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Loretta Preska

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Loretta Preska
Loretta A. Preska.jpg
Senior Judge of the United States District Court for the Southern District of New York
Assumed office
March 1, 2017
Preceded byThomas P. Griesa
Chief Judge of the United States District Court for the Southern District of New York
In office
2009 – May 31, 2016
Preceded byKimba Wood
Succeeded byColleen McMahon
Judge of the United States District Court for the Southern District of New York
In office
August 12, 1992 – March 1, 2017
Appointed byGeorge H. W. Bush
Preceded byRobert Joseph Ward
Succeeded byMary Kay Vyskocil
Personal details
Born (1949-01-07) January 7, 1949 (age 72)
Albany, New York, US
EducationCollege of Saint Rose (BA)
Fordham University School of Law (JD)
New York University School of Law (LLM)

Loretta A. Preska (born January 7, 1949) is an American federal judge who is currently a senior U.S. District Judge of the United States District Court for the Southern District of New York. Born in Albany, Preska received law degrees from Fordham University School of Law and New York University School of Law. She practiced law in New York City from 1973 to 1992 at the law firms of Cahill Gordon & Reindel and Hertzog, Calamari & Gleason (now Winston & Strawn). President George H. W. Bush appointed her to the district bench in 1992. She served as chief judge of the court for a seven-year term from 2009 to 2016, and took senior status in 2017. President George W. Bush nominated Preska to the U.S. Court of Appeals for the Second Circuit in 2008, but the Senate did not act on the nomination. She is a member of the Federalist Society.[1]

Early life and education[edit]

Preska was born in Albany, New York,[2][3] on January 7, 1949,[3] to her father, Victor, an engineer at Benét Laboratories at Watervliet Arsenal, and her mother, Etta Mae, a registered nurse.[4] She is of Lithuanian descent.[5][6] She grew up in the Albany suburb of Delmar, where she was active in the Girl Scouts and graduated from Bethlehem Central High School.[4]

She earned her B.A. degree in chemistry from the College of Saint Rose (1970),[3] her J.D. from Fordham University School of Law (1973),[2][7] and her LL.M from New York University School of Law (1978).[2] Her LL.M work focused on trade regulation.[3]

Legal career[edit]

Preska was an attorney in private practice in New York City from 1973 until 1992.[2] She worked at Cahill Gordon & Reindel from 1973 to 1982, and then at Hertzog, Calamari & Gleason[a] from 1982 until her appointment to the federal bench.[3] She primarily practiced commercial civil litigation in the federal courts,[9] but also represented several officers of EF Hutton in grand jury proceedings in connection with a case in which the company entered criminal guilty pleas.[3] She cites Floyd Abrams as a friend and mentor.[9][4]

Federal judicial service[edit]

Preska was nominated by President George H. W. Bush on March 31, 1992, to a seat on the United States District Court for the Southern District of New York vacated by Judge Robert Joseph Ward.[2] Senator Al D'Amato recommended the nomination.[10][11] Preska was confirmed by the United States Senate on August 11, 1992,[2][12] by unanimous consent.[12] She received her commission the following day.[2] Her confirmation was part of a "bipartisan package" that also including the confirmation of Sonia Sotomayor (who later became a Supreme Court justice).[4] Sotomayor was confirmed by the Senate to the district bench the same day, also unanimously.[11]

Preska served as chief judge of the court for a seven-year term from June 1, 2009 to May 31, 2016,[2] succeeding Kimba M. Wood in the role.[13] As chief judge, Preska pressed for more adequate funding for the federal judiciary,[14] which suffered from the effects of the Great Recession[7] and budget sequestration.[4] In 2010, as chief judge, Preska issued an order permitting criminal defense attorneys to carry mobile phones into the courthouse; previously, only federal prosecutors were permitted to do so. The rule change followed several years of lobbying by the Federal Bar Council.[15]

She took senior status on March 1, 2017.[2]

Consideration for higher courts[edit]

In 2007, it was reported that Preska was on President George W. Bush's short list of potential Supreme Court nominees.[16]

On September 9, 2008, Bush nominated Preska to a judgeship on the U.S. Court of Appeals for the Second Circuit to replace Judge Chester J. Straub, who retired.[17] The American Bar Association's Standing Committee on the Federal Judiciary unanimously rated Preska "well qualified" for the circuit judgeship, the committee's highest rating.[18] The Senate did not act on the nomination, and it expired in January 2009 at the end of the 110th Congress,[4][19] upon the sine die adjournment of the Senate.[19]

Tenure and notable cases[edit]

Preska is considered a conservative judge,[4][20] and was a member of the advisory board of the Federalist Society.[20] Preska has presided over a number of notable cases.

Civil cases[edit]

Commercial, copyright, and contract litigation[edit]

In Leibovitz v. Paramount Pictures Corp. (1996), Preska ruled that an image of the actor Leslie Nielsen seemingly pregnant that mimicked a similar photo of Demi Moore was fair use as parody. Her ruling was upheld by the Second Circuit in 1998.[21][22] In National Basketball Association v. Motorola, Inc. (1997), Preska ruled in favor of the NBA, granting a permanent injunction blocking Motorola Inc. and a statistics company from transmitting real-time basketball scores and other statistics through its "SportsTrax" pager service. Preska ruled that the service was a commercial misappropriation rather than mere media coverage, but dismissed the NBA's copyright and Lanham Act false-advertising claims. On appeal, the Second Circuit vacated the injunction, finding that the service was neither an unlawful misappropriation nor a Lanham Act violation.[23]

Preska presided over the case of Mastercard International Inc. v. Fédération Internationale de Football Association (2006), brought by MasterCard against FIFA after the soccer association awarded sponsorship deals for the next two World Cups to MasterCard's rival Visa.[24][25] Preska ruled in December 2006 that FIFA had violated its previous 16-year sponsorship contract with MasterCard, which included a clause granting MasterCard a right of first refusal.[25][24] The parties subsequently settled the case.[24]

In Zuckerman v. Metropolitan Museum of Art (2018), Preska ruled in favor of the Metropolitan Museum of Art, dismissing a lawsuit seeking the return of Picasso's painting The Actor to the heir of its original owners, Paul and Alice Leffmann. The Leffmanns were a German Jewish couple who sold the painting in 1938 to finance their flight from Nazis. The painting was acquired by the Met in 1952. Preska ruled that the Leffmanns' heir could not show, under New York law, that the painting was sold under duress. The U.S. Court of Appeals for the Second Circuit affirmed the dismissal on the ground that the claim was raised too late (72 years after the work was sold and 58 years after it was donated to the art museum).[26]

Defamation litigation[edit]

In 1998, Preska presided over a defamation suit brought by Richard Jewell against the New York Post. Jewell, who was wrongly suspected of being the Centennial Olympic Park bomber, alleged that several articles, headlines, photographs, and editorial cartoons in the newspaper had libeled him. Preska dismissed claims based on a photograph and an editorial cartoon, but allowed the remainder of the claims to proceed.[27] The Post subsequently settled the case for an undisclosed sum.[28]

In 2019, Preska disqualified the law firm of Boies Schiller Flexner LLP from representing Virginia Giuffre in her lawsuit against professor emeritus Alan Dershowitz, but denied Dershowitz's motion to dismiss the suit, in which Giuffre alleged that Dershowitz falsely claimed that she fabricated her sexual-abuse accusations against Jeffrey Epstein, and thus defamed her.[29][30][31] In 2020, Preska denied a motion by British socialite Ghislaine Maxwell, an Epstein associate charged with recruiting girls abused by Epstein, to block the public release of her 2016 deposition testimony in a civil case. Preska stayed her ruling pending Maxwell's appeal to the Second Circuit.[32]

Labor litigation[edit]

Preska presided over long-running litigation between Local 100 of the Hotel Employees and Restaurant Employees Union and New York's Metropolitan Opera.[33] In June 2000, Preska found the union to be in contempt, determining that the union had defamed the Met and engaged in harassment of Met board members.[33] Preska enjoined the union from distributing leaflets at the opera, but at the 2000 season opening, the union held a demonstration.[33] In February 2001, a panel of the U.S. Court of Appeals for the Second Circuit vacated the injunction, holding that "While the injunction presents serious questions under the First Amendment and libel law, we hold that the injunction is impermissibly vague because it fails to provide the Union with adequate notice of what conduct is being enjoined."[34] In November 2002, however, the Second Circuit held that Lincoln Center could permissibly block the union from holding a rally in Lincoln Plaza,[33][35] holding that the location was not a "public forum" and that Lincoln Center management had a consistent policy of limiting "expression in the plaza to events having an artistic or performance-related component."[35] In January 2003, in a strongly worded 148-page decision, Preska ruled in favor of the Met in its defamation and harassment suit against the union, writing that the union and its counsel had withheld evidence in violation of the discovery rules and had not been truthful to the court. She ordered the union to pay the Met's sizable legal fees.[33][36]

In 2015, Preska approved a settlement agreement between the federal government and the International Brotherhood of Teamsters, terminating the consent decree that had been in place for 25 years. The consent decree required certain reforms to combat organized crime influence and corruption within the union, and had been entered into in 1989 to settle a civil racketeering suit brought against the Teamsters by the government. Under the settlement, a five-year transition away from federal monitoring of the union began.[37]

Other litigation[edit]

In Bloomberg L.P. v. Board of Governors of the Federal Reserve System (2009), Preska presided over a Freedom of Information Act suit brought by Bloomberg L.P. against the Federal Reserve System, seeking to compel the Fed to provide documents revealing the identity of recipients of bailout money during the global financial crisis, along with the types and amounts of collateral provided. Preska sided with Bloomberg News reporters, concluding that the Fed's claims that disclosure would cause an "imminent competitive harm" to borrowers were merely conjecture. The Second Circuit affirmed this ruling.[38]

In a 2014 case, Microsoft challenged a federal search warrant for a customer's email records, on the ground that the data was stored on servers in a data center in Ireland and could not be produced to the U.S. authorities without an Irish warrant. The magistrate judge denied Microsoft's motion to quash the warrant, and following a hearing, Preska upheld the magistrate judge's ruling in a decision from the bench, holding that "It is a question of control, not a question of the location of that information."[39] In 2016, the Second Circuit reversed on appeal, determining that the Stored Communications Act of 1986 did not apply extraterritorially.[40] The case went to the Supreme Court, but was dismissed as moot due to Congress's enactment of the CLOUD Act in 2018, which created a process for U.S. investigators to access data stored overseas.[41]

In Consumer Financial Protection Bureau v. RD Legal Funding, LLC (2018), Preska overturned the entirety of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the Consumer Financial Protection Bureau. Preska ruled that the law establishing the CFPB's structure was unconstitutional because it established that the agency's single director could be removed by the president only for cause.[42][43] Preska disagreed with the en banc decision of the U.S. Court of Appeals for the District of Columbia Circuit that upheld the constitutionality of the CFPB's structure, and sided with the dissenter in that case, then-Judge Brett Kavanaugh, who believed that the protections for the CFPB director violated the Constitution's Take Care Clause.[42] (The U.S. Supreme Court ultimately ruled, in a 5–4 decision in Seila Law v. CFPB (2020), that the law's mandate that a CFPB director be removed only "for cause" was unconstitutional, but severed that portion of the statute, allowing the CFPB to continue operating while making its director removable at the will of the president.)[43]

Criminal cases[edit]

In 2008, Susan Lindauer, a former journalist and congressional aide charged with acting as an unregistered foreign agent of Saddam Hussein's Iraqi government, was released after Preska ruled her unfit to stand trial, saying that she was "highly intelligent" and "generally capable of functioning at a high level in many ways," but suffered from a mental disease or defect that left her with "a lack of connection with reality" and rendered her "unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense."[44] Preska's ruling affirmed earlier rulings by Judge Michael B. Mukasey.[44]

In 2011, Preska sentenced Somali pirate Abduwali Muse to 33 years in prison for his leadership of a group of pirates who seized the Maersk Alabama and held its crew hostage. In pronouncing sentence, Preska cited the defendant's "depraved acts of physical and psychological violence" including forcing Captain Richard Phillips to undergo a mock execution.[45]

Preska oversaw the criminal case against Hector Xavier Monsegur ("Sabu"), a computer hacker who assisted Anonymous and others in cyberattacks targeting credit card companies, various governments, and media outlets.[46][47] Monsegur became a government informant immediately after his arrest in early 2011, and pleaded guilty in August 2011 to twelve counts of hacking, fraud, and identity theft. In 2014, Preska sentenced Monsegur to time served (seven months in jail) and a $1,200 fine; federal prosecutors requested, and Preska granted, the lenient sentence due to Monsegur's "extraordinary" cooperation with the government.[46][47] Information from Monsegur helped lead the authorities to at least eight co-conspirators, including Jeremy Hammond,[46] and helped to stymie at least 300 cyberattacks.[47] Hammond pleaded guilty in 2013 to hacking the private intelligence firm Stratfor, and Preska sentenced him to the maximum 10 years.[46][48]

In 2009, Ahmed Khalfan Ghailani, the first detainee brought from the Guantanamo Bay detention camp to stand trial in a U.S. civilian court (as opposed to a Guantanamo military commission), appeared before Preska to plead not guilty.[49][50] In 2010, Ghailani subsequently was convicted by a jury of conspiracy in the 1998 bombing of U.S. embassies in Kenya and Tanzania, and in 2011 was sentenced to life in prison.[51] Ghailani's trial and sentencing were by a different Southern District judge, Lewis A. Kaplan.[51][6]

In 2014, Preska sentenced Eric Stevenson, a former New York state assemblyman from the Bronx, to three years in prison for bribery.[52] In 2019, Preska sentenced Patrick Ho, a former Hong Kong ophthalmologist and government official, to three years in prison for conspiring to bribe African government officials (specifically, the presidents of Chad and Uganda) to secure oil rights for CEFC China, an energy company.[53]

In 2017, Preska sentenced former Rikers Island guard Brian Coll to 30 years in prison for beating inmate Ronald Spear to death in 2012.[54] Coll had been convicted the preceding year of deprivation of civil rights resulting in death, obstruction of justice, falsifying records, and conspiracy. Coll repeatedly kicked Spear, a seriously ill pretrial detainee in the jail complex's infirmary unit, in the head while other guards held the inmate face-down on the floor. During the sentencing hearing, Preska criticized a "culture of violence and poor treatment of inmates" at Rikers and referred to the "particularly vicious and callous" nature of Coll's attack on Spear.[54]

Preska oversaw the proceedings against Chuck Person, a former NBA player and assistant coach of the Auburn Tigers men's basketball team, who was implicated in a college basketball corruption scandal.[55] Preska denied Person's motion to dismiss the charges.[55][56] In 2019, after he pleaded guilty to conspiracy to commit bribery, Preska sentenced him to two years of probation and 200 hours of community service. She found that "no purpose would be served" by sending the remorseful Person to prison; rejected prosecutors' argument that Person was motivated by "insatiable greed"; and cited Person's long record of charitable giving.[57]

Preska is presiding over the criminal contempt trial of Steven Donziger, which is pending.[58][59][60]

Personal life[edit]

In 1983, Preska married Thomas J. Kavaler, with whom she attended law school. Kavaler was the editor-in-chief of the Fordham Law Review and is a partner at Cahill Gordon & Reindel.[61] They live in Garrison, New York.[62] The couple had two children.[5]

Notes[edit]

  1. ^ Hertzog, Calamari & Gleason merged into Winston & Strawn in 1999.[8]

References[edit]

  1. ^ https://fedsoc.org/contributors/loretta-preska
  2. ^ a b c d e f g h i "Preska, Loretta A." Biographical Directory of Article III Federal Judges, 1789–present. Federal Judicial Center.
  3. ^ a b c d e f Confirmation Hearings on Appointments to the Federal Judiciary, May 14, June 4, 18, and July 1, 1992, Pt. 9, Serial No. J-102-7, United States Senate Committee on the Judiciary, 102nd Congress, 1st Session (1993), pp. 317–30.
  4. ^ a b c d e f g Phil Schatz, Judicial Profile: Hon. Loretta A. Preska: Chief U.S. District Judge, Southern District of New York, The Federal Lawyer (December 2013).
  5. ^ a b Confirmation Hearings on Appointments to the Federal Judiciary, May 14, June 4, 18, and July 1, 1992, Pt. 9, Serial No. J-102-7, United States Senate Committee on the Judiciary, 102nd Congress, 1st Session (1993), p. 220.
  6. ^ a b The Judicial Front in the War on Terror: Interview with Loretta Preska, Center for Oral History, United States Military Academy, West Point, New York.
  7. ^ a b "Captain of the Mother Court: Judge Loretta Preska". Law360. February 19, 2014.
  8. ^ Corporate Law – Corporate Attorney David Hertzog Rejoins Winston & Strawn (press release), Winston & Strawn via Lawfuel (May 19, 2009).
  9. ^ a b Confirmation Hearings on Appointments to the Federal Judiciary, May 14, June 4, 18, and July 1, 1992, Pt. 9, Serial No. J-102-7, United States Senate Committee on the Judiciary, 102nd Congress, 1st Session (1993), pp. 204–06.
  10. ^ Alumni Stories, Honorable Loretta A. Preska '70, H '95, College of St. Rose (last accessed September 6, 2020).
  11. ^ a b A Small Whittling Down of Federal Bench Vacancies, New York Times (August 16, 1992), p. 43.
  12. ^ a b PN1003 — Loretta A. Preska — The Judiciary: 102nd Congress (1991–1992), Congress.gov.
  13. ^ Meet the Judges: Southern District Chief Judge Loretta Preska, New York Law Journal (June 13, 2014).
  14. ^
  15. ^ John Eligon, Now, Cellphones for the Defense, Too, New York Times (February 19, 2010).
  16. ^ Jan Crawford Greenburg, EXCLUSIVE: Women, Minorities Top Bush's Supreme Court Short List, ABC News, June 1, 2007
  17. ^ Nominations and Withdrawals Sent to the Senate (press release), White House Office of the Press Secretary (September 9, 2008).
  18. ^ Ratings of Article III Judicial Nominees: 110th Congress, American Bar Association Standing Committee on the Federal Judiciary (last updated November 20, 2008).
  19. ^ a b PN1989 — Loretta A. Preska — The Judiciary: 110th Congress (2007–2008), Congress.gov.
  20. ^ a b Tom Wrobleski, Staten Islanders quick to chide judge for wiping her feet on the flag, Staten Island Advance (December 30, 2011).
  21. ^ Leibovitz v. Paramount Pictures Corp., 948 F. Supp. 1214 (S.D.N.Y. 1996), aff'd, 137 F.3d 109 (2d Cir. 1998).
  22. ^ Get Over Yourself: Parody and Fine Art, Federal Bar Association (November 10, 2016).
  23. ^
  24. ^ a b c Martha Graybow, MasterCard and FIFA settle World Cup sponsor fight, Reuters (June 21, 2007).
  25. ^ a b Mastercard International Inc. v. Fédération Internationale De Football Association, 464 F. Supp. 2d 246 (S.D.N.Y. 2006).
  26. ^
  27. ^
  28. ^ Paul Farhi, What Clint Eastwood’s new movie gets very wrong about the female reporter who broke the Richard Jewell story, Washington Post (December 10, 2019).
  29. ^ Giuffre v. Dershowitz, 410 F. Supp. 3d 564 (S.D.N.Y. 2019).
  30. ^ Tom Jackman & Deanna Paul, David Boies thrown out of libel suit he filed against Alan Dershowitz, Washington Post (October 16, 2020).
  31. ^ Tom Winter, Sarah Fitzpatrick and Adiel Kaplan, Judge denies Alan Dershowitz's motion to dismiss Epstein-related defamation suit, NBC News (October 16, 2019).
  32. ^ Larry Neumeister, Epstein's ex-girlfriend tries late bid to seal testimony, Associated Press (July 29, 2020).
  33. ^ a b c d e Ralph Blumenthal, Judge Rules for the Met In Opera's Labor Dispute, New York Times (January 31, 2003).
  34. ^ Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees & Restaurant Employees Union, 239 F.3d 172 (2d Cir. 2001).
  35. ^ a b Thomas J. Lueck, Justices Uphold Lincoln Center's Ban on Rallies, New York Times (November 19, 2002).
  36. ^ Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees & Restaurant Employees Union, 212 F.R.D. 178 (S.D.N.Y. 2003).
  37. ^
  38. ^
  39. ^
  40. ^
  41. ^ U.S. Supreme Court Dismisses U.S. v. Microsoft as Moot After CLOUD Act Signed Into Law, Sullivan & Cromwell LLP (April 19, 2018).
  42. ^ a b Debra Cassens Weiss, Judge rules Consumer Financial Protection Bureau is unconstitutionally structured and can't sue, ABA Journal (June 22, 2018).
  43. ^ a b Pratin Vallabhaneni & Margaux Curie, US Supreme Court Rules CFPB's Leadership Structure is Unconstitutional but Leaves CFPB Intact, White & Case (July 8, 2020).
  44. ^ a b Weiser, Benjamin (September 17, 2008). "Woman Accused of Iraq Ties Is Ruled Unfit for Trial Again". The New York Times.
  45. ^ "Somali pirate sentenced to 33 years in US prison". BBC News. February 16, 2011.
  46. ^ a b c d Tina Susman, Hacker-turned-informant Sabu is a free man after N.Y. sentencing, Los Angeles Times (May 27, 2014).
  47. ^ a b c Benjamin Weiser, Hacker Who Helped Disrupt Cyberattacks Is Allowed to Walk Free, New York Times (May 28, 2014).
  48. ^ Aaron Katersky, Anonymous Stratfor Hacker Given 10 Years, ABC News (November 15, 2013).
  49. ^ Honan, Edith (June 9, 2009). "First Guantanamo suspect moved to U.S. for trial". Reuters.
  50. ^ Weiser, Benjamin (June 10, 2009). "A Plea of Not Guilty for Guantánamo Detainee". The New York Times.
  51. ^ a b
  52. ^ Sean Gardiner, New York State Assemblyman Is Sentenced After Bribery Conviction, Wall Street Journal (May 22, 2014).
  53. ^
  54. ^ a b
  55. ^ a b Judge upholds charges against ex-Auburn Coach Chuck Person, Associated Press (January 3, 2019).
  56. ^ United States v. Person, 373 F. Supp. 3d 452 (S.D.N.Y. 2019).
  57. ^ Larry Neumeister, Former Auburn assistant basketball coach avoids prison, Associated Press (July 17, 2019).
  58. ^ Malo, Sebastien (August 28, 2020). "Judge drags Donziger's ex-atty back in to court to represent him at conduct trial". Reuters. Retrieved September 13, 2020.
  59. ^ Klasfeld, Adam (August 13, 2019). "When Feds Demur, Judge Charges Ecuador Crusader Himself". Courthouse News. Retrieved September 13, 2020.
  60. ^ Jason Grant, Backed by New High-Profile Defense Lawyer and Public Rallies, Donziger Fights Contempt Charges as Trial Looms, New York Law Journal (December 22, 2020).
  61. ^ Loretta Preska Weds Thomas J. Kavaler, a Fellow Lawyer, New York Times (September 12, 1983).
  62. ^ Michael Turton, Judge Loretta Preska to be Honored with Trailblazer Award, Highlands Current (September 21, 2013).

Sources[edit]

Legal offices
Preceded by
Robert Joseph Ward
Judge of the United States District Court for the Southern District of New York
1992–2017
Succeeded by
Mary Kay Vyskocil
Preceded by
Kimba Wood
Chief Judge of the United States District Court for the Southern District of New York
2009–2016
Succeeded by
Colleen McMahon