April 3, 2014 4th Circuit published opinions

Kolon Industries Incorporated v E.I. DuPont Nemours & Company

DuPont sued Kolon for trade secret violations. Kolon countersued DuPont for antitrust violations. DuPont won its trade secret case at trail and the antitrust claim at summary judgment. Kolon moved to disqualify the district court judge, but, the motion was denied. The panel, 2-1 affirmed. The majority held that all motions to disqualify under 28 USC 455 are subject to an extra textual time limitation in order to avert gamesmanship. Here, Kolon waited over a year after learning of the possible grounds for disqualification before filing their motion which came after the verdict in the trade secrets trial. The majority upheld summary judgment as to alleged monopolization as Kolon failed to demonstrate either that DuPont had more than 70% of the market or that the exclusive contracts were with enough of eth market to prevent entry. The majority upheld summary judgment as to attempted monopolization holding that Kolon failed to prove possible monopolization given DuPont’s market share fell and it failed to keep out a major competitor. The dissent argued that 455(b) motions are not subject to time limits and the district judge here was obligated to independently disqualify himself and not wait for the parties to take up the matter. On the merits of the motion, the dissent argued recusal was required as the trial judge had represented DuPont in a prior trade secret case relied upon by Kolon as defense to claim against it.

T-Mobile Northeast, LLC v Louden County Board of Supervisors

T-Mobile applied for permits to site two cell phone towers. The Board denied both one based in part on the effects of radio radiation den the other without that basis. The district court ordered the permit for the tower with the radiation ground be granted and affirmed the other denial. The panel, 2-1 as to judgment, affirmed. The majority held that the radiation ground was barred by 47 USC 332(c) and remanding here would allow the board to engage in subterfuge by readopting other lawful grounds. The panel affirmed the denial of the other permit holding Board’s decision was supported by substantial evidence namely the concerns of the community about the aesthetic impact of the disguised tower and there were alternative sites which could support the provision of services. On judge also argued that there may have been an effective denial of coverage as the current expectation is 100% reliability and operations within buildings. One judge dissented in part arguing that the improper radiation ground did not affect the denial of separate permit which was also required to allow the towers to be built and thus the district court should have been reversed as to that tower.

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