected that.

[00:33:51] Speaker 01:
We're no longer listed on the caption.

[00:33:54] Speaker 05:
In the district court docket?

[00:33:56] Speaker 01:
In the district court docket, yes.

[00:33:57] Speaker 01:
But we're still listed on this court's docket.

[00:34:02] Speaker 01:
So, for all those reasons, we agree with Fitbit.

[00:34:06] Speaker 01:
The court should affirm for the reasons Fitbit said, but at the least, it lacks jurisdiction to grant any relief in the case against Nikon.

[00:34:17] Speaker 02:
Thank you.

[00:34:17] Speaker 02:
You ran out of time.

[00:34:18] Speaker 02:
Will we start two minutes, Mr. Fuller?

[00:34:21] Speaker 03:
I'll be brief, Your Honor.

[00:34:22] Speaker 03:
Thank you.

[00:34:23] Speaker 03:
As to Judge Tronto's question to my friend, what more can a litigant do

[00:34:32] Speaker 03:
A motion under 455 is not something that should prompt a discovery investigation into the finances, the interests, the investments of a district court judge.

[00:34:46] Speaker 03:
I don't believe that is appropriate or required under the rule at all.

[00:34:51] Speaker 03:
And you don't have any reason to

[00:34:53] Speaker 05:
I mean, you know, if such investigations have not been conducted in the past or... I'm not aware of any case in which that investigation has been done and certainly as a litigant, I don't know that that would be...

[00:35:09] Speaker 03:
Necessarily proper.

[00:35:11] Speaker 03:
I would fall back to 455A, which doesn't require that type of investigation.

[00:35:19] Speaker 03:
It only requires, as we've mentioned repeatedly, the reasonable observer.

[00:35:25] Speaker 03:
And reasonable observer would not have that information.

[00:35:27] Speaker 03:
Reasonable observer doesn't conduct discovery into these matters and send subpoenas.

[00:35:33] Speaker 03:
So I think the public is aware of what

[00:35:38] Speaker 03:
is publicly available, and that's what CellSpin relied upon.

[00:35:41] Speaker 03:
That's what CellSpin presented.

[00:35:43] Speaker 03:
Now, very briefly on the Nikon question, they're here, they filed a red brief

[00:35:50] Speaker 03:
uh... the notice of docking in an icon case they didn't they didn't have a lot of choice about finding the red brief once they were put in the caption here well they are the fitbit cause number and the nikon cause number are listed in the notice of docking as filed in the uh... in the nikon district court case the order of recusal

[00:36:16] Speaker 03:
unequivocally included all of the district court case numbers, including Nikon.

[00:36:21] Speaker 03:
So the Nikon's presence here is proper for the same reason all of the defendant's presence here is proper.

[00:36:30] Speaker 03:
And we would, again, point to our briefing and just rely on the arguments that are set forth in our reply.

[00:36:38] Speaker 02:
Thank you.

[00:36:38] Speaker 03:
Thank you, Your Honor.

[00:36:39] Speaker 03:
We thank all parties.

[00:36:40] Speaker 03:
The case is submitted.