Third Circuit disposition — 034212p1-pdf

1
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 03-4212
___________
IN RE: KENSINGTON
INTERNATIONAL LIMITED and
SPRINGFIELD ASSOCIATES, LLC,
Petitioners
___________
No. 03-4526
___________
IN RE: D.K. ACQUISITION
PARTNERS, L.P.; FERNWOOD
ASSOCIATES, L.P.
AND DEUTSCHE BANK TRUST
COMPANY AMERICAS, Petitioners
___________
No. 04-1468
___________
IN RE: USG CORPORATION,
Petitioner
On Petitions for Writs of Mandamus
to the United States Bankruptcy Court
for the District of Delaware
(Related to Bankruptcy Nos. 00-03837,
01-01139 and 01-02094)
___________
Argued on April 19, 2004
BEFORE: FUENTES, SMITH and
GARTH, Circuit Judges
(Opinion Filed: May 17, 2004)
Roy T. Englert, Jr. (argued)
Lawrence S. Robbins
Robbins, Russell, Englert, Orseck &
Untereiner
1801 K Street, N.W
Suite 411
Washington, DC 20006
John J. Gibbons
Gibbons, Del Deo, Dolan, Griffinger &
Vecchione
One Riverfront Plaza
Newark, NJ 07102
Attorneys for Petitioners in 03-4212
Charles Fried (argued)
1545 Massachusetts Avenue
Cambridge, MA 02138
Richard Mancino
Marc Abrams
Willkie, Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
Joanne B. Wills
Jennifer L. Scoliard
Klehr, Harrison, Harvey, Branzburg &
Ellers
919 North Market Street
Suite 1000
Wilmington, DE 19083

-- 1 of 54 --

2
Attorneys for Petitioners in 03-4526
Stephen C. Neal (argued)
Scott D. Devereaux
Cooley Godward
3000 El Camino Real
5 Palo Alto Square
Palo Alto, CA 94306
Daniel J. DeFranceschi
Paul N. Heath
Richards Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, DE 19899
David G. Heiman
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Paul R. DeFilippo
Wollmuth, Maher & Deutsch
One Gateway Center
Newark, NJ 07102
Attorneys for Petitioner in No. 04-1468
Charles O. Monk, II (argued)
Saul Ewing
100 South Charles Street
Baltimore, MD 21201
Norman L. Pernick
J. Kate Stickles
Saul Ewing
222 Delaware Avenue
P.O. Box 1266, Suite 1200
Wilmington, DE 19899
Richard E. Flamm
2840 College Avenue
Suite A
Berkeley, CA 94705
Attorneys for Respondents Owens
Corning, et al.
David M. Bernick (argued)
Michelle H. Browdy
Janet S. Baer
Kirkland & Ellis
200 East Randolph Drive
Suite 6500
Chicago, IL 60601
Christopher Landau
Ashley C. Parrish
Kirkland & Ellis
655 Fifteenth Street, NW
Washington, DC 2005
Laura Davis Jones
David W. Carickhoff, Jr.
Pachulski, Stang, Ziehl, Young, Jones &
Weintraub
919 North Market Street
16th Floor
P.O. Box 8705
Wilmington, DE 19899

-- 2 of 54 --

3
Attorneys for Respondent W.R. Grace &
Co.
Elihu Inselbuch (argued)
Peter Van N. Lockwood
Nathan D. Finch
Caplin & Drysdale
399 Park Avenue, 27th Floor
New York, NY 10022
Marla R. Eskin
Mark T. Hurford
Campbell & Levine
800 North King Street
Suite 300
Wilmington, DE 19801
Attorneys for Respondents Official
Committee of Asbestos Claimants of
Owens Corning, Official Committee of
Asbestos Personal Injury Claimants of
W.R. Grace and Official Committee of
Asbestos Personal Injury Claimants of
USG Corporation
Michael J. Crames (argued)
Jane W. Parver
Aaron Stiefel
Edmund M. Emrich
Kaye Scholar
425 Park Avenue
New York, NY 10022
Edwin J. Harron
Young, Conaway, Stargatt & Taylor
P.O. Box 391, 1000 West Street
Brandywine Building, 17th Floor
Wilmington, DE 19899
Attorneys for Respondents James J.
McMonagle and Dean M. Trafelet
Daniel K. Hogan
Law Offices of Daniel K. Hogan
1701 Shallcross Avenue
Suite C
Wilmington, DE 19806
Sander L. Esserman
Robert T. Brousseau
David J. Parsons
Stutzman, Bromberg, Esserman & Plifka
2323 Bryan Street
Suite 2200
Dallas, TX 75201-2689
Attorneys for Respondent Baron & Budd
Claimants
Jeffrey S. Trachtman
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
39th Floor
New York, NY 10022
Adam G. Landis
Rebecca L. Butcher
Landis, Rath & Cobb
919 Market Street
Suite 600, P.O Box 2087
Wilmington, DE 19899
Attorneys for Respondent Credit Suisse
First Boston Corp
Neal J. Levitsky
L. Jason Cornell
Fox Rothschild
824 North Market Street
Suite 810

-- 3 of 54 --

4
Wilmington, DE 19899-2323
Henry W. Simon
Robert A. Simon
Simon & Simon
3327 Winthrop Avenue
Suite 200
Fort Worth, TX 76116
Attorneys for Respondent Waters &
Kraus
Edward L. Jacobs
26 Audubon Place
P.O. Box 70
Fort Thomas, KY 41075
Attorney for Respondent Harry Grau &
Sons
Michael R. Lastowski
Duane Morris
1100 North Market Street
Suite 1200
Wilmington, DE 19801
Attorney for Intervenor Official
Committee of Unsecured Creditors of
USG Corp.
Mark E. Felger
Jeffrey R. Waxman
Cozen & O’Connor
1201 Market Street
Suite 1400
Wilmington, DE 19801
Attorneys for Intervenor Official
Committee of Unsecured Creditors of
Armstrong World Industries, Inc.
Kenneth Pasquale
Lewis Kruger
Stroock, Stroock & Lavan
180 Maiden Lane
New York, NY 10038
Attorneys for Intervenor Official
Committee of Unsecured Creditors of
USG Corporation
Roderick R. McKelvie
Fish & Neave
1899 Pennsylvania Avenue, NW
Washington, DC 20006
Daniel J. Popeo
Richard A. Samp
Washington Legal Foundation
2009 Massachusetts Avenue, N.W.
Washington, DC 20036
Attorneys for Amicus Curiae Washington
Legal Foundation
James L. Patton, Jr.
Young, Conaway, Stargatt & Taylor
P.O. Box 391, 1000 West Street
Brandywine Building, 17th Floor
Wilmington, DE 19899
Attorney for Amicus Curiae Eric D.
Green
Timothy K. Lewis
Schnader Harrison Segal & Lewis

-- 4 of 54 --

5
2001 Pennsylvania Avenue NW
Suite 300
Washington, DC 20006
Craig Berrington
Lynda S. Mounts
American Insurance Association
1130 Connecticut Avenue, NW
Suite 1000
Washington, DC 20015
Attorneys for Amicus Curiae American
Insurance Association
Garth, Circuit Judge:
Approximately six months ago, two
emergency petitions were filed in this
Court asking us to issue Writs of
Mandamus disqualifying Senior District
Court Judge Alfred M. Wolin of the
District of New Jersey from continuing to
preside over two of five asbestos-related
bankruptcies that this Court had assigned
to him in December 2001 for coordinated
case management. The five companies in
bankruptcy are Owens Corning, W.R.
Grace & Co., USG Corporation,
Armstrong World Industries, Inc., and
Federal-Mogul Global, Inc. (collectively,
the “Five Asbestos Cases”).
The Petitions, which were brought
by creditors of Owens Corning and W.R.
Grace & Co., alleged that Judge Wolin
had, through his association with certain
consulting Advisors which he had
appointed, created a perception that his
impartiality “might reasonably be
questioned” under 28 U.S.C. § 455(a).
The Petitions asserted that disqualification
w a s a l s o w a r r a n t e d u n d e r
28 U.S.C. § 455(b)(1) as a result of ex
parte communications among Judge
Wolin and his advisors, the parties, and
the attorneys.1
Following a hearing on December
12, 2003, we concluded that we should
not reach the merits of the Mandamus
Petitions. Our decision was “prompted by
our overarching concern that we [did] not
have an adequately developed evidentiary
record before us.” In re Kensington Int’l
Ltd., 353 F.3d 211, 214 (3d Cir. 2003).
“[R]eluctant to act in a complex situation
such as this one, where so many vital
interests are at stake, without a developed
evidentiary record,” we remanded the
proceedings to Judge Wolin while
retaining jurisdiction. Id. at 223. We
instructed Judge Wolin to vacate his order
staying discovery and allow expedited
discovery to proceed. We also directed
that he issue an expedited ruling on all of
the recusal motions pending before him.
Id. USG Corp. by this time had also filed
a recusal motion.
1 The Petitioners had originally
moved for recusal in the Bankruptcy
Court, but filed Petitions for Writs of
Mandamus in this Court after Judge Wolin
withdrew the recusal motions from the
Bankruptcy Court and stayed the
corresponding discovery. At the time that
the Petitions were filed, Judge Wolin had
not ruled on the recusal motions.

-- 5 of 54 --

6
On remand, Judge Wolin and the
parties faithfully followed our instructions.
Under stringent time restrictions and
Judge Wolin’s effective oversight, the
parties conducted extensive discovery into
the facts surrounding the recusal motions.
Following an additional round of briefing,
Judge Wolin issued a comprehensive
written opinion and order on February 2,
2004 denying the recusal motions both on
the merits and on timeliness grounds. See
generally In re Owens Corning, 305 B.R.
175 (D. Del. 2004).
As noted, we retained jurisdiction
over the Mandamus Petitions. These
Petitions were joined by USG Corp., the
debtor in the USG Corp. bankruptcy. The
Official Committee of Unsecured
Creditors in the Armstrong World
Industries, Inc. bankruptcy filed a fourth
Petition, but due to its late filing we did
not consolidate it with the other Petitions.
I.
Having exhaustively reviewed the
now developed record, we have reached
the following conclusions:
First, a reasonable person, knowing
all of the relevant circumstances, would
conclude that Judge Wolin’s impartiality
might reasonably be questioned in the
Owens Corning, W.R. Grace & Co. and
USG Corp. bankruptcies. Although the
record does not demonstrate that Judge
Wolin has done anything wrong or
unethical or biased, he must be
disqualified under 28 U.S.C. § 455(a)
from further presiding over those three
bankruptcies. See Alexander v. Primerica
Holdings, Inc., 10 F.3d 155, 162 (3d Cir.
1993) (“For purposes of § 455(a)
disqualification, it does not matter whether
the district court judge actually harbors
any bias against a party or the party’s
counsel.”). We emphasize that our review
of the record has not revealed the slightest
hint of any actual bias or partisanship by
Judge Wolin. On the contrary, Judge
Wolin has throughout his stewardship
over the Five Asbestos Cases exhibited all
of the judicial qualities, ethical conduct,
and characteristics emblematic of the most
experienced, competent, and distinguished
Article III jurists. But the test for
disqualification under § 455(a) is not
actual bias; it is the perception of bias.
See id.
Second, we find that the motions
for recusal in the Owens Corning and
W.R. Grace & Co. bankruptcies were
timely under 28 U.S.C. § 455(a). In
reaching that conclusion, we disagree with
Judge Wolin that it was appropriate, in
this case, to impute knowledge of the
grounds for disqualification to the
Petitioners. The evil that a timeliness
r e q u i r e m e n t i s i n t e n d e d t o
prevent—namely, holding in reserve a
recusal demand until such time that a party
perceives a strategic advantage—is served
by requiring actual knowledge. Because
the Petitioners did not themselves learn
about the Advisors’ conflict of interest
(discussed infra) until shortly before they
moved for disqualification, their motions
were timely.

-- 6 of 54 --

7
Third, USG Corp. stands on a
different footing. The record discloses
that the USG debtors and Unsecured
Creditors Committee knew as early as
January 2002 about the Advisors’ conflict.
However, other factors come into play as
to USG Corp. (which we discuss infra)
requiring Judge Wolin’s disqualification.
Fourth, we do not decide whether
the ex parte communications between
Judge Wolin, on the one hand, and the
Advisors, parties, and attorneys, on the
other, provide a separate ground for
disqualification under 28 U.S.C.
§ 455(b)(1). Nor do we decide whether
those motions are timely. We feel
constrained, however, to note that we look
with disfavor upon both the extent to
which, and manner in which, Judge Wolin
engaged in ex parte communications.
Whatever value the ex parte meetings may
have had in moving the Five Asbestos
Cases along or creating a settlement-
friendly atmosphere was outweighed by
the attendant risks and problems, which
are catalogued in some detail in the
Petitioners’ briefs. See also Code of
Conduct for U.S. Judges Canon 3 § A(4)
(2003).
Fifth, we reach no decision on the
Petition for Mandamus filed in the
Armstrong World Industries, Inc.
bankruptcy. As mentioned above, that
Petition was not consolidated with the
Petitions in Owens Corning, W.R. Grace
& Co., and USG Corp. Rather than delay
this opinion, and recognizing that our
initial orders dated October 30, 2003 and
November 3, 2003 stayed certain
proceedings before the Bankruptcy
Courts, we will set a separate date to hear
argument on the Armstrong Petition and
will render a decision in that case in due
course.
Sixth, we likewise do not rule on, or
express an opinion as to, the fifth
bankruptcy, Federal-Mogul Global, Inc.,
albeit for a different reason. None of the
parties in Federal-Mogul has moved for
Judge Wolin’s recusal in the Bankruptcy
Court or filed a Petition for Mandamus in
our Court. Accordingly, we will not
disturb Judge Wolin’s assignment in
dealing with the Federal-Mogul Global,
Inc. bankruptcy.
II. BACKGROUND
In our earlier opinion, we described
the parties, the allegations, the responses,
the procedures, our standard of review,
and our standards for disqualification
under 28 U.S.C. § 455(a) and (b)(1). See
Kensington, 353 F.3d at 214-22. We
perceive no need to repeat these matters in
detail, but we will refer to those that are
particularly relevant here, as well as the
supplemental concerns and facts that have
come to our attention.
After our December 12, 2003
hearing, which gave rise to the expedited
discovery and Judge Wolin’s expedited
ruling on the recusal motions, we received
two additional Petitions for a Writ of
Mandamus in the USG Corp. and
Armstrong World Industries, Inc.

-- 7 of 54 --

8
bankruptcies. Accordingly, we list the
parties now seeking Judge Wolin’s
disqualification and those opposing it:
Parties Seeking Recusal2
Kensington International Ltd, et al.; Credit
Suisse First Boston, as agent for Owens
Corning’s pre-petition bank creditors;
D.K. Acquisition Partners, L.P., et al.;
USG Corp.; Official Committee of
Unsecured Creditors of USG Corp.;
Official Committee of Unsecured
Creditors of Armstrong World Industries,
Inc.
Parties Opposing Recusal3
Owens Corning; Baron & Budd
Claimants; Legal Representative for
Future Asbestos Personal Injury Claimants
in Owens Corning & USG Corp.; W.R.
Grace & Co.; Official Committee of
Asbestos Personal Injury Claimants of
W.R. Grace & Co.; Official Committee of
Asbestos Personal Injury Claimants of
USG Corp.
Essentially, the parties seeking
disqualification assert that Judge Wolin
had appointed five Advisors to assist him
in the discharge of his functions. These
Advisors were not selected from any
judicial category (i.e., they were not
federal magistrate judges, special masters,
or law clerks4); they consisted of lawyers,
retired state court judges, and professors
with prior experience in asbestos
litigation. The Petitioners claim that
Judge Wolin, who has presided over the
Five Asbestos Cases since December
2001, has through his appointment of the
Advisors and his participation with them
in administering the bankruptcies, created
a perception in the mind of the reasonable
person that his impartiality could be
questioned, and this being so, that he must
be disqualified.
The Petitions filed in the Owens
Corning and W.R. Grace & Co.
bankruptcies seek Judge Wolin’s
disqualification primarily pursuant to 28
U.S.C. § 455(a), which reads: “Any
justice, judge, or magistrate judge of the
United States shall disqualify himself in
any proceeding in which his impartiality
might reasonably be questioned.” As we
stated in our earlier opinion, “[t]he test for
recusal under § 455(a) is whether a
reasonable person, with knowledge of all
the facts, would conclude that the judge’s 2 The following amicus curiae
supported the recusal petitions: American
Insurance Partners and Washington Legal
Foundation.
3 Amicus curiae Eric Green, Legal
Representative for Future Asbestos
Personal Injury Claimants in Federal
Mogul Global, Inc., supported the entities
opposing recusal.
4 As a matter of historical interest,
then-District Court Judge Sarokin was
assisted in an action involving the
Tobacco Industry by a Magistrate Judge
and a Special Master. See Haines v.
Liggett Group Inc., 975 F.2d 81 (3d Cir.
1992).

-- 8 of 54 --

9
impartiality might reasonably be
questioned.” Kensington, 353 F.3d at 220
(citing Edelstein v. Wilentz, 812 F.2d 128
(3d Cir. 1987)). While this test is
acknowledged to be the standard for
disqualification under § 455(a), the
interpretation of what constitutes a
reasonable person has been contested here.
We will discuss that issue later in this
opinion.
After we scheduled the briefing and
hearing dates for the Owens Corning and
W.R. Grace & Co. Petitions, USG Corp.
filed a third Petition for Mandamus. That
P e t i t i o n , w h i l e a l s o s e e k i n g
disqualification pursuant to § 455(a),
focused primarily on the standard of
disqualification found in § 455(b)(1).
That particular subsection requires a
justice, judge, or magistrate judge to
disqualify himself only if “he has a
personal bias or prejudice concerning a
party, or personal knowledge of disputed
evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1). The
thrust of USG Corp.’s Petition is that
Judge Wolin acquired personal knowledge
of disputed evidentiary facts by
conducting ex parte meetings with the
Advisors, parties, and attorneys.
More recently, the Official
Committee of Unsecured Creditors of
Armstrong World Industries, Inc. (the
“Armstrong Committee”) also filed a
Petition for a Writ of Mandamus. That
Petition neither seeks nor opposes Judge
Wolin’s disqualification. Instead, it asks
that we extend to the Armstrong
bankruptcy whatever relief, if any, we
apply to the Owens Corning, W.R. Grace,
and USG Corp. bankruptcies.
To complete our recital of the
matters we must consider, we note that the
parties in the Federal-Mogul Global, Inc.
bankruptcy, which is the fifth asbestos-
related bankruptcy under Judge Wolin’s
charge, have not participated in any of the
proceedings which we review.5
Even though we described the facts
in some detail in our earlier opinion,
certain factual circumstances require
further elaboration here because they bear
directly on the merits and timeliness of the
petitions.
A. The Parties
The first petition was filed by
Kensington International Limited and
Springfield Associates, LLC, two creditors
of Owens Corning (collectively,
“Kensington”). That petition was
followed in short order by a second
petition from D.K. Acquisition Partners,
5 An amicus curiae brief was filed
by Eric D. Green, who is the
representative for future asbestos
personal-injury claimants in the Federal-
Mogul bankruptcy. See note 3 supra. An
amicus curiae brief does not trigger our
jurisdiction and we lack the authority to
issue a writ of mandamus to non-parties.
See In re School Asbestos Litig., 977 F.2d
764, 798 (3d Cir. 1992).

-- 9 of 54 --

10
L.P., Fernwood Associates, L.P., and
Deutsche Bank Trust Company Americas,
three creditors of W.R. Grace & Co.
(c ol le ct iv el y, “D.K. A cquisition
Partners”). The third petition was filed
more recently by USG Corporation, the
debtor in the USG bankruptcy.
B. Ex Parte Communications and the
Advisors
On December 20, 2001, Judge
Wolin held a case management conference
for the Five Asbestos Cases. Although
there is no official record of what was said
at that conference, Judge Wolin produced
a script (“talking points”) which reflects
what he said to the parties. According to
the script, Judge Wolin announced that
“[i]n order to effectively case manage
complex litigation, it is necessary for the
judge to speak and/or meet with attorneys
on an ex parte basis, without permission
of adversary attorneys.” Judge Wolin
further announced that “[a]ny objection to
such ex parte communications is deemed
waived,” but he assured the parties and
attorneys that he would use his power to
meet ex parte “sparingly.” None of the
parties objected at that time.
A week later, Judge Wolin named
five “Court Appointed Consultants” (the
“Advisors”) to assist him in the Five
Asbestos Cases. The five individuals he
named were David Gross, Judson Hamlin,
William Dreier, John Keefe, and Francis
McGovern, all of whom had prior
experience with asbestos or mass tort
litigation either as state court judges,
private practitioners, or academics.
Pursuant to Judge Wolin’s order, the
Advisors were to “advise the Court and to
undertake such responsibilities, including
. . . mediation of disputes, holding case
m a n a g e me n t c o n f e r e n c e s , a n d
consultation with counsel, as the Court
may delegate to them individually.” The
Advisors could also be delegated “certain
authority to hear matters and to advise the
Court on issues that may arise in these five
large Chapter 11 cases.” Judge Wolin’s
order provided that he could, “without
further notice, appoint any of the
Court-Appointed Consultants to act as a
Special Master to hear any disputed matter
and to make a report and recommendation
to the Court on the disposition of such
matter.”
Over the next two years, Judge
Wolin met repeatedly, on an ex parte
basis, with the parties and their attorneys.
Despite his prior assurance that he would
do so “sparingly,” he acknowledged more
recently that he met ex parte with
interested parties “on innumerable
occasions.” (Supp. Resp. dated Nov. 20,
2003). This is supported by the fee
applications filed by the Advisors, which
reveal more than 325 hours of ex parte
meetings with the attorneys for various
parties in the Five Asbestos Cases. Many
of these meetings took place at restaurants
over lunch or dinner or at law firms.
During the proceedings on remand, Judge
Wolin acknowledged that he received
extra-judicial information at the ex parte
conferences. (See Joint Appendix “JA” at
1165.)

-- 10 of 54 --

11
The ex parte meetings were not
limited to the parties and their attorneys.
In the first half of 2002, Judge Wolin and
the Advisors held a series of four ex parte
meetings at which they discussed, in
Advisor McGovern’s words, “[j]ust
whatever issue you can think of,”
including claims bar dates, the chrysotile
defense,6 proof of claim forms, pleural
plaques,7 the pros and cons of various
approaches to estimation under
11 U.S.C. § 502(c),8 the tensions between
various creditor classes, and Rule 706
panels.9 These issues are highly relevant
concerns in asbestos litigation. The
primary purpose of these meetings was to
educate Judge Wolin on the issues likely
to arise in the Five Asbestos Cases or, as
Advisor Gross put it, “to assist Judge
Wolin . . . in becoming more conversant
with the details of the asbestos litigation.”
One of these initial meetings was
attended by Bob Komitor, a plaintiff’s
attorney. According to Advisor Dreier,
Komitor described an expert, Dr. Peter
Barrett, as “a charlatan” and criticized the
chrysotile defense. Dr. Barrett had been
previously engaged by USG Corp. While
there is no official record of this meeting,
notes taken by Advisor Gross suggest that
some of the Advisors also expressed
negative views about the positions taken
by USG’s expert and other USG Corp.
defenses.
Following this series of initial
meetings, Judge Wolin also held an ex
parte meeting on November 19, 2002 with
6 “Of the three basic kinds of
asbestos fibers—amosite, crocidolite, and
chrysotile—the straight, solid amosite and
crocidolite fibers are less likely to break
up in the lungs and more likely to cause
mesothelioma than are the curly, hollow
chrysotile fibers.” Menne v. Celotex
Corp., 861 F.2d 1453, 1456 (10th Cir.
1988). Thus, asbestos manufacturers
sometimes raise a so-called “chrysotile
defense” when sued by asbestos victims.
We have stated, however, that “[t]he
absence or presence of chrysotile in
asbestos products is not an affirmative
defense which would require the
presentation of any evidence . . . .”
Blancha v. Raymark Indus., 972 F.2d 507,
514 (3d Cir. 1992).
7 Pleural plaques is a medical
condition that consists of extensive pleural
thickening on the exterior of the lungs.
See Dunn v. HOVIC, 1 F.3d 1362, 1365
(3d Cir. 1993). Pleural plaques are
“frequently seen in people who have been
exposed to significant doses of asbestos.”
Rogers v. Raymark Indus., 922 F.2d 1426,
1428 (9th Cir. 1991).
8 11 U.S.C. § 502(c) states:
“[t]here shall be estimated for purpose of
allowance under this section . . . any
contingent or unliquidated claim, the
fixing or liquidation of which, as the case
may be, would unduly delay the
administration of the case.”
9 Rule 706 of the Federal Rules of
Evidence permits the court to appoint an
independent panel of expert witnesses.

-- 11 of 54 --

12
Advisors Gross, McGovern and Dreier to
discuss certain issues in the Owens
Corning bankruptcy. There is no official
transcript of this meeting, but Advisor
Dreier took notes. On remand, Judge
Wolin rejected inquiries concerning this
meeting on the ground that it included
settlement discussions. As a result,
Advisor Dreier’s notes were filed under
seal both in the District Court and by us.
Two days before the meeting,
Owens Corning had distributed a draft
plan of reorganization that was supported
by Credit Suisse First Boston, as agent for
the pre-petition creditors. The draft plan
called for certain issues to be resolved
prior to plan confirmation. At the
November 19th meeting, the Advisors
discussed some of the key issues contained
in the proposed plan with Judge Wolin
and explained their effects as well as what
appear to be certain settlement figures that
had been discussed with the parties.
At a conference held on November
21, 2002, Judge Wolin stated that he did
not favor Owens Corning’s proposed plan.
In January 2003, Owens Corning filed a
revised plan of reorganization that this
time was supported by the tort claimants
who had objected to the first draft plan.10
During the course of the Five
Asbestos Cases, Advisor Hamlin prepared
a draft opinion in each of the Five
Asbestos Cases, a role that Hamlin likened
to that of a federal magistrate judge. At
his deposition, Hamlin explained that he
would normally receive a phone call from
Judge Wolin’s chambers informing him
that an appeal had been taken from the
Bankruptcy Court and that he was to
prepare a draft opinion for Judge Wolin.
The issues on which he drafted opinions
included, among other things, bar dates for
asbestos property claims, defenses by
USG Corp. to asbestos personal injury
claims, and proof of claim forms.
C. The G-I Holdings Bankruptcy
Two months before Judge Wolin
appointed the Advisors in the Five
Asbestos Cases, the Bankruptcy Court for
the District of New Jersey (Chief Judge
Rosemary Gambardella) had appointed
Advisor Hamlin to serve as the “Legal
Representative of Present and Future
Holders of Asbestos-Related Demands” in
still another asbestos-related bankruptcy
case captioned In re G-I Holdings Inc.
The G-I Holdings bankruptcy is not
related to the Five Asbestos Cases, and
Judge Wolin has played no role in the G-I
Holdings proceedings. There is, however,
a substantial likelihood and a tacit, if not
express, agreement that some of the future
claimants in G-I Holdings will also have
claims against one or more of the debtors
in the Five Asbestos Cases.
Less than one month after Judge
10 The Petitioners argue that a
reasonable person could perceive that
Judge Wolin’s impartiality could
reasonably be questioned in this sequence
of events.

-- 12 of 54 --

13
Wolin appointed the five Advisors,
Hamlin filed an application in G-I
Holdings to engage Advisor Gross as his
local counsel. Chief Judge Gambardella
approved Gross as Hamlin’s local counsel.
D. Kensington’s Recusal Motion
Almost two years later, Kensington
filed a motion in the Bankruptcy Court
seeking to recuse Judge Wolin from
further participation in the Owens Corning
bankruptcy. Kensington asserted that
Judge Wolin was precluded under 28
U.S.C. § 455(a) from continuing to
preside over the Owens Corning
bankruptcy because two of his Advisors
(Gross and Hamlin) allegedly had a
conflict of interest as a result of their
participation in G-I Holdings.
Three days later, the debtors in the
W.R. Grace bankruptcy applied to
Bankruptcy Judge Fitzgerald to appoint
Mr. Hamlin as the Legal Representative
for Future Asbestos Claimants of W.R.
Grace & Co. The application disclosed
that Mr. Hamlin was already serving as an
Advisor to Judge Wolin in the Five
Asbestos Cases, including, of course, the
W.R. Grace bankruptcy. W.R. Grace &
Co. ultimately withdrew its application
after Judge Fitzgerald expressed her
opinion that Hamlin could not serve as the
Futures Representative in the W.R. Grace
bankruptcy.
On October 23, 2003, Judge Wolin
entered an order staying all discovery in
connection with Kensington’s recusal
motion. That stay prompted Kensington
to file a petition in our Court seeking a
Writ of Mandamus directing Judge Wolin
either to disqualify himself or to withdraw
his discovery stay.
E. The District Court’s Responses
Judge Wolin submitted three
written responses to Kensington’s petition.
In his first response, dated November 3,
2003, Judge Wolin announced that he
would “judge the Motion to Recuse on the
law and facts presented after all of the
parties have been heard in full” and that he
would seek to resolve the motion as
quickly as possible.
In his second response, dated
November 21, 2003, Judge Wolin
answered the suggestion that his ex parte
communications with the Advisors and
various attorneys somehow required his
recusal. Judge Wolin explained that the
purpose of the ex parte communications
“was to ensure that each committee or
corporate constituency was afforded the
opportunity to provide to the Court
insights as to why, in the competition for
limited dollars, its claim was just.” Judge
Wolin also wrote that, “[g]iven that these
meetings occurred on a regular basis
without complaint and given that the
December 20, 2001 case management
conference alerted all concerned that ex
parte meetings were part of the District
Court’s case management plan, it strikes a
discordant note that the conduct of ex
parte conferences would be the ground for

-- 13 of 54 --

14
a recusal motion.”11
In his third response, dated
December 5, 2003, Judge Wolin again
defended his Case Management methods
and, in particular, his decision to allow ex
parte communications.
F. D.K. Acquisition Partners’
Mandamus Petition
Meanwhile, D.K. Acquisition
Partners filed a motion in the W.R. Grace
bankruptcy case seeking Judge Wolin’s
recusal. A week later, D.K. Acquisition
Partners filed a petition in this Court
seeking the same relief requested by
Kensington. We consolidated D.K.
Acquisition Partners’ Mandamus Petition
with Kensington’s Petition.
G. Remand
Following an extended hearing and
after we had received briefs from the
parties and amici, we remanded the
proceedings to Judge Wolin with
instructions that he allow expedited
discovery to proceed. We also required
that he rule on the pending recusal
motions. We were motivated primarily by
our concern that we did not have an
adequately developed evidentiary record
before us.
As we previously stated, on
February 2, 2004, following expedited
discovery, Judge Wolin issued a 102-page
written opinion and order denying the
motions for recusal. First, Judge Wolin
found that the evidence failed to disclose
that there was an appearance of
impropriety under § 455(a) or that his ex
parte communications required his recusal
under § 455(b)(1). Second, Judge Wolin
determined that the motions were not
timely because the parties seeking his
recusal either had actual or imputed
knowledge of the facts giving rise to the
recusal motions long before the motions
were filed. He also charged that the
Petitions were prompted by strategic,
rather than ethical, motivations.
III. JURISDICTION
We have jurisdiction to issue Writs
of Mandamus under the All Writs Act, 28
U.S.C. § 1651(a), which provides that
“[t]he Supreme Court and all courts
established by Act of Congress may issue
all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable
to the usages and principles of law.” We
also retained jurisdiction when we
remanded the proceedings to Judge Wolin
for discovery and his ruling. See
11 Around the same time that Judge
Wolin filed his second response, USG
Corporation filed a motion in the
Bankruptcy Court seeking his recusal.
USG Corporation argued that the
extensive ex parte communications
between Judge Wolin and the Advisors (as
well as other persons) provided an
independent basis for Judge Wolin’s
disqualification under both 28 U.S.C.
§ 455(a) and (b)(1).

-- 14 of 54 --

15
Kensington, 353 F.3d at 214 (“We will
retain jurisdiction over any further
proceedings . . . .”).
IV. STANDARD OF REVIEW
When a Petition for a Writ of
Mandamus challenges a district court
judge’s decision not to recuse himself, we
normally review that decision for an abuse
of discretion. Selkridge v. United of
Omaha Life Ins. Co., 360 F.3d 155, 166
(3d Cir. 2004). But the mandamus
petitions in Owens Corning and W.R.
Grace & Co. are somewhat unique, from a
procedural perspective, in that they arrived
in our Court before the District Court
ruled on the recusal motions. Had we
reached the merits at that time instead of
remanding to the District Court, we would
have applied the “clear and indisputable”
standard that governs Petitions for a Writ
of Mandamus. See Kerr v. U.S. Dist. Ct.,
426 U.S. 394, 403 (1976). The abuse of
discretion standard, even though it may
have led to the same result, would have
had no application.
At oral argument, we asked the
parties to submit supplemental letters
addressing the appropriate standard of
review where, as here, a Petition for
Mandamus seeking to disqualify a district
court judge precedes a ruling by the
district court. Having reviewed the
submissions made by the parties, we now
hold that Judge Wolin’s decision not to
recuse himself must be reviewed for an
abuse of discretion, as it is, in effect, no
different than an appeal from a district
court’s order denying recusal. See S. Rep.
93-419 (1973), H. Rep. 93-1453 (1974)
(explaining that the addition of
subsection (a) to § 455 was not intended
to alter the abuse of discretion standard of
review). “When the need for a writ of
mandamus is determined by this court to
be ‘clear and indisputable,’ a district
judge’s decision not to recuse himself or
herself necessarily also will have been an
abuse of discretion or a clear legal error.”12
12 It is somewhat strange to speak in
terms of an abuse of discretion where the
underlying statute, 28 U.S.C. § 455, states
that a judge “shall” disqualify himself or
herself if certain grounds are present. The
abuse of discretion standard may be an
anachronistic vestige of an earlier version
of § 455. Prior to 1974, § 455 provided in
its entirety that a judge had to “disqualify
himself in any case in which he has a
substantial interest, has been of counsel, is
or has been a material witness, or is so
related to or connected with any party or
his attorney as to render it improper, in his
opinion, for him to sit on the trial, appeal,
or other proceeding therein.” 28 U.S.C. §
455 (amended 1974) (emphasis added).
Under that version, a judge had broad
discretion to deny a recusal request even if
the grounds for recusal were present. To
the extent judges continue to retain any
discretion under the post-1974 version of
§ 455, it is only to determine if the “facts
asserted as comprising bias, a forbidden
financial interest, kinship, or the
appearance of partiality bring the trial
court judge within the disqualifying

-- 15 of 54 --

16
Alexander, 10 F.3d at 163 n.9.
V. DISCUSSION
A. Standard for Disqualification Under
§ 455(a)
Whenever a judge’s impartiality
“might reasonably be questioned” in a
judicial proceeding, 28 U.S.C. § 455(a)
requires that the judge disqualify himself.
The test for recusal under § 455(a) is
whether a reasonable person, with
knowledge of all the facts, would
conclude that the judge’s impartiality
might reasonably be questioned.
Alexander, 10 F.3d at 164.
“Under § 455(a), if a
reasonable man, were he to
know all the circumstances,
would harbor doubts about
the judge’s impartiality
under the applicable
standard, then the judge
must recuse.” In re
Prudential Ins. Co. of
America Sales Practices
Litigation, 148 F.3d 283,
343 (3d Cir. 1998) (internal
quotations omitted); see
Massachusetts School of
Law at Andover, Inc. v.
American Bar Ass’n, 107
F.3d 1026, 1042 (3d Cir.
1997) (“The standard for
recusal is whether an
o b j e c t i v e o b s e r v e r
reasonably might question
the judge’s impartiality.”).
Selkridge, 360 F.3d at 167.
A party moving for disqualification
under § 455(a) need not show actual bias
because § 455(a) “concerns not only
fairness to individual litigants, but, equally
important, it concerns ‘the public’s
confidence in the judiciary, which may be
irreparably harmed if a case is allowed to
proceed before a judge who appears to be
tainted.’” Alexander, 10 F.3d at 162
(quoting School Asbestos, 977 F.2d at
776).
B. Who is the Hypothetical Reasonable
Person under § 455(a)?
Judge Wolin’s opinion of February
2, 2004 supporting his order denying the
recusal motions held that the reasonable
person under § 455(a) is someone “with
the professional skills and experience in
mass-tort [asbestos-related] bankruptcies
sufficient to understand the import of the
facts presented,” thus excluding
“laypersons or attorneys not conversant
with the basics of mass-tort bankruptcy
practice.” Owens Corning, 305 B.R. at
190. In reaching that conclusion, Judge
Wolin reasoned that, “where proceedings
are by their nature inscrutable to outsiders,
the wider world must rely upon those
definition.” 2 Steven Alan Childress &
Martha S. Davis, Federal Standards of
Review § 12.05 (3d ed. 1999). If the
answer to that inquiry is “yes,”
disqualification must follow.

-- 16 of 54 --

17
persons actually involved to report on
those proceedings’ capacity to produce a
fair result.” Id.
To the best of our knowledge,
Judge Wolin’s gloss on § 455(a)’s
“reasonable person” standard has no
precedent. It also appears to be in tension
with our observation in School Asbestos
that § 455(a) was enacted by Congress
because “‘people who have not served on
the bench are often all too willing to
indulge suspicions and doubts concerning
the integrity of judges.’” School
Asbestos, 977 F.2d at 782 (quoting
Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 864-65 (1988)).
Notably, the School Asbestos lawsuit was
precisely the sort of complex, mass-tort
litigation that Judge Wolin believed
required a more nuanced definition of the
reasonable person.
Judge Wolin distinguished School
Asbestos on the ground that the
appearance of impropriety in that
case—the district court judge had attended
a scientific conference organized by the
plaintiffs’ counsel—“was simple enough
for anyone to grasp.” Owens Corning,
305 B.R. at 190. Judge Wolin’s
characterization suggests that the
perception of impropriety in the Five
Asbestos Cases is, by comparison, too
complex for the average person to
comprehend. We cannot agree.
No one disputes that asbestos
bankruptcies are complicated, but the
alleged perception of impropriety is fairly
straightforward in this case. The
gravamen of the Petitions is that Judge
Wolin was tainted by the involvement of
two court-appointed advisors who, at the
same time that they were supposed to be
giving neutral advice in the Five Asbestos
Cases, represented a class of tort claimants
in another, unrelated asbestos-driven
bankruptcy and espoused views therein on
the same disputed issues that are at the
core of the Five Asbestos Cases.13
We are confident that the average
layperson could grasp this alleged
impropriety and, after being fully
informed of all the surrounding
circumstances, could draw a conclusion
about Judge Wolin’s ability to render a
fair and impartial decision. That being so,
we perceive no reason to depart from the
traditional “man on the street” standard.
See Moran v. Clarke, 296 F.3d 638, 648
(8th Cir. 2002) (using “average person on
the street” standard); Home Placement
Serv., Inc. v. Providence Journal Co., 739
F.2d 671, 676 (1st Cir. 1984) (same);
Potashnick v. Port City Constr. Co., 609
F.2d 1101, 1111 (5th Cir. 1980) (same).
Judge Wolin’s definition of the
hypothetical reasonable person is contrary
13 The Petitions also assert that
Judge Wolin should be recused because of
his ex parte communications with the
Advisors and the parties, but that is
grounded primarily in § 455(b)(1), which
does not employ a reasonable person
“perception” standard.

-- 17 of 54 --

18
to the goal of § 455(a). An attorney
familiar with asbestos bankruptcies
presumably would have a higher threshold
for conflicts and alleged improprieties
than the average layperson. This
contravenes the purpose of § 455, which is
“to promote public confidence in the
integrity of the judicial process.”
Liljeberg, 486 U.S. at 860 (citing S. Rep.
No. 93-419, p. 5 (1973); H.R. Rep. No.
93-1453, p. 5 (1974)). Accordingly, we
agree with the Fourth Circuit Court of
Appeals that the hypothetical reasonable
person under § 455(a) must be someone
outside the judicial system because
judicial insiders, “accustomed to the
process of dispassionate decision making
and keenly aware of their Constitutional
and ethical obligations to decide matters
solely on the merits, may regard asserted
conflicts to be more innocuous than an
outsider would.” United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir.
1998); see also United States v. Jordan,
49 F.3d 152, 156-57 (5th Cir. 1995)
(remarking that average person on street
“is less likely to credit judges’ impartiality
than the judiciary”); In re Mason, 916
F.2d 384, 386 (7th Cir. 1990) (noting that
lay observer is less inclined to presume
judge’s impartiality than members of
judiciary). Thus, we hold that the
appearance of impropriety must be viewed
from the perspective of the objective,
reasonable layperson, who is not
necessarily familiar with asbestos
bankruptcies and litigation.
C. Did the Advisors have a Conflict of
Interest?
Before we can decide whether the
reasonable person might question Judge
Wolin’s impartiality, we must determine if
his Advisors had a conflict of interest. If
not, then our inquiry comes to an end
because the Petitioners will have failed to
show that they have a clear and
indisputable right to disqualification. On
the other hand, if there was a conflict, then
we must reach the question of whether that
conflict might be perceived by the
reasonable person as having tainted Judge
Wolin.
Aside from the timeliness of the
recusal motions, the existence of a conflict
of interest by the Advisors may be the
most sharply contested issue in these
proceedings. Judge Wolin explained in
his written opinion that he was an asbestos
“neophyte” when he assumed control of
the Five Asbestos Cases, and that he
brought the Advisors on board to “inform
the Court of the vast landscape of asbestos
related issues that would permit the Court
to make reasoned case management
decisions.” Owens Corning, 305 B.R. at
198.
We conclude that two of the
Advisors, Gross and Hamlin, did, in fact,
operate under a structural conflict of
interests at the same time that they served
as Judge Wolin’s Advisors. This conflict
arose from the dual roles they played in
the Five Asbestos Cases and the G-I
Holdings bankruptcy.
On the one hand, Gross and Hamlin
clearly had a duty to remain neutral in the

-- 18 of 54 --

19
Five Asbestos Cases and to provide
objective, unbiased information to Judge
Wolin. As Judge Wolin stated in his
original appointment order, the Advisors’
role “was to advise the Court and to
undertake [certain] responsibilities,
including by way of example and not
limitation, mediation of disputes, holding
case management conference, and
consultation with counsel . . . .”
We would be hard pressed to
overstate the importance of the Advisors’
role in the Five Asbestos Cases. As a
result of their appointment, the Advisors
had a unique level of access to Judge
Wolin. Indeed, Judge Wolin himself
acknowledged in a fee allowance order
that the Advisors “occup[ied] a unique
position in the [Five Asbestos] cases not
shared by other persons” and that they
“function[ed] in a manner in all respects
similar to examiners as provided in the
Bankruptcy Code.” The Advisors also
had a unique level of influence over Judge
Wolin, given the role they played at the
outset of the Five Asbestos Cases in
educating Judge Wolin (a self-admitted
neophyte) on all of the key asbestos-
related issues.
On the other hand, Advisors Gross
and Hamlin also had a duty to act as
zealous advocates for the future asbestos
claimants in the G-I Holdings bankruptcy.
Hamlin was at all relevant times the legal
representative of the present and future
asbestos personal injury claimants in G-I
Holdings and Gross served as his local
counsel.14 In those roles, Gross and
Hamlin owed the future asbestos claimants
in G-I Holdings a fiduciary duty to
advance their interests and to see that they
received the greatest possible share of the
bankruptcy estate.15 To achieve that end,
the very Advisors who were advising
Judge Wolin had to take positions in G-I
Holdings and the Five Asbestos Cases that
favored the future asbestos claimants. By
their very position as representatives of the
future asbestos claimants in G-I Holdings,
Gross and Hamlin signaled to all that they
14 As we noted earlier, W.R. Grace
& Co.’s motion to appoint Hamlin as a
Futures Representative was withdrawn in
light of Bankruptcy Judge Fitzgerald’s
reaction.
15 Some of the parties opposing
Judge Wolin’s disqualification have
emphasized that the future claimants in G-
I Holdings are, as yet, unidentified
individuals because they have not yet
developed any outward medical symptoms
as a result of their exposure to asbestos.
We are not persuaded that this is a
mitigating factor. Although the future
claimants are, by definition, a group of
unknown individuals, their interests in
pursuing claims against the asbestos
manufacturers are clearly identifiable and,
as such, Hamlin and Gross were duty-
bound to further the claimants’ collective
interests. In this sense, Hamlin and
Gross’s role could be likened to that of a
class representative and his attorney at the
inception of a class action lawsuit, before
the class members are identified.

-- 19 of 54 --

20
could not be non-partisan, benign, or
neutral.
Given their dual roles, we find that
Gross and Hamlin had a conflict of
interest. The structural conflict arose
primarily out of the close relationship
between the future asbestos claimants and
the issues in the Five Asbestos Cases and
G-I Holdings. In both proceedings, the
debtors were leading manufacturers of
asbestos products who were forced into
bankruptcy by a flood of asbestos-related
claims, including those of future claimants
not yet identified. Consequently, many of
the same legal issues (e.g., bar dates, proof
of claim forms, medical manifestations,
etc.) either have arisen or will arise in both
the Five Asbestos Cases and the G-I
Holdings bankruptcy. Both Judge Wolin
and Advisor H amlin implicitly
acknowledge that there existed a conflict
of interest. Hamlin stated in his
deposition that “[i]f any issue or any
responsibility was sought from me [by
Judge Wolin] in regard to any issue that I
felt impinged on by G-I stuff, I would
have asked that assignment be given to
somebody else.” Specifically, Hamlin
stated that “I wouldn’t have touched the
personal injury bar date issue . . .
[b]ecause that’s what I’m dealing with in
G-I.” While the parties opposing recusal
contend that this statement proves there
was no conflict of interest, it proves just
the opposite. Had there been no conflict,
Hamlin would have perceived no need to
reject any assignments in the Five
Asbestos Cases.
Despite his conclusion that “no
conflict exists,” Judge Wolin nevertheless
shares Hamlin’s concerns. Recognizing
that “[t]he core task of any futures
representatives is to determine claim
validity and claim valuation” for future
claimants, Judge Wolin explains that no
conflict materialized because “[t]he issues
of claim valuation and future claimant
versus present claimant equivalence have
been neither briefed nor joined” in the
Five Asbestos Cases. Owens Corning,
305 B.R. at 198. Judge Wolin’s
statements further demonstrate the tension
between Hamlin’s and Gross’s dual roles
as advisors to Judge Wolin in the Five
A s b e s t o s C a s e s a n d F u t u r e s
Representatives in G-I Holdings.
If Gross and Hamlin were
precluded from addressing issues such as
bar dates and claim valuation, we cannot
understand how it could be appropriate for
them to discuss other issues of importance
to Futures Claimants in G-I Holdings. If
both Hamlin and Judge Wolin would
question the Advisors’ ability to remain
neutral with respect to bar dates, a
reasonable person certainly would be
suspicious of discussions with the
Advisors on potential affirmative defenses
to liability, the proper content of proof of
claims forms, or the processes for
estimating claims under 11 U.S.C. §
502(c). See supra at 10 (discussing the
subjects addressed in Judge Wolin’s ex
parte meetings with the Advisors).
As discussed below in Section V-E,
these suspicions are heightened by the ex

-- 20 of 54 --

21
parte nature of the communications
between Judge Wolin and his Advisors.
We do not hold that ex parte
communications alone—in the absence of
any conflict of interest—require recusal.
We emphasize that it is the conflict of
interest and not the particular specialty of
the neutral expert or advisor that concerns
us. A judge may engage an expert or
someone to assist him who has no conflict
and is “disinterested.” Here, however, we
have concluded that the Advisors were
conflicted and were not disinterested.
Hence, any decision by us that would
preclude a judge from obtaining assistance
from a non-conflicted advisor would
unnecessarily restrict a judge’s ability to
communicate with neutral experts.
Indeed, a judge may consult ex parte with
a disinterested expert provided that the
judge “gives notice to the parties of the
person consulted and the substance of the
advice, and affords the parties reasonable
opportunity to respond.” Code of Conduct
for U.S. Judges Canon 3 § A(4) (2003).
A r e a s o n a b l e o b s e r v e r ,
understanding that certain issues were “off
limits,” would be concerned by the
absence of any mechanism to police those
limits. Indeed, the record before the Court
contains substantial evidence that these
limits were, in fact, violated. Although
Hamlin testified that a bar date was not
discussed by the Advisors, and although
Gross testified that he could not recall
whether a bar date was discussed, the
other three Advisors testified that the issue
of whether and how to impose a bar date
was discussed with Judge Wolin.
Moreover, there is a substantial likelihood
that many of the future claimants in G-I
Holdings will also be future claimants in
the Five Asbestos Cases because it is not
unusual for asbestos claimants to bring
claims against different asbestos
manufacturers.
As counsel for Kensington argued:
[I]t is our view that Judge
Wolin has rendered a
number of rulings favorable
to tort claimants after
discussions with the future -
- with the advisors who are
Futures Representatives in
G-I.
Do I have a signed, sealed
confession, we urged this
result on Judge Wolin and
he then did it? No, I don’t
have that. But the problem
here is a 455(a) problem.
* * *
But this much is undeniable.
On October 31st, 21 days
before that [Nov. 21] status
conference, Owens Corning
circulated a draft plan of
reorganization that was met,
in letters in the record
before you, with great
approval by the commercial
c r e d i t o r s a n d g r e a t
disapproval by the tort
creditors.

-- 21 of 54 --

22
After the November 21st
untranscribed hearing at
which we recall Judge
Wolin saying he did not like
that plan, Owens Corning
went back and formulated a
brand-new plan that is so
favorable to the tort
claimants that they are
coproponents of the plan.
This is two days after
meeting with Mr. Gross, a
representative of future
claimants. There are real
appearance problems here,
even if there are not certain
types of smoking guns.
(Transcript of April 19, 2003 Oral
Argument at 47-48, 52-53.) Whether or
not we reach the same conclusions that
counsel did, the fact remains that the
matters set forth in the depositions which
we ordered, which are too voluminous to
duplicate here but which we have studied,
do reflect that counsel’s view of the
§ 455(a) problem is indeed accurate.
D. Did the Advisors’ Conflict Taint
Judge Wolin?
We turn now to the question of
whether Gross’s and Hamlin’s conflict of
interest irreversibly tainted Judge Wolin.
We obviously do not equate this “taint” of
Judge Wolin with any wrongdoing or bias
on his part. We are fully aware that the
§ 455(a) standard asks only if a reasonable
person knowing all the circumstances
might question Judge Wolin’s impartiality.
Judge Wolin stated in his opinion
that he met with the Advisors as a group
on only four occasions for a total of
eighteen hours and that, after May 2002,
“the Advisors as a group became
functionally obsolete despite their de jure
existence.” Owens Corning, 305 B.R. at
200. Judge Wolin also emphasized that
his meetings with the Advisors consisted
merely of discussions, which he defined as
“consideration of a subject by a group; an
earnest conversation,” and that he never
received any advice, which he defined as
an “opinion about what could or should be
done about a situation or problem.” Id. at
198 (citing American Heritage College
Dictionary 397, 20 (3d ed. 1993)).
Judge Wolin’s distinction between
discussions and advice cuts too fine a line.
As Kensington points out, “[i]t is hard to
fathom why Judge Wolin wanted [a] crash
course in asbestos litigation if not to assist
him in deciding ‘the merits’ of ‘disputed’
issues that he could expect to face.”
Indeed, the four meetings in early 2002
between Judge Wolin and the Advisors
covered almost all of the major issues in
asbestos litigation, including the Rule 706
panel, claims bar date, claim forms,
pleural registries, fraudulent conveyance
claims, various defenses, claims
estimation, trust distribution procedures,
tensions among the creditor classes, and
the asbestos claimants’ veto power under
11 U.S.C. § 524(g).
In deciding whether Gross and
Hamlin’s involvement in the Five
Asbestos Cases and interactions with

-- 22 of 54 --

23
Judge Wolin leads to disqualification
under § 455(a), we find instructive the
Fifth Circuit Court of Appeals’ decision in
Hall v. Small Business Administration,
695 F.2d 175 (5th Cir. 1983). In that case,
the losing party moved after trial to
disqualify the judge and to vacate the
judgment because it came to light that the
judge’s law clerk had, among other things,
accepted, prior to the judgment being
entered, an offer to join the law firm
which represented the winning party. Id.
at 178. The judge denied the motion on
the ground that the law clerk had never
expressed an opinion to him about the
winning party and because the law clerk
had accepted the offer of employment only
after the judge had made up his mind
about the case and had written a rough
draft of the opinion. Id.
On appeal to the Fifth Circuit, the
court reversed and entered an order
disqualifying the judge. In reaching that
decision, the court remarked that the goal
of § 455(a) “is to exact the appearance of
impartiality” and therefore it was, in the
court’s opinion, immaterial “[w]hether or
not the law clerk actually affected the
judge’s decision.” Id. at 179. The court
also emphasized that law clerks hold a
special position of trust and influence
insofar that they are “sounding boards for
tentative opinions and legal researchers
who seek the authorities that affect the
judge’s decision.”16 Id.
The same factors that required
recusal in Hall apply here. Although
Gross and Hamlin were not law clerks per
se, they were in some respects the
substantial equivalent of law clerks.17
Hamlin, for example, drafted legal
opinions in each of the Five Asbestos
Cases for Judge Wolin. Thus, not only
was Hamlin the “legal researcher[] who
[sought] the authorities that affect[ed] the
judge’s decision,” but he was also the
scrivener who, in the first instance, tried
his hand at crafting the decision that, if
accepted by Judge Wolin, would dispose
of an appeal taken from the Bankruptcy
Court in one of the Five Asbestos Cases.
See id. Moreover, Gross and Hamlin held
a special position of trust and influence
because they, together with the other three
Advisors, were perceived by Judge Wolin
16 The Ninth Circuit Court of
Appeals discussed a similar motion for
recusal in First Interstate Bank of Arizona
v. Murphy, Weir & Butler, 210 F.3d 983
(9th Cir. 2000). There, a bankruptcy
judge recused herself because her law
clerk had continued to have some contact
with a Chapter 11 bankruptcy proceeding
after the law clerk accepted an offer to
join the law firm representing the
creditors. Id. at 985.
17 The “hybrid” status of the
Advisors has given us considerable
concern. That concern is expressed in
note 20, infra. As counsel for Respondent
Owens Corning admitted at our first
hearing, he had no knowledge of such a
hybrid status or of individuals having
assumed that status being asked to assist a
judge.

-- 23 of 54 --

24
as being experts in the asbestos litigation
field and depended on them to educate
him on all the relevant issues.
There is, of course, nothing
inherently wrong with appointing a panel
of experts. But when ex parte discussions
between the judge and the panel veer into
the merits, recusal may follow. For
example, in Edgar v. K.L., 93 F.3d 256
(7th Cir. 1996), a district court judge
appointed, with the parties’ consent, a
panel of experts. Although the parties
were aware that the panel had ex parte
meetings with the judge from time to time
to discuss administrative matters, the
parties only discovered later that one of
the meetings involved a discussion of the
merits and possibly a preview of the
panel’s final report. Id. at 257-58. When
the parties moved to disqualify the judge,
he blocked discovery and denied the
motion. A petition for a writ of
mandamus in the Seventh Circuit Court of
Appeals followed. Id. at 257.
The Seventh Circuit issued a writ
of mandamus disqualifying the judge. As
to § 455(a), the court held: “A thoughtful
observer aware of all the facts . . . would
conclude that a preview of evidence by a
panel of experts who had become
partisans carries an unacceptable potential
for compromising impartiality.” Id. at
259-60 (citations omitted). The court also
noted that “[e]xperts appointed and
supervised by a court carry special weight
because of their presumed neutrality,” and
that the panel of experts appointed by the
district court judge were not truly neutral
because they had been influenced by
submissions from advocacy groups and
counsel supporting plaintiffs in other
lawsuits against the defendant.18 Id. at
261-62.
The Edgar decision, like the Hall
decision, is instructive in that the Seventh
Circuit Court of Appeals did not hesitate
to disqualify the district court judge under
18 The Edgar court held that the
district court judge had acquired
“personal” knowledge from the panel of
experts, which is another way of saying
that the judge acquired information from
an extrajudicial source. Edgar, 93 F.3d at
259. The extrajudicial source doctrine, as
it is commonly known, provided at one
time that recusal was not warranted unless
the grounds for recusal emanated from an
extrajudicial source (i.e., a source outside
of the judicial proceedings at hand). See
Liteky v. United States, 510 U.S. 540, 544-
545 (1994). In Liteky, the Supreme Court
held that the extrajudicial source also
applied to § 455(a), but it tempered its
effect by explaining that it was merely a
factor and not a prerequisite for
disqualification. Id. We agree with the
Edgar court that off-the-record
discussions on substantive issues in
chambers constitute “personal” or
“extrajudicial” knowledge in the sense
that the information conveyed to the judge
leaves no trace in the record and cannot
“be controverted or tested by the tools of
the adversary process.” Edgar, 93 F.3d at
259.

-- 24 of 54 --

25
§ 455(a) even though there was no
evidence of actual bias. The theme
running through both Edgar and Hall is
that there is an almost irrebutable
presumption that a judge is “tainted” and
must be disqualified where, as here, he
surrounds himself with individuals who
may not be truly disinterested.
Some of the parties opposing Judge
Wolin’s disqualification attempt to
distinguish the Hall and Edgar decisions
on the ground that the Five Asbestos
Cases do not involve a district court’s
relationship with its law clerks or court-
appointed experts. The Respondents
contend that court-appointed “Advisors,”
such as Gross and Hamlin, are mere
consultants, of whom pure neutrality is not
required.
While the Respondents’ attempt to
distinguish Hall and Edgar has some
superficial appeal, we believe their
approach values form over substance and
relies too heavily on overly-technical
categorizations. More importantly, it fails
to take into account the underlying
considerations that drove the courts’
decisions in Hall and Edgar. The primary
concern in both Hall and Edgar is that a
party which held a special position of trust
and influence over the judge was found to
be not truly disinterested in the outcome of
the proceedings. The same can be said
here. As court-appointed Advisors to
Judge Wolin, Gross and Hamlin were
given very broad powers. The order
appointing them provided, among other
things, that they could advise Judge
Wolin, mediate disputes, hold case
management conferences, and consult
with the attorneys. Hamlin himself
likened the powers that he exercised to
those of a magistrate judge. Given these
wide-ranging powers, surely the five
Court-Appointed Advisors were under a
duty to maintain at least the degree of
neutrality normally required of law clerks
or court-appointed experts. However, that
neutrality was seriously compromised by
virtue of their participation in G-I
Holdings, a bankruptcy involving many of
the same issues present in the bankruptcies
assigned to Judge Wolin, many of the
same creditors, and possibly some of the
same asbestos claimants.
We also note that Kensington’s
Reply Brief emphasizes that over a 22-
month period Judge Wolin received
substantive information from:
• two Advisors (Gross and
Hamlin), who had a fiduciary duty in G-I
Holdings to advance the interests of the
future asbestos claimants (Joint Appendix
(“JA”) 1545);
• two Advisors (Gross and
Hamlin), who had an incentive to make
helpful precedent in the Five Asbestos
Cases, which they could then rely on (and
did rely on) in G-I Holdings in support of
the future claimants (JA 1621, 978B, 980,
2728);
• three Advisors (Gross, Hamlin
and McGovern) who met on multiple
occasions with the future representatives

-- 25 of 54 --

26
in a wide range of asbestos-related cases
(including the Five Asbestos Cases), to
develop a common strategy with respect to
pending asbestos legislation and to discuss
common issues (JA 1645); and
• two Advisors (Gross and
McGovern) who allegedly breached their
duties as mediators by disclosing to Judge
Wolin substantive positions of the
mediating parties (JA 1393, 1409, 1412,
1432).19
Given the unique level of access
and influence that Gross and Hamlin had,
the length of their appointment, and the
overlapping issues and clients, we find
that the reasonable person, with familiarity
of these circumstances, would conclude
that their conflict of interest tainted Judge
Wolin.
E. The Ex Parte Communications
Contributing to Taint
The extensive ex parte
communications between Judge Wolin, on
the one hand, and the Advisors and
parties, on the other, further support
disqualification under § 455(a). See
United States v. Furst, 886 F.2d 558, 583
(3d Cir. 1989) (disqualifying judge under
§ 455(a) because of ex parte
communications). We have previously
described ex parte communications as
“anathema in our system of justice.”
School Asbestos, 977 F.2d at 789. One
leading reason is that ex parte meetings
are often, as they were here, unrecorded.
Consequently, there is no official record of
what was said during those meetings. Of
even greater concern is the argument
urged upon us by the Petitioners who,
without knowledge of what was discussed
at these meetings, contended that they
could not respond to these “silent” facts.
As we explained in City of Pittsburgh v.
Simmons, 729 F.2d 953 (3d Cir. 1984):
The record taken by a
certified court reporter is
always the best evidence of
what has been said, what
actions have been taken,
and what rulings have been
made. “Meaningful review
requires that the reviewing
tribunal must be able to
review a decision of a trial
court . . . to determine its
correctness and if necessary
control the course of the
litigation whether by appeal
or by use of a writ . . . .”
Wood v. Zapata Corp., 482
F.2d 350, 358 (3d Cir.
1 9 7 3 ) ( B i g g s , J . ,
dissenting). Without a
record of the proceedings
“[w]e are left with
conflicting statements of
19 Kensington alleges that Advisors
Gross and McGovern, who served as
mediators in the Owens Corning
bankruptcy, improperly shared with Judge
Wolin information that they had gained
from the parties during the course of
mediation.

-- 26 of 54 --

27
counsel which cannot be
reconciled and, in any
event, are not part of the
record and therefore cannot
serve as a basis for
adjudication.” Id.
. . . Indeed, the best
protection for the litigants,
the bar, and the bench at
trial and on appeal is a
verbatim record. Rather
than having to speculate
upon what was said and the
manner in which an
argument was made, the
court then has before it,
when a record is taken, the
exact words of counsel and
the exact words and rulings
of the court. Thus, there is
no need for characterization
in affidavits or for
reconstruction at a later date
of what the parties or court
thought each said or meant
or what each intended.
Id. at 955-56.
The other problem is that ex parte
communications run contrary to our
adversarial trial system. The adversary
process plays an indispensable role in our
system of justice because a debate
between adversaries is often essential to
the truth-seeking function of trials. See
Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“The system assumes that
adversarial testing will ultimately advance
the public interest in truth and fairness”).
If judges engage in ex parte conversations
with the parties or outside experts, the
adversary process is not allowed to
function properly and there is an increased
risk of an incorrect result.
Attuned to that concern, the Code
of Conduct for United States Judges
cautions that a judge should “neither
initiate nor consider ex parte
communications on the merits, or
procedures affecting the merits, of a
pending or impending proceeding.” Code
of Conduct for U.S. Judges Canon 3 §
A(4) (2003). The rule is designed to
prevent all of the evils of ex parte
communications: “bias, prejudice,
coercion, and exploitation.” Jeffrey M.
Shaman et al., Judicial Conduct and
Ethics § 5.03 (3d ed. 2000). The Code
provides for only two narrow exceptions.
First, “[a] judge may . . . obtain the advice
of a disinterested expert on the law
applicable to a proceeding before the
judge if the judge gives notice to the
parties of the person consulted and the
substance of the advice, and affords the
parties reasonable opportunity to
respond.” Code of Conduct for U.S.
Judges Canon 3 § A(4) (2003). Second,
“[a] judge may, with consent of the
parties, confer separately with the parties
and their counsel in an effort to mediate or
settle pending matters.” Id.
Judge Wolin apparently recognized
the dangers of ex parte meetings, but
relied on two “safeguards” to minimize the
risk. First, Judge Wolin explained that all

-- 27 of 54 --

28
parties were welcome to participate in the
ex parte meetings and “as one party left
chambers, the next would arrive ready to
debunk the ‘falsehood s’ of its
predecessor.” Owens Corning, 305 B.R.
at 206. Second, Judge Wolin explained
that he was “no babe in arms.” Id. This
characterization, which finds expression in
Judge Wolin’s February 2, 2004 opinion,
is obviously in tension with his earlier
self-characterization as an asbestos
“neophyte.”
Unfortunately, we do not share
Judge Wolin’s confidence that these
safeguards adequately minimized the risks.
Obviously Judge Wolin is correct when he
states that he is “no babe in arms,” but the
same could be said of the overwhelming
majority of Article III judges. Moreover,
the Code of Judicial Conduct does not
draw a distinction between newly-
appointed and veteran judges; the general
p r o h i b i t io n a g a i n st e x p a r t e
communications on the merits applies to
all judges.
As for the second safeguard, we
must first assume that all parties took
equal advantage of Judge Wolin’s
invitation to participate in ex parte
meetings, even though experience informs
us that certain parties may be more
aggressive than others. But even if all
parties met for the same amount of time
with Judge Wolin, there was no way for
them to adequately respond to or counter
facts presented by their adversaries
because they had no way of knowing what
was said during those unrecorded
meetings. Thus, the risk of an incorrect
result was still present. This would be of
little consequence if the ex parte meetings
had been limited to procedural matters, but
Judge Wolin himself explained that “[t]he
purpose of the ex parte meetings was to
ensure that each committee or corporate
constituency was afforded the opportunity
to provide to the Court insights as to why,
in the competition for limited dollars, its
claim was just.” (Supp. Resp. at 3.) In
other words, the ex parte meetings went to
the very heart of the proceedings.
The ex parte meetings with the
parties are flawed because, as we have
explained, no opportunity existed for their
adversaries to know precisely what was
said, when it was said, by whom, and what
effect could be drawn from their offerings.
On the one hand, although all parties may
at one time or another have been invited to
an ex parte meeting with Judge Wolin, the
probability of “slippage” and omission in
the content of the material discussed,
whether procedural or substantive, was
evident. As we have stated, no one could
know what had been said or proffered. On
the other hand, Judge Wolin’s ex parte
meetings with the Advisors presented an
even more egregious problem. The instant
record reveals a conflict as to what the
Advisors brought to the meetings from
their extrajudicial experience and, in the
case of Hamlin and Gross, from their
advocate roles in G-I Holdings, and the
extent of their influence on the entire
process. We know, for instance, that
someone at one of the meetings
disparaged a possible expert witness and

-- 28 of 54 --

29
criticized a defense. Of equal concern is
the record’s disclosure that at a November
19, 2002 meeting attended by Advisors
Gross, McGovern, and Dreier, matters of
substance were discussed, but we have no
knowledge about their content. The
record is silent in this respect. Advisor
Dreier made notes in handwriting which
are under seal and we find difficult to
comprehend. No discovery of that
meeting was permitted by Judge Wolin.
We have previously discussed the
distinction between our holding, that
conflicted advisors who participate or
influence a judge requires the judge’s
disqualification, as distinct from an expert
or other assistant to the judge who is
disinterested and non-conflicted. It should
be understood that we do not hold that a
judge may not or should not have ex parte
meetings or communications with the
parties or their counsel appearing before
him. However, the hallmark of such
meetings or communications requires the
consent of the parties. We have pointed
out in this section that the Code of
Conduct for United States Judges
proscribes ex parte communications
except where the judge has entered into
them with the consent of all the parties.
It will be recalled that Judge Wolin
stated at the December 2001 Case
Management Conference that:
In order to effectively case
manage complex litigation,
it is necessary for the judge
to speak and/or meet with
attorneys on an ex parte
basis, without permission of
adversary attorneys. Any
objection to such ex parte
communications is deemed
waived.
While we have no record of any
objections being registered at that time, we
cannot regard the silence that
accompanied the preemptive statement
that “[a]ny objection to such ex parte
communications is deemed waived” as
manifesting consent. To fulfill the
principles and objectives of Canon 3 of
the Code of Conduct, which proscribes ex
parte communications except with
consent, affirmative consent is dictated.
The record reveals no such consent was
ever given.
Given all of these considerations,
we are confident that the reasonable
person would be troubled by the fact that
so many communications between Judge
Wolin and Gross or Hamlin took place
outside the presence of the parties. If the
structural conflict of interests gave Gross
and Hamlin a motive to give Judge Wolin
less-than-neutral advice, it was the ex
parte meetings that gave them the
opportunity. In the absence of the parties,
Gross and Hamlin were in a position to
influence Judge Wolin without concern
about judicial constraints or independent
challenges from those individuals or
entities with a stake in the outcome of the

-- 29 of 54 --

30
Five Asbestos Cases.20
F. Were the Recusal Motions Timely
Under § 455(a)?
Notwithstanding that § 455 does
not contain an express timeliness
requirement, the Courts of Appeals cases
that have addressed the issue have
concluded that parties seeking
disqualification under § 455(a) should do
so in a timely manner. See, e.g., In re IBM
Corp., 45 F.3d 641, 643 (2d Cir. 1995); In
re Apex Oil Co., 981 F.2d 302, 304 (8th
Cir. 1992). The reason most often given
for applying a timeliness requirement to
recusal motions is that “[t]he judicial
process can hardly tolerate the practice of
a litigant with knowledge of circumstances
suggesting possible bias or prejudice
holding back, while calling upon the court
for hopefully favorable rulings, and then
seeking recusal when they are not
forthcoming.” Smith v. Danyo, 585 F.2d
83, 86 (3d Cir. 1978). Yet timeliness, as
the Court in Danyo stated, is but one of
the factors which engages a court’s
discretion in determining whether a judge
shall be relieved from its assignment. Id.
On remand, Judge Wolin concluded
that the motions seeking his recusal were
untimely under § 455(a). In reaching that
holding, Judge Wolin charged that the
Petitioners either knew or should have
known about Gross and Hamlin’s
participation in G-I Holdings long ago, but
waited until October 2003 to act on that
information. Judge Wolin also questioned
the Petitioners’ true motivations for filing
the recusal motions, claiming that they
were not based on ethical considerations
but were strategic maneuvers by the
Petitioners calculated to gain a larger
percentage of the bankruptcy estates,
20 We have previously noted that
the Advisors chosen by Judge Wolin were
not of the judicial family in the sense that
they were neither magistrate judges, law
clerks, or special masters. As such, the
Advisors were not subject to the
constraints imposed upon judicial
personnel, either through the Code of
Conduct for United States Judges, the
Code of Conduct for Judicial Employees,
or Bankruptcy Rule 9003 (“Prohibition of
Ex Parte Contacts”). We do not imply that
because of their hybrid status as Advisors,
that the Advisors breached any of the rules
by which judicial personnel are bound.
We cannot help but point out, however,
that judicial personnel could not have
undertaken or been engaged in positions
or other functions at odds with their
judicial position. We are obliged to look
with disfavor upon appointment of
personnel who have the access and
influence with the judiciary that the
Advisors had and yet are not constrained
from accepting positions that conflict with
their advisory duties. See Code of
Conduct for United States Judges Canon 3
§ (B)(2) (stating that “[a] judge should
require court officials, staff, and others
subject to the judge’s direction and
control, to observe the same standards of
fidelity and diligence applicable to the
judge”) (emphasis added); see also Notes
4 and 18, supra.

-- 30 of 54 --

31
either through a legislative solution or
through delay.21
Judge Wolin and the parties
opposing recusal have focused primarily
on Mark Brodsky, the senior portfolio
manager at Elliot Management, which
provides services to Kensington’s parent
companies. Brodsky testified that he first
learned about Gross and Hamlin’s
participation in G-I Holdings on
September 24, 2003, a little more than two
weeks before Kensington filed the first of
the recusal motions. Brodsky testified that
he acquired this knowledge from another
Owens Corning creditor who brought to
his attention an opinion issued in the G-I
Holdings bankruptcy. While reviewing
that opinion, Brodsky noticed that Advisor
Gross was listed as the counsel for the
Futures Representative. This, in turn,
prompted an investigation by Brodsky
which disclosed Hamlin’s role in G-I
Holdings. Brodsky’s claim that this was
the first time he learned of Gross and
Hamlin’s participation in G-I Holdings is
corroborated by a September 24, 2003 e-
mail in which Brodsky expresses shock at
Gross’s involvement in G-I Holdings.
It is not surprising, therefore, that
Judge Wolin in his written opinion found
that Brodsky (or, for that matter, D.K.
Acquisition Partners) did not have actual
knowledge of Gross or Hamlin’s
participation in G-I Holdings prior to
September 2003.22 He did conclude,
however, that they either had constructive
or imputed knowledge prior to September
2003.
As we understand the phrase,
constructive knowledge is “knowledge
that one using reasonable care or diligence
should have, and therefore that is
attributed by law to a given person.”
Black’s Law Dictionary 876 (7th ed.
1999). Judge Wolin implied that Brodsky
had constructive knowledge of the
Advisors’ conflict because: (a) Hamlin’s
21 Congress has recently undertaken
an attempt to improve the current asbestos
litigation system. See 150 Cong. Rec.
S4103-S4114 (daily ed. Apr. 20, 2004).
Senator Hatch, Chairman of the Senate
Judiciary Committee, has introduced
Senate Bill 1125, the Fairness in Asbestos
Injury Resolution Act (“FAIR” Act),
which is designed to bring compensatory
relief to those suffering from
mesothelioma and asbestosis. If enacted
in its current form, the bill would create
for the benefit of asbestos victims a $114
billion fund under the auspices of a
streamlined no-fault system. See id.
Senator Frist has described this proposal
as “a substantially better means of
obtaining compensation than through
bankruptcy trusts.” Id. at S4105. Insurers
and defendant companies for the most part
support the bill.
22 At the hearing which Judge
Wolin held in January 2004, he stated,
when questioned if he disbelieved
Brodsky, “I don’t disbelieve Mr. Brodsky
as a matter of fact.”

-- 31 of 54 --

32
appointment as the Futures Representative
and Gross’s selection as local counsel in
G-I Holdings was a matter of public
record; (b) asbestos-related trade
periodicals reported Hamlin and Gross’s
involvement in G-I Holdings; and (c)
many of the attorneys involved in the Five
Asbestos Cases knew about Hamlin or
Gross’s involvement in G-I Holdings. As
Judge Wolin explained it, “Brodsky
surrounded himself with a coterie of
experienced and sophisticated lawyers
who through even a modicum of effort
would have unearthed Hamlin’s and
Gross’s G-1 appointments.”
We believe Judge Wolin
improperly placed the burden on the
Petitioners to uncover Gross and Hamlin’s
participation in G-I Holdings. Such a
requirement does not further the purpose
of § 455(a), which “mandates, at a
minimum, the appearance of neutrality and
impartiality in the administration of
justice.” Alexander, 10 F.3d at 157. In
the recusal context, we are satisfied that if
there is to be a burden of disclosure, that
burden is to be placed on the judge to
disclose possi b l e g r o un d s f or
disqualification. See United States v.
Bosch, 951 F.2d 1546, 1555 n.6 (9th Cir.
1991) (noting that § 455(a) “has a de facto
disclosure requirement.”); see also Parker
v. Connors Steel Co., 855 F.2d 1510, 1525
(11th Cir. 1988) (recognizing that recusal
motion could have been avoided if judge
had disclosed grounds for recusal to
parties).
As we stated in United States v.
Schreiber, 599 F.2d 534, 537 (3d Cir.
1 9 7 9 ) , “ s o u n d p u b l i c p o l i c y
considerations . . . militate for the
adoption of a . . . rule that the parties
should be apprised of any possible ground
for disqualification known privately to the
judge.” The most compelling of these
public policy considerations is that the
judge is in the best position to know of the
circumstances supporting a recusal
motion. The Five Asbestos Cases are no
exception.
The record in this case
demonstrates that Judge Wolin knew
about Gross and Hamlin’s participation in
G-I Holdings from or near the inception of
Hamlin’s appointment as the Futures
Representative.23 Moreover, at least one
of the parties (USG Corp.) brought
Hamlin’s potential conflict to Judge
Wolin’s attention in February 2002, more
than one-and-one-half years before
Kensington filed its recusal motion.24 It is
23 Gross submitted an affidavit
which declared: “At all relevant times,
Judge Wolin was aware of my
representation of Mr. Hamlin in G-I
Holdings.” This was corroborated by
Hamlin, who testified at his deposition
that he informed Judge Wolin at the outset
that he was the Futures Representative in
G-I Holdings.
24 The record contains a stipulation
signed by USG Corp.’s counsel which
unequivocally states that USG Corp.
learned in January 2002 about Hamlin’s
appointment in G-I Holdings. That same

-- 32 of 54 --

33
undisputed, however, that Judge Wolin
never disclosed to the parties, either on or
off the record, that Gross and Hamlin were
actively participating as zealous advocates
in G-I Holdings.
There may be instances in which
constructive knowledge is so pervasive
that it is tantamount to actual knowledge,
but this is not one of those instances. See,
e.g., Nat’l Auto Brokers Corp. v. Gen.
Motors Corp., 572 F.2d 953, 958-59 (2d
Cir. 1978) (finding that parties had
constructive knowledge of judge’s former
affiliation with a large law firm located in
same community); Universal City Studios
v. Reimerdes, 104 F. Supp. 2d 334, 353
(S.D.N.Y. 2000) (same).25 The parties’
access to a burgeoning stream of
information in the Five Asbestos cases
does not naturally lead to the conclusion
that they should have known about the
participation of Hamlin and Gross in G-I
Holdings. We are persuaded that nothing
short of actual knowledge of the facts
giving rise to the recusal motions and the
Petitions for Mandamus would satisfy the
§ 455(a) timeliness factor here.
In addition to relying on
constructive knowledge, Judge Wolin
found that the Petitioners had imputed
knowledge of Gross and Hamlin’s
participation in G-I Holdings. “Imputed
knowledge” means that knowledge
attributed to one person may be deemed to
give notice to another party.
We agree with Judge Wolin that
imputed knowledge can, under limited
circumstances, render a recusal motion
untimely. For example, when a party’s
attorney is aware of the grounds
supporting recusal, but fails to act until the
judge issues an adverse ruling, the recusal
motion is not timely See, e.g., E. & J.
Gallo Winery v. Gallo Cattle Co., 967
F.2d 1280, 1295 (9th Cir. 1992) (denying
as untimely motion for disqualification
where party’s attorney knew about alleged
conflict but did not file motion until after
judgment was entered against him). Aside
from the fact that the attorney is only one
step removed from the client, the attorney
and client have an agency relationship and
month, Judge Wolin issued an order
appointing Hamlin to serve as a Special
Master in the USG Corp. bankruptcy.
Although USG Corp. acquiesced to that
appointment, it wrote Judge Wolin a letter
expressing its concern that “an unsatisfied
party” might later try to overturn an
approved plan of reorganization by
claiming that Hamlin was conflicted.
25 The parties opposing recusal
have directed our attention to In re Allied-
Signal, Inc., 891 F.2d 967 (1st Cir. 1989),
wherein the Court of Appeals for the First
Circuit affirmed a district court judge’s
decision not to recuse himself based in
part on constructive knowledge. It is
important to note, however, that this
observation was not made in the context
of a timeliness determination under §
455(a), but rather on assessment of the merits.

-- 33 of 54 --

34
therefore any facts known by the attorney
may generally be imputed to the client.
See Restatement (Second) of Agency §
9(3) (1958) (“A person has notice of a fact
if his agent has knowledge of the fact . . .
.”).
We do not, however, agree with
Judge Wolin that the recusal motions in
the Five Asbestos Cases present an
appropriate avenue for imputing
knowledge to the Petitioners. There are
simply “too many dots that must be
connected” before the Petitioners can be
deemed to have known about Gross and
Hamlin’s participation in G-I Holdings.
For example, Judge Wolin determined that
knowledge could be imputed to
Kensington through the law firm of Davis
Polk & Wardwell, which is lead counsel
for the Unsecured Creditors Committee in
the Owens Corning bankruptcy. A Davis
Polk partner testified that he received an e-
mail in October 2001 disclosing Hamlin’s
appointment in G-I Holdings. Judge
Wolin concluded that this constituted
notice to the Petitioners in Owens Corning
because the Unsecured Creditors
Committee and Davis Polk owed a
fiduciary duty directly to Kensington.
While it is true that the Unsecured
Creditors Committee in Owens Corning
represented Kensington’s interests in the
Owens Corning bankruptcy, it is
established that a Creditors Committee
owes a fiduciary duty to the unsecured
creditors as a whole, not to the individual
members. See Drexel Burnham Lambert
Group, 138 B.R. 717, 722 (Bankr.
S.D.N.Y. 1992) (“The duty [of the
committee and its counsel] extends to the
class as a whole, not to its individual
members.”); In re Levy, 54 B.R. 805, 807
(Bankr. S.D.N.Y. 1985) (“Counsel for the
creditors’ committee do not represent any
individual creditor’s interest in this case;
they [are] retained to represent the entire
unsecured creditor class.”). So while the
Committee had a duty to represent the
collective interests of the unsecured
creditors, it did not have the authority to
bind each individual creditor. This stands
in stark contrast to the attorney-client
relationship we discussed above.
In looking at the issue of timeliness
through the lens of imputed knowledge,
we find that the record in this case
discloses facts that are too far removed
and far too attenuated from the concept of
knowledge that would cause a party to
take action to vindicate their interest. We
have pursued the trail of imputed
knowledge that the record has laid out
before us, and we are satisfied that the
knowledge allegedly imputed could not
have led any of the participants to the
point where they could be deemed to have
“known” about the conflict of the
Advisors. If connecting the dots could not
have led to such a conclusion, then it is
evident to us that in order to sustain the
principles of § 455(a), where a judge’s
impartiality may appear to be questioned,
we must require actual knowledge (or its
undeniable equivalent) to be shown.
Because the Petitioners in Owens Corning
and W.R. Grace & Co. did not have actual
knowledge of the conflict of the Advisors

-- 34 of 54 --

35
which we have discussed and which the
record discloses, we hold that the motions
seeking Judge Wolin’s recusal under §
455(a) were timely.
G. Disqualification Under § 455(b)(1)
We express no view on the
timeliness of the motions for
disqualification under § 455(b)(1). As
mentioned above, the Petitioners also seek
Judge Wolin’s disqualification under §
455(b)(1) on the basis of his ex parte
communications with the Advisors,
parties, and attorneys. Because we have
determined that Judge Wolin must be
disqualified under § 455(a), there is no
need to reach the issues of timeliness or
the merits of § 455(b)(1). See School
Asbestos, 977 F.2d at 781 (declining to
reach § 455(b)(1) issue where
disqualification was warranted under §
455(a)). Section 455(b)(1) is embraced
within the perception that a reasonable
person might entertain that the judge’s
impartiality might reasonably be
questioned.26
VI. USG Debtors and the Official
Committee of Unsecured Creditors
(collectively, “USG”)
As we previously indicated, USG
stands in a different posture than does
Kensington or D.K. Acquisition Partners
insofar as Judge Wolin’s disqualification
is concerned. The record reveals, with no
uncertainty, that Kensington and D.K.
Acquisition Partners did not have actual
knowledge of the Advisors’ conflict until
September and October 2003,
respectively, and that they filed motions
seeking Judge Wolin’s disqualification
weeks later.
On the other hand, USG became
aware of the Advisors’ conflict in January
2002. See Note 25, supra. It did not take
any action, however, until after the
motions filed by Kensington and D.K.
Acquisition gave rise to a similar motion
by USG. We assume this is the reason
why USG’s motion (and ensuing Petitions
for Mandamus) focused principally on
§ 455(b)(1) and the ex parte
communications that Judge Wolin had
with the Advisors, the parties, the
attorneys, and others. We will not
speculate, however, on this score because
USG’s Petitions were also couched in
terms of § 455(a) and dealt as well with
the Advisors’ conflict which we have
discussed in connection with the
Kensington and D.K. Acquisition Partners
Petitions.
If timeliness turned solely on
“actual knowledge” and constituted the
only factor we could consider in deciding
whether to reach the merits of a recusal
motion, we might well have second
thoughts about relieving Judge Wolin of
his assignment over the USG Corp.
26 Because we are not addressing
disqualification under § 455(b)(1), we
express no view as to whether the claims
made by the Petitioners relying on §
455(b)(1) require disqualification.

-- 35 of 54 --

36
bankruptcy. But as we explained earlier in
this opinion, timeliness is just one of the
factors—albeit a significant one—which
engages our discretion in determining
whether another judge should be assigned
to oversee the USG Corp. bankruptcy. See
Danyo, 585 F.2d at 86.
As the Danyo Court noted and as
we have recounted, “[t]he judicial process
can hardly tolerate the practice of a litigant
with knowledge of circumstances
suggesting possible bias or prejudice
holding back, while calling upon the court
for hopefully favorable rulings, and then
seeking recusal when they are not
forthcoming.” Id. at 86. The Danyo
Court went on to caution circumspection
by stating “[b]ut especially when the
circumstances giving rise to the charge of
bias occur or are discovered after the case
has commenced, timeliness should be
measured not in some absolute and
arbitrary manner from the date of
discovery, but with respect to the future
stages of the case.” Id. at 86 (emphasis
added). Danyo then instructs us that we
are to consider an appropriate
accommodation between the competing
institutional interest in avoiding the
appearance of impropriety, on the one
hand, and avoiding the abuse of § 455(a)
procedure, on the other. Cf. id.
The record informs us that the USG
debtors had one meeting with Judge Wolin
in early 2002. At the time that it filed its
motion to recuse Judge Wolin, it had
received but one ruling in all the
intervening time, and that ruling was a
decision that favored it.27 As USG’s
Unsecured Creditors Committee has
argued, § 455(a) contains no explicit
timeliness requirement and “the
seriousness of the grounds for recusal that
exist on this record far outweighs any
significance that might exist on the date
the Motion was filed.”28 If, as USG
claims, public policy is the polestar to
which we must look, it is these concerns
of public policy that are implicated in
USG’s Petitions.
First, Judge Wolin had issued just
one adverse ruling at the time that USG’s
motion was filed and, as mentioned, this
ruling was favorable to USG. As both the
USG Committee and USG Debtors have
taken pains to point out, Judge Wolin has
issued no substantive rulings in their case
at all, other than the one ruling which we
have just recounted. Moreover, the
Motions to Recuse filed by USG were
filed only after the Owens Corning
27 On February 19, 2003, Judge
Wolin issued a case management order
instructing the USG Debtor to propose a
bar date for asbestos cancer claimants and
proof of claim form. This ruling had been
opposed by the asbestos claimants.
28 Brief of Petitioner the Official
Committee of Unsecured Creditors of
USG Corporation, et al. in Support of
Petitions for a Writ of Mandamus (citing
In re Edgar, 93 F.3d at 257 (noting that
“passage of time is not conclusive if the
justification for disqualification is
compelling”)).

-- 36 of 54 --

37
Petitioners and the W.R. Grace Petitioners
had filed theirs. It is of interest to note
that insofar as the Petitions seeking
disqualification of Judge Wolin, none of
them seeks to overturn any of his prior
rulings. Rather, the recusal proceedings
are concerned only with his continuing
into the “future stages”of these cases.
USG seeks Judge Wolin’s recusal
because, as we have been made aware
during the discovery that took place after
our first hearing, the Advisors billed their
fees equally to each of the Five Asbestos
Cases on the theory that the issues
concerned each case equally. There is,
therefore, some logic in USG’s argument
that it should be entitled to the same
remedy which we have decided is
necessary in Owens Corning and W.R.
Grace.
We are not disposed to have the
issue of timeliness trump what we have
concluded are the principles of § 455(a),
even though the record discusses no
improper acts by Judge Wolin. In light of
the record that has been developed, and in
light of the factors which have been
outlined in Danyo, supra, and their
application to USG, we are satisfied that,
in the unique context of this case, it is
appropriate for us to disqualify Judge
Wolin from administering the USG
bankruptcy, just as we have disqualified
him from administering the Owens
Corning and W.R. Grace bankruptcies.
VII.
We would be remiss if we did not
close this opinion, which concerns Senior
District Judge Alfred M. Wolin, with
thoughts that were so ably expressed years
ago by our colleague, Senior Judge
Ruggero J. Aldisert. Judge Aldisert wrote
for the Court in Haines v. Liggett Group,
Inc., 975 F.2d 81, 98 (3d Cir. 1992), a
case which required the reassignment of
another distinguished District Court
Judge. The Court held in Haines that
Judge Sarokin, the district court judge
who had to be reassigned, had exhibited
the “appearance of partiality” in presiding
over an action against the Tobacco
Industry. We take the liberty of repeating
verbatim Judge Aldisert’s words as they
appeared in the Haines opinion because
they are so appropriate and relevant here:
The right to trial by an
impartial judge “is a basic
r e q u i r e m e n t o f d u e
process.” In re Murchison,
349 U.S. 133, 136, 75 S. Ct.
623, 625, 99 L. Ed. 942
(1955). To fulfill this
requirement—and to avoid
b o t h b i a s a n d t h e
appearance of bias—this
court has supervisory
authority to order cases
reassigned to another
district court judge. Lewis
v. Curtis, 671 F.2d 779, 789
(3d Cir.), cert. denied, 459
U.S. 880, 103 S. Ct. 176, 74
L. Ed.2d 144 (1982).
Therein we stated:

-- 37 of 54 --

38
I mp a r t i a l i t y a n d t h e
appearance of impartiality
in a judicial officer are the
sine qua non of the
American legal system. In
Commonwealth Coatings
Corp. v. Continental
Casualty Co., 393 U.S. 145,
89 S. Ct. 337, 340, 21 L.
Ed.2d 301 (1968), the
United States Supreme
Court stated: “[A]ny
tribunal permitted by law to
try cases and controversies
not only must be unbiased
but also must avoid even the
appearance of bias.”
671 F.2d at 789. See also
Nicodemus v. Chrysler
Corp., 596 F.2d 152, 157
(6th Cir. 1979); United
States v. Robin, 553 F.2d 8,
10-11 (2d Cir. 1977) (en
b a n c ) (per curi am) .
Reassignment is appropriate
to “preserve not only the
reality but also the
appearance of the proper
functioning of the judiciary
as a neutral, impartial
administrator of justice.”
United States v. Torkington,
874 F.2d 1441, 1447 (11th
Cir. 1989).
The district judge in
this case has been a
distinguished member of the
federal judiciary for almost
15 years29 and is no stranger
to this court; he is well
known and respected for
magnificent abilities and
outstanding jurisprudential
and judicial temperament.
On the basis of our
collective experience, we
would not agree that he is
incapable of discharging
judicial duties free from
b i a s o r p r e j u d i c e .
Unfortunately, that is not
the test. It is not our
subjective impressions of
his impartiality gleaned
a f t e r r e v i e w i n g h i s
decisions these many years;
rather, the polestar is
“[i]mpartiality and the
appearance of impartiality.”
Haines, 975 F.2d at 98.
VIII. CONCLUSION
We conclude as follows:
The Kensington, D.K. Acquisition
Partners, and USG Corp. Petitioners have
demonstrated a clear and indisputable
right to have the Writs of Mandamus
29 Judge Wolin has been a federal
district court judge for seventeen years.
Prior to joining the federal judiciary, he
served as a judge on the County District
Court and Superior Court of New Jersey
for seven years.

-- 38 of 54 --

39
issue. The record reveals that the
Advisors’ conflict, which cannot at this
stage be disassociated from Judge Wolin
as well as the ex parte meetings that the
Advisors and Judge Wolin participated in,
reveal an abuse of discretion that requires
disqualification. If these circumstances
were revealed to a reasonable person, it
would undoubtedly lead to a perception
that Judge Wolin’s impartiality might be
seriously questioned.
As to Kensington, D.K. Acquisition
Partners, and USG Corp., who have asked
us to issue a Writ of Mandamus
disqualifying Judge Wolin from further
presiding over the Owens Corning, W.R.
Grace & Co. and USG Corp. bankruptcies,
we will grant their request.
We will take no action at this time
with respect to the Armstrong World
Industries, Inc. bankruptcy, but will
schedule appropriate briefing and
argument on the Petition for Mandamus
filed by the Official Committee of
Unsecured Creditors of Armstrong World
Industries, Inc.
We will take no action in the
Federal-Mogul Global, Inc. bankruptcy,
leaving its administration with Judge
Wolin.
We will vacate any and all stays
that we previously imposed on the District
Court and Bankruptcy Court proceedings,
so that the matters pending or to be
brought before the District and
Bankruptcy Courts may be resumed.
Because Judge Wolin, a United
States District Court Judge from the
District of New Jersey, was appointed in
the District of Delaware as Coordinator of
Case Management for the Five Asbestos
Cases by the then-Chief Judge of this
Court (Senior Judge Edward R. Becker),
we deem it appropriate to file this Opinion
and Writ of Mandamus with the present
Chief Judge of this Court (Judge Anthony
J. Scirica) for either appointment or
reassignment of the Owens Corning, W.R.
Grace & Co. and USG Corp. bankruptcies
to another judge within the Third Circuit
pursuant to 28 U.S.C. § 292(b).30
In re Kensington Int’l Ltd.
Nos. 03-4212, et al.
FUENTES, Circuit Judge, dissenting.
In November 2001, then-Chief
Judge Becker of this Court ordered the
consolidation of the Five Asbestos Cases
on the grounds that “these bankruptcy
cases, which carry with them tens of
thousands asbestos claims, need to be
consolidated before a single judge so that
30 28 U.S.C. § 292(b) provides:
“The chief judge of a circuit may, in the
public interest, designate and assign
temporarily any district judge of the circuit
to hold a district court in any district
within the circuit.”

-- 39 of 54 --

40
a coordinated plan for management can be
developed and implemented.” JA at 191.
Judge Becker stressed the magnitude of
this task, noting that because “a significant
portion of the asbestos cases in this
country are proceeding under the aegis of
this litigation, I deem this assignment and
consolidation critically important to the
administration of justice.” Id. at 191-92.
Judge Wolin accepted this Court’s
mandate and immediately set himself to
the task of managing this unprecedentedly
large asbestos bankruptcy litigation. My
colleagues, disapproving of the manner in
which Judge Wolin executed his mandate,
have decided that he must be recused.
I disagree with this conclusion for
several reasons. First, I cannot concur that
a reasonable observer would perceive any
appearance of partiality on the part of
Judge Wolin: specifically, I do not agree
that the Advisors labored under any sort of
conflict, nor do I perceive Judge Wolin’s
practice of ex parte communications to
warrant his recusal. I find it telling that
Petitioners have not asked, and the
majority has not seen a need, for any of
Judge Wolin’s prior rulings to be
disturbed. In my view, this fact belies the
seriousness of the taint that Petitioners
have sought to ascribe to Judge Wolin’s
court. Second, the petitions for recusal in
this case are clearly untimely, and should
be rejected on that basis alone.
Accordingly, I must respectfully dissent
from my colleagues’ decision to recuse
Judge Wolin.
I.
A.
First, I must disagree with my
colleagues’ conclusion that Gross and
Hamlin had a conflict of interest. The
majority discerns that “Gross and Hamlin,
did, in fact, operate under a structural
conflict of interest” arising “from the dual
roles they played in the Five Asbestos
Cases and the G-I Holdings bankruptcy.”
Maj. Op. at 18. The majority agrees with
Petitioners that Gross and Hamlin are
conflicted by their futures representative
roles because the issues in G-I overlap to
such a great degree with those in the Five
Asbestos Cases. Specifically, the majority
writes: “By their very position as
representatives of the future asbestos
claimants in G-I Holdings, Gross and
Hamlin signaled to all that they could not
be non-partisan, benign or neutral.” Maj.
Op. at 19.
There is no doubt, as the Supreme
Court recognized long ago, that “[c]ourts
have (at least in the absence of legislation
to the contrary) inherent power to provide
themselves with appropriate instruments
required for the performance of their
duties. This power includes authority to
appoint persons unconnected with the
court to aid judges in the performance of
specific judicial duties, as they may arise
in the progress of a cause.” In re Peterson,
253 U.S. 300, 312 (1920) (Brandeis, J.)
(internal citations omitted). Although
“there is no statute which expressly
authorizes” the appointment of the
Advisors in this case, “the court possesses
the inherent power to supply itself with
this instrument for the administration of

-- 40 of 54 --

41
justice when deemed by it essential.”31 Id.
The Advisors may well have been
extraord i n a r y a n d unp reced ente d
appointments in this asbestos bankruptcy
proceeding, but this is a case of
extraordinary a n d u n p r e c e d e n te d
complexity and magnitude. In that light, I
cannot agree that a reasonable observer,
with knowledge of all of the relevant facts,
would discern their role as creating any
appearance of partiality.
To see why this is true, one need
only look at the role of a futures
representative in asbestos bankruptcy
litigation. In an asbestos bankruptcy
proceeding, all present and future asbestos
claims are steered away from the bankrupt
debtor and applied to a properly funded
trust approved by the bankruptcy court.
Present asbestos litigants are those who
suffer asbestos-related injury before the
d e b t o r -d e f e n d a n t ’ s C h a p t e r 1 1
reorganization plan is confirmed, while
future claimants are those who do not
manifest any injury until after the plan is
confirmed. Because asbestosis symptoms
can take an extremely long time to
manifest themselves, and because the
whole point of Chapter 11 proceedings is
to give the debtor finality as to pre-
bankruptcy liabilities, future claimants are
given their own “futures representative.”
This representative is charged with
representing the interests of future
claimants, i.e., by maximizing their share
of the trust corpus. Much like unnamed
class members are bound to the results of
a class action, a future claimant is bound
by the resolution to which his or her
representative agrees. By definition,
future claimants are unidentified during
the plan process, so the futures
representative does not have any concrete
clients, only a nebulous “client” comprised
of latent future interests.
Consequently, Gross and Hamlin do
not have any clients in G-I, nor will they
have any clients by the point at which their
job in G-I is finished: their duty is to
promote the collective interest of those
parties that will have future claims against
the G-I post-confirmation trust. In other
words, Gross and Hamlin are charged with
safeguarding future claimants’ “cut” of the
G-I trust. This duty does not place Gross
and Hamlin in a materially adverse
position to the estates in the Five Asbestos
Cases, nor does it give them a direct
interest in manipulating those estates in
any way. See In re Marvel Entertainment
31 The Advisors appointed by Judge
Wolin were: 1) William Dreier, a retired
New Jersey appellate judge and products
liability expert; 2) David Gross, a New
Jersey lawyer and mediator who had
previously served as counsel for both
asbestos plaintiffs and defendants; 3) C.
Judson Hamlin, a retired New Jersey
Superior Court judge who had managed all
asbestos litigation in New Jersey for a
number of years; 4) John Keefe, a retired
New Jersey appellate judge who had
managed all asbestos litigation in New
Jersey for a different period of time; and 5)
Francis McGovern, a Duke University law
professor with his area of expertise in mass
tort litigation.

-- 41 of 54 --

42
Group, Inc., 140 F.3d 463, 476 (3d Cir.
1998) (“one is a ‘disinterested person’ only
if he has no interest that is materially
adverse to a party in interest in the
bankruptcy”).
Petitioners’ failure to point out any
interest held by Gross or Hamlin is
unsurprising, given that they do not
represent any of the parties in the Five
Asbestos Cases. While there may be some
overlap among those who eventually share
in the money set aside for future claimants
in the Five Asbestos Cases and those who
share in the money set aside for future
claim ants in G-I , the “parties”
t h e m s e l v es — t h e f u t u r e c l ai m a n t
interests—are distinct. The clear
distinction between the futures claimants
in G-I and those in the Five Asbestos
Cases is highlighted by the facts that future
claimants in the Five Asbestos Cases could
be present claimants in G-I or vice versa,
and that Gross and Hamlin will not even
know which claimants fall into which
category until their roles are concluded.
Moreover, the subject matters of
the cases are entirely different. As
observed before, the G-I litigation is a
dispute over how to divide the assets of the
G-I trust. Similarly, each of the Five
Asbestos Cases is a dispute over how to
divide the assets of the trust of one of the
five debtors. In other words, the money at
stake in G-I has no relation whatsoever to
the money at stake in any of the Five
Asbestos Cases, and the responsibility held
by Gross and Hamlin to maximize future
G-I asbestos claimants’ share of the G-I
trust presents no duty with respect to the
division of the trusts in the Five Asbestos
Cases.
Despite the total lack of
commonality among the parties and
subject matter in G-I and the Five
Asbestos Cases, the majority perceives the
appearance of a conflict because, as an
asbestos bankruptcy case, G-I contains
similar issues to those in the Five Asbestos
Cases.32 In my view, this simply cannot
constitute grounds for a reasonable, fully
informed observer to perceive a conflict,
and the majority does not explain why it
would constitute such grounds. It is true
that decisions from Judg e W olin
benefitting future claimants in the Five
Asbestos Cases might benefit the G-I
future claimants, but this does not make
Gross and Hamlin non-neutral as Judge
Wolin’s Advisors. Any person with
expertise in a given field invariably forms
opinions about that field. For example,
judges are empowered to appoint attorneys
as experts. It is almost certain that an
expert attorney will have opinions about
32 The majority contends that
Hamlin and Judge Wolin implicitly
conceded a conflict when they stated that
Hamlin would have had to recuse himself
from any assignment in the Five Asbestos
Cases dealing too closely with G-I. Maj.
Op. at 19. A reasonable observer,
however, would not view Hamlin’s and
Judge Wolin’s cautious statement about
self-recusal in hypothetical situations as an
admission that a structural conflict actually
existed, or even that recusal would be
mandatory in those hypothetical situations.

-- 42 of 54 --

43
the matters within his or her expertise.
Accordingly, it is possible, if not probable,
that the attorney will have opinions about
the merits of the case for which he or she
is called. Furthermore, it is also possible,
if not probable, that the practice upon
which the attorney built his or her
expertise will contain clients that would be
benefitted by the judge’s ruling in a certain
way. These are just natural consequences
of the attorney being an expert in his or her
field, but would not cause the reasonable
observer to demand the judge’s recusal
because the attorney is “conflicted.”
Similarly, a judge would obviously not
have to recuse himself from all criminal
cases if his law clerk was committed to
working for the Federal Defender after his
or her clerkship. Although the law clerk
would arguably have an incentive to
promote pro-defendant precedent, no
reasonable observer would demand that
the judge screen off the law clerk from all
criminal cases.
In short, there is no colorable basis
for perceiving Gross and Hamlin to be
“non-neutral.” They do not represent any
parties in the Five Asbestos Cases, they do
not directly represent any interest
materially adverse to any of those parties,
and the subject matter of their
representation is wholly separate from the
subject matter of the Five Asbestos Cases.
At most, Petitioners have shown that Gross
and Hamlin have opinions about the
subject matter in front of them as a result
of their knowledge of asbestos litigation,
but strong opinions about the law are to be
expected in any well-educated and well-
informed judicial advisor (or judge). The
majority gleans an appearance of conflict
from the mere existence of similarities
between the Five Asbestos Cases and G-I,
but a reasonable observer with knowledge
of all relevant facts33 would easily pierce
through these superficial similarities and
conclude that there is no conflict.
B.
Because I find that Gross and
Hamlin were not conflicted by their roles
in G-I, I find it necessary to briefly discuss
Petitioners’ other allegations of conflict.
The second purported conflict is the
attendance by Gross, Hamlin and
McGovern at the futures representatives’
meetings. Petitioners assert that because
t h e m e e t i n g s in c l u d e d f u t u r e s
33 The majority correctly observes
that the reasonable person envisioned by §
455(a) is a lay person, not a member of the
asbestos bar. However, even if the District
Court’s description of the reasonable
person was technically wrong, the practical
import of this mistake was minimal. As
respondents observe, the “reasonable
observer” in recusal cases must still have
“knowledge of all the facts.” In re
Kensington Int’l Ltd., 353 F.3d 211, 220
(3d Cir. 2003) (emphasis added). Thus,
although the reasonable person is a lay
person, the observer with which the Court
is concerned is a lay person with complete
knowledge of the demands and intricacies
of asbestos bankruptcy litigation, as well
as the actual events that transpired in the
District Court.

-- 43 of 54 --

44
representatives for the Five Asbestos
Cases and had as their goal the promotion
of future claimants’ interests in the
planning of upcoming legislation, the
neutrality of the three Advisors was
compromised. Attendance at a conference
or meeting where a particular point of
view is advocated or dominates the
discussion, however, does not by itself
create a reasonable question as to a judge’s
impartiality. United States v. Bonds, 18
F.3d 1327, 1330-31 (6th Cir. 1994).
Going to such a conference creates no
more of an appearance of bias than reading
a law review article or book with the same
viewpoint. Id. at 1330-32.
In Bonds, the criminal defendants
appealed a conviction based largely on
challenged DNA evidence, and then
moved for rehearing en banc after losing
the appeal. Id. at 1328. The defendants
unsuccessfully sought the recusal of an
appellate judge from the en banc panel
because that judge had attended a scholarly
conference in which the speakers
vigorously defended the FBI’s DNA
methods and denigrated defense counsel
challenging those methods. Id. at 1329. In
refusing to grant the recusal motion, the
Bonds court specifically distinguished In
re School Asbestos Litig., 977 F.2d 764,
782 (3d Cir. 1992), on the grounds that the
conference in the latter case was actually
funded by the judge in that case, and
provided a pre-screening of the plaintiffs’
case on the actual facts of the case. 18
F.3d at 1330-31. This case has neither of
these salient attributes, as there is no
evidence that the actual facts of the Five
Asbestos Cases were spun in any particular
light to the Advisors. This case is
therefore more like Bonds than School
Asbestos.
Petitioners’ final three grounds of
conflict are also unpersuasive. First,
Petitioners’ argument that Gross’s
advocacy for the Keene Creditors Trust
created a conflict fails for the same
reasons that he and Hamlin were not
conflicted by their roles in G-I. Second,
Petitioners allege that after Gross and
McGovern acted as mediators, they
divulged confidential information gathered
in that capacity from the parties to Judge
Wolin, and that this constituted an ethical
breach of their mediator duties. The
record indicates that Gross made some
reports of his mediation discussions to
Judge Wolin, and that McGovern did, in
fact, report to the Advisors and Judge
Wolin that the parties to an earlier
mediation in Owens Corning disagreed on
the extent of Owens Corning’s tort
liability, estimating it to be anywhere from
$6 to 20 billion.34 Furthermore,
McGovern has testified that disclosures of
the mediation’s substance, even to the
decisionmaker in the case, are an ethical
breach.
At most, Petitioners have shown
that McGovern and Gross may have
breached their ethical duties as mediators;
34 Petitioners contend that this
account is verified by Dreier’s notes, but
Dreier’s penmanship makes this
impossible to confirm. JA at 3122-35.

-- 44 of 54 --

45
however, Petitioners have not shown any
way in which this purported breach would
actually constitute a conflict or an
appearance of partiality on Judge Wolin’s
part. Petitioners have no evidence that the
mediations’ substance was conveyed to
Judge Wolin in a manner that would bias
him in the Five Asbestos Cases. Indeed,
as Judge Wolin has pointed out in his
opinion, the total amount of Owens
Corning’s liability was not the key
settlement issue in the case; rather,
because the bankruptcy dispute is over the
distribution of the pie rather than its size,
the truly sensitive information in this case
would be the parties complicated claims as
to their shares of the estate.
Finally, Petitioners contend that
Hamlin’s nomination as a futures
representative in Grace created a conflict,
and that Hamlin admitted as much.
Hamlin, of course, merely observed that if
he became the futures representative in
Grace, he would have to leave his Advisor
position. Hamlin’s observation, in fact,
highlights why his role in G-I did
not create a conflict here: as a Grace
futures representative, he would be
fighting with other creditors of Grace over
the proper distribution of the Grace estate.
As a G-I futures representative, in contrast,
he has no direct interest in the division of
the Grace estate. In conclusion, for the
reasons stated above, none of Petitioners’
arguments that a conflict existed is
persuasive.
C.
The majority also comments that
Judge Wolin’s practice of ex parte
communications contributed to an
appearance of partiality: “If the structural
conflicts of interest gave Gross and
Hamlin a motive to give Judge Wolin less-
than-neutral advice, it was the ex parte
meetings that gave them the opportunity.”
Maj. Op. at 29. Of course, if there were no
conflict to begin with, then Judge W olin’s
ex parte conferences with his Advisors
were no more objectionable than any
judge’s ex parte communications with his
or her law clerks. Thus, the ex parte
communications with the Advisors clearly
did not provide any independent grounds
for recusal.
While I share my colleagues’
wariness of the scope of Judge Wolin’s ex
parte contacts with the parties, I do not
find those contacts disturbing to the point
of requiring his recusal under § 455(a).
Petitioner USG’s brief implies that ex
parte contacts in themselves cause a
judge’s impartiality to be reasonably
questioned. This blanket indictment of ex
parte communications is belied by caselaw
in both this Circuit and others. In re
Prudential Ins. Co. Am. Sales Practices
Litig. Agent Actions, 278 F.3d 175, 182, n.
5 (3d Cir. 2002) (stating that “any
re ason able attorn e y w o u l d h a ve
understood that Judge Wolin could
permissib ly engage in ex parte
communication in a complex class action”
and noting recusal movant’s concession
that premising his motion on Judge
Wolin’s ex parte contacts was baseless)
(internal quotations omitted); Aiken
County v. BSP Div. of Envirotech Corp.,

-- 45 of 54 --

46
866 F.2d 661, 679 (4th Cir. 1989) (recusal
inquiry based on ex parte contacts must
take all circumstances of contact into
account).
Indeed, contrary to USG’s
arguments, cases ordering recusal on the
basis of ex parte contacts did so based on
the contacts’ specific circumstances, not as
part of some general rule against ex parte
contacts. In United States v. Kelly, 888
F.2d 732, 745 (11th Cir. 1989), for
example, the Eleventh Circuit recused the
judge in question because the judge
communicated ex parte with a friend’s
wife regarding the friend’s decision to
testify; indeed, the judge himself conceded
the appearance of impropriety. Similarly,
the School Asbestos court recused a trial
judge who, in his personal capacity, had
unwittingly attended a conference
sponsored by the plaintiffs in his case on
the very topics central to his case, funded
by money he had approved for plaintiffs’
fund. School Asbestos, 977 F.2d at 781-
82. In that case, we ruled that all of those
facts in concert, combined with the judge’s
own recognition of a possible taint,
warranted recusal. Id. at 782-83. In other
words, the ex parte contacts in those cases
possessed attributes that made them
specifically vulnerable to allegations of
bias.
In trying to analogize to these cases,
USG makes much of the large number of
ex parte contacts in this case, but does not
cite to any caselaw that indicates that the
quantity of contacts is a factor in
determining recusal. Rather, as indicated
above, courts ordering recusal examined
the qualitative circumstances of the
contacts and their consequences in making
their decisions. In this case, Judge W olin
made his practice of using ex parte
communications widely known at the
outset of the bankruptcy proceedings, and
the record indicates that while every single
party did not participate, there was no
favoritism given to any particular bloc of
interests. JA at 1854-70. The only
suspicious circumstance alleged by USG is
that Judge Wolin issued a Case
Management Order favoring USG’s
position on setting a bar date, had
numerous ex parte contacts with asbestos
claimants’ counsel, and then “retreated”
from enforcing the Case Management
Order. However, the Case Management
Order itself was not binding, but explicitly
described itself as a proposal that was
subject to comment by all interested
parties, after which it might not be
executed. JA at 286. In conclusion, there
is noth ing ab out t he ex parte
communications in this case to warrant
recusal.
D.
Because I would reject Petitioners’
§ 455(a) challenge, I reach the §455(b)(1)
challenge as well, and conclude that the ex
parte communications here do not warrant
recusal under § 455(b)(1). In relevant part,
28 U.S.C. § 455(b)(1) demands a judge’s
recusal when “he has . . . personal
knowledge of disputed evidentiary facts
concerning the proceeding.” Accord
Kensington, 353 F.3d at 219, n. 6.
Canvassing caselaw from various
jurisdictions, Judge Wolin held that the

-- 46 of 54 --

47
proscribed knowledge in § 455(b)(1) does
not include information gained ex parte
within a judicial proceeding, generally
known facts, opinions on broad topics
formed outside the courtroom, or
irrelevant facts. Rather, the District Court
concluded, § 455(b)(1) mandates recusal if
and only if “a specific, disputed fact at
issue in the case was within the judge’s
prior, non-judicially acquired knowledge.”
JA at 104. Petitioners argue that ex parte
contacts are almost entirely forbidden by
§455(b)(1). Respondents counter that the
District Court’s standard was basically
correct, and that § 455(b)(1) recusal is only
triggered if a judge gains information on a
disputed evidentiary fact outside of
judicial proceedings, or if he shows actual
bias.
As discussed above, case law in this
Court casts doubt on Petitioners’ sweeping
indictment of ex parte communications.
See In re Prudential, 278 F.3d at 182, n. 5.
Furthermore, other Circuits unanimously
support Respondents’ contention that
§455(b)(1) recusal requires the “personal
knowledge” to have its source outside of
the matter over which the judge is
presiding. Bogosian v. Woloohojian, 158
F.3d 1, 11 (1st Cir. 1998) (information
gained by judge “acting in a judicial
capacity . . . was not ‘personal’ knowledge
raising a recusal question”); Conkling v.
Turner, 138 F.3d 577, 592-93 (5th Cir.
1998) (same); Lac du Flambeau Band of
Lake Superior Chippewa Indians v. Stop
Treaty Abuse–Wisc., Inc., 991 F.2d 1249,
1255-56 (7th Cir. 1993) (same); Hale v.
Firestone Tire & Rubber Co., 756 F.2d
1322, 1329 (8th Cir. 1985) (same); United
States v. Bailey, 175 F.3d 966, 969 (11th
Cir. 1999) (same); In re Beard, 811 F.2d
818, 829, n. 16 (4th Cir. 1987) (knowledge
acquired by judge through ex parte
communication did not fall under §
455(b)(1) because it was acquired during
“the course of his judicial duties”); United
States v. Yousef, 327 F.3d 56, 170 (2d Cir.
2003) (same); United States v. Flowers,
818 F.2d 464, 468-69 (6th Cir. 1987)
(recusal not warranted where “all the
information the judge acquired about the
case arose from his association with the
proceeding”); In re Grand Jury 95–1, 118
F.3d 1433, 1438 (10th Cir. 1997)
(information must be obtained outside
course of judicial proceeding, such as “by
witnessing the events at issue in the
proceeding”) (internal quotations omitted).
The Circuits also seem to agree
with Respondents that recusal is only
appropriate under § 455(b)(1) when the
knowledge gained is pertinent to a specific
disputed fact at issue in the case before the
judge. United States v. DeTemple, 162
F.3d 279, 285 (4th Cir. 1998) (judge’s
kno wle d g e o f f a c t s g ain e d b y
representation of one of defendant’s prior
creditors did not require recusal because
none of those facts was “a disputed
evidentiary fact in the criminal trial”);
United States v. Smith, 210 F.3d 760, 764
(7th Cir. 2000) (judge’s extrajudicial
knowledge that anhydrous ammonia is a
dangerous substance did not justify recusal
from sentencing defendant even though
danger posed by anhydrous ammonia was
material fact at issue because danger posed

-- 47 of 54 --

48
was not in dispute). This Court has agreed
that the “disputed evidentiary facts”
described in § 455(b)(1) are “matters
underlying the cause of action.” Plechner
v. Widener College, Inc., 569 F.2d 1250,
1263 (3d Cir. 1977).
Petitioners’ attempts to establish a
per se rule requiring recusal for ex parte
communications are unavailing. For
example, they cite to Price Bros. Co. v.
Philadelphia Gear Corp., 629 F.2d 444,
446 (6th Cir. 1980), but that case was not
a recusal case, and dealt with a judge
whose law clerk gathered facts through
first-hand observation of the allegedly
defective pipe at the heart of the lawsuit;
in other words, the judge gained
extrajudicial knowledge regarding a
disputed fact at the heart of the litigation.
The Price Bros. court explicitly stated,
however, that “not every ex parte
communication to the trial court” is
impermissible. Id. Similarly, United
States v. Craven, 239 F.3d 91 (1st Cir.
2001), cited by USG, is not a recusal case
either, and also stated “that not every ex
parte contact between a judge and a court-
appointed expert” is improper. Id. at 103,
n. 3. Petitioners do cite a recusal case,
Hathcock v. Navistar Int’l Transp. Co., 53
F.3d 36, 41 (4th Cir. 1995), but in that
case the judge was recused on § 455(a)
grounds because he had plaintiff’s counsel
draft an opinion for him without informing
opposing counsel.
The precedent most strongly urged
by Petitioners as persuasive in this case is
Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996),
but even that case does not stand for the
broad proposition that any information
gained by the judge outside the adversarial
process (i.e., ex parte) mandates recusal.
Rather, in Edgar the recused judge sent a
panel of appointed experts to personally
inspect the conditions of an Illinois mental
health facility that was found to be
constitutionally infirm. Id. at 257. In
other words, the Edgar judge’s officers
obtained first-hand knowledge of disputed
evidentiary facts at the heart of the case,
and that circumstance squarely fits within
the requirements for recusal outlined by
Judge W olin in his opinion.
Petitioners’ final attempt to create
an unconditional nexus between ex parte
communications and recusal lies in a
reference to the Code of Judicial Conduct,
wh ich cautio ns ag ainst ex parte
communications. Code of Conduct for
United States Judges, 175 F.R.D. 363,
Canon 3(A)(4). However, the Code
t e l l i n g l y l e a v e s o u t e x p a r t e
communications in its listing of grounds
for disqualification, refuting Petitioners’
claim that the Code endorses recusal based
on ex parte contacts. Id. at Canon 3(C).
Furthermore, although the Code was
largely codified in 28 U.S.C. § 455, see
Ausherman v. Bank of Am. Corp., 216
F.Supp.2d 530, 531 (D. Md. 2002),
“violations of the Code do not necessarily
give rise to a violation of” that statute.
Andrade v. Chojnacki, 338 F.3d 448, 459
(5th Cir. 2003). Indeed, as Respondents
point out, the fact that Congress codified
so much of the Code but did not codify the
prohibition on ex parte communications
evinces a Congressional judgment that ex

-- 48 of 54 --

49
parte communications do not warrant
recusal per se. In short, ex parte
communications must give the judge
information on a specific disputed material
fact gleaned from outside the judiciary
process to warrant recusal under §
455(b)(1).35
Petitioners fail to show that Judge
Wolin gained any “personal” knowledge
from outside judicial proceedings, as all of
the ex parte contacts in this case were
conducted within the context of Judge
Wolin’s management of the case, as
announced in December 2001. Petitioners
rely on Judge W olin’s statement that he
learned information that was “extra-
judicial,” but Judge Wolin’s opinion
rejected the allegation that he learned any
information that was “extra-judicial” in the
sense prohibited by § 455(b)(1). USG also
argues that if the ex parte communications
at issue in this case are not deemed
e xtrajud icial, then no ex par te
communication can ever justify recusal.
USG’s argument is overstated: ex parte
contacts are extrajudicial if they are
received by a judicial officer in his
“personal” capacity, i.e., through first-hand
perception of disputed matters such as in
Edgar. Put another way, § 455(b)(1)
warrants recusal if the judge or an
attendant officer could become a direct
witness in the case. Because Petitioners
cannot demonstrate such circumstances in
this case in regard to Judge W olin, his
recusal is not warranted under § 455(b)(1).
II.
Even if I believed that any of
Petitioners’ recusal arguments had merit, I
would deny Petitioners’ motion as
untimely.
A.
Most troubling in this case is the
conduct of Petitioners USG and the USG
Unsecured Creditors. As the majority
recognizes, both of these Petitioners knew
of the Advisors’ alleged conflict in
January 2002. Furthermore, it is
undisputed that all parties knew of the ex
parte scheme in December 2001, at the
inception of Judge W olin’s control of the
Five Asbestos Cases. It is also undisputed
that no motion for recusal was made until
October 2003. This Circuit has joined
others in imposing a timeliness
requirement on recusal motions. E.g.,
United States v. Rosenberg, 806 F.2d
1169, 1173 (3d Cir. 1986). In determining
whether a request for recusal is timely, the
Court considers the time elapsed between
the complained-of conduct and the motion,
the timeline of the case between the
conduct and the motion, and the effect of
recusal on the case going forward. Smith
v. Danyo, 585 F.2d 83, 86 (3d Cir. 1978);
Apple v. Jewish Hosp. and Med. Ctr., 829
F.2d 326, 334 (2d Cir. 1987). These
factors, taken together, effectively
35 Kensington also cites to Flamm,
Judicial Disqualification § 14.1, which in
turn cites to state law cases for the
proposition that ex parte contacts
demand recusal; § 455(b)(1), a federal
statute, is clearly not implicated by these
citations.

-- 49 of 54 --

50
disallow recusal motions by “a litigant
with know ledge of c ircumstances
suggesting possible bias or prejudice
holding back, while calling upon the court
for hopefully favorable rulings, and then
seeking recusal when they are not
forthcoming.” Smith, 585 F.2d at 86.
USG and the USG Unsecured
Creditors perfectly fit the Smith court’s
description of the “sneak attack” litigant.
Astonishingly, these two Petitioners kept
silent about the matters underlying their
motions for over 20 months. USG tries to
minimize the appearance of delay by
observing that Judge Wolin’s December
2001 statement only disclosed that he
would “sparingly” resort to ex parte
communications, and alleging that it did
not know of the actual scope of the ex
parte communications until late 2003. As
mentioned above, however, the quantity of
ex parte communications is irrelevant to
USG’s claim: it is undisputed that USG
knew that Judge Wolin was (allegedly
improperly) engaging in ex parte
communications to some extent for almost
two years before it brought its motion to
recuse, and that is the relevant measure of
the time elapsed. USG cites to Edgar, 93
F.3d at 257, but in that case a one-year
delay in bringing the recusal motion was
justified because the movants had only
recently discovered the objectionable
qualitative nature of the ex parte contacts
at issue.
USG and the USG Unsecured
Creditors also try to excuse their delay by
arguing that they did not feel empowered
to object to the ex parte communications
because Judge Wolin announced that all
objections would be deemed waived. I do
not believe that a responsible attorney
would have reasonably reacted to Judge
Wolin’s instruction in that manner. First,
Judge Wolin’s statement most naturally
indicates that under his announced
practice, any objections to any particular
ex parte communication would be waived,
not that parties could not voice their
objections to the practice itself. Second,
even if USG and the USG Unsecured
Creditors felt that their objection would
fail before Judge Wolin, attorneys
routinely make seemingly futile objections
for the purpose of preserving their
objection on the record. See Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153,
1181, n. 16 (3d Cir. 1993) (attorney’s
failure to object not excused by belief that
objection would be futile). Third, even if
USG and the USG Unsecured Creditors
felt that objection would be futile, they had
the available remedy that they have chosen
to exercise now, two years later: a motion
for recusal. In short, USG and the USG
Unsecured Creditors have no colorable
excuse for why they did not proceed for
more than 20 months with their efforts to
recuse Judge Wolin.
The majority seems to recognize
that USG and the USG Unsecured
Creditors have no excuse for their dilatory
conduct, but then proceeds to excuse that
conduct anyway on the grounds that USG
had no improper motive for its recusal
motion. Specifically, the majority
observes that the timeliness requirement
was crafted largely to prevent parties from

-- 50 of 54 --

51
trying to recuse a judge once they felt that
they were losing their case. The majority
then accepts USG’s allegation that the only
ruling made by Judge Wolin so far has
been in its favor: the aforementioned
February 2003 Case Management Order.
The majority concludes that, because USG
had not yet suffered any adverse ruling, it
did not have the fear of losing that lays at
the heart of the timeliness requirement,
and that there is therefore no need to
enforce the timeliness requirement against
USG.
Of course, as USG has itself
observed in its argument that it suffered
prejudice from the ex parte contacts, the
District Court eventually refused to
enforce that Case M anagement Order,
meaning that, in effect, the District Court
ruled against USG’s wishes. USG cannot,
on the one hand, claim in support of its
recusal argument that it has perceived
Judge Wolin’s ex parte contacts as
predisposing him against USG, and then
on the other hand, claim that Judge Wolin
has shown no predisposition against USG
to bolster its timeliness claim. In any
event, even if USG had not suffered any
adverse rulings yet, it does not change the
fact that USG has no justification for its
delay in bringing its motion to recuse, as
well as the fact that the delay to this case
that will result from recusal will erase two
years of case management. As this Court
has previously noted, delay in this case
could be catastrophic to many of the
constituencies involved, and that issue
looms especially large in this timeliness
inquiry. Kensington, 353 F.3d at 224-25.
Accordingly, I would reject the § 455(a)
challenge to Judge Wolin’s ex parte
practice on timeliness grounds with respect
to USG.36
B.
Although I do not find the conduct
of the Petitioners in Owens Corning and
Grace as clearly inexcusable as that of the
Petitioners in USG, I would still find their
recusal motions untimely as well. The
recusal motion on ex parte grounds is
clearly untimely for the reasons stated
earlier: namely, that all parties knew of
Judge Wolin’s plan for ex parte
communications in December 2001. The
recusal motion on conflict grounds,
36 I would also find Petitioners’ §
455(b)(1) claim untimely. Although no
published decision from this Court has
decided whether § 455(b) has a timeliness
requirement, it is worth noting that almost
every other Circuit that has considered the
question has implicitly or explicitly
recognized such a requirement. Apple,
829 F.2d at 334 (applying requirement to
§ 455(b) motion); Oglala Sioux Tribe of
Pine Ridge Indian Reservation v.
Homestake Mining Co., 722 F.2d 1407,
1414 (8th Cir. 1983) (same); E. & J. Gallo
Winery v. Gallo Cattle Co., 967 F.2d 1280,
1295 (9th Cir. 1992) (same); Summers v.
Singletary, 119 F.3d 917, 920-21 (11th
Cir. 1997) (explicitly rejecting argument
that timeliness requirement applies only to
§ 455(a) motions and not § 455(b)
motions); United States v. York, 888 F.2d
1050, 1054-55 (5th Cir. 1989) (same).

-- 51 of 54 --

52
however, requires further discussion with
respect to the Owens Corning and Grace
Petitioners. These Petitioners contend that
their motion is timely because they did not
actually know of the alleged conflict until
September 2003. I agree with the majority
that constructive knowledge is not
sufficient to trigger timeliness concerns,
but that imputed knowledge can
sometimes be sufficient. However, I
disagree with the majority’s conclusion
that we should not impute the Owens
Corning and Grace Unsecured Creditors
Committees’ knowledge of the alleged
conflicts to the Owens Corning and Grace
Petitioners.
It is uncontroverted that the firms of
Davis Polk & Wardwell and Stroock &
Stroock & Lavan, counsels for the Owens
Corning and W.R. Grace Unsecured
Creditors Committees respectively, learned
of the alleged conflicts no later than
January 2002. A party, of course, is
charged with the knowledge of its counsel.
E.g., Veal v. Geraci, 23 F.3d 722, 725 (2d
Cir. 1994). Therefore, both of the
Unsecured Creditors Committees knew of
the alleged conflicts. The Unsecured
Creditors Committees are fiduciaries of all
unsecured creditors, including Kensington
and the Grace Creditors. Woods v. City
Nat’l Bank & Trust Co., 312 U.S. 262, 268
(1941); In re Mountain States Power Co.,
118 F.2d 405, 407 (3d Cir. 1941).
Accordingly, notice to the Unsecured
Creditors Committees is the equivalent of
notice to Kensington and the Grace
Creditors. In re Harris Management Co.,
Inc., 791 F.2d 1412, 1415 (9th Cir. 1986)
(notice to creditors’ committee constituted
notice to individual creditors).
Imputing the Unsecured Creditors
Committees’ knowledge to creditors
makes sense. As a parallel example,
Respondents point out that the Asbestos
Claimants Committee is presumed to
speak for all claimants; it would be
staggeringly onerous to require notice of
relevant events to be given to all 200,000+
asbestos claimants rather than the
Committee, which represents their
collective interest. There is no reason why
unsecured creditors should be given any
different treatment than their asbestos
claimant counterparts; to the contrary,
given that in bankruptcy cases creditors
within each constituency change on a
regular basis, the necessity of using the
Unsecured Creditors Committee as a
conduit of notice to unsecured creditors is
even more manifest. Indeed, the
streamlining function of these Committees
is largely their reason for existing in the
first place. Finally, imputing knowledge
from the Committees to individual
creditors would safeguard the interests
behind the timeliness requirement. In
particular, this rule would prevent
Creditors Committees from strategically
preserving recusal claims by insulating
those claims from individual creditors, and
would encourage Creditors Committees to
execute their duties to creditors more
vigilantly.
Kensington and the Grace Creditors
cite authority purportedly against this rule,
but the cited cases do not contradict the
rule of imputing notice. In re Levy, 54

-- 52 of 54 --

53
B.R. 805, 806-07 (Bankr. S.D.N.Y. 1985),
merely states the truism that a Committee
represents the collective interest of its
members, rather than any member’s
individual interest. Kunica v. St. Jean
Fin., Inc., 63 F.Supp.2d 342, 347
(S.D.N.Y. 1999), simply quotes the
underlying bankruptcy opinion, which in
turn made its decision not to impute notice
on the grounds that the notice to the
Committee in that case was oral and
informal. Kunica v. St. Jean Fin., Inc., 233
B.R. 46, 57 (S.D.N.Y. 1999). Here, in
contrast, Davis Polk and Stroock received
written notice of the alleged conflicts. In
In re Masters, Inc., 149 B.R. 289, 292-93
(E.D.N.Y. 1992), Petitioners’ next cited
case, the court held that actual notice to
individual creditors was required in the
specific context of Bankr. R. 9019(a).
Finally, Petitioners cite to Maldonado v.
Ramirez, 757 F.2d 48 (3d Cir. 1985), but
that case does not deal with creditors
committees at all and is therefore
inapposite. In conclusion, Stroock’s and
Davis Polk’s knowledge of the alleged
conflicts should count as knowledge on the
parts of the Grace Creditors and
Kensington, and the motion to recuse on
conflict grounds is therefore untimely.
It is worth noting that although
Judge Wolin has not yet made any
significant rulings in Owens Corning or
Grace, he was, at the time the recusal
petitions were filed, on the cusp of issuing
a ruling on the issue of “substantive
consolidation.” After much debate, Owens
Corning had submitted a reorganization
plan that incorp orated substantive
consolidation, which was opposed by the
bank creditors. Under the status quo, the
bank creditors would get almost a full
return on their credits; on the other hand,
under substantive consolidation, the debts
of all subsidiaries would be thrown into a
single bankruptcy estate with that of
Owens Corning, putting the bank creditors
on an equal footing with all other creditors
of Owens Corning. According to Judge
Wolin, the effect of consolidation on the
banks would be to eliminate more than $1
billion in debt guaranteed by the Owens
Corning subsidiaries. The District Court
held a hearing in April 2003 on the
substantive consolidation issue, and an
opinion was pending on that matter when
Kensington asked for Judge Wolin’s
recusal. This set of facts and
circumstances leads me to tw o
conclusions. First, Kensington had an
incentive to seek Judge Wolin’s recusal: in
its moving papers, Kensington has
indicated its belief that Judge Wolin has
implicitly promoted this claimant-friendly
plan, and whether Kensington is correct or
not, it has clearly shown that it finds Judge
Wolin to be ill-disposed to its interests.37
37 As for the Grace Petitioners,
Judge Wolin observed that they were also
holders of bank debt, and so they might
reasonably have feared a fate similar to
that anticipated by Kensington in Owens
Corning. Furthermore, two of the Grace
Petitioners are themselves holders of
Owens Corning’s bank debt, meaning that
they have the same interest in Owens
Corning that Kensington does.

-- 53 of 54 --

54
Second, recusal would lead to months if
not years of delay in Owens Corning, as it
would at the very least require a retrial of
the extremely contentious substantive
consolidation issue, and threatens to
nullify over tw o years of case
management. See Kensington, 353 F.3d at
224, n. 14 (“assigning another judge to the
Owens Corning bankruptcy would set the
proceedings in Owens Corning back at
least one year”). As this Court noted in its
earlier opinion, the brunt of this delay falls
upon the claimants themselves, who wait
for the conclusion of this bankruptcy
proceeding for resolution of their claims.
See id. at 224, n. 13.
III.
Pursuant to a mandate from this
Court, Judge Wolin took admittedly
extraordinary measures to manage an
unprecedentedly large and complex
asbestos bankruptcy proceeding. Although
his methods were unconventional, none of
them would inspire within the reasonable
and informed observer legitimate
questions regarding Judge W olin’s
impartiality. I fear that in moving for
Judge Wolin’s recusal, Petitioners have
employed a guerrilla tactic timed to serve
their own economic interests in this case,
rather than the interests of justice and
judicial integrity. In the end, putting the
stamp of judicial approval on this kind of
litigious gamesmanship threatens to
undermine the integrity of our judicial
proceedings far more than any techniques
employed by Judge Wolin. I must
respectfully dissent.

-- 54 of 54 --