Federal judge takes on toothy issue

By Bill Heltzel

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When even the president of the United States can be questioned about conflicts over financial interests, lesser public officials, such as Cathy Seibel, a U.S. District Court judge in White Plains, can’t be too careful.

Seibel alerted attorneys in December that she might have to disqualify herself in a class-action lawsuit over which she is presiding concerning consumer goods giant Colgate-Palmolive Co.

Seibel

The law allows, even requires, a judge to recuse herself in cases where her impartiality might reasonably be questioned, she has a financial interest in the controversy or she could benefit from the outcome of the proceedings.

In a 1982 case, for instance, a judge recused himself after he discovered that his wife owned stock in seven companies, out of 210,000, in an antitrust case.

In the current case, Lori Canale, of Danbury, claims that Colgate-Palmolive has made millions of dollars selling varieties of Colgate Optic White toothpaste “based on false hope.”

She bought a tube of the toothpaste at a CVS store in Thornwood in 2015.

She takes issue, for instance, with labeling that says the toothpaste “goes beyond surface stain removal to deeply whiten” teeth.

She cites dentists who contend that toothpastes with bleaches like hydrogen peroxide, the key ingredient in Colgate Optic White, remove only surface stains.

Canale sued for false advertising, deceptive practices and breach of warranty. Enough people have been fooled to pay extra for whitening power, she contends, to make the lawsuit worth more than $5 million.

So what conflict could stain Judge Seibel’s reputation for impartiality?

It turns out that she had bought four or five tubes of Colgate Optic White toothpaste at a Costco. That made her a potential member of the alleged class of customers.

If Seibel eventually ruled in favor of Canale and Colgate were required to reimburse customers 100 percent, she could recover $20, or even as much as $25.

Seibel asked the lawyers to weigh in on the issue. Only Colgate responded. Recusal is not necessary under the circumstances, Nathaniel J. Kritzer of Kirkland & Ellis wrote, if Seibel opted out of the potential class and waived any interests in the claim.

And so she did, in a 12-page opinion and order issued on Jan. 10.

The amount of money at stake is minimal, she wrote, “surely not enough to influence the judgment of a judge.”

Under the circumstances – Canale’s attorney expressing no opinion and Colgate’s attorney stating that recusal was unwarranted – “I find that no one could reasonably question my impartiality in presiding over this case.”

As to the accusations against Colgate, Canale’s story is “factually and legally incorrect,” Kritzer says in a court pleading. He has moved to dismiss the case.

He also asked Seibel to seal seven exhibits of  confidential communications between Colgate and the Federal Trade Commission concerning an ongoing FTC inquiry. She granted the motion.

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About the author

Bill Heltzel
Bill Heltzel has covered criminal justice, courts, government and sports – as a beat reporter and investigative reporter – for daily newspapers in Florida, Indiana, Ohio, and Pennsylvania. He worked for Bloomberg LP in training and sales. He joined The Business Journal in 2016.

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