Heather Stern v. Marc Gambello

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 HEATHER STERN; BROOKE
RANDOLPH; JOHN GIRARD; MARTIN
SCHNALL; NATHAN RIENSCHE; KELLY
LEMONS, on behalf of themselves
and all others similarly situated,
Plaintiffs-Appellees,
v. No. 10-56929
MARC GAMBELLO; GENE HOPKINS, D.C. No. Objectors-Appellants, 8:09-cv-01112-
 CAS-AGR
Central District of NEW CINGULAR WIRELESS SERVICES,
California, INC., a Delaware corporation, FKA
Santa Ana AT&T Wireless Services, Inc.;
AT&T MOBILITY CORPORATION, a
Delaware corporation, FKA
Cingular Wireless Corporation;
AT&T MOBILITY LLC, a Delaware
limited liability company, FKA
Cingular Wireless LLC,
Defendants-Appellees. 
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 HEATHER STERN, on behalf of
herself and all others similarly
situated,
Plaintiff-Appellee,
NEW CINGULAR WIRELESS SERVICES,
INC., a Delaware corporation, FKA
AT&T Wireless Services, Inc.; No. 10-57062
AT&T MOBILITY CORPORATION, a D.C. No.
Delaware corporation, FKA 8:09-cv-01112-
Cingular Wireless Corporation; CAS-AGR
AT&T MOBILITY LLC, a Delaware  Central District of
limited liability company, FKA California,
Cingular Wireless LLC, Santa Ana
Defendants-Appellees,
ORDERv.
KARIN LYNCH,
Objector-Appellant,
MARC GAMBELLO; GENE HOPKINS,
Objectors. 
Filed May 4, 2012
ORDER
BERZON, Circuit Judge:
After considerable pre-argument preparation, I realized this
week that my husband and I appear to be members of the
plaintiff class in this case, as we have had AT&T cellular ser-
vice for some time. I therefore considered whether to recuse
from this case. Having researched the question, I have deter-
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mined that the appropriate course is for me and my husband
to forego any financial interest in the settlement before the
court (that is, the seven dollars that members of the class
could obtain by filing a claim) and in any future settlement or
adjudication resulting in any payment to members of the
class. I am now announcing that we will do so: Neither I nor
my husband will accept any payments due us as members of
the class.
I have considered whether I should nonetheless recuse from
this case because of possible class membership. The analysis
conducted by Judges Walker and Winter in In re Literary
Works in Electronic Databases Copyright Litigation, 509
F.3d 136 (2d Cir. 2007), in a very similar situation, is perti-
nent and, to me, persuasive. I have decided to adopt their
analysis as my own, and so will not recuse. As they con-
cluded, I “believe [my] decision not to recuse is authorized by
[28 U.S.C.] § 455(f), strikes the appropriate balance between
securing the interests of impartiality and its appearance and
reducing the practical costs that unnecessary recusal entails,
and does not diminish public respect for the judiciary.” Id. at
144.
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