IN RE: CBI HOLDING CO.

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United States Court of Appeals,Second Circuit.

IN RE: CBI HOLDING CO., INC., Debtor, Bankruptcy Services, Inc., Plaintiff-Appellant-Cross-Appellee, v. Ernst & Young, Ernst & Young LLP, Defendants-Appellees-Cross-Appellants.

Docket Nos. 04-5972-BK(L), 04-6300-BK(XAP).

Decided: September 26, 2005

Before:  WINTER, Circuit Judge. Jay G. Strum, (Arthur Steinberg, Robert B. Bernstein, Elisabeth C. Kahn on the brief), Kaye Scholer L.L.P., New York, New York for Plaintiff-Appellant-Cross-Appellee. Andrew L. Frey, Mayer, Brown, Rowe & Maw L.L.P. (Richard F. Broude, Richard F. Broude, P.C., Irwin J. Sugarman and Harry S. Davis, Schulte Roth & Zabel L.L.P., Sanford J. Weisburst, Mayer, Brown, Rowe & Maw L.L.P., on the brief), New York, New York for Defendants-Appellees-Cross-Appellants.

I read the following in open court just before the oral argument in this matter.

For the record, I had a conversation in the late spring of 2000 with a member of one of the law firms representing a party in this matter.   The conversation concerned my intentions to continue serving as a federal judge after going on senior status in the fall of that year.   I was informed that if I was considering retirement, the firm would be interested in discussing employment.   The discussion was in extremely general terms, and no negotiations involving any particular status within the firm or compensation took place.   Several days later I informed the firm that I expected to continue serving as a federal judge.   There has been no further contact.

The relevant opinion of the United States Judicial Conference's Committee on Codes of Conduct, as stated in its compendium of selected opinions, states:

It is permissible for a judge who is considering leaving the bench, to explore future employment possibilities with law firms, on a private, dignified, basis.   The judge must, of course, recuse from all cases handled by any such law firm during any such negotiations, and for a reasonable period after the negotiations terminate (the exact length of time depending upon the nature of the discussions, the reasons for termination, etc.).

Judicial Conference of the United States, Committee on Code of Conduct for United States Judges, Compendium of Selected Opinions, § 2.5 (2003).

Applying this standard, I believe it clear that I am not recused in this matter.   Five years have passed, and discussions were of a very general nature.   I have therefore decided that I am not recused.

WINTER, Circuit Judge.