I was reading the Securities Docket daily update this morning and came across a story that felt both modern and inevitable. Counsel for Elon Musk and Tesla are reportedly seeking to disqualify Delaware Chancellor Kathaleen McCormick after her LinkedIn account appeared to “like” or “support” a post celebrating Musk’s recent legal defeat in a separate California matter.
Interestingly… Securities Docket ran a poll on the issue. The results were decisive. Approximately 85% of respondents said the judge should recuse, while only 15% disagreed.
I understand the instinct behind that result. Judges are expected to operate above the noise, and even a small digital signal can raise legitimate concerns about impartiality. That said, when you step into the actual doctrine governing judicial recusal, the analysis becomes more disciplined, and the likely outcome becomes clearer. […]
Where This Likely Lands
Looking across Delaware precedent, federal doctrine, and how courts have treated comparable situations, the most likely outcome is that recusal is denied.
The court may address the issue directly, acknowledge that the social media interaction was ill-advised, and clarify the absence of any bias affecting the pending matters. That would be consistent with how courts have handled borderline appearance issues that do not rise to the level of disqualifying partiality.
A different result would likely require additional facts. Evidence of intentional endorsement, repeated conduct reflecting hostility toward a party, private communications, or some closer nexus between the online activity and the issues before the court could change the analysis. On the current record, that showing does not appear to be present.
Source: A LinkedIn “Like,” Judicial Recusal, and the Limits of Appearance — Anderson Insights
Securities and Exchange Commission Chair Gary Gensler has no plans to recuse himself from decisions related to cryptocurrencies, despite accusations of bias from the industry. “I am well aware of my ethical responsibilities,” Gensler told reporters at a Wednesday press conference. “I’m fully compliant.” Source: SEC Chair Gensler dismisses industry calls for recusal on crypto decisions | Morningstar
White is in the midst of weighing candidates to head the Public Company Accounting Oversight Board, a little-known watchdog whose chairman makes more than $670,000 a year and has great sway over the industry. The Center for Effective Government, an advocacy group, said White should step aside because her husband, John White, sits on an official advisory group to the…
… In the nearly two years since Ms. White took over the agency, she has had to recuse herself from more than four dozen enforcement investigations, the interviews and records show, sometimes delaying settlements and opening the door, in at least one case, to a lighter punishment. She Runs S.E.C. He’s a Lawyer. Recusals and Headaches Ensue. – NYTimes.com
Andrew Ceresney was picked as the Securities and Exchange Commission’s new co-chief of enforcement partly because of his experience defending Wall Street in government investigations. Now, the agency has to work through the conflicts created by his private-sector past. Mr. Ceresney, 41 years old, has named 25 of his former clients, both companies and individuals, at law firm Debevoise &…
How significant will Mary Jo White’s conflicts-of-interest be?