Hon. Loretta A. Preska: Chief Judge Of The "Mother Court"

Sunday, October 4, 2009 - 01:00

The Editor interviews Hon. Loretta A. Preska, Chief U.S. District Judge, Southern District of New York.

Editor: You recently became Chief Judge of the U.S. District Court for the Southern District of New York. What can you tell us about the history and work of the Court in this District?

Preska: It is indeed an honor to be serving as Chief Judge of the Mother Court. As you know, The Judiciary Act of 1789 established the Supreme Court of the United States. The Act also established thirteen judicial districts, which generally followed state lines. Each district court consisted of one district judge to preside over the four annual sessions of the court. The District of New York became the first federal court to organize under the sovereignty of the United States - preceding the Supreme Court by several weeks - when Judge James Duane's commission was read on November 3, 1789. Hence, the Southern District of New York is often referred to as the Mother Court.

The Court's beginnings were slow, with over five months elapsing before Judge Duane heard his first case in April of 1790. Customs cases took up over three-quarters of the young District's activities, with a few minor admiralty suits from the sale of ships rounding out the docket. The Court's activities slowly began to pick up over the next decade, particularly claims from the seizure of ships.

The Southern District as we know it was carved out of the rest of the District of New York in 1814, just as New York City's growing population and role as a key harbor and commercial hub increased the volume and importance of cases before the Court. Over the next hundred years, the Southern District made significant contributions in the field of maritime and admiralty law, spanning issues such as collisions, customs, seamen's wages, marine insurance, engagement in slave trade, naval seizures of enemy property, and other armed conflict issues arising from the War of 1812 and the Civil War. With the enactment of the Bankruptcy Act of 1898 and a surge in bankruptcy cases, the Court was forced to create a second judgeship to deal with its bulging docket. The District's growth has not slowed since.

Today, the Southern District is the busiest and largest federal court in the country. In 2008 alone, 12,124 civil cases were filed. There are currently forty-five district judges, fifteen magistrate judges, and eleven bankruptcy judges, housed in the Daniel Patrick Moynihan United States Courthouse at Foley Square, the Hon. Charles L. Brieant Jr. Federal Building and Courthouse in White Plains, the bankruptcy court in Alexander Hamilton Customs House at One Bowling Green, and the United States Courthouse in Middletown. In addition, the District Executive's Office, led by Clifford Kirsch, and the Clerk's Office, led by J. Michael McMahon, serve approximately 800 employees working to ensure the smooth and efficient operation of the Court on a daily basis. The Court also oversees the operations of the Probation and Pretrial Services offices.

Editor: What types of cases do you regularly see in the Southern District?

Preska: We see them all: contract, antitrust, securities, prisoner petitions, labor, and all other types of matters, both civil and criminal. Contract disputes were our biggest category of suits filed in 2008, representing almost 30 percent of the civil docket. Personal injury and civil rights suits were second and third, representing roughly 18 percent and 13 percent respectively. Some types of cases that occupy a very small percentage of the civil docket still take up a considerable amount of the Court's time and effort. Antitrust and securities cases, for example, account for only 0.49 percent and 3.33 percent of the civil docket, yet often involve complex and challenging issues.

If you look at the 23,230 civil suits pending as of September 9, 2009, you see an even wider array of cases. Aside from the heavy-hitting categories already mentioned, we have foreclosure actions, RICO prosecutions, consumer credit suits, disputes under the Agricultural Acts, Freedom of Information Act actions . . . the list goes on and on. Recently, we have also seen a rise in bankruptcy appeals and in maritime cases where plaintiffs seek to attach funds moving electronically through New York.

As befits its place as the center of commerce and finance, the Southern District is also home to significant multi-district litigation ("MDL"), with 42 pending cases as of September 19, 2009. For example, Judge John F. Keenan recently tried one of the 442 cases involving the osteoporosis drug Fosamax ( In Re Fosamax Liability Litigation ). Judge Keenan and Judge Robert W. Sweet are presiding over the 371 cases arising out of the tragic airline crash on November 12, 2001, in Belle Harbor, Queens ( In Re Air Crash at Belle Harbor, NY Litigation ), and Judge Jed S. Rakoff is presiding over the 223 cases arising out of the 2005 bankruptcy of Refco, Inc. ( In Re Refco Inc. Securities Litigation ). In addition, we have cases involving products from pineapples ( In Re Pineapple Antitrust Litigation ), presided over by Judge Richard M. Berman, to methyl tertiary butyl ether ( In Re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation ), presided over by Judge Shira A. Scheindlin.

Less fortunately, our District also sees a wide range of criminal cases. In September, for example, Judge P. Kevin Castel began John Gotti Jr.'s trial on racketeering and murder charges. Other high-profile criminal cases from around the world also seem to land in the Southern District. For example, the other week we had a brief appearance by accused Somali pirate Abdiwali Abdiqadir Muse, who was captured after the rescue of captain Richard Phillips of the U.S.-flagged Maersk Alabama off the Somali coast in April. Earlier this year, Judge Denny Chin sentenced Afghan drug trafficker Bashir Noorzai to life in prison for his participation in a conspiracy that distributed millions of dollars worth of heroin around the world.

Comparing the distribution of guideline defendants sentenced by primary offense category in the Southern District to the national distribution, the Southern District tends to see a higher percentage of fraud and other white collar crimes like embezzlement, forgery, and money laundering. We also see a higher percentage of drug cases; within the drug category, the Southern District has a higher percentage of powder cocaine and lower percentages of marijuana and methamphetamine. Immigration offenses are also lower than the national average, constituting only 7.9 percent of primary offense sentencing (compared with 28 percent nationally).

Editor: Tell us about some of the Southern District's other big cases from the last few years.

Preska: Major developments on Wall Street and throughout the financial sector, including the recent economic downturn, have brought several high-profile cases to the Southern District. Martha Stewart's securities fraud trial, before Judge Miriam Goldman Cedarbaum, spanned five weeks in 2004 and ended in Stewart's conviction for obstruction of justice. This June, Judge Chin sentenced Bernard Madoff to 150 years in prison for his massive Ponzi scheme. In 2006, the Securities and Exchange Commission ("SEC") filed a complaint against American International Group ("AIG") alleging securities fraud, resulting in a settlement totaling $800 million. That same year, Judge Lewis A. Kaplan dismissed charges against thirteen defendants in a tax evasion case against the accounting firm KPMG after finding that the Department of Justice had interfered with KPMG's payment of the defendants' legal fees; three of the remaining defendants were subsequently convicted for their roles in the scheme. AIG was also involved in a recent trial against former CEO Maurice "Hank" Greenberg, in which Judge Rakoff ruled that Greenberg's closely held firm, Starr International Co., did not violate a duty to AIG by selling $4.3 billion of AIG stock. These cases illustrate the magnitude of the interests, both public and private, that are often at stake in our courtrooms.

The ceremony to observe the eighth anniversary of the September 11th attacks recently took place at the World Trade Center, less than a mile from our courthouse in downtown Manhattan. In the wake of the unspeakable acts of that day, our District has been involved in a large part of the resulting litigation, both criminal and civil, including the consolidated proceedings of In Re September 11 Litigation before Judge Alvin K. Hellerstein.

We have also housed related terrorism prosecutions, such as Judge Barbara S. Jones's 2008 sentencing of Mohammed Jabarah to life in prison for his participation in a plot to bomb U.S. embassies in Singapore and the Philippines. Recently, Guantanamo Detainee Ahmed Khalfan Ghailani pleaded not guilty to charges alleging that he was involved in the 1998 bombings of the United States Embassies in Kenya and Tanzania. The military had previously alleged that Ghailani served as a bodyguard and cook for Osama bin Laden in Afghanistan. These recent prosecutions follow other successful terrorism trials in the Southern District, such as the 1995 prosecution of Sheik Omar Abdel Rahman and 11 co-defendants, who were charged with conspiring to blow up numerous sites in New York. Following the Sheik's conviction by a jury, Judge Michael B. Mukasey, now former Chief Judge of the Southern District and former Attorney General of the United States, sentenced him to life in prison.

Editor: What does the Chief Judge do?

Preska: In a word, everything. All complaints stop at the Chief's door. If the elevators don't work, it is my job to worry about it and get them fixed. Recently, when a judge was five weeks into a criminal trial and because of illness could not continue, it was my job to find a judge willing and able not only to read the more than 2,000 pages of transcript and to certify his familiarity with it (see Fed. R. Crim. P. 25(a)), but to take up the trial and preside through to completion. Judge Robert P. Patterson graciously agreed to undertake that monumental task.

Various Acts of Congress, Federal Rules of Procedure, Regulations, Judicial Conference Policies, and delegations of statutory authority from the Director of the Administrative Office of the United States Courts vest certain powers either in the Chief Judge or the Court generally. In exercising those powers, our Court, and thus the Chief Judge, acts through various committees of the Court.

Editor: That's a lot of different sources to consider. I don't think many individuals outside of the court system are familiar with the role that committees play in the operation of the court. What can you tell us about them?

Preska: The Court acts through the Board of Judges, and the Board acts through its committees. Each district judge and magistrate judge serves on one or more committees, which make recommendations to the Board of Judges and to the Chief Judge. In the Southern District, we currently have twenty-two committees: Assignment, Bankruptcy Liaison, Bar Liaison, Clerk's Office, Collegiality, Criminal Law and Probation, Defender Services, District Executive's Office, Equal Opportunity, Grievances, House and Space, Judicial Improvements, Libraries, Magistrate Judges, Media Access, Mediation Services, Pro Se Litigation, Rules of Practice and Procedure, Security, Technology, Ad Hoc Committee on Cellphones, and Ad Hoc Committee on Cameras in the Courtroom (Narrowcasts & Webcasts).

The committees are a vital part of our existence, allowing all judges to have input into the administration of the Court. It is only through the collective work of the individual judges on the committees, in conjunction with the District Executive's Office, that the Southern District is able to address effectively the countless issues that arise in the daily operation of the Court.

Editor: Speaking of cellphones and webcasts, has the increased use of technology in the workplace created any new challenges for your court?

Preska: Currently, the last two Committees I mentioned are considering whether to revise the present policy prohibiting cellphones, laptops, and other electronic devices in the courthouse. Security is certainly a concern, and the Committees have received views from the United States Marshals Service, private security experts, and the like. Written and oral comments were also received from the Bar, and, indeed, Federal Bar Council President Robert J. Giuffra, Jr., made a detailed proposal for the use of such devices by attorneys who present a New York State Unified Court System Pass. We hope that the Board of Judges will resolve the issue by this fall.

Editor: What are some other issues that the Court has dealt with recently?

Preska: Under former Chief Judge Kimba M. Wood's leadership, the Court has increased public access to its proceedings through, for example, changes to the Case Management and Electronic Case Files ("CM/ECF") system to provide more transparency. Working with United States Marshal Joseph R. Guccione and Joel Blum, the Court's audio visual expert, press and public access to events of interest to the public has been increased; events such as the sentencing of Bernard Madoff have been orderly, with overflow rooms set up where proceedings could be viewed on large video screens.

Judge Wood also focused on ensuring smooth succession in the Court's various units. In pursuit of this objective, several units have made high-level hires that will benefit the administration of our Court: Michael Fitzpatrick as Chief U.S. Probation Officer, Arthur Penny in Pretrial Services, Ruby Krajick as Chief Deputy Clerk, and Edward Friedland as Deputy District Executive. Under Judge Wood's leadership, the Court also made great strides in improving our efficiency in case management.

Editor: What can you tell us about the role, if any, of mediation in the federal courts?

Preska: Here in the Southern District, we are proud of our Mediation Services Office, which provides free mediation opportunities for all parties who litigate before the Court. Since its inception in 1992, the program has had a success rate of 86.5 percent across all causes of action; the success rate for the past eight years is 91 percent. We are particularly proud of our pro se program, which provides pro se plaintiffs in employment discrimination suits with an attorney, free of charge, to assist during the mediation process.

Editor: Many of our readers are interested in the cost of litigation. Is this an issue that the Southern District has taken up?

Preska: The District is certainly cognizant of the increasing cost of litigation for parties and is constantly looking for ways to achieve our goal of serving the public as efficiently as possible. In 2004 we adopted the CM/ECF system, which has decreased litigation expenses by reducing copying, courier, and noticing fees. At the same time, the system has increased public access by allowing for 24-hour viewing of public documents through the Internet. Our judges frequently hold telephone and video conferences, decreasing enormously the cost of a court conference to parties while still permitting judicial attention to the matter. Also, judges are holding certain non-jury hearings by video to decrease costs. This is particularly useful with litigants who are incarcerated hundreds of miles from the courthouse. Video simulcasts also allowed 9/11 victims here in the Southern District to view the trial of convicted terrorist Zacarias Moussaoui, which occurred in the Eastern District of Virginia.

Electronic discovery is often pointed to as a costly element in modern litigation. As befits the complexity of the cases we see and our Court's leadership on technology issues, several of our judges, such as District Judge Scheindlin and Magistrate Judges James C. Francis, Frank Maas, and Andrew J. Peck have developed expertise and frequently lecture on e-discovery issues, including cost containment. We hope that these steps will prove beneficial for both litigants and the public at large as the Southern District continues to strive for "the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.