Mickey Chandler's SpamSuite

Here is e360's counter-argument to Comcast's response to their request that this case receive a reboot.

============================================
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.
________________________________________

COMCAST CORPORATION,
Counterclaimant,

v.

E360INSIGHT, LLC,
Counterdefendant,

DAVID LINHARDT,
MAVERICK DIRECT MARKETING
SOLUTIONS, INC.,
BARGAIN DEPOT ENTERPRISES, LLC,
d/b/a bargaindepot.net and
bargainshoppecorp.com,
NORTHSHORE HOSTING COMPANY, LLC d/b/a
ROCKY MOUNTAIN INTERNET
SERVICES, LLC and BAY CITY HOSTING,
LLC,
RAVINIA HOSTING COMPANY, LLC,
NORTHGATE INTERNET SERVICES, LLC,
JOHN DOES 1-50,
Third-Party Defendants.

PLAINTIFF’S, COUNTER-DEFENDANT’S AND THIRD-PARTY DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO VACATE ALL PRIOR ORDERS PURSUANT TO F.R.C.P. 60(b)(6)

NOW COMES, Plaintiff, e360Insight, LLC (“e360”) and Third-Party Defendants David Linhardt (“Mr. Linhardt”), Maverick Direct Marketing Solutions, Inc. (“Maverick”), Bargain Depot Enterprises, LLC (“BDE”), Northshore Hosting Company, LLC (“Northshore”), Ravinia
-2-
Hosting Company, LLC (“Ravinia”) and Northgate Internet Services, LLC (“Northgate”) (collectively, including Mr. Linhardt, “Counter-Defendants”) and by and through their attorneys, the Law Office of Carla E. Buterman and Synergy Law Group, L.L.C., respectfully submit their Memorandum in Support of their Motion to Vacate All Prior Orders pursuant to Federal Rule of Civil Procedure 60(b)(6) and in support thereof, state as follows:

I. Judge Zagel Had a Statutory Duty to Recuse Himself.

The United States Code requires “[a]ny justice, judge, or magistrate judge of the United States [to] disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a) and further requires a judge must disqualify himself if “he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceedings.” 28 U.S.C. § 455(b)(4). It is undisputed that Judge Zagel had a duty to recuse himself pursuant to 28 U.S.C. § 455(a) and (b)(4). Judge Zagel possessed a financial interest in the Defendant corporation at the time the motions of the parties were presented and at the time Judge Zagel made his rulings. Judge Zagel acknowledged that a conflict existed which required recusal. Exhibit A, Transcript at 3:12. Whether it was knowingly or unknowingly, Judge Zagel violated 28 U.S.C. § 455(a) and (b)(4) when he failed to recuse himself prior to ruling on the motions before him. It is clear that Judge Zagel should not have made any rulings in this matter while he possessed a financial interest in the Defendant.

II. Judge Zagel had Knowledge of the Conflict at the Time his Rulings Were Made.

Judge Zagel had knowledge of his financial interest in the Defendant when his rulings were issued. Judge Zagel stated that “he must have known” of his interest at the time he received the financial interest. Exhibit A, Transcript 2:17-18. Furthermore, Judge Zagel listed
-3-
his financial interest in the Defendant corporation on his financial disclosures. If there is any question as to Judge Zagel’s knowledge, justice requires the Court err on the side of caution and find Judge Zagel had knowledge of his financial interest in the Defendant at the time of his rulings.

III. Knowledge of the Conflict is Not Required.

Actual knowledge of a disqualifying circumstance is not required under 28 U.S.C. § 455(a). See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859 (1988). As the Supreme Court in Liljeberg noted,

The goal of section 455(a) is to avoid even the appearance of partiality. If it
would appear to a reasonable person that a judge has knowledge of the facts that
would give him an interest in the litigation then an appearance of partiality is
created even though no actual partiality exists because the judge does not recall
the facts, because the judge actually has no interest in the case or because the
judge is pure in heart and incorruptible. The judge’s forgetfulness, however, is
not the sort of objectively ascertainable fact that can avoid the appearance of
partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 861, quoting
Liljeberg v. Health Services Acquisition Corp., 796 F.2d 796, 802 (5th Cir. 1986).

Judge Zagel issued several rulings in favor of a Defendant in whom he had a financial interest. Even assuming Judge Zagel did not recall his financial interest at the time he issued his rulings, the appearance of partiality was created. Judge Zagel recognized this and thereafter recused himself and went as far to suggest that his rulings be vacated. Exhibit A, Transcript 3:5-13. As the Supreme Court noted, it is the appearance of partiality that 28 U.S.C. § 455(a) sought to avoid.

-4-
IV. Vacatur is Not Only Appropriate but Required.

The purpose of 28 U.S.C. § 455 is “to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865 (1988). Whether or not Judge Zagel “knew” of his financial interest in the Defendant at the time he made his rulings, it is undisputed that a violation of 28 U.S.C. § 455
occurred. While Judge Zagel brought this matter to the attention of the parties and recused himself, the fact remains that Judge Zagel made several rulings which he never should have been in the position to make. Judge Zagel admits that he made rulings “largely in favor of Comcast during the period of time where I actually held an interest in Comcast.” Exhibit A, Transcript at 3:2-4.

Judge Zagel himself acknowledged that vacatur of the prior rulings was a proper remedy:

I’ve given this some thought and there are several possible courses of action, one
of which is upon request of the parties to reconsider all of my prior rulings and
have a new round of briefing, or to vacate my rulings and have a new round of
briefing, but the truth is is (sic) I had this case for a fairly long time, a matter of
months, when I was in a state of where I had a technical conflict and I don’t think
I should even be making that decision. Exhibit A, Transcript 3:5-13.

Vacatur and reconsideration of the motions ruled upon by Judge Zagel would not prejudice either party, while failure to reconsider these issues would amount to a great injustice and severely prejudice the Counter-Defendants. The appearance of impropriety is to be avoided at all times and attempting to guess or speculate upon Judge Zagel’s knowledge or motives does not further this goal. The fact remains that Judge Zagel ruled in favor of a party in whom he had a financial interest, in direct violation of 28 U.S.C. § 455. Justice demands the harm be undone, particularly when doing so results in no prejudice to either party. For the system to prevail, Judge Zagel’s rulings must be vacated.

-5-
WHEREFORE, Plaintiff, Counter-Defendant and Third-Party Defendants respectfully request that this Court enter an Order vacating all prior judgments entered by Judge Zagel without prejudice and any other relief this Court deems just and appropriate.

Respectfully submitted,

PLAINTIFFS, COUNTER-DEFENDANT AND THIRD-PARTY DEFENDANTS

By: /s/ Bartly J. Loethen
One of their Attorneys

Bartly J. Loethen (6225484)
Joseph L. Kish (6197916)
Shaina A. Moss (6283585)
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
MotVacateReply.pdf	12/02/08 12:35 pm	2.36 MB