Richard M. Berman

Richard M. Berman
Senior Judge of the United States District Court for the Southern District of New York
Incumbent
Assumed office September 11, 2011
Judge of the United States District Court for the Southern District of New York
In office October 9, 1998 – September 10, 2011
Appointed by	Bill Clinton
Preceded by	Kevin Thomas Duffy
Succeeded by	Nelson S. Roman
Personal details
Born	1943 (age 73) New York City, New York, U.S.
Alma mater	Cornell University New York University School of Law Fordham University

Richard M. Berman (born 1943) is a Senior United States federal judge of the United States District Court for the Southern District of New York.

Berman received his B.S. from Cornell University in 1964 and his J.D. from New York University School of Law in 1967. He received a Diploma of Comparative Law in 1968 and a Diploma of International Law in 1970 from the University of Stockholm Faculty of Law. He also received a Master of Social Work from Fordham University in 1996. He went into private practice at Davis Polk & Wardwell before becoming an executive assistant to United States Senator Jacob K. Javits in 1974. He served in this capacity until 1977, when he was named Executive Director of the New York State Alliance to Save Energy, co-chaired by Senators Javits and Daniel Patrick Moynihan. A year later, he was appointed General Counsel and Executive Vice President of the Warner Cable Corporation, a position he held until 1986, when he returned to private practice.

Judicial career

Berman served as a judge in the New York State Family Court for Queens County from 1995 to 1998.^[1] On May 21, 1998, he was named by President Bill Clinton to a seat on the District Court for the Southern District of New York that had been vacated by Kevin Thomas Duffy. He was confirmed by the United States Senate on October 21, 1998. He assumed senior status on September 11, 2011. Berman is a member of the New York State-Federal Judicial Council, which is concerned with issues of joint interest to the state and federal judiciary. Berman served as Chairman of the Council from 2011-12.^[2]

Legislative Service

Berman served as Executive Assistant to United States Senator Jacob K. Javits from 1974 to 1978.^[3]

Notable cases

U.S. District Court

Gordon v. Softech International, Inc.

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.^[4]

United States v. N.Y.C. District Council of Carpenters

Since 2010, Berman has presided over this civil anti-corruption case involving N.Y.C. District Council of Carpenters, the New York City carpenters’ union.^[5]

United States v. Buryakov

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.^[6][7][8]

NFL Management Council v. NFL Players Association

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 his alleged role in the 2015 "Deflategate" matter. Berman overturned Brady's suspension in an opinion dated September 3, 2015, finding that there were significant legal deficiencies regarding Brady's suspension, including inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; denial of the opportunity for Brady to examine one of two lead NFL investigators; and denial of equal access to investigative files, including witness interview notes.^[9]

On April 25, 2016, in a 2-to-1 decision, a panel of the Court of Appeals for the Second Circuit reversed Berman's decision and remanded it to Berman's court with instructions to confirm the 4-game suspension. Chief Judge Robert Katzmann dissented.^[10] Brady petitioned for the full court to rehear the appeal en banc, but that petition was denied on July 13, 2016.^[11]

United States v. Kurniawan

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.^[12][13][14]

Swedenburg v. Kelly

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."^[15] The ruling was upheld by the Supreme Court of the United States in Granholm v. Heald.^[16]

United States v. Siddiqui

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 assault and the attempted murder of U.S. officials in Afghanistan, and sentenced to a term of incarceration.^[17][18]

Duka v. U.S. Securities & Exchange Commission

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 U.S. Constitution.^[19][20][21] Upon appeal, the injunction was dissolved based upon the Second Circuit's holding in SEC v. Tilton.

New York Taxi Workers Alliance v. New York City Taxi & Limousine Commission

In September 2007, Berman denied the 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.^[22]

MacWade v. Kelly

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 Constitution.^[23]

Royalty Network, Inc. v. Columbia Recording Corporation

In April 2007, Berman presided over a copyright lawsuit against singer Beyoncé Knowles over the song, Still in Love (Kissing You).^[24] The parties reached a settlement in October 2007.^[25]

United States v. D'Souza

Berman served as the judge in the Dinesh D'Souza campaign finance case in May 2014. On the eve of trial, D'Souza pleaded guilty to campaign finance violations, i.e., arranging "straw donors," and was sentenced in September 2014 to five years of probation, 8 months at a community control center, a $30,000 fine and community service.^[26]

Ideal Steel Supply Corporation v. Anza

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.^[27]

United States v. Leekin

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.^[28] Berman sentenced Leekin to 130 months in prison for the fraud, and immediately thereafter she was prosecuted for child abuse in Florida.^[29]

Dimmie v. Carey

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.^[30][31]

Johnson v. Johnson

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.^[32]

Family Court

In the Matter of Shawna E.

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.^[33][34][35]

Three-Judge U.S. District Court Panels

Rodriguez v. Pataki

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. After a bench trial in November 2003, the Court found that the redistricting plan did not violate the Voting Rights Act or the Equal Protection Clause of the Fourteenth Amendment.^[36] In November 2004, the U.S. Supreme Court affirmed by summary order.^[37]

Nitke v. Gonzales

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.^[38] In March 2006, the U.S. Supreme Court affirmed by summary order.^[39]

U.S. Circuit Court Opinions

Carpenters Pension Trust Fund of St. Louis v. Barclays PLC

In April 2014, Berman—sitting by designation on the U.S. Court of Appeals for the Second Circuit—authored an 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 Second Circuit 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.”^[40][41]

Evans v. Books-A-Million

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."^[42]

Rodriguez v. Schriver

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.^[43]

New England Insurance Co. v. Healthcare Underwriters Mutual Insurance Co.

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."^[44]

Publications & Teaching

Berman has authored a number of articles about children, including A Team Model To Identify Child Abuse,^[45] Seven Steps To Protect Children,^[46] Community Service for Juvenile Offenders,^[47] and Special Immigrant Juvenile Status.^[48][49] Published in the New York Law Journal, these articles offer guidance in developing improved models for identifying child abuse, bolstering the child welfare system, implementing community service-based sentencing options for juvenile offenders, and improving the process for obtaining special immigrant juvenile status.

Berman's efforts in improving media access to the Family Court system and promoting community service have been cited in the New York Daily News and Newsday. See, e.g., Sun Also Rises in Family Court,^[50] Helping Other Helps Teens,^[51] Embracing Community Service for Juveniles,^[52] and A New Way Out of Trouble.^[53]

Berman lectured about the “Rule of Law” before judges in Albania in 2013.^[54] He has also moderated a panel discussion of the “Rule of Law” at an international legal symposium in Istanbul, Turkey in 2014.^[55]

References

1. "Faculty Profile - Hon. Richard M. Berman". pli.edu. Retrieved 2016-02-10.
2. "Faculty Profile - Hon. Richard M. Berman". pli.edu. Retrieved 2016-05-06.
3. "Faculty Profile - Hon. Richard M. Berman". pli.edu. Retrieved 2016-02-10.
4. "Summary Order" (PDF). U.S. Court of Appeals for the Second Circuit. April 15, 2016.
5. United States v. District Council of New York City, 972 F. Supp. 756 (S.D.N.Y. 1997)
6. "Russian Spy Pleads Guilty, Walked Into FBI 'Trap'". ABC News. 2016-03-13. Retrieved 2016-04-09.
7. Weiser, Benjamin (2016-03-11). "Bank Employee Pleads Guilty to Conspiring to Work as Secret Russian Agent". The New York Times. ISSN 0362-4331. Retrieved 2016-04-09.
8. "Russian spy who posed as New York banker sentenced to 2 1/2 years in prison". UPI. Retrieved 2016-11-03.
9. https://cbsboston.files.wordpress.com/2015/09/bermandecision.pdf
10. National Football League Management Council v. National Football League Players Ass'n nos. 15‐2801, 15‐2805 (2d Cir. April 25, 2016)
11. Holer, Bob; Volen, Ben (July 13, 2016). "Tom Brady is denied his appeal, so suspension stands". The Boston Globe. Retrieved July 13, 2016.
12. Peter Hellman; Mitch Frank. "Accused Wine Counterfeiter Rudy Kurniawan Guilty in Landmark Case". Wine Spectator. Retrieved 20 December 2013.
13. "FBI — Rare Wine Dealer Sentenced in Counterfeiting Scheme". FBI.
14. Gardiner, Sean; Sharp, Sonja (August 7, 2014). "Counterfeit Fine-Wine Dealer Sentenced to 10 Years". The Wall Street Journal.
15. Swedenburg v. Kelly, 232 F. Supp. 2d 135, 145 (S.D.N.Y. 2002), aff'd in part, rev'd in part and remanded, 358 F.3d 223 (2d Cir. 2004), rev'd sub nom. Granholm v. Heald, 544 U.S. 460 (2005)
16. 544 U.S. 460 (2005)
17. "Aafia Siddiqui Found Guilty in Manhattan Federal Court of Attempting to Murder U.S. Nationals in Afghanistan and Six Additional Charges" (PDF) (Press release). Public Information Office, United States Attorney Southern District of New York. 3 February 2010. Archived (PDF) from the original on 16 February 2010. Retrieved 13 May 2015.  This article incorporates text from this source, which is in the public domain.
18. Hughes, C. J. (2010-02-03). "Aafia Siddiqui Guilty of Shooting at Americans in Afghanistan". The New York Times. ISSN 0362-4331. Retrieved 2016-02-07.
19. Hurtado, Bob Van Voris Patricia. "SEC Loses Second Round in Battle Over In-House Judges". Bloomberg.com. Retrieved 2016-02-07.
20. Duka v. U.S. Securities and Exchange Commission, No. 15 Civ. 357 (RMB) (SN) (S.D.N.Y. Aug. 12, 2015)
21. Eaglesham, Jean; Martin, Timothy W. "Federal Judge Rules SEC In-House Judges 'Likely Unconstitutional'". Wall Street Journal. ISSN 0099-9660. Retrieved 2016-02-11.
22. http://cityroom.blogs.nytimes.com/2007/09/28/federal-judge-refuses-to-block-credit-cards-video-screens-and-gps-in-taxis/?_r=0
23. MacWade v. Kelly, No. 05 Civ. 6921 (RMB), 2005 WL 3338573, at *1 (S.D.N.Y. Dec. 7, 2005), aff'd, 460 F.3d 260 (2d Cir. 2006).
24. "Beyonce's 'B-Day' Hits Copyright Snag | Billboard". Billboard. Retrieved 2016-02-10.
25. Royalty Network, Inc. v. Columbia Recording Corp., No. 07 Civ. 3067 (RMB) (S.D.N.Y. Oct. 12, 2007).
26. Mahler, Jonathan (2014-09-23). "D'Souza Avoids Prison in Campaign Finance Case". The New York Times. ISSN 0362-4331. Retrieved 2016-02-10.
27. Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006)
28. Kaufman, Leslie (2007-08-02). "One Woman, 11 Adoptions and a Time of Urgency". The New York Times. ISSN 0362-4331. Retrieved 2016-02-07.
29. "Fla. woman in adoption scam gets 20 years". msnbc.com. Retrieved 2016-02-07.
30. Dimmie v. Carey, 88 F. Supp. 2d 142 (S.D.N.Y. 2000)
31. Herald-Record, Beth Kalet,The Times. "Pop singer cleared of copyright infringement". recordonline.com. Retrieved 2016-02-07.
32. Johnson v. Johnson, No. 11 Civ. 37 (RMB), 2011 WL 569876 (S.D.N.Y. Feb. 10, 2011)
33. "Matter of Everett". New York Law Journal. 30, col. 5 [Fam. Ct. Queens Cnty. 1998]. April 23, 1998.
34. "Everett Fails to Get Custody". The New York Times. 1997-08-09. ISSN 0362-4331. Retrieved 2016-02-11.
35. Ojito, Mirta (1997-08-10). "D.A. Still Looking Into Everett Abuse Case". The New York Times. ISSN 0362-4331. Retrieved 2016-02-11.
36. Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004)
37. Rodriguez v. Pataki, 543 U.S. 997 (2004)
38. Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y. 2005)
39. "Nitke v. Gonzales". Berkeley Technology Law Journal. 21 (1). January 2006.
40. Carpenters Pension Trust Fund of St. Louis v. Barclays PLC, 750 F.3d 227 (2d Cir. 2014)
41. See also In re Harman International Industries, Inc. Securities Litigation, 791 F.3d 90 (D.C. Cir. 2015)
42. Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014)
43. Rodriguez v. Schriver, 392 F.3d 505 (2d Cir. 2004)
44. New England Insurance Co. v. Healthcare Underwriters Mutual Insurance Co., 295 F.3d 232, 242-43 (2d Cir. 2002)
45. Berman, Richard M. (January 26, 2006). "A Team Model To Identify Child Abuse". New York Law Journal.
46. Berman, Richard M. (February 28, 2006). "Seven Steps To Protect Children". New York Law Journal.
47. Berman, Richard M. (March 15, 2010). "Community Service for Juvenile Offenders". New York Law Journal.
48. Berman, Richard M. (March 3, 2015). "Special Immigrant Juvenile Status". New York Law Journal.
49. Russo, Melissa (June 1, 2015). "I-Team: Federal Probe Finds "Reasonable Suspicion" of Criminal Activity in Alleged Scheme to Defraud Queens Family Court". Retrieved February 7, 2016.
50. "SUN ALSO RISES IN FAMILY COURT". NY Daily News. Retrieved 2016-02-11.
51. Serant, Claire (October 20, 1996). "Helping Others Helps Teens Troubled Kids Learn Kindness". Daily News. Retrieved February 7, 2016.
52. English, Merle (August 31, 1997). "Embracing Community Service for Juveniles". Newsday.
53. Bertrand, Donald (December 24, 1997). "A New Way Out of Trouble: Young Offenders Get Alternatives to Jail". Daily News.
54. "Faculty Profile - Hon. Richard M. Berman". www.pli.edu. Retrieved 2016-03-24.
55. "Rule of law and freedom of press under attack in Turkey". Cihan Haber Ajansı: Doğru ve hızlı haberin adresi. Retrieved 2016-03-24.

External links

• Richard M. Berman at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
  
• Richard M. Berman at Ballotpedia