Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH

• Court: Supreme Court of Delaware
• Decided: February 8, 2021
• Docket: 200, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MESO SCALE DIAGNOSTICS, § LLC., et al., § § No. 200, 2020 Plaintiffs Below, § Appellants, § § Court Below: Court of Chancery v. § of the State of Delaware § ROCHE DIAGNOSTICS GMBH, § et al., § C.A. No. 2019-0167 § Defendants Below, § Appellees. §

Submitted: December 9, 2020 Decided: February 8, 2021

Before VALIHURA, VAUGHN, TRAYNOR, MONTGOMERY-REEVES, Justices and RANJI, Judge,* constituting the Court en Banc.

Upon appeal from the Court of Chancery of the State of Delaware. AFFIRMED.

David L. Finger, Esquire, Finger & Slanina, Wilmington, Delaware, William S. Consovoy, Esquire, J. Michael Connolly, Esquire (argued), Consovoy McCarthy PLLC, Arlington, Virginia, Patrick Strawbridge, Esquire, Consovoy McCarthy PLLC, Boston, Massachusetts for Appellants.

Matthew E. Fischer, Esquire, Timothy R. Dudderar, Esquire, J. Matthew Belger, Esquire, Andrew H. Sauder, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware; Of Counsel Thomas L. Shriner, Jr., Esquire (argued), James T. McKeown, Esquire, Foley & Lardner LLP, Milwaukee, Wisconsin for Appellees.

* Sitting by designation pursuant to Del. Const. Art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to complete the quorum. PER CURIAM: In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies,

LLC (collectively “Meso”) filed suit in the Court of Chancery against Appellee entities

Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC,

Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively

“Roche”), all of which are or were affiliates or subsidiaries of the F. Hoffmann -- La Roche,

Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of

breach of contract. Roche prevailed at trial, and this Court affirmed the judgment in 2014.

On February 28, 2019, Meso brought a new action asking the court to reopen the

case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the

Vice Chancellor who decided its case four years earlier had an undisclosed disabling

conflict, namely, that Roche’s counsel had been simultaneously representing him in an

unrelated federal suit challenging the constitutionality of Delaware’s law providing for

confidential business arbitration in the Court of Chancery, 10 Del. C. § 349 (“Section

349”). In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors

of the Court of Chancery, as the parties responsible for implementing the challenged

statute, were nominal defendants (hereinafter, the “Judicial Officers”).

The Court of Chancery denied relief and dismissed the action. Meso appeals.

For the following reasons, we AFFIRM the judgment of the Court of Chancery.

2 I. Factual and Procedural Background

Though this case reaches us as an appeal from the dismissal of Meso’s complaint

granting Roche’s motion pursuant to Court of Chancery Rule 12(b)(6), Meso’s “complaint”

is, in effect, substantively a motion for relief from a judgment under Court of Chancery

Rule 60(b), and in particular, under subparagraphs (b)(4) and (b)(6). Meso’s request for

relief was restyled as a separate action for the convenience and at the request of the trial

court. Roche’s corresponding dismissal motion likewise presents, in effect, its opposition

to the Rule 60(b) arguments raised by Meso. The Court of Chancery treated the motion

substantially as one seeking Rule 60(b) relief.1

We take the facts as pled by Meso.2 In so doing, we defer only to those facts Meso

alleged in its pleading and the reasonable inferences therefrom.3 We otherwise rely on the

trial court’s recitation of the facts.

1 Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH et al., Del. Ch. C.A. No. 2019-0167, at 19 (May 18, 2020) (Telephone Rulings of the Court on Defendants’ Motion to Dismiss) [Notice of Appeal Ex. A, hereinafter, “Order”] (stating that “this isn’t a vanilla 12(b)(6) motion. Rather, it is a motion that challenges a claim for extraordinary relief under Rule 60(b), that happens to have been sought by complaint rather than by motion.”). 2 See generally App. to Op. Br. at A017–28 (Complaint). 3 This accords with the deference given to well-pleaded facts under Rule 12(b)(6): Our review is limited to the well-pleaded allegations contained in the complaint. We accept all well-pleaded allegations as true, but we ignore conclusory allegations that lack specific supporting factual allegations. Finally, throughout our examination of dismissals under Rule 12(b)(6), we remain heedful of our duty to draw all reasonable inferences in favor of the non-movant. . . . Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998) (internal citations and footnotes omitted).

3 Meso sued Roche on June 22, 2010 alleging two counts of breach of contract (“Meso

Litigation”).4 Then-Attorney Andre Bouchard represented Roche in that action, while Vice

Chancellor Parsons presided over the case. On April 8, 2011, the Vice Chancellor denied

Roche’s motion to dismiss the Meso Litigation.5

On October 25, 2011 the Delaware Coalition for Open Government, Inc. (the

“Coalition”) filed suit in the United States District Court for the District of Delaware

against the State of Delaware, as well as the Court of Chancery and the Judicial Officers,

including Vice Chancellor Parsons (“DelCOG Litigation”).6

The Coalition asserted a cause of action under 42 U.S.C. § 1983, the federal civil

rights statute. It alleged no specific misconduct by Vice Chancellor Parsons. Rather, it

alleged that Section 349 deprived the Coalition of its right to public access to judicial

proceedings under the First Amendment of the United States Constitution. The Coalition

sought a declaration to that effect, as well as injunctive relief barring further arbitrations

under the statute and rules. It also sought to unseal the records of prior arbitrations

conducted pursuant to Section 349.

The Coalition’s complaint included a prayer for attorney’s fees and a residual prayer

for “such other and further relief as the Court deems fair and just.”7 Aside from this

4 App. to Op. Br. at A018 (Complaint). 5 Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, 2011 WL 1348438, at *1 (Del. Ch. Apr. 8, 2011). 6 See generally App. to Op. Br. at A030–34 (DelCOG Complaint). 7 Id. at A34.

4 mention of attorney’s fees, there is no other indication in the record that the Coalition

sought to recover damages, and Meso made clear that Vice Chancellor Parsons did not face

the prospect of money damages or other personal liability beyond the declaratory and

injunctive relief sought in his capacity as a judicial officer charged with implementing

Section 349.

The State retained then-Attorney Bouchard to represent it in the DelCOG Litigation

some time before November 29, 2011.8 At that time, then-Attorney Bouchard sent a letter

to the Court on behalf of all parties coordinating a briefing and oral argument schedule for

the cross-motions for judgment on the pleadings. As the letter indicates, the parties agreed

to stay discovery pending a ruling on those motions. Also copied on the letter were the

Coalition’s counsel and the counsel for the Judicial Officers, Professor Lawrence A.

Hamermesh of the Widener University - Delaware Law School.

The United States District Court for the District of Delaware held oral argument on

February 9, 2012.9 Then-Attorney Bouchard and other attorneys at his firm continued to

represent the State and the Court of Chancery. Professor Hamermesh continued to

represent the Judicial Officers. During that argument, the parties confirmed a prior

agreement that the State and the Court of Chancery should be dismissed.10 Then-Attorney

8 Id. at A036–37 (Letter from Counsel). 9 Id. at A048 (DelCOG Oral Argument Transcript). 10 Id. at A053.

5 Bouchard presented oral argument on behalf of all defendants, including Vice Chancellor

Parsons.

The District Court granted judgment in the Coalition’s favor on the cross-motions

on August 30, 2012.11 Consistent with the parties’ stipulation, the District Court dismissed

the State and Court of Chancery on Eleventh Amendment sovereign immunity grounds.12

Then-Attorney Bouchard remained counsel of record in the case, and on October 12, 2012,

he entered his appearance for the Judicial Officers, including Vice Chancellor Parsons.13

While that matter was on appeal, Vice Chancellor Parsons granted Roche summary

judgment on the first of the two breach of contract counts in the Meso Litigation on

February 22, 2013.14 He presided over a trial on the remaining count three days later, from

February 25 through March 1, 2013. 15

The United States Court of Appeals for the Third Circuit affirmed the District Court

in the DelCOG Litigation on October 23, 2013.16 Then-Attorney Bouchard was still one

of several attorneys representing the Judicial Officers at that time.17

11 Del. Coal. for Open Gov’t, Inc. v. Strine, 894 F. Supp. 2d 493, 504 (D. Del. 2012). 12 Id. at 494 n.1. 13 App. to Op. Br. at A135 (Entry of Appearance); see also id. at A141–94 (Petition for Writ of Certiorari) (application for United States Supreme Court review in the DelCOG litigation). 14 Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 62 A.3d 62, 94 (Del. Ch. 2013). 15 Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 2014 WL 2919333, at *12 (Del. Ch. June 25, 2014). 16 Del. Coal. for Open Gov’t v. Strine, 733 F.3d 510, 521 (3d Cir. 2013). 17 Id. at 511.

6 Thereafter, Vice Chancellor Parsons heard post-trial argument in the Meso

Litigation on November 8, 2013.18

On January 21, 2014, then-Attorney Bouchard, Professor Hamermesh, and the rest

of the defense team in the DelCOG Litigation submitted a Petition for Writ of Certiorari to

the United States Supreme Court.19 The United States Supreme Court denied certiorari on

March 24, 2014.20 The parties allege no further involvement by then-Attorney Bouchard

in the DelCOG Litigation.

On April 16, 2014, then-Attorney Bouchard sought to withdraw from representing

Meso in anticipation of his elevation to the position of Chancellor of the Court of Chancery,

while his firm continued the representation.21 The trial court approved that request, and he

withdrew on April 29, 2014.22 On June 25, 2014, Vice Chancellor Parsons issued a

decision in Roche’s favor on the remaining breach of contract count.23 This Court affirmed

the judgment on the basis of the trial court’s opinion on June 18, 2015.24 The United States

Supreme Court denied certiorari on November 16, 2015.25

The foregoing facts are undisputed.

18 Meso Scale Diagnostics, 2014 WL 2919333, at *12. 19 App. to Op. Br. at A141 (Petition for Writ of Certiorari). 20 Strine v. Delaware Coalition for Open Government, Inc., 572 U.S. 1029 (2014). 21 App. to Ans. Br. at B48–49 (Motion to Withdraw Appearance). 22 App. to Op. Br. at A20 (Complaint). 23 Meso Scale Diagnostics, 2014 WL 2919333, at *29. 24 116 A.3d 1244, 2015 WL 3824809 (Del. June 18, 2015). 25 136 S. Ct. 524 (2015).

7 Meso asserts, and in this procedural posture we assume to be true, certain key

subsequent developments:

15. In early 2018, Jacob Wohlstadter, the President and Chief Executive Officer of Meso, was conducting Internet research and discovered for the first time that Mr. Bouchard had represented Vice Chancellor Parsons in the DelCOG Litigation during his representation of Roche in the Meso Litigation.

16. Mr. Wohlstadter immediately notified Jonathan Klein-Evans, the Vice President and General Counsel of Meso, and Meso’s Chief Legal Officer of this revelation, about which all were previously unaware. They were all shocked that Vice Chancellor Parsons had never disclosed this fact or recused himself from the Meso Litigation.

17. After Meso learned of this conflict of interest, and despite its involvement in another trial at the time, Mr. Klein-Evans led a careful investigation of the issue. The investigation confirmed that no one at Meso was aware of Mr. Bouchard’s representation of Vice Chancellor Parsons. Nor were there any indications that it had been disclosed.26

Thereafter, Meso sought to retain counsel to collaterally challenge the judgment.

Meso secured its current firm in July 2018 after six other firms declined to represent it.

That firm lacked a Delaware office, and Meso was able to retain local counsel on January

24, 2019 only after five other firms declined representation. Meso sought to file the instant

matter as a Rule 60(b) motion under the Meso Litigation’s docket on February 22, 2019.

At the direction of the clerk’s office, Meso refashioned the motion as a separate complaint

and filed it on February 28, 2019, stipulating that “the Court may elect to treat this

complaint as a motion under subsections (4) and (6) of [Court of Chancery Rule 60(b)].”27

26 App. to Op. Br. at A20–21 (Complaint). 27 Id. at A17 (alteration added).

8 Roche moved to dismiss. The Court of Chancery heard argument on May 6, 2020.28

On May 18, 2020, the trial court ruled that Meso was not entitled to relief under either Rule

60(b)(4) or 60(b)(6), and it granted Roche’s dismissal motion.

II. The Court of Chancery’s Ruling

Meso argued that the court’s judgment in the Meso Litigation was “void” under

Rule 60(b)(4) because Vice Chancellor Parsons’s failure to recuse himself violated Meso’s

due process rights. The Court of Chancery disagreed.

Surveying federal case law, the Court of Chancery determined that a due process

violation renders a judgment void only when the violation involves “a failure to give notice,

reasonably calculated to afford the parties an opportunity to be heard,” or when the

judgment is premised on a certain type of jurisdictional error.29 According to the Vice

Chancellor, failure to recuse results in a judgment that “was, at best [for Meso], voidable.”30

Because voidable judgments are not subject to vacatur under Rule 60(b)(4), the Vice

Chancellor found that subsection inapplicable.

The Court of Chancery also rejected Meso’s claim that it was entitled to relief under

Rule 60(b)(6), which provides for relief from a final judgment for “any other reason

justifying relief from the operation of the judgment.”31 The court relied on Liljeberg v.

28 App. to Ans. Br. at B319–79 (Motion to Dismiss Oral Argument Transcript). 29 Order at 11–12. 30 Id. at 16. Because of this finding, the court determined that it did not need to resolve the question of whether the alleged failure to recuse would ever constitute a violation of due process. 31 Del. Ct. Ch. R. 60(b)(6).

9 Health Services Acquisition Corp.32 as the key case for analyzing undisclosed conflicts of

interest under Rule 60(b)(6). The trial court reasoned, based on Liljeberg, that in order to

obtain vacatur, Meso had to show that (1) it acted within a reasonable time, and (2) the

failure to recuse constituted “extraordinary circumstances,” considering three factors set

forth in Liljeberg. As the United States Supreme Court explained in Liljeberg:

Rule 60(b)(6) relief is accordingly neither categorically available nor categorically unavailable for all [judicial disqualification] violations. We conclude that in determining whether a judgment should be vacated for a violation of [the federal judicial disqualification statute], it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’”33

Applying that standard, the Court of Chancery determined that Meso had neither

acted within a reasonable time nor had it identified extraordinary circumstances.

As to the first step of the test, the court found that “conspicuously absent from

Meso’s pleading is an averment that its attorneys did not know of now-Chancellor

Bouchard’s representation.”34 Although when pressed at oral argument Meso asserted that

it had reached out to its former counsel’s firms to investigate their awareness of the

representation issue, the trial court refused to consider facts not pled. Because Meso’s

attorney’s knowledge was imputable to it, the Vice Chancellor found that Meso’s lack of

32 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988) (citing 28 U.S.C. § 455, the statute for federal judicial disqualification). 33 Id. at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955)). 34 Order at 17.

10 awareness of the highly-publicized DelCOG Litigation could not be inferred reasonably

from the averments in the complaint.

The trial court then found that even if Meso had pled that neither it nor its attorneys

knew of the DelCOG Litigation and representation at any time prior to early 2018, the full

year delay in securing counsel was unreasonable. The court also took judicial notice that,

while “not ultimately dispositive,” Meso’s eventual local counsel was the Coalition’s

counsel from the DelCOG Litigation.35

As to extraordinary circumstances, the trial court found that granting relief would

severely prejudice Roche by negating a long-settled judgment obtained after trial, while

Meso had failed to allege any injustice that it would suffer. Likewise, the trial court found

that “the ostensible judicial ethics violation Meso has identified is not remotely, much less

conceivably, serious under the Rule 60(b) rubric.”36 The trial court noted that the lawsuit

named all of the Judicial Officers; that its allegations were directed to them solely in their

official capacity; and that it “merely sought to prevent confidential arbitrations, a process

from which the judges would reap no personal benefit.”37 Given those facts, the trial court

concluded that even if the representation were deemed to violate judicial ethics rules, it

could not have “caused any reasonably conceivable harm, much less serious harm.”38

35 Id. at 19. 36 Id. at 22. 37 Id. 38 Id. at 23.

11 III. Contentions on Appeal

On appeal, Meso argues that the Court of Chancery erred in denying relief under

both Rule 60(b)(4) and Rule 60(b)(6).

Meso argues that Rule 60(b)(4) applies because any judgment issued in violation of

“procedural due process” is void. It also argues that even if only a narrower subset of due

process violations satisfy Rule 60(b)(4), the judgment is void in this case because a hearing

before a conflicted judicial officer deprived Meso of the “opportunity to be heard.”

Therefore, Meso urges us to examine the constitutional due process issue and hold that

Vice Chancellor Parsons violated Meso’s due process rights by failing to recuse.

As to Rule 60(b)(6), Meso asserts that it was not aware of the DelCOG Litigation

and potential conflict until Mr. Wohlstadter’s internet search in 2018. Acknowledging that

attorney knowledge is imputed to the client, Meso argues that it nevertheless properly pled

a lack of awareness of the conflict at the time of the trial and appeal. It urges the Court to

consider the year-long gap between Mr. Wohlstadter’s search and its filing justified in light

of the difficulty it experienced in retaining a firm willing to represent it in a suit alleging

“serious ethics violations” by a Vice Chancellor.

Roche believes that both of Meso’s arguments are misguided. It argues that we and

many other jurisdictions have found that recusal violations render a judgment merely

voidable, not void, and hence ineligible for vacatur under Rule 60(b)(4). It argues that

Meso’s efforts to distinguish these authorities by claiming that the threat of impartiality

12 constructively denied them an opportunity to be heard cannot survive its concession that

the Vice Chancellor was not in fact actually biased.

Roche further contends that the trial court’s Rule 60(b)(6) ruling is correct. It

asserts that the judicial ethics rules did not require recusal since Vice Chancellor Parsons

was clearly a nominal party in the DelCOG Litigation and that no objective observer would

harbor doubts as to his impartiality. In any case, because all members of the Court of

Chancery had the same potential conflict as the nominal defendants in the DelCOG

Litigation, Roche argues that the rule of necessity would militate against recusal even if it

were otherwise warranted.

IV. The Relevant Ethical Framework

We first explain the ethical framework in which Meso’s Rule 60(b) challenge arises,

as the parties have devoted much attention to the ethical rules pertaining to judicial

conflicts. Although Rule 60(b) is the basis upon which this dispute is resolved, the

underlying ethical framework is important to our system of justice and in promoting public

confidence in the integrity of our judicial system. We start with the basic rules governing

judicial disqualification and recusal and then consider other ethical considerations relevant

to the unique circumstances presented here. We then address the Rule 60(b) issues Meso

has raised on appeal.

A. The Delaware Judicial Code

This Court is the entity ultimately responsible for promulgating the rules and

13 practices governing both bench and bar in Delaware.39 We promulgated the Delaware

Judges’ Code of Judicial Conduct (“Judicial Code”) in fulfillment of that duty.40

The Judicial Code provides that a “judge should uphold the integrity, independence

and impartiality of the judiciary”41 and to that end “should avoid impropriety and the

appearance of impropriety in all activities.”42 According to the Judicial Code,

“impartiality” is the “absence of bias or prejudice in favor of, or against, particular parties

or classes of parties, as well as maintenance of an open mind in considering issues that may

39 See Del. Const. art. IV, § 37 (“A judicial officer may be censured or removed by virtue of this section for. . . persistent misconduct in violation of the Canons of Judicial Ethics as adopted by the Delaware Supreme Court from time to time.”); see In re Appeal of Infotechnology, Inc., 582 A.2d 215, 216–17 (Del. 1990) (“Unless the challenged conduct prejudices the fairness of the proceedings, such that it adversely affects the fair and efficient administration of justice, only this Court has the power and responsibility to govern the Bar, and in pursuance of that authority to enforce the Rules for disciplinary purposes.”); see also In re Green, 464 A.2d 881, 885 (Del. 1983) (internal citations omitted): This Court, alone, has the responsibility for licensing and disciplining persons admitted to practice in Delaware. This tenet is of historic proportions, having been transplanted to Delaware by the colonists. It is based on the concept, taken from England, that the courts possess the exclusive right to govern the practice of law. Moreover, the interest of this State in matters pertaining to the admission and regulation of lawyers practicing before our courts is essential to the primary governmental function of administering justice, and in meeting our obligation to protect the public by assuring and maintaining high standards of conduct of persons admitted to this Bar. 40 See Del. Judges’ Code of Judicial Conduct [Hereinafter “Judicial Code”] Preamble (“This Code shall constitute the ‘Canons of Judicial Ethics’ referenced in the Delaware Constitution, Article IV, Section 37.”). 41 Id. Canon 1. See also id. Canon 2 (“A judge should perform the duties of judicial office impartially, competently and diligently.”). 42 Id. R. 1.2(A). See also id. R. 2.3(B) (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); R. 2.5(A) (“A judge should perform the duties of the office impartially and diligently.”).

14 come before a judge.”43 The Judicial Code provides that “[t]he test for appearance of

impropriety is whether the conduct would create in reasonable minds, with knowledge of

all the relevant circumstances that a reasonable inquiry would disclose, a perception that

the judge’s ability to carry out judicial responsibilities with integrity, impartiality and

competence is impaired.”44

Judicial Code Rule 2.11 governs disqualification. That Rule states that “[a] judge

should disqualify himself or herself in a proceeding in which the judge’s impartiality might

reasonably be questioned, including but not limited to” a set of enumerated examples.45

Those examples, contained in Rule 2.11(A), include situations where the judge is biased;

has personal knowledge of disputed evidentiary facts concerning the proceeding; where the

judge, the judge’s relative to within the third degree or the judge’s spouse or domestic

partner has or is likely to have some involvement in the case at bar; where some member

of the judge’s household, directly or as a fiduciary, has an economic interest in the subject

matter, or in a party, or any other interest that could be substantially affected by the

outcome of the proceeding; or where the judge “served as a lawyer in the matter in

43 Id. Terminology. See also ABA Model Code of Judicial Conduct, Terminology (defining “impartiality” as the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge”). 44 Judicial Code R. 1.2(A) cmt. 45 See also Stevenson v. State, 782 A.2d 249, 255 (Del. 2001) (regarding the predecessor provision to Rule 2.11, this Court observed that “[t]he specific instances prompting disqualification that are set forth in the Code do not exhaust all situations in which a judge’s impartiality may be reasonably questioned.”).

15 controversy, or a lawyer with whom the judge previously practiced law served during such

association as a lawyer concerning the matter, or the judge or such lawyer has been a

material witness concerning it, or the judge was associated in the practice of law within the

preceding year with a law firm or lawyer acting as counsel in the proceeding.”46

In furtherance of these requirements, Rule 2.11(B) obligates the judge to make

reasonable efforts to keep informed of his or her own economic and fiduciary interests, and

those of the judge’s immediate family and household members.47

With certain enumerated exceptions listed in the rule, Rule 2.11(C) provides that as

an alternative to disqualification, the judge “may, instead of withdrawing from the

proceeding, disclose on the record the basis of the judge’s disqualification,” and “if the

parties and their lawyers, after such disclosure and an opportunity to confer outside of the

presence of the judge, all agree in writing or on the record that the judge should not be

disqualified, and the judge is then willing to participate, the judge may participate in the

proceeding.”48

Disclosure and waiver pursuant to Rule 2.11(C) is available for all situations in

which a judge is disqualified by the terms of Rule 2.11, except two from the enumerated

list, namely, Rule 2.11(A)(1) and 2.11(A)(4).49 Those are, respectively, conflicts due to

46 Judicial Code R. 2.11(A)(4)(a). 47 Id. R. 2.11(B). 48 Judicial Code R. 2.11(C). 49 Id.

16 actual personal bias or prejudice concerning a party or personal knowledge of disputed

evidentiary facts concerning the proceeding, and certain enumerated matters related to the

judge’s or the judge’s previous law practice’s current or prior involvement in the case.50

B. Conflicts Arising from the Judge as Party in Other Litigation

The cases addressing judicial disqualification and recusal invariably involve an

analysis of the unique facts and circumstances giving rise to the challenge. The leading

Delaware case on judicial disqualification arising from the judge’s participation as a party

in other litigation is Los v. Los.51

Los involved parties in acrimonious and lengthy Family Court litigation. Mr. Los

petitioned for review of a child support order. Two weeks before the hearing, he filed suit

in federal court against Ms. Los, her counsel, the Delaware Attorney General, and the

Family Court judge, seeking to invalidate as unconstitutional Delaware’s child support

formula and Family Court Rule 26, requiring court approval before initiating discovery.52

Though it recited a prayer for damages, the federal suit’s claims against the Family Court

50 In other words, if the lawyer’s participation in the matter before the judge gives rise to an actual bias or prejudice, the judge is disqualified under Rule 2.11(A)(1), and the disqualification is not waivable. Assuming the judge “reasonably concludes” that he or she does not have an actual bias or prejudice, the judge “may continue to preside over the matter as long as [the judge] complies with the remaining requirements” of Rule 2.11(C).” Lawyer Concurrently Representing Judge and Litigant Before the Judge in Unrelated Matters, ABA Standing Comm. On Ethics & Prof’l Resp., Formal Op. 07-449 (Aug. 9, 2007). 51 595 A.2d 381 (Del. 1991). 52 Id. at 383.

17 judge were solely that he discharged his official duties in accordance with court rules and

state law.

At the hearing, Mr. Los sought the judge’s recusal. He asserted that the federal case

rendered the judge conflicted, and also that the judge was biased against him, but presented

no specific basis for his claim. The Family Court judge determined first that he harbored

no subjective bias against Mr. Los, and second that the federal litigation did not present a

disabling conflict, and so he refused to disqualify himself. As Mr. Los refused to

participate in the hearing, the judge dismissed the petition and Mr. Los appealed.

This Court affirmed the Family Court’s decision. In our view, “as a matter of due

process, a litigant is entitled to neutrality on the part of the presiding judge but the standards

governing disqualification also require the appearance of impartiality.”53 We noted that

the judicial ethics rules we had promulgated codified both of these requirements.54

We determined that “[w]here the basis for the alleged disqualification is a claim,

under Canon 3(C)(1) [the predecessor to Rule 2.11(A)], that the judge ‘has a personal bias

or prejudice concerning a party,’ no per se automatic disqualification is required.”55

53 Id. 54 At the time of Los, the operative ethical rule was Canon 3(C)(1) of the 1987 predecessor to the current Judicial Code. Id. (citing Weber v. State, 547 A.2d 948, 951–52 (Del. 1988)). Canon 3(C)(1) corresponds to Rule 2.11(A)(1) of the current Delaware Judicial Code. The modest differences between Canon 3(C)(1) in the 1987 Judicial Code and Rule 2.11(A) in the current one, including use of masculine language to refer to the judge in the 1987 version, are immaterial to the present case. As we note in the Preamble, we adopted the current Judicial Code in 2008, reformatting and renumbering its provisions to conform to the order and numbering of the ABA 2007 Model Code of Judicial Conduct. 55 Los, 595 A.2d at 384.

18 Instead, we held that when “faced with a claim of personal bias or prejudice” under Canon

3(C)(1), the judge must engage in a two-part analysis to determine if recusal is warranted.

First, the judge must determine whether she is subjectively satisfied that she can hear the

case free of bias or prejudice concerning the party seeking recusal. Second, “even if the

judge believes that he or she is free of bias or prejudice, the judge must objectively examine

whether the circumstances require recusal because ‘there is an appearance of bias sufficient

to cause doubt as to the judge’s impartiality.’”56 When the trial judge performs those two

inquiries, we review each under the deferential abuse of discretion standard.

As this Court further explained, “[t]he mere fact that a judge is an adverse party in

another proceeding will not, by itself, result in automatic disqualification.”57 We noted a

“compelling” policy reason for a judge not to disqualify herself at the behest of a party who

initiates litigation against a judge -- in “the absence of genuine bias, a litigant should not

be permitted to ‘judge-shop’ through the disqualification process.”58 Permitting a litigant

56 Stevenson v. State, 782 A.2d at 255 (citation omitted); see also Layton v. Layton, 211 A.3d 136, 2019 WL 2078346, at *2 (Del. May 10, 2019) (TABLE) (“the judge must determine whether there is the appearance of bias sufficient to cause objective doubt as to the judge's impartiality”); Turner v. State, 162 A.3d 102, 2017 WL 1954944, at *1 (Del. May 10, 2017) (TABLE) (“even if the judge subjectively believes she does not have bias, she must determine that there is not an ‘appearance of bias sufficient to cause doubt as to the judge's impartiality.’”) (quoting Los, 595 A.2d at 385). As the United States Supreme Court stated in In re Murchison, “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’” 349 U.S. at 136 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). 57 Los, 595 A.2d at 385. 58 Id.

19 to exert control over which judge presides over a case by provoking a conflict by filing

another action would hamper the orderly administration of justice.59

That policy concern, so compelling in Los, is inapplicable here. Though we stated

in Los that “there was no requirement that [a judge] disqualify himself where he was sued

in his judicial capacity in an action instituted during the course of the proceedings before

him,” we were addressing a circumstance where the litigant seeking disqualification

provoked the conflict. Meso did not. Though the DelCOG Litigation was later-filed, the

alleged conflict arose because of the involvement of Roche’s counsel. Meso and its agents

neither created nor controlled the circumstances of which it now complains. That

dissimilarity distinguishes Los from the present case and necessitates further examination.

C. Other Jurisdictions’ Treatment of Judge-as-Litigant Conflicts

Because this Court has not previously examined cases where counsel represented a

judge in a different case, we examine the treatment of this issue in other jurisdictions. Our

Delaware Judicial Code is derived in substantial part from the American Bar Association’s

(“ABA”) Model Code of Judicial Conduct. Many other states have similarly modeled their

own rules of judicial ethics on the ABA Model Code and have considered the effect of an

attorney’s representation of the judge in an unrelated suit.60

59 Id. (citing Smith v. Smith, 564 P.2d 1266 (Ariz. 1977)). 60 Delaware courts have examined this issue in cases involving other types of adjudicators. Although the standards applied in these situations are not the same as those applied in the judicial context, they offer some insight into the concerns posed by such dual representations. In Beebe Med. Ctr., Inc. v. InSight Health Servs. Corp., a party sought vacatur of an arbitration award after learning that adverse counsel represented the arbitrator (who sat as one member of a three-lawyer arbitration panel) in an unrelated suit for money damages against the arbitrator’s former employer.

20 Considering the dual representation issue, the ABA’s Standing Committee on Ethics

and Professional Responsibility (“ABA Committee”) issued Informal Opinion 147761 in

1981, primarily directed to the judge’s obligations, and Formal Ethics Opinion 07-44962 in

2007, addressing both the attorney’s and judge’s obligations.

In its earlier Informal Opinion 1477, the ABA Committee stated that in the absence

of applicability of the rule of necessity, “when a private lawyer is currently representing a

judge, even in a matter involving the judge’s official position or conduct, the judge should

not sit in a case in which a litigant is represented by the lawyer or by the lawyer’s partner

751 A.2d 426, 427 (Del. Ch. 1999). The Court of Chancery determined that the “evident partiality” standard under 10 Del. C. § 5714(a)(2) was satisfied and vacatur was the necessary remedy “where an arbitrator does not disclose a relationship with a party that creates a reasonable impression of bias.” Beebe, 751 A.2d at 427. See also Del. Transit Corp. v. Amalgamated Transit Union Local 842, 34 A.3d 1064, 1072 (Del. 2011) (holding that to demonstrate “evident partiality,” the record “must reflect that an arbitrator failed to disclose a substantial personal or financial relationship with a party, a party’s agent, or a party’s attorney that a reasonable person would conclude was powerfully suggestive of bias.”). In Home Paramount Pest Control v. Gibbs, 953 A.2d 219 (Del. 2008), an employer sought to vacate an administrative decision awarding workers’ compensation benefits to an employee for carpal tunnel syndrome. The employer’s basis for vacatur was a constellation of similarities between the employee’s claim and an earlier claim that the hearing officer herself had filed. We determined that the two-part Los test applied to an Industrial Accident Board hearing officer. Id. at 221. Applying it, this Court found no abuse of discretion in the hearing officer’s determination that she was not subjectively biased. But we concluded that “a person knowing this unusual overlap in both the claim and the participants” in the hearing officer’s past case and the case before her “would have a reasonable basis to question her impartiality.” Id. at 222. Thus, we held that “in order to promote public trust and confidence in our judicial system, the hearing officer should have recused herself,” and we reversed. Id. 61 Requirement of Judicial Recusal When a Litigant is Represented by Judge’s Lawyers, ABA Standing Comm. on Ethics & Prof. Resp., Informal Op. 1477 (Aug. 12, 1981) [Hereinafter “Opinion 1477”]. Like Los, Opinion 1477 was decided under the prior numbering system, wherein Rule 2.11(A)’s provisions were embodied by Canon 3(C)(1). 62 Lawyer Concurrently Representing Judge and Litigant Before the Judge in Unrelated Matters, ABA Standing Comm. On Ethics & Prof’l Resp., Formal Op. 07-449 (Aug. 9, 2007) [Hereinafter “Opinion 07-449”].

21 or associate.”63 Thus, the ABA Committee drew no distinction between lawyers

“representing the judge in a personal matter or in a matter pertaining to the judge’s official

position or conduct.”64

In its 2007 Formal Opinion 07-499, the ABA Committee later stated that:

The Committee does not assume that, whenever a judge finds herself presiding over a matter in which a lawyer for one of the parties is concurrently representing her in an unrelated matter, she inevitably develops a personal bias or prejudice for or against her lawyer thus triggering the mandatory and nonwaivable disqualification under Judicial Code Rule 2.11(A)(1). The existence or nonexistence of such bias or prejudice depends on the facts of any particular situation. When a judge reasonably concludes that she is not personally biased or prejudiced towards her lawyer, she may continue to preside over the matter as long as she complies with the remaining requirements of Judicial Code Rule 2.11(C).65

Thus, in the ABA Committee’s view, such a conflict can be waived when a judge

reasonably concludes that she is not personally biased or prejudiced towards her lawyer.66

63 Opinion 1477 at 2. In Opinion 1477, the ABA expressly did not address a situation in which a judge, in her official capacity, is represented by “a state attorney general in discharge of the attorney general’s legal duty to represent judicial officers in matters pertaining to their judicial office or duty.” Id. It expressly stated that it did not reach “the view that such a situation would require recusal in all cases in which the attorney general, or other public attorney, or their assistants represent the state or its agencies before the court.” Id. 64 Opinion 1477 at 1. 65 Opinion 07-449 at 2. 66 See Opinion 07-449 at 1. (“[A]bsent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.”); Opinion 1477 at 2 (noting that the ABA’s Model Code “permits remittal of disqualification in specified circumstances (financial interest and family relationship) upon agreement of their parties and their lawyers that the judge's interest is insubstantial or his relationship is immaterial.”).

22 Waiver under Rule 2.11(C) requires that a willing judge disclose the representation on the

record, and then:

ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.67

The ABA Committee regards the judge’s ethical obligation to disclose the

representation issue as unequivocal, and states that the absence of such disclosure “cannot

be cured by reliance on the fact that all parties to the matter already might be aware of the

lawyer’s representation of the judge in another matter.”68

Various state supreme courts have addressed this dual representation issue. The

Supreme Court of Iowa also construes its version of Rule 2.11(A) as being the relevant

inquiry in cases where a judge is represented by a party’s counsel.69 In In re Howes, an

Iowa judge was represented by an attorney in the judge’s divorce.70 While that

representation was ongoing, the attorney sought an ex parte temporary injunction on behalf

of another client in a custody matter from the judge, who granted it.71 The Iowa Supreme

67 ABA Model Code of Judicial Conduct R. 2.11(C). Opinion 07-449 cites Rule 2.11(C) by name as the appropriate procedure, while Opinion 1477 cites its predecessor extant at the time, Canon 3(D). 68 Opinion 07-449 at 3. 69 In re Howes, 880 N.W.2d 184, 193 (Iowa 2016). 70 Id. at 189. 71 Id. at 190–91.

23 Court stated that its version of Rule 2.11 “does not presume actual personal bias or

prejudice on the part of a judge merely because a party’s lawyer currently represents or

previously represented the judge in an unrelated matter.” Rather, “disqualification is

required based on an existing or former attorney-client relationship between the judge and

a party’s lawyer only when ‘the judge’s impartiality might reasonably be questioned’ due

to that relationship.”72 The Court then found that “[w]hen an attorney who

contemporaneously represents or recently represented a judge in a personal matter appears

before the judge in another case and the judge does not disclose that fact to the parties, the

judge’s impartiality might reasonably be questioned.”73 Because the judge did not disclose

the representation to the parties and obtain a waiver, she was required to disqualify herself

from the injunction proceeding.74

The Supreme Court of North Dakota dealt with the issue of a judge’s representation

by a party’s law firm in Sargent County Bank v. Wentworth.75 In that case, a disbarred

attorney, William Williams, had commenced a “frivolous” “nuisance lawsuit” against a

judge, the state attorney general, the state bar association, the attorney disciplinary

authority, and others. The lawyer who represented the judge in that suit was part of a firm,

another member of which represented a bank in a foreclosure proceeding before the judge.

72 880 N.W.2d at 194–95 (citing Iowa R. 51:2.11). 73 Id. at 195. 74 Id. at 204. 75 500 N.W.2d 862 (N.D. 1993).

24 The bank’s firm had represented the judge in the Williams suit; the bank’s original attorney

had been one of the judge’s co-defendants; and that same attorney was a fact witness in the

foreclosure action. The court held that “a reasonable person could, on the basis of these

objective facts, reasonably question [the judge’s] impartiality,” and that the judge therefore

was required to disqualify himself in the foreclosure action.76

The Ohio Supreme Court, in In re Disqualification of Reinbold, stated that “[a] trial

judge’s impartiality may reasonably be questioned if he or she presides over a case in which

a litigant is represented by the judge’s own lawyer” and that the Ohio “chief justice and the

Board of Professional Conduct have long advised that a judge should recuse himself or

herself—or be disqualified—from actions in which an attorney in the case is representing

the judge in another proceeding.”77

Wright & Miller also observes a similar rule under the applicable federal statute,

which requires judicial disqualification “in any proceeding in which [a judge’s] impartiality

might reasonably be questioned.”78 That treatise states that a situation in which “an

attorney in the case is currently representing the judge in a suit for damages . . . seems

appropriate for disqualification under § 455(a).”79

76 Id. at 879–80. The North Dakota Supreme Court reversed the judgment in favor of the bank and remanded for a new trial before a different judge. Id. at 880. 77 94 N.E.3d 570, 570 (Ohio 2017). 78 28 U.S.C. § 455(a). 79 13D Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3549, at text accompanying note 28 (3d ed. Oct. 2020 update) (citing cases).

25 But the existence of bias or prejudice depends on the unique facts in each case. In

their briefing, the parties recognize this and address a number of factors such as whether

the judicial officer has been sued in her official capacity, whether the judicial officer is a

nominal party, and whether all judicial officers who might normally preside over the matter

have also been sued.80 Because the litigation was brought against Vice Chancellor Parsons

in his official capacity and as a nominal party, and against all of the other members of the

Court of Chancery, and because the Vice Chancellor had no financial or other personal

interest in the outcome of that lawsuit, we next consider how certain jurisdictions have

weighed these factors.

D. Representation in an Official Capacity Suit

In analyzing disqualification when counsel appearing before a judge represents that

judge in another matter, various courts have distinguished between suits where the judge

is sued in her personal capacity versus suits asserting claims arising from her official

conduct and position.

The Iowa Supreme Court limited its decision In re Howes (discussed above) to cases

where judges were represented in “personal matters.” That court expressly noted that it

“need not decide whether or under what circumstances disqualification is required under

80 For example, Meso acknowledges in its opening brief that there are “a host of other factors that could distinguish this case from others” including the level of counsel’s “involvement” in the underlying litigation. Op. Br. at 17.

26 rule [2.11(A)] based on an attorney’s representation of a judge in a matter concerning the

judge's official acts.”81

Conversely, in In re Disqualification of Badger, the Ohio Supreme Court required

disqualification where nothing suggested that the judge was biased or prejudiced, where

the unrelated case in which the judge was concurrently represented by counsel pertained to

the judge’s official position, and where the judge had no involvement in the selection of

counsel.82 The Ohio Supreme Court later observed that this rule had been modified as it

applies to prosecuting attorneys and the Attorney General, who are statutorily required to

represent judges in their official capacity, and to judges who are named as nominal parties

and who are represented by the Attorney General’s office. Thus, in In re Disqualification

of Whitmore, the Ohio Supreme Court held that disqualification was not required where

the prosecuting attorney representing the judge was not the same prosecutor appearing

before the judge in another case.83 More recently the Ohio Supreme Court noted a number

of “recognized exceptions” to the rule that “[a] trial judge’s impartiality may reasonably

be questioned if he or she presides over a case in which a litigant is represented by the

judge’s own lawyer.”84 Included among the exceptions is that “disqualification may not

be necessary if the judge is merely a nominal party in the case represented by the

81 See In re Howes, 800 N.W.2d at 195 n.3 (alteration added). 82 546 N.E.2d 929, 929 (Ohio 1989) (“when a private lawyer is currently representing a judge, even in a matter involving the judge’s official position or conduct, the judge should not sit in a case in which a litigant is represented by the lawyer.”) (quoting and following Opinion 1477). 83 704 N.E.2d 1235, 1235 (Ohio 1998). 84 In re Disqualification of Reinbold, 94 N.E.3d at 570.

27 prosecuting attorney or attorney general or if the judge is not personally or substantively

involved in that litigation.”85

The United States Judicial Conference Committee on Codes of Conduct has opined

that disqualification is not always required when the unrelated suit is against the judge in

his or her official capacity.86 In the Committee’s view, “a judge’s impartiality cannot

reasonably be questioned in unrelated matters handled by the DOJ simply because the

Department provides representation in a lawsuit naming the judge in an official capacity,”87

and “[w]hen accepting representation by the Department, a judge is not choosing a personal

attorney, and the DOJ is not the same as a private law firm.”88 More broadly, the

Committee stated, “[n]or is disqualification always required in unrelated matters handled

by the individual attorney assigned to represent the judge.”89 As it explained, “[n]umerous

lawsuits against judges are filed by disgruntled litigants and are patently frivolous; they are

often dismissed promptly and without any discovery on the basis of the judge’s absolute

judicial immunity,” and “[i]n these instances, a judge often will have little personal contact

with the government attorney providing representation.”90 Thus, disqualification “is not

85 Id. at at 571. 86 U.S. Jud. Conf. Comm. Code Cond., Disqualification Issues Relating to Judge Being Sued in Official Capacity, Including Representation by Department of Justice, Adv. Op. No. 102, 2009 WL 8484596 (June 2009). 87 Id. at *1. 88 Id. 89 Id. 90 Id.

28 always required, but instead depends on the particular facts and circumstances of the case,”

including the nature of the claims and the judge’s relationship with the attorney.91

The Kentucky Supreme Court, in Alred v. Kentucky Judicial Conduct Commission,

relying on a Kentucky Judicial Ethics Opinion, has recognized that “where a judge is sued

in his official capacity and the Attorney General’s office represents him, the judge need

not automatically disqualify himself from cases in which the Attorney General

participates.”92 That court has held that the same rule applies where “a judge is sued in his

official capacity . . . and he hires outside counsel to represent him,” but has distinguished

that situation from a situation in which the judge “hires an outside attorney to represent

him in personal litigation.”93

As these cases illustrate, the capacity in which a judicial officer is sued is an

important factor to consider. On one end of that continuum is a lawyer representing a judge

in highly personal litigation such as a divorce or personal injury case (as in In re Howes).

On the other end might be, for example, a situation where a member of the Department of

Justice (“DOJ”), pursuant to state statute,94 represents a judicial officer sued in her official

capacity. Even when judges are sued in their official capacity, there are often other nuances

91 Id. at *1–2. 92 395 S.W. 3d 417, 431–32 (Ky. 2012). 93 Id. at 431. 94 See 29 Del. C. § 2504(3) (“The State Department of Justice and the Attorney General shall have the following powers, duties and authority. . . [n]otwithstanding any other laws, to represent as counsel in all proceedings or actions which may be brought on behalf of or against them in their official capacity in any court, except in actions in which the State has a conflicting interest, all officers, agencies, departments, boards, commissions and instrumentalities of state government”).

29 that affect the analysis, as the Alred case illustrates. Such other factors may include

whether the judge is a mere nominal party, and whether and the extent to which the judge

has direct contact with the DOJ attorneys.

In this case, the DelCOG Litigation asserted a cause of action under 42 U.S.C. §

1983.95 The record overwhelmingly shows that Vice Chancellor Parsons was named as a

defendant in his official capacity as a Vice Chancellor of the Court of Chancery and was

merely a nominal party in the DelCOG Litigation.96 He had no financial, reputational, or

other personal stake in the suit at any time.97

E. The Rule of Necessity

Other rules may come into play when all of the members of a court are named as

defendants in a lawsuit. The “rule of necessity” is the principle of common law that “a

judge is not disqualified to [sit in] a case because of his personal interest in the matter at

95 App. to Op. Br. at A033 (DelCOG Complaint). Under Section 1983, “[a]n action for money damages may not be maintained against a state or its agencies.” Delaware Dept. of Health & Soc. Servs. v. Sheppard, 864 A.2d 929, 2004 WL 2850086, at *2 (Del. Dec. 10, 2004) (TABLE) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 617, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)). 96 As the Court of Chancery observed, “[i]n the federal action, Vice Chancellor Parsons and the other members of the Court of Chancery were named as defendants because the coalition could not sue the State of Delaware or the Court of Chancery directly since they were protected from suit by sovereign immunity.” Order at 5–6. 97 Further, judges are absolutely immune from money damages resulting from their judicial actions. Stump v. Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099, 1104, 55 L. Ed. 2d 331 (1978). Judicial immunity is overcome only if the action complained of was taken outside “the judge’s judicial capacity,” or if the action was “taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991).

30 issue if there is no other judge available to hear and decide the case.”98 This rule “reflects

the longstanding principle that to deny an individual access to courts for the vindication of

his or her rights constitutes a far more egregious wrong than to permit a judge to hear a

matter in which he or she has some interest.”99 The rule has been applied to allow judges

to decide cases that would affect judicial retirement benefits or compensation for all of the

judges in a jurisdiction,100 resolve a challenge to a rule requiring all federal judges to file

annual personal financial statements,101 or decide the validity of a statute that would

compromise the independence of the state judiciary.102 It has been applied where the case

98 Atkins v. United States, 556 F.2d 1028, 1036 (Ct. Cl. 1977) (alteration added). The court in Atkins observed that, “[t]he rule of necessity was a part of the English common law and has been traced back to 1430 and the Year Books.” Id . 99 In re Howes, 880 N.W.2d at 201 (citing Weinstock v. Holden, 995 S.W.2d 408, 410 (Mo. 1999)). Under the rule of necessity, our own procedures provide that “[r]ather than deny a party access to court, judicial disqualification yields to the demands of necessity.” Supr. Ct. Internal Op. Proc. XIX(2). See also id. (“The rule of necessity has been invoked where disqualifications exist as to all members of the state judiciary who would normally hear a matter.”). 100 See Fields v. Elected Officials’ Ret. Plan, 320 P.3d 1160, 1164 (Ariz. 2014) (invoking the rule of necessity where the Justices were all members of the plan at issue); Bd. of Trs. of Pub. Emps.’ Ret. Fund v. Hill, 472 N.E.2d 204, 206 (Ind. 1985) (applying the rule of necessity in a case involving calculation of judicial retirement benefits); Weinstock, 995 S.W.2d at 410 (stating that “[w]hile this particular case involves judicial review of a ‘concurrent resolution’ relating to judicial pay rather than a statute, no doubt exists that all judges of the state, whether active or senior, have a potential stake in the outcome of the case,” and “[u]nless the rule of necessity is applied, the parties can have no judicial resolution of their rights”). 101 See Duplantier v. United States, 606 F.2d 654, 662 (5th Cir. 1979) (holding that rule of necessity applied where all federal judges would have an interest in a case challenging a statute that required federal judges to file annual personal financial statements.). 102 See In re P.L. 2001, Chapter 362, 895 A.2d 1128, 1131, 1143 (N.J. 2006) (invoking rule of necessity in a case challenging a statute that would “fatally compromise[] the independence of the judiciary” by creating in the administrative office of the courts “a law enforcement unit comprised of no less than two hundred probation officers” and directing the New Jersey Supreme Court to promulgate rules for the new unit).

31 involves a legal issue that was within the special province of the members of the allegedly

disqualified court to decide,103 or where an issue of disqualification involved all of the

members of an appellate court, which made designation more problematic. 104 Similarly,

courts frequently hold that the rule of necessity allows judges to hear a case involving an

“indiscriminate[]” litigant who has filed an action that names all of the judges in a particular

jurisdiction as defendants.105 Application of the rule in such instances responds to those

who filed litigation as a tactical effort to “manipulate the random assignment of judges.”106

The rule of necessity exists in Delaware and requires conflicted judges to hear cases

if there is no other judge able to do so. As we said in Nellius v. Stiftel:

The members of this Court would prefer not to sit in this appeal. But this Court must recognize its responsibility to keep the doors of the Court open to every litigant. The law is clear. When the right of a litigant to be heard conflicts with the policy against decisions by interested judges, the former prevails. The Court is the guardian of that right and we will not avoid our

103 See, e.g., N.Y. State Ass’n of Criminal Def. Lawyers v. Kaye, 744 N.E.2d 123, 126–27 (N.Y. 2000) (holding that the rule of necessity compelled the participation of the members of the New York Court of Appeals in a case challenging an administrative directive of that court, because that court “has primary responsibility for the administration of the judicial branch of government, and some administrative rule-making powers are vested exclusively in the Court of Appeals.”). 104 Id.; see also Ignacio v. Judges of U.S. Ct. of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006) (holding that the rule of necessity “should be extended to circumstances like this where a litigant has named uncritically all the judges of this circuit,” and rejecting “the contention that the ability to bring in judges from other circuits to hear the case precludes the application of the rule of necessity as this would be the pragmatic equivalent of having the case transferred out of circuit.”). 105 See Kurtis A. Kemper, Annotation, Construction and Application of Rule of Necessity in Judicial Actions, Providing that a Judge Is Not Disqualified to Try a Case Because of Personal Interest If Case Cannot Be Heard Otherwise, 27 A.L.R. 6th 403 §§ 14–15 (2007) (collecting federal and state cases, including those where plaintiff had sued all of the judges in a jurisdiction or would likely sue any judge assigned). 106 In re BellSouth Corp., 334 F.3d 941, 956–59, n.7 (11th Cir. 2003).

32 responsibility.107

In Nellius, an action related to judicial compensation, the rule of necessity required the

conflicted members of this Court to hear the case only so long as the Governor declined to

exercise his power to appoint unconflicted Justices ad litem to sit in their stead.108

Later, in Crosse v. BCBSD, Inc., citing the rule of necessity, this Court heard a case

involving the health insurer with whom every Justice had coverage without resort to

gubernatorial ad litem appointments.109 We observed that under those circumstances,

recusal would have been an impracticable result.110

All of the Judicial Officers of the Court of Chancery were named as defendants in

107 402 A.2d 359, 361–62 (Del. 1978). 108 See id. at 362 (“If the matter is not resolved and if the Governor elects not to commission judges Ad litem before argument day, the members of this Court, under the rule of necessity, will grant plaintiffs’ application and, notwithstanding their declared interest, will hear and decide this appeal.”); see also Del. Const. art IV, § 15 (“The Governor shall have power to commission a judge or judges ad litem to sit in any cause in any of said Courts when by reason of legal exception to the Judges authorized to sit therein, or for other cause, there are not a sufficient number of Judges available to hold such Court.”). 109 836 A.2d 492, 493 n.1 (Del. 2003). 110 Id. But see Dacey v. Conn. Bar Ass’n, 441 A.2d 49, 51 (Conn. 1981) (indicating that the rule of necessity would not require a trial court judge, who was disqualified because he was a member of the bar association that was a party in the case, to sit in a case if other judges who were not members of the bar association could be reassigned); Lorenz v. N.H. Admin. Office of the Courts, 858 A.2d 546, 549 (N.H. 2004) (recusing the entire New Hampshire Supreme Court in a case challenging an administrative directive of the court, conditioned “upon there being substitute judges available to sit on this case” by designation); State ex rel. Bardacke v. Welsh, 698 P.2d 462, 475 (N.M. 1985) (declining to apply the rule of necessity when a judge from another court could be designated to hear a case); Hooker v. Haslam, 393 S.W.3d 156, 167 (Tenn. 2012) (stating that even if all the judges in Tennessee would be disqualified because the case implicated an economic interest for all of them (because, for example, the outcome might affect their salaries), the rule of necessity would not apply because Tennessee law contained provisions that would allow the governor to appoint “special judges” with no economic interest in the litigation).

33 the DelCOG Litigation. Thus, Roche contends that the rule of necessity permitted Vice

Chancellor Parsons to preside in the Meso Litigation because all of the other members of

the court would face the same alleged disqualifying interest—representation by then-

Attorney Bouchard in the DelCOG Litigation. Meso counters that the rule of necessity did

not apply because Delaware law authorizes the Chief Justice to designate a judge of another

court to sit in the Court of Chancery.

The trial court did not address this point,111 and we think it would be unwise for us

to do so in the first instance and on a purely advisory basis. We recognize that litigants file

in the Court of Chancery based upon its well-deserved reputation of excellence and

expertise in deciding certain types of matters. A party’s choice of forum is an important

aspect of a party’s litigation strategy. We also emphasize the paramount importance of

avoiding situations where a judge’s impartiality might reasonably be questioned as judicial

impartiality is fundamental to the administration of justice and the rule of law. Meso is

correct that mechanisms exist in Delaware for designating judges from another trial court

to handle a matter if all judges on a court are unable to sit on a case.112 Such a decision to

111 See Order at 7–8 (discussing defendants’ arguments relating to “official capacity” suits and the rule of necessity, and stating that “[w]hile defendants have raised persuasive arguments on these fronts, I don’t reach these questions because I don’t have to.”). 112 Del. Const. art IV, § 13(2) empowers the Chief Justice, upon written request from the Chancellor or President Judge of one of the trial courts, or the next most senior Vice-Chancellor or Judge should that position be empty, to assign a Judge or Justice from another court to sit on the requesting court by designation for a specified case and period of time in order to hear and decide the matter. See, e.g. Humanigen, Inc. v. Savant Neglected Diseases, LLC, 238 A.3d 194, 198 n.10 (Del. Super. 2020) (appointing a judge of the Superior Court to sit as a Vice Chancellor over a case consolidated from complaints filed in both courts) (citing Wal-Mart Stores, Inc. v. AIG Ins. Co., 2006 WL 3742596, at *4 n.27 (Del. Ch. Dec. 12, 2006)).

34 apply the rule of necessity and to designate a judge from another trial court to hear the case

obviously can potentially affect not only the parties’ litigation strategy, but also both

courts’ resources, particularly in highly complex cases that involve extensive pre-trial, trial

and post-trial proceedings. The complications posed by and arising from such dual

representations are obvious.113

The Vice Chancellor did not decide whether recusal was required in this case, and

he concluded that he did not need to reach the constitutional questions “because, even if

Meso has identified a due process violation, Meso very clearly has not satisfied the

requirement of Court of Chancery Rule 60(b) to obtain relief from a final judgment.”114

We agree.115 We nevertheless have discussed the ethical principles at some length to

reinforce that such dual representation situations should be avoided and that the need for

vigilance at the outset of a case is imperative. A judge who finds herself in such a situation

should follow the procedure set forth in Los — assuming the judge has no actual bias or

prejudice, the judge must examine the facts and circumstances of the particular case to

determine whether the judge’s impartiality might reasonably be questioned. We

acknowledge Meso’s concerns, and we agree with Meso that even though it asserts no

113 Complicating this matter further is the fact that then-Attorney Bouchard was not counsel of record for the Judicial Officers until after the matter was appealed to the Third Circuit. 114 Order at 9. 115 See Downs v. Jacobs, 272 A.2d 706, 708 (Del. 1970) (“[i]t is the settled policy of this Court that a constitutional question will not be decided unless its determination is essential to the disposition of a case.”). As we said in Downs, “[w]e consider that policy of judicial restraint to be an important element in the orderly administration of justice.” Id.

35 claim of any actual bias or prejudice on his part, the Vice Chancellor, at a minimum, should

have disclosed the representation on the record.116 Meso then would have had the option

of waiving the conflict,117 or formally seeking the Vice Chancellor’s recusal thereby

allowing the recusal issues to be addressed in the proceeding directly instead of years later

in a collateral challenge to a final judgment after trial where additional issues come into

play.118

116 See, e.g. Stevenson v. State, 782 A.2d at 257 (“When a judge knows, or as soon as a judge discovers, facts that would lead a reasonable person to question his or her impartiality in a particular matter, it is essential that he or she promptly disclose that information. Following the prompt disclosure of such information, a judge should engage in the two-part inquiry under Los. In addition, prompt disclosure of such information permits the timely filing of a motion for recusal, which would require the trial judge to engage in the objective analysis of the appearance of impropriety mandated by Los.”). 117 See Oral Argument video at 6:30 – 8:39 https://livestream.com/accounts/5969852/events/ 9376922/videos/214637158/player: Meso’s Counsel: “[I]t is correct that if he had, if Vice Chancellor Parsons had disclosed this, that the parties could have waived the recusal violation, but he never did.” 118 For example, the Pennsylvania Supreme Court has held that “where the challenge is made for the first time after verdict, in post-trial motions or in arguments and briefs before the appellate courts, different considerations come into play.” Reilly v. Se. Pa. Transp. Auth., 489 A.2d 1291, 1301 (Pa. 1985). It stated in Reilly that: Charges of prejudice or unfairness made after trial expose the trial bench to ridicule and litigants to the uncertain collateral attack of adjudications upon which they have placed their reliance. One of the strengths of our system of justice is that once decisions are made by our tribunals, they are left undisturbed. Litigants are given their opportunity to present their cause and once that opportunity has passed, we are loathe to reopen the controversy for another airing, save for the greatest of need. This must be so for the security of the bench and the successful administration of justice. Accordingly, rules have developed for the overturning of verdicts and judgments for after-acquired evidence. In our view, recusal motions raised after verdict should be treated no differently than other after-acquired evidence situations which compel the proponent to show that: 1) the evidence could not have been brought to the attention of the trial court in the exercise of due diligence, and 2) the existence of the evidence would have compelled a different result in the case.

36 With that backdrop, we turn to the Rule 60(b) analysis.

V. Rule 60(b) Analysis

Questions concerning the impartiality of a trial court potentially affect the

administration of justice in a fundamental way. It is important that our courts maintain the

trust and confidence of the public. Where such a challenge arises in the context of a

collateral attack, and in this case, five years after a full trial on the merits (and before a trial

judge who all agree harbored no actual bias), additional public policy considerations must

be considered.119 Court of Chancery Rule 60(b) is designed to address collateral challenges

generally. Various courts have considered additional factors when the collateral challenges

arise in the recusal/disqualification setting as explained next.

“Court of Chancery Rule 60(b) permits a party to seek relief from a final judgment

or order.”120 It recognizes six categories of justification for such relief. Rule 60(b)(4)

applies when “the judgment is void,” whereas Rule 60(b)(6) is the residual catchall,

applying to “any other reason justifying relief from the operation of the judgment.”121

Relief under this residual category requires a showing of an “extraordinary situation or

Id. Applying this test, the court dismissed the attempt “to force the recusal of the trial judge in post-trial fashion” since there was no showing that the evidence relied on for recusal was unavailable during trial in the exercise of due diligence or that the existence of the evidence would have compelled a different outcome in the case. Id. at 1302. 119 Vice Chancellor Parsons entered final judgment in Meso v. Roche on June 25, 2014. Meso filed its complaint seeking vacatur on February 28, 2019. 120 MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 634 (Del. 2001); see also Chaverri v. Dole Food Co., -- A.3d ---, 2021 WL 99505, at *6 (Del. Jan. 21, 2021) (“Superior Court Rule 60 controls motions to vacate a judgment.”). 121 Del. Ct. Ch. R. 60(b)(6).

37 circumstances.”122 Even on such a showing, the movant is “obliged to act without

unreasonable delay” in making a Rule 60(b)(6) motion or relief will be denied.123

The decision whether to grant vacatur under Rule 60(b)(6) lies in the sound

discretion of the trial court and will be disturbed only for an abuse of that discretion.124 In

exercising its discretion, the trial court must consider two significant public policy

objectives, which may be in tension in the particular case before it: “[t]he first is ensuring

the integrity of the judicial process and the second, countervailing consideration is the

finality of judgments.”125 However, under Rule 60(b)(4), that discretion is extremely

limited, since “either a judgment is void or it is valid.”126

A. Rule 60(b)(4): The Underlying Judgment is Not Void

Meso contends that the Court of Chancery erred in dismissing its claim for relief

under Rule 60(b)(4). Rule 60(b)(4) allows a judgment to be vacated if the judgment is

“void.” Roche contends that the Vice Chancellor correctly held that recusal violations

render a judgment voidable, as opposed to void. We agree with Roche.

122 Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del 1979). Recently we reiterated that, “[r]elief under Rule 60(b)(6) is an extraordinary remedy which requires a showing of ‘extraordinary circumstances.’” Chaverri, -- A.3d ---, 2021 WL 99505, at *6. 123 Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979) (per curiam). 124 Cox v. Gen. Motors Corp., 239 A.2d 706, 707 (Del. 1967). 125 MCA, Inc., 785 A.2d at 634. 126 Id. at 634, n.8 (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862 (1995)); see also Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (“When, however, the motion is based on a void judgment under rule 60(b)(4), the [trial court] has no discretion, the judgment is either void or it is not.”) (quoting Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 313–14 (5th Cir. 1986)).

38 Our decision in Copeland v. Manuel127 virtually controls Meso’s first issue on

appeal. Except for the most extreme cases, as discussed below, a challenge to the judge’s

impartiality sounds in voidability, not voidness, and is outside the bounds of Rule 60(b)(4).

In Copeland, two judges recused themselves during the conduct of a civil suit involving a

dentist, resulting in the case’s transfer to a third judge. The dentist ceased attending pretrial

conferences thereafter, and failed to attend the trial, resulting in a judgment against him.

After the plaintiff executed judgment and the scheduling of a sheriff sale of the dentist’s

property, the dentist belatedly moved under Rule 60(b) to vacate on the grounds that the

judgment impermissibly relied on pretrial orders from the recused judges.128

In denying relief, this Court reiterated the common law rule that “the judgments of

disqualified judges were deemed as voidable but not void.”129 We determined that a Rule

60(b) attack on the judge’s impartiality requires a showing of “extraordinary

circumstances,” suggesting that Rule 60(b)(6) applies and not Rule 60(b)(4).

Meso, citing Copeland, acknowledges in its opening brief that “mere recusal

violations do not create ‘void’ judgments under Rule 60(b)(4),”130 but argues that the

United States Supreme Court in Caperton v. A.T. Massey Coal Co. modified and

superseded this rule, rendering the judgment void “if the failure to recuse is so severe that

127 653 A.2d 304, 1994 WL 665257 (Del. Nov. 22, 1994) (TABLE). 128 Id. at *1. 129 Id. at *2. 130 See Op. Br. at 16 (“To be sure, mere recusal violations do not create ‘void’ judgments under Rule 60(b)(4)”) (citing Copeland, 1994 WL 665257, at *2).

39 it deprives a litigant of due process.”131 But Caperton was a case on direct appeal from an

appellate court decision in which the allegedly conflicted jurist participated.132 The

Caperton Court made no mention of Rule 60(b) at all, and made no comment on when a

judgment is void.133

Moreover, Meso’s claim presents none of the factual scenarios that Caperton

identified as sufficiently extreme to presume a violation of due process. First, as Caperton

acknowledges, actual bias is disqualifying.134 Here, Meso does not argue that Vice

Chancellor Parsons was actually biased. In fact, it affirmatively agrees that he was not.

Other scenarios identified in Caperton that could constitute a violation of due process are

when “a judge ha[s] a financial interest in the outcome of a case,”135 or when a judge

“participat[es] in an earlier proceeding” in the case in the effective capacity as a

131 Id. (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009)). 132 Caperton, 556 U.S. at 875–76. 133 Accordingly, the Court of Chancery concluded that neither Caperton nor Williams v. Pennsylvania, 136 S.Ct. 1899 (2016) changed the “traditional” view that failures to recuse fall outside Rule 60(b)(4). Order at 12–13. 134 See Caperton, 556 U.S. at 881, 883 (although proof of actual bias is not required, “actual bias, if disclosed, no doubt would be grounds for appropriate relief.”). 135 Caperton, 556 U.S. at 877–78 (discussing Tumey v. Ohio, 273 U.S. 510 (1927) (holding that the defendant was deprived of due process where judge’s compensation was derived from fines assessed in cases over which he presided)).

40 prosecutor.136 Another is when a judge “becomes embroiled in a running, bitter

controversy” with a litigant.137 None of those apply here.

The Supreme Court in Caperton also made clear that a failure to comply with a

state’s judicial conduct rules does not necessarily translate into a due process violation.

Constitutional principles operate on matters of recusal as well, since due process

“guarantees ‘an absence of actual bias’ on the part of a judge.”138 As the Supreme Court

explained, the Due Process Clause “demarks only the outer boundaries of judicial

disqualifications.”139 States remain free to impose more rigorous recusal standards than

what the Due Process Clause requires.140 Consequently, as the Supreme Court recognized,

136 Id. at 880–81 (discussing In re Murchison, 349 U.S. 133, 133 (1955) (holding that the judge could not preside over the defendant’s trial for contempt when he had acted as a ‘one-man grand jury’ in bringing the contempt charges.)). 137 Id. at 881 (discussing Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (judge ‘vilified’ by defendant could not preside over defendant’s criminal contempt proceedings as “[n]o one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.”)). 138 Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016). See also Caperton, 556 U.S. at 876 (“It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process.”) (internal quotation and alteration omitted)); Los, 595 A.2d at 383 (“The requirement that judges be impartial is a fundamental principle of the administration of justice. To that end, rules of disqualification have evolved to ensure that no judge shall preside in a case in which he is not disinterested and impartial. As a matter of due process, a litigant is entitled to neutrality on the part of the presiding judge but the standards governing disqualification also require the appearance of impartiality.”). 139 Caperton, 556 U.S. at 889. 140 Id. See also Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981) (stating that “[a] litigant is denied the fundamental fairness to which he is constitutionally entitled if the judge of his case is unfairly biased against him. However, a litigant is not denied due process by either the ‘appearance’ of partiality or by circumstances which might lead one to speculate as to a judge’s impartiality. A litigant is denied due process if he is in fact treated unfairly.”). Thus, the Seventh Circuit found the standards set forth by the federal recusal statute to be “largely irrelevant” and the cases based on it “not particularly helpful” to resolving the Rule 60(b)(4) motion to vacate the

41 most disputes over disqualification will be resolved without resort to the Constitution.141

Following Caperton, in United Student Aid Funds, Inc. v. Espinosa, the United

States Supreme Court emphasized that “Rule 60(b)(4) applies only in the rare instance

where a judgment is premised either on a certain type of jurisdictional error or on a

violation of due process that deprives a party of notice or the opportunity to be heard.”142

Thus, the courts have declined to find an unconstitutional risk of bias except in a few

extreme circumstances.143 Meso acknowledged throughout these proceedings that it has

no case supporting its view that a failure to recuse would fall within Rule 60(b)(4).144

judgment based on an alleged violation of due process because the federal recusal statute “goes beyond ‘due process.’” Id. 141 Id. at 890. 142 559 U.S. 260, 271, 130 S. Ct. 1367, 1377, 176 L. Ed. 2d 158 (2010); see also id. at 270 (“[t]he list of . . . infirmities” that will render a judgment void is “exceedingly short; otherwise, Rule 60(b)(4)’s exception to finality would swallow the rule.”). 143 See, e.g., Johnson v. Morales, 946 F.3d 911, 918 n.3 (6th Cir. 2020) (the Supreme Court “has declined to find an unconstitutional risk of bias in all but a few narrow circumstances”); United States v. Williams, 949 F.3d 1056, 1061–62 (7th Cir. 2020) (discussing the “limited set of circumstances” where due process requires recusal); United States v. Richardson, 796 F. App’x 795, 799–800 (4th Cir. 2019) (unpublished decision) (rejecting due process claim that did not involve any of the “extraordinary situation[s]” in which the Supreme Court has held that “the Constitution requires recusal”) cert. denied 140 S. Ct. 2750 (2020). 144 See Oral Argument video at 17:58 – 18:15 https://livestream.com/accounts/5969852/events/ 9376922/videos/214637158/player: Meso’s Counsel: “To your first question, that is correct, we do not have a case where there is a due process violation for an appearance of impartiality, of bias under Caperton and Williams that rendered the judgment void.” See also Order at 12 (observing that “Meso has not cited a single case where the Court vacated a judgment under Rule 60(b)(4) for a judge’s alleged unconstitutional failure to recuse.”).

42 As a matter of pleading, Meso’s complaint falls well short of alleging any such

extreme circumstance. The Court of Chancery found that even though Meso had access to

the records in both the Meso v. Roche case as well as the DelCOG litigation, “the best the

complaint can muster is that Vice Chancellor Parsons ‘may’ have felt a ‘debt of gratitude’

to then-attorney Bouchard.”145 The court also concluded that “Meso’s vague and

conclusory allegations in paragraph 33 of the complaint that Vice Chancellor Parsons

‘may’ have had communications with then-attorney Bouchard concerning the federal

litigation that ‘touch[ed] [up]on’ Meso’s ‘case’ is not even close to being well-pled.”146

We agree with the trial court that Meso’s allegations, which are merely speculative and

conclusory, do not rise to the level of alleging unconstitutional bias that would render the

judgment void under Rule 60(b)(4).

B. Meso Fails to Plead Extraordinary Circumstances

Meso’s Rule 60(b)(6) argument fares no better. Where a litigant seeks Rule 60(b)(6)

relief based on a failure to recuse, we endorse and adopt the two-part test used by the Court

of Chancery. A litigant must show that she acted promptly and without delay to seek relief

upon learning of the alleged conflict, and that the alleged conflict was of an extraordinary

character as analyzed under the three Liljeberg factors. The Court of Chancery correctly

determined that Meso has done neither.

At the outset, the Court of Chancery examined the careful language in Meso’s

145 Id. at 7. 146 Id. at 22.

43 pleading as to its lack of knowledge of the dual representation. The relevant language in

Meso’s complaint is that “[t]he investigation confirmed that no one at Meso was aware of

Mr. Bouchard’s representation of Vice Chancellor Parsons.”147 The court found that Meso

had not pled that its agents, including its former counsel, were unaware of the

representation and, therefore, “Meso is not entitled to reasonable inferences flowing from

facts it has not pled.”148 We agree with the Court of Chancery’s decision not to infer facts

that were not pled.

But even setting aside that aspect of the delay analysis, the Court of Chancery found

Meso’s delay in seeking Rule 60(b)(6) relief unreasonable and incompatible with the

timeliness requirement. A party seeking relief under Rule 60(b)(6) is “obliged to act

without unreasonable delay.”149 Whether a delay is reasonable or not is a matter committed

to the sound discretion of the trial judge.150 To find an abuse of that discretion, “there must

be a showing that the trial court acted in an arbitrary and capricious manner.”151

147 App. to Op. Br. at A021 (Complaint). 148 Order at 18 (“With no allegation that its attorneys were ignorant of the unrelated and highly publicized federal litigation, and now-Chancellor Bouchard’s representation of the members of the Court of Chancery in that case, it is not reasonable to infer Meso has exercised diligence as is required under Rule 60(b)(6) and our Supreme Court’s 2009 decision in Shipley vs. New Castle County.”); see also Copeland, 1994 WL 665257, at *2 (“A party who fails to raise a disqualification issue may not seek to set aside the results of a trial when knowledge of the disqualification was known to the party during trial.”). 149 Schremp, 405 A.2d at 120. 150 Brown v. Comegys, 567 A.2d 34, 1989 WL 90728, at *1 (Del. July 31, 1989) (TABLE). 151 Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1268 (Del. 2013) (quoting Spencer v. Wal–Mart Stores E., LP, 930 A.2d 881, 887 (Del.2007)).

44 Meso makes no such showing. To the contrary, the record supports the court’s

decision not to credit Meso’s justification that its delay was founded on difficulties in

obtaining counsel. Of the year-long delay, Meso explains that it took half that time to

obtain lead counsel, and the other half to obtain local Delaware counsel. The trial court

was justifiably troubled by “Meso’s alleged wandering from firm to firm over the course

of a year -- particularly when it knew that the judgment it would seek to vacate was already

three years old.”152 Further, the trial court specifically noted that Meso’s eventually-

obtained local Delaware counsel was plaintiff’s counsel in the DelCOG Litigation.153 We

conclude that the Court of Chancery did not abuse its discretion in determining that, under

the particular circumstances of this case, Meso’s delay was unreasonable.

Where a Rule 60(b)(6) application is untimely, we need not reach the merits of the

underlying claim for relief,154 which in the case of an alleged failure to recuse is whether

the conflict was of an “extraordinary character,” considering the Liljeberg factors. But, for

the sake of completeness, we also find no error with that aspect of the Court of Chancery’s

analysis.

152 Order at 19. As we recently decided, a trial court is within its discretion to find a seven month wait unreasonable if it finds the litigant’s justification for delay inadequate. Chaverri, -- A.3d --- , 2021 WL 99505, at *9. 153 Order at 19 (“Although not ultimately dispositive, I take judicial notice of the fact that [Meso’s] search coincidently led it to the same Delaware firm that represented the coalition in the federal litigation.”). 154 Schremp, 405 A.2d at 120.

45 The three Liljeberg factors relevant in Rule 60(b)(6) motions for undisclosed

conflicts are (1) the risk of injustice to the parties in the particular case, (2) the risk that the

denial of relief will produce injustice in other cases, and (3) the risk of undermining the

public’s confidence in the judicial process.155

As to the first factor, Meso readily concedes that Vice Chancellor Parsons was

unbiased as to them.156 Absent Rule 60(b)(6) relief, Meso remains bound by an adverse

judgment entered against it but that judgment occurred following trial before a judge who

Meso admits harbored no actual bias. By contrast, the Court of Chancery noted that

granting relief inflicts on Roche the reopening of a case long-since completed, with the

attendant expense and difficulty of re-litigating that which was already litigated to

completion.157 The court found that Meso had failed to allege anything other than vague

and conclusory allegations relating to a risk of injustice. We agree with the Court of

Chancery’s assessment of the complaint and the conclusion that “[t]o support that serious

charge [of injustice] under Rule 8 and the Rule 12(b)(6) standard, Meso would need to

155 486 U.S. at 864. The United States Supreme Court’s analysis is fact-specific and allows room for some element of harmless error. See id. at 862 (“As in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance.”). Here, the trial court found that “Meso has not overcome the Liljeberg harmless error admonition.” Order at 21. 156 E.g. App. to Ans. Br. at B349 (Motion to Dismiss Oral Argument Transcript) (“We [Meso] are in no way impugning the motives, intentions, actions other than the failure to observe the rules by Vice Chancellor Parsons. We have tried to make that clear in our papers. If we haven’t, I’d like to make it clear this morning. We hold him in the highest possible regard.”). 157 Order at 21 (finding that, “[v]acatur would severely prejudice defendants who prevailed after a five-day trial in Meso’s unsuccessful appeal to our Supreme Court,” and that, “on the other hand, Meso has not well-pled that it will suffer an injustice if it is denied relief.”).

46 muster well-pled factual allegations, not mere speculation.”158 We agree that the first

Liljeberg factor thus weighs strongly against relief.

As to the second factor — the risk that denial of relief will produce injustice in other

cases — Meso concedes that other litigants are unlikely to suffer injustice absent relief.

Before the trial court, Meso stated its belief that, had Vice Chancellor Parsons disclosed

the conflict in every case for which then-Attorney Bouchard appeared before him, parties

in many cases would have waived the conflict and in the remaining cases presumed they

would have been satisfied by having other attorneys at his firm handle the case instead. 159

This concession weighs against a finding of extraordinary circumstances.

As for the third factor of undermining public confidence in the judicial process, for

judges’ “own” counsel in an unrelated matter to appear before them does have the potential

to create the appearance of bias before the public against which all authorities caution. We

agree with Meso that Vice Chancellor Parsons should have disclosed Mr. Bouchard’s

representation of him on the record. Our discussion above discusses generally other factors

that a court would consider in any recusal analysis if the parties, following disclosure on

the record, had chosen not to waive the conflict. We emphasize the importance of

maintaining the public’s confidence in the judicial system and of guarding against

situations where a judge’s impartiality might reasonably be questioned. But ultimately, in

158 Order at 22. 159 See id. at 349–50 (“Had notice been given, in many of these cases, I’m quite confident, parties would have waived their rights. It wouldn’t have been all 25 cases. Other attorneys at then- Attorney Bouchard’s firm could have handled them.”).

47 considering all three factors, we agree with the Vice Chancellor that “[o]n this complaint,

it is not reasonable to infer Vice Chancellor Parsons’ alleged judicial ethics violation --

even assuming it occurred -- caused any reasonably conceivable harm, much less serious

harm.”160

Accordingly, we agree with the trial court’s conclusion that these circumstances do

not give rise to relief under Rule 60(b)(4) or Rule 60(b)(6).

VI. Conclusion

For the forgoing reasons, we AFFIRM the judgment of the Court of Chancery.

160 Order at 23.