Bigger. Better. Bolder. Inman Connect is heading to San Diego. Join thousands of real estate pros, connect with the power of the Inman Community, and gain insights from hundreds of leading minds shaping the industry. If you’re ready to grow your business and invest in yourself, this is where you need to be. Go BIG in San Diego!
The judge who presided over the Sitzer | Burnett trial and is overseeing another ongoing commission lawsuit is facing mounting pressure to recuse himself from a case after the parent of Berkshire Hathaway HomeServices alleged he had a conflict of interest in the case.
Berkshire Hathaway Energy was the second defendant to call for the recusal of Judge Stephen R. Bough, who is overseeing the so-called copycat commission case known as Gibson in a Missouri federal court.
The demand last week by BHHS, a subsidiary of Berkshire Hathaway Energy, followed one made by Hanna Holdings. Hanna Holdings pointed to donations made by attorneys for the plaintiffs in the case to Bough’s wife’s previous city council campaigns as a disqualifying conflict of interest.
TAKE THE INMAN INTEL INDEX SURVEY FOR MARCH
In its filing, Berkshire Hathaway Energy, a subsidiary of Warren Buffett’s larger conglomerate, made a motion to join Hanna’s request that Bough recuse himself.
Hanna Holdings has also formally asked the court to transfer the case from the Western District of Missouri to the Western District of Pennsylvania, Hanna’s home state, and said it received a favorable ruling.
Hanna attorneys said in a filing last week that the Eighth Circuit Court of Appeals ordered Bough to address its motion to transfer the case to Pennsylvania.
In response to Hanna’s legal positioning, the attorneys for the Gibson homeseller plaintiffs pushed back against the recusal demand, noting that Bough has presided over the case and the similar Sitzer | Burnett case for years.
“Recusal now would reward Hanna’s gamesmanship and attempt at judge shopping. It would deprive the parties and the judiciary of the Court’s expertise gained after more than five years of intense litigation,” the attorneys wrote. “And it would mean that no judge’s spouse could ever run for office. That is not (and should not be) the law.”
The attorneys also pointed out that attorneys for the law firm representing Hanna Holdings — Shook, Hardy & Bacon — also made donations to Bough’s wife’s two city council campaigns in 2019 and 2023.
“Hanna itself knew or should have known of the contributions – all a matter of public record and some made by its own lawyers – but never raised any claim of impropriety,” the plaintiffs’ attorneys wrote. “Then Hanna grew frustrated with some of the Court’s rulings and everything changed.”
Bough recused himself for the same issue in an unrelated case in Missouri. In that case, the gun manufacturer Sig Sauer, a defendant, demanded Bough recuse himself as a result of Dameron’s donations to Andrea Bough. Judge Stephen Bough recused himself three weeks later, and the case was transferred to another judge on Oct. 16, 2024.
Hanna Holdings directed questions about the legal tit-for-tat to David Gringer, one of its lead attorneys in the case and an attorney with Wilmer Cutler Pickering Hale & Dorr.
“The only people who have engaged in judge shopping in this case are the plaintiffs who literally selected Judge Bough to hear this case and didn’t disclose to Howard Hanna or anyone else the existence of what the court described as a serious conflict,” Gringer told Inman on Monday. “We filed our motion to recuse when we learned of the conflict.”
“Our argument is not intended to impugn anyone’s credibility,” Gringer added. “It reflects the existence of a conflict that the court has itself recognized.”
Hanna Holdings must file a reply brief in response to the plaintiffs’ opposition to Bough’s recusal. Gringer said he expects Bough to make his decision regarding recusal before a decision on Hanna’s request to transfer the case to Pennsylvania.
