                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1587


KOLON INDUSTRIES INCORPORATED,

                Plaintiff – Appellant,

           v.

E.I. DUPONT DE NEMOURS & COMPANY,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:11-cv-00622-REP)


Argued:   May 17, 2013                    Decided:   April 3, 2014


Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Senior Judge Davis joined. Judge Shedd wrote a dissenting
opinion.


ARGUED: Stephen Blake Kinnaird, PAUL HASTINGS LLP, Washington,
D.C., for Appellant.   Kent A. Gardiner, CROWELL & MORING, LLP,
Washington, D.C., for Appellee.   ON BRIEF: Daniel B. Goldman,
PAUL HASTINGS LLP, New York, New York; Jeff G. Randall, Igor V.
Timofeyev, Samer M. Musallam, PAUL HASTINGS LLP, Washington,
D.C., for Appellant. David D. Cross, Jeffrey L. Poston, CROWELL
& MORING, LLP, Washington, D.C.; Adam H. Charnes, KILPATRICK
TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for
Appellee.
DIAZ, Circuit Judge:

       In this Sherman Act case, we review the district court’s

grant of summary judgment in favor of Defendant-Appellee E.I. du

Pont       de   Nemours    and   Company   (“DuPont”).          We   also       consider

challenges by Plaintiff-Appellant Kolon Industries Incorporated

(“Kolon”) to certain of the district court’s discovery rulings

and its denial of Kolon’s recusal motion.                Finding no reversible

error, we affirm.



                                           I.

                                           A.

       The merits of this case concern Kolon’s claim that DuPont

attempted to wield, or did wield, monopoly power over the U.S.

para-aramid        fiber    market   in    violation   of   Section         2    of   the

Sherman Act, 15 U.S.C. § 2. 1              Para-aramid is a strong, complex

synthetic fiber used in body armor, tires, fiber optic cables,

and a variety of other industrial products.                     Three para-aramid

producers--DuPont,          Teijin   Aramid     (formerly   a    division        of   the




       1
       We recite the relevant facts in the light most favorable
to Kolon.    In so doing, we have done our best to honor the
parties’ oft-overzealous desires to keep certain purportedly
sensitive information under seal.    However, to the extent the
district court has already disclosed (without objection) such
information, we treat it as public knowledge.



                                           2
Dutch    company    Akzo    N.V.),      and    Kolon--sell   their       para-aramid

fibers to U.S. consumers.

     DuPont invented para-aramid fiber in 1965, and for a period

controlled the entire U.S. para-aramid market with its Kevlar©

fiber.     Teijin introduced its competing Twaron© fiber to the

U.S. market in 1987 and has chipped away at DuPont’s share of

that market every year since 1990.                  According to one of Kolon’s

expert witnesses, during 2006-2009 (the relevant time period),

DuPont’s   share    of     the   U.S.    para-aramid      market   (the     relevant

geographic and product markets) fell from a high of 59% in 2006

to 55% in 2009, with most of this loss going to Teijin.

     The U.S. para-aramid market is highly concentrated between

Dupont and Teijin, which together account for 99% of U.S. sales.

This extreme market concentration owes at least in part to the

industry’s high entry barriers.                 As Kolon showed, para-aramid

production     is   time-intensive            and    expensive,    and    potential

customers test and “qualify” each para-aramid product to ensure

it meets their particular needs, a process that typically takes

six months to three years.               In addition to this evidence of

market concentration and high barriers to entry, Kolon adduced

evidence     that   DuPont,      despite       Teijin’s   encroachment,       earned

profit margins of as high as 75% between 1997 and 2005 and had

the ability to price discriminate among its customers.



                                           3
       Kolon made its foray into the U.S. para-aramid market in

2005 with its Heracron© fiber.                    Kolon’s evidence showed that

DuPont    considered         Kolon’s       market    entry     to     be     a     threat.

Anticipating          Kolon’s     potential        encroachment,          DuPont     began

identifying segments of the market that it viewed as hospitable

to    entry,    including       auto   short      fibers   (pulp     for    brakes      and

gaskets),      tires,     manufactured       rubber    goods,       and    fiber     optic

cables.       According to Kolon, DuPont then undertook a strategy of

executing        multi-year        supply       agreements      with        high-volume

customers in each identified segment, requiring these customers

to purchase most or all of their para-aramid requirements from

DuPont during the relevant time period.

       These     supply     contracts      contained       restrictions,         such    as

volume purchase commitments and “meet and release” clauses, that

required any competing para-aramid seller to propose a bid at a

designated lower amount than DuPont’s existing price, prohibited

the customer from informing the competing seller of DuPont’s

price, and gave DuPont a right to match any competing offer.                             As

a    result    of   these    allegedly      anticompetitive         practices,       Kolon

insists, it never achieved more than a de minimis market share

during the relevant time period.                  By contrast, Kolon was able to

penetrate other comparable para-aramid markets, such as Europe.

       DuPont,      for     its    part,     attributes       Kolon’s       failure     to

penetrate       the     U.S.      market     to     Kolon’s     own       shortcomings.

                                            4
According to DuPont, Kolon undertook only a “feeble effort” to

establish     a    U.S.     foothold,         using      only       seven    sales       agents,

inadequately investing in product offerings and supply capacity,

and contacting only a small percentage of potential customers as

of   October       2009.          Meanwhile,        DuPont          defends        its   supply

agreements as a competitive response to Teijin’s use of such

practices, and as driven by consumer demands.

     DuPont also attempts to diminish the reach of its supply

agreements,        noting     that       it    entered            into    only     twenty-five

agreements        with      twenty-one         U.S.           customers,         collectively

accounting for only a small percentage of its U.S. revenue.                                   Of

those    agreements,        DuPont   says,         only       a    portion    obligated      the

customer    to     purchase       some    amount         of       Kevlar,    and    these    had

typical durations of two years or shorter.                               Meanwhile, none of

DuPont’s supply agreements precluded competitors from qualifying

their products with the customer while the DuPont agreement was

in effect.        And of the group of “key” customers Kolon identified

as necessary to establish a foothold for effective competition,

DuPont   notes      that    the    majority        had    no       supply    agreement      with

DuPont during the relevant period.                        Appellee’s Br. at 38.               In

short, DuPont submits that myriad self-inflicted failures--not

DuPont’s     supply        agreements--frustrated                  Kolon’s       U.S.    market

penetration.



                                               5
                                             B.

        DuPont brought suit against Kolon alleging the theft and

misappropriation of its Kevlar trade secrets (the “trade secrets

case”).       Kolon’s answer included the instant counterclaim (the

“antitrust         case”),       alleging         that     DuPont        had    illegally

monopolized        and    attempted     to   monopolize      the     U.S.      para-aramid

market    through        its   supply    agreements        with     high-volume     para-

aramid customers.              DuPont moved, under Federal Rule of Civil

Procedure     12(b)(6),         to    dismiss      Kolon’s    counterclaim.           The

district court granted that motion, with leave to amend.                            Kolon

filed    an   amended      counterclaim,          followed   by     a    second   amended

counterclaim, which was also dismissed for failure to state a

claim, again with leave to amend.                        Kolon declined to further

amend the counterclaim, opting instead to appeal the dismissal.

We reversed, holding that Kolon had adequately pleaded both its

actual and attempted monopoly claims, and remanded the matter to

the district court for further proceedings.                             E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc. (DuPont I), 637 F.3d 435

(4th Cir. 2011).

        On remand, the district court tried the trade secrets claim

separately, culminating in a $919.9 million jury verdict for

DuPont on September 14, 2011.                 The court then formally severed

the two claims.           The court also issued several rulings adverse

to   Kolon    in    the    antitrust     case.       First,       the    district   court

                                             6
denied    Kolon’s    motions       to     compel       DuPont’s     production     of

transaction-level        sales    and    cost   data,     concluding     that    this

discovery would significantly burden DuPont and would not be any

more useful than the aggregate sales and cost data DuPont had

already   produced.         The    district      court       also   denied   Kolon’s

motions--filed      on    grounds       described      below--for     recusal     and

disqualification in both the antitrust and trade secrets cases.

The district court further denied Kolon’s request to depose a

DuPont corporate representative concerning its strategic use of

supply agreements.        Finally, the district court granted summary

judgment to DuPont on both Sherman Act claims, dismissing them

with prejudice.     Kolon timely noted this appeal.



                                         II.

     Before turning to the merits of the antitrust claims, we

first consider Kolon’s argument that the district court judge

was required to recuse himself in both the instant antitrust

case and the trade secrets case, which is also now before us on

appeal.    See E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc., No. 12-1260 (argued May 17, 2013).

                                          A.

     Kolon’s   recusal      motion       is    based    on    the   district    court

judge’s involvement, while in private practice, in litigation

that, according to Kolon, presents a matter in controversy in

                                          7
the    instant      dispute.          In    the       1980s,    DuPont       and    Akzo    N.V.,

Teijin’s       predecessor,           became          embroiled       in      several      patent

lawsuits relating to the manufacture and sale of para-aramid

fibers.       In one such dispute, Akzo sued DuPont in the United

States District Court for the Eastern District of Virginia for

infringement of an Akzo para-aramid patent.

       In the Akzo case, DuPont was defended by the law firms

Fitzpatrick, Cella, Harper & Scinto (“Fitzpatrick Cella”) and

McGuire Woods & Battle (now “McGuireWoods”).                               In the 1980s and

at the time of the Akzo case, the district court judge was a

partner at McGuireWoods.               As a result, he was a limited partner

in an affiliated entity, and continued to receive small payments

from McGuireWoods of rent for furnishings.                            Because McGuireWoods

also served as counsel to DuPont in the present litigation, in

May    2009    the    clerk     of     court      issued       a     notice    informing       the

parties of the judge’s related financial interest.                                      The judge

noted then that he did not believe grounds for disqualification

existed, but he instructed the parties to file a motion within

20    days    if    they   believed         otherwise.             Neither     party     filed   a

motion       or     otherwise         objected          to     the     judge’s          continued

participation in the case.

       Kolon       believed     the    Akzo    matter         was    central       to   both   its

defense of the trade secrets case and its maintenance of the

antitrust      case.       In    the       antitrust         case,    Kolon    began      seeking

                                                  8
discovery of the Akzo case files in August 2009.                          It contended

that   the   Akzo     litigation--which          also    included     a   counterclaim

filed by DuPont, and which was ultimately resolved pursuant to a

settlement that restricted Akzo’s exports to the United States--

was relevant evidence of DuPont’s anticompetitive practices and

its intent to monopolize the U.S. para-aramid market.

        In the trade secrets case, beginning in April 2010, Kolon

conducted extensive discovery into the Akzo litigation on the

theory that DuPont’s asserted trade secrets had been revealed in

the    course   of    that    litigation        and    therefore      were   no    longer

secret.         In     August     2010,         the     district      court       ordered

McGuireWoods, DuPont, and Fitzpatrick Cella to review the Akzo

case   files    and    to    produce    responsive        documents.         Later    that

month, DuPont produced approximately thirty boxes of documents,

along with a privilege log, from Fitzpatrick Cella’s files.

       One of the entries on the privilege log showed that in May

1985, Mr. Fitzpatrick of Fitzpatrick Cella had sent the district

court judge, then a partner at McGuireWoods, a letter confirming

a   telephone    conversation      in     which        Fitzpatrick     had    asked    the

judge to send him a facsimile of the complaint filed by Akzo.

The privilege log also indicated that, per Mr. Fitzpatrick’s

request, the judge had faxed him a copy of the complaint.

       Nearly   a     year   later,    on       July    20,   2011,   Kolon    filed     a

memorandum opposing one of DuPont’s proposed jury instructions

                                            9
in the trade secrets case.                     In that memorandum, Kolon stated

that it was “compelled to point out that there is some question

whether Your Honor should be adjudicating these matters [due to

DuPont’s    production          of   documents]          indicating        a     role    by    Your

Honor in the earliest stage of the Akzo litigation.”                                          Kolon

Indus., Inc. v. E.I. du Pont de Nemours & Co., 846 F. Supp. 2d

515, 519 (E.D. Va. 2012) (quoting 3:09-cv-58, Docket No. 1247)

(emphasis omitted).             In a subsequent telephone conference with

the    court,    Kolon’s       counsel       explained        that    the       source    of    its

concern was the May 1985 letter from Mr. Fitzpatrick to the

district court judge.

       The district court judge then ordered DuPont to produce any

documents       concerning       his    involvement           in    the    Akzo     litigation,

which    ultimately          comprised       only      the    two    documents          described

above: the May 1985 letter from Mr. Fitzpatrick to the judge

requesting       a     copy    of    the      Akzo      Complaint,         and    the     judge’s

responsive facsimile cover sheet, with the Complaint attached.

Following       further       inquiry        into      the    matter,       Kolon’s      counsel

represented          that     they     had    reviewed         all    the        non-privileged

documents       from    the    Fitzpatrick            Cella   files       and    that    none   of

those    documents          contained      the    judge’s      name;       DuPont’s       counsel

made    similar        representations              with      respect       to     the    files’

privileged documents.



                                                 10
      After reviewing the two relevant documents, the district

court     judge   determined      that    he     had    no   recollection   of     the

communication with Fitzpatrick or of any involvement in the Akzo

litigation.       Kolon said nothing more then about the issue.

      During these inquiries, the trade secrets trial began as

scheduled, and the jury returned a $920 million dollar verdict

for DuPont after a seven-week trial.                    Meanwhile, discovery in

the     antitrust    case   was    underway        following      our   March     2011

reversal of the district court’s initial dismissal.                       As in the

trade secrets case, the parties came to a head over Kolon’s

proposed      discovery     of    the    Akzo     litigation      files,    and     in

September      and    October      of     2011     filed      reciprocal    motions

respectively seeking to compel and protect that information.

      Then,    on    November    30,     2011,    two    months   after    the    jury

verdict in the trade secrets case, and two days before motions

for summary judgment were due in the antitrust case, Kolon filed

its recusal motion, which the district court denied. 2


      2
        In its motion and supporting memorandum, Kolon also
suggested that the district court “revisit its refusal to
recuse” from the trade secrets case, apparently referring to the
discussion of recusal in July. Docket No. 247, at 2; Docket No.
248, at 31.   Kolon filed no separate motion for recusal in the
trade secrets case at that time, but did briefly reference
recusal in several subsequent filings.     On December 9, 2011,
Kolon filed a reply in support of its motion for a judgment as a
matter of law; in a footnote, it reminded the court of its
position that the judge should not have ruled regarding the
adverse jury instructions.    See Docket No. 1738, at 13.     On
(Continued)
                                          11
                                   B.

     28 U.S.C. § 455(b)(2), the provision on which Kolon relies,

provides that any judge of the United States shall disqualify

himself

     [w]here in private practice he served as a lawyer in
     the matter in controversy, or a lawyer with whom he
     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.

28   U.S.C.   § 455(a),   which   also   has   some   relevance   to   our

inquiry, provides that “[any judge] of the United States shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” 3




December 23, Kolon asked the court to consider recusal in its
memorandum supporting its motion to stay the injunction
proceedings.   See Docket No. 1813, at 19.      And in its reply
regarding that motion, on January 11, Kolon insisted that a
formal motion for recusal was unnecessary. See Docket No. 1843,
at 19 (responding to Docket No. 1830, at 26-27).         During a
January 2012 hearing on Kolon’s motion for a new trial and
judgment as a matter of law in the trade secrets case, counsel
for Kolon again requested that the district court judge recuse
himself. The judge refused to do so, explaining that he did not
have a recusal motion before him in that case.         Three days
later, on January 27, 2012, Kolon filed its motion for recusal
and disqualification in the trade secrets case.      The district
court denied the recusal motions in both cases on February 21.
     3
       A separate recusal statute, 28 U.S.C. § 144, provides
parties with one opportunity per case to file an affidavit that
the presiding judge has a personal bias or prejudice regarding a
party.    If the affidavit is sufficient, accompanied by a
certificate of good faith, and timely filed, another judge will
(Continued)
                                   12
     The district court reasoned that although § 455 is itself

silent on whether a party seeking recusal must timely file a

motion    with   the   court,   and   despite   the   mandatory    text     of

§ 455(b) (“[Any judge] . . . shall disqualify himself . . . .”),

the majority of circuits, including this one, have found that

§ 455 includes a timeliness requirement.           Kolon Indus., 846 F.

Supp. 2d at 522 (citing, inter alia, United States v. Owens, 902

F.2d 1154, 1155 (4th Cir. 1990)).            Accordingly, because Kolon

had delayed in filing its recusal motion for almost a year after

it learned of the alleged conflict, the district court denied

Kolon’s motion as untimely.

     Ruling in the alternative on the merits, the district court

concluded that even ignoring the untimeliness of Kolon’s motion,

recusal    was   unnecessary    under      § 455(b)(2)   since    the     Akzo

litigation was not “sufficiently related” to the instant action

to “constitute parts of the same matter in controversy.” 4              Id. at

528 (quoting United States v. DeTemple, 162 F.3d 279, 286 (4th

Cir. 1998)).



be assigned to the proceeding.     Kolon did not seek recusal on
this ground in the district court.
     4
       Additionally, the district court held that recusal was
unnecessary under § 455(a).   Since Kolon does not appeal that
ruling, we do not address it.




                                      13
                                             C.

        We     review      a   judge’s      recusal     decision     for        abuse    of

discretion.           United States v. Mitchell, 886 F.2d 667, 671 (4th

Cir. 1989).

        We first consider Kolon’s challenge to the district court’s

holding that          § 455(b)(2)     includes     a    timely-filing      requirement

that Kolon failed to satisfy.                Kolon maintains that the district

court        erred    by   relying    on     Owens,     in   which    we    said        that

“[t]imeliness is an essential element of a recusal motion,” and

that notwithstanding the absence of an explicit timely-filing

requirement           in   § 455,    such     a    requirement       is    “judicially

implied.”       902 F.2d at 1155.

        This language, Kolon submits, does not control here because

it speaks only “broadly about section 455 and did not specify

whether this requirement should apply to both subsections (a)

and (b) or solely to [sub]section 455(a).”                     Appellant’s Br. at

58.     In Kolon’s view, Owens “more likely” involved a situation

under § 455(a) in which the judge’s “impartiality might [have]

reasonably           be[en]    questioned,”       not   a    § 455(b)(1)         scenario

implicating           “personal     bias    or    prejudice.” 5           Id.    at     59.


        5
       28 U.S.C. § 455(b)(1) requires a judge to recuse himself
“[w]here he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
[a] proceeding.”



                                             14
Accordingly, Kolon believes Owens merely resolved that a timely

motion is required when recusal is implicated under § 455(a),

leaving open that question with respect to § 455(b).

      In     Kolon’s    view,    the   § 455(a)        and     (b)          provisions      are

different      enough    to     explain     the      presence          of    a    timeliness

requirement in the former despite the absence of such in the

latter.       Unlike § 455(a), § 455(b) may not be waived by the

parties.      See 28 U.S.C. § 455(e) (“No [judge] shall accept from

the   parties    to     the    proceeding      a     waiver       of    any       ground    for

disqualification enumerated in subsection (b).                          Where the ground

for disqualification arises only under subsection (a), waiver

may     be     accepted . . . .”).                  From     Kolon’s             perspective,

subsections 455(b) and (e) create a “jurisdictional limitation

on the authority of a judge to participate in a given case,”

leaving the judge with a sua sponte obligation to recuse himself

or herself when he or she knows the predicate facts implicating

§ 455(b).       Appellant’s      Br.   at      60    (quoting          United      States    v.

Gipson, 835 F.2d 1323, 1325 (10th Cir. 1988) (internal quotation

marks omitted)).            Thus, Kolon continues, “requiring a timely

party   motion    as    a     condition     precedent        to     enforcing        section

455(b) runs contrary to statutory design, effectively relieving

the judge of his personal statutory duty.”                    Id.




                                          15
                                            D.

       While    Kolon’s     arguments       do    not    entirely          lack    merit,    we

conclude that § 455(b), like § 455(a), includes a timely-filing

requirement under Owens and that Kolon failed to comply with it.

       As the parties and the district court have acknowledged,

the    party     seeking    recusal     in       Owens        did    not    specify       which

provision of § 455 required it, and we did not cabin our holding

to    any    specific    provision     of    that       section.           In     Owens,    the

defendant,      after    publicly     accusing          the    then-Governor         of    West

Virginia of bribery, filed a motion for recusal based on the

presiding judge’s “long association” with the Governor, who was

responsible for the judge’s appointment to various offices.                                 902

F.2d at 1155.

       In our view, these facts could plausibly fit under either

of two subsections, 455(a) or 455(b)(1).                        On the one hand, the

scenario in Owens could certainly speak to § 455(a)’s concern

with situations where a judge’s impartiality might reasonably be

questioned.        But     on   the   other,       as    the        district      court    here

determined,       the    judge’s      perceived          allegiance         to     the     West

Virginia Governor could reasonably have concerned “a personal

bias    or     prejudice    concerning”          the     defendant--the           Governor’s

accuser--thus implicating § 455(b)(1).                    Given this ambiguity, we

are    left     only     with   Owens’s          unqualified          announcement         that

“[t]imeliness is an essential element of a recusal motion” which

                                            16
is “judicially implied in § 455.”                    902 F.2d at 1155.             Given that

blanket      prescription,        we       decline    to    read    Owens’s        timeliness

requirement so narrowly as to exclude § 455(b).

      Our     dissenting     colleague            correctly     observes       that     Owens

cites a case discussing § 455(a) alone, and that our later cases

in that line have yet to address § 455(b). 6                          The limitations of

past cases, however, are not controlling, particularly because

the policy rationale underlying Owens’s timeliness requirement

applies just as forcefully to § 455(b) as to any other recusal

scenario.

      Here--just      as   with        a    § 455(a)       recusal,    for    example--the

requirement of timeliness “prohibits knowing concealment of an

ethical issue for strategic purposes,” United States v. York,

888   F.2d    1050,   1055    (5th         Cir.    1989),     and   “is    vital . . . to

prevent waste and delay,” Owens, 902 F.2d at 1156.                                 Meanwhile,

the   non-waivability        of    a       § 455(b)    recusal      does     not    excuse   a


      6
       The dissent says that our decision in United States v.
Lindsey, 556 F.3d 238 (4th Cir. 2009), cuts against imposing a
timeliness requirement under § 455(b). With all respect, we do
not share that view.   In Lindsey, the presiding district court
judge had participated in defendant Lonnie Robinson’s case
twelve years earlier as an Assistant United States Attorney.
Though the judge did not recall his participation in the earlier
case, nor was he made aware of it, we vacated his order. But in
that case, Robinson did not learn of the judge’s prior
involvement until after filing his appeal.   See id. at 246–47.
Thus, no timeliness issue ever arose: the case is wholly
inapposite here.



                                              17
party’s    delay         in    filing.          As       the   Fifth      Circuit      explained,

“waiver and timeliness are distinct issues.”                               York, 888 F.2d at

1055.      Whereas        “section          455(e)       prohibits      the     judge     and   the

parties    from       agreeing          among       themselves       to       abrogate    section

455(b),” a “timeliness requirement forces the parties to raise

the     disqualification              issue      at       a    reasonable        time     in    the

litigation.”         Id.       And even if the mandatory text of § 455 does

imply a quasi-jurisdictional limitation on a judge’s authority

to hear a case, in our view, that limitation must be balanced

against the interests of fairness and efficiency served by the

timeliness requirement we announced in Owens.

      The dissent criticizes our reading of Owens as finding no

support in the statutory text of § 455(b).                             We note that textual

support    for       a    § 455(a)          timeliness         requirement        is    similarly

lacking, and that the language under that provision is similarly

mandatory, yet under our precedent that requirement is beyond

dispute.        In       any    event,        while      we    certainly       agree     that   our

analysis    must         begin    with        the     statute’s        plain     language,      the

absence of a timeliness provision does not foreclose further

inquiry    here.          Even        the   plain        meaning   of     a    statute     is   not

conclusive “in the rare cases [in which] the literal application

of a statute will produce a result demonstrably at odds with the

intentions of its drafters.”                    United States v. Ron Pair Enters.,

Inc.,     489    U.S.          235,     242     (1989)         (alteration       in      original)

                                                    18
(internal       quotation     marks     omitted).              Section    455     “serves   to

‘promote    public     confidence        in    the       integrity       of     the   judicial

process.’ ”        Dissent at 50 (quoting Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)).                               In our view,

failing     to    insist    on    a     timeliness         requirement          for   seeking

recusal     under     § 455(b)        directly       undermines          that    legislative

goal. 7

      In    keeping     with      that    end,           our    sister        circuits    have

overwhelmingly found a timely filing requirement to be implied

despite the text’s silence.              See, e.g., Am. Prairie Constr. Co.

v. Hoich, 560 F.3d 780, 789-91 (8th Cir. 2009) (§ 455(a) and

(b)); Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 447-48 (2d

Cir. 2005) (§ 455(b)); Stone Hedge Props. v. Phoenix Capital

Corp.,     71    F.   App’x      138,    141       (3d    Cir.     2003)        (unpublished)

(§ 455(b)); United States v. Rogers, 119 F.3d 1377, 1380-83 (9th


      7
       Section 455’s legislative history is murky at best.   See
Delesdernier v. Porterie, 666 F.2d 116, 119–121 (5th Cir. 1982).
When Congress revised the statute in 1974, the Justice
Department did suggest adding an explicit timeliness requirement
like that found in § 144. Id. at 120. Congress declined to do
so, and our friend in dissent believes that decision “end[s] our
inquiry.”     Dissent at 48.     But the Justice Department’s
suggestion is hardly the only piece of relevant legislative
history.    Rather, “prior to the 1974 amendment[,] courts had
generally held that a timely objection under the old § 455 was
necessary.”      Delesdernier, 666   F.2d  at  121.     “Thus[,]
Congress’[s] failure to act could as easily have been the result
of a belief that the judicial gloss on old section 455 would
survive.” Id. (internal quotation marks omitted).



                                              19
Cir. 1997) (§ 455(a) and (b)); Summers v. Singletary, 119 F.3d

917, 920-21 (11th Cir. 1997) (§ 455(b)); York, 888 F.2d at 1053-

55 (5th Cir. 1989) (§ 455(a) and (b)).

     Meanwhile,         only   two    circuits       have    refused   to    read   in    a

timeliness requirement.               The Seventh Circuit did so first, in

SCA Services v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), but

has since called that decision into question on more than one

occasion, see Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1060

(7th Cir. 1992) (“SCA Services is a weak precedent[.]”) (Posner,

J., in chambers); United States v. Murphy, 768 F.2d 1518, 1539

(7th Cir. 1985) (observing that “our decision [in SCA Services]

stands alone”).          The Federal Circuit has also declined to impose

a formal § 455 filing requirement, but in doing so created what

amounts   to   a    de    facto      filing    obligation      under    principles       of

equity.   See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415,

1421 (Fed. Cir. 1989) (finding no strict timeliness requirement

but denying Kodak’s requested relief due to its unreasonably

tardy § 455 objection).

      We recognize the countervailing interest in removing any

judge who bears even the slightest appearance of partiality.

But we should not ignore the harm that would ensue if litigants

were permitted to treat motions for recusal as little more than

a   stratagem.           As    the    Fifth        Circuit    observed,      “it    might

legitimately       be    asked    whether      the     spectacle   of       an   attorney

                                              20
dragging his opponent through a long and costly proceeding, only

to conclude by moving for disqualification of the judge, is not

equally     detrimental       to     public     impressions        of       the    judicial

system” as is a potentially biased judge.                          Delesdernier, 666

F.2d at 121 (internal quotation marks omitted).                             “Congress did

not   enact   § 455(a)       to    allow   counsel     to    make       a   game       of   the

federal judiciary’s ethical obligations . . . .”                        Id.       We should

not   subvert       that   legislative        intent   merely       because        a    party

instead seeks recusal under § 455(b).

      Nor are we moved by the fact that parties may not waive

recusal under § 455(b).              In that context, everyone (the judge

and   the     parties)       has    acknowledged       a    conflict,          but      seeks

nonetheless     to    ignore       it.     Thus,   waiver     cannot         be    said     to

prejudice     one    party    in    particular,    and      will    not      produce        the

gamesmanship we condemn here.

      The same must be said of § 455(f).                    That provision permits

a judge with a financial conflict of interest under § 455(b)(4)

to remain on the case if he has devoted substantial time to the

matter and divests himself of the interest 8.                      The dissent reads

the limitation of this provision to financial conflicts alone as

      8
       The district judge’s May 2009 disclosure of a financial
interest does    not   present  an  issue  under   § 455(f),  as
§ 455(b)(4) requires recusal only where a financial interest not
immediately in controversy “could be substantially affected by
the outcome of the proceeding.”



                                           21
a legislative determination that “timeliness and efficiency are

less    important      than    ensuring       that      the        impartiality        of    the

judiciary    is    upheld.”        Dissent        at    50.        As     with   the     waiver

provision, however, § 455(f) presents a clean trade-off between

efficiency and impartiality.                It does not address the concerns

about tactical sandbagging present in this case.

       The dissent also contends that our decision today “pivots

responsibility [for recusal] from the judges to the litigants.”

Dissent at 52.        That is not entirely correct.                     We agree with our

friend that when a judge “is aware of grounds for recusal under

section    455,     that    judge     has     a    duty       to    recuse       himself      or

herself.”       Dissent at 51 (internal quotation marks omitted).

The    scenario       we    address    here        arises          only    when    a        judge

independently      determines,        even    if       wrongly,      that    he    need       not

recuse and a party does not affirmatively seek recusal--that is,

until an adverse decision has been handed down.                            Both efficiency

and integrity require that we not reward a party’s tactics in

these circumstances.

                                             E.

       Having held that Owens’s timely-filing requirement applies

to    recusal     motions     under    § 455(a)         and     (b)       alike,    we      next

consider     whether       Kolon    complied           with    that        requirement        by

“rais[ing]      the    disqualification . . . [of                   the     judge] at        the

earliest moment after [its] knowledge of the facts.”                              Owens, 902

                                             22
F.2d    at   1156     (quoting   Satterfield        v.    Edenton-Chowan         Bd.    of

Educ., 530 F.2d 567, 574-75 (4th Cir. 1975)).                    It did not.

       The fact that the district court judge had been a partner

at McGuireWoods at the time of the Akzo litigation was public

knowledge when Kolon first sought discovery of the Akzo case

materials in the antitrust case in August 2009.                         Given Kolon’s

scouring of the Akzo litigation court records, it further seems

clear that Kolon had long known that McGuireWoods represented

DuPont in the Akzo case.          Kolon was also formally alerted to the

potential conflict in May 2009, when the clerk of court issued

its     notice   to    the    parties     informing       them     of    the     judge’s

financial interest in an entity affiliated with McGuireWoods.

Finally,     Kolon      became    aware        of   the      judge’s     direct        (if

negligible) involvement in the Akzo litigation in August 2010,

when DuPont produced the Akzo files and privilege log.

       In sum, Kolon knew every fact that eventually predicated

its    recusal   motion      almost   a   year      before    it   first       suggested

recusal might be appropriate, in July 2011, and over a year

before it finally filed its first recusal motion, in November

2011.     On this record, Kolon quite clearly failed to “raise the




                                          23
disqualification . . .             [of   the    judge]    at    the    earliest    moment

after [its] knowledge of the facts.”                 Id. 9

       Nor, in our view, is Kolon’s untimeliness excused by the

fact       that   DuPont    knew    first      of   the   district       court    judge’s

involvement in the Akzo case and failed to alert the court of

that   fact       until    it   eventually      produced       its    privilege   log    in

August 2010.          For one, the judge’s direct involvement in the

Akzo case was not the only (or even necessarily the strongest)

basis for Kolon’s eventual § 455(b)(2) recusal motion: if, as

Kolon believed, the Akzo litigation was actually a matter in

controversy,        the    mere    involvement      of    the    judge’s    former      law

partners--of which Kolon was clearly aware--would have required

his recusal.         For another, DuPont’s initial withholding of the

relevant communications does not explain why, after its eventual




       9
       We recognize that Kolon filed its motion to recuse in this
case before the district court’s issuance of an adverse ruling
on summary judgment. But its actions here should not be viewed
in a vacuum.    Recall that Kolon’s antitrust claims arose as a
counterclaim to DuPont’s trade secrets action, which proceeded
more quickly than the antitrust case, before the same district
judge.    In that case, the judge issued a series of rulings
universally adverse to Kolon, and a jury rendered a $920 million
verdict for DuPont.   This had all transpired by the time Kolon
filed its recusal motion in the antitrust case.         So while
Kolon’s sandbagging may not be obvious in the isolated context
of the antitrust case, a global view of the relevant events
makes clear that Kolon held its fire on recusal until after
suffering a defeat in the trade secrets case.




                                               24
disclosure, Kolon failed to raise the disqualification issue for

nearly a year.

       Our     dissenting       colleague    warns    that   our   decision       as   to

recusal will only diminish public respect for our profession.

"At the end of the day," he writes, our "determination that

Kolon's recusal requests were untimely means that a district

judge    who    .    .   .    is   no   longer   permitted   to    conduct    further

proceedings involving the trade secrets claims[] presided over a

trial that ended in a one billion dollar verdict and a twenty-

year worldwide production shutdown injunction."                     Dissent at 57

(emphasis omitted).             The district judge did preside over such a

trial, and our decision here cannot rewrite the past.                         We have

concluded separately, however, that the trade secrets verdict

must be vacated based on the judge’s evidentiary rulings.                              In

our view, a single verdict--however large--that no longer exists

can    hardly       impair     public    confidence   more   than    would    a    rule

transforming recusal under § 455 into an “additional arrow in

the quiver of advocates in the face of [anticipated] adverse

rulings.”       In re Kan. Pub. Emps. Ret. Sys., 85 F.3d 1353, 1360

(8th    Cir.    1996)        (alteration    in   original)   (internal   quotation

marks omitted).          We therefore hold that the district court acted




                                            25
within     its    discretion       in    denying       Kolon’s      recusal      motion    on

timeliness grounds. 10



                                            III.

     We     next       consider    Kolon’s       challenges        to    certain    of    the

district court’s discovery rulings.                       We review such rulings for

abuse     of     discretion,       which      may    be    found     where    “denial      of

discovery        has    caused     substantial         prejudice.”           Nicholas       v.

Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).

                                              A.

     Throughout          discovery,      to    enable       its    experts    to    perform

their     analysis,      Kolon     sought     access       to   DuPont’s     transaction-

level and market-segment sales, pricing, and margin data.                                  The

district       court      denied       Kolon’s       initial       requests      for      this

information       as    overly     broad      and    unduly       burdensome,      but    gave

Kolon     leave    to    reformulate       its      request.        Conceding      that    its

initial requests had been overbroad, Kolon eventually requested

production of a spreadsheet with data fields relevant to certain

contested issues.               The request indicated that the responsive

document       should      be     in    native       format       from    “any     existing

database.”        Appellee’s Br. at 43 (emphasis omitted).

     10
        In light of our holding, we do not address the district
court’s alternative ruling that, on the merits, recusal was not
required.



                                              26
      The district court again denied Kolon’s request, concluding

that (1) DuPont had already produced extensive documentation on

the pertinent topics, such that the requested data would not be

any   more     relevant    than       the    information      DuPont    had    already

provided; (2) the request remained “sweeping and extensive”; (3)

DuPont   had    shown     that    production       of   the    requested      documents

would be “significantly burdensome”; and (4) the request had

been filed very late in the discovery period, without adequate

explanation for the delay by Kolon.                J.A. 1020-22.

      While we do not necessarily share the district court’s view

that Kolon’s requested transaction-level data would have been no

more relevant than the aggregate data DuPont had theretofore

provided, we nevertheless find that the discovery denial was

sufficiently     justified       by    the    court’s    determination        that   the

production would have been unduly burdensome.                          Kolon insists

that the burden to DuPont was minimal because it requested only

a “single spreadsheet” which it said could be “readily compiled

from any existing database,” Appellant’s Br. at 43 (emphasis

omitted),      and   because       an       affidavit    from     DuPont’s      Global

Financing Director indicated that DuPont already had an existing

spreadsheet containing some of the requested transaction-level

data.    But this ignores the sweeping nature of the information

requested,       which     included          all    transaction-level           details

regarding      customers,        geographic        location,     dates,       products,

                                             27
amounts, price, cost, margins, and profits.                              And even if DuPont

did have this information in “existing database[s],” that does

not mean it would not have been very burdensome to compile the

information into a “single spreadsheet.”                          Id.

     Particularly             considering            the        district     court’s       “wide

latitude in controlling discovery,” Rowland v. Am. Gen. Fin.,

Inc., 340 F.3d 187, 195 (4th Cir. 2003), we decline to disturb

its ruling.

                                                B.

     Kolon       also     appeals         the    district          court’s       grant    of     a

protective order barring a Rule 30(b)(6) deposition of DuPont on

its strategic use of supply agreements.                            Justifying that order,

the district court explained that Kolon had violated Federal

Rule of Civil Procedure 30(b)(1) and Rule 30(H) of the Local

Rules   for   the       United      States      District          Court    for    the    Eastern

District   of     Virginia          by   “failing          to    give    reasonable      written

notice . . . for         [a]        replacement        deposition          notice       that     it

served on October 21, 2011,” and had wasted the time the court

had extended it for completion of its depositions.                               J.A. 2715.

     Again,      we     see    no     cause     to    disturb       the    district      court’s

discretionary ruling.               While Kolon attempts to pin blame for the

discovery delays on DuPont, it concedes that it gave only five

days’ notice for the replacement deposition notice it served on

October    21,    2011.          As      the    district         court     determined,         this

                                                28
violated Local Civil Rule 30(H), which generally requires eleven

days’ advance notice of a deposition, and Federal Rule Civil

Procedure        30(b)(1),       which      requires           “reasonable”        notice.

Although        Kolon     maintains      that      the     five-days’          notice    was

reasonable       under    the    circumstances,          the    district       court    acted

within its discretion in concluding otherwise.



                                           IV.

       Finally,     we    consider       Kolon’s    challenge       to     the    district

court’s grant of summary judgment on its two antitrust claims--a

ruling    we     review    de    novo,    viewing    all        facts    and    reasonable

inferences therefrom in the light most favorable to Kolon, the

nonmoving party.          See Pueschel v. Peters, 577 F.3d 558, 563 (4th

Cir. 2009).

       In general, summary judgment is appropriate where there is

no genuine issue as to any material fact.                           Fed. R. Civ. P.

56(a).     A genuine issue of material fact exists when there is

sufficient evidence on which a reasonable jury could return a

verdict in favor of the nonmoving party.                         Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).                         We have explained that

summary     judgment       is    “an     important        tool     for     dealing      with

antitrust cases,” Oksanen v. Page Mem’l Hosp., 945 F.2d 696, 708

(4th     Cir.    1991)     (en    banc),    and     that        antitrust       cases    are

“particularly well-suited for Rule 56 utilization” due to the

                                           29
“unusual entanglement of legal and factual issues” they often

present, Thompson Everett, Inc. v. Nat’l Cable Adver., L.P., 57

F.3d 1317, 1322 (4th Cir. 1995).

                                             A.

        We   first      review   the      district     court’s    grant    of    summary

judgment on Kolon’s monopolization claim.

      Under § 2 of the Sherman Act, a defendant is liable for a

monopolization claim when that defendant (1) possesses monopoly

power      and    (2)    willfully     acquires        or   maintains     that   power.

DuPont I, 637 F.3d at 441.                   In granting summary judgment to

DuPont, the district court held that Kolon failed to create a

genuine issue of material fact on either prong, concluding that

DuPont neither possessed monopoly power nor engaged in willful

maintenance of such power.             We address each element in turn.

                                             1.

      “Monopoly power is the power to control prices or exclude

competition.”           United States v. E.I. du Pont de Nemours & Co.,

351 U.S. 377, 391 (1956).              A defendant possesses monopoly power

in   the     relevant     market     if    it     is   “truly    predominant     in   the

market.”         White Bag Co. v. Int’l Paper Co., 579 F.2d 1384, 1387

(4th Cir. 1974).           Although there is no fixed percentage market

share that conclusively resolves whether monopoly power exists,

the Supreme Court has never found a party with less than 75%

market share to have monopoly power.                        Antitrust Laws & Trade

                                             30
Regulation: Desk Ed. § 3.02[2][c][ii].                           And we have observed

that    “when     monopolization              has       been     found        the     defendant

controlled      seventy        to    one     hundred        percent      of     the    relevant

market.”      DuPont I, 637 F.3d at 450 (quoting White Bag, 579 F.2d

at 1387).

       Beyond    percentage          market       share,       “some    courts        have   also

focused    on    the    durability          of    the       defendant’s        market     power,

particularly      with     an       eye    toward       other    firms’       (in)ability      to

enter the market.”         Id. at 451 (citing cases).

       Applying    these        standards,            the   district     court        held   that

DuPont lacked monopoly power.                    Whereas (according to our ruling

in DuPont I) Kolon had adequately pleaded the monopoly power

element by alleging that DuPont had controlled over 70% of the

relevant      market,     at    the       summary       judgment       stage    the    district

court found that DuPont actually possessed significantly less

than the alleged 70% of that market.                            Kolon Indus., Inc., v.

E.I. du Pont Nemours & Co., No. 3:11-cv-622, 2012 WL 1155218, at

*12 (E.D. Va. Apr. 5, 2012).                      “In fact,” the court observed,

“Kolon’s own expert takes the view that DuPont had a maximum

market share of 59 percent during the relevant time period, and

that DuPont’s market share decreased to 55 percent during that

three year period rather than increased.”                        Id.

       This     decline    in        DuPont’s          market    share,        combined      with

Teijin’s corresponding ascendance and the fact that DuPont was

                                                 31
charging lower prices in the United States than in Europe (which

Kolon identified as a comparable market), led the court to its

conclusion.         “[T]he    fact     that        there      are   significant       entry

barriers,”    the    district        court    continued,        “is   insufficient       to

fill the factual gaps in Kolon’s monopolization claim.”                                 Id.

“DuPont clearly lacks the power to control prices and exclude

competition,” the court summarized, “otherwise, it would have

been able to prevent the decrease in its market share and the

rise of one of its major competitors.”                   Id.

      Even viewing all evidence in the light most favorable to

Kolon, we agree with the district court that DuPont did not

possess monopoly power in the U.S. para-aramid market during the

relevant period between 2006 and 2009.                     First, although Kolon is

correct that DuPont’s market share of less than 60% during the

relevant    period    does     not    necessarily          foreclose     a    finding    of

monopoly power, it does weigh heavily against such a finding.

Quite simply, this percentage falls significantly short of where

we   have   previously       drawn    the    line      for    monopoly       power.     See

DuPont I, 637 F.3d at 450 (identifying 70% market share as the

bottom of the range for a finding of monopoly power).

      Meanwhile,     although        Kolon        is   also    correct   that     certain

other factors do demonstrate DuPont’s strength in the market

(e.g., high barriers to entry, ability to price discriminate,

high profit margins), a showing of DuPont’s “market power” is

                                             32
not itself sufficient to prove that DuPont possesses “monopoly

power.”       See Eastman Kodak Co. v. Image Technical Servs., Inc.,

504 U.S. 451, 481 (1992) (“Monopoly power under § 2 requires, of

course,       something       greater     than        market     power      under     § 1.”).

Furthermore,         this   evidence      falls        short     of    showing       DuPont’s

durability      in    the     market.      As     the       district     court      observed,

uncontested      facts      demonstrate      that       DuPont        has       experienced   a

steady, decades-long loss in significant market share to Teijin.

       Ultimately, in light of DuPont’s reduced market share and

lack of durable market power, the evidence cannot sustain a jury

finding that DuPont had the “power to control prices or exclude

competition,” United States v. DuPont, 351 U.S. at 391, or was

“truly predominant in the market” during the relevant period,

White Bag, 579 F.2d at 1387.

                                            2.

       Even    if     Kolon     had     presented       a      triable      issue     on   the

monopoly-power element, Kolon also needed to show that DuPont

willfully      maintained       that    power.          To     violate      this     prong,   a

defendant must engage in conduct “to foreclose competition, to

gain   a   competitive         advantage,        or    to    destroy        a    competitor.”

Eastman Kodak, 504 U.S. at 482-83.                          On this element, Kolon’s

theory was--and is--that DuPont maintained its alleged monopoly

power through the use of long-term, multi-year, exclusive supply

agreements with certain U.S. para-aramid customers.

                                            33
     Although       exclusive           dealing       agreements         are     not        per     se

illegal,     they     “may       be     an     improper         means    of     acquiring           or

maintaining a monopoly.”                     DuPont I, 637 F.3d at 451 (citing

United States v. Grinnell Corp., 384 U.S. 563, 576 (1966).                                         The

Supreme Court has held that an exclusive dealing arrangement

does not violate antitrust laws unless its probable effect is to

“foreclose competition in a substantial share of the line of

commerce affected.”             Tampa Elec. Co. v. Nashville Coal Co., 365

U.S. 320, 327 (1961).             The Court explained:

     To determine substantiality in a given case, it is
     necessary to weigh the probable effect of the contract
     on the relevant area of effective competition, taking
     into account the relative strength of the parties, the
     proportionate volume of commerce involved in relation
     to the total volume of commerce in the relevant market
     area, and the probable immediate and future effects
     which pre-emption of that share of the market might
     have on effective competition therein.

Id. at 329.

     Along       these     lines,       we    have     observed        that    “[t]he        market

share   foreclosed         is    important           because,     for    the     contract           to

adversely        affect    competition,           ‘the      opportunities             for     other

traders     to     enter     into       or     remain      in     that       market     must       be

significantly limited[.]’”                   DuPont I, 637 F.3d at 451 (quoting

Tampa     Elec.,     365        U.S.     at     328).           Once     a     plaintiff           has

demonstrated        substantial              foreclosure,         it     must     then            also

demonstrate        that     the        conduct       had    “a     negative       impact           on



                                                34
competition in the market as a whole.”                   Chuck’s Feed & Seed Co.

v. Ralston Purina Co., 810 F.2d 1289, 1295 (4th Cir. 1987).

      The district court held there was no genuine issue that

DuPont’s     supply    agreements       had    not     foreclosed     a     substantial

portion of the market.             In its view, Kolon had not sufficiently

attempted to quantify foreclosure of the entire relevant market,

and instead had focused only on DuPont’s alleged foreclosure of

particular market segments.             Kolon’s evidence of the degree of

foreclosure in those segments, which the court characterized as

“scant      at   best,”      did    “nothing     to      reveal      the     amount   of

foreclosure in the [para-aramid] market as a whole.”                             Kolon,

2012 WL 1155218, at *14.             The court concluded that since DuPont

had   supply     agreements--many       of     which    were   non-exclusive--with

only twenty-one of approximately 1,000 potential commercial U.S.

para-aramid customers, the percentage of foreclosure could not,

“as a matter of law, constitute sufficient grounds for a finding

of substantial foreclosure.”            Id. at *15.

      The    court    also    concluded       that     Kolon   had    “put    forth   no

evidence” that DuPont’s supply agreements had a negative effect

on    overall     competition,        noting      that     Teijin’s         “relentless

ascendance”      fatally     undercut    that     claim.       Id.         Finally,   the

court rejected Kolon’s argument that DuPont’s twenty-one supply

arrangements substantially foreclosed the entire relevant market



                                          35
by blocking Kolon from crossing a “critical bridge” to “high

volume” customers.       Id. at *16-18.

      On   appeal,     Kolon    again          stresses       its     “critical       bridge”

theory.       While    it     does       not        deny    that     DuPont     had    supply

agreements with only twenty-one of the roughly 1,000 potential

U.S. commercial para-aramid customers, Kolon contends that the

district court’s emphasis on those figures--and its disregard of

the “probable effect of the contract[s] on the relevant area of

effective     competition,”         Tampa       Elec.,        365    U.S.     at      329--was

shortsighted.         Pointing       to        evidence       that     DuPont      perceived

Kolon’s    market     entry    as    a    threat,          Kolon    argues    that     DuPont

“strategically entered into supply agreements with high-volume

customers      in      the     key        commercially              sustainable         entry

segments . . . that Kolon sought to enter.”                          Appellant’s Br. at

7, 27-28.     Kolon submits that despite the relatively low number

and   short    duration        of    DuPont’s              supply    agreements,        these

agreements “choked off the ‘critical bridge’ to Kolon’s entry

into the U.S. market” because they foreclosed Kolon’s access to

the most important high-volume customers.                      Id. at 32.

      Kolon points to two cases from the Third Circuit which, in

its view, embrace this “critical bridge” approach.                              See United

States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005)

(reversing summary judgment, holding that Dentsply’s exclusivity

agreements with key product distributors could deny efficient

                                               36
scale to competitors); LePage’s Inc. v. 3M, 324 F.3d 141, 160

(3d Cir. 2003) (en banc) (reversing summary judgment, holding

that 3M’s bundled rebate agreements with superstores like K-Mart

and    Wal-Mart      could     have     cut       LePage’s    off       from   “key    retail

pipelines necessary to permit it to compete profitably”).

       While    we        acknowledge    that       a    singular       emphasis      on    the

percentage of customers foreclosed cannot resolve the inquiry

(as foreclosure of a few important customers could substantially

foreclose access to a market), we agree with the district court

that    Kolon       failed     to     show        what   “proportionate         volume       of

commerce”      in     the    entire     relevant         market     was    foreclosed        by

DuPont’s supply agreements.                  Tampa Elec., 365 U.S. at 329; see

also DuPont I, 637 F.3d at 451 (discussing the importance of

market share foreclosed).                Likewise, although Kolon’s “critical

bridge” theory is certainly plausible, the evidence does not

support its application here.

       Unlike       the     plaintiffs       in    Dentsply       and    LePage’s,         Kolon

offered no evidence that access to the foreclosed customers (or

even to the identified market segments) was necessary to achieve

scale in the broader U.S. para-aramid market.                             And even if we

assume the significance of those customers and market segments,

Kolon does not dispute that DuPont had supply agreements with

fewer than half of its identified “key” customers within those

segments.

                                              37
       Meanwhile, DuPont persuasively distinguishes Dentsply and

LePage’s     based        on      the    fact     that     the    defendants           in     those

“critical    bridge”           cases     foreclosed       the    plaintiffs’           access    to

distribution networks rather than end-customers.                                  We are not

convinced     that,          as   Kolon     contends,       this       is    “a   distinction

without a difference.”                  Reply Br. at 15.          As the district court

observed,     unlike           with     Dentsply’s        and    3M’s       agreements         that

foreclosed access to distribution networks shown to be necessary

to reach many end-customers, “the record presents no reason to

think that Kolon could not sell to other customers occupying the

same segment of the para-aramid market . . . as customers that

have supply agreements with DuPont.”                       Kolon, 2012 WL 1155218, at

*18.

       In   sum,    we       conclude      that      neither     the    probable        nor     the

actual effect of DuPont’s supply agreements was to “foreclose

competition        in    a     substantial        share    of    the    line      of    commerce

affected.”         Tampa Elec., 365 U.S. at 327.                       Accordingly, those

agreements do not violate the willful maintenance prong of our

§ 2 monopolization inquiry.                     Because Kolon failed to raise a

genuine     issue       of     material     fact     as    to    either      prong,         summary

judgment was appropriate on its monopolization claim.

                                                B.

       We   next        review     the     district       court’s       grant     of        summary

judgment on Kolon’s attempted monopolization claim.

                                                38
       “Attempted      monopolization            employs       ‘methods,          means     and

practices which would, if successful, accomplish monopolization,

and which, though falling short, nevertheless approach so close

as to create a dangerous probability of it.’ ”                               DuPont I, 637

F.3d    at   453   (quoting    M    &   M   Med.      Supplies        &    Serv.,    Inc.    v.

Pleasant Valley Hosp., Inc., 981 F.2d 160, 166 (4th Cir. 1992)).

To prevail on an attempted monopolization claim under § 2, a

claimant     must    show     (1)   a    specific        intent       to     monopolize      a

relevant market, (2) predatory or anticompetitive acts, and (3)

a dangerous probability of successful monopolization.                                Spectrum

Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).

       Focusing only on the final two prongs, the district court

found    neither      satisfied         since      (1)        Kolon       had     failed     to

demonstrate        substantial      foreclosure          of     the       relevant     market

resulting from DuPont’s supply agreements, meaning there was no

anticompetitive conduct; and (2) DuPont had lost market share

during the relevant period and had failed to prevent Teijin’s

ascendance,        meaning    there     was      no    dangerous           probability       of

successful monopolization by DuPont.

       Kolon first contends that DuPont’s supply agreements were

anticompetitive,       arguing      that    DuPont       entered          these   agreements

against its own interest in order to block Kolon’s market entry.

Appellant’s Br. at 31-32 (citing M & M Med. Supplies, 981 F.2d

at 166 (noting that where “a firm has been attempting to exclude

                                            39
rivals     on   some     basis    other     than   efficiency,        it    is    fair    to

characterize its behavior as predatory”)).                        On the “dangerous

probability       of    success”     prong,      Kolon    maintains    that       even     if

DuPont’s share of the U.S. para-aramid market did not constitute

actual     monopoly      power,      it   was     at    least    consistent        with    a

“dangerous probability” of achieving such power.                           Id. at 23-24

(citing M & M Med. Supplies, 981 F.2d at 168 (4th Cir. 1992)

(“[C]laims involving greater than 50% share should be treated as

attempts at monopolization when the other elements for attempted

monopolization are also satisfied.”)).                        And Kolon notes that

even though “DuPont’s market share declined slightly over the

three-year period, that does not, as a matter of law, preclude a

finding of monopoly power, much less a dangerous probability of

achieving it.”          Id. at 24 (citing cases finding monopoly power

despite a declining market share).

     But    again,       even    viewing    the    evidence      in   the   light       most

favorable to Kolon, the claim fails.

     First, as discussed above, DuPont’s alleged anticompetitive

conduct--its       customer        supply       agreements--did       not        have     the

probable effect of “foreclos[ing] competition in a substantial

share of the line of commerce affected.”                      Tampa Elec., 365 U.S.

at 327; see also IIIB Areeda & Hovenkamp, Antitrust Law ¶ 806a,

at   412    (3d        ed.   2008)    (“[T]he          same   basic    definition          of

exclusionary      conduct        should    apply   to     both   monopolization           and

                                            40
attempt claims.”).          Nor, contrary to its suggestion, did Kolon

show     that     the    agreements       were   anticompetitive        as     without

business        justification       or    against    DuPont’s     own        interest.

Rather, DuPont introduced unrebutted evidence that it entered

the supply agreements as a competitive response to Teijin’s use

of that same practice, and because customers requested them.

       Second, Kolon has not raised a genuine issue that DuPont

had a “dangerous probability” of successfully achieving monopoly

power    during     the    relevant       period.      As   the   district       court

observed, DuPont’s market share had been in steady decline for

seventeen years, and DuPont has proven unable to control U.S.

prices or exclude Teijin from entering the market.                      And even if

declining market share does not preclude a finding of monopoly

power, Kolon pointed to no affirmative evidence indicating a

“dangerous probability” that DuPont would sooner or later regain

its former market dominance.

       Accordingly,       we     affirm    the   district    court’s         grant    of

summary judgment to DuPont on Kolon’s attempted monopolization

claim.



                                           V.

       In sum, we conclude that following Owens, recusals under 28

U.S.C.     § 455(b)       include    a    judicially    implied     timely-filing

requirement,       and    that    the     district   court    acted     within       its

                                           41
discretion when it denied Kolon’s recusal motion on timeliness

grounds.

      We defer to the district court’s considerable discretion in

overseeing discovery and will not disturb its discovery rulings.

On   the   merits   of   Kolon’s    antitrust     suit,    we   agree   with   the

district court that Kolon failed to raise a triable issue of

material    fact    sufficient     to   sustain   either    its   attempted     or

actual monopolization claims.

      The judgment of the district court is hereby

                                                                        AFFIRMED.




                                        42
SHEDD, Circuit Judge, dissenting:

      I dissent.          Federal judges have an “absolute duty . . . to

hear and decide cases within their jurisdiction,” United States

v.   Will,    449    U.S.        200,    215      (1980),    but    “[f]airness          .    .   .

requires     an   absence        of     actual     bias     in   the     trial    of    cases,”

United    States     v.     Werner,         916   F.2d    175,     178    (4th    Cir.       1990)

(internal quotation marks omitted).                      To that end, “our system of

law has always endeavored to prevent even the probability of

unfairness.”               Id.     (internal           quotation         marks      omitted).

Consistent with this principle, Congress has explicitly created

another      absolute      duty       for    federal      judges:        they    must    recuse

themselves from any case where, “in private practice [the judge]

served as a lawyer in the matter in controversy, or a lawyer

with whom [the judge] previously practiced law served during

such association as a lawyer concerning the matter.”                               28 U.S.C.

§ 455(b)(2).          In     creating         this     duty,     Congress        “placed      the

obligation to identify the existence of those grounds upon the

judge himself, rather than requiring recusal only in response to

a party affidavit.”              Liteky v. United States, 510 U.S. 540, 548

(1994).

      I thus disagree with the majority’s unwarranted imposition

of a timeliness requirement that shifts the burden of bringing

forward recusal grounds under § 455(b)(2) from the judge to the

litigants.          That    decision         flies     in    the    face    of     the       plain

                                                  43
language      and     thwarts     the    clear       congressional          purpose     of

§ 455(b)(2).         It is also inconsistent with our precedent.                       See

United States v. Lindsey, 556 F.3d 238, 246-47 (4th Cir. 2009).

Even accepting that timeliness plays some limited role under §

455(b)(2),     I    further     disagree      with   the       majority’s     conclusion

that Kolon Industries, Inc. (Kolon), acted in an untimely manner

here.    Rather, Kolon moved for the district judge’s recusal (on

grounds with which the judge was already well aware) within a

reasonable time after being presented with voluminous discovery

that    had   been    impeded     by    E.I.    DuPont     De     Nemours     &   Company

(DuPont).     Finally, in my view, the district judge presiding in

this case falls squarely within the terms of § 455(b)(2) in both

this appeal and the companion appeal,                   E. I. DuPont De Nemours &

Co. v. Kolon Industries Inc., No. 12-1260 (Trade Secrets Case).

I would thus vacate the summary judgment order in this appeal

and remand for further proceedings.

                                           I.

       I begin with a brief recitation of the pertinent facts.

DuPont has commercially produced para-aramid fibers under the

name Kevlar© since the 1970s.                 In the 1980s, DuPont engaged in

worldwide     litigation      with     Akzo     N.V.,    which     sold   a    competing

para-aramid        fiber,   Twaron©,     including         a    case   filed      in   the

Eastern District of Virginia (the Akzo litigation).                               In that

litigation, DuPont was represented by McGuire Woods & Battle

                                           44
(now    McGuireWoods)         and     Fitzpatrick,         Cella,       Harper    &   Scinto

(Fitzpatrick Cella).              During the time of the litigation, the

district judge below was a partner at McGuireWoods’ Richmond

office.      Documents reflect that during the Akzo litigation the

district judge spoke with co-counsel from Fitzpatrick Cella on

the phone and sent a letter with a copy of Akzo’s complaint

attached to him.

       In    2009,    DuPont        instituted       this    action       against     Kolon,

arguing that Kolon misappropriated its trade secrets.                                 As the

majority     recounts,      the      district       judge,    through       the    clerk    of

court,      issued    a   brief      notice      informing        the    parties      of   the

judge’s     prior     partnership         at   McGuireWoods        and    instructed       the

parties to move for recusal if they believed it was warranted.

The judge took no further action on the issue.                             Kolon filed an

answer and a counterclaim, contending that DuPont’s actions in

the market for para-aramid fibers violated the antitrust laws.

In   August    2009,      early      in   discovery,        Kolon       sought    access   to

documents from the Akzo litigation, believing that DuPont had

made public the trade secrets it was now claiming Kolon had

misappropriated.          DuPont’s counsel (McGuireWoods) informed Kolon

that   it    had     no   documents       from      the    Akzo    litigation.         Kolon

renewed this request prior to the close of discovery in April

2010   and    was     again    informed        that       McGuireWoods      possessed       no

documents.          Undeterred,       after      the      close   of     discovery     Kolon

                                               45
served   a   subpoena    on   Fitzpatrick    Cella,   which   revealed   that

Fitzpatrick Cella did have documents from the Akzo litigation.

These materials were turned over to Kolon in August 2010.                The

involvement of the district judge, including the letter he sent

to Fitzpatrick Cella, was not highlighted, but was part of a

roughly 59,000 page production.

     While the district judge was not made aware of the letter

until July 2011, it cannot be disputed that throughout discovery

the judge was aware that Kolon intended to defend itself against

DuPont’s claims by contending that DuPont had publicized the

trade secrets in the Akzo litigation.             Upon being informed of

the letter in July 2011, prior to trial in the trade secrets

case and prior to severance of the antitrust claims, 1 the judge

stated   that    he     had   “no   recollection      whatsoever”   of   any

involvement in that litigation.             (J.A. 689).   As the majority

further recounts, the judge refused to rule on recusal until

Kolon formally filed a motion for recusal in both the trade

secrets and the antitrust case.

     Eventually, the trade secrets claims proceeded to trial and

culminated in a jury award of $919.9 million.                  The district

judge later entered a twenty-year worldwide production shutdown

     1
       The antitrust claims, which are the subject of this
appeal, were severed from the trade secrets claims in September
2011.



                                     46
injunction against Kolon and granted DuPont’s motion for summary

judgment on the antitrust claims.

                                           II.

     Section 455(b) provides that recusal is mandatory, inter

alia,    “[w]here     in    private      practice   [the   judge]      served      as   a

lawyer in the matter in controversy, or a lawyer with whom he

previously practiced law served during such association as a

lawyer     concerning        the    matter.”        28     U.S.C.      § 455(b)(2).

Mandatory recusal is not waivable by the parties.                            28 U.S.C.

§ 455(e).        The majority concludes that, although not waivable, a

mandatory recusal under § 455(b) is nonetheless subject to a

stringent timeliness requirement and that Kolon simply waited

too long in this case.            I disagree.

     The    majority’s       timely-filing       requirement      is   misconstrued

for several reasons.          First, it simply constitutes the addition

of words to the statute.              “When interpreting statutes we start

with the plain language.”                U.S. Dep’t of Labor v. N.C. Growers

Ass’n,     377    F.3d     345,    350    (4th   Cir.    2004).        “It    is   well

established that when the statute’s language is plain, the sole

function of the courts-at least where the disposition required

by the text is not absurd 2-is to enforce it according to its


     2
        The majority’s reference to the absurdity canon is
misplaced.    There is nothing absurd about my reading of
§ 455(b)—as discussed infra, given the purpose of the statute,
(Continued)
                                            47
terms.”      Lamie v. United States Tr., 540 U.S. 526, 534 (2004)

(internal quotation marks omitted).                The statutory language of

§ 455(b)     could   not    be   plainer;   it   “sets   forth    no    procedural

requirements.”       United States v. Sibla, 624 F.2d 864, 867 (9th

Cir. 1980).      See also Delesdernier v. Porterie, 666 F.2d 116,

120   (5th    Cir.    1982)      (noting    that    “even      after”   statutory

amendments in 1974 “§ 455 still contains no explicit procedural

requirements”).        Congress’      omission      of   any    reference   to   a

timely-filed motion as a prerequisite to § 455(b) recusal should

end our inquiry. 3         After all, “[w]e do not lightly assume that




it is entirely plausible that Congress did not intend to impose
a timely-filing requirement.   The absurdity canon allows courts
to disregard statutory text when adhering to the text “would
result in a disposition that no reasonable person could
approve.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 234 (2012). But the canon “can be
a slippery slope. It can lead to judicial revision of public and
private texts to make them (in the judges' view) more
reasonable.” Id. at 237. The hurdle for invoking the canon is
thus “a very high one.” Id. The fact that there is a “plausible
reason[]” for omitting a timely-filing requirement in § 455(b)
“forecloses recourse to the absurdity canon.”    Little v. Shell
Exploration & Prod. Co., 690 F.3d 282, 291 (5th Cir. 2012).
      3
       The majority compounds its error by requiring not only
that recusal be raised in a timely fashion by the parties, but
that recusal be raised in a formal motion.   As noted, § 455(b)
includes no procedural requirements.  Moreover, the requirement
of a motion is further undercut by the existence of 28 U.S.C.
§ 144. That statute provides:

     Whenever a party to any proceeding in a district court
     makes and files a timely and sufficient affidavit that
     the judge before whom the matter is pending has a
(Continued)
                                       48
Congress has omitted from its adopted text requirements that it

nonetheless intends to apply.”           Jama v. Immigration and Customs

Enforcement, 543 U.S. 335, 341 (2005).

      Second, as if this silence were not enough, § 455 contains

two   additional    signals    that      a     timely-filed      motion     is    not

required    under   § 455(b).         First,      §    455(e)     provides       that

mandatory   recusals   may    not   be       waived   by   the   parties.        Even

accepting   that    “waiver   and     timeliness       are   distinct     issues,”

United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989), the

non-waiver of § 455(b) recusals reinforces the mandatory nature

of the section; if the presiding judge has a triggering event

under § 455(b), the judge is disqualified and must recuse even

if the parties oppose his recusal.                Second, § 455(f) provides


      personal bias or prejudice either against him or in
      favor of any adverse party, such judge shall proceed
      no further therein, but another judge shall be
      assigned to hear such proceeding.

      The affidavit shall state the facts and the reasons
      for the belief that bias or prejudice exists, and
      shall be filed not less than ten days before the
      beginning of the term at which the proceeding is to be
      heard, or good cause shall be shown for failure to
      file it within such time. A party may file only one
      such affidavit in any case. It shall be accompanied by
      a certificate of counsel of record stating that it is
      made in good faith.

     Section 144, which was in existence at the time Congress
amended § 455, clearly illustrates that Congress knew how to
require a formal filing raising a judge’s bias or prejudice and
declined to do so in § 455(b).



                                       49
yet      another        signal.              That        provision               states     that,

“[n]otwithstanding”           the     statute’s      preceding            provisions,           if    a

judge has invested “substantial judicial time” “to the matter”

and then discovers that he has a financial conflict of interest

under    § 455(b)(4),         the    judge    may     remain         in     the     case    if       he

“divests       himself    or     herself      of     the    interest.”               28     U.S.C.

§ 455(f).        This     provision        represents        Congress’s            response          to

judicial economy concerns, and, importantly, it is limited to a

single    provision      of     § 455(b).          The     fact      that        Congress    spoke

specifically       to    this       one    area    suggests          that       timeliness       and

efficiency       are      less       important           than        ensuring        that        the

impartiality of the judiciary is upheld.

       In addition, I believe a timely-filing requirement subverts

the statute’s intent.                Section 455 serves to “promote public

confidence in the integrity of the judicial process.”                                   Liljeberg

v.    Health    Servs.     Acquisition            Corp.,    486       U.S.       847,     858    n.7

(1988).     See also Delesdernier, 666 F.2d at 121 (noting statute

serves    “to     increase       public      confidence          in       the     judiciary          by

removing    even    the    appearance         of     impropriety            or    partiality”).

“Put    simply,     avoiding         the    appearance          of    impropriety           is       as

important in developing public confidence in our judicial system

as avoiding impropriety itself.”                     United States v. Jordan, 49

F.3d 152, 155-56 (5th Cir. 1995).                        The statute was amended in



                                              50
1974 4 to harmonize § 455 with existing law by “clarify[ing] and

broaden[ing] the grounds for judicial disqualification and to

conform with the recently adopted ABA Code of Judicial Conduct,

Canon 3C (1987).”              Liljeberg, 486 U.S. at 858 n.7.                      These codes

of conduct exist independently of § 455 and must be followed by

judges absent action by a party.                           Indeed, our entire recusal

system      is    based     upon    the    notion          that,      when    the    judge    has

information that triggers one of the subsections of § 455(b),

that    judge      will    recuse       himself       or    herself     regardless       of   any

urging by a party.                 In recognition of this fact, § 455 “is

directed to the judge, rather than the parties, and is self-

enforcing on the part of the judge.”                        Sibla, 624 F.2d at 867-68.

Thus,      if    the     judge    “is    aware       of    grounds      for   recusal     under

section         455,    that     judge    has     a       duty   to    recuse       himself   or

herself.”         Id. at 868.        While these provisions “may be asserted

also by a party to the action,” the primary duty remains with

the judge.             United States v. Conforte, 624 F.2d 869, 880 (9th

       4
           Prior to the 1974 amendments the statute provided:

       Any justice or judge of the United States                                      shall
       disqualify himself in any case in which he                                    has a
       substantial interest, has been of counsel, is                                or has
       been a material witness, or is so related                                     to or
       connected with any party or his attorney as to                               render
       it improper, in his opinion, for him to sit                                  on the
       trial, appeal, or other proceeding therein.

       28 U.S.C. § 455 (1970 ed.).



                                                51
Cir. 1980). 5      The timely filing requirement, as implemented by

the   majority,    pivots     responsibility    from    the   judges       to   the

litigants when that duty and responsibility should lie with us.

As the Federal Circuit has explained:

      Application of a “timeliness” requirement requires a
      fixed point or bench mark from which the timeliness or
      untimeliness of an action can be measured (e.g. 10
      days after event X; before event Y). There is no such
      provision anywhere in section 455.     Nor could there
      be.   The statute deals only with action of a judge.
      It has nothing to do with actions of counsel.

Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1418 (Fed.

Cir. 1989) (emphasis added).

      Finally, to the extent one insists that timeliness should

play a role in recusal, I agree with Kolon that the role should

be tied to equitable considerations and limited in scope.                       In

fact, the earliest cases applying a timeliness requirement were

concerned primarily with parties’ gamesmanship after losing a

case.     For instance, in York, 888 F.2d at 1055, cited by the

majority, the court noted that a timeliness requirement served

to    “proscribe    motions    that   would    have    invalidated     a    fully

completed    trial”    and    chastised    parties     that   would    sit      on

information gleaned prior to trial until the trial’s outcome.

      5
       To this end, we require parties to file a Corporate
Disclosure Statement under Federal Rule of Appellate Procedure
26.1 so that we can generate our own disqualifications; we do
not require each party in every appeal to file a motion
requesting the recusal of certain judges.



                                      52
See also Conforte, 624 F.2d at 879-880 (finding recusal motion

untimely where information was learned prior to trial but not

raised until after trial); Stone Hedge Props. v. Phoenix Capital

Corp., 71 Fed. App’x 138, 141 (3d Cir. 2003) (motion untimely

when party learned of information prior to judgment but recusal

was not raised until five years later, well after judgment and

appeal); Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334

(2d Cir. 1987) (noting whether motion was “made after the entry

of judgment” is one of four factors in determining if request

was timely).      A timeliness requirement in such circumstances—

where a party learns of information that the judge does not (or

may   not)    possess    but   then    sits       on   that    information       as   a

litigation     strategy—makes    sense       as    a   matter       of    fairness    or

equity.      Thus, in most of these cases “[t]he refusal of courts

to ‘start over’ has rested not on the mere passage of time, but

on    the    events     that   had    occurred         and    the        balancing    of

equity/fairness       considerations    in    deciding        whether      to   expunge

those events from history’s pages.”               Polaroid Corp., 867 F.2d at

1419.

      Applying such a limited rule here leads inescapably to the

conclusion that Kolon acted in a timely fashion.                          As recounted

above, DuPont impeded the discovery of Akzo documents and turned

over voluminous discovery that did not highlight the district

judge’s role in the prior litigation.                   Moreover, at all times

                                       53
the district court was aware that Kolon was pursuing discovery

of   the    Akzo   litigation.               Given     these   circumstances,     Kolon’s

specific raising of recusal prior to trial in the trade secrets

claims is sufficiently timely under § 455(b)(2).

      The     majority             reaches       the      opposite      conclusion       by

misconstruing, and then incorrectly relying on, United States v.

Owens, 902 F.2d 1154, 1155 (4th Cir. 1990). 6                        In my view, Owens

is limited to recusals under § 455(a) and has no relevance to

cases,     like    this        one,    involving        § 455(b).       Section   455(a) 7

provides     that          a   judge        “shall     disqualify     himself     in    any

proceeding        in       which      his    impartiality       might    reasonably      be

questioned.”       28 U.S.C. § 455(a).                 Owens itself relied on a case

interpreting only § 455(a), see Delesdernier, 666 F.2d at 121, 8

and our cases citing to Owens’ timeliness requirement have all

arisen     under       §    455(a),     see    Newport     News     Holdings    Corp.    v.
      6
       The majority also relies, in part, on the decisions of our
sister circuits imposing a timeliness requirement.     Of course,
“agreement among courts of appeals on an issue . . . does not
invariably garnish Supreme Court approval.”    McMellon v. United
States, 387 F.3d 329, 361 (4th Cir. 2004) (en banc) (Motz, J.,
dissenting). Given the plain language of § 455(b), I find these
decisions unpersuasive.
      7
       This section, like § 455(b) has no specific timeliness
requirement.   Nonetheless, for purposes of this case, I accept
that the language is more susceptible to a requirement that the
party raise the issue with the judge and that such a requirement
is mandated by Owens.
      8
       In fact, Delesdernier specifically reserved the timeliness
question under § 455(b). See Delesdernier, 666 F.2d at 123 n.3.



                                                54
Virtual City Vision, Inc., 650 F.3d 423, 432 (4th Cir. 2011);

United States v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008).

Conversely, of more relevance here is United States v. Lindsey,

556 F.3d 238, 246-47 (4th Cir. 2009).                        In Lindsey, the district

judge    had     previously         worked      as    an     Assistant       United      States

Attorney on the criminal defendant’s case more than a decade

earlier.       For the first time on appeal of the denial of his 18

U.S.C.     §3582(c)       motion,         the    criminal      defendant          raised     the

potential      recusal        of    the    district         judge    under        § 455(b)(3).

Although       the     district        judge         was     unaware        of     his     prior

participation,         and    no    one    brought      it    to    his    attention,       “his

participation        at      that    time       is    nonetheless         undisputed,”       and

recusal    was    thus       required.          Id.    at    247.      In    reaching       this

result, we included neither a citation to Owens nor a discussion

of timeliness.          Instead, we simply concluded that, because the

district       judge      fell      within      § 455(b),      recusal           was   required

regardless of when the issue was raised.                           Thus, contrary to the

majority, I believe our most relevant precedent supports the

conclusion that timeliness is not relevant under § 455(b). 9


     9
       The majority misapprehends the importance of Lindsey.
According to the majority, Owens mandates a timely-filing
requirement in all § 455 cases.      In Lindsey, although the
recusal issue was not raised until appeal, there is no
discussion about timeliness, which is wholly consistent with my
view that timeliness is irrelevant to § 455(b) cases because
they hinge on the mandatory nature of the recusal, not the
(Continued)
                                                55
      In sum, the rule employed by the majority—that a recusal

motion is timely only if raised “at the earliest moment after

[its] knowledge of the facts,” (Majority Op. at 22), regardless

of whether any delay was caused by gamesmanship or whether it

was   raised   early   enough   in   the   litigation    that   no    prejudice

would result—is incompatible with the language and purpose of

§ 455(b) and is not required by our precedent.              This case proves

the   point.     The    district     judge   knew,   from    the     outset   of

litigation, that his prior law firm was representing a client

that it represented when he was partner.                As discovery began,

the judge had before him multiple requests from Kolon to look

into the Akzo litigation and pleadings and filings, indicating

that the Akzo litigation was central to Kolon’s defense on the

merits of the trade secrets claims.          This is not a case in which

a party discovered, for instance, financial information that the

judge was unaware of and sat on that information until after

trial.   In this case the judge was, at all times, aware of the

facts relevant to recusal under § 455(b)(2) and it was up to the




timely raising of it.   If timeliness was as important in all §
455 cases, as the majority suggests, surely the issue would have
at least been identified in Lindsey.       Lindsey’s silence on
timeliness only reinforces the case’s thorough discussion of
recusal under § 455(b) as a mandatory proposition.



                                      56
judge      to   self-enforce      those    statutory        provisions. 10        To   the

extent any burden is placed on Kolon, it satisfied that burden

by   raising     the     issue   in   July,       prior    to   trial   on   the   trade

secrets claims.

      At the end of the day, the majority’s determination that

Kolon’s recusal requests were untimely means that a district

judge who, by the majority’s own determination, is no longer

permitted       to    conduct    further     proceedings        involving    the   trade

secrets     claims,      presided     over    a    trial    that    ended    in    a   one

billion dollar verdict and a twenty-year worldwide production

shutdown injunction.             Such a result does not, I think, inspire

public confidence in the judiciary.                  The majority’s rule leaves

judges with no enforceable duty to remove themselves from cases

absent action by a party.                This result cannot be squared with

the statute’s purpose or language.

                                           III.

      Having         concluded    that    Kolon’s     request      is   appropriately

before this court, I now address whether recusal was required



      10
        My opinion should not be read to suggest that the
district judge engaged in actual bias or impartiality in this
case.    Rather, the purpose of § 455(b)(2) is to disqualify
judges, even if they have no actual bias in a particular case,
because of the great risk of the appearance of bias or
impartiality in a certain set of cases. That appearance is the
issue in this case.



                                             57
under § 455(b)(2). 11         We have held that a judge “need not recuse

himself simply because he possesses some tangential relationship

to the proceedings.”          United States v. Cherry, 330 F.3d 658, 665

(4th Cir. 2003).        In this case, however, the district judge had

more than a “tangential” relationship.

      Our precedent establishes that the “matter in controversy”

includes more than the claims brought by DuPont.                         In In re

Rodgers, 537 F.2d 1196 (4th Cir. 1976), the criminal defendants

were charged with using illegal means to procure the passage of

a   racetrack   consolidation         bill      in   Maryland.    The    presiding

judge’s    former     law   firm     had   represented    a   separate   group   of

individuals     who    were    not    criminally       charged   but   engaged    in

similar lobbying efforts.             The criminal defendants thus argued

that the judge should recuse; as part of this argument, the

defendants argued that they were intending to have his former

law partner (and some of the clients) testify as to the means

they undertook to gain passage of the consolidation bill.                        The

Government opposed recusal, contending that the “matter” was not

the “matter in controversy” because it was not the “actual case

before the court.”          Id. at 1198.        Even accepting that reading of


      11
        The majority declines to address this issue, yet in the
companion case, uses its “supervisory powers” under 28 U.S.C. §
2106 to remand the case for further proceedings before another
district judge. See Trade Secrets Case at 15-16.



                                           58
the statute, we found recusal was required because “the actual

case before the court consists of more than the charges brought

by the government.       It also includes the defense asserted by the

accused.”     Id.     In that case, recusal was thus triggered because

the defendants’ proposed defense “in part at least, will consist

of   evidence    of   matters       in   which    the    judge’s      former    partner

served as a lawyer.”           Id.       See also Preston v. United States,

923 F.2d 731, 733-35 (9th Cir. 1991) (finding §455(b)(2) matter

in   controversy      requirement        satisfied      when   judge’s      former     law

partners represented a company that was not a party to the court

case but might be liable in an indemnification proceeding if the

plaintiffs prevailed in the underlying case).

      As Rodgers makes clear, Akzo is a matter in controversy in

this action.        Kolon’s defense to DuPont’s trade secrets claims

is that DuPont made public many of these secrets during the Akzo

litigation.       It cites to, including other materials, a letter

from DuPont’s counsel, McGuireWoods, stating that DuPont agreed

to “totally declassify all trial exhibit documents, all proposed

findings    of   fact    and       all   deposition      excerpts     and    summaries

submitted to the Court.”            (J.A. 12-1260 at 13347).             The district

court   excluded      this   evidence—an         exclusion     we   today      rule   was

reversible      error.       See    Trade    Secrets     Case    at    14-15.         This

evidence, so pertinent to Kolon’s defense, makes Akzo a matter

in controversy.

                                            59
      DuPont    contends—at          least    as    to     this       appeal—that   the

antitrust claims are too attenuated from Akzo to be the same

matter in controversy.           In reality, this litigation is all the

same action and the same case.                 Moreover, in my view, recusal

was required, at the very latest, by July 2011, prior to the

severance      of     the    trade    secret       claim       from    the   antitrust

counterclaim, which occurred on September 21, 2011.                          Thus, the

district court’s mandatory recusal in the trade secrets claims

likewise mandates recusal on the antitrust counterclaims brought

by Kolon.

                                         IV.

      For the foregoing reasons, I would vacate summary judgment

and   remand    for    new    proceedings      before      a    different     district

judge.   I therefore dissent.




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