Google Declines to Respond to Cellspin SCOTUS Petition Seeking Recusal Based on Judge’s Financial Interests in Tech Giant

On April 3, the deadline passed for response briefs to challenge a petition for writ of certiorari filed at the U.S. Supreme Court by Bluetooth media upload developer Cellspin Soft. Among the major tech companies declining to oppose Cellspin Soft’s petition for writ is Google, who owns respondent Fitbit and whose financial ties to the spouse of U.S. District Judge Yvonne Gonzalez Rogers, along with the judge’s own ownership of Google stock through heavily managed investment funds, are at the center of Cellspin Soft’s arguments that Judge Gonzalez Rogers should have been recused because her impartiality could reasonably be questioned based on those financial interests, some of which were only disclosed following summary judgment.

Federal Circuit Should Have Considered Recusal Merits Before Evidentiary Exclusions

Cellspin Soft filed its petition for writ in late January, about three months after the tech developer received an unfavorable ruling from the Federal Circuit in its efforts to seek Judge Gonzalez Rogers’ recusal under 28 U.S.C. § 455(a). Among the financial interests targeted by Cellspin Soft include several partnerships between Ajax Strategies, the venture capital firm Rogers’ husband serves as Operating Partner, and Google, one of several companies investing a total of $700 million into a portfolio of companies managed by Ajax. Separately, Cellspin Soft argues that Judge Gonzalez Rogers’ personal ownership stake in a hedge fund managed by a McKinsey investment subsidiary, a stake valued anywhere from $5 million to $25 million in disclosure documents, is a financial interest as defined by Section 455(d)(4)(i) that similarly creates the appearance of partiality requiring recusal.

While the Federal Circuit’s November 2024 ruling rejected Cellspin Soft’s recusal arguments without reaching their merits, Cellspin Soft’s petition for writ cites Supreme Court precedent from Liljeberg v. Health Services Acquisition Corporation (1988) indicating that appellate courts “must first determine whether [Section] 455(a) can be violated based on an appearance of partiality.” The evidence of Judge Gonzalez Rogers’ and her husband’s financial interests in respondent Google makes the Federal Circuit’s failure to reach the merits at all even more egregious, Cellspin Soft argues.

Both Judge Gonzalez Rogers’ August 2023 order denying recusal and the Federal Circuit’s ruling last November took Cellspin Soft to task for moving for recusal in an untimely manner, namely after Judge Gonzalez Rogers had already entered summary judgment in the case. In response, Cellspin Soft counters that some details of Judge Gonzalez Rogers financial interests did not come to light until well after her summary judgment ruling, including information about her holdings in the investment fund managed by McKinsey, which annually files for an exemption to U.S. Securities & Exchange Commission (SEC) regulatory rules for mutual funds on that hedge fund. This information only came to light in Judge Gonzalez Rogers’ August 2023 ruling, which “the Court note[d] for transparency purposes.”

Cellspin Soft cites several Supreme Court and regional circuit court rulings other than Liljeberg  confirming the importance of considering recusal factors before reaching the merits of a case in order to satisfy constitutional due process. Such early determinations on recusal are required for proper appellate review standards and to ensure that the issue is properly before the appellate court.

CAFC’s Analysis of Constitutional Error Fails to Meet Reasonable Doubt Standard

Had the Federal Circuit analyzed the merits of the recusal motion first instead of first affirming Judge Gonzalez Rogers’ summary judgment ruling, as Court precedent supports, Cellspin Soft contends that the appellate court should have recognized that Judge Gonzalez Rogers’ ruling to exclude evidence under local rules was not properly before the court for abuse of discretion review. Without the Supreme Court’s correction, Cellspin Soft argues that the Federal Circuit’s ruling will establish a problematic legal precedent undermining judicial impartiality, compromising the fundamental fairness of the judicial process, and eroding public trust in the legal system.

Cellspin Soft’s cert petition also attacks the Federal Circuit’s finding that any error in the district court’s analysis of recusal was harmless, arguing that errors to constitutional due process are so structural in nature that they cannot be harmless. For constitutional errors to be harmless, they must be harmless beyond a reasonable doubt according to the Supreme Court’s 1967 ruling in Chapman v. California. In the ruling below, the Federal Circuit failed to even address the merits of Cellspin Soft’s recusal motion, despite the fact that at least one Federal Circuit judge expressed doubt during oral arguments that financial interests in Google through Ajax could have led Judge Gonzalez Rogers to exclude evidence for Google’s benefit as she did during trial.

The Federal Circuit was only able to avoid addressing Cellspin Soft’s Section 455(a) arguments by adopting “a strained explanation of the preclusive effects of the district court’s summary judgment decision,” according to the petition. On summary judgment, Judge Gonzalez Rogers found that Cellspin Soft was unable to rely on evidence that claimed “user information” was contained within a Fitbit code variable called “OAuth” on the ground that this code variable was not identified in Cellspin Soft’s claim chart as required by the district court’s local procedural rules. While the Federal Circuit found that the exclusion of evidence against respondent Garmin had preclusive effect against the Fitbit code evidence, Cellspin Soft points out that Judge Gonzalez Rogers applied preclusive effect to the Garmin evidence after finding Cellspin Soft was estopped from entering the evidence against Fitbit.

The cert petition further contends that the Federal Circuit ignored its own precedent from 2012’s Shell Oil Co. v. United States in severing the recusal motion from the preclusion issue, noting that Shell Oil held that it was even more difficult to sever recusal issues when there was substantial overlap with respect to the issues involved among the remaining parties.

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