I don’t gasp.

I’m not a gasper.

But if I were to gasp, it probably would have been in response to this news.

The Defendant/Appellee in the huge Lindenbaum appeal to the Sixth Circuit Court of Appeals is seeking recusal of one of the three judges assigned to the panel overseeing the appeal.

According to the motion Judge Stranch–who vocally advocated against Defendant’s position during oral argument— is married to an attorney who works at a firm that brings TCPA cases within the Sixth Circuit. Apparently the judge’s son and daughter also work at same firm.

While it is unclear from the filing whether Judge Stranch’s relatives directly work on such cases the appearance that Judge Stranch might be profiting through TCPA revenue while determining the fate of the TCPA is sufficient that disqualification of the Judge is “”mandatory” in the Defendant’s view.

Here’s the Defendant’s intro:

Judge Stranch should recuse herself from this Appeal pursuant to 28 U.S.C. § 455(a) because she and close family members would directly benefit from a reversal of the District Court, a circumstance that requires recusal. Judge Stranch’s husband and son are partners (and her daughter is an attorney) in a law firm—Branstetter Stranch—that currently represents plaintiffs, including within the Sixth Circuit, seeking to impose class action liability under the TCPA’s Robocall Restriction (47 U.S.C. § 227(b)(1)(A)(iii)). Appellee here lodges a constitutional challenge that would render the Robocall Restriction unenforceable for at least a five-year period. A ruling in Appellee’s favor would impact current Branstetter Stranch litigation, as well as future TCPA cases they may take, which the firm is actively and currently soliciting via its website. In rare circumstances like these, where a judge’s impartiality might reasonably be questioned by a layperson observer, disqualification is mandatory.

Full motion here: Motion to Disqualify

Seeking recusal of an empaneled appellate judge is always a risky enterprise–and doing so after oral argument is almost unheard of (at least, I’ve never heard of it.) Indeed Defendant’s counsel notes that no one in their entire law firm had ever filed such a motion before. And the fact that Defendant is taking aim at Judge Stranch after she seemingly tipped her hand at oral argument is.. [insert word for “seems crazy but might be brilliant but you really can’t tell” here].

Then again, if–and this is a mighty big if in my view–the Judge really does stand to personally benefit financially from a ruling he or she is set to make then seeking disqualification (even post oral argument) might make sense. I mean, this fact set–if true– does sort of make you cringe (but not gasp):

• Branstetter Stranch has handled and is currently handling significant and lucrative class action litigation involving the TCPA’s Robocall Restriction, including advertising on its web site multi-million-dollar TCPA judgments

• Branstetter Stranch is actively soliciting TCPA claims by advertising its prior success in this area on its website

• Branstetter Stranch is located primarily in the Sixth Circuit, and the decision of this panel will be binding there, where the firm has active TCPA litigation under the Robocall Restriction;

• Judge Stranch’s husband and son currently have ownership interests in Branstetter Stranch, and her daughter currently practices at the firm;

• Judge’s Stranch’s father, Cecil Branstetter, was the founder of Branstetter Stranch, Judge Stranch formerly worked there, and the firm continues to bear her name, compounding the appearance ofimpropriety

So I get it, I guess. But this still this feels like quite the gamble.

To be absolutely clear: I’m not taking a position on whether the motion has merit, whether it should or should not have been brought or whether it should or should not be granted. Thankfully as a legal blogger I don’t (yet) get to make those decisions. But I do see where Defendant is coming from, even where others might call this a breathtaking late-stage gambit of the highest order.

To be sure, if any case justifies extra special care it is this one. Again, this case will literally impact trillions of dollars in statutory damages and critically important First Amendment rights (from a certain perspective it will determine whether the First Amendment is even still a thing anymore.)

So that makes the Defendant’s request for disqualification among the highest stakes bets in the highest stakes game of poker you can imagine.

Will it pay off?

We’ll have to wait and see.

But I’m sweating a little, and I’m not even involved here.