Jed S. Rakoff

Jed Saul Rakoff (born August 1, 1943) is a United States District Judge for the Southern District of New York.

Biography

Rakoff was born in Philadelphia, Pennsylvania January 1, 1943. Rakoff graduated with honors in English literature from Swarthmore College (B.A. 1964), earned his M. Phil. from Balliol College at Oxford University (1966). He received a J.D.,cum laude, from Harvard Law School (1969), where he was a member of the Harvard Legal Aid Bureau. He has received honorary degrees from Saint Francis University and from Swarthmore.

After serving as law clerk to the late Honorable Abraham Freedman of the U.S. Court of Appeals for the Third Circuit, Rakoff spent two years in private practice at Debevoise & Plimpton before joining the U.S. Attorney's Office for the Southern District of New York. He spent seven years with the Office, the last two as Chief of the Business and Securities Fraud Prosecutions Unit. He then returned to private practice where he was a partner first with Mudge, Rose, Guthrie, Alexander & Ferdon, and then with Fried, Frank, Harris, Shriver & Jacobson. He headed both firms' criminal defense and civil Racketeer Influenced and Corrupt Organizations Act (RICO) sections.

On October 11, 1995, Rakoff was nominated by President Bill Clinton to fill a seat on the Federal Court of the Southern District of New York vacated by David N. Edelstein. He was confirmed by the Senate on December 29, 1995, appointed on January 4, 1996, and entered on duty on March 1, 1996. On December 31, 2010, he assumed senior status.

Since 1988, Rakoff has been a Lecturer in Law at Columbia Law School, teaching a Fall semester seminar on White Collar Crime, and a Spring semester seminar on the Interplay of Civil and Criminal Law. Starting in 2011, he is also teaching a seminar on Science and the Courts. He is a leading authority on the law of white collar crime, and has authored many articles on the topic, as well as leading treatises on RICO and corporate sentencing. Speaking about the federal mail fraud statute, Rakoff wrote, "To federal prosecutors of white-collar crime, the mail fraud statute is our Stradivarius, our Colt .45, our Louisville Slugger, our Cuisinart -- and our true love. We may flirt with [other laws] and call the conspiracy law 'darling,' but we always come home to the virtues of [mail fraud], with its simplicity, adaptability, and comfortable familiarity. It understands us and, like many a foolish spouse, we like to think we understand it." Judge Rakoff also serves on the Governing Board of the MacArthur Foundation's Law & Neuroscience Project.

Swarthmore, in conferring his honorary degree, noted that Rakoff is "broadly recognized as a legal thinker, scholar and judge who not only elucidates and enforces the law, but interprets, defends and challenges it in light of the principles of ethics and social justice that it is designed to serve" and that his opinions "are cited as models of intellectual clarity and judicial vision by lawyers and judges throughout this nation."

Judge Rakoff's younger brother, Todd, is a professor at Harvard Law School.

Notable cases

"Known as a maverick in legal circles, Judge Rakoff has in the past found the death penalty illegal, inserted himself into corporate governance reform at WorldCom, and pushed for the release of documents in private settlements."

United States v. Quinones

In 2002, Rakoff declared the federal death penalty unconstitutional, writing that "the best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions. It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process." United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002) Although his opinion was heralded by the New York Times as "a cogent, powerful argument that all members of Congress - indeed, all Americans - should contemplate," the decision was subsequently reversed by the United States Court of Appeals for the Second Circuit, United States v. Quinones, 313 F.3d 49 (2d Cir. 2002).

Associated Press v. Dep't of Defense

In November 2004, the Associated Press submitted a request under the Freedom of Information Act seeking unredacted transcripts of the Department of Defense's Combatant Status Review Tribunals' proceedings and related documentation. In response, the Government invoked FOIA's Exemption 6, claiming that they redacted identifying information in order to protect the detainees' personal privacy (but the Government never argued that any of the redactions were required by national security). Rakoff's rulings highlighted what he viewed as the hypocrisy of the Government's position—as he wrote, "one might well wonder whether the detainees share the view that keeping their identities secret is in their own best interests" -- and held that, in any case, the detainees had no reasonable expectation of privacy in the information at issue. He therefore ordered the Department of Defense to release the unredacted transcripts (including the detainees' names) and related documentation. AP v. United States DOD, 2006 U.S. Dist. LEXIS 211, 410 F. Supp. 2d 147 (S.D.N.Y. Jan. 4, 2006). The Department of Defense complied with the order, releasing the unredacted transcripts and related documents relating to those 317 detainees (of the approximately 500 at Guantanamo) who participated in Combatant Status Review Tribunals: "Forced by a federal court to lift the cloak of secrecy that had long shrouded the U.S. prison at Guantanamo Bay, Cuba, the Pentagon released thousands of pages of documents Friday containing names and other details for hundreds of detainees scooped up after the Sept. 11 attacks. The records provide the most comprehensive view to date of the Guantanamo prison population, as well as an exhaustive catalog of the U.S. government's charges against detainees who — in page after page of tribunal proceeding transcripts — protest their treatment and proclaim their innocence."

The Bush Presidency appealed Rakoff's decision, on May 5, 2008.

UMG Recordings, Inc. et al. v. MP3.com, Inc.

The Recording Industry Association of America, on behalf of the five major recording labels, brought suit against MP3.com. In UMG v. MP3.com, Rakoff granted partial summary judgment in favor of the RIAA, observing that internet companies "may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law," but that "[t]hey need to understand that the law's domain knows no such limits." UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000)

Aguinda v. Texaco

See also: Lago Agrio oil field

Judge Rakoff presided over a class action lawsuit against Texaco, brought under the Alien Tort Claims Act, by a class of Ecuadoreans, including several indigenous tribes, claiming that Texaco caused extensive destruction to the Oriente rainforest. Judge Rakoff dismissed the case on forum non conveniens grounds, writing "While reserving final decision on this motion, the Court is tentatively of the view that, if Ecuador provides an adequate alternative forum, it is the proper place to try these cases, with the Peruvian plaintiffs afforded the alternative of a Peruvian forum if they so prefer. Indeed, the voluminous record before the Court demonstrates that these cases… have everything to do with Ecuador and very little to do with the United States. Moreover, the notion that a New York jury (which plaintiffs have demanded) applying Ecuadorian law (which likely governs the claims here made) could meaningfully assess what occurred in the Amazonian rainforests of Ecuador in the late 1960s and early 1970s is problematic on its face..."

SEC v. WorldCom

Rakoff presided over the Securities and Exchange Commission's accounting fraud suit against WorldCom, and, on July 7, 2003, approved a settlement between the SEC and Worldcom. Rakoff appointed Richard C. Breeden, former Chair of the Securities and Exchange Commission, to serve as Corporate Monitor. Breeden actively involved himself in the management of the company, and prepared a report for Judge Rakoff, titled Restoring Trust, in which he proposed extensive corporate governance reforms, as part of an effort to "cast the new MCI into what he hoped would become a model of how shareholders should be protected and how companies should be run." The reforms were implemented, and Rakoff later credited Breeden with "helping to transform a fraud-ridden company into an honest, well-governed, economically viable entity, MCI, Inc." WorldCom was purchased by Verizon in January 2006.

Motorola Credit Corp. v. Uzan

Motorola Credit Corporation and Nokia brought suit against the Uzan family of Turkey. Judge Rakoff found that the Uzans perpetrated a multi-billion-dollar fraud in connivance with various corporate defendants, involving the making of numerous false statements designed to induce Motorola and Nokia to extend the loans in issue, diluting the collateral pledged to secure the loans, and filing false criminal charges in Turkey against plaintiffs' senior executives, claiming that the executives engaged in "explicit and armed threat[s] to kill," blackmail, and kidnap members of the Uzan family. Rakoff awarded over $2.1 billion in compensatory damages and an equal amount in punitive damages. Motorola Credit Corp. v. Uzan, 274 F. Supp. 2d 481 (S.D.N.Y. 2003).

United States v. Adelson

Richard Adelson was charged with securities fraud, causing false reports to be filed with the SEC, soliciting proxies through false statements, and conspiring with others to commit such acts. The gist of the indictment was that Adelson, as Chief Operating Officer and, (eventually) President of Impath, Inc. -- a public company specializing in cancer diagnosis testing—joined a conspiracy, initially concocted by others, to materially overstate Impath’s financial results, thereby artificially inflating the price of its stock. A jury convicted Adelson of conspiracy, securities fraud, and the three of the false filing counts that related to filings made in the latter half of 2002, but acquitted him of all seven counts that related to earlier filings.

At sentencing, the Government argued that the Sentencing Guidelines called for a sentence of life imprisonment, cabined only by the maximum of 85 years permitted under the counts of which Adelson was convicted. Judge Rakoff objected that the Guideline's inordinate emphasis on "loss amount" was inappropriate in this case, especially since the jury's verdict suggested that Adelson only joined the conspiracy toward its end, and he therefore concluded that "This is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law." Rakoff therefore focused on the other statutory sentencing considerations—including the history and characteristics of the defendant, and the need for condemnation, rehabilitation, incapacitation, specific deterrence, general deterrence—and concluded that they required a sentence of no more than 42 months.

In conclusion, Judge Rakoff wrote, "To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have run so amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences."

Judge Rakoff's Sentencing Memo

Coverage

Bank of America/Merrill Lynch merger/bonuses issue: Settlement with SEC rejected

Main article: Bank of America § Bonus issues: Settlement agreed but rejected by judge

On August 3, 2009, Bank of America agreed to pay a $33 million fine, without admission or denial of charges, to the U.S. Securities and Exchange Commission (SEC) over the non-disclosure of an agreement to pay up to $5.8 billion of bonuses at Merrill. Judge Rakoff, in an unusual action, refused to approve the settlement on August 5 and then, on September 14, after at least one hearing, rejected the settlement outright and told the parties to prepare for trial to begin no later than February 1, 2010. Washington Post columnist Steven Pearlstein commented approvingly, "maybe Rakoff is exactly the kind of activist judge we need more of."

Peer-reviewed presentation in the 16th World Criminology Congress in Kobe, Japan (2011) opined fraud on the court by Judge Jed Rakoff in litigation of SEC v Bank of America Corporation (1:09-cv-06829).

External links

• United States District Court for the Southern District
• Jed S. Rakoff at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.