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DIVERSIFOODS, INC. v. DIVERSIFOODS

July 27, 1984

DIVERSIFOODS, INC., PLAINTIFF,
v.
DIVERSIFOODS, INC., DEFENDANT.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

This case is before the court on the plaintiff's motion to recuse. The motion is based on the fact that Judge Getzendanner's husband, Stanton A. Kessler, is a member of the firm of Mayer, Brown & Platt and the firm, although not of record in this case, presently represents the defendant in other matters, and, prior to the filing of this lawsuit, had some connection with the events underlying this litigation.*fn1 For the reasons stated, the motion is denied.

On January 27, 1984, plaintiff's counsel, Eugene F. Friedman, wrote a letter to the defendant complaining of the fact that the defendant had begun to use the same corporate name as plaintiff's, "Diversifoods, Inc." No response was received. On February 27, 1984, another letter was sent, this time to the attention of Charles J. Averbook, the in-house general counsel of the defendant. Averbook responded and informed Friedman that the matter was being turned over to the defendant's outside trademark counsel, Allegretti, Newitt, Witcoff & McAndrews. After waiting several weeks, Friedman called the Allegretti firm and spoke to Denis Berntsen. Berntsen indicated that he had the matter but had not yet acted on it. After several more phone calls, Berntsen told Friedman that Percy Angelo of Mayer, Brown & Platt would handle the matter.

Friedman then called Angelo and was told that she had written to him in response to his demand that the defendant cease using the name Diversifoods and that, should he have any further questions, he should contact her. Angelo's letter of March 21, 1984, stated that because the parties were in different businesses and the defendant did not use its corporate name as a trademark, "we do not agree with your assertion that there is a likelihood of confusion between [the parties]."

On April 20, 1984, Friedman filed the complaint in this action and the case was assigned to Judge Getzendanner. At that time, Friedman knew that Judge Getzendanner formerly had been a partner at Mayer, Brown & Platt, and, apparently anticipating that Mayer, Brown & Platt would be representing the defendant in the litigation, he called Judge Getzendanner's chambers regarding the court's recusal policy on Mayer, Brown & Platt matters. Plaintiff's motion states that Friedman was told "that Judge Getzendanner had the absolute policy of always recusing herself from any case in which her prior law firm had a role."*fn2 (Emergency Motion to Recuse at 4).

However, Mayer, Brown & Platt did not appear for the defendant. At the first court appearance on April 27, 1984, George Newitt and Seymour Rothstein of the Allegretti firm appeared for the defendant. Nothing was said by Friedman or the defendant's lawyers about Mayer, Brown & Platt's prior connection with the underlying controversy or its present representation of the defendant in any matter.

The plaintiff attempts to portray as mysterious the defendant's move from the Allegretti firm to Mayer, Brown & Platt, and back to Allegretti. The decisions to employ the various attorneys were made by Averbook. Averbook has been deposed and his affidavit has been filed. In his affidavit Averbook states that after the lawsuit was filed, he promptly contacted Rothstein and engaged the Allegretti firm to represent the defendant in the litigation. Averbook also states that he employs numerous lawyers in Chicago and other parts of the country to handle matters for the defendant. He hires outside lawyers based on his perception of their skill and experience in a particular kind of matter. Those lawyers, and the matters being handled for the defendant, are described in the affidavit. It clearly appears that Mayer, Brown & Platt is one of many firms presently representing the defendant. At his deposition, Averbook stated that Mayer, Brown & Platt "represents us generally in general corporate matters." In his affidavit, Averbook states:

  When we have a franchise litigation problem in
  Chicago, or if I am concerned that a particular
  lawsuit outside of Chicago may be a case of major
  corporate implication, I turn to Lee Abrams at
  Mayer, Brown & Platt. I also call Mr. Abrams on
  occasion when we have an unusual situation that I
  am not sure what to do with.

Averbook explains in his affidavit that when the defendant received Friedman's first letter, Averbook thought of the case as a trademark case and talked to George Newitt about it. However, he did not formally employ Newitt. When the second letter from Friedman was received, Averbook states: "I decided to mention the matter to Lee Abrams at Mayer, Brown & Platt, since, on reflection, I was not sure this was really a trademark case, but rather a `corporate name' case." When the complaint was received, Averbook concluded that it was a classic trademark case and he decided to employ the Allegretti firm as litigation counsel.

Averbook states that at the time he made the decision, he did not know of Judge Getzendanner's connection with Mayer, Brown & Platt. The defendant was not a client of Mayer, Brown & Platt when Judge Getzendanner was at the firm. He also notes his prior relationships with the lawyers from the Allegretti firm. George Newitt had represented Chart House, now a division of the defendant, for fifteen years in trademark matters, and, when Averbook was general counsel for STP Corporation, Seymour Rothstein handled STP's trademark matters. On this record, Averbook's decision with respect to counsel had nothing to do with the fact that the case had been assigned to this court.

At the first court appearance in the case on April 27, 1984, the plaintiff presented its motion for temporary restraining order and preliminary injunction to prevent the defendant from using the name "Diversifoods" at a convention in Las Vegas which was to begin May 17, 1984. The court set the hearing for May 16, 1984 and ordered expedited discovery. The court also scheduled a pre-hearing conference in chambers on May 11, 1984. At that conference the court concluded, on the basis of the available facts, the defendant's adoption of the name "Diversifoods, Inc. — The Restaurant Company," and the parties' inability to conclude the necessary discovery before the scheduled hearing, that no hearing on the motion for preliminary injunction was necessary and that the defendant could attend the convention in Las Vegas. It was also agreed that a hearing most probably would never be necessary because once discovery was concluded, the facts very likely would be undisputed and cross-motions for summary judgment would dispose of the case. The parties were instructed to continue the expedited discovery and to file cross-motions for summary judgment as soon as possible.

Neither during the May 11th conference, nor at any prior time, was there any mention to the court of Mayer, Brown & Platt's prior connection with this controversy and no mention of the fact that Mayer, Brown & Platt at any time represented the defendant. Friedman's failure to discuss Mayer, Brown & Platt's role is surprising because, according to his motion, Friedman had been told that Judge Getzendanner's policy was to recuse in any matter in which Mayer, Brown & Platt "had a role." Also, Friedman obviously thought that Averbook's decision to hire the Allegretti firm instead of Mayer, Brown & Platt was important because Friedman had examined Averbook at his deposition on May 4th on his decision to switch law firms after the case was filed. Based on these facts, it would appear that Friedman's silence was deliberate.

On Monday, May 14, 1984, the first business day following the May 11th conference, Friedman filed a "Notice of Emergency Motion and Emergency Motion to Recuse the Honorable Susan Getzendanner." The motion was presented on May 14, 1984 to the Emergency Judge who merely entered and continued it before Judge Getzendanner on May 17. (The Judicial Conference was held in Indianapolis May 14-16 and the parties knew Judge Getzendanner planned to attend.) The motion was based solely on Judge Getzendanner's former partnership relationship with Mayer, Brown & Platt and the firm's connection with the underlying controversy through Angelo's letter to Friedman. There was no mention in the motion of Stanton A. Kessler and his marital relationship to Judge Getzendanner.

On May 17, the motion was presented to Judge Getzendanner and the defendant opposed it on the ground that it was filed long after the facts recited in the motion were known to Friedman and just after the court had ruled unfavorably to the plaintiff on the motion for preliminary injunction. Friedman then orally stated that he was now also relying on the fact that Judge Getzendanner was married to a partner at Mayer, Brown & Platt, a fact which he claimed he had discovered on May 15, 1984, when he read the court's Financial Disclosure Report. The Report had been filed with the Clerk of the Court on May 14, 1984.*fn3 Friedman stated that prior to reading the Report he did not know that Judge Getzendanner was married to a partner at Mayer, Brown & Platt. Although this claim is doubted by the defendant's lawyers, because Friedman was at the 1984 Patent Lawyers' Judicial Dinner ...


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