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Lawyer sanctioned after late recusal motion

A trial lawyer has two chances to request recusal. The lawyer takes a pass both times. The judge rules against the lawyer’s client.

It’s hard to argue on appeal that the judge’s bias requires reversal. Not only did the lawyer lose the appeal in a fight over an Internet domain name, he was hit with a $10,000 sanction for his “suspicious timing.”

When a lawyer in Newport News Holdings Corp. v. Virtual City Vision Inc. belatedly saw the light about Magistrate Judge F. Bradford Stillman, the 4th Circuit sniffed suspiciously. Yesterday the appellate panel said the lawyer waited too long to ask the judge to hand off the file to a colleague.

Appellant Virtual City Vision said it owned domain names of geographic locations to provide information and advertising for specific cities. In 1997, VCV bought the domain name “newportnews.com.” Newport News Holdings Corporation, a 20-year-old women’s clothing business, tried to buy the domain name, but had to use “newport-news.com” instead. The clothier tried private dispute resolution, but ICANN, the Internet Corporation for Assigned Names and Numbers, said there was no confusion because visitors to the VCV site would just find city information.

That began to change around 2004. VCV began selling women’s clothing on its own newportnews.com website. In 2007, it put a seven-figure price tag on the domain name. By 2008, the home page was dominated by ads for women’s apparel, and it admitted that most of its revenue came from the newportnews website.

NNHC sued VCV in Newport News federal court for copyright infringement. The magistrate judge told VCV’s lawyer that the lawyer for NNHC sat on a panel to consider Stillman’s reappointment. Not a problem, according to VCV. A little later, counsel for NNHC told VCV he and the magistrate judge previously practiced at the same firm and collaborated on cases. VCV did not request recusal.

But it saw things differently after Stillman ruled against VCV on NNHC’s claim under the Anticybersquatting Consumer Protection Act. After briefing and a hearing, Stillman denied the motion that he recuse himself from trying the remaining claims.

“Elucidation of the relevant facts took time,” VCV said. But 4th Circuit Judge Allyson K. Duncan said, “We are not persuaded….

“The timing of VCV’s motion smacks of gamesmanship,” she said, and denying the recusal motion was “justified on timeliness grounds alone.” The motion was a loser on the merits, as well. The Code of Conduct for federal judges explicitly says recusal is not necessary when a reappointment panel member appears before a magistrate judge. The law firm relationship between Stillman and NNHC’s lawyer ended 10 years earlier and they had little contact during the intervening time.

In addition to the $80,000 statutory damage award for NNHC, the 4th Circuit panel upheld a $10,000 sanction against VCV’s lawyers under 28 U.S.C. § 1927, citing the “suspicious timing” and “significant substantive weaknesses” of the recusal motion.
By Deborah Elkins

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