Judge Berman

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The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow.  The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories).  Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice:
Continue Reading Cardozo Law Review Publishes Special Issue On Litigation Costs, Inspired by Judge Marrero Essay

In a decision today, the Second Circuit, by a 2-1 vote, reversed Judge Berman’s ruling in the DeflateGate case, effectively reinstating Tom Brady’s four-game suspension for his role in deflating footballs used during the 2015 AFC Championship Game.

Tom Brady and the NFL Player’s Association focused their appeal on the fact that, based on the NFL’s written policies, Brady had no prior notice that a first-time violation could result in anything more than a fine, but the Second found that the NFL’s reading of those policies was justifiable, and met the minimal standards for confirming an arbitration award:
Continue Reading Second Circuit Sides With NFL in DeflateGate Appeal

The NFL filed its reply brief in the DeflateGate appeal yesterday.  As we previously reported, Tom Brady’s opposition brief focused on the fact that the NFL’s written policies for players state that first-time equipment violations will result in fines, which, he argued, would give no notice that a suspension was possible.  The NFL’s reply brief counters that Tom Brady has already conceded the policy is inapplicable: 
Continue Reading NFL DeflateGate Reply: Policy of “Fines” for Equipment Violations Is Not Applicable to Footballs and Doesn’t Foreclose Suspensions

Patriots quarterback Tom Brady and the NFL Player’s Association filed their appeal brief yesterday with the Second Circuit, responding to the initial brief filed by the NFL.  The brief from Brady and the Player’s Association argues that there was a bargained-for policy for first-time equipment violations to result only in fines, and that Judge Berman correctly ruled that imposing a four-game suspension on Tom Brady violated that policy and failed to give Brady prior notice of the possibility of a suspension:
Continue Reading Tom Brady’s Deflategate Appeal Brief Focuses on Bargained-For Policy that First-Time Equipment Violations Would Result Only in Fines

The SDNY Blog is relaunching as a publication of Steptoe & Johnson LLP.  We expect to post several times a week on decisions and other developments in the Southern District of New York.  You can find us right here at www.sdnyblog.com, or follow us on Twitter or Facebook.

Here’s a quick summary of what’s been happening in the Southern District while we were away:

  • Judge Berman vacated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady for his alleged role in deflating footballs used during the 2015 AFC Championship Game.  Judge Berman concluded that “Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation.”

Continue Reading SDNY Blog Returns as Steptoe Blog

In an opinion today, Judge Berman denied a motion to enjoin an SEC administrative enforcement proceeding.  The proceeding was challenged on the ground that SEC administrative law judges are too insulated from executive oversight for purposes Article II of the Constitution, as interpreted by the Supreme Court in Free Enterprise Fund v. Pub. Co. Accounting Oversight Ed., 561 U.S. 477 (2010). Judge Berman agreed with the plaintiff on a threshold procedural point:  he ruled that the issues could be raised in district court, as opposed to raising them exclusively in the administrative proceeding itself (or on direct appeal to the Court of Appeals), because, absent a collateral challenge, the plaintiff would endure the very proceeding she was trying to block.  As Judge Berman observed: “The American Heritage New Dictionary of Cultural Literacy, 3d. Ed. (2005), defines the colloquial expression ‘you can’t unscramble an egg’ to mean ‘some processes are irreversible.’” But Judge Berman found the plaintiff was unlikely to succeed on the merits because he found that SEC ALJs’ insulation from removal was appropriate, given their adjudicatory (rather than policymaking) functions:
Continue Reading Judge Berman Refuses to Block SEC ALJ Proceeding; Finds ALJ Tenure Protections Likely Constitutional

The article includes the following answer detailing Judge Berman’s most interesting cases:

The most rewarding part of the job has to do with the breadth and sometimes the significance of the cases. Mine have included: a) two “three judge” cases (election redistricting and a challenge to the Communications Decency Act); b) two cases which were

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