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Appellate Rule Changes Might Help Judges Decide on Recusal

Dec. 2, 2019, 8:45 PM

Judges who hold stock in companies might have an easier time deciding whether they need to recuse themselves from a particular case under new appellate rules that went into effect Dec. 1.

Under the changes, non-government corporations intervening in litigation and organizations that are the victim of an alleged crime were added to the entities that must disclose their parent company and any publicly held corporation holding 10% or more of their stock.

The amendments to the Federal Rules of Appellate Procedure are part of a routine process to update federal practice and procedure rules. In addition to the disclosure statement changes, the updates to the appellate rules also included a number of tweaks to language that accommodate electronic filings, like changing the word “mail” to “send” in several sections.

“For the most part, it won’t be a big change,” Jaime Santos, an appellate lawyer at Goodwin Procter, said of the new disclosure rules.

The amended Rule 26.1, while broadened to include more parties, still applies only to a small subset of cases. That small subset might include cases like those appealed from agency decisions where there is an intervening corporation or criminal hacking cases where an organization might be among the victims, Santos said.

“The goal is always to ensure that the judges know enough up front about the case so when they’re assigning cases, they can screen for these things,” Sean Marotta, an appellate attorney at Hogan Lovells said.

Although it’s rare, the worst thing that can happen is if a judge sits on a case where they actually have a financial interest, Marotta said. The revisions, which were adopted from several circuits’ existing local rules, could help avoid those situations.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com