Richard M. Berman

In September 2018, four individuals were charged in the “Panama Papers” conspiracy with unlawfully evading U.S. tax laws. Two of four defendants pleaded guilty to the charges. The remaining two defendants have not appeared in the S.D.N.Y. proceedings.

In July 2019, Judge Berman was assigned the case of financier Jeffrey Epstein who was charged with Sex Trafficking and Conspiracy to Commit Sex Trafficking. On July 18, 2019, Berman denied Epstein’s bail application, finding that he posed a danger to the community and that he was also a flight risk. On July 23, 2019, Epstein attempted suicide at the Metropolitan Correctional Center (“MCC”) and on August 10, 2019 he committed suicide at the MCC. On August 27, 2019, Berman conducted a public hearing on the government's motion to dismiss the case. Twenty-seven alleged victims, along with the government and defense counsel, participated at the hearing. On August 29, 2019, Berman granted the motion to dismiss.

In March 2019, in a case of first impression, Judge Berman denied an inmate's habeas corpus petition to vacate his six-year sentence. The Court held that the New York Penal Law § 120.05(7), or Second Degree Assault by a Convicted Prisoner, was a "crime of violence" under the United States Sentencing Guidelines and that Petitioner had waived his right to appeal.[3]

In October 2018, Judge Berman presided over the criminal jury trial of defendants Richard Usher, Rohan Ramchandani and Christopher Ashton. Defendants, all foreign nationals, were charged in a one count indictment with conspiracy to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, for conducting Euro/Dollar currency trades in the United Kingdom as employees of (affiliates of) The Royal Bank of Scotland, JPMorgan Chase & Co., Citicorp, and Barclays. On October 26, 2018, the Defendants were acquitted.[4]

In August 2015, Berman enjoined the U.S. Securities and Exchange Commission from continuing its securities law administrative proceedings against Barbara Duka, finding that the SEC's administrative law judges had been appointed in violation of the Appointments Clause in the U.S. Constitution.[5][6][7] Upon appeal, the injunction was dissolved based upon the Second Circuit's holding in SEC v. Tilton that parties "must await a final SEC order before raising their Appointments Clause claim in federal court." On June 21, 2018, the Supreme Court of the United States in Lucia v. SEC resolved a "circuit split" and ruled that the SEC's ALJs are officers of the United States and, as Berman had also concluded, subject to the Appointments Clause.[8]

In October 2017, Judge Berman presided over the criminal jury trial of Ahmad Khan Rahimi, also known as the "Chelsea bomber." Rahimi was convicted of all counts related to the September 2016 bombing in the Chelsea neighborhood of New York City, in which 31 people were injured.[9] Rahimi was sentenced on February 13, 2018 to life in prison.

In November and December 2017, Judge Berman presided over the criminal jury trial of Turkish citizen Mehmet Hakan Atilla. Atilla was convicted of 5 out of 6 counts in the Indictment, including conspiracies to evade U.S. sanctions against Iran and to defraud the United States, and bank fraud. Atilla was sentenced on May 16, 2018 to 32 months in prison.[10]

Berman presided over New England Patriots quarterback Tom Brady's case involving a four-game suspension levied against him by the National Football League for Brady's alleged role in the 2015 "Deflategate" matter. After unsuccessful efforts to bring about a settlement, Berman overturned Brady's suspension in an opinion dated September 3, 2015, finding significant legal deficiencies attending Brady's suspension. These included the NFL's disregard of the rules and penalties regarding handling of footballs once they have left the locker room; denial of the opportunity for Brady to examine one of the two lead NFL investigators; and denial of access to investigative files.[11] On April 25, 2016, a panel of the Court of Appeals for the Second Circuit reversed. In dissent, Chief Judge Robert Katzmann determined that it was improper for the NFL Commissioner to review in arbitration his own decision to suspend Brady.[12]

In 2017, Berman moderated a discussion called "Arbitration in 2017: Where It is Headed." Panel members consisted of some of the attorneys involved in the scandal, plus a couple arbitrators in law. After the panel discussion was complete, Berman was interviewed by a Sports Illustrated reporter to discuss his position on the scandal. In the interview, Berman said that Brady's case "should have been decided on the field," and that he was still confident that he had ruled correctly even though it was overturned. In any case, Berman said that, "Deflategate was put to rest by that Super Bowl."(61)

Berman presided over two landmark wine cases. One involved Rudy Kurniawan, who was convicted of counterfeiting fine wines in December 2013 following a jury trial, and sentenced to a term of incarceration.[13][14][15]

The second wine case involved challenges to state liquor laws which prohibited out of state wineries from selling directly to consumers within New York. In November 2002, Berman held that New York's direct ban on such out of state wine sales was unconstitutional, as "[t]he New York regime constitutes a cut and dry example of direct discrimination against interstate commerce."[16] The ruling was upheld by the Supreme Court of the United States in Granholm v. Heald.[17]

Berman presided over the case against Aafia Siddiqui, a Pakistani citizen and graduate of MIT and Brandeis University, who was convicted by a jury in 2010 of attempted murder of U.S. officials in Afghanistan, and sentenced to lengthy incarceration.[18][19]

In September 2007, Berman denied the NYC cab driver association's application to prevent the New York City Taxi and Limousine Commission from requiring that all taxicabs be installed with credit- and debit-card readers.[20]

In December 2005, following a bench trial, Berman ruled that random police searches of riders' backpacks and bags on the New York City subway system do not violate the U.S. Constitution.[21]

Alex Gershkovich, a photographer involved in the Occupy Wall Street movement, sued two NYPD officers and the City of New York because he was allegedly arrested without probable cause while photographing police activity in a public place. Judge Berman, in a summary judgment decision dated July 17, 2017, determined that the right to record police activity in public areas was "clearly established" at the time of Gerskovich's arrest. The parties reached a settlement in November 2017.[22]

After having determined that the Driver's Privacy Protection Act of 1994 ("DPPA") is not a "strict liability" statute, Berman presided over the civil jury trial against defendants Arcanum Investigations, Inc. and its executive director. On April 24, 2015, the jury determined that defendants, who are resellers of DMV information, used reasonable care in providing plaintiff's information to a third party where defendants had required the purchaser of the information to provide ID, along with a DPPA-approved reason for making the information request. By summary order, dated April 15, 2016, the Court of Appeals for the Second Circuit affirmed the judgment entered in connection with the jury's verdict.[23]

After having been charged in a two count Indictment on February 9, 2015, defendant Evgeny Buryakov, a Russian citizen, pleaded guilty on March 11, 2016 to conspiring to act in the United States as an agent of a foreign government without prior notification to the Attorney General. Buryakov was sentenced to 30 months imprisonment on May 25, 2016.[24][25][26]

In April 2007, Berman presided over a copyright lawsuit against singer Beyoncé Knowles over the song, Still in Love (Kissing You).[27] The parties reached a settlement in October 2007.[28]

Berman presided in the Dinesh D'Souza campaign finance case in May 2014. On the eve of trial, D'Souza pleaded guilty to campaign finance violations, (arranging straw donors), and was sentenced in September 2014 to five years of probation, $30,000 fine, and community service.[29]

In June 2002, Berman dismissed a civil RICO suit against National Steel Supply, Inc., finding that plaintiff Ideal Steel failed to show that it had relied upon National Steel Supply's alleged misrepresentations to the New York State Department of Taxation and Finance. The decision was affirmed by the U.S. Supreme Court on June 5, 2006.[30]

In July 2008, Berman presided over the criminal case against Judith Leekin, who pleaded guilty to defrauding New York City and New York State adoption agencies out of $1.68 million in foster care funds. Leekin also had mistreated and willfully endangered her (11) adopted special needs children.[31] Berman sentenced Leekin to 130 months in prison for the fraud. Immediately thereafter, she was prosecuted for child abuse in Florida.[32]

In April 2000, Berman dismissed an infringement suit brought against pop singer Mariah Carey, finding that the plaintiff, Rhonda Dimmie, the holder of a copyright for the song Be Your Hero, had failed to show that Carey, the copyright-holder for the song Hero, had knowledge of or infringed upon plaintiff's recording.[33][34]

In January 2011, Berman presided over a trial in which a father sought the return of his child from New York to Vicenza, Italy pursuant to the Hague Convention of the Civil Aspects of International Child Abduction. Following a bench trial, Berman found that Italy was not the habitual residence of the child, who also strenuously objected to being returned to Italy.[35]

In January 1998, as a New York State family court judge, Berman removed two children from the custody of then professional baseball player Carl Everett and his wife. The Everetts had consented to findings of child neglect following the discovery of bruises on their daughter at the Shea Stadium child care center.[36][37][38]

Berman was part of a three-judge panel that heard challenges to the legislative district redistricting plan enacted by the New York State Legislature following the 2000 census. Following a bench trial in November 2003, the three-judge panel found that New York's redistricting plan did not violate the Voting Rights Act or the Equal Protection Clause of the Fourteenth Amendment.[39] In November 2004, the U.S. Supreme Court affirmed by summary order.[40]

Berman was part of a three-judge panel that heard challenges to obscenity provisions of the Communications Decency Act of 1996. In July 2005, the Court found that the Act was not overbroad and did not violate the First Amendment.[41] In March 2006, the U.S. Supreme Court affirmed by summary order.[42]

Berman—sitting by designation on the U.S. Court of Appeals for the Second Circuit—dissented on November 5, 2018 from the majority insider trading decision which overturned the defendant's conviction on an evidentiary issue. The majority held that the trial judge should have allowed the jury to hear the co-defendant father's post-arrest statement to the FBI. Berman found that the weight of evidence of defendant's guilt was overwhelming and that the Court should defer to the trial judge and to the jury.[43]

In April 2014, Berman—sitting by designation on the U.S. Court of Appeals for the Second Circuit—authored the panel's opinion reinstating a securities fraud class action brought by pension funds against Barclays PLC and former Barclays' CEO Robert Diamond. Plaintiffs alleged that defendants had knowingly submitted false and inaccurate information to establish LIBOR rates during the class period of August 2007 through January 2009. The Court adopted a principle (also embraced by the Eleventh Circuit) that "so long as the falsehood remains uncorrected, it will continue to taint the total mix of available public information, and the market will continue to attribute the artificial inflation to the stock, day after day."[44][45]

In August 2014, Berman—sitting by designation on a panel of the U.S. Court of Appeals for the Eleventh Circuit—heard the appeal of an employee who had been terminated from her job. The Court of Appeals held that the district court correctly awarded summary judgment to plaintiff on her COBRA claims and to Books-A-Million with respect to plaintiff's Title VII and Equal Pay Act claims, but erred in dismissing plaintiff's FMLA claims. The Court of Appeals found that "[i]if a trial court refuses to grant further legal or equitable relief to a plaintiff who insists that such relief is necessary to make the plaintiff whole, it must articulate its rationale."[46]

In November 2004, Berman—sitting by designation on a panel of the Second Circuit Court of Appeals—heard New York State's appeal of a magistrate judge's decision, which found that prosecutors had improperly excluded a juror for non-race neutral reasons in a criminal trial. In vacating the judgment of the magistrate, the Second Circuit held that the basis for the juror's exclusion was not inherently discriminatory, and that the prosecutor had offered race neutral reasons.[47]

In July 2002, Berman—sitting by designation on a panel of the Second Circuit Court of Appeals—heard the appeal of New England Insurance Company, following the district court's reversal of a jury verdict finding in New England Insurance's favor. The Second Circuit reinstated the jury verdict. "We necessarily disagree with the 'clear liability' language []introduced by the district court in deciding Healthcare's post-trial application for judgment as a matter of law. As noted, 'clear liability' was specifically rejected and abandoned [and] there is no case since Pavia in which a court held that a finding of clear liability was given conclusive or totally dispositive weight."[48]