Sacerdote et al v. New York UniversityMEMORANDUM OF LAW in Support re: 373 MOTION to Strike Document No. [358-1] Declaration of Mark I. Harrison. . DocumentS.D.N.Y.November 29, 2018UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DR. ALAN SACERDOTE, et al., Plaintiffs, v. NEW YORK UNIVERSITY, Defendant. : : : : : : : : : : Case No.: 1:16-cv-06284-RWS ECF Case MEMORANDUM IN SUPPORT OF MOTION TO STRIKE DECLARATI ON OF PLAINTIFFS’ PROFFERED EXPERT MARK HARRISON Mark Muedeking (admitted pro hac vice) Ian C. Taylor (admitted pro hac vice) Jennifer K. Squillario (admitted pro hac vice) Adam J. Pié (admitted pro hac vice) DLA Piper LLP (US) 500 8th Street, NW Washington, DC 20004 (202) 799-4000 Brian Kaplan (BK4922) Evan D. Parness (EP6680) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 (212) 335-4500 Attorneys for Defendant Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 1 of 20 TABLE OF CONTENTS Page - i - INTRODUCTION ............................................................................................................. 1 ARGUMENT ......................................................................................................................... 2 I. Mr. Harrison’s Declaration Is an Improper Legal Opinion. ............................................. 2 A. Expert Opinions on Disqualification Are Impermissible Legal Opinions. ............. 2 B. Mr. Harrison’s Declaration Is Comprised Entirely of Legal Opinions. .................. 4 II. Mr. Harrison’s Declaration Is Unreliable. .............................................................. 5 A. The Declaration Is Based on Mr. Harrison’s Presumptions, Subjective Beliefs, Speculation, and Unreliable Hearsay. .......................................................... 5 B. Mr. Harrison’s Declaration Is Based on Incorrect Statements of Fact. .................. 8 CONCLUSION ........................................ ....................................................................... 14 Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 2 of 20 - ii - TABLE OF AUTHORITIES Page(s) Cases Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ....................................................................................... 5, 6, 7, 8 Demoulas v. Demoulas, 432 Mass 43 (Mass. Sup. 2000) ................................................................................. 3 Doe v. Cabrera, 134 F. Supp. 3d 439 (D.D.C. 2015) .................................................................................. 3 GST Telecomms., Inc. v. Irwin, 192 F.R.D. 109 (S.D.N.Y. 2000) ................................................................................ 5, 13 Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 3993627 (S.D. Ill. Aug. 21, 018) ........................................... 4 Hodgson v. Liquor Salesmen’s Union, Local No. 2 of the State of N.Y., 444 F.2d 1344 (2d Cir. 1971)...................................................................................... 7 Huff v. Standard Life Ins. Co., 643 F. Supp. 705 (S.D. Fla. 1986) .................................................................................... 7 In re City of Houston, 745 F.2d 925 (5th Cir. 1984) ...................................................................................... 3 In re Farman, 841 P.2d 99 (Wyo. 1992) ............................................................................................ 7 In re Initial Public Offering Sec. Litig., 174 F. Supp. 2d 61 (S.D.N.Y. 2001) ................................................................... 1, 2, 3 In re McCarthey, 368 F.3d 1266 (10th Cir. 2004)................................................................................... 3 In re M/V MSC Flaminia, No. 12-cv-8892, 2017 WL 3208598 (S.D.N.Y. July 28, 017) ............................................. 6 Island Intellectual Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675, 2012 WL 526722 (S.D.N.Y. Feb. 14, 2012) ............................................ 6 Jefferson County v. Acker, 92 F.3d 1561 (11th Cir. 1996) .................................................................................... 3 Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 3 of 20 - iii - Kidder, Peabody & Co., Inc. v. IAG Int’l Acceptance Grp. N.V., 14 F. Supp. 2d 391 (S.D.N.Y. 1998) ..................................................................... 5, 13 Lippe v. Bairnco Corp., 288 B.R. 678 (S.D.N.Y. 2003) .......................................................................................... 6 Luitpold Pharms., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische Industrie, No. 11-cv-681, 2015 WL 5459662 (S.D.N.Y. Sept. 16, 2015) ............................................. 6 Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008) ....................................................................................... 6 Melendres v. Arpaio, No. CV-07-2513-PHX-GMS, 2015 WL 13173306 (D. Ariz. July 10, 2015) ...................... 3, 4 Music Sales Corp. v. Morris, 73 F. Supp. 2d 364 (S.D.N.Y. 1999) ........................................................................... 3 Person v. Gen. Motors Corp., 730 F. Supp. 516 (W.D.N.Y. 1990) ............................................................................ 7 Salt Lake Tribune Publ’g Co., LLC v. AT&T Corp., 353 F. Supp. 2d 1160 (D. Utah 2005) ........................................................................ 3 Scentsational Techs., LLC v. Pepsi, Inc., No. 13-cv-8645, 2018 WL 910587 (S.D.N.Y. Feb. 14, 2008) .............................................. 6 Scott v. Chipotle Mexican Grille, Inc., 315 F.R.D. 33 (S.D.N.Y. 2016) ...................................................................................... 13 SEC v. Tourre, 950 F. Supp. 2d 666 (S.D.N.Y. 2013) ............................................................................... 6 Snyder v. Wells Fargo Bank, N.A., No. Civ. 4496 (SAS) 2012 WL 4876938 (S.D.N.Y. Oct. 15, 2012)...................................... 13 State v. Hunt, 147 Vt. 631 (1987) ........................................................................................................... 7 U.S. v. Eyerman, 660 F. Supp. 775 (S.D.N.Y. 1987) .......................................................................... 1, 2 U.S. v. Rubashkin, No. 08-CR-1324-LRR, 2010 WL 4362455 (N.D. Iowa 2010) ................................................ 8 Willner v. Univ. of Kansas, 848 F.2d 1023 (10th Cir. 1988)................................................................................... 7 Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 4 of 20 - iv - Statutes & Other Authorities 28 U.S.C. § 455 ....................................................................................................... passim 28 U.S.C. § 1746 ............................................................................................................ 14 Fed. R. Evid. 702 ................................................................................................................... 8 Fed. R. Evid. 703 ................................................................................................................... 6 Carl M. Selinger, The Problematic Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics 405, 418-19 (2000) .............................................................. 4, 14 Expert Legal Testimony, 97 Harv. L. Rev. 797 (1984) ............................................................................................. 4 Judicial Disqualification, Recusal and Disqualification of Judges, Little, Brown & Company, Chapter 19.6 ..................................................................... 7 Thomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U. Kan. L. Rev. 325 (1992) ......................................................................................... 4 Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 5 of 20 INTRODUCTION Dissatisfied with the decision issued by this Court following trial, and desperate to find any reason this Court should reconsider the detailed, d liberate, and well-reasoned 78-page Opinion and Order, Plaintiffs have taken the extraordinary and presumptuous tack of offering this Court a Declaration from Mark Harrison in support of their Motion to Vacate Judgment and for New Trial. This Declaration is an inappropriate and inadmissible legal opinion, which should be stricken from the record for two substantive reasons.1 First, the law of the Second Circuit (and every other Circuit) provides that experts may not offer opinions on the law. In fact, this Court has, on two prior occasions, admonished parties and counsel for offering inappropriate and inadmissible expert “opinion” on the exact same subject of Mr. Harrison’s Declaration—judicial disqualification pursuant to 28 U.S.C. § 455. See U.S. v. Eyerman, 660 F. Supp. 775, 781-82 (S.D.N.Y. 1987) (striking expert report on 28 U.S.C. § 455 as “presumptuous” and “inappropriate” nd stating that opinions on judicial disqualification are “hardly an occasion for which credible experts supply legal opinions”); In re Initial Public Offering Sec. Litig., 174 F. Supp. 2d 61, 69-70 (S.D.N.Y. 2001) (“In our adversarial system, lawyers make arguments, judges write legal opinions—and there is no such thing as an expert opinion when it comes to interpreting a statute unless that opinion belongs to a court.”). After an exhaustive search, Defendant is ot aware of any instance where a court in the Second Circuit (or any other circuit) accepted and considered an “expert” opinion on what 28 U.S.C. § 455 requires. Second, all of Mr. Harrison’s legal opinions are unreliable because they are based on Mr. Harrison’s presumptions, subjective beliefs, unreliable hearsay, and blatantly incorrect facts 1 Because Plaintiffs had no procedural ground to file Mr. Harrison’s Declaration, they should have, at the very least, sought leave of court. The Court should also strike the Declaration on that basis. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 6 of 20 - 2 - supplied to him by Plaintiffs’ counsel. Rather than conduct his own reasonable inquiry into the factual record, Mr. Harrison blindly adopted factual mischaracterizations, in many cases verbatim, directly from Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion to Vacate Judgment (ECF No. 358). ARGUMENT I. Mr. Harrison’s Declaration Is an Improper Legal Opi nion. A. Expert Opinions on Disqualification Are Impermissible Legal Opinions. Proffered expert opinions regarding whether a judge should disqualify herself under 28 U.S.C. § 455(a) are inappropriate legal opinions. Plaintiffs do not cite a single case where any court ever admitted and considered an expert opinion on the question of whether a judge was disqualified under 28 U.S.C. § 455(a). And after an exhaustive search, Defendant is not aware of any such case. On the other hand, Courts have uniformly held that opinions regarding whether recusal was required pursuant to 28 U.S.C. § 455(a) are improper legal opinions. This exact question was addressed by this Court in In re Initial Public Offering Securities Litigation, 174 F. Supp. 2d 61 (S.D.N.Y. 2001) (Scheindlin, J.). In I itial Public Offering, moving defendants sought the Court’s recusal and, in support, proffered declarations of two professors as experts in judicial ethics. Id. at 62. The Court was unequivocal: The question presented on the recusal motion is whether 28 U.S.C. § 455 requires this Court to disqualify itself. This decision invol es nothing more than interpreting the statute given certain undisputed facts; it is solely a question of law. Id. at 65-66 (emphasis added) (citing Jefferson County v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996)). Likewise, thirty-one years ago, in Eyerman, Judge Milton Pollack of this Court, in denying a motion to recuse under 28 U.S.C. § 455, admonished the defendant for submitting Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 7 of 20 - 3 - proffered expert reports that were “extracurricular opinions of law.” 660 F. Supp. at 781. As the Court explained, motions for recusal under 28 U.S.C. § 455 are “hardly an occasion for which credible experts supply legal opinions.” Id. Courts across the country have uniformly reached th same conclusion. See Melendres v. Arpaio, No. CV-07-2513-PHX-GMS, 2015 WL 13173306, at *9 (D. Ariz. July 10, 2015) (“The question presented on the recusal motion is whether 28 U.S.C. § 455 requires this Court to disqualify itself. This decision is solely a question of law.”); Salt Lake Tribune Publ’g Co., LLC v. AT&T Corp., 353 F. Supp. 2d 1160, 1167-68 (D. Utah 2005) (rejecting professor’s affidavit regarding 28 U.S.C. § 455 recusal as “inappropriate” opinion on the law); In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004) (rejecting proffered expert opinion on recusal); Doe v. Cabrera, 134 F. Supp. 3d 439, 447-48 n. 12 (D.D.C. 2015) (rejecting proffered expert report on judicial ethics as “unnecessary and unconvincing”); Demoulas v. Demoulas, 432 Mass 43, 54 (Mass. Sup. 2000) (rejecting proffered expert opinion on recusal and citing proffered expert’s own writing that “[o]pinions from ‘experts’ on issues of judicial disqualification may be considered irrelevant where their views on how a disqualification motion should be decided have not been solicited by the challenged judge”); see also Jefferson Cty. v.Acker, 92 F.3d 1561, 1581 (11th Cir. 1996), vacated on other grounds, 520 U.S. 1261 (1997) (“Whether a judge is disqualified, that is, must not take part in deciding a case, is a question of law.”); In re City of Houston, 745 F.2d 925, 927 (5th Cir. 1984) (same). The law on this issue is uniform. “This Court has repeatedly held that the testimony of an expert on matters of domestic law is inadmissible for any purpose.” Music Sales Corp. v. Morris, 73 F. Supp. 2d 364, 381 (S.D.N.Y. 1999) (emphasis dded). In fact, every Circuit court has explicitly explained that experts may not offer opinions or conclusions on issues of law. In Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 8 of 20 - 4 - re Initial Public Offering, 174 F. Supp. 2d at 64-65 (listing cases from every Ci cuit); Melendres v. Arpaio, 2015 WL 13173306, at *9 (“The law of this and every Circuit is that while an expert may provide an opinion to help the jury or judge understand a particular fact, the expert is not permitted to give an opinion as to his legal conclusion.” (citing Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004)).2 Extensive and unequivocal commentaries likewise denounce the practice of offering expert opinions on matters of law. See, e.g., Expert Legal Testimony, 97 Harv. L. Rev. 797, 797 (1984) (stating that “it remains black-letter law tha expert legal testimony is not permissible”); Thomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U. Kan. L. Rev. 325, 352 (1992) (explaining that the rule prohibiting experts from providing legal opinions or conclusions “is so well-established that it is often deemed a basic premise or assumption of evidence law—a kind of axiomatic principle”); Carl M. Selinger, The Problematic Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics 405, 418-19 (2000) (surveying the “not terribly strong” arguments “for carving out an exception for legal ethics scholars from the traditional exclusion of expert testimony on the law” and advocating “scrutin[y] from an ethical standpoint” of “practices by scholars that could compromise their objectivity”). B. Mr. Harrison’s Declaration Is Comprised Entirely of Legal Opinions. There can be no doubt that Mr. Harrison seeks to offer nothing more than his legal opinions on the requirements and application of 28 U.S.C. § 455. Mr. Harrison first opines on what “28 U.S.C. § 455(a) required Judge Forrest” to disclose. (Harrison Decl., ECF No. 358-1 at p. 13 (emphasis added).) Mr. Harrison’s second opinion purports to tell this Court that, as a 2 Although the Southern District of Illinois permitted limited expert opinion from Mr. Harrison in Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 3993627 (S.D. Ill. Aug. 21, 2018), the court made clear that Mr. Harrison’s expert report in that case was not “an attempt to offer legal conclusions.” Id. at *4. Further, the Hale case involved alleged RICO violations stemming from campaign contributions, and Mr. Harrison did not seek to offer any opinions regarding 28 U.S.C. § 455 in that case. Id. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 9 of 20 - 5 - matter of law, “recusal were required.” (Id. at pp. 13-14 (emphasis added).) Mr. Harrison’s third opinion goes even further in opining on what “28 U.S.C. § 455(a) and (e)” would “not permit” based on his interpretation of certain cases that he cites in support of his legal opinion. (Id. at 14.) II. Mr. Harrison’s Declaration Is Unreliable. A. The Declaration Is Based on Mr. Harrison’s Presumptions, Subjective Beliefs, Speculation, and Unreliable Hearsay. Mr. Harrison’s proffered opinions are patently unreliable because they are based on his presumptions, subjective beliefs, speculation, and unreliable hearsay. This Court and every Court in the Second Circuit strictly enforces the limitations of the Rules of Evidence on expert opinion. Kidder, Peabody & Co., Inc. v. IAG Int’l Acceptance Grp. N.V., 14 F. Supp. 2d 391, 402 (S.D.N.Y. 1998). And, “[t]estimony from an expert, predicated on ‘subjective belief’ and ‘unsupported factual speculation’ violates the Supreme Court’s directions for expert testimony in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993).” GST Telecomms., Inc. v. Irwin, 192 F.R.D. 109 (S.D.N.Y. 2000). Mr. Harrison, however, explicitly bases all of his proffered opinions on his presumptions, subjective beliefs, speculation, and unreliable hearsay. (Harrison Decl., ECF No. 358-1 at pp. 9, 13, 14.) Mr. Harrison’s opinions and conclusions are based in large part on what he imagines Judge Forrest “presumably” was “considering” or “hoping.” He admits that his opinions are based on his personal “belief” regarding the relevant f cts. (Id. at pp. 13-14.) Specifically, Mr. Harrison alleges as “fact” “that Judge Forrest was presumably considering re-joining Cravath as a partner of Mr. Chesler at the time the case was under submission.” (Id. at p. 13 (emphasis added).) Mr. Harrison further bases his conclusions his assumption that “Judge Forrest was . . . presumably hoping to be rehired by the Cravath firm before she decided the case” and Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 10 of 20 - 6 - his assumption that Judge Forrest was “considering employment with Cravath specifically.” (Id. at pp. 13-14 (emphasis added).) What Mr. Harrison presumes is nothing but his baseless speculation, and his presumptuousness extends even so far as to enter the minds of Judge Forrest and Mr. Chesler, as Mr. Harrison states as a matter of “fact” that there was a “close relationship” between Judge Forrest and Mr. Chesler. (Id. at Section II.1.w.) This type of speculation falls far short of being reliable or admissible. See Daubert, 509 U.S. at 590; Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (stating that “proffered ‘expert testimony should be excluded if it is speculative or conjectural’” and explaining that “admission of expert testimony based on speculative assumptions is an abuse of discretion”); SEC v. Tourre, 950 F. Supp. 2d 666, 678 (S.D.N.Y. 2013); In re M/V MSC Flaminia, No. 12-cv-8892, 2017 WL 3208598, at *2 (S.D.N.Y. July 28, 2017) (This Court “will not admit opinions premised on speculation or that amount to ipse dixit, i.e., assertions that something is true because the expert says so.”).3 Beyond his speculation and assumptions, Mr. Harrison’s pinions are based almost entirely on unreliable hearsay. Although Rule 703 permits experts to base opinions on otherwise inadmissible hearsay, that reliance is permitted only if the facts or data are “‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the 3 Moreover, almost the entirety of Mr. Harrison’s statements of background facts is improper narrative. S e Scentsational Techs., LLC v. Pepsi, Inc., No. 13-cv-8645, 2018 WL 910587, at *8 (S.D.N.Y. Feb. 14, 2008) (excluding an expert’s testimony which “recounts events that occurred—using deposition testimony and documents for support” and which “purports to assign motives and draw conclusions wholly outside [the expert’s] expertise”); Luitpold Pharms., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische Industrie, No. 11-cv-681, 2015 WL 5459662, at *3 (S.D.N.Y. Sept. 16, 2015) (“Acting simply as a nrrator of the facts does not convey opinions based on an expert’s knowledge and expertise; nor is such a narration traceable to a reliable methodology.”); Island Intellectual Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675, 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2012) (“No proposed expert will be allowed to act as a vehicle for lengthy factual narrative.”); Lippe v. Bairnco Corp., 288 B.R. 678, 687 (S.D.N.Y. 2003) (“Expert testimony is not relevant if the expert is offering a personal evaluation of the testimony and credibility of others or the motivations of the parties.”). Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 11 of 20 - 7 - subject.’” Daubert, 509 U.S. at 595. Mr. Harrison relies heavily on hearsay—of the 23 paragraphs of “background facts” (Section II.1.a-w), virtually every paragraph includes hearsay. Some of Mr. Harrison’s “background facts” paragraphs cite no support whatsoever (a, j, o, p, v, w), while others cite hearsay exclusively (b, c, e, i q s, t, u). Courts routinely deny recusal motions that are based on this type of unreliable hearsay. See Judicial Disqualification, Recusal and Disqualification of Judges, Little, Brown & Company, Chapter 19.6, attached hreto as Exhibit A (summarizing cases) (“Hearsay statements a d allegations ordinarily do not satisfy the legal sufficiency requirement for two reasons. First, a reasonable person would ordinarily not doubt a judge’s impartiality on the basis of such assertions. Second, were a judge to disqualify himself on the basis of hearsay allegations, the price of maintaining the purity of the appearance of justice would be the power of litigants to exercise a veto over the assignment of judges.”); ee also Hodgson v. Liquor Salesmen’s Union, Local No. 2 of the State of N.Y., 444 F.2d 1344, 1349 (2d Cir. 1971) (affidavit based on hearsay insufficient to support recusal motion because if “mere rumor, gossip, or general conclusory opinions were sufficient, any party could reject a judge at will”); Willner v. Univ. of Kansas, 848 F.2d 1023, 1027 (10th Cir. 1988) (affidavit based on hearsay falls far short of the careful and thorough investigation and due diligence required of an individual who wishes to disqualify a judge); Person v. Gen. Motors Corp., 730 F. Supp. 516, 519 (W.D.N.Y. 1990) (recusal is not supportable by counsel’s vague and unsupported allegations regarding unspecified hearsay statements); Huff v. Standard Life Ins. Co., 643 F. Supp. 705, 708- 09 (S.D. Fla. 1986) (affidavit based on hearsay “falls f r short” of what is required for recusal); In re Farman, 841 P.2d 99, 102 (Wyo. 1992) (“If a naked allegation made on the basis of hearsay were sufficient, any party could reject a judge at will”); State v. Hunt, 147 Vt. 631, 631- 32 (1987) (“Since 1920, courts from the United States Supreme Court on down have with near Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 12 of 20 - 8 - uniformity rejected unsupported opinion, baseless conclusions, rumors, gossip and hearsay as a proper basis for a recusal motion.”), cert. denied, 489 U.S. 1026. B. Mr. Harrison’s Declaration Is Based on Incorrect Statements of Fact. Mr. Harrison’s Declaration is based on incorrect sta ements of fact “provided to [him] by plaintiffs’ counsel” which he merely assumed “can and will be supported by competent evidence.” (Harrison Decl., ECF No. 358-1 at pp. 2, 9.) Such a casual approach to the accuracy of supporting facts falls far short of meeting the burden of admissibility under FRE 702 and Daubert. Mr. Harrison made no effort to satisfy his obligation to base his opinion “on sufficient facts or data.” FRE 702. Nor did he attempt to explain why his opinion is “the product of reliable principles and methods.” FRE 702. Unfortunately, this appears to be Mr. Harrison’s modus operandi. See U.S. v. Rubashkin, No. 08-CR-1324-LRR, 2010 WL 4362455, at *6 n. 7 (N.D. Iowa 2010) (“Given [Mr. Harrison’s] proclivity to rely on defense counsel’s mischaracterization of the facts, the court declines to credit [his] affidavit[].”). Mr. Harrison’s proffered Declaration demonstrates why simply relying on limited supposed “facts” and materials provided by counsel is an insufficient substitute for conducting a diligent inquiry before offering an “expert” opinion: even a rudimentary comparison of the record to the statements in his declaration demonstrate numerous misstatements and mischaracterizations. One key “fact” upon which Mr. Harrison bases his opinions is his “understanding” that “Plaintiffs’ claims in this case directly implicate NYU’s Board of Trustees” because the Board of Trustees allegedly had “responsibility for the management of the pension plans” at issue. (Harrison Decl., ECF No. 358-1 at pp. 5, 7, 11.) Both of these statements are demonstrably false. Had Mr. Harrison made even the slightest effort to review the facts in this case, he would have quickly found that his “understanding” of the facts fed to him from Plaintiffs’ counsel was fatally and fundamentally fawed. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 13 of 20 - 9 - This case involved the actions of the NYU Retirement Plan Committee in regard to the administration of certain retirement plans established and maintained by NYU. (Opinion and Order, ECF No. 348 at p. 2.) Plaintiffs alleged that the Retirement Plan Committee breached ERISA fiduciary duties by allegedly allowing the plans to pay excessive fees and by offering certain allegedly imprudent investment alternatives. (ECF No. 348 at pp. 2-3, 29, 61.) In total, Plaintiffs filed or attempted to file five separate complaints in this case and a related case (“Sacerdote II”) that Plaintiffs admit that they brought to avoid the Court’s adverse rulings in this case. (See e.g., ECF Nos. 1, 39, 84-2; Sacerdote II ECF Nos. 1, 105.) Not once in any of their five complaints, including the very paragraphs cited in their motion to vacate, did Plaintiffs even mention the NYU Board of Trustees. (See ECF Nos. 1, 39, 84-2; Sacerdote II ECF Nos. 1, 105.) 4 Nor did Plaintiffs ever allege in any of their numerous complaints that the NYU Board of Trustees were fiduciaries under ERISA. Over the course of more than two years of litigation Plaintiffs never brought or sought to bring any claims against the NYU Board of Trustees or any of its members. (See e.g. ECF Nos. 1, 39, 84-2; Sacerdote II ECF Nos. 1, 105.) Even when Plaintiffs alleged a claim for a failure of a duty to monitor the Retirement Plan Committee, that claim was asserted against NYU and did not allege any improper actions by (or even mention) the Board of Trustees or any of its members. (See ECF Nos. 1, 39, 84-2; Sacerdote II ECF Nos. 1, 105.) Moreover, the Court dismissed that claim because of the total lack of supportive factual allegations eight months before trial. (ECF No. 79 at pp. 34-35 (dismissing the claim that there was any failure to adequately monitor fiduciaries).) 4 All ECF citations in this memorandum are to docket number 16-cv-6284 unless otherwise noted. Citations and references to Sacerdote II refers to Plaintiffs’ second lawsuit, Sacerdote, et al. v. New York University School of Medicine et. al. (Case No. 17-cv-08834). Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 14 of 20 - 10 - If Mr. Harrison had made even the most rudimentary efforts to verify this “information provided to [him] by plaintiffs’ counsel” he would have seen there was virtually no testimony at trial regarding the actions or duties of Board of Trustees or its members,5 no discussion of the Board of Trustees or any of its members by either party in the summations, and no mention of the Board of Trustees or any of its members by either of the parties in their voluminous post-trial proposed findings of fact and conclusions of law. Mr. Harrison’s Declaration suggests that he reviewed the Trial Declaration of Gerald Buetow, another one of Plaintiffs’ alleged “experts,” who alleges in his Declaration that the NYU Board of Trustees “was ultimately responsible for the challenged conduct as to both of [the] claims [at issue in this case] because the [Retirement Plan Committee’s] investment decisions must be reviewed and accepted by the Investment Committee of the Board of Trustees of New York University.” (Harrison Decl., ECF No. 348-1 at Section II.1.q. (internal quotations omitted).) Had Mr. Harrison read the materials allegedly relied upon by Dr. Buetow in making this assertion, he would have seen that Dr. Buetow provided no factual support whatsoever for this statement and that the Retirement Plan Committee Charter makes abundantly clear that the Retirement Plan Committee (not the Board of Trustees) is solely responsible for investment options to be offered to the Plans’ participants. (PX466 at 2, attached hereto as Exhibit D.) Moreover, apparently Mr. Harrison failed to take into account that Gerald Buetow’s testimony did not “use reliable economic methods,” used an “incorrect benchmark” that was “his own creation,” and was “misleading,” and that “a prudent fiduciary . . . would draw the opposite 5 The NYU Board of Trustees was only mentioned twice during the entire eight-day trial. The first was when Judge Forrest asked Patricia Halley, co-chair of the Retirement Plan Committee, whether the investment policy statement was approved by the Board of Trustees and Mrs. Halley testified that it was not. See excerpt of trial transcript (“Tr.”) at 1005:10-17, attached hereto as Exhibit C. The second was when Plaintiff Monaco testified that it was her “understanding” that the “board of trustees was respon ible, basically, for administering this plan” although there was no foundation for her “understanding” and it was contrary to all of the documents and testimony throughout the trial that the Retirement Plan Committee was the Plan Administrator. See Exhibit C, Tr. at 1050:22-25. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 15 of 20 - 11 - conclusion from Buetow.” (Opinion & Order, ECF No. 348 at pp. 7 n. 20, 66 n. 110, 67 n. 112, 75, 76.6) Mr. Harrison further incorrectly asserts that the NYU Board of Trustees was “responsible for monitoring the [Retirement Plan] Committee’s performance as fiduciaries.” (Harrison Decl. ECF No. 358-1 at Section II.1.l, o, and p. 14.) His sole authority for this assertion, however, is the Retirement Plan Committee Charter, which uses th word monitoring once, and only in the context of the fact that the Retirement Plan “Committee shall be responsible for evaluating, selecting and monitoring participant-directed investment options.” (Exhibit D, PX466 at 2.) Mr. Harrison repeatedly states that Mr. Chesler and the NYU Board of Trustees “were responsible for reviewing and accepting any investmnt policy statement.” (Harrison Decl., ECF No. 358-1 at Section II.1.n.) This statement is likewise incorrect. For this alleged fact, Mr. Harrison cites the Retirement Plan Committee Charter nd the Retirement Plan Committee’s Investment Policy Statement. The latter does not even mention the Board of Trustees. And, the Retirement Plan Committee Charter states that “the Committee may adopt” an investment policy statement and that statement “may be reviewed and accepted by the Finance Committee of the Board of Trustees of New York University.” (Exhibit D, PX466 at 2 (emphasis added).) There is no evidence in the record of this case that the Finance Committee of the Board of Trustees ever reviewed and accepted an investment policy statement, or that any such review was required. To the contrary (and again conveniently ignored by Mr. Harrison), the only evidence in the record is that the Retirement Plan Committee reviewed and approved the investment policy statement and the Board had no obligation to do so. (See Exhibit C, Tr. at 1005, Testimony of 6 Mr. Harrison also cites to completely irrelevant alleged “facts,” including that the Charter “provides for the indemnification of the Committee members” and that e Committee Charter includes provisions regarding amendments that “would cost more than $3 million or result in an annual increase in cost of more [than] $2 million.” (Harrison Decl., ECF No. 358-1 at Section II.1.m.) Mr. Harrison offers no reason why he thinks these allegations are relevant to any issue in the case or to any argument in his declaration. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 16 of 20 - 12 - Trish Halley (explaining that the IPS is reviewed on an annual basis and that “the retirement committee votes and approves it”).) Virtually all of the remaining statements of “fact” in Mr. Harrison’s Declaration are also facially lacking, unsupported, based on unreliable hearsay, misleading, or simply incorrect. Paragraph 1.a of his “Background Facts” provides no ource of support whatsoever. (Harrison Decl., ECF No. 358-1 at Section II.1.a.) Paragraphs 1.b-g are hearsay. (Id.) Although Mr. Harrison blindly accepted Plaintiffs’ argument that the Cravath law firm and Mr. Chesler were somehow relevant to the issues tried to the Court, Mr. Harrison ignored the fact that neither was mentioned in testimony or argument in the case. In fact, of the thousands of pages of exhibits offered into evidence in this case, not a single page of any document mentions Mr. Chesler or the Cravath law firm. Paragraph 1.h misleadingly suggests that Cravath has extensive ties to NYU because a former Cravath partner and a Cravath Senior Counsel serve on the Board of the NYU School of Law, which is even more attenuated and not relevant to any allegation in this case. (Id.) Further, Mr. Harrison conveniently omits that NYU Law School Board members include partners from over 20 prominent law firms. Paragraph 1.i is, again hearsay. (Id.) Tellingly, Mr. Harrison cites no support for his incorrect statement in paragraph 1.j. that “Plaintiffs’ claims in this case directly implicate NYU’s Board of Trustees.” (Id.) Likewise, Mr. Harrison cites no authority for his statement in paragraph 1.k that NYU, “acting through the Board of Trustees and Mr. Chesler, formed a fiduciary committee.” (Id.) Mr. Harrison cites no authority for his legal conclusion in paragraph 1.o regarding how NYU acts and, which, with respect to the plans at issue in this case, is, again, incorrect. (Id.) Mr. Harrison’s statement in paragraph 1.q that the Retirement Plan Committee’s investment decisions must be reviewed by the Board of Trustees is false, as are his statements in paragraph Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 17 of 20 - 13 - 1.t regarding the Board of Trustees’ alleged oversight of the Retirement Plan Committee. (Id.) And Mr. Harrison offers no support at all for his assumptions in paragraphs 1.v and 1.w. (Id.) Lacking a careful reading of the record and the facts, Mr. Harrison’s opinions are bare advocacy. Mr. Harrison did not conduct his own reasonable inquiry, but simply adopted, in many instances verbatim, statements from Plaintiffs’ memorandum of law. In 20 of the 23 paragraphs of “background facts” in his declaration, Mr. Harrison simply copied verbatim statements, sentences, and even entire paragraphs fom Plaintiffs’ memorandum of law. See highlighted sections or Mr. Harrison’s report that are verbatim recitations of Plaintiffs’ memorandum, attached hereto as Exhibit B.7 In numerous other instances, he merely changed a few words or combined sentences from Plaintiffs’ Memorandum of Law. As this Court has repeatedly held, such “contentious advocacy . . . in clearly expressed, biased viewpoints” is unhelpful and inadmissible. GST Telecomms., 192 F.R.D. at 110; Scott v. Chipotle Mexican Grille, Inc., 315 F.R.D. 33, 48-49 (S.D.N.Y. 2016) (striking portions of expert report that place expert in role of advocate); Snyder v. Wells Fargo Bank, N.A., No. Civ. 4496 (SAS) 2012 WL 4876938, at *4 (S.D.N.Y. Oct. 15, 2012) (striking portions of expert opinion that undertakes to tell the trier of fact what result to reach and portions addressing credibility and motivations of witnesses); Kidder, Peabody & Co., 14 F. Supp. 2d at 404-05 (striking proffered expert testimony of law professor who sought to argue that par y acted reasonably and in good faith). * * * A close reading of Mr. Harrison’s Declaration only raises the question of how he could have possibly declared it “true and correct” under “p nalty of perjury.” Mr. Harrison’s obvious 7 Moreover, Mr. Harrison’s carelessness is evidenced by the fact that paragraph j contains language that was copied directly (Mr. Harrison did not even change the font to be consistent with the remainder of the text in his report) and the fact that Mr. Harrison left his initials “mh” between the text of his Conclusion 2 and Conclusion 3 page 14 of his Declaration. Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 18 of 20 - 14 - failure to review independently all of the available evidence—demonstrated by his acceptance of Plaintiffs’ arguments as fact and by his numerous misstatements of fact—shows that Mr. Harrison violated his own ethical duties. See Selinger, The Problematic Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics at 422 (“Some legal scholars believe strongly that it is unethical for an ethics expert to testify, or otherwise render an opinion, on an issue that requires applying ethics law to a particular state of facts without having independently reviewed all the available evidence.” (citing Steve France, Just Deserts: Don’t Cry for Kaye, Scholer, Legal Times, April 6, 1992, at 28)). This is likely why Mr. Harrison modified the signature obligations of 28 U.S.C. § 1746 and of Rule 80(c) of the Arizona Rules of Civil Procedure, both of which require the affiant to “declare under penalty of perjury that the foregoing is true and correct,” by adding the words “to the best of my knowledge and belief” to his declaration. CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Court exclude Mr. Harrison’s Declaration. Respectfully submitted, /s/ Ian C. Taylor Mark Muedeking (admitted pro hac vice) Ian C. Taylor (admitted pro hac vice) Jennifer Squillario (admitted pro hac vice) Adam J. Pié (admitted pro hac vice) DLA PIPER LLP (US) 500 8th Street, NW Washington, DC 20004 (202) 799-4000 Brian Kaplan (BK4922) Evan D. Parness (EP6680) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 19 of 20 - 15 - (212) 335-4500 Attorneys for Defendant Case 1:16-cv-06284-RWS Document 374 Filed 11/29/18 Page 20 of 20