Jed S.

Rakoff 1

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

Biography
Rakoff was born in Philadelphia, Pennsylvania January 1, 1943. Nominated by President Bill Clinton on October 11,
1995, he was confirmed by the United States Senate on December 29, 1995, was appointed on January 4, 1996, and
entered on duty on March 1, 1996 to a seat vacated by David N. Edelstein. 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). He has received honorary degrees from
Saint Francis University and from Swarthmore.[2] [3]
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.
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. 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."[4] Judge Rakoff also serves on the Governing Board of the
MacArthur Foundation's Law & Neuroscience Project.[5]
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.[6]

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."[7]

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
Jed S. Rakoff 2

(S.D.N.Y. 2002)[8] 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).[9]

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.[10] 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.[11] AP v. United States DOD,
2006 U.S. Dist. LEXIS 211, 410 F. Supp. 2d 147 (S.D.N.Y. Jan. 4, 2006).[12] 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." [13] [14]
[15] [16] [17] [18] [19] [20]

The Bush Presidency appealed Rakoff's decision, on May 5, 2008.[21]

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
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..."
Jed S. Rakoff 3

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.[22] 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."[23] 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[24]
Coverage[25] [26] [27]
Jed S. Rakoff 4

In re Ephedra Products Liability Litigation

One ruling by the judge on the subject, from 2005. [28]

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

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.[29] Judge Rakoff, in an unusual action, refused to approve the settlement on August 5[30] 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.[31] Washington Post columnist Steven Pearlstein commented
approvingly, "maybe Rakoff is exactly the kind of activist judge we need more of."[32]

References
[1] Federal Judicial Center Bio of Jed Saul Rakoff (http:/ / www. fjc. gov/ servlet/ tGetInfo?jid=1957), US Department of Justice
[2] Jed Rakoff '64: Honorary Degree Citation (http:/ / www. swarthmore. edu/ news/ commencement/ 2003/ rakoff2. html), Swarthmore College,
June 1, 2003
[3] Jed S. Rakoff '64: Commencement Address (http:/ / www. swarthmore. edu/ news/ commencement/ 2003/ rakoff. html), Swarthmore College,
June 1, 2003
[4] Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq. L. Rev. 771 (1980)
[5] "MacArthur Foundation's Law & Neuroscience Project, Governance" (http:/ / www. lawandneuroscienceproject. org/ governance. php). .
Retrieved 2009-09-11.
[6] "HLS : Faculty Directory" (http:/ / www. law. harvard. edu/ faculty/ directory/ facdir. php?id=53). Harvard Law School. . Retrieved
2007-12-29. "Todd D. Rakoff, Byrne Professor of Administrative Law"
[7] Louise Story, Plain Talk From Judge Weighing Merrill Case, New York Times, August 23, 2009 (http:/ / www. nytimes. com/ 2009/ 08/ 24/
business/ 24judge. html)
[8] United States of America v. Alan Quinones et al. (http:/ / www. nysd. uscourts. gov/ rulings/ quinones. pdf), US Department of Justice, 205 F.
Supp. 2d 256 (S.D.N.Y. 2002)
[9] Benjamin Weiser, A Legal Quest Against the Death Penalty; Chance of Error Is Too Great, Even for a Murder Victim's Brother (http:/ /
www. nytimes. com/ 2005/ 01/ 02/ nyregion/ 02judge. html?ex=1262408400& en=f70e950e80e2403f& ei=5090& partner=rssuserland), New
York Times, January 2, 2005
[10] Judge Orders Release of Gitmo Detainee IDs (http:/ / www. boston. com/ news/ nation/ articles/ 2006/ 01/ 23/
judge_orders_release_of_gitmo_detainee_ids/ ), Boston Globe, January 23, 2006
[11] Thom Shanker, Pentagon Plans to Tell Names of Detainees (http:/ / www. nytimes. com/ 2006/ 02/ 26/ politics/ 26gitmo. html), New York
Times, February 26, 2006
[12] AP v. United States DOD, 2006 U.S. Dist. LEXIS 2456 S.D.N.Y. January 23, 2006 ( download (http:/ / www. justicescholars. org/ pegc/
archive/ AP_v_DoD/ opinion_20060123. pdf))
[13] US to release partial list of Guantanamo detainees (http:/ / today. reuters. com/ news/ articlenews. aspx?type=topNews&
storyid=2006-03-03T215154Z_01_N03536159_RTRUKOC_0_US-SECURITY-GUANTANAMO. xml), Reuters, March 3, 2006
[14] Reprocessed Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) Documents Released March 3, 2006:
Testimony of Detainees Before the Combatant Status Review Tribunal (http:/ / www. dod. mil/ pubs/ foi/ detainees/ csrt_arb/ index. html), US
Department of Defense, March 3, 2006
[15] Details of Some Guantanamo Hearings (http:/ / www. washingtonpost. com/ wp-dyn/ content/ article/ 2006/ 03/ 05/ AR2006030500421.
html), Washington Post, March 5, 2006
[16] Varied Tales Emerge From Guantanamo Files (http:/ / www. globalsecurity. org/ org/ news/ 2006/ 060305-gitmo-tales. htm), Global
Security, March 5, 2006
[17] Timeline of AP's Guantanamo-Related Suit (http:/ / www. washingtonpost. com/ wp-dyn/ content/ article/ 2006/ 03/ 04/ AR2006030400759.
html), Washington Post, March 4, 2006
[18] Guantanamo Inmates Despair of Ever Leaving (http:/ / www. blythe-systems. com/ pipermail/ nytr/ Week-of-Mon-20060306/ 033083.
html), The Associated Press March 5, 2006
[19] In Guantanamo Bay Documents, Prisoners Plead for Release: US Makes First Public Accounting of Detainees (http:/ / www.
washingtonpost. com/ wp-dyn/ content/ article/ 2006/ 03/ 04/ AR2006030401183. html), Washington Post, March 5, 2006]
[20] Documents Reveal the Stories of Prisoners at Guantanamo Bay (http:/ / www. latimes. com/ news/ printedition/
la-na-gitmo4mar04,1,2030726. story?ctrack=1& cset=true), L.A. Times, March 4, 2006
[21] Larry Neumeister (May 5, 2008). "NY appeals court weighs IDs of abused Guantanamo detainees" (http:/ / www. ap. org/ foi/ foi_051208a.
htm). Associated Press. . Retrieved 2008-05-05. "Assistant U.S. Attorney Elizabeth Wolstein told the 2nd U.S. Circuit Court of Appeals that
Judge Jed S. Rakoff in Manhattan erred in 2006 when he ordered the names released, finding in favor of a Freedom of Information Act request
Jed S. Rakoff 5

by The Associated Press."

[22] The Honorable Jed Rakoff Approves Settlement of SEC'S Claim for a Civil Penalty Against Worldcom (http:/ / www. sec. gov/ news/ press/
2003-81. htm), US Department of Justice, July 7, 2003
[23] Restoring Trust: Corporate Governance for the future of MCI (http:/ / www. nysd. uscourts. gov/ rulings/ 02cv4963_082603. pdf)
[24] Judge Rakoff's Sentencing Memorandum in United States v. Adelson (http:/ / blog. kir. com/ archives/ Adelson sentencing memorandum
073106. pdf#search="rakoff adelson sentencing memorandum")
[25] Judge Rejects Executive's 85-Year Guideline Sentence as 'Travesty of Justice' (http:/ / www. law. com/ jsp/ article. jsp?id=1154077535388)
[26] Two White-Collar Criminals, Two Very Different Sentences (http:/ / blogs. wsj. com/ law/ 2006/ 07/ 31/
two-white-collar-criminals-two-very-different-sentences/ )
[27] Judge Rakoff's Sentencing Memorandum for Richard Adelson: A "Must Read" (http:/ / federalsentencing. typepad. com/
developments_in_federal_s/ 2006/ 07/ judge_rakoffs_s. html)
[28] http:/ / www. jenner. com/ files/ tbl_s69NewsDocumentOrder/ FileUpload500/ 3476/ In%20re%20Ephedra%20Products. pdf
[29] "BofA Settles S.E.C. Suit Over Merrill Deal" (http:/ / dealbook. blogs. nytimes. com/ 2009/ 08/ 03/
sec-sues-bank-of-america-over-merrill-deal/ #comment-296937) by Zachery Kouwe, DealBook blog, The New York Times, Aug. 3, 2009.
Retrieved 8/3/09.
[30] "Judge blocks Bank of America-SEC bonus settlement" (http:/ / www. reuters. com/ article/ wtUSInvestingNews/
idUSTRE57555A20090807) by Jonathan Stempel, Reuters, 8/6/09. Retrieved 8/7/09.
[31] "Judge Rejects Settlement Over Merrill Bonuses" (http:/ / www. nytimes. com/ 2009/ 09/ 15/ business/ 15bank. html?hp) by Louise Story,
The New York Times, September 14, 2009. Retrieved 9/14/09.
[32] Steven Pearlstein (16 September 2009). "What Kind of Judge Stands Up For Truth and Justice?" (http:/ / www. washingtonpost. com/
wp-dyn/ content/ article/ 2009/ 09/ 15/ AR2009091503498. html). Washington Post. . Retrieved 16 September 2009.

External links
• United States District Court for the Southern District (http://www.nysd.uscourts.gov/)
• Jed S. Rakoff (http://www.fjc.gov/servlet/nGetInfo?jid=1957&cid=999&ctype=na&instate=na) at the
Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
Article Sources and Contributors 6

Article Sources and Contributors

Jed S. Rakoff  Source: http://en.wikipedia.org/w/index.php?oldid=369525422  Contributors: Anders.Warga, BD2412, BanyanTree, Bender235, Benjiboi, Chvynca916, Dugwiki, Feydey,
Frankie816, Geo Swan, Grafen, Ground Zero, Hmains, Jackyd101, Jatkins, Ketsuekigata, Khoikhoi, Lamro, Pakaran, PaulHanson, Petri Krohn, Pink Bull, Plasticup, PolySciGuy,
ROGNNTUDJUU!, Rich Farmbrough, Supergee, Swarthmore99, Swliv, Taxcat, Tglaisyer, Timotheus Canens, Trademarx, Viridian, 192 anonymous edits

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