Have Questions? Contact Us.
Since its inception, NYCLA has been at the forefront of most legal debates in the country. We have provided legal education for more than 40 years.
Completed_The United States District Court for the Southern District of New York Part 1
The United States District Court for the Southern District of New York:
A Retrospective (1990-2000)
The New York County Lawyers’ Association
Committee On The Federal Courts
December 2002
This report was approved by the Board of Directors of the New York
County Lawyers’ Association at its regular meeting on January 13, 2003.
Copyright December 2002
New York County Lawyers’ Association
14 Vesey Street, New York, NY 10007
phone: (212) 267-6646; fax: (212) 406-9252
Additional copies may be obtained on-line at the NYCLA website:
|
TABLE OF CONTENTS |
|
|
1 |
|
|
2 |
|
|
7 |
|
|
UNITED STATES ATTORNEY MARY JO WHITE (1993-2001): FIRST WOMAN TO LEAD THE OFFICE |
7 |
|
8 |
|
|
8 |
|
|
10 |
|
|
11 |
|
|
11 |
|
|
12 |
|
|
12 |
|
|
13 |
|
|
15 |
|
|
17 |
|
|
17 |
|
|
Internet Law |
20 |
|
21 |
|
|
Terrorism |
22 |
|
24 |
|
|
31 |
The courts are what the judges make them, and the District Court in New York, from the time of James Duane, Washington’s first appointment, has had a special distinction by reason of the outstanding abilities of the men [and women] who have been called to its service.
Hon. Charles Evans Hughes, Chief Justice of the United States, November 3, 1939.
Introduction
On November 3, 1989, the United States District Court for the Southern District of New York celebrated its 200th anniversary. The “Mother Court,” as the Southern District is colloquially known, is the oldest federal court in the United States, pre-dating by several weeks the organization of the United States Supreme Court.
Yet, as Chief Justice Hughes aptly observed, the Southern District is a court of unparalleled distinction not because it is the nation’s oldest federal court, or because it routinely hears the country’s most important and complex cases, but rather because of the exceptional judges who have served on the court from its inception. Since its founding in 1789, a total of 131 judges have served on the Southern District bench. Although more than a few of these judges—Samuel R. Betts, Charles M. Hough, Learned Hand and Edward Weinfeld—are widely regarded as among the finest jurists of their time, the Southern District did not gain and has not maintained its preeminence merely by having produced these and other stars in the judicial constellation.
To the contrary, the Southern District always has been and today remains a court of dedicated and skilled jurists who distinguish themselves daily by their workmanlike approach to the business of the federal district court: hearing and deciding cases, great and small. In this way, the judges of the Southern District carry on in the tradition of Judge Weinfeld who famously advised that “every case is important” and “no case is more important than any other case.”
A Brief History of the Court (1789 to 1989)
As Paul Burak’s fine History of the United States District Court for the Southern District of New York recounts:
On November 3, 1789, in the Exchange Building near the foot of Broad Street, the United States District Court for the District of New York convened its first session; Judge Duane’s commission was read and ‘such gentleman who chose to attend’ were admitted to the Bar of the new court . . . .
Judge Duane had received his commission from President George Washington on September 26, 1789, the same day the President signed the commission for John Jay, the first Chief Justice of the United States. As difficult as it is for those of us familiar with the busy workload of the modern court to believe, for the first several years of its existence, Judge Duane presided over a court that quite literally “had nothing to do.”
Indeed, the court’s first case, United States of America v. Three Boxes of Ironmongery, Etc., an application by the fledgling government of the United States for a declaration that certain goods were subject to duty, was not filed until April 1790. As its first case suggests, the court’s early years were consumed by customs cases and routine or uncontested admiralty matters. As Judge Thomas D. Thacher, who served on the Southern District bench in the late 1920s, once remarked: “The work of such a court must have been extremely dull.”
In 1812, Congress created a second judgeship in the District of New York to fulfill a statutory requirement that the court hold proceedings upstate. Less than two years later, on April 9, 1814, Congress passed a statute splitting the District of New York and with that, the Southern District of New York was born. In 1821, the Southern District promulgated for the first time, with the assistance of a committee of bar leaders, a set of procedural rules governing cases brought in the court.
On December 21, 1826, Judge Samuel R. Betts was appointed to the Southern District bench. Judge Betts, who served on the court for 41 years until he died in 1867, is the Southern District’s second longest-serving jurist. An authority on admiralty law, Judge Betts presided over the court during a period when admiralty cases “multiplied many times in volume and importance,” and singlehandedly transformed the Southern District from a court that “had nothing to do” into a “busy tribunal.” Holding office during the Civil War era, Judge Betts presided over important cases involving “questions of prize, blockade and contraband resulting from captures of enemy property by United States vessels in the blockade of Confederate ports.”
In 1865, Congress created the Eastern District of New York. This move helped to reduce the burgeoning workload of the Southern District, and forestalled for nearly 40 years the creation of a second judgeship on the Southern District bench. However, the avalanche of filings occasioned by its passage of the Bankruptcy Act of 1898 prompted Congress to create a second judgeship for the court in 1903. Indeed, in 1900, for example, bankruptcy filings exceeded the total of all other cases brought in the Southern District during that year.
In 1906, a third Southern District judgeship was created, followed by a fourth in 1909. To these posts President Theodore Roosevelt appointed two of the nation’s finest jurists: Judges Charles M. Hough and Learned Hand. Both men served on the Southern District bench for extended terms, ten years for Judge Hough and fifteen years for Judge Hand, before being elevated to a court that at that time had not yet reached its thirtieth birthday, the United States Circuit Court of Appeals for the Second Circuit.
During the first few decades of the twentieth century, the Southern District experienced tremendous growth in both the volume and variety of its caseload. According to Paul Burak’s History, the growth was caused by “private litigation in diversity of citizenship [which] increased due to the rapid development of commerce in New York, and government litigation [which] similarly multiplied with the extension of federal control over many private and public activities.” Indeed, the Southern District faced a total of 9,123 new filings in 1920, more than three times the number of filings that were made just ten years before in 1910. From 1920 to 1930, the court’s workload grew heavier still with the onset of Prohibition in 1920 which caused “a staggering increase in government civil business, such as actions for tax or penalty, forfeitures, and ‘padlock’ cases, and an even greater rise in criminal liquor cases.”
On November 3, 1939, the twelve judges of the Southern District paused from their labors to commemorate the court’s sesquicentennial anniversary with a ceremony presided over by Chief Judge John Clark Knox. Although Judge Knox spoke about the Southern District that existed nearly 60 years ago, his words still ring true today:
Along with the Government, the court has grown in power, influence and importance. Indeed, it presently exercises a jurisdiction that, perhaps, is wider than that of any tribunal upon the earth . . . . In times of peace and days of war, in years of plenty and periods of want, this court—modestly and unostentatiously—has endeavored faithfully to perform duties which these conditions imposed upon it . . . . We indulge the hope that, in the future, quite as much as it has done in the past, the court will creditably do its work and fairly administer justice to all who come within its portals . . . . We also trust that as long as the Government stands, and may that be forever, this court will be a place to which all men in need of judicial aid may freely come and have confidence that justice will here be dispensed without favor and without price.
The distinguished jurists of the day who observed the ceremony uniformly praised the quality and dedication of the judges who have served on the Southern District bench. In addition to Chief Justice Hughes’s statement quoted at the beginning of this section, Associate Justice Felix Frankfurter praised the court’s “great tradition of eminent judges of the highest standard of judicial administration.”
Judge Knox also used the occasion of the court’s birthday to press the case that additional judges were needed to handle the Southern District’s expanding caseload, noting in his speech that “there is no more heavily burdened court than this District Court whose anniversary we celebrate.” During the early 1940’s, the Southern District’s pending civil docket ranged between 3,500 and 4,500 cases per year. This figure skyrocketed to more than 10,000 cases in 1947, even though the court disposed of 4,708 cases in that year alone. Congress finally responded with additional judgeships in 1949 when four were added, bringing the court to 16 judges.
In 1950, President Harry S. Truman appointed the 49-year old President of the National Public Housing Conference and former New York City Public Housing Commissioner, Edward Weinfeld, to the court. Judge Weinfeld, widely acknowledged as the greatest judge ever to sit on the Southern District bench and, to many, the greatest judge ever to sit on any district court, did more than any judge before him or since to set the tone and work ethic for the court he called “the greatest in the country, bar none.” For many of his 38 years on the court, Judge Weinfeld “regularly arrived at the courthouse before 6 a.m. to begin his working day of 12 hours or more . . . [and] usually worked six days a week, sometimes seven, including most holidays.” In a famous reflection on his approach to the business of judging, Judge Weinfeld wrote:
When, at a fairly early hour of the morning, I put the key into the door of my darkened chambers and walk across the room to start the day’s activities, I do so with the same enthusiasm that was mine the very first day of my judicial career. What one enjoys is not work. It is joy.
Because of his work ethic and talent, Judge Weinfeld, from his earliest days on the court to the twilight of his judicial career, set an example to which his colleagues and the others who knew him aspired. The more than 2,200 published opinions he authored during his 38-year career are hailed as “well-crafted,” “thoroughly grounded in the facts,” “products of reason rather than acts of will,” and accurately, but least importantly, “almost always affirmed.” Similarly, as two of his law clerks observed, “it is difficult, if not impossible, to capture the reality of the dignity and fairness that are the hallmarks of a Weinfeld trial . . . [in which he brings] to life that which is finest in our legal tradition.”
It would be difficult to overstate Judge Weinfeld’s influence on the judges who have served, and who continue to serve, on the Southern District bench. Indeed, in 1985, the judges of the Southern District, in a letter to the selection committee in which they collectively nominated Judge Weinfeld for the Devitt Distinguished Service to Justice Award, expressed this very sentiment:
Judge Weinfeld has been a friend, a colleague, and a mentor for us and for other judges on this Court for the past thirtyfive years. In that time, no one has labored as long or as hard in the service of justice as has
Judge Weinfeld. While his contributions to the administration of justice have been great on many levels, the greatest is the personal example he has set for all those who know him or know of him. . . . Judge Weinfeld has set the standard for the conduct of judges, attorneys, and all others connected with the administration of justice. And he has set that standard not simply by what he has said or written, but rather by the daily devotion he has shown, year after year, to the rule of law.
Following a long illness, during which he continued to conduct trials and to decide cases, Judge Weinfeld died in January 1988. Although Judge Weinfeld’s death undoubtedly marked the end of an era for the Southern District, the personal example and standards he set for the judges who served with him, those who have joined the court since, undoubtedly survived his passing. In this way, the Southern District today remains a court of talented and hard-working judges who continue, in the tradition of Judge Weinfeld and the scores of other judges who served before him on the court, to distinguish themselves daily through their work ethic and their dedication to the business of the federal district court—hearing and deciding cases, great and small.
The Edward Weinfeld Award
During the 1990s, the New York County Lawyers’ Association Committee on the Federal Courts established the Edward Weinfeld Award to honor those who have made distinguished contributions to the administration of justice, in the tradition of Judge Weinfeld.
The following members of the New York legal community have been honored with the Edward Weinfeld Award: Judge Wilfred Feinberg (United States Court of Appeals for the Second Circuit); Judge Edward R. Korman (United States District Court for the Eastern District of New York); Judge Morris E. Lasker (United States District Court for the Southern District of New York); Judge John S. Martin (United States District Court for the Southern District of New York); Judge Joseph M. McLaughlin (United States Court of Appeals for the Second Circuit); Judge Loretta A. Preska (United States District Court for the Southern District of New York); Judge Jon O. Newman (United States Court of Appeals for the Second Circuit); Judge Eugene Nickerson (United States District Court for the Eastern District of New York); Judge James L. Oakes (United States Court of Appeals for the Second Circuit); Judge Leonard B. Sand (United States District Court for the Southern District of New York); and Mary Jo White (United States Attorney for the Southern District of New York).
United States Attorney Mary Jo White (1993-2001):
First Woman To Lead The Office
After graduating from Columbia Law School in 1974, Mary Jo White began her legal career as law clerk to the Honorable Marvin E. Frankel of the United States District Court for the Southern District of New York. Thereafter, she served as an Assistant United States Attorney and then Chief Appellate Attorney, Criminal Division, both in the Southern District of New York. Ms. White then moved into the private sector, eventually becoming a partner at Debevoise & Plimpton. In 1993, Ms. White returned to public service and became the first woman to serve as United States Attorney for the Southern District of New York, where she remained until December 2001.
During her term as U.S. Attorney, Ms. White quickly earned a reputation as being an aggressive prosecutor of terrorism and white collar crime. She indicted Osama Bin Laden and Al-Qaeda before September 11, 2001 for acts of terrorism against the United States; presided over the successful prosecutions of four men accused of the 1993 World Trade Center bombing; dedicated significant resources to gathering evidence in connection with the 1998 U.S. embassy bombings in Africa; and won convictions of four terrorists plotting to destroy major local landmarks. Ms. White also brought racketeering and murder charges against John Gotti; was responsible for the indictment of millionaire financier Marc Rich; and led the prosecution of Bankers Trust Company for earnings-related offenses. Near the end of her tenure, Ms. White, who was appointed by former President Bill Clinton, opened an investigation into whether Mr. Clinton had exchanged last-minute pardons for campaign contributions.
Ms. White rejoined Debevoise & Plimpton in January 2002, as a partner and chair of its litigation department. At Debevoise, Ms. White focuses on internal investigations and the defense of companies and individuals who have been accused of involvement in white-collar or corporate crime and civil securities violations.
The Composition Of Today’s Court
Chief Judges: Transition and Continuity
The position of Chief Judge in the Southern District of New York is given to the most senior active judge in the district who is not yet 65 years old. The position is held for seven years or until its holder turns 70. The duties of the Chief Judge include managing the work of the active and senior judges and the magistrate judges, as well as managing the court clerk’s office, probation, pretrial services, court reporters, and security. In addition, the Chief Judge represents the Southern District of New York to bar groups, national court committees, and other branches of the government. Chief Judge Charles L. Brieant was the first to hold the position during the decade of the 1990s, having assumed it in 1986. During his tenure, which lasted until 1993, Chief Judge Brieant assisted in getting underway construction projects for the courthouse in White Plains, New York, and the new courthouse at 500 Pearl Street, in New York City. At the conclusion of his tenure, Chief Judge Brieant stated, “I think I had a great run and it’s time to get out.” Remarking upon his successor, Judge Brieant said, “Judge Griesa is as devoted as I am to maintaining the grand traditions of the Mother Court. The Court got along well for 200 years and will continue to do so.”
The Honorable Thomas P. Griesa served as Chief Judge from 1993 through 2000. Upon assuming his position, Chief Judge Griesa stated, “We should just keep doing as well as we can and as thoughtfully as we can the work of the court—of trying and deciding cases.” Judge Griesa served as Chief Judge during construction of the 500 Pearl Street courthouse, which brought to the court much-needed state-of-the-art technology, as well as features for the secure handling of prisoners, including separate prisoner elevators and holding cells on every courtroom floor.
The Honorable Michael B. Mukasey, the current Chief Judge, assumed his post in 2000. He has had to deal with heightened security concerns at the court, and with the need to implement necessary security precautions. Chief Judge Mukasey, along with Chief Judge John M. Walker of the U.S. Court of Appeals for the Second Circuit, has been involved in efforts to renovate the courthouse at 40 Foley Square, which in addition to housing judges and court personnel from the Southern District of New York, also houses Second Circuit judges’ chambers and courtrooms. The 40 Foley Square courthouse was designed by Cass Gilbert, and has been referred to by Chief Judge Mukasey as “a treasure of American architecture.”
Judicial Appointments: The Making of a New Court
The court enjoyed substantial growth in the number of judgeships between 1990 and 2000. At the start of that decade, the Southern District had a total of 38 judges; by the end of 2000, the court had 50 judges. Yet, it was not merely the addition of 12 new judgeships that helped to remake the court during this period. Nearly half of the 50 judges who were on the Southern District bench at the end of 2000 were appointed between 1990 and 2000, including an astounding eight judges appointed during 1994 alone. It is also significant that of the 50 judges who sat on the court at the end of 2000, 27 were active and 23 were senior. This nearly even split evidences the court’s increased reliance on senior judges to manage its rising caseload.
Of the judges who served on the Southern District bench between 1990 and 2000, several made history as a result of their appointment, including the Honorable Constance Baker Motley (the first African- American woman to serve on the federal bench and the first woman to serve on as judge of the Southern District of New York), the Honorable Sonia Sotomayor (the first Hispanic woman to serve on a federal court in the Second Circuit), the Honorable Denny Chin (the first Asian-American to serve on a federal court in the Second Circuit) and the Honorable Deborah A. Batts (the first openly gay person to serve on the federal bench).
The current court has 46 judges of whom 26 are active and 20 senior. There are 34 men and 12 women on the court, the vast majority of whom are Caucasians (39 judges), with African- Americans (5 judges), Hispanics (1 judge) and Asian Americans (1 judge) also represented.
Magistrate Judges: Increased Role and Influence
In the Southern District, there are now 15 magistrate judges. This is an increase from 14 in 2000 and an increase from nine full-time magistrates in 1990. Magistrate judges are not Article III judges. Therefore, they are not appointed by the President and they do not have life tenure. Rather, they are appointed by the local district judges, and full-time magistrate judges serve 8-year terms.
Whereas the earliest magistrate judges handled only pretrial discovery matters, today they are much more involved in all aspects of litigation and in the Southern District often play a key role in assisting the district judges in moving cases along swiftly.
There has been considerable litigation over the role of magistrate judges in criminal matters. As a result of such litigation, the range of functions performed by magistrate judges in criminal cases has expanded, though gradually. Whereas magistrate judges were once given discretion almost exclusively in “pretrial” matters, in the 1990’s they were given considerably more authority to become deeply involved in substantive matters.
Perhaps the most significant decision exemplifying such growth was the Second Circuit’s decision in U.S. v. Williams, in which it was held that magistrate judges can, upon the consent of the defendant, hear plea allocutions in felony cases. See U.S. v. Williams, 23 F.3d 629 (2d Cir.1994). That decision was part of a series of decisions issued during the early 1990s whereby magistrate judges were given increased power in federal cases, including the power to oversee extradition proceedings, empanel grand juries, rule on pretrial motions to suppress evidence, and to conduct jury voir dire with the defendant’s consent.
In civil cases, magistrate judges generally are empowered to make three types of decisions. First, they can issue interlocutory orders, which a district judge can then review, as if on appeal. Second, on case-dispositive motions magistrate judges can issue a “report and recommendations”; these are reviewable de novo by the district judge, but often, as a practical matter, may greatly influence the district judge’s ultimate ruling. Finally, with the consent of all parties, magistrate judges can preside over trials and bring cases to final judgment, with review available only in the Court of Appeals.
The Court’s Changing Docket
The workload of the court increased steadily from 1990 to 2000. A total of 9,551 cases (8,772 civil, 779 criminal) were filed in the Southern District in 1990, and 13,647 cases were pending at the end of that year. In 2000, 11,547 cases (10,389 civil, 1,158 criminal) were filed in the court, with 14,275 cases pending at the end of that year. Dividing this workload by the 50 judges on the court at the time yields an average of 286 pending cases per judge or 510 pending cases per active judge at the close of 2000.
The workload of judges in the Southern District is comparable to the workloads of district judges serving in other major metropolitan areas. For example, in 2000, there were 7,713 pending cases in U.S. District Court for the Northern District of Illinois. That year, the Northern District of Illinois had a total of 30 judges of which 22 were active and 8 senior, yielding an average of 257 pending cases per judge or 351 cases per active judge. The Central District of California had 17,670 pending cases in 2000 which were handled by a total of 34 judges of which 27 were active and 7 senior. This yields an average of 520 cases per judge or 654 cases per active judge.
There were also significant changes in the composition of the Southern District’s civil and criminal dockets during this period. Several categories of civil cases experienced dramatic increases in filings from 1990 to 2000: antitrust (365% increase); recovery of overpayments and enforcement of judgments (182% increase); civil rights (165% increase); social security (118% increase); copyright, patent and trademark (39% increase); prisoner petitions (38% increase); and all other civil cases (23% increase). By contrast, civil cases in the following areas showed substantial decreases in filings: forfeiture and penalties and tax suits (61% decrease); real property (52% decrease); and labor suits (14% decrease). The other civil case categories stayed relatively constant during this period: contracts (9% decrease); and torts (16% decrease).
As noted, criminal case filings rose significantly from 779 filings in 1990 to 1,158 filings in 2000, or a 49% increase. The largest increases were seen in the following criminal case categories: drugs (2,636% increase); immigration (619% increase); weapons and firearms (636% increase); fraud (136% increase); and all other criminal felonies (111% increase). Significant decreases were observed in the following categories: embezzlement (67% decrease); robbery (84% decrease); and burglary and larceny (49% decrease). There were no significant changes in the remaining criminal case categories: escape (14% increase); forgery and counterfeiting (34% decrease); homicide and assault (no change).
Notable Cases, Trials, and Decisions
As has been the case throughout the court’s long history, Southern District judges during the 1990s weighed in some of the most pressing legal issues of the day, rendering numerous path-breaking decisions and presiding over a series of important trials. Members of the Report Subcommittee sought to identify an illustrative sampling of notable cases, trials, and decisions, which are discussed below. Of course, many other notable cases, trials, and decisions came out of the court during the 1990s, but due to space constraints this Report is able to refer to only a small fraction of them.
Antitrust
Blanksteen v. The New York Mercantile Exchange
The New York Mercantile Exchange (“NYMEX” or “Exchange”) is a market for the trading of futures and options contracts for energy resources and precious metals. Pursuant to NYMEX Rule 2.70, Exchange members may lease their seats on the Exchange, but if they do so they must grant the lessee of the seat the right to vote as a member of the Exchange.
This rule was challenged as being in violation of Section One of the Sherman Act by a NYMEX member who had leased all three of her Exchange seats but still wanted to be able to vote in a then-upcoming NYMEX election that was being held to select the Exchange’s Board of Directors. The disgruntled NYMEX member sought to enjoin the election from taking place.
Judge Koeltl denied the motion, holding that Rule 2.70 was not “anticompetitive” within the meaning of the Sherman Act. In explaining why, Judge John G. Koeltl helped to delineate the boundary between: (a) impermissible anticompetitive limitations on who may conduct certain activities; and (b) the permissible kind of limitations that are the raison d’etre of exchanges such as the NYMEX (and, by analogy, self-regulating organizations such as the National Association of Securities Dealers):
The purpose of the policy of Rule 2.70 appears to be to foster competitiveness rather than to hinder it. The rule reflects a judgment that the competitiveness of the exchange and its democratic character are promoted rather than hindered by rules that provide voting power to those who are active traders on the exchange and that prohibit anyone from voting on the affairs of the exchange who is not involved in the exchange on a day-to-day basis or who is not willing to pay the costs of retaining the ability to be involved. The rule thus ensures that the governance of the exchange will be truly democratic, that those persons who are most immediately involved with the affairs of the exchange have a say in its governance and that those persons who do not will have a say only if they demonstrate the sincerity of their commitment to the interests of the exchange by retaining and not leasing their sole or last seat. By ensuring this form of democracy the rule enhances the competitiveness of the exchange with respect to other exchanges and competitive markets. Those persons who are involved in the day-to-day operation of the exchange are the persons most likely to be informed as to how to increase the competitiveness and efficiency of the exchange.
Blanksteen v. The New York Mercantile Exchange, 879 F. Supp. 363, 370 (S.D.N.Y.
1995).
Class Action Litigation
In re Auction Houses Antitrust Litigation
In class action lawsuits in which any particular plaintiff has a relatively small stake in the outcome, plaintiffs’ attorneys are often able to command extraordinarily large fees because individual plaintiffs lack sufficient financial incentives to contest attorneys’ fee requests.
Congress sought to remedy this familiar problem in various ways during the 1990s—the Private Securities Litigation Reform Act is one prominent example—and in 2000, Judge Kaplan attempted to ameliorate the problem as well.
Hoping to “ease th[e] tension” between plaintiffs and their attorneys, and to “improve the class action as an instrument of justice,” In re Auction Houses Antitrust Litigation, 197 F.R.D. 71, 72 (S.D.N.Y. 2000), Judge Kaplan used an innovative procedural device—an auction—to select plaintiffs’ counsel in a class action brought against Sotheby’s Holding, Inc. and Christie’s, Inc., two prominent auction houses.
Judge Kaplan “sold” the plaintiffs’ case to the lowest bidder, that is, to the attorneys who agreed to accept the lowest fee in exchange for representing the class. By holding a low-bid auction, Judge Kaplan aimed to secure for the plaintiffs relatively inexpensive representation. And by removing, to the greatest extent possible, the perverse incentives that can exist for attorneys in class action contexts, Judge Kaplan aimed to select counsel who would best represent the interests of the plaintiffs.
To insure that the auction was conducted in a fair manner, Judge Kaplan prohibited bidding law firms from divulging their bids to other firms, and he himself “sought to act as a fiduciary to [plaintiffs’] class in selecting counsel,” a rarity—not to mention an impressive conceptual turn—in our adversary system. Id. at 84.
Commercial Law
Pan Am Corporation v. Delta, Inc.
After the Pan Am Corporation (“Pan Am”) filed for bankruptcy in 1991, one of its major competitors—Delta Air Lines, Inc. (“Delta”)—agreed to extend to Pan Am a debtor-in- possession (“DIP”) line of credit. After receipt of the Delta DIP financing, Pan Am’s financial condition continued to deteriorate, and Delta refused immediately to provide further financing.
Pan Am then initiated a $2.5 billion breach of contract and breach of fiduciary duty action against Delta. The crux of Pan Am’s claims was that Delta had agreed to help Pan Am out of bankruptcy, and that Delta’s refusal to provide an additional round of financing amounted to a breach of that agreement.
Following a closely-watched five-week bench trial, Judge Robert P. Patterson, Jr. found for Delta on all significant issues, determining that Pan Am did not satisfy the conditions precedent to Delta’s funding obligation and that Pam Am had to repay the funds loaned by Delta. See Pan Am Corporation v. Delta, Inc., 175 B.R. 438 (1994).
The Common Fund v. KPMG
Voted top defense win of 2000 by the National Law Journal, Judge George B. Daniels presided over the trial brought by The Common Fund, a nonprofit manager of some $30 billion in endowment funds for high schools and colleges, against KPMG Peat Marwick LLP (“KPMG”), one of the largest accounting firms in the United States. The Common Fund claimed $137.6 million in damages for KPMG’s alleged professional negligence and breach of contractual and fiduciary obligations. The plaintiff alleged that the breaches occurred as a result of KPMG’s failure to detect and report trading irregularities by one of the portfolio managers’ subcontractors.
In an aggressive defense strategy, KPMG turned the tables and blamed the plaintiff for “cut[ting] corners” by never asking its auditors to probe the friendly relationship between the fund and the independent investment advisor. Without presenting a single witness or offering a single exhibit, the defense successfully argued that KPMG was retained not to conduct an audit, but rather to review the organization, which it did, thereby fulfilling its contractual obligations. The jury found for KPMG on all claims.
Criminal Law
United States v. Marcos, United States v. Khashoggi
Imelda Marcos, the wife of former Philippine President Ferdinand Marcos Jr., was tried in 1990 for conspiring with her husband before his death to steal more than $200 million in Philippine government funds to invest in New York real estate, art and jewelry. She and codefendant Adnan Khashoggi, a Saudi Arabian believed to have been an international arms dealer, were charged with racketeering, conspiracy to racketeer, obstruction of justice, and mail fraud.
Judge Keenan presided over the three-month long jury trial, after which he was described by defense counsel Gerry Spence as “a stern judge” and “quick to reprimand but . . . quick to forgive.” Mr. Spence, a self-described “cowboy” from Wyoming who wore boots and a Stetson hat to the Foley Square courthouse, also was quoted as saying that trying a case in New York was a “totally different experience,” to which it took time to adjust. His adjustments, however, paid off. Depicting Mrs. Marcos as a loyal, naive wife—who came from a shoeless childhood of poverty and hunger—with no involvement in the business affairs of her husband, Mr. Spence successfully persuaded the jury to empathize with his client. And Khashoggi’s counsel, James Paul Linn, used humor to portray Khashoggi as a portly man who made foolish business decisions but who was not a criminal. The jury returned a verdict of not guilty as to each defendant.
United States v. Frank
Deric Frank was indicted for violation of various federal criminal laws in connection with the murder of his girlfriend. A grand jury charged that Frank forced his girlfriend into the trunk of his car and set the car on fire with her in it, burning her to death.
In November 1997, the United States Attorney’s Office for the Southern District of New York filed an Intent to Seek the Death Penalty against Frank. The Federal Death Penalty Act (“the FDPA” or “the Act”) of 1994 had reinstated the death penalty for a number of federal crimes, including kidnaping that results in the murder of the person kidnaped.
Frank argued that the FDPA was facially unconstitutional because, inter alia, it permitted a jury to find that a convicted defendant should be punished with death on the basis of aggravating factors not specifically enumerated in the Act. In rejecting Frank’s argument and holding that sufficient safeguards existed to ensure that consideration of aggravating factors by the jury would not result in arbitrary or capricious sentences of death, Judge Denise Cote became the first judge in the Second Circuit to turn aside a challenge to the constitutionality of the FDPA. United States v. Frank, 8 F. Supp. 2d 253 (S.D.N.Y. 1998).
Judge Leonard B. Sand adhered to Judge Cote’s decision two years later in United States v. Bin Laden, rejecting a subsequent challenge to the constitutionality of the FDPA following the Supreme Court’s decision in United States v. Apprendi, 530 U.S. 466 (2000). Judge Sand found that “Apprendi does nothing to alter our . . . conclusion that, in federal capital cases, gateway mental states and aggravators are not required to be contained in the indictment.” 126 F. Supp. 2d 264 (S.D.N.Y. 2000).
United States v. Pirro
In what the New York Law Journal described as “the most politically charged trial in years . . . entangled with intrafamily rivalry, political ambition and wealth,” Judge Barrington D. Parker, Jr. presided over a six-week jury trial of criminal charges brought against Albert J. Pirro, Jr. Pirro, a former lawyer, real estate developer and husband of Westchester County District Attorney Jeanine F. Pirro, was indicted for filing false tax returns with the Internal Revenue Service for the years 1991 through 1993, understating his income by more than $1 million. Mr. Pirro’s brother, accountant and co-defendant, Anthony Pirro, also was tried for his role in preparing these false documents.
The prosecution set forth evidence establishing that Albert Pirro improperly wrote off nearly $1 million in personal expenses as business deductions for items including: payments to a public relations firm that was connected to one of Ms. Pirro’s campaigns; a $45,000 decorative gate at the family home; Westchester County Club expenditures; furnishings for a West Palm Beach, Florida home; luxury automobiles (including a Bentley, two Mercedes and a Ferrari); fees for lawyers and investigators used in a paternity case against him in Indian; flowers; golf lessons; jet flights; a wrought iron fence for the family’s pet pig; and a $24,000 luxury cruise.
Although the brothers’ relationship was publicized as stormy, the lawyers representing each completed closing arguments without blaming each other. In a failed tactic, the defense rested their case without calling a single witness, stating that the government had not met their burden of proof and, specifically, had failed to show intent. After nearly six weeks of trial, the twelve person jury found both Pirro brothers guilty of conspiracy, tax evasion and filing false tax returns.
On November 1, 2000, Judge Parker sentenced Albert Pirro to 19 months in federal prison for his conviction on 34 counts of tax evasion. Despite pleas from defense counsel, Judge Parker determined that the severity of the offense far outweighed Mr. Pirro’s good works. Judge Parker further ordered Albert Pirro to pay half of the prosecution costs, which amounted to approximately $62,000.
First Amendment
New York Magazine v. The Metropolitan Transit Authority
In 1997, New York magazine launched an advertising campaign on New York City buses that made light of Mayor Rudolph Giuliani’s asserted propensity for taking credit for all positive developments in the City. Mayor Giuliani ordered the advertisements removed, on the theory that they violated his “publicity rights”—that is, his right under Sections 50 and 51 of the New York Civil Rights Law to prevent his likeness from being used for advertising purposes without his prior permission.
New York magazine argued that the Mayor’s order violated its rights under the First Amendment, and moved to enjoin City officials from removing the ads. Judge Shira A. Scheindlin granted the motion:
Who would have thought that the Mayor would object to more publicity? But that is what this case is all about. Our twice-elected Mayor, whose name is in every local newspaper on a daily basis, who is featured regularly on the cover of weekly magazines, who chooses to appear in drag on a well-known national TV show, and who many believe is considering a run for higher office, objects to his name appearing on the side of City buses. He staunchly asserts . . . that he has a ‘right to publicity,’ namely the right to control the use of his name when it is used for advertising or trade purposes. However, one who has chosen to be Mayor, and therefore to be the subject of daily commentary and controversy, cannot avoid the limelight of publicity—good and bad. Because of the ‘incidental use’ and ‘public importance’ limitations on the right to publicity, the Mayor’s assertion of his right must yield to [New York Magazine’s] assertion of its First Amendment rights.
New York Magazine v. The Metropolitan Transit Authority, 987 F. Supp. 254, 256-57 (S.D.N.Y. 1997) (emphasis in original).
Million Youth March, Inc. v. Safir
At a 1998 rally in New York City held in connection with the Million Man March, Mr. K. Muhammad, a Nation of Islam and “Black Power” activist, called upon listeners to, inter alia, “take their goddamn guns” from the police, and “use their guns on them,” albeit “pointedly in the context of self-defense.” Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381, 385 (S.D.N.Y. 1999)
Approximately one year later, Muhammad applied for a parade/rally permit on behalf of a group called Million Youth March, Inc. The permit application was denied by New York City officials, who cited the provocative remarks that Muhammad had made during the 1998 rally. The rally organizers then initiated an action, and moved for an injunction ordering the City to issue them a permit. Judge Denny Chin granted the motion and entered an injunction. He explained:
The City’s desire to deny Muhammad and [Million Youth March, Inc.] a platform from which to speak is understandable. Many of their statements are bigoted, hateful, violent, and frightening. The right to free speech, however, applies not only to politically correct statements but also to statements that we may disagree with and that, indeed, we may abhor. At least as frightening as the rhetoric of Mr. Muhammad is the possibility of a society where freedom of speech is not respected, and where the right to speak publicly can be denied on the basis of administrative whim, personal dislike, or disapproval of anticipated content.
Million Youth March, 63 F. Supp. at 383 (S.D.N.Y. 1999).
Following Judge Chin’s ruling, the rally went ahead—with more New York City police deployed than there were marchers.
Tunick v. Safir
In 1999, photographer Spencer Tunick announced his intention to pose and then photograph 75 to 100 nude models on the street in a residential New York City neighborhood. The New York City Police Department (“NYPD”) made it clear that if Tunick went ahead with his planned photo shoot, he would be arrested for violating a New York statute that bans public nudity.
Tunick hurriedly initiated an action, and moved for a preliminary injunction to prevent the NYPD from arresting him during the planned photo shoot. Judge Harold Baer, Jr. granted the motion and issued the requested injunction, holding, inter alia, that Tunick’s proposed photo shoot fell within the “artistic exemption” to the state statute that bans public nudity. See Tunick v. Safir, 1999 U.S. Dist. LEXIS 10902, 99 Civ. 5053 (S.D.N.Y. Jul. 16, 1999).
T & A’s Inc. v. Town Board of the Town of Ramapo
Under strong pressure from local religious leaders, the Town of Ramapo enacted an “adult uses” zoning ordinance in 1997 that was modeled on a similar New York City ordinance, whose constitutionality had repeatedly been upheld. Under the Ramapo ordinance, all local adult entertainment establishments had to be located at least 1,000 feet away from extant schools. Accordingly, T&A’s, a Ramapo adult entertainment establishment located 800 feet from a school, was required to relocate.
T&A’s sought to enjoin enforcement of the Ramapo ordinance. Judge Parker entered such an injunction, holding that the ordinance violated the First Amendment. Judge Parker emphasized that while the above referenced New York City ordinance permitted “adult uses” in 11% of the total area of the City, the Ramapo ordinance permitted adult uses in less than 1% of the relevant municipality. See T & A’s Inc. v. Town Board of the Town of Ramapo, 109 F. Supp. 2d 161 (S.D.N.Y. 2000).
Judge Parker’s decision and the decisions of other courts upholding the constitutionality of the New York City ordinance provided significant guidance to lawmakers concerning the permissible scope of “quality of life” measures curbing adult entertainment.
Intellectual Property
UMG Recordings, Inc. v. MP3.Com
During the late 1990s, certain internet services—among them, MP3.com—permitted millions of networked computer users to download and listen to music without first receiving permission from copyright holders.
To stop this practice, a number of major record companies sued MP3.com for copyright infringement. MP3.com defended against the record companies’ suit by arguing that it was transforming the copyrighted recordings, and that its use of the recordings was therefore protected by the “fair use” doctrine.
In an issue of first impression in the Second Circuit, Judge Jed S. Rakoff granted partial summary judgment to the record companies. Judge Rakoff held that MP3.com could not avail itself of the “fair use” defense because, inter alia, transforming the recordings solely to facilitate their unauthorized transmission through another medium did not amount to “transforming” them for the purposes of the fair use doctrine.
In his opinion, Judge Rakoff emphasized the durability in cyberspace of basic legal concepts: “The complex marvels of cyberspatial communication may create difficult legal issues; but not in this case. Defendant’s infringement of plaintiff’s copyrights is clear.” See UMG Recordings, Inc. v. MP3.Com, 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000). In November 2000, Judge Rakoff entered judgment for the plaintiffs in the amount of $53.4 million.
International Law
Holocaust Insurance Cases
Throughout the late 1990s, a wave of class-action lawsuits was filed against European insurance companies and banks on behalf of Holocaust victims and their United States beneficiaries.
In one class action filed in the Southern District of New York in 1997, Holocaust victims and their heirs sought payment of benefits that were called for in the policies, but were never honored. The plaintiffs alleged that the European insurance industry refused after World War II to honor many of the thousands of life insurance and other insurance policies sold to Jews and other Holocaust victims before and during the war. The plaintiffs alleged that when the claims were presented for payment, the insurers refused to honor the demands, asserting that they could not locate policies, that the policies were nationalized, or that the heirs were unable to produce death certificates. See Cornell v. Assicurazioni Generali S.p.A., Consolidated, 2000 WL 1099844 (S.D.N.Y.).
In 1998, a related class action was filed on behalf of Holocaust victims and their beneficiaries whose insurance policies were sold, confiscated, converted or retained by European insurers. The insurance policies were of many types, including life, property, casualty, dowry, disability, liability, accident, and health. The complaint charged that the insurers conspired with one another to prevent Holocaust victims from recovering insurance assets after World War II. The complaint also charged that the insurers colluded with the Nazi regime to retain, for their own use, payments made to the plaintiffs prior to 1946. See Winters v. Assicurazioni Generali S.p.A. Consolidated, 2000 WL 1858482 (S.D.N.Y.).
In 2002, Chief Judge Mukasey dismissed two related cases for failure to make out a prima facie case of personal jurisdiction over several defendants. See Cornell v. Assicurazioni Generali S.p.A., Consolidated, 2000 WL 1099844 (S.D.N.Y.); Drucker Cornell v. Assicurazioni Generali S.p.A., Consolidated, 2000 WL 284222 (S.D.N.Y.). Twelve cases, however, were ultimately consolidated before him, and in 2002, Judge Mukasey denied the defendants’ motion to dismiss on grounds offorum non conveniens. Judge Mukasey found that the International Commission on Holocaust Era Insurance Claims was not an adequate alternative forum for litigating the plaintiffs’ claims, and that the defendants had not demonstrated that the balance of conveniences weighed in favor of a European forum, thus clearing the way for discovery and trial. See In re Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, 2002 U.S. Dist. LEXIS 18127, *19 (S.D.N.Y.).
Cases Under The Torture Victim Protection Act and The Alien Tort Claims Act
With the passage in 1991 of the Torture Victims Protection Act (“TVPA”), federal courts were provided with the means to redress torture committed by foreign nationals in violation of international law and to breathe new life into the long-standing but infrequently used Alien Tort Claims Act (“ATCA”).
Doe v. Karadzic
Judge Leisure presided over two high-profile international war crime trials arising under both the TVPA and the ATCA during the 1990s. The purpose of each trial was to place a price tag on the war crimes—a campaign of murder, “ethnic cleansing,” and systematic rape— committed by Bosnian Serb forces acting under General Radovan Karadzic. The juries awarded more than $5 billion in damages to the victims of Karadzic’s crimes— thereby demonstrating that the law and courts of the United States remain uniquely positioned to provide remedies to individuals in various locations around the world. See Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994), rev’d on other grounds in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
Wiwa v. Royal Dutch Petroleum Co.
Nigerian emigres alleged that they suffered grave human rights abuses at the hands of the Nigerian government because of their role in protesting the oil exploration and development activities of Royal Dutch Petroleum Company and Shell Transport and Trading Company. They filed a complaint in the Southern District under the TVPA and the ATCA alleging that Royal Dutch and Shell participated in or ordered these abuses.
Judge Wood initially dismissed the action on grounds of forum non conveniens, finding that while the plaintiffs had established personal jurisdiction, the United Kingdom was the more appropriate forum for the litigation. See Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 1998 U.S. Dist. LEXIS 23064 (S.D.N.Y. 1998); Wiwa v. Royal Dutch Petroleum Co., No. 968386, 1998 U.S. Dist. LEXIS 22352 (S.D.N.Y. 1999). The Second Circuit disagreed with the forum non conveniens determination, holding that the district court had not, as a matter of law, given enough weight to the United States resident plaintiffs’ choice of forum and to the interests of the United States, as expressed in the TVPA, in providing a forum in which claims of violations of the laws of international human rights could be litigated. See Wiwa v. Royal Dutch Petroleum Co, 226 F.3d 88, 106 (2d Cir. 2000).
On remand, Judge Wood denied the defendants’ motion to dismiss as to all but two of the plaintiffs’ claims. In doing so, Judge Wood expressly ruled that the TVPA does not preempt ATCA claims for torture and extrajudicial killings, but instead provides an additional basis for asserting claims of this nature.
Judge Wood granted the defendants’ motion to dismiss, with leave to amend, as to Plaintiff Owens Wiwa’s claim of arbitrary arrest and detention and to his claim that the defendants violated his right to life, liberty and personal security. Judge Wood determined, however, that Plaintiffs Owens Wiwa and Jane Doe had alleged facts sufficient to defeat a motion to dismiss on their remaining claims for torture, summary execution, “cruel, inhuman, or degrading treatment,” and crimes against humanity. Judge Wood further held that Plaintiff Jane Doe had established a claim that her right to personal security and right to peaceable assembly had been violated. In reaching this determination, Judge Wood found that the plaintiffs had alleged violations that are sufficiently defined under customary international law as to be actionable under the ATCA. See Wiwa v. Royal Dutch Petroleum Co., 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. 2002).
Mushikiwabo v. Barayagwiza
In Mushikiwabo v. Barayagwiza, Judge John S. Martin granted a motion for a default judgment awarding upwards of $70 million in an action brought against Jean Bosco Barayagwiza, a leader of the Rwandan Hutu political party, the Coalition pour la Defense de la Republique (“CDR”). Judge Martin found that Barayagwiza and the CDR, in conjunction with the Rwandan government, “played an instrumental role in the torture and massacre of thousands of Rwanda’s Tutsi minority, as well as moderate members of the Hutu majority.” Mushikiwabo v. Barayagwiza, 1996 WL 164496, *1 (S.D.N.Y. 1996). Judge Martin also held that the defendant had been properly served while in the United States to attend a session of the United Nations.
Tachiona v. Mugabe
In an action before Judge Victor Marrero, members of an opposition political group in Zimbabwe filed a class action lawsuit against Zimbabwe’s President, Robert Mugabe, and other senior ministers, as well as against the Zimbabwe government’s ruling political party, the Zimbabwe African National Union-Patriotic Front (“ZANU-PF”). The lawsuit, seeking remedies under the TVPA and the ATCA, asserted that the ZANU-PF, President Mugabe and his senior ministers engaged in a campaign of terror and violence designed to suppress opposition, and perpetrated and/or encouraged acts of murder, torture, terrorism, rape, beatings, and destruction of property. Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2001). President Mugabe was served while in New York, both in his individual capacity and in his role as the head of the ZANU-PF.
The State Department filed a formal Suggestion of Immunity on behalf of Mugabe and the other ministers. Following a detailed exposition on the history of sovereign immunity and its relation to head-of-state immunity, Judge Marrero concluded that Mugabe and the others were immune from suit in the present action. He reasoned that while the Federal Sovereign Immunity Act (“FSIA”) shifted determinations of sovereign immunity from the State Department to the courts in cases involving commercial transactions, in cases involving assertions of head-of-state immunity in actions brought individually and directly against sitting heads of state, and where the State Department filed a formal Suggestion of Immunity, courts were to follow the pre-FSIA common law tradition and defer to the State Department’s suggestions. Because the State Department, in this case, recommended immunity, Judge Marrero deferred to this suggestion and found there to be no personal jurisdiction. Judge Marrero additionally found that Mugabe enjoyed diplomatic immunity by virtue of his presence in the United States as representatives of the United Nations.
Judge Marrero declined, however, to find that head-of-state or diplomatic immunity extended to confer immunity from service of process on the ZANU-PF, as effected through service on Mugabe. Ultimately, Judge Marrero entered a default judgment against the ZANU-PF as to the plaintiffs’ TVPA claims, awarding each plaintiff upwards of $13 million in compensatory and punitive damages for extrajudicial killing and torture. Tachiona v. Mugabe, 216 F. Supp. 2d 262, 268 (S.D.N.Y. 2002).
Internet Law
Bensusan Restaurant Corp. v. King
In April 1996, a Missouri business posted a “page” on the world wide web that advertised for the “Blue Note,” a Missouri night club. Soon thereafter, the owner of New York’s “Blue Note” jazz club initiated a trademark infringement action in the Southern District against the Missouri club.
The Missouri club then moved to dismiss the action for lack of personal jurisdiction. Judge Sidney H. Stein granted the motion, holding that personal jurisdiction could not be exercised over the Missouri defendant either under New York’s long-arm statute or consistent with the Due Process Clause of the United States Constitution. See Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). Judge Stein held that the mere act of a defendant’s posting a generic advertisement on the worldwide web can not be construed as an effort to target individuals in any particular jurisdiction reached by the web.
This line of reasoning has been enormously influential, and has helped to clarify a complex—and increasingly important—corner of personal jurisdiction law. Bensusan has been cited by scholars and courts many hundreds of times since 1996.
Securities Litigation
In re Initial Public Offering Securities Litigation
The Initial Public Offering (“IPO”) cases involve allegations of securities fraud arising from initial public offerings during 1999 and 2000. The cases involve allegations of “laddering,” a practice by which brokers allocate IPO shares to purchasers in exchange for an agreement by the purchaser to buy additional blocks of stock in the after-market at prices higher than the offering price. The cases also allege that IPO underwriters were collecting undisclosed commissions from certain investors.
Beginning in December 2000, following a steep decline in share prices for high-tech companies and publication of an article in The Wall Street Journal reporting that several underwriters were under government investigation for their practices in allocating shares in “hot” IPOs, plaintiffs’ lawyers filed the first of the IPO cases. The number of IPO cases grew rapidly, ultimately reaching more than 1,000 individual cases. Taken together, the cases are brought against more than 300 companies, such as eToys and Priceline.com, more than 1,000 officers, directors and employees of these companies, and nearly 50 underwriters, including Morgan Stanley Dean Witter & Co. and Credit Suisse Group.
The cases were initially wheeled-out to individual judges until August 2001, when Chief Judge Mukasey issued an order consolidating the IPO cases for pretrial purposes and assigning them to Judge Scheindlin. Nine related, but separate, antitrust suits concerning only the IPO underwriters were transferred to Judge William H. Pauley, III.
Two months later, 38 of the underwriters filed a motion requesting that Judge Scheindlin recuse herself pursuant to 28 U.S.C. § 455 based on her stock ownership, as well as that of her husband and adult son. In a lengthy opinion examining the law of recusal, Judge Scheindlin ruled that § 455 did not require her to recuse from the IPO cases. In re Initial Pub. Offering Secs. Litig, 174 F. Supp. 2d 70 (S.D.N.Y. 2001). The Second Circuit affirmed the ruling, finding that the district court had “expended substantial judicial time” before the recusal motion was made and that there existed no “appearance of bias.” In re Certain Underwriters, 294 F.3d 297, 299 (2d Cir. 2001).
Due to the “unique proportions” of the case, innovative case management strategies have been developed. For instance, an access-only website was created at the suggestion of Judge Scheindlin, allowing attorneys to serve each party in the case over the Internet rather than through the traditional methods of service. The parties currently await Judge Scheindlin’s ruling on a motion to dismiss.
Terrorism
The significance of the below-referenced terrorism trials—all of which concern pre- September 11, 2001 acts of terror—cannot be underestimated. During the 1990s, terrorists killed New Yorkers and caused substantial damage both to New York’s physical infrastructure, and to the sense of freedom, security, and openness that New Yorkers once took for granted. The task of doing impartial justice in the face of such terrorism has fallen in numerous cases to the “Mother Court.”
During the 1990s, fears of further terrorism motivated a substantial tightening of security around New York City courthouses, and a number of security-related physical improvements at area federal courts. In 1993 alone, some of these improvements included the installation of a security booth at the entrance to an underground parking lot on Pearl Street, the sealing of rooftop windows on the building’s seventh-floor pavilion, and the closing of a basementlevel subway entrance to the courthouse.
In the late 1990s, dump trucks filled with sand blocked the portion of Pearl Street between the United States Courthouse at Foley Square and the Daniel Patrick Moynihan United States Courthouse. Judges, court personnel and deliveries could enter the garages only after one of the dump trucks moved and let them through. Since then, the trucks have been replaced with gated guard houses and reinforced steel barriers to upgrade the security. Entrance to the courthouses has also been limited and metal detectors and bag searches have been added at each of the entrances.
United States v. Salameh et al.
Following what at the time was the “single most destructive act of terrorism ever committed in the United States,” Judge Kevin Thomas Duffy presided over the six-month trial of Muhammed Abouhalima, Ahmad Ajaj, Nidel Ayyad and Mohammed Salameh for their role in the 1993 bombing of the World Trade Center—an attack that killed 6, injured more than 1,000, and caused more than half a billion dollars in damages. Based primarily on circumstantial evidence elicited from more than 1,000 exhibits and more than 200 witnesses, the defendants were found guilty of membership in a terrorist conspiracy to plant a homemade bomb in the underground parking lot of the World Trade Center.
Although the trial lasted six months, some of the most controversial moments occurred during sentencing, a process which, in federal court, is typically a predicable and scripted event. First, Judge Duffy disqualified prominent defense attorneys William Kunstler and Ronald Kuby from representing their clients at the sentencing, based upon conflicts of interest. Next, despite facing life sentences, the defendants announced that they would defend themselves at sentencing if Judge Duffy refused to permit their chosen counsel to represent them. Accordingly, the defendants appeared at the sentencing pro se and were each sentenced to 240-year prison terms. On appeal, a federal panel affirmed the convictions, but ordered Judge Duffy to resentence each defendant so as to confirm that each had knowingly waived his right to counsel at the sentencing. United States v. Salameh, 152 F.3d 88, 161 (2d Cir. 1998).
United States v. Rahman, United States v. El-Gabrowny
Before becoming Chief Judge, Judge Michael B. Mukasey presided over the trial of ten defendants charged with participating in a conspiracy to conduct a campaign of terrorism against New York City. The conspiracy included the 1993 bombing of the World Trade Center, as well as planned—but not consummated—strikes against local bridges and tunnels.
Following a lengthy jury trial, the ten defendants were convicted. Those convictions were affirmed by the United States Court of Appeals for the Second Circuit, which praised Judge Mukasey’s handling of the case: “The trial judge, the Hon. Michael B. Mukasey, presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.” United States v. Rahman, 189 F.3d 88, 188-89 (2d Cir. 1999).
In the course of the conspiracy case, Judge Mukasey issued a number of noteworthy opinions. In 1994, for example, Judge Mukasey denied defendants’ recusal motion, which argued that Judge Mukasey was “connected” to the victims of the conspirators’ crimes because he is assertedly a Zionist, and Israel was a “victim” of the conspiracy because the conspirators attacked New York City to dissuade the United States from supporting Israel.
Judge Mukasey rejected this argument:
The victims of the World Trade Center explosion were the six people it killed, the hundreds it injured, and the thousands who felt its effects in other ways. If it is the government’s theory that that explosion was a protest against United States policy, then the victims were targeted as Americans, in particular people who worked in New York. If the logic of [defendants’] position about a relationship to victims were accepted, a more fundamental reason for my recusal would be that I am an American, in particular a New Yorker. That, of course, would compel the disqualification of every judge on this Court, if not in this country, and gives away the basic illogic of [defendants’] position.
United States v. El-Gabrowny, 844 F. Supp. 955, 961 (S.D.N.Y. 1994).
United States v. Bin Laden
Following the August 1998 bombing of the United States embassies in Kenya and Tanzania, the United States Attorney’s Office for the Southern District of New York brought multiple charges against Osama Bin Laden and others alleged to be part of his terrorist organization. As part of the investigation into the bombings, U.S. government officials searched a Mr. El-Hage’s apartment in Kenya and tapped his telephone lines—all without a valid search warrant.
El-Hage, an American citizen, moved to suppress the fruits of those searches. Judge Sand denied the motion, holding that U.S. government officials may search an American citizen abroad without a warrant when the government demonstrates, inter alia, that the American citizen was a foreign agent and that the search was conducted primarily for intelligence-gathering purposes. Finding that the search of El-Hage met those criteria, Judge Sand denied the motion to suppress. See United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000).
In the wake of Judge Sand’s ruling, and after a jury trial, El-Hage and others were convicted of a number of federal crimes growing out of the 1998 attacks on the embassies, and were sentenced principally to life in prison.
In Memoriam
This section acknowledges the contributions of the judges who served on the court during the 1990-2000 period, and who are now deceased.
Hon. Dudley B. Bonsal
Judge Bonsal was born in Bedford, New York in 1906. He received a recess appointment to the United States District Court for the Southern District of New York from President John F. Kennedy in 1961 and a permanent appointment from President Kennedy in 1962. Judge Bonsal assumed senior status in 1976, and died in 1995.
Judge Bonsal graduated from Dartmouth College (A.B., 1927) and Harvard Law School (LL.B., 1930). He was in private practice in New York City from 1930 to 1942, and again from 1945 to 1961—primarily at the law firm of Curtis, Mallet-Prevost, Colt & Mosle. A former president of the Association of the Bar of the City of New York (1958-1960), Judge Bonsal was chairman of a Bar panel that recommended due process reforms in the federal civilian security risk program, which the panel criticized for infringing on individual freedom. Judge Bonsal was also a member of Judicial Conference Committee to Implement the Criminal Justice Act (1964-1979, Chairman 1974-79), and was appointed a Judge of the Temporary Emergency Court of Appeals in 1977.
One of Judge Bonsal’s notable cases was SEC v. Texas Gulf Sulphur Co., 312 F. Supp. 77 (S.D.N.Y. 1970), in which, applying a then-new Second Circuit standard, Judge Bonsal ruled that a news release issued by Texas Gulf Sulphur Co. in 1964 had been “misleading to the reasonable investor.”
Hon. Vincent L. Broderick
Judge Broderick was born in New York, New York in 1920. He was appointed to the United States District Court for the Southern District of New York in 1976 by President Gerald R. Ford. He assumed senior status in 1988, and died in 1995.
Judge Broderick graduated from Princeton University (A.B., 1941) and Harvard Law School (LL.B., 1948), and served in the United States Army Corps of Amphibian Engineers (1942-1946). After law school, Judge Broderick entered into private practice at the law firm of Hatch, Root, Barrett, Cohen & Knapp (1948-54) and was later appointed Deputy Commissioner in the New York City Police Department (1954-1956), where his duties focused on legal matters. Judge Broderick served as Chief Assistant United States Attorney for the Southern District from 1961 to 1965, acting as United States Attorney for much of 1962. During his tenure as Police Commissioner of the City of New York from 1965- 1966, Judge Broderick was praised for his efforts to root out racial discrimination within the department. Following his service as Police Commissioner, Judge Broderick returned to private practice, at the law firms of Phillips, Nizer, Benjamin, Krim & Ballon (1966-1971) and Forsyth Decker Murray & Broderick (1971-1976).
Upon being appointed to the bench in 1976, Judge Broderick became an active participant in various criminal law committees of the Judicial Conference of the United States, as well as an out-spoken advocate of judicial flexibility in sentencing. Judge Broderick’s notable cases included Jackson v. Senkowski, 817 F. Supp 6 (S.D.N.Y. 1993), in which he suggested that there may be a federal defense of self-defense implicit in the Fifth and Fourteenth Amendment Due Process Clauses.
Hon. John M. Cannella
Judge Cannella was born in New York, New York in 1908. He was appointed to the United States District Court for the Southern District of New York in 1963 by President John F. Kennedy. Judge Cannella assumed senior status in 1977, and died in 1996.
Judge Cannella graduated from Fordham University (B.S. 1930) and Fordham Law School (LL.B. 1933). Judge Cannella worked his way through law school by playing professional football, graduating from Fordham with a law degree under his belt—as well as two seasons with the New York Giants. Judge Cannella worked in private practice for several years before becoming an Assistant United States Attorney for the Southern District of New York (1940- 1942). He then served in the United States Coast Guard, as Executive Officer to the Intelligence Service, Third Naval District (1942-1945), and as an Associate Justice of the Court of Special Sessions of the City of New York (1949-1963).
As a United States District Judge, Judge Cannella’s notable cases included Shanker v. Helsby, 515 F. Supp. 871 (S.D.N.Y. 1981) (upholding the right of the New York City Board of Education to stop collecting dues on behalf of a local teachers’ union because a nine-day teachers’ strike was conducted in violation of various no-strike provisions) and Trans World Airlines, Inc. v. Icahn, 609 F. Supp. 825 (S.D.N.Y. 1985) (effectively putting an end to TWA’s attempt to block the takeover activity of Carl C. Icahn by concluding that Icahn had not failed to disclose his true motivation in purchasing TWA stock).
Hon. Irving Ben Cooper
Judge Cooper was born in London, England in 1902. He received a recess appointment to the United States District Court for the Southern District of New York in 1961 from President John F. Kennedy, and a permanent appointment in 1962. Judge Cooper assumed senior status in1972, and died 1996.
After attending the Universities of Colorado and Missouri (B.A., 1922), Judge Cooper received a law degree from the Washington University School of Law (LL.B., 1925). Following law school, he was in private practice for over a decade (1927-1938) before entering into public service for the City of New York, as special counsel to the Department of Investigation of the City of New York (1934-37); New York City Magistrate (1938-1939); Associate Justice, Court of Special Sessions (1939-51); and Chief Justice of the Court of Special Sessions of the City of New York (1951-60). Judge Cooper held numerous additional state and federal public service positions, and was the 1965 recipient of the prestigious Silver Buffalo Award of the Boy Scouts of America.
As a United States District Judge, Judge Cooper’s notable cases included Floodv. Kuhn, 316 F. Supp. 271 (S.D.N.Y. 1970) (upholding immunity from antitrust laws for professional baseball) and Galella v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972) (finding that paparazzo had “relentlessly invaded” the privacy rights of Jacqueline Kennedy Onassis, and had interfered with the work of the Secret Service agents assigned to protect her).
Hon. David N. Edelstein
Judge Edelstein was born in New York, New York in 1910. He received a recess appointment to the United States District Court for the Southern District of New York in 1951 from President Harry S. Truman, and a permanent appointment in 1952. Judge Edelstein assumed senior status in 1994, after having served as the Chief Judge of the Southern District of New York from 1971 to 1980. He continued to hear cases up until his death, in 2000.
Judge Edelstein received a bachelor’s degree (B.S.), a master’s degree (M.A.), and a law degree (LL.B.) from Fordham University, paying his way through his many years of school by working as a page for the New York Stock Exchange (1929-1932). After several years in private practice and one year as an attorney in the Claims Division of the Department of Justice, Judge Edelstein became an Assistant United States Attorney for the Southern District of New York (1945-1947). His public service then continued with terms as special assistant to the U.S. Attorney General, Department of Justice, Lands Division (1947-48), and as Assistant U.S. Attorney General, Department of Justice, Customs Division (1948-51).
As a United States District Judge, Judge Edelstein served as a member of the Judicial Conference of the United States. His notable cases included United States v. International Business Machines Corp., 1956 U.S. Dist. LEXIS 3992 (S.D.N.Y. 1956), a seminal antitrust case under the Sherman Act, requiring I.B.M. to modify its business practices in connection with the sale, lease, and repair of its tabulating and electronic processing machines; though ultimately recused, Judge Edelstein oversaw the I.B.M. antitrust litigation for 43 years.
It is a testament to Judge Edelstein’s remarkable work ethic that for many years, he had the distinction of being the longest-serving active judge in the country, and remains the longest- serving judge ever to sit on the Southern District bench.
Hon. Lee P. Gagliardi
Judge Gagliardi was born in 1918 in Larchmont, New York. He was nominated to the United States District Court for the Southern District of New York by President Richard M. Nixon in 1971. Judge Gagliardi assumed senior status in 1985, and served until his death in 1998.
Judge Gagliardi graduated from Williams College (A.B., 1941) and Columbia University School of Law (LL.B., 1947). Prior to an extended career in private practice at Clark, Gagliardi & Miller (1955-1972), he served as a Lieutenant in the United States Naval Reserves during World War II, primarily on a destroyer in the Atlantic Ocean (1942-1945), and as an Assistant to the General Attorney for New York Central Railroad Company (1948-1955).
As United States District Judge, Judge Gagliardi presided over the criminal conspiracy trial of two members of President Nixon’s Cabinet, John N. Mitchell and Maurice H. Stans. See United States v. Mitchell, 372 F. Supp. 1239 (S.D.N.Y. 1973). This trial marked the first time that two former Cabinet members had been tried together, as well as the first trial of high- ranking Nixon officials with potential links to the Watergate scandal. Mitchell and Stans were acquitted before Judge Gagliardi, but were later convicted on related charges.
Hon. Mary Johnson Lowe
Judge Lowe was born in 1924 in New York, New York. She was appointed to the United States District Court for the Southern District of New York by President Jimmy Carter in 1978 and assumed senior status in 1991. She served as a senior judge, in New York and in Las Vegas, until her death in 1999.
Judge Lowe graduated from Hunter College of the City University of New York (B.A., 1951), Brooklyn Law School (LL.B., 1954), and Columbia University School of Law (LL.M., 1955), and was in private practice in New York City from 1955 until 1971. Judge Lowe then served as a Criminal Court Judge (1971-1973); Acting Supreme Court Justice for the New York County Supreme Court, Centralized Narcotics Term (1973-1974); a Judge on the Bronx County Supreme Court (1975-1976); and a New York Supreme Court Justice (1977-1978).
As a United States District Judge, Judge Lowe’s notable cases included Pitts v. Black, 608 F. Supp. 696 (S.D.N.Y. 1984) (issuing injunction barring New York City from “refusing to allow homeless individuals to register to vote on the ground that they fail to inhabit traditional residences.”) and Women in City Government United v. City of New York, 515 F. Supp. 295 (S.D.N.Y. 1981) (holding that city pension system, which made the assumption that women lived three years longer than men, discriminated illegally against women by requiring them to make higher contributions even though they received lower monthly benefits when they retired).
Hon. Thomas Francis Murphy
Judge Murphy was born in 1905 in New York, New York. He was nominated to the United States District Court for the Southern District of New York in 1951 by President Harry S. Truman. Judge Murphy assumed senior status in 1970, and served until his death in 1995.
Judge Murphy graduated from Georgetown University (A.B., 1927) and Fordham University School of Law (LL.B., 1930). Following graduation, he worked for twelve years in private practice at the law firm of Alcott, Holmes, Glass & Paul. He became an Assistant United States Attorney in the Southern District of New York in 1942, and served there until 1950, at which time he was appointed Police Commissioner of the City of New York (1950-51).
As a United States District Judge, Judge Murphy entered a judgment of denaturalization against Vladimir Sokolov, a former lecturer at Yale University who Judge Murphy ruled had concealed his past as a Nazi propagandist. But Judge Murphy’s most famous case came during his career as a federal prosecutor, when he procured a jury conviction in the case of Alger Hiss, a former State Department official who was on trial for perjury following accusations that he had lied about passing confidential documents to a Communist party member.
Hon. Charles E. Stewart, Jr.
Judge Stewart was born in 1916 in Glen Ridge, New Jersey. He was appointed to the United States District Court for the Southern District of New York in 1972 by President Richard M. Nixon. Judge Stewart assumed senior status in 1985 and served as a senior judge until his retirement in 1993. He died one year later, in 1994.
Judge Stewart graduated from Harvard College (B.A., 1938) and Harvard Law School (LL.B., 1948). Between college and law school, Judge Stewart served as a Captain in the United States Army (1942-1945). Following law school, he was in private practice in New York City for twenty-six years (1948- 1972), where he specialized in antitrust law.
As a United States District Judge, Judge Stewart’s notable cases included Fuentes v. Roher, 395 F. Supp. 1225 (S.D.N.Y. 1975) (ordering hearing for School Board Superintendent who had been removed for engaging in partisan political conduct during school board elections); Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974) (finding that New York City Board of Elections’ practice of using English as the exclusive language for elections violated the Voting Rights Act); and SEC v. Vesco, 548 F. Supp. 1270 (S.D.N.Y. 1981) (finding that Robert Vesco and others had looted various companies in violation of the securities laws and ordering disgorgement of illicitly gained profits).
Hon. Charles H. Tenney
Judge Tenney was born in New York, New York in 1911. He was appointed to the United States District Court for the Southern District of New York in 1963 by President John F. Kennedy. Judge Tenney assumed senior status in 1979 and served as a senior judge until his death in 1994.
Judge Tenney graduated from Yale University (A.B., 1933; J.D., 1936). Following law school, he worked in private practice at the law firm of Breed, Abbott and Morgan (1936-1942), and then served as a Lieutenant Commander in the United States Naval Reserve on aircraft carriers in the Pacific during World War II (1942-1945). Following the war, Judge Tenney returned to Breed, Abbott and Morgan in 1945, and became a partner in 1951. Judge Tenney served as Commissioner of the Department of Investigations of New York City (1955- 1958), and was then Corporation Counsel (1958-1961), City Administrator (1961- 1962), and Deputy Mayor of the City of New York (1962-1963).
As a United States District Judge, Judge Tenney’s notable cases included Williamsburg Fair Housing Committee v. New York City Housing Authority, 493 F. Supp. 1225 (S.D.N.Y. 1980), in which he issued an injunction barring the New York City Housing Authority from using quotas to favor whites over black or Hispanic applicants in certain Brooklyn housing projects.
Hon. Inzer B. Wyatt
Judge Wyatt was born in 1907 in Hunstville, Alabama. He was appointed to the United States District Court for the Southern District of New York by President John F. Kennedy in 1962. He assumed senior judge status in 1977, but continued to preside over cases until his death in 1990.
Judge Wyatt attended the University of Alabama, Tuscaloosa (A.B., 1927) and Harvard Law School (LL.B., 1930). Following law school, Judge Wyatt worked in private practice in New York City (1930-1941), leaving for three years to serve as a Colonel in the United States Army (1942-1945), but returning to private practice after World War II (1946-1962).
As a United States District Judge, Judge Wyatt’s notable cases included Male v. Crossroad Assoc., 337 F. Supp. 1190 (S.D.N.Y. 1971), in which he granted partial summary judgment to plaintiffs who were not permitted to apply for housing in government-sponsored “urban renewal” housing projects due to their status as welfare recipients.
New York County Lawyers’ Association Committee on the Federal Courts
STEWART D. AARON
CHAIRMAN
HENRY N. DIAZ
MICHAEL FARBIARZ
MICHELE S. KAYNE
ZACHARY S. MCGEE
REPORT SUBCOMMITTEE