S.C. Judge Denies Motion to Recuse Himself From T-Mobile SIM Swap Case

U.S. District Judge Richard Gergel for South Carolina in Charleston denied Samuel Whatley's motion that the judge disqualify himself and U.S. Magistrate Judge Mary Gordon Baker from his litigation against T-Mobile for “a disqualifying financial conflict of interest,” said Gergel’s signed order Monday (docket 2:23-cv-01339). The pro se plaintiff alleges that a T-Mobile employee unlawfully transferred his phone number to another unauthorized device and in so doing compromised his entire bank account (see 2404170005). T-Mobile has moved to compel Whatley’s Electronic Communications Privacy Act and Electronic Funds Transfer Act claims to arbitration (see 2404180021). Whatley alleged in his motion for recusal that one of the attorneys representing T-Mobile, Mitchell Willoughby of Willoughby and Hoefer, served as First Community chairman from 2009 to 2020 and that Vanguard Fiduciary Trust and Blackrock Investors were among First Community’s shareholders. He alleged that both judges disclosed on their annual judicial financial disclosure forms that they own interests in mutual funds managed by Vanguard and Blackrock, and that those ownership interests constitute “cognizable misconduct.” Canon 3C(1)(c) of the U.S. Code of Judicial Conduct provides that a judge shall disqualify himself or herself where the judge has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding, said Gergel’s order. But the circumstances present in Whatley’s litigation against T-Mobile don’t “remotely implicate this judicial canon,” it said. First, the judges assigned to Whatley’s litigation don’t own any financial interest in any entity that’s a party to his litigation, it said. Second, the financial interests of an attorney appearing before the court or any business in which that attorney may be affiliated “are not matters which fall within the provisions of Canon 3C(1)(c),” it said. Third, ownership in mutual funds doesn’t “constitute a financial interest which provides a basis for judicial disqualification,” it said.