Stern v. Gambello

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2012
• Docket: 10-56929
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HEATHER STERN; BROOKE  RANDOLPH; JOHN GIRARD; MARTIN SCHNALL; NATHAN RIENSCHE; KELLY LEMONS, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. No. 10-56929 MARC GAMBELLO; GENE HOPKINS, Objectors-Appellants, D.C. No. 8:09-cv-01112-  CAS-AGR NEW CINGULAR WIRELESS SERVICES, Central District of INC., a Delaware corporation, FKA California, AT&T Wireless Services, Inc.; Santa Ana AT&T MOBILITY CORPORATION, a Delaware corporation, FKA Cingular Wireless Corporation; AT&T MOBILITY LLC, a Delaware limited liability company, FKA Cingular Wireless LLC, Defendants-Appellees. 

5059 5060 STERN v. GAMBELLO

HEATHER STERN, on behalf of  herself and all others similarly situated, Plaintiff-Appellee, NEW CINGULAR WIRELESS SERVICES, INC., a Delaware corporation, FKA AT&T Wireless Services, Inc.; No. 10-57062 AT&T MOBILITY CORPORATION, a D.C. No. Delaware corporation, FKA 8:09-cv-01112- Cingular Wireless Corporation; AT&T MOBILITY LLC, a Delaware  CAS-AGR Central District of limited liability company, FKA California, Cingular Wireless LLC, Santa Ana Defendants-Appellees, v. ORDER KARIN LYNCH, Objector-Appellant,

MARC GAMBELLO; GENE HOPKINS, Objectors.  Filed May 4, 2012

ORDER

BERZON, Circuit Judge:

After considerable pre-argument preparation, I realized this week that my husband and I appear to be members of the plaintiff class in this case, as we have had AT&T cellular ser- vice for some time. I therefore considered whether to recuse from this case. Having researched the question, I have deter- STERN v. GAMBELLO 5061 mined that the appropriate course is for me and my husband to forego any financial interest in the settlement before the court (that is, the seven dollars that members of the class could obtain by filing a claim) and in any future settlement or adjudication resulting in any payment to members of the class. I am now announcing that we will do so: Neither I nor my husband will accept any payments due us as members of the class.

I have considered whether I should nonetheless recuse from this case because of possible class membership. The analysis conducted by Judges Walker and Winter in In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d 136 (2d Cir. 2007), in a very similar situation, is perti- nent and, to me, persuasive. I have decided to adopt their analysis as my own, and so will not recuse. As they con- cluded, I “believe [my] decision not to recuse is authorized by [28 U.S.C.] § 455(f), strikes the appropriate balance between securing the interests of impartiality and its appearance and reducing the practical costs that unnecessary recusal entails, and does not diminish public respect for the judiciary.” Id. at 144.