NY Judge Dumps Stock, Won't Recuse Himself

NY Judge Dumps Stock, Won't Recuse Himself
The New York Law Journal by Mark Fass - May 15, 2008

A Brooklyn federal magistrate judge who discovered that his financial adviser had purchased shares of Visa Inc., "contrary to [his] instructions," has declined to disqualify himself from a class action against Visa, MasterCard and a number of the country's largest banks. In a decision Monday, Magistrate Judge James Orenstein stated that he learned of the April 25 investment on Saturday, May 10, and sold the shares "at the opening of the business day" on Monday. He did not state how many shares were purchased, nor if or how much the investment may have earned. He did, however, declare the investment too insubstantial to require his disqualification, citing the 2002 decision by the U.S. Court of Appeals for the Second Circuit, In re Certain Underwriter, 294 F.3d 297. As the Second Circuit has recognized, "Congress amended the [recusal] statute because it was 'troubled by the outcome' of a case in which a judge was forced to recuse himself after extensive work on a class action case after discovering a financial conflict of interest," Magistrate Judge Orenstein wrote in In re Payment Card Interchange Fee, 05-MD-1720.

"I conclude that this case, like the one before the court in In re Certain Underwriter, 'falls squarely within the situation envisioned by Congress - a . . . judge with a minor interest in a class action lawsuit discovered after assignment, who quickly divested [him]self of the conflicting interest.'" The plaintiffs in the underlying case claim that a handful of the nation's largest banks "unlawfully fix the fees charged to merchants for transactions over the Visa and MasterCard Networks and enact restrictions that prevent merchants from protecting themselves against those fees." The Judicial Panel on Multidistrict Litigation transferred the case to Eastern District Judge John Gleeson in October 2005. Judge Gleeson reassigned the case to Magistrate Judge Orenstein one month later. Nearly 30 months into the massive case - the court's electronic filing system lists 125 pages of attorneys and 973 individual filings - the magistrate judge discovered he owned shares in one of the defendant companies. The same day he sold off the Visa shares, Magistrate Judge Orenstein released the present decision.

"In the interest of bringing this matter to the parties' attention as quickly as possible," he wrote, "I have not solicited the parties' views before making the decision to remain assigned to the case." Magistrate Judge Orenstein found that two elements that determined the Second Circuit's decision in In re Certain Underwriter applied in the present case as well: He has devoted "substantial judicial time" to the matter and his investment did not create "an interest that could substantially be affected by the outcome." He concluded, "Because I owned Visa shares for such a short period of time and made no substantive rulings in this case during that period, I conclude that divestiture is a sufficient alternative to disqualification." The judge added that he would entertain motions for disqualification on the basis of his investment in Visa if filed by June 11. Calls to numerous attorneys involved in the case were not returned.