Slammed for failed bids to oust judge in Boeing 737 MAX case, lawyer has no regrets

(Reuters) – Recusal motions are always a risky bet. No judges, no matter how fair-minded and thick-skinned, welcome the suggestion that they cannot decide a case fairly or that their impartiality might reasonably be questioned.

Plaintiffs lawyer Patrick Jones of Chicago’s PMJ law firm took that bet twice in one case – and lost both times.

Jones represents a prospective class of international pilots who claim that The Boeing Co is responsible for the money they spent on training to fly 737 MAX jets and for the wages they lost when the jets were grounded after two fatal crashes.

He brought two different motions calling on US District Judge Steven Seeger of Chicago to step aside. The first one, filed in 2020, was premised on Seeger’s former partnership at Kirkland & Ellis, which is defending Boeing in the pilots’ case. The second motionfiled last month, was based on Seeger’s tenure at the US Securities and Exchange Commission, which began investigating Boeing shortly before Seeger left for the bench.

The judge denied both bids, with some sharp words for Jones and his co-counsel. “The two motions pull in opposite directions,” Seeger wrote in an order on Monday. “Is this court biased in favor of Boeing, because it used to work at defense counsel’s firm? Or is this court biased against Boeing, because it used to work for an agency that investigated and charged Boeing? This court can’t help but think that plaintiffs are playing a game of heads−I−win, tails−you−lose.”

Recusal, Seeger said, “is not a game, and this court will not play along.”

You might think a lawyer would be chastened by that kind of admonishment. Not Jones. In a phone interview on Tuesday, he told me he has no regrets.

“We had to rattle [Seeger’s] cage,” he said.

Jones said that before this litigation, he had never filed a single recusal motion, let alone two in one case. But he maintains that the pilots’ two motions were both warranted.

And the second bid, he said, served an important strategic purpose. In fact, you could make a decent argument that the second motion advanced Jones’ case, despite Seeger’s harsh words about gamesmanship.

Seeger did not respond to a detailed phone message I left with a clerk. Boeing counsel Michael Slade of Kirkland also did not respond to my query. Boeing has said it is engaged in an effort “to responsibly resolve outstanding legal matters related to the 737 MAX accidents,” but has argued that the pilots’ case is meritless. The company argues that the international pilots suffered no direct injury from 737 MAX jets and, as employees of Boeing customers they are too far removed from any relationship with the company to hold Boeing liable.

Seeger joined the Chicago federal bench in 2019, after his aforementioned jobs at Kirkland and the SEC. The pilots’ case was one of the first to be transferred to his docket.

Jones told me he quickly sensed that Seeger was skeptical about the pilots’ claims. At the first status conference he oversaw, for instance, Seeger questioned whether the pilots had standing to sue in federal court based on a complaint that emphasized their fear of flying unsafe jets. (Jones called the comments “very snarky and unprofessional.”)

Jones said he filed the first recusal motion after he realized that Boeing’s lead lawyer had been a partner when Seeger was an associate at Kirkland. “There was no way he would trust our arguments more than Mike Slade’s arguments,” Jones said.

Kirkland argue that the timing of the motion, which followed Seeger’s ruling that the pilots could not proceed anonymously, was suspicious. The firm also said that a search of its old records turned up no evidence that Seeger ever billed Boeing before departing the firm in 2010. No “reasonable and informed person,” Kirkland argued, could question Seeger’s fairness based on that record.

Seeger denied the motion from the bench in March 2020, highlighting the pledge he took when he was named a judge. “I take that oath incredibly seriously, more seriously than you can probably know,” he said. “If you want me to rule in your favor, here’s all you’ve got to do: Make a better argument than the other side, convince me that the law is on your side, the facts are on your side, and I’m going to rule in your favor. I really will.”

That hearing took place several days after Boeing filed its motion to dismiss the pilots’ case on March 6,2020. The briefing on that motion concluded in July 2020.

For the next two years, nothing substantive happened in the case, according to the docket. Jones said he and his clients were convinced Seeger would grant Boeing’s dismissal motion, since the judge had already signaled doubts about the pilots’ theory. He told me he was sure that he would eventually have to take the pilots’ case to the 7th US Circuit Court of Appeals.

But he and his clients, Jones said, were frustrated by the two-year wait for a ruling. “We had to at least push him to rule so we could appeal,” Jones told me.

That was at least part of the motivation, he said, for the pilots’ second recusal motion, which Jones filed on Oct. 19, about a month after the SEC announced a $200 million settlement with Boeing. “It is now clear that the court is inextricably intertwined with all sides of this dispute,” the motion said. “Beyond the obvious appearance of impropriety created by Judge Seeger’s prior experience at the law firm now representing the defendant, Judge Seeger [has] failed to acknowledge that his experience at the SEC immediately before becoming a judge further [warrants] his recusal.”

If the point of the second recusal motion was to prod Seeger to rule on the Boeing dismissal motion, Jones got what he wanted. On Monday – less than two weeks after Jones filed the motion – Seeger was finally ruled on Boeing’s dismissal motion. As Jones expected, he tossed the pilots’ case, holding that Boeing was too far removed from any injury the pilots experienced. Jones said he will appeal.

When you’ve got almost nothing to lose, as Jones believed he did in the Boeing case, even a bad bet isn’t much of risk.

Read more:

Boeing to pay $200 million to settle US charges it misled investors about 737 MAX

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