# Petition — Mead Corp. v. Adams Extract Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2651%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 888 ## Text FILED JUN 30 1980 CMMCHMEEFODAK, JR. CLERR IN THE Supreme Court of the United States OCTOBER TERM, 1979 Ne. || 79-2080 THE MEAD CORPORATION and WESTVACO CORPORATION, *. Petitioners, ADAMS EXTRACT COMPANY, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FLETCHER H. ETHERIDGE HAROLD F. BAKER BUTLER, BINION, RICE, ALAN M. WISEMAN Cook & KNAPP HOwWREY & SIMON 1100 Esperson Building 1730 Pennsylvania Avenue, N.W. Houston, Texas 77002 Washington, D.C. 20006 (713) 237-3219 (202) 783-0800 Attorneys for Petitioner THE MEAD CORPORATION LESLIE H. ARPS SKADDEN, ARPS, SLATE, MEAGHER & FLOM 919 Third Avenue New York, New York 10022 (212) 371-6000 Attorneys for Petitioner WESTVACO CORPORATION WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001 TABLE OF CONTENTS ee OR A ge ty yt) 4c |. Se I I ic initial tase ccin ca stedbgnipesiinsdinslirarniretiosoncene NESS RN Ee ae Or nC BUBSTIONS PRESENTED 3 .n.n neces ennsens snes SOE I I acc iancsecoricnswnsennennsesveabsccebiasnnsenne I. History of the Proceeding ...................................... Il. III. ne ee i a a ctucumtileinhonmaiioi The Decisions Below in the District Court and I 8 eecwidsininanie A. Motions by Petitioners ................................ B. The District Court’s Decision ........................ C. Appeals to and Decisions of the Fifth Cir- ERS A eNO acaiceh teakansaiaeiaeuaia sine The District Court’s Conduct Indicating an Ap- Bo |.) See earn A. Judge Singleton’s Factual Findings as to the Existence of a Conspiracy .....................-.- B. Judge Singleton’s Out-of-Court Statements a EL ee a REASONS FOR GRANTING THE WRIT ..................... I. The Same Judge Should not be Permitted to Preside Over the Trial of Civil Antitrust Con- spiracy Cases When in a Related Criminal Cas¢ He Has Previously Found by a Preponderancé of the Evidence that the Alleged Conspiracy Existed De ete, TPN, MO cack. Smee oe OM A") ra © ee —e eo ar WOwWowow ns Wd WD 10 ii TABLE OF CONTENTS—Continued Page II. Out-of-Court Statements as to The Guilt of Defendants Require Disqualification .................... 20 III. The Record as a Whole Requires Disqualification to Prevent Manifest Unfairness to Petitioners... 22 CONCLUSION ...-.......--------0--c0--ccecsesnncenssnseseceecnnonenseessensensee 22 APPENDICES ......................---.---- ai ctesoncanens A-1 iii TABLE OF AUTHORITIES CASES: Berger v. United States, 255 U.S. 22 (1921) ........... Buckhead Theatre Co. v. Atlanta Enterprises, Inc., 8327 F.2d 365 (5th Cir.), cert. denied, 379 ee Me I earch tacenacsc haus seenuciucdasbeciianl othe Corona Construction Co. v. Ampress Brick Co., 376 eB ORG ORR |} Renn eae Dart Drug Corp. v. Parke, Davis & Co., 344 F.2d Pe as. Se BPE cris stacasiciacdnniesnaaasenicssmdansiacs Dienstag v. Bronsen, 49 F.R.D. 327 (S.D.N.Y. I The issue of disqualification of a judge F.2d 847 (9th Cir. 1977); United States v. Andrews, 585 F.2d 961 (10th Cir. 1978) ; United States v. Jackson, No. 77- 1768 (D.C. Cir. January 29, 1980). 24 United States v. Martorano, 557 F.2d 1 (1st Cir. 1977), cert. denied, 435 U.S. 922 (1978) ; United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970); United States v. Trowery, 542 F.2d 623 (8d Cir. 1976), cert. denied, 429 U.S. 1104 (1977) ; United States v. Stroupe, 588 F.2d 10386 (4th Cir. 1976); United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) ; United States v. Enright, 579 F.2d 980 (6th Cir. 1978); United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) ; United States v. Bell, 573 F.2d 1040 (8th Cir. 1978) ; United States v. Andrews, 585 F.2d 961 (10th Cir. 1978). The Ninth Circuit has retained a prima facie test to determine admis- sibility of co-conspirator hearsay statements. United States v. Rosales, 584 F.2d 870 (9th Cir. 1978). In the District of Columbia Circuit, the trial judge admits co-conspirator hear- say statements upon finding substantial, independent evidence of a conspiracy. United States v. Gantt, 617 F.2d 831 (D.C. Cir. 1980). 25 Fourth Circuit: compare, United States v. Vaught, 485 F.2d 320 (4th Cir. 1973) with United States v. Stroupe, 588 F.2d 1086 (4th Cir. 1976); Sixth Cirouit: compare United 15 who has predetermined by a preponderance of the evi- dence the ultimate issue in a civil antitrust conspiracy trial compels review by this Court. Under current standards for the admissibility of co- conspirator hearsay statements, the trial judge’s decision “calls for the exercise of judicial fact-finding responsibili- ties . . . which require him to evaluate both credibility and the weight of the evidence.” United States v. En- right, 579 F.2d 980, 985 (6th Cir. 1978). Thus, the trial judge, because of his role in the earlier criminal trial, has now prejudged the guilt of the defendants by apply- ing the precise standard which the jury must utilize in the companion civil conspiracy trial. Having previously answered the ultimate question to be decided by the jury in the civil trial, it would be difficult, if not impossible, for the trial judge to divorce his previous ruling from his conduct in the companion civil trial. This is precisely the appearance of partiality which 28 U.S.C. $ 455 was designed to avoid. Indeed, a more compelling appearance of partiality is difficult to conceive. Although trial judges frequently rule on the admissi- bility of evidence and on its sufficiency for submission to a jury, none of these other evidentiary rulings places the judge in the position of ultimate fact-finder, applying precisely the same standard to the identical, ultimate fact question to be decided by a jury in a companion States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d on other grounds, 385 U.S. 298 (1966) with United States v. Enright, 579 F.2d 980 (6th Cir. 197°); Seventh Circuit: compare United States v. Santos, 38! i°.2d 43 (7th Cir. 1967), cert. denied, 390 U.S. 954 (19€ with United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978); Eighth Circuit: compare United States v. Morton, 488 F.2d 578 (8th Cir. 1973) with United States v. Bell, 578 F.2d 1040 (8th Cir. 1978). 16 proceeding over which he presides.”* At no other time, does a trial judge in one proceeding determine under the preponderance of evidence standard the ultimate issue to be decided by a jury in a related or companion case, and then presides over that proceeding. Accordingly, in the limited circumstances when a judge rules on admissibility of hearsay statements of co-conspirators, he must recuse himself from a companion case to assure a fair and impartial trial and, moreover, to prevent the unavoidable appearance of partiality. In the criminal trial Judge Singleton applied the Fifth Circuit test applicable to the admissibility of co-conspira- tor hearsay statements as set forth in United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified, 590 F.2d 575, 580-82 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979). Under James, the trial court must twice find as a matter of fact that: 1. the alleged conspiracy existed ; 2. the alleged co-conspirators were members of that conspiracy ; and 3. the hearsay statements were in furtherance of the alleged conspiracy. Id. 26 For example, on a directed verdict motion, the trial judge must decide only whether plaintiff has presented a prima facie case, not whether plaintiff has met its burden by a preponder- ance of the evidence. Indeed, in the Ninth Circuit, the trial judge merely applies a prima facie test in ruling on admis- sibility of hearsay statements under Rule 801(d) (2) (BE). United States v. Rosales, 584 F.2d 870 (9th Cir. 1978) ; United States v. Avila-Macias, 577 F.2d 1884 (9th Cir. 1978) ; United States v. Testa, 548 F.2d 847 (9th Cir. 1970). The requirement of prima facie proof is less stringent than that of a preponderance of the evidence. The former requires only enough evidence to take the question to the jury, whereas the latter requires “proof which leads the jury to find that the existence of the contested fact is more probable than its non- existence.” McCormick, Evidence, 794 (2d ed. 1972). 17 During the course of the trial, the court is required to make all three fact findings by “substantial, independent evidence.” United States v. James, supra, 590 F.2d at 581.°" Moreover, at the conclusion of all the evidence, the court must make these same findings on the basis of a “preponderance of the evidence” (id. at 582) ; that is to say, on the basis of the standard burden of proof in all civil cases. Here, Judge Singleton, in the criminal trial, concluded, on the basis of “a preponderance of the evidence,” that a conspiracy existed to fix the price of corrugated con- tainers and that Mead was a participant in that con- spiracy. Although the jury acquitted Mead in the crimi- nal case, Mead now finds itself in a civil trial before the same judge who previously found against it under the civil standard of proof. It is hard to conceive of a situa- tion in which the court’s “impartiality might reasonably be questioned” with any greater force than here. It is precisely to avoid just this type of appearance of partiality that some courts require a remanded case to be assigned to a new judge,” random case assignment procedur n the likelihood that the *? Admissibility of co-conspirator hearsay statements re- quires, as a preliminary matter, that there be “substantial, independent evidence of the conspiracy, at least enough to take the question to the jury.” United States v. Nixon, 418 U.S. 683, 701 n.14 (1974). *8 For example, the Seventh Circuit rule provides: Whenever a case tried in a district court is remanded by this court for a new trial, it shall be assigned by the district court for trial before a judge other than the judge who heard the prior trial... . Seventh Circuit Rule 18. See also Massachusetts District Court Rule 8(i) ; Rhode Island District Court Rule 7(g). 18 same judge will preside over the retrial,” or recommend recusal whenever a judge would be required to review the evidence of a prior trial conducted by him or to re- view rulings he made during a prior trial.” Finally, the Fifth Circuit’s decision not to disqualify Judge Singleton from presiding over the companion civil case is inconsistent with decisions of other circuit courts of appeals *' and with another panel decision of the Fifth Circuit.” In Halliday v. United States, 380 F.2d 270 (1st Cir. 1967), the First Circuit disqualified a judge from presiding over a subsequent related proceeding which would have involved his reviewing the correctness of rulings which he made in an earlier proceeding. In ruling that the judge must withdraw from the second evidentiary hearing concerned with the same facts, the 2° See Connecticut District Court Rule 22; Kansas District Court Rule 27; New York District Court Rule 34 (S.D.N.Y.) ; New York District Court Rule 2(d) (8) (E.D.N.Y.). See also, United States v. Robin, 553 F.2d 8, 9 n.1 (2d Cir. 1977). 30 Holley v. Lavine, 558 F.2d 845, 851 (2d Cir. 1977), cert. denied, 485 U.S. 947 (1978); United States v. Robin, 553 F.2d 8, 11 (2d Cir. 1978) ; United States v. Columbia Broad- casting System, Inc., 497 F.2d 107, 109-10 (5th Cir. 1974) ; Peacock Records, Inc. v. Checker Records, Inc., 430 F.2d 85, 89 (7th Cir. 1970), cert. denied, 401 U.S. 975 (1971) ; United States v. Bryan, 393 F.2d 90 (2d Cir. 1968); Halliday v. United States, 380 F.2d 270, 274 (1st Cir. 1967) ; United States v. Halley, 240 F.2d 418, 419 (2d Cir.), cert. denied, 353 U.S. 967 (1957) ; Fred Weber, Inc. v. Shell Oil Co., No. 75- 1115C (2) (E.D. Mo 1976). See Wright, Federal Practice & Procedure: Criminal § 600 at 631-32 (1969 ed.). % Halliday v. United States, 380 F.2d 270 (1st Cir. 1967) ; United States v. Bryan, 398 F.2d 90 (2d Cir. 1968). 2 [nited States v. Womack, 454 F.2d 1337 (5th Cir. 1972), cert. denied, 414 U.S. 1025 (1973). 19 First Circuit stated that disqualification is even more compelling “when the court is reweighing factual in- ferences and credibility, as distinguished from applying rulings on issues of law.” Jd. at 272-73. (Emphasis added. ) The Second Circuit is in full accord with the First Circuit. In United States v. Bryan, 393 F.2d 90 (2d Cir. 1968), the Second Circuit held that the danger that a judge will be influenced in a later proceeding by factual findings he made in an earlier one alone requires dis- qualification, “especially as it minimizes even a suspicion of partiality.” Id. at 91.* Furthermore, a different panel of the Fifth Circuit has ruled that a judge who has prejudged a defendant’s guilt upon evidence he heard in a prior trial must withdraw from a later trial because it demonstrated “personal bias and prejudice.” United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972), cert. denied, 414 U.S. 1025 (1972). Since Judge Singleton, in connection with his James ruling, found “by a preponderance of the evidence” that appellants had engaged in a national conspiracy to fix prices of corrugated containers, there can be no ques- tion that Judge Singleton has predetermined appellants’ liability in the companion civil action. Moreover, not only has Judge Singleton expressly concluded that ap- pellants participated in the alleged conspiracy—the ulti- mate issue to be decided by the jury—but also he made his finding based upon “a preponderance of the evidence” —the legal standard to be applied by the jury in the civil 38 See also United States v. Lawrenson, 334 F.2d 468 (4th Cir. 1964). Judge Thomsen, who was assigned related criminal and civil cases, recused himself upon being presented an affidavit of prejudice in the civil action “for the reason that his participation in the criminal case made it inadvisable for him to try the civil action. .. .” Jd. at 468. 20 conspiracy trial. A more exacting predetermination of guilt by a trial judge could not be articulated. Il. Out-of-Court Statements as to the Guilt of Defend- ants Require Disqualification The James determinations do not stand alone. Shortly after the verdict in the criminal case, Judge Singleton made statements outside of the courtroom which clearly create an appearance of partiality under 28 U.S.C. § 459. Regarding the criminal case, the judge stated, in sub- stance, that there was a lot of incriminating documentary evidence which the government did not use, that the gov- ernment mishandled the case, that the defendants must be guilty since a number of them had paid a total of about $300 million to settle the civil cases, and that the acquittals were just a quirk. These out-of-court statements show that Judge Single- ton has prejudged not only the evidence, but also the ultimate issue of liability. Such prejudicial statements form an indisputable basis from which the court’s “im- partiality might reasonably be questioned.” Judge Singleton’s reliance on the fact of settlements by a number of defendants is particularly prejudicial to petitioners, which have not settled. Cases are settled for any number of reasons which have nothing to do with guilt or innocence, as the district court itself recognized in another context.** Accordingly, the fact of settlement 44 Denying a motion by Westvaco to assert a right of contri- bution against other defendants, the district court said: It appears that Westvaco seeks contribution primarily to avoid the coercive impact to it, as a late-settling or non-settling defendant, of the possibility of enormous damages being assessed against it. That this possibility is inherently coercive is undisputable. ... Even a defend- 21 is no evidence of guilt, and Rule 408, Fed. R. Evid., expressly states that evidence of settlement “is not ad- missible to prove liability for or invalidity of the claim or its amount.” * Nevertheless, this is exactly what the district. court did. Engaging in the rankest form of speculation as to the motives of defendants in settling claims with plaintiffs, the district court simply concluded that they must be guilty and that a nationwide price fixing conspiracy existed. This is not a case of an informed judicial opinion based on matters of record evidence, as the Court of Appeals found. It is, clearly and simply, a personal and unin- formed judgment by Judge Singleton as to the guilt of defendants based in part on the fact of settlement. This is precisely the sort of personalized bias or, at the very least, appearance of partiality against which 28 U.S.C. § 455 was aimed. See United States v. Womack, 454 F.2d 1337 (5th Cir.), cert. denied, 414 U.S. 1025 (1972). ant relatively certain of a judgment in his favor must have serious doubts about risking such exposure by going to trial. In re Corrugated Container Antitrust Litigation (Memorandum filed May 30, 1979) (Emphasis added). This Court has just granted certiorari on the issue of the existence of rights of contribution among antitrust defend- ants. 85 See also Reichenback v. Smith, 528 F.2d 1072, 1074 (5th Cir. 1976) ; Lewis v. Dixie-Portland Flour Mills, Inc., 856 F.2d 54, 56 (6th Cir. 1966) ; Paster v. Pennsylvania R.R., 48 F.2d 908, 911 (2d Cir. 1980) (L. Hand, J.); Triangle Industries, Inc. V. Kennecott Copper Corp., 402 F. Supp. 210 (S.D.N.Y. 1975) ; Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 499, 586-38 (E.D. Mich. 1974), aff’d, 519 F.2d 119 (6th Cir.), cert. denied, 423 U.S. 987 (1975). 22 Ill. The Record as a Whole Requires Disqualification to Prevent Manifest Unfairness to Petitioners The cumulative effect of Judge Singleton’s rulings in the prior related criminal trial and his out-of-court statements concerning the guilt of defendants in M.D.L. 310 require disqualification under 28 U.S.C. § 455. See, United States v. Ritter, 540 F.2d 459 (10th Cir.) cert. denied, 429 U.S. 951 (1976). In a case in which plain- tiffs claim damages in the millions of dollars, defendants are entitled to a trial which is absolutely free of any taint of partiality by the court. A fair trial in a fair tribunal is a basic requirement of due process. Our sys- tem of law has always endeavored to prevent even the possibility of unfairness. No less is required here. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, FLETCHER H. ETHERIDGE HAROLD F. BAKER BUTLER, BINION, RICE, ALAN M. WISEMAN Cook & KNAPP Howrey & SIMON 1100 Esperson Building 1730 Pennsylvania Avenue, N.W. Houston, Texas 77002 Washington, D.C. 20006 (718) 287-8219 (202) 783-0800 Attorneys for Petitioner THE MEAD CORPORATION LESLIE H. ARPS SKADDEN, ARPS, SLATE, MEAGHER & FLOM 919 Third Avenue New York, New York 10022 (212) 371-6000 Attorneys for Petitioner WESTVACO CORPORATION June 30, 1980 APPENDIX A-1 APPENDIX A List of Respondents Plaintiffs-Appellees-Respondents: Accurate Metal Weatherstrip Company, Inc. Adams Extract Company After Six, Inc. Al Barker Publishing Co. The Amberley Greeting Card Co. Andre-Boudin Bakeries, Inc. Arcadia Furniture Corp. Atlas Container Co., Inc. Austin Products Co. Bateman Canning Co. The Beaumont Co. Bert Paley, Ltd. Bodines, Inc. Bookout & Mitchell Supply, Inc. Bowman Dairy Company, Inc. Burger King Corp. Cantrell & Cochrane, Inc. Carron Manufacturing Co., Inc. Continental Nut Co. Cook Distributing Co. Cook Produce Ince. Co-Ordinated Industries, Inc. Covington Fabrics Corp. Dean Foods Co. Dean Foods Products Company Dean Milk Company, Ine. Denver Meat Co. District Hotel Supply, Inc. Doranne of California d/b/a Embassy Giftwares Douglas Furniture Corp. Draper Canning Co., Ine. Draper-King Cole, Inc. ~ es A-2 Plaintiffs-Appellees-Respondents : Dulaney Foods, Inc. Erie Seating Co. Falstaff Brewing Company Fox Deluxe Pizza Co. Furniture Plastics, Inc. Gandy’s Dairies, Inc. Gateway Farms, Inc. General Brewing Co. Golden Quality Ice Cream Co. Grace Brewing Co. Great Northern Packaging Corp. Green Bay Foods Griffin & Brand Sales Agency, Inc. Grist Mill Co. Haeger Potteries, Inc. Huron Packaging Corp. I. Kaplan, Ine. Ilikon Corporation International Frozen Foods, Inc. Iowa Beef Processors, Inc. ITT Continental Baking Co. ITT Gwaltney, Inc. Jefferson Orchards, Inc. John Inglis Frozen Foods Co. Keller Street Development Co. Land O’Lakes, Inc. Levee Furniture Co. Liberty Dairy Company Macomb Pottery Co., Inc. Maier Brewing Co. Marathon Enterprises, Inc. Metro Molding Corporation Mid-Valley Packing Co., Inc. Mister B. Greeting Card Co., Inc. Narragansett Brewing Company Northland Aluminum Products, Inc. Nutritional Food Products, Inc. A-3 Plaintiffs-Appellees-Respondents: The Paniplus Co. Pearl Brewing Company Pearson Candy Co. Penthouse Furniture Ltd. The Pillsbury Co. Poppin Fresh Pies, Inc. Red Wing Industries, Inc. Renown, Inc. Rollins Container, Inc. Ressville Packing Co., Inc. S & P Company Salsburg Meats, Inc. Sambo’s Restaurants, Inc. Seneca Industries, Inc. Shell-Tex Fisheries, Ltd. Sky View Cooling Co. Snyder-Craft Co., Inc. Speas Co. Steak and Ale Restaurants of America Sunmark, Inc. Tierra Royal Potteries, Inc. Town House Furniture Ltd. Trappe Frozen Foods Corp. United Farmers Cooperative, Inc. United Food Services, Inc. United Foods, Inc. Universal Cooperatives, Inc. Valley Avocado Sales, Inc. Valley Farms, Inc. Valley Plastics, Inc. Walters Brewing Company West Publishing Co. Westside Paper Co. Williams Manufacturing Co. Winona Industries Winter Garden, Inc. Wittek Golf Supply Co., Inc. B-1 APPENDIX B IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Nos. 79-3369, 79-3653 IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION STEERING COMMITTEE, et al., Plaintiffs-A ppellees, v. MEAD CORPORATION, et al., Defendants-A ppellants. IN RE THE MEAD CORPORATION, Petitioner. Appeals from the United States District Court for the Southern District of Texas On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas” (March 31, 1980) a) B-2 Before TJOFLAT, FAY and FRANK M. JOHNSON, Jr., Circuit Judges. FRANK M. JOHNSON, Jr., Circuit Judge: For the third time this Court is called upon to de- termine the appropriateness of a trial court ruling in this multidistrict civil antitrust litigation. See In re Cor- rugated Container Antitrust Litigation, 606 F.2d 319 (5th Cir. 1979) (appeal dismissed without published opinion), petition for cert. filed, 48 U.S.L.W. 3500 (U.S. Dec. 21, 1979) (No. 79-972) (Corrugated I) ; In re Cor- rugated Container Antitrust Litigation, 611 F.2d 86 (5th Cir. 1980) (Corrugated II). As in the other two circum- stances, the district court decision—and our considera- tion of the matter—precedes trial of the litigation, the scope of which defendants appropriately characterize as “gargantuan.” The fact that the parties have once more sought the involvement of this Court in the litigation further supports our prediction in Corrugated II that “Tblefore the litigation is completed, the case will un- doubtedly present numerous opportunities for parties dissatisfied with some aspect of a court ruling to claim entitlement to appellate review.” 611 F.2d at 89. The case, not yet tried and far from completion, has ap- parently already presented those “numerous opportun- ities.” See also In re Int’)l Bus. Machines Corp., No. 79-8070, ——-F.2d : n.2, (2d Cir. Feb. 25, 1980) (IBM). | The present controversy arises out of the refusal of the district judge, upon motion, to disqualify himself from further participation in the litigation. In No. 79- 3369 defendants seek review of the district court’s de- termination on appeal; in No. 79-3653 they request this Court to exercise its power to issue a writ of mandamus. Guided by the principles we found controlling in Cor- rugated II, we dismiss the appeal for want of an appeal- B-3 able order. Further, we deny the request for a writ of mandamus. Alternatively, we hold that under applicable statutory and case law the district judge’s refusal to dis- qualify himself was fully justified. I. APPEALABILITY: No. 79-3369 In the present situation defendants-appellants urge, as they did in Corrugated II, that the district court decision of which they complain is an appealable final order under 28 U.S.C. § 1291 within the meaning of the doctrine of Cohen v. Beneficial Indus, Loan Corp., 387 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Once again, their re- liance on Cohen is misplaced. To determine under the rule of Cohen the appealability of a district judge’s denial of a motion for disqualifi- cation, little discussion beyond that in Corrugated II is necessary.” Disqualification questions are fully review- 1 To dispose of the present matter solely on the issues of appealability and entitlement to a writ of mandamus might put to rest questions concerning the propriety of further in- volvement in the case by the district judge. Nevertheless, the extraordinary stakes involved (the proposed partial settle- ment totals nearly $300 million, see Corrugated II, swpra, 611 F.2d at 89) and our experience with the progress of the liti- gation thus far convince us that ultimately appellate consider- ation of the issue of disqualification will likely be necessary. For those reasons we reach the merits of the contentions raised here. See part III, infra. * The Cohen doctrine should be strictly construed. North Am. Acceptance Corp. Securities v. Arnall, Golden & Gregory, 593 F.2d 642, 645 (5th Cir. 1979); see Litton Systems, Inc. v. Southwestern Bell Tel. Co., 539 F.2d 418, 425 (5th Cir. 1976) ; Weit v. Continental Ill. Nat’l Bank & Trust Co., 585 F.2d 1010, 1014 (7th Cir. 1976) ; Inter- national Bus. Mach. Corp. v. United States, 480 F.2d 298, 298 (2d Cir. 1973) (en banc), cert. denied, 416 U.S. 979, B-4 able on appeal from final judgment. Davis v. Board of School Comm’rs, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) ; 18 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3558 at 384; see, e.g., Potash- nick v. Port City Constr. Co., 609 F.2d 1101, 1107-15 (5th Cir. 1980); United States v. Clark, 605 F.2d 9389, 941-42 (5th Cir. 1979) ; Whitehurst v. Wright, 592 F.2d 834, 837-38 (5th Cir. 1979); King v. United States, 576 F.2d 482, 436-37 (2d Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 155 (1978); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir. 1977) ; United States v. Partin, 552 F.2d 621, 636-40 (5th Cir.), cert. denied, 434 U.S. 908, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Precisely because disqualification issues are re- viewable following entry of judgment, as a threshold matter the Cohen doctrine is unavailing. In Coopers & Lybrand v. Livesay, 487 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), the Supreme Court ex- plained that, as a prerequisite to appealability under the Cohen rule, “the order must . . . be effectively unreview- able on appeal from a final judgment.” See Corrugated 94 S.Ct. 2418, 40 L.Ed.2d 776 (1974) ; Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int'l, Inc., 455 F.2d 770, 773 (2d Cir. 1972). ... [I]t is important to remember that ‘“‘we must be parsimonious in our analysis of appealability.” North Am. Acceptance Corp. Securities, supra, 5983 F.2d at 645. We emphasize that we must con- sider “the hazard that piecemeal appeals will burden the efficacious administration of justice and unnecessarily protract litigation . . ..” Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1094 (5th Cir. 1977). 611 F.2d at 89. In Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir. 1980), this Court noted the recent tendency of appellate courts “toward less interlocutory cossetting.” B-5 II, supra, 611 F.2d at 88; Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir. 1980) .® II. MANDAMUS: No. 79-3653 In addition to their claim that the decision of the district court is immediately appealable under the Cohen doctrine, defendants “out of an abundance of caution” also petition for a writ of mandamus. The contention does not merit extended discussion. We refuse issuance of the writ.* 8’ Defendants urge that in light of the complex nature of the case only immediate review of the district judge’s decision will be effective. Potashnick v. Port City Constr. Co., supra, refutes that contention. In Potashnick, this Court examined disqualification issues on appeal from final judgment. Al- though trial of the case lasted thirty-three days and “spawned” a record of twenty-five volumes, the parties received complete review of the matter. 609 F.2d at 1104, 1107-15. Our determination that questions concerning disqualifica- tion of judges are not immediately appealable under Cohen is fully consistent with decisions of other courts. See United States v. State of Washington, 578 F.2d 1121, 1122 (9th Cir. 1978) ; Scarrella v. Midwest Fed’l Savings & Loan, 586 F.2d 1207, 1210 (8th Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166 (1976) ; Robinson v. Largent, 419 F.2d 1827, 1827 (8d Cir. 1970) ; Dubnoff v. Goldstein, 885 F.2d 717, 721 (2d Cir. 1967) ; Rosen v. Sugarman, 857 F.2d 794, 796 (2d Cir. 1966) ; 18 Wright, Miller & Cooper, supra, § 8558 at 385. 4We do not deny our authority to review on mandamus the question of disqualification. Courts not infrequently reach the merits of disqualification issues on a consideration of whether mandamus will issue. Davis v. Board of School Comm'rs, supra, 517 F.2d at 1051-52; see IBM, supra, F.2d — , at - ; Bell v. Chandler, 569 F.2d 556, 559- 60 (10th Cir. 1978); United States v. Ritter, 540 F.2d 459, 460-65 (10th Cir.), cert. denied, 429 U.S. 951, 97 S.Ct. 870, B-6 As this Court recently stated in United States v. Den- son, 603 F.2d 1148 (5th Cir. 1979) (en banc), “Count- less expressions can be found in the jurisprudence to sup- port the black-letter proposition that mandamus is an extraordinary remedy for extraordinary causes.” 603 F.2d at 1146. “[O]nly exceptional circumstances amount- ing to a judicial ‘usurpation of power’ will justify this extraordinary remedy.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). More- over, “(t]he Supreme Court has repeatedly stated... . that issuance of a writ of mandamus lies in large part within the discretion of the court.” United States v. Denson, supra, 608 F.2d at 1146; see Helstoski v. Mea- nor, 442 U.S. 500, 504, 99 S.Ct. 2445, 2447, 61 L.Ed.2d 80, 85 (1979) [quoting Kerr v. United States District Court, 426 U.S. 894, 408, 96 S.Ct. 2119, 2124, 48 L.Ed. 2d 725 (1976)]. In the present case we decline to exer- cise our discretion to issue the writ and we do so without need of a comprehensive examination of the record. For nearly one hundred years, it has been clear that “‘lt]he general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it.” Helstoski v. Meanor, swpra, 442 U.S. at 505, 50 L.Ed.2d 819 (1976) ; In re Rodgers, 587 F.2d 1196, 1197-98 (4th Cir. 1976) ; Scarrella v. Midwest Fed’l Savings & Loan, supra, 686 F.2d at 1210; Pfizer, Inc. v. Lord, 456 F.2d 582, 536-44 (8th Cir.), cert. denied, 406 U.S. 976, 92 S.Ct. 2411, 82 L.Ed.2d 676 (1972) ; Rosen v. Sugarman, supra, 357 F.2d at 796-800; In re Union Leader Corp., 292 F.2d 381, 383-92 (1st Cir.), cert. denied, 868 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); Henry v. Speer, 201 F. 869, 870-72 (5th Cir. 1913). Moreover, in exceptional circumstances the writ will lie. See Bell v. Chandler, supra, 569 F.2d at 560; United States v. Ritter, supra, 540 F.2d at 464-65; In re Rodgers, supra, 587 F.2d at 1198. B-7 99 S.Ct. at 2448, 61 L.Ed.2d at 35 [quoting Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882) (em- phasis added by the court) ]. “[A]s a general rule ‘appel- late review should be postponed . .. until after final judgment ....’ Will v. United States, supra, 389 U.S. at 96 [88 S.Ct. at ——]; Parr v. United States, 351 U.S. 518, 520-21 [76 S.Ct. 912, 917, 100 L.Ed. 1877] (1956). ... [T]he party seeking issuance of the writ [of man- damus must] have no other adequate means to attain the relief he desires ....” Kerr v. United States District Court, supra, 426 U.S. at 408, 96 S.Ct. at 2124. As dis- cussed above, full review awaits these defendants upon appeal from final judgment. On this ground alone we refuse to issue the writ. Additionally, however, we note that the writ of manda- mus “is an order directing a public official . . . to perform a duty exacted by law,” United States v. Denson, supra, 603 F.2d at 1146, and “will not issue to correct a duty that is to any degree debatable ....” Jd. at 1147 n.2. The party seeking the writ carries the burden of proving a “clear and indisputable” right to issuance of the writ. Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. at 2124; Bankers Life & Casualty Co. v. Hoiland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). As will become clear in the discussion that follows, defendants manifestly cannot demonstrate a “clear and indisputable” right to issuance of the writ. The legal duty of the district judge to disqualify him- self is not merely debatable—it is nonexistent. Ill. DISQUALIFICATION—THE MERITS®* Mead, Westvaco, Georgia-Pacific, and Crown Zeller- bach, appellants-petitioners here, as manufacturers of corrugated containers and corrugated sheets, are defend- 5 See note 1, supra, and accompanying text. B-8 ants in one or more of forty-four class actions and eleven non-class civil actions consolidated for pretrial proceedings ° in the United States District Court for the Southern District of Texas and assigned to the Honorable John V. Singleton, Jr., now chief judge of that district.’ These four parties are among the few remaining that have not settled out of the litigation. Extensive scrutiny of the corrugated container indus- try gave rise to the massive litigation of which a rela- tively narrow controversy is herein considered. A two- year grand jury investigation of the industry resulted in criminal felony indictments against nine individuals and nine corporations, including Mead, and misdemeanor in- dictments against an additional seventeen individuals and five corporations. Defendants Westvaco, Georgia-Pacific, and Crown Zellerbach were not indicted. Judge Single- ton, after having stayed further proceedings in the civil litigation, presided over the criminal trials of those in- dicted defendants who elected to stand trial. A jury acquitted the criminal defendants of all charges on April 27, 1979. On August 30, 1979, Mead filed an affidavit of bias and motion requesting Judge Singleton to recuse himself from further presiding over the civil litigation. The motion was denied. Defendants challenge Judge Singleton’s decision and ask this Court to find Judge Singleton disqualified under the applicable legal standards.’ First, they contend that 6 The cases were consolidated under the caption Jn re Cor- rugated Container Antitrust Litigation, M.D.L. 810 (S.D. Tex.) pursuant to 28 U.S.C. § 1407. In re Corrugated Con- tainer Antitrust Litigation, 441 F.Supp. 921, 924 (Jud.Pan. Mult.Lit. 1977). "Id. ®§ The relevant statutory provisions governing disqualifica- tion of federal judges are 28 U.S.C. §§ 144, 455. [Footnote continued on page B-9] B-9 because of evidentiary findings made in the criminal trial disqualification requirements have been met. Second, they urge that certain out-of-court statements made by 8 [Continued] Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further there- in, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists .... A party may file only one such affidavit in any case. It shall be accom- panied by a certificate of counsel of record stating that it is made in good faith. 28 U.S.C. § 144. (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice con- cerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; * 4 * * + * (e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by @ full disclosure on the record of the basis for disqualifica- tion 28 U.S.C. § 455 (as amended Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L. 95-598, tit. II § 214(a), (b), tit. IV § 402(c), 92 Stat. 2661, 2682). B-10 Judge Singleton following the criminal trial were of such a nature to require his disqualification. Third, defend- ants maintain that alleged out-of-court statements of Judge Singleton’s law clerk and an interview with an in- dustry magazine that she gave reflect on Judge Single- ton in a manner that requires his disqualification. Each of the contentions fails.° Judge Singleton most appro- priately refused to recuse himself. A. Evidentiary Rulings Defendants’ main contention that Judge Singleton is disqualified from presiding further in the civil litigation rests upon his making of evidentiary rulings during the ® Westvaco, Georgia-Pacific, and Crown Zellerbach also urge that Judge Singleton’s handling of the Mead motion consti- tutes another reason for this Court to hold him disqualified from presiding further in the litigation. The specifics of the complaints will be detailed below but comment on one is appropriate here. Defendants argue that to some extent Judge Singleton’s failure to refer Mead’s motion for recusal to another district judge “placed him[] in an adversary position vis-a-vis ... the moving parties and by doing so accentuated .. . the appearance of judicial partiality.” The contention completely lacks merit. No case referred to by defendants or located in an exhaustive search of the authority suggests any negative inference that can be drawn from the fact that the judge to whom a motion to recuse is directed rules on the motion. “[I]t is for the judge who is the object of the affi- davit [of bias] to pass on its sufficiency.” 18 Wright, Miller & Cooper, supra, § 3551 at 375. “[W]hile the statute undoubt- edly permits referring the disposition of an affidavit of bias to another judge, .. . the adoption of such a procedure as a general rule would be unwise.” United States v. Azhocar, 581 F.2d 735, 788 (9th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1218, 59 L.Ed.2d 454 (1979) (citation omitted); see United States v. Olander, 584 F.2d 876, 883 (9th Cir. 1978) ; In re Union Leader Corp., supra, 292 F.2d at 384. B-11 course of the criminal trial in which Mead was involved. Pursuant to responsibilities imposed upon him by United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified, 590 F.2d 575 (5th Cir.) (en bane), cert. denied, 442 U.S. 917, 99 S.Ct. 2886, 61 L.Ed.2d 283 (1979), Judge Singleton made factual findings as a predicate to the jury’s evidentiary consideration of out-of-court state- ments made by an alleged coconspirator.*° Defendants urge, that, because Judge Singleton made the findings,” he is disqualified from presiding in the future over pro- ceedings in the civil litigation. We disagree. No court has yet faced the precise issue presented here—the effect of James rulings upon the legal propriety of a judge presiding over subsequent related proceed- ings. The issue, however, is not generically novel. We 10 Before admitting the statements of the alleged cocon- spirator as evidence Judge Singleton found “ ‘substantial, independent evidence of a conspiracy’” and of the criminal defendants’ participation in that conspiracy. See United States v. James, supra, 590 F.2d at 581 [quoting United States v. Nixon, 418 U.S. 688, 701 n.14, 94 S.Ct. 3090, 3104 n.14, 41 L.Ed.2d 1039 (1974) (emphasis added by the James court) ]. | At the close of the evidence, before he permitted the jury to consider the statements in its deliberations, Judge Singleton made the second of the James findings—that a preponderance of the evidence supported the conclusion that the conspiracy existed, that the defendants and the out-of-court declarant were coconspirators, and that the statemens were made in fur- herance of the conspiracy. See United States v. James, supra, 590 F.2d at 582. 1! Defendants argue that disqualification follows not be- cause of the substance of Judge Singleton’s James findings but rather because he was required by James to make the _ determinations. “Though not in agreement with [the] James rulings in the criminal case, defendants do not question or complain about those adverse rulings here.” B-12 believe this situation not unlike countless others in which district judges become thoroughly immersed in all aspects of a case, rule on the admissibility of evidence and on its sufficiency to permit a jury to determine the litigation’s outcome, and even form conclusions on ultimate facts involved and then later preside at trials involving the same facts and/or the same parties. As long as judges are not disqualified under these cireumstances—and over- whelming authority indicates that they are not *—we have no difficulty in holding that Judge Singleton’s James rulings in the criminal trial do not require his disqualifi- cation. It is established beyond dispute that under Section 144 ** only allegations of “personal” bias of a judge are sufficient to require disqualification. See United States v. Grinnell Corp., 384 U.S. 568, 582-88, 86 S.Ct. 1698, 1709- 10, 16 L.Ed.2d 778 (1966) ; Berger v. United States, 255 U.S. 22, 32-38, 41 S.Ct. 230, 232-233 65 L.Ed. 481 (1921) ; United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir. 1979). Moreover, for a bias to be personal, and 12 See, e.g., United States v. Clark, supra, 605 F.2d at 941- 42; Rice v. McKenzie, 581 F.2d 1114, 1118 (4th Cir. 1978) ; Weber v. Garza, 570 F.2d 511, 512 n.1 (5th Cir. 1978) ; United States v. Wolfson, 558 F.2d 59, 62-64 (2d Cir. 1977) ; United States v. Archbold-Newball, 554 F.2d 665, 681-82 (5th Cir.), cert. denied, 484 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977) ; United States v. Partin, supra, 552 F.2d at 637-39; United States v. Cowden, 545 F.2d 257, 265-66 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed. 2d 585 (1977) ; United States v. Harris, 542 F.2d 1283, 1303- 04 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); United States v. Jeffers, 532 F.2d 1101, 1111-12 (7th Cir. 1976), aff’d in part, vacated in part, 432 U.S. 187, 97 S.Ct. 2207, 53 L.Ed.2d 168, rehearing denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 164 (1977) ; 18 Wright, Miller & Cooper, supra, § 3549 (1979 Supp. at 269). 18 See note 8, supra. B-13 therefore disqualifying, it “must stem from, an extra- judicial source ....” United States v. Grinnell Corp., supra, 384 U.S. at 588, 86 S.Ct. at 1710; Berger v. United States, supra, 255 U.S. at 31, 41 S.Ct. at 232; IBM, supra, —— F.2d at , slip op. at 1417; see United States v. Serrano, supra, 607 F.2d at 1150; United States v. Clark, supru, 605 F.2d at 942; Davis v. Board of School Comm’rs, supra, 517 F.2d at 1051. In the present case there can be no question but that the James rulings in the criminal case were judicial in na- ture. While defendants suggest that the rulings were not correct, they do not hint that the rulings were in the slightest degree based upon anything other than evi- dence appropriately before Judge Singleton in a situa- tion as fully judicial as any imaginable. Rather, defend- ants rely on the 1974 amendment to Section 455. Section 455(a)’® now requires for disqualification only that a judge’s “impartiality might reasonably be questioned.” Defendants urge that, because Judge Singleton made the James rulings and because Section 455(a) does not refer to personal, extrajudicial bias, that provision requires Judge Singleton’s disqualification. Defendants, however, misunderstand Section 455 (a). This Court in Davis v. Board of School Comm’rs, supra, specifically held that even after the 1974 amend- ment to Section 455 the disqualification statutes remain to guard against personal, extrajudicial bias or the ap- pearance of partiality arising out of such bias. Construing §§ 144 and 455 in pari materia we be- lieve that the test is the same under both. We thus hold that an appellate court, in passing on questions of disqualification of the type here presented, should determine the disqualification on the basis of conduct 14 See note 11, supra. 15 See note 8, supra. B-14 which shows bias or prejudice or lack of impartial- ity . . [,] conduct extra-judicial in nature as dis- tinguished from conduct within a judicial context. This means that we give §§ 144 and 455 the same meaning legally for these purposes, whether for pur- poses of bias and prejudice or when the impartiality of the judge might reasonably be questioned. 517 F.2d at 1052 (emphasis added).’* Since Davis, other courts have enunciated the rule that Sections 144 and 455(a) reach the same sort of conduct. IBM, supra, —— F.2d at ; United States v. Olander, supra, 584 F.2d at 882; United States v. Haldeman, 181 U.S.App.D.C. 254, 356 n.297, 559 Fi2d 31, 1383 n.297 (D.C.Cir. 1976), cert. denied, 431 U.S1933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F.Supp. 230, 283 (D.Hawaii), appeal dis- missed, 564 F.2d 1343, 1347 (9th Cir. 1977); see King v. United States, supra, 576 F.2d at 437. Moreover, in numerous cases since the enactment of Section 455 (a) courts have held that familiarity with defendants and/ or the facts of a case that arises from earlier participa- tion in judicial proceedings is not sufficient to disqualify a judge from presiding at a later trial.” 16 The Davis court, however, recognized an exception to the requirement where the circumstances are of such an extreme nature that the judicial conduct demonstrates “pervasive” bias and prejudice. 517 F.2d at 1051; see Whitehurst v. Wright, supra, 592 F.2d at 838; United States v. Wolfson, supra, 558 F.2d at 63. Indeed, such aggravated circumstances have arisen. See Nicodemus v. Chrysler Corp., 596 F.2d 152, 155-56 (6th Cir. 1979); Bell v. Chandler, supra, 569 F.2d at 559-60. 17 See authorities cited note 12, supra; see also Meeropol v. Nizer, 429 U.S. 1337, 1338 n.2, 97 S.Ct. 687, 689 n.2, 50 L.Ed. 2d 729 (Marshall, Circuit Justice, 1977); United States v. Montecalvo, on rehearing, 545 F.2d 684, 685 (9th Cir. 1976), B-15 We have long disclaimed any notion of “ ‘no-deposit/ no-return judges, disposable after one use’”. United States v. Partin, supra, 552 F.2d at 687 n.20 [quoting United States v. Harris, 458 F.2d 670, 678 (5th Cir.), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977) ; United States v. Dodge, 538 F.2d 770, 782 (8th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 547 (1977) ; United States v. Bernstein, 583 F.2d 775, 784-85 (2d Cir. 1976), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1977). The Second Circuit, applying the same standards that gov- ern here, stated in United States v. Wolfson, supra, that “a defendant who has undergone two lengthy trials before the same judge, both of which ended in guilty convictions, may come to consider that judge as biased against him. These suspicions are understandable, but ... they do not provide a reasonable basis for questioning a judge’s impartiality.” 558 F.2d at 64. Similarly, in United States v. Partin, supra, this Court held that a judge who had presided over six separate trials arising from one indictment was not disqualified from presiding at a retrial of two defendants following an appellate reversal. 552 F.2d at 636, 639. In Partin, we rejected a per se rule against a district court judge’s retrying a case after mistrial or reversal. “[S]uch a rule is not the sine qua non for either the substance or the appearance of justice... . Altogether, we see little to commend such a rule.. ..” Jd. at 639 (emphasis added). Finally, in United States v. Archbold- Newball, supra, we held a district judge’s comments at de- fendants’ bail hearing not to disqualify him from trying the defendants. The judge’s statements were to the effect that (1) he had, on the basis of three earlier trials, concluded that a conspiracy did exist; (2) he would consider the earlier trials; (3) he believed a D.E.A. agent involved in the case to be a credible witness; and (4) he thought that there was abundant additional evidence of the defendants’ membership in what he described as a “large-scale conspiracy composed of the most vicious individuals that this court has ever seen.” 554 F.2d at 681-82. B-16 cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972) ]; see Umted States v. Archbold-Newball, supra, 554 F.2d at 682. We do so again. Judge Singleton’s James rulings in the criminal trial are not sufficient to cause a reasonable third party to question his impar- tiality in the civil litigation. Nothing to which defend- ants point suggests anything but a “reasonable likeli- hood that the cause will be tried with the impartiality that litigants have a right to expect in a United States district court.” United States v. Ritter, swpra, 540 F.2d at 464,"* 18 The legislative history to Section 455(a) indicates that: [I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possi- bility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that e judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice. H.R.Rep. No. 1453, 98d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6351, 6355 (emphasis in original). Despite defendants’ contention that their argument rests on the fact of the James rulings rather than on the substance of those rulings, see note 11, supra, we are highly skeptical that if Judge Singleton’s James findings had been different, any question of his disqualification would have been raised— at least by defendants. To that extent, defendants are “seeking to avoid the consequences of [an] expected adverse decision.” H.R.Rep. No. 1453, supra, at 6355. B-17 B. Judge Singleton’s Out-of-Court Comments The second ground on which defendants urge the dis- qualification of Judge Singleton involves a conversation between him and an attorney for one of the acquitted criminal defendants shortly after completion of the criminal trial. The allegations concerning the conversa- tion are contained in affidavits by two attorneys for Mead.’* In essence, they state that, on the day after 1? Harold F. Baker, attorney for Mead, filed an affidavit in support of Mead’s “motion for Judge Singleton to recuse himself” on August 29, 1979. On September 14, 1979, Robert L. Green, another Mead attorney, filed an affidavit in support of a motion for Judge Singleton to reconsider his denial of the original motion. In pertinent part, Mr. Baker’s affidavit states as follows: On or about June 14, 1979, I had a telephone conversa- tion with Mr. William Maddux, who represented ... a misdemeanor defendant [] in the trial of the criminal case. During that conversation, Mr. Maddux confirmed to me that he and Judge Singleton played golf on April 28, 1979, the day after the jury verdict acquitting the eight remaining defendants in the criminal case. Mr. Maddux stated that on this occasion Judge Singleton told Mr. Maddux in substance that there was a lot of incriminat- ing evidence in the document depository which the gov- ernment did not use and that the government mishandled the case against the defendants. Furthermore, Mr. Mad- dux stated to me that Judge Singleton told him in sub- stance that the civil defendants must be guilty or they would not have paid $300 million to settle the civil cor-_ rugated class action suit. With respect to the conversation, Mr. Green’s affidavit states: On June 8, 1979, I had a telephone conversation with William Maddux, an attorney who represented Mr. Nu- man Garrison, a misdemeanor defendant in the trial of the criminal case. I telephoned Mr. Maddux solely to ask B-18 the jury in the criminal trial acquitted the defendants, Judge Singleton played golf with William Maddux, an attorney for one of the misdemeanor defendants. On that date, according to the affidavits, Judge Singleton stated that the government had mishandled the prosecu- tion and had left incriminating evidence unused in the document depository. Moreover, Judge Singleton was alleged to have stated that the civil plaintiffs would not make the mistakes that the government had made and that the civil defendants would not have paid $300 million to settle the lawsuit unless they were guilty. him to send me certain exhibits which he had introduced in the criminal case, copies of which I did not have. During the course of my conversation with Mr. Mad- dux, Mr. Maddux stated to me, without any question from, or suggestion by me, that Judge Singleton had made a number of statements about the civil corrugated container litigation. Maddox quoted Judge Singleton as having stated that the acquittals were just a quirk be- cause the government had much more damaging evidence it could have introduced but that the jury did not hear. Mr. Maddux also quoted Judge Singleton as having stated that the lawyers for the civil plaintiffs are sharp and that the evidence which was not introduced in the criminal case would come out in the civil cases. Mr. Maddux further stated that Judge Singleton made it clear to him that there was no question in the Judge’s mind concerning the criminal defendants’ guilt and that the Judge blamed the verdict on the inadequacy of the government attorneys. Mr. Maddux also quoted Judge Singleton as stating that the defendants must be guilty since they paid $300 million in settlements because smart people did not pay that kind of money unless there was more evidence than what the jury in the criminal case heard. B-19 As we are required to do, we accept as true the al- legations contained in the affidavits. Berger v. United States, supra, 255 U.S. at 36, 41 S.Ct. at 234; United States v. Serrano, supra, 607 F.2d at 1150; Davis v. Board of School Comm'rs, supra, 517 F.2d at 1051; 13 Wright, Miller & Cooper, supra, § 3551 at 381. The allegations, however, are insufficient to require Judge Singleton’s disqualification. The affidavits do not suggest any personal, extraju- dicial bias; nor does a question of Judge Singleton’s impartiality arise because of the danger of such bias. Taken as alleged by the defendants, all of the state- ments reflect comments on the evidence and, at most, opinions developed through Judge Singleton’s participa- tion in the case. As in United States v. Haldeman, supra, “while these thoughts were voiced in an extra- judicial setting . . . the informational source upon which they drew—the judge’s experience as a judge—was dis- tinctly judicial.” 181 U.S.App.D.C. at 359, 559 F.2d at 136. Such statements are not improper and do not re- quire Judge Singleton’s disqualification. See United States v. Clark, supra, 605 F.2d at 942; United States v. Haldeman, supra, 181 U.S.App.D.C. at 359, 559 F.2d at 1386; United States v. Montecalvo, supra, 545 F.2d at 685; United States v. Bernstein, supra, 533 F.2d at 785. C. Actions of Judge Singleton’s Law Clerk Defendants’ final contention that Judge Singleton is disqualified from presiding further in the litigation is derivative in nature. Defendarts assert that the conduct of Judge Singleton’s law clerk necessitates his disquali- fication.” Since this Court has held that ordinarily a 20 Baker’s affidavit filed in support of this contention states that: [Footnote continued on page B-20] B-20 20 [Continued] It is my understanding that Judge Singleton’s law clerk .. . was hired specifically to assist Judge Singleton in the criminal corrugated cases and the related civil cor- rugated cases. [The clerk] on or about May 9, 1979, shortly after the not guilty verdicts were returned April 27, 1979, told an attorney representing Mead in substance that defend- ants did not deserve to win the criminal trial and that plaintiffs’ counsel in the civil cases would do a better job than the government counsel did in the criminal cases. At some time prior to June 6, 1979, [she] was re- portedly interviewed by, or talked to a representative of, a trade magazine for purchasing agents, a group which includes employees of the named plaintiffs and class mem- bers in the pending corrugated container proceedings. [The clerk] was quoted in Purchasing magazine, pub- lished on June 6, 1979, as saying that “Industrial buyers may choose not to participate in the settlement and press their own suit, seeking higher payment. If a large num- ber of companies decide to file their own suits, then the amount left of the $295 million for the others will be higher.” . . . The statements attributed to [her] in this trade magazine constitute a recommendation (or may be reasonably so interpreted) that purchasers of corrugated — containers opt out of the classes established for settlement and file their own suits. These statements ... are par- ticularly prejudicial in light of [her] expressed, and I believe well known, bias against defendants .. .. Her statements could have a substantial adverse impact on the ultimate dollar liability of Mead and defendants generally in ‘this civil litigation. This is especially so since notices to the class are now being prepared and will, in the normal course of events, be sent to prospective class members. The law clerk’s statements to counsel outside the court- room, her interview and the substance of her remarks, I believe, constitute bias on her part and taint the appear- ance of impartiality required of Judge Singleton and his B-21 judge’s bias, to be disqualifying, must run to a party rather than merely to the attorney, Davis v. Board of School Comm’rs, supra, 517 F.2d at 1050-51, we think it fitting to restrict those situations in which the bias of a law clerk wil! work to disqualify the clerk’s em- ployer. Clearly, a law clerk’s views cannot be attributed to the judge for whom the clerk works. Moreover, even if law clerks’ opinions accurately reflected the views of their employers, we could not hold Judge Singleton dis- qualified in the present case because of actions and state- ments attributed to his law clerk. Defendants allege that the law clerk voiced her opin- ions on the resolution of the criminal case to one of Mead’s lawyers. Setting aside questions, of which we have many, of the propriety of such comments, they are clearly based upon her observations made in connection with the case. If Judge Singelton cannot be found disqualified for opinions he developed in the course of the litigation, it is difficult to comprehend how he could be found disquali- fied because of the opinions his law clerk developed in a judicial setting. The law clerk also allegedly gave a press interview and, of course, defendants also urge that as a ground for the disqualification. In giving an interview with the press, the clerk most likely breached duties imposed upon her by Canons 3 A(6),”" see United States v. Haldeman, law clerk in this massive pending litigation. Whether or not Judge Singleton assented to the interview or whether or not [her] public statements reflect the judge’s view- points, her comments raise serious questions concerning the appearance of this Court’s impartiality in these civil corrugated container proceedings. 21 Canon 3A (6) provides: A judge should abstain from public comment about a pending or impending proceeding in any court, and B-22 supra, 181 U.S.App.D.C. at 357, 559 F.2d at 134, and 3 B(2),™ of the Code of Judicial Conduct for United States Judges. Nevertheless, the statements attributed to the clerk constitute no basis for disqualification of Judge Singleton. Indeed the statements express no opin- ion whatsoever. Rather, they merely state obvious fact: if fewer members of the class elect to participate in the settlement, each claimant’s share will increase. There is no basis on which Judge Singleton shouldbe dis- qualified. No. 79-38369-—-APPEAL DISMISSED. No. 79-83653—WRIT OF MANDAMUS DENIED. should require similar abstention on the part of court personnel subject to his direction and control. This sub- section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. 22 Canon 8 B(2) provides: A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him. C-1. APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MDL No. 810 IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION THIS DOCUMENT RELATES To: ALL CASES MEMORANDUM AND ORDER The Mead Corporation, a defendant in these cases,’ has on August 29, 1979, filed a motion requesting that the court recuse itself from this litigation.. Three other defendants, Crown Zellerbach, Georgia-Pacific, and West- vaco,? have now joined in the motion. Because this mo- 1 Mead is a plaintiff in two of the cases conditionally trans- ferred to this court. In one, it seeks to continue its efforts to establish a right to claim contribution from other defend- ants in the main litigation in the event liability is established against it, Mead Corp. v. Alton Box Board Co., et al.; in the other it seeks injunctive and declaratory relief against plain- tiffs who filed a claim similar to the claims in the main liti- gation but under California state law, Alton Box Board Co., et al. v. Esprit de Corps. 2 These three defendants were not indicted and took no part in the criminal proceedings. C-2 tion is addressed to a claimed personal bias, I consider it proper to answer it in the first person. Mead seeks my disqualification under two statutes, 28 U.S.C. § 144 and 28 U.S.C. § 455. These statutes read, in relevant part, as follows: Section 144: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” Section 455 provides: “(a) Any justice, judge, magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be ques- tioned. (b) He shall also disqualify himself in the fol- lowing circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the pro- ceeding.” 7 C-3 As the Fifth Circuit has recognized, the test is the same under both, a reasonable factual basis—reasonable man test. Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975). Case law makes it clear that the trial judge is to de- termine the legal sufficiency of the affidavit, although for that purpose he accepts the factual allegations as true. Berger v. United States, 255 U.S. 22 (1921). The bias or prejudice must be “personal”—‘“an atti- tude of extrajudicial origin, derived non coram judice. ... The statute never contemplated crippling our courts by disqualifying a judge, solely on the basis of a bias (or state of mind...) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him.” Craven v. United States, 22 F.2d 605, 607-08 (1st Cir.), cert. denied, 276 U.S. 627 (1927). Opinions formed by judges in the course of pre- siding over prior related proceedings have consistently been held not to constitute grounds for disqualification. Citing only recent Fifth Circuit cases, we have United States v. Archbold-Newball, 554 F.2d 665, 681-82, (5th Cir. 1977) ; United States v. Partin, 522 F.2d 621, 636-39 (5th Cir. 1977) ; United States v. Sutherland, 463 F.2d 641, 650 (5th Cir. 1972). An expression of belief in a defendant’s guilt is not in itself grounds for disqualifi- cation. United States v. Bolden, 355 F.2d 453 (7th Cir.), cert. denied, 384 U.S. 1012 (1965); United States v. Sutherland, supra. All of these cases, and the many, many others which this court has consulted on the ques- tion of recusation, support my belief that the allegations contained in the motion and affidavits are insufficient as a matter of law to raise in any reasonable person’s mind a belief that I am prejudiced against Mead, or any other litigant in this case, or that the rulings I have made and may make in the future will be motivated by any other desire than the desire to provide equal justice under the law. C-4 The gist of Mead’s motion is that during the trial of Mead and others on charges of illegally conspiring to fix prices in the corrugated container industry I formed an opinion as to Mead’s guilt which renders me unable to preside impartially over this related litigation. Grounds for the motion are (1) the evidentiary findings required to be made by me by James® in the course of the trial of those indicted; (2) a conversation I had with an at- torney for one of the individuals tried and acquitted in those proceedings; and (8) two statements alleged to have been made by my law clerk. Mead has known since the indictments were returned in January of 1978 that I was going to preside over both the criminal trial and the civil proceedings, which had been transferred to me by the Judicial Panel on Multi- district Litigation on November 29, 1977, pursuant to 28 U.S.C. § 1407. The fact that T would have to make evi- dentiary rulings of the type of which Mead now com- plains must surely have been known to its counsel; in- deed, the form which the James findings would take was the subject of hours of discussion in the proceedings in- volving those indicted. Mead does not complain of any prejudice to it during the three-and-a-half month trial; indeed it could hardly do so. Mead was permitted, over strenuous government objection, to present a lengthy de- fense based on its antitrust compliance program, a defense which has never before been held to constitute a defense to price fixing or to the criminal intent of a corporation. The court embodied that defense in its instructions to the jury. (The relevant portion of the jury charge is at- tached to this opinion as Exhibit A.) The jury returned a unanimous verdict of acquittal after less than one day’s deliberations. No animus on my part could be alleged against Attorney Baker, who filed the motion and affi- davit. In fact, until this motion was filed I firmly be- 3 United States v. James, 590 F.2d 575 (5th Cir. 1979). -C-5 lieved him to be house counsel for Mead and not counsel of record. I was surprised to learn that he is a member of % prestigious Washington, D.C. law firm. Throughout the proceedings in both this litigation and the trial of those indicted, I have allowed Attorney Baker to address me on any point he desired, and I believe I have always been courteous and fair to him. Neither does Mead allege that any rulings in the civil litigation have been affected by my supposed “prejudice” against any party. Some rulin ; in this case have been in © favor of one group of litigants,,some of another, as must be true in any normal litigation. In the comparatively recent past, I have denied the motion of non-settling defendants (among them Mead and the three other de- fendants joining in this motion) for leave to amend their answers to assert claims for contribution against the settling defendants, who now comprise approximately 80% of the market and who have agreed to pay almost $300 million to the plaintiffs’ class. That ruling, which followed the great weight of federal case law, was certi- fied as a final ruling under Rule 54, Fed. R. Civ. P., to enable movants to appeal promptly and have the question settled by the Court of Appeals. Other recent rulings as to discovery, such as access by plaintiffs to grand jury materials and the scope of discovery, can be construed as favorable to Mead and the other non-settling de- fendants. - Mead’s, motion and accompanying affidavits clearly do not present grounds for recusation by establishing either actual prejudice or a reasonable appearance of prejudice. If such a serious motion can ever be termed frivolous, this motion can indeed be so labeled. Presiding over the pretrial aspects of this massive litigation has not been a sinecure. I have no personal interest in continuing to preside; however, in my thirteen years on the bench I have never avoided doing my judicial duty because it was ~~ C-6 complicated, burdensome, or unpleasant, and I do not intend to do so now. I will speak briefly about the three grounds Mead sug- gests for its motion. United States v. James, 590 F.2d (5th Cir. 1979), requires a trial court, before admitting coconspirator hearsay under Rule 801(d) (2) (E), Fed. R. Evid., to determine on the record and by a preponderance of the evidence that a conspiracy existed and that both the defendant against whom it is admitted and the de- clarant were members of the conspiracy. The problems raised by Rule 801(d) (2) (E) have been handled some- what differently by different circuits, but all require some determination by either a court or jury of the critical issues of existence of, and participation in, a conspiracy before considering coconspiracy hearsay. In this circuit under United States v. Apollo* which was the controlling law in this circuit during the trial of those indicted, it was the jury who performed this function—a very diffi- cult task for laymen in most cases and, in the long com- plicated multi-defendant case in question, probably an impossible one. The James rule is clearly more sensible and more protective of the defendant than the Apollo rule and was the approach taken by me in that trial. Any suggestion that the James rule makes it impossible, for example, for the same judge impartially to retry a case which has been reversed and remanded to him would be as absurd from the standpoint of judicial administra- tion as a suggestion that a judge who rules on the sup- pression of illegally obtained evidence cannot impartially try the case from which he has excluded it. A fortiori, where the second trial is a civil case, involving different evidence, somewhat different allegations, different parties and many different issues, the James determination stand- ing alone cannot require assignment to a new judge to insure impartiality to a defendant. 4476 F.2d 156 (5th Cir. 1973). C-7 Mead cites as its second instance of prejudice a con- versation between Mr. William Maddux and myself. The conversation did take place, and arose as follows: Mr. Maddux is a Chicago attorney who represented Mr. Nu- man Garrison, one of the acquitted defendants. A friend of mine informed me that Mr. Maddux would like to play golf with me after the trial was over. I invited Mr. Mad- dux at the conclusion of the trial to play golf with me. Under the circumstances, our conversation naturally cen- tered around the trial which had taken the lion’s share of our time for the past several months. During that conversation my recollection is that I did say that I considered it odd that counsel for the United States should have tried a case of that nature and that magnitude with virtually no documentary evidence, especially in view of the fact that the document depository had been said by all parties to contain almost two million documents. The civil plaintiffs had filed a selection of these documents with the court in the civil litigation. My knowledge of those documents is confined to my judicial experience in the civil litigation. I also agreed with Mr. Maddux that it seemed strange that so many of the defendants in the civil case would have paid so much money, nearly $300 million, to settle a completely unfounded case. Even if this remark could be stretched to constitute a statement that I thought the settling defendants guilty, that would not apply to Mead or any other defendant who has not entered into a settle- ment agreement in this litigation. While I was drafting this memorandum, I received a call from Mr. Maddux, who expressed shock and indig- nation at what he had learned was in Attorney Baker’s affidavit. He requested leave to file his own affidavit, which is attached as Exhibit B. C-8 As the third instance of my alleged prejudice, Mead cites two statements attributed to my law clerk. One of them is taken from an article published in Purchasing magazine, the relevant portion of which is as follows: “Linda Marshall, law clerk for Judge Singleton, says industrial buyers may choose not to participate in the settlement and press their own suit, seeking higher payment. If a large number of companies decide to file their own suits, then the amount left of the $298 million for the other will be higher, she told Purchasing in an interview.” Mead contends that this demonstrates a prejudice against Mead and other non-settling defendants by encouraging plaintiffs to opt out of the class. Such a reading of the quoted statement is extremely strained; the statement clearly reflects no more than a recognition that. class members may opt out and pursue their own remedies if they wish, an undisputed right of which all class mem- bers will be informed by class notice this month. The other statement attributed to my law clerk, when put into context, was a response to the suggestion by one of Mead’s counsel that a motion for summary judgment on liability could lie in the civil litigation for the time period covered by the acquittal in the trial of those indicted and was apparently a question as to whether summary judgment would be proper in the civil case, where the allegations, burden of proof, evidence, parties, and at- torneys were likely to be different from the trial of those indicted. Under any circumstances, the views of a law clerk, a court reporter, docket clerk, or other court personnel are not the views of the court and, contrary to some at- torneys’ belief, have little or no influence on a judge’s decisjons. C-9 I have been on the federal bench for thirteen years. In all that time, I have never been faced with a motion seeking my disqualification. It would appear that the very large amount of money on the table in this litiga- tion, though in no conceivable way influencing my im- partiality, provides a strong incentive to attorneys in the case to leave no stone unturned, however unpromising or unsavory. Indeed, a disproportionate number of the cases I have viewed on this issue have arisen in expensive, multidistrict antitrust or other business litigation. I have spent almost two years of intensive work on this litiga- tion, and the familiarity I have gained with the issues and the industry could not quickly or inexpensively be duplicated by another judge. Most of the defendants have reached tentative settlement with the class, class notice is scheduled to go out this month,® and an intensive dis- covery schedule is under way. Delay may be in the in- terest of some of the litigants, but is not in the interest of justice. Because I find both that I have no personal prejudice against Mead or any other litigant, and also that no rea- sonable person could reasonably question my impartiality, Mead’s motion for my recusation is DENIED. DONE and ENTERED this 11th day of September, 1979. /s/ John V. Singleton JOHN V. SINGLETON United States District Judge 5 As pointed out in this opinion, Mead has known for months of the grounds alleged in its affidavit and it knows that a trial date is still many months away. It has chosen the Thursday before Labor Day to file this motion, knowing that on the Wednesday following the long weekend a final form of notice would be approved for mailing September 15. C-10 EXHIBIT A A corporation is in law a person, but of course it cannot act otherwise than through its directors, officers, employees, or other agents. Authority to act for a cor- poration in a particular matter, or in a particular way or manner, may be inferred from the surrounding facts and circumstances shown by the evidence in the case. That is to say, authority to act for a corporation, like any other fact at issue in this case, need not be estab- lished by direct evidence. It must be established beyond a reasonable doubt. Every act of every director or of- ficer or employee or other agent on behalf of or in the name of a corporation, if done within the scope of their authority, is in law the act of the corporation itself. However, the Government must prove beyond a rea- sonable doubt that each corporation—Mead and Conti- nental—possessed the required intent as defined in these instructions. One of the factors you may consider in de- termining the intent of each corporation, among other evidence, is whether or not that corporation had an antitrust compliance policy. In this regard, you are in- structed that the mere existence of an antitrust com- pliance policy does not automatically mean that a cor- poration did not have the necessary intent. If, however, you find that a corporation acted diligently in the pro- mulgation, dissemination, and enforcement of an anti- trust compliance program in an active good faith effort to ensure that the employees would abide by the law, you may take this fact into account in determining whether or not the corporation had the required intent. Some of these programs were intended to be more re- strictive than the antitrust laws, and the compliance pro- grams are not an accurate statement of the laws on ex- change of price information. It is important that you not confuse the terms of compliance programs with the C-11 law, which I am giving you in these instructions. You may consider such a compliance program only as to the intent of the company which propounded it. You may not consider it in determining the intent of any individual defendant. C-12 EXHIBIT B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MDL No. 310 (All Cases) = s§ sy IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: ALL ACTIONS NOTICE TO: SEE RIDER ATTACHED PLEASE TAKE NOTICE THAT ON THE 7th DAY OF SEPTEMBER, 1979, that we filed with the United States District Court for the Southern District of Texas, Houston Division, the Affidavit of William D. Maddux, a copy of which is herewith served upon you. /s/ William D. Maddux & Associates WILLIAM D. MAppux & ASSOCIATES One North LaSalle, Suite 1909 Chicago, Illinois 60602 312/782-2525 . C-13 STATE OF ILLINOIS ) ) SS COUNTY OF CooK ) Lola Kaduszkiewicz, being first duly sworn, deposes and says that she mailed a copy of the foregoing Affidavit to each attorney appearing of record in this cause by de- positing a copy of the same in the United Mail Chute located at 1 North LaSalle, properly addressed to said attorneys with proper postage affixed thereto, on this 6th day of September, 1979. /s/ LL. Kaduszkiewicz L. KADUSZKIEWICZ Subscribed and sworn to before me this 6th day of September, 1979. /s/ Rebecca Anguhofer REBECCA ANGUHOFER Notary Public C-14 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MDL No. 310 (All Cases) IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: ALL ACTIONS AFFIDAVIT I, WILLIAM D. MADDUX, being first duly sworn on oath, depose and state that if called as a witness in this cause, can testify competently to the following: 1. It has come to the attention of this Affiant that an attorney, Mr. Hal Baker, has filed a Petition requesting that the Honorable John V. Singleton recuse himself from the trial of this cause based in part on an alleged conversation between Affiant and Judge Singleton, as a result of which it is claimed that Judge Singleton is biased and preju- diced towards Mr. Baker’s client. 2. By way of background, it should be recalled that your affiant represented an individual defendant in the criminal case tried before Judge John V. Singleton with a jury from January 21, 1979 to April 27, 1979. C-15 . That during the trial of said case, your affiant had no occasion to discuss the case in any respect with the Honorable John V. Singleton outside of the contact in the courtroom. . That during the course of said case, your Affiant came to know that the Honorable John V. Single- ton was an avid golfer and expressed an interest in playing golf with Judge Singleton at the con- clusion of the case. A mutual friend informed Judge Singleton of this interest. . That after the verdict of the jury was returned finding all of the defendants not guilty, Judge Singleton was kind enough to extend an invitation to your Affiant to play golf, which was done the following day, Saturday, April 28, 1979, during which time your Affiant found Judge Singleton to be an affable and congenial host. . That during said game of golf, your Affiant ex- pressed the opinion that the government in the trial of the criminal case must have overlooked evidence since it was difficult for your Affiant to believe that such an extensive grand jury investi- gation leading to the number of indictments re- turned. An analysis of the evidence presented at the trial in view of the fact that by the conclusion of the trial, approximately three hundred million dollars had been paid by various defendants in the civil cases in order to settle the civil class action led this Affiant to observe that there surely must have been better evidence available to the government. . Judge Singleton relayed to your Affiant nothing more than an observation that Affiant’s observation probably had some merit. The observation to Af- fiant was nothing more than a common sense ob- 10. 11. C-16 servation expressed by counsel for various of the criminal defendants during and at the conclusion of the criminal case. During the informal contact at the conclusion of the case, it was apparent that your Affiant would have no further contact with Judge Singleton on the criminal case nor the civil case and the con- versation with Judge Singleton was in the context of an informal lawyer-to-lawyer comment in a relaxed atmosphere and no information was ob- tained from Judge Singleton, which, in your Af- fiant’s opinion, indicated any bias or prejudice to anyone. In fact, the entire context of a very brief exchange of comments concerning the criminal case, at no time indicated to your Affiant that Judge Single- ton was opinionated and certainly did not indicate to your Affiant nor would it indicate to any rea- sonable observer, that he was in any way hiased in favor of or against anyone in any of the mat- ters pending before him or which had terminated. It is the opinion of your Affiant from having ob- served Judge Singleton’s conduct during the course of the extensive trial of the criminal case, that he is a man of extreme patience, possessing a high degree of legal knowledge and judicial tempera- ment. His conduct during the course of the com- plicated and lengthy criminal trial was certainly beyond reproach and his attitude towards the de- fendants and defense counsel, both formally and informally, could not reasonably lead any observer with any sense of fairness to conclude that he was in any way biased or prejudiced. It is the intention of your Affiant, by this Af- fidavit, to express in no uncertain terms, his feel- C-17 ings that the allegations made by Mr. Hal Baker, are in no way based upon fact, are in the nature of “scuttlebutt’”’ which was common amongst de- fense counsel active in the defense of this criminal case. This did not include Mr. Baker. The con- clusions drawn from such scuttlebutt are at the very best devoid of fairness or understanding. FURTHER, AFFIANT SAYETH NOT. /s/ William D. Maddux WILLIAM D. MADDUX STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) William D. Maddux, being first duly sworn on oath, deposes and says that he has read the above and fore- going affidavit signed by him, and that the said Affidavit is true. /s3/ William D. Maddux WILLIAM D, MADDUX Subscribed and sworn to before me this 6th day of September, 1979. /s/ Rebecca Anguhofer REBECCA ANGUHOFER Notary Public --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2651%3A1. Public record. Not legal advice.