Risk Update

Risk Judgement — Judge’s Friendship Not Called a Conflict, Disqualification Not Debated, Judicial Election Opponent “Feels Fine”

Posted Dan Bressler

“Developer seeks to end suit as city’s law firm leaves case” —

  • “Developer Dominic Marchionda and two of his companies named in Youngstown’s $834,608 civil lawsuit against them asked the judge to dismiss the case while ex-city Finance Director David Bozanich, the other defendant, called the claims ‘frivolous and time-barred.'”
  • “Meanwhile, the city’s legal counsel didn’t oppose a request from the attorney for Marchionda and his two companies to withdraw from the case because of an alleged conflict of interest and asked for the city to have more time to file motions while it looks for new representation.”
  • “The city’s lawsuit contends Bozanich, Marchionda, U.S. Campus Suites LLC and Erie Terminal Place LLC participated in a ‘calculated scheme’ to defraud Youngstown of $834,608.”
  • “Attorneys for Marchionda and his two companies as well as for Bozanich responded that the lawsuit should be dismissed because it’s past the statute of limitations and barred by a previous plea bargain agreement, among other issues.”
  • “Rossi filed a Jan. 2 motion asking McKay to disqualify attorneys with the Roetzel & Andress law firm, which were representing the city in this lawsuit. Roetzel & Andress acquired the law firm of Brouse McDonald with two partners from the latter firm — Timothy Reardon and Ed Smith — employed in 2022 as Marchionda’s personal attorneys and corporate attorneys for the two companies.”
  • “The attorneys, Rossi wrote in that motion, obtained confidential information regarding the finances of Marchionda and the companies.”
  • “In a Tuesday filing, Benjamin Chojnacki of Roetzel & Andress didn’t oppose the motion and the law firm is helping the city to hire other attorneys in its place.”
  • “‘Given the complicated nature of this case, substitute counsel will need time to be engaged, familiarize him / herself with the case, and file the requisite pleadings, motions and brief in response to defendants’ pending counterclaim and motion for summary judgment. These activities take time,’ Chojnacki wrote.”
  • “Chojnacki asked McKay to give the city a second extension until March 31 to respond to the counterclaim and until April 28 to respond to the summary judgment request.”

“No Conflict In Judge’s Friendship, John Deere, Farmers Say” —

  • “John Deere and the farmers suing it in a right-to-repair suit said they have no concerns about the potential conflict of interest an Illinois federal judge flagged, saying there was ‘no reason’ for the jurist to recuse himself, according to a joint letter filed by the parties.”
  • “Both sides thanked U.S. District Judge Iain D. Johnston for telling them that he is friends with a person mentioned in ‘allegedly privileged documents’ submitted to the court, but, ultimately, neither the plaintiffs nor John Deere thought this was serious enough to necessitate bringing in a new judge, according to the joint notice.”
  • “‘The parties have conferred regarding the potential conflict and agree that Your Honor’s relationship with [the individual named in court documents] does not present a conflict in this case,’ the letter said. ‘To that end, the parties agree that there is no reason for the court to make any changes to the court’s role in this litigation.'”
  • “Judge Johnston, who is overseeing a proposed right-to-repair class action against John Deere, informed the parties in a letter issued Jan. 13 that he recognized the name of an individual, Thomas P. Walters, identified in the company’s filings. “
  • “‘To quote Buddy the Elf, I know him,’ Judge Johnston said.”
  • “While he said he had ‘no idea what, if any, role Tommy plays in this litigation,’ Judge Johnston said that he and Walters were ‘extremely close’ friends and teammates during their college days. While the judge, based in the Northern District of Illinois, knocked Walters for being a fan of the St. Louis Cardinals, he said that he still likes ‘Tommy a lot,’ and that they remain close, the letter said.”
  • “Judge Johnston has had the case since 2022, when the Joint Panel on Multidistrict Litigation transferred six consolidated complaints to his court.”
  • “Plaintiff farmers say John Deere, the Illinois-based agricultural equipment manufacturer, has monopolized the repair market for its equipment by forcing consumers to use Deere’s authorized dealership mechanics for many repairs. According to the farmers, the bulk of the repairs could easily be completed with tools and software to which the company has withheld access.”
  • “In 2023, Judge Johnston denied John Deere’s motion for judgment on the pleadings, holding that the plaintiffs had enough evidence of the company’s market power.”

David Kluft, Assistant Bar Counsel at Massachusetts Office of Bar Counsel, notes this recent Ohio opinion: “Tidbit: Must a judge recuse herself from a case in which her opponent for elected judicial office is representing a party?” —

  • “Not in Ohio. The OH Board of Professional Conduct opines that, when a judge’s political opponent appears before the judge, recusal is not necessary unless the judge’s impartiality could reasonably be questioned. When can impartiality reasonably be questioned?”
  • “The opinion doesn’t go into much more detail except to suggest the judge ‘search her feelings’ for the right answer. [Editor’s Note: this opinion seems pretty on the edge to me – Ohio tends to presume a lack of partiality where other states may presume partiality or at least the appearance of bias in the same circumstances].”
  • Read the opinion: here.