Via the Am Law Daily, the Wall Street Journal had an article about an effort by Bank of America’s lawyers — at Wachtell, Davis Polk, and Cleary Gottlieb — to keep Judge Jed Rakoff from presiding over a shareholder class action against them:
Bank of America Corp. tried to keep cases pending against it from landing with U.S. District Judge Jed Rakoff, in the hopes of avoiding another dramatic confrontation with the judge over the bank’s handling of the Merrill Lynch & Co. takeover.
It got the outcome it wanted, though not necessarily thanks to its efforts.
The nation’s largest bank by assets sent a letter on April 22 to U.S. District Judge Denny Chin—who was leaving to become an appeals-court judge—that asked that about 15 civil shareholder lawsuits pending before him be reassigned randomly and not handed to Judge Rakoff.
Judge Rakoff has been, shall we say, insufficiently deferential to the poor officers and directors at places like Bank of America. He famously rejected Bank of America’s / Merrill Lynch’s initial settlement with the Securities Exchange Commission over misleading proxy statements about the merger. He less-famously enjoined J.P. Morgan from selling a loan to Mexican telecommunication company’s chief competitors.
You can imagine the talk on Wall Street. Who does this guy think he is? A judge?
So what can they do when there’s a chance he might end up hearing another case against a big bank?
Normally, the last thing a lawyer will do is complain about a judge.
In one respect, lawyers complain about judges all the time. Every time a lawyer appeals a case, they complain about the judge’s ruling, which was wrong because of (a), (b), (c) and (d). (Don’t go beyond (d). Going beyond (d) is the kiss of death.) Sometimes a lawyer complains right to a judge’s face through a motion for reconsideration.
But that’s just part of the process. The system is set up to allow that, to (hopefully) correct mistakes.
When it comes to real complaints, like complaints about a judge’s fairness, the type of complaints that the banks have against Judge Rakoff, some lawyers, particularly young lawyers, worry that complaining about a judge to anyone — be it the judge, another judge, or anyone who can’t keep a secret — will prompt the judge to retaliate against them personally.
Other lawyers, particularly older lawyers, worry that criticism of a judge will make them (the lawyer) look unprofessional, regardless of the merits of the complaint.
And some lawyers consider complaining about judges akin to complaining about the weather. It’s raining as I write this post, and will keep raining no matter what I think or say. Unless you can show that, say, the prosecutor is sleeping with the judge — and apparently not even then — complaining isn’t going to get you anywhere.
Whatever the reason, this much is true: lawyers don’t complain about judges.
So how do you complain about a judge without, you know, complaining about a judge?
Simple: you make up a reason.
[T]he use of comments made by Judge Rakoff in his order on February 22, 2010 (the "February 22 Order") in the course of approving the settlement that resolved the SEC Actions, is already a subject of litigation in the BofA Civil Cases. For example, in their February 24 letter, Lead Plaintiffs variously contended that Judge Rakoff "held," or "determined," or "found" certain matters in the course of his approval of the settlement of the SEC Actions. including that the merger proxy statement "failed adequately to disclose" the bonus cap provision of the merger agreement and Merrill’s interim losses during the fourth quarter of 2008 and that these allegedly undisclosed facts were "material." Needless to say, these hotly contested issues are central to the BofA Civil Cases.
Also relevant is an issue Judge Rakoff himself described as potentially problematic, but which he concluded was ultimately mooted by his approval of the settlement in the SEC Actions. In summary, Judge Rakoff obtained ex parte evidence bearing on the merits – specifically, selected portions of investigatory depositions conducted by the New York Attorney General’s Office, which were not available to the Bank or to the SEC. See March 8 Submission at 4, 11. Both the Bank and the SEC objected. While Judge Rakoff overruled those objections. he acknowledged that it was "[m]ore problematic, perhaps" that these materials had been considered by him "on an ex parte basis" and that there was "a legitimate concern that the Court’s determinations be made on a record fully available for the parties’ scrutiny. Judge Rakoff concluded that the decision to approve the settlement of the SEC Actions rendered the ex parte issue "moot." But that issue would be resuscitated if the BofA Civil Cases were transferred Judge Rakoff.
The first "issue" there is a reason why Judge Rakoff should have the cases assigned to him: he, and only he, can say definitively what he did or did not hold in the prior SEC case. The bulk of courts in the United States hold that a judge who issued a ruling is best suited to interpret that ruling; indeed, a number of courts follow the "coordinate jurisdiction" rule, in which a later judge of the same court can’t overrule a prior order by a judge of that court, only the judge who wrote the prior order can.
The second "issue" is not an issue at all. Courts see ex parte information all the time when they perform in camera reviews of privileged materials. Moreover, the cure for such a "problematic" issue is pretty simple: let the lawyers see the documents and then argue about them. Big deal. The only reason Judge Rakoff didn’t do that before is because it wasn’t necessary in that case. If it’s necessary to resolve that in this case, then do it.
When all was said and done, the sound and fury signified nothing:
In the end, random assignment wasn’t used. Rather, Loretta Preska, chief judge of the U.S. district court, decided to give the cases to U.S. District Judge Kevin Castel, she said in an interview. The decision was hers to make, versus random assignment, because the matter involves several cases transferred from different districts, she said.
The April 22 letter to Judge Chin, she added, didn’t influence her decision. "I don’t recall seeing it; I don’t recall hearing of it," she said.
That’s probably how most courts deal with complaints by lawyers about judges: they ignore them.