Judicial Conflict of Interest a Concern in Berkeley ‘Cell Phone Right to Know’ Case Pending in Ninth Circuit Court of Appeals

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September 27, 2016

BERKELEY, Calif.–(BUSINESS WIRE)--A possible conflict of interest in the family background of one of three judges in a court case in the Ninth Circuit Court of Appeals related to Berkeley, CA’s ‘Cell Phone Right to Know’ ordinance is an urgent concern.

According to Ellen Marks of the California Brain Tumor Association, “Judge Michelle Friedland’s possible links to the wireless industry should have been disclosed in a case relating to wireless risks, and the judge recused, given the potential for lack of impartiality in matters related to the wireless industry.”

In a current appeal by CTIA in the Ninth Circuit Court of Appeals in San Francisco, a 3-judge panel heard from lawyers for CTIA and the City of Berkeley on September 13, 2016, and a judicial decision is pending. (CTIA-The Wireless Association v. City of Berkeley et al., case number 16-15141)

Lloyd Morgan, Senior Research Fellow at Environmental Health Trust and citizen of the City of Berkeley, who attended the recent hearing, says, “We were perplexed about Judge Friedland’s consistent support of the testimony of the attorney for the CTIA-The Wireless Industry Association, Theodore Olson of Gibson, Dunn and Crutcher. After witnessing her body language at the hearing, numerous parties researched the Judge’s associations and discovered potential conflicts of interest that need to be brought to the Court’s attention.”

The Berkeley ordinance (No. 7,404-N.S.) in question was unanimously approved by the Berkeley City Council May 12, 2015. It sustained an appeal by the CTIA on September 21, 2015 (http://bit.ly/CTIABerkeleyruling09212015), paving the way for implementation of the approved notices in retailers on March 21, 2016. The notices now required at the point of sale caution that use of cell phones close to the body in certain circumstances may exceed the federal guidelines for exposure to RF radiation, language already contained in cell phone manuals.

Concern about Judge Friedland’s possible conflicts of interest are based on:

  • Judge Friedland’s husband, Daniel Kelly, is currently a Senior DSP Engineer with Tarana Wireless, Inc. in San Jose, CA (https://www.taranawireless.com/), which designs equipment needed for the coming 5G rollout. He was earlier employed at other technology companies, including Cisco Systems, a member of CTIA, where he was a “wireless engineer.”
  • Dr. Judd Uddenfeldt, past CTO of Ericsson and Sony Mobile, recently joined the Board of Directors of Tarana Wireless where Judge Friedland’s husband is employed.
  • AT&T is a major investor in Tarana, and AT&T is a member of CTIA.
  • It is possible Judge Friedland’s husband may have been granted stock options in Tarana Wireless, as is common in technology growth companies.
  • When Judge Friedland was nominated for judge she had recommendation letters from Cisco, Facebook, Google and Edison.

Max Anderson of the Berkeley City Council says, “It is appalling to learn that a judge in this case may have possible wireless industry conflicts of interest. It is especially important this be investigated given Judge Friedland’s husband is a key employee of a firm linked to several major players in the trillion dollar wireless sector.”

Media should contact Molly C. Dwyer, Clerk of Court at 415-355-8800 to request comment on the possible effects of these conflicts on Judge Friedland’s apparent bias during the hearing September 13, 2016 and on her vote.

A log of developments on the Berkeley ‘Cell Phone Right to Know’ ordinance can be viewed here: http://www.saferemr.com/2014/11/berkeley-cell-phone-right-to-know.html

The City of Berkeley is being represented pro bono by Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School. Formerly, Lessig was a Professor at Stanford Law School, where he founded the school’s Center for Internet and Society, and has been named one of Scientific American’s Top 50 Visionaries.

http://www.lessig.org/about/. The CTIA Wireless Industry Association is represented by Theodore Olson, of Gibson, Dunn and Crutcher.

Contacts

California Brain Tumor Association
Ellen Marks, 925-285-5437
elliekmarks@gmail.com

EHT maintains a webpage dedicated to this Ordinance at https://ehtrust.org/policy/the-berkeley-cell-phone-right-to-know-ordinance/

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