Latest Rakoff v. SEC v. Citi Opinion: Worth A Read

Here it is:

http://www.scribd.com/doc/76796383/122911rakoff

Having taken aim at  the SEC, Rakoff has now turns a bazooka toward its lawyers and Citi's  lawyers, too, accusing all (but more so the SEC) of "seemingly...materially misleading" statements to him and to the Circuit.

The words "seemingly" and "appears" in the opinion softens it (but not by much). Still, maybe what I should say is that Rakoff has taken aim at the lawyers but has not pulled the trigger (yet).

"Seemingly" may also explain why the court's order ("sanction" won't do here) is simply to keep the lower court informed of whatever papers are filed with the higher court.

Beyond warning the lawyers, the important goal of Rakoff's opinion is to tell  the Circuit his side of the story because, as he notes, the parties are in accord before the Circuit. No one is up there to correct omissions or misstatements. Rakoff, who will now be on notice of all filings, stands ready to do that with supplemental orders. 

 

Comments

[John Steele]

Wow, that's some high stakes poker being played by all sides. I'm not 100% convinced by Judge Rakoff's arguments (2-3) that the appeal was "misleading" in the sense that it failed to accurately characterize the legal significance of a motion to dismiss. [edited] And it's certainly interesting to see a judge say expressly, in fn 1, that no one is offering arguments on behalf of the trial court. That's a sentiment you often assume the trial judge harbors but it's usually just implicit.

Steve, there's been some argument back and forth about whether Judge Rakoff has quite properly held the parties' feet to the fire on the substantive merits or, perhaps, has gotten personally vested in the result in a way that's now an obstacle. Do you have any thoughts on that?

[Stephen Gillers]

When I read the NY Times story, I thought Rakoff may have been allowing an inference of personal engagement one needs to avoid. The media, even the Times, will often lead with the fact of a clash. The actual opinion, however, eliminates that concern. Not that's it's gentle -- Rakoff is obviously annoyed -- but I don't think it's personal or over the line.

[Monroe Freedman]

The Supreme Court held in Liteky that disqualification must be based on the influence of extra-judicial sources,and that "matters arising out of the course of judicial proceedings are not a proper basis for recusal." This recognizes that part of a judge's job is to develop reactions, sometimes strong ones, for and against litigants as the case unfolds. That appears to be what has happened in the case before Judge Rakoff.