A prescription drug company says a federal appeals judge should have recused herself from a case because her husband and two of her children are attorneys at a law firm representing some of the plaintiffs.
OptumRx filed its petition for recusal last month in the U.S. Sixth Circuit Court of Appeals. OptumRx is a pharmacy benefit manager that, among other things, offers pharmacy delivery services and negotiates with manufacturers on behalf of clients to lower drug costs.
The case in question is part of the national opioid multidistrict litigation in the Northern District of Ohio under Judge Dan Polster.
On October 22, a three-judge panel of Sixth Circuit Judges denied OptumRx’s petition for a writ of mandamus to order the district court to disqualify Motley Rice and its attorneys from representing plaintiffs in all pending and future cases against OptumRx.
In its recusal petition, OptumRx says it respectfully disagrees with the order denying its request, but it filed the petition with the Sixth Circuit “to raise a more fundamental issue.”
“Judge (Jane B.) Stranch should have recused herself because of a conflict of interest,” the petition states. “Judge Stranch’s husband and two of her children are attorneys at a law firm representing plaintiffs against OptumRx in the very set of cases from which the mandamus petition arose.
“Accordingly, Judge Stranch should be recused from this case, and OptumRx’s mandamus petition should be taken up anew by a reconstituted panel. Alternatively, OptumRx respectfully seeks rehearing en banc.”
Stranch’s husband James G. Stranch III is a Nashville attorney who is a partner at Stranch Jennings & Garvey. Two of the couple’s four children – J. Gerard Stranch IV and K. Grace Stranch – also are attorneys at the firm.
In the petition, OptumRx says it didn’t learn Stranch was on the three-judge panel assigned to the case until the panel issued its order October 22. That order was the first entry in the case docket that identified the assigned panel.
The company says Judge Stranch must be recused because of her family’s involvement and financial interests in the underlying litigation.
“The firm’s website has a landing page dedicated to its involvement in opioid litigation,” the petition states. “The Stranch firm represents plaintiffs in at least eight opioid-related cases against OptumRx – including six in the multidistrict litigation (MDL) underlying OptumRx’s mandamus petition and two that involve similar claims outside of the MDL.
Judge Stranch was nominated to the Sixth Circuit by President Barack Obama. She assumed office in 2010.
“In the judicial nominee questionnaire that Judge Stranch completed when she was nominated to the Sixth Circuit, she acknowledged that ‘automatic disqualifying relationships would include my family members who are attorneys,’” OptumRx’s petition states, adding she previously practiced at Branstetter Stranch & Jennings, which is predecessor firm to Stranch Jennings & Garvey.
OptumRx says Judge Stranch’s relationship with the litigation through her family and former law firm demonstrate both an actual conflict of interest and the appearance of impropriety.
It says the three-judge panel that included Judge Stranch ruled that granting the OptumRx petition to disqualify Motley Rice “would affect the opioid MDL’s ‘leadership structure’ and could ‘create a huge burden for the remaining lead counsel and cause massive upheaval in the organization of the MDL,’” the petition states. “That reasoning implicates potential burdens on (and financial prospects for) Judge Stranch’s family members because their firm represents plaintiffs in the opioid MDL, including plaintiffs suing OptumRx.”
This isn’t the first time Judge Stranch has been in this situation.
In 2021, a company requested she be recused from a Telephone Consumer Protection Act case because her husband and children’s firm had pending TCPA cases. The firm was not involved in the specific case. Stranch refused to recuse herself, and the company’s attempt to compel her recusal was unsuccessful.
Earlier this year, Stranch announced plans to step down from active service on the bench to take senior status. The move would have allowed President Joe Biden to appoint her replacement. But she didn’t formally step down when Biden named her replacement, and she still is on a list of future judicial vacancies operated by the administrative office of the judiciary.
But this week, Fourth Circuit Judge James Wynn, who also was appointed by Obama, said he was reversing his plans to take senior status. Some have speculated Stranch could follow the lead of Wynn and two U.S. District Court judges who have backtracked as well.
Senate Minority Leader Mitch McConnell has suggested Wynn would face ethics complaints and requests for recusals in cases involving the incoming Trump administration if he does remain on the bench.
In a floor speech earlier this month, McConnell warned Wynn and Stranch about taking such actions.
In its appeal, OptumRx is being represented by Brian D. Boone, William H. Jordan and D. Andrew Hatchett of Alston & Bird.
U.S. Court of Appeals for the Sixth Circuit case number 24-3396