Sacerdote et al v. New York University

MEMORANDUM OF LAW in Opposition re: 373 MOTION to Strike Document No. [358-1] Declaration of Mark I. Harrison. . Document

S.D.N.Y.December 13, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK DR. ALAN SACERDOTE et al., Plaintiffs, v. NEW YORK UNIVERSITY, Defendant. No. 1:16-cv-06284-RWS ECF Case PLAINTIFFS’ OPPOSITION TO MOTION TO STRIKE DECLARATION OF PLAINTIFFS’ EXPERT MARK HARRISON [DKT. 373] Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 1 of 30 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 I. Mr. Harrison Is One of the Foremost Authorities on Judicial Ethics in the Nation and Was a Drafter of the Model Code of Judicial Ethics. ........................... 1 II. Summary of Mr. Harrison’s Opinions. ................................................................... 5 ARGUMENT .................................................................................................................................. 8 I. Mr. Harrison’s Opinions Are Reliable. ................................................................... 8 A. Mr. Harrison’s Factual Statements Are Correct, Admissible, and Appropriate. ................................................................................................ 8 B. The Board and Mr. Chesler Were Deeply Involved With the Plans and Responsible for Monitoring the Fiduciary Conduct at Issue in this Case. ................................................................................................... 14 II. Mr. Harrison’s Declaration Contains Appropriate Opinion on Matters Related to Judicial Conduct. ................................................................................. 16 A. Courts Regularly Allow Expert Testimony on Questions of Recusal. ..................................................................................................... 16 B. Mr. Harrison’s Declaration Opines on a Mixed Question of Law and Fact and Does Not Contain Improper Legal Opinion. ....................... 19 III. NYU’s Remaining Arguments Fail. ..................................................................... 22 CONCLUSION ............................................................................................................................. 23 Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 2 of 30 ii TABLE OF AUTHORITIES Cases Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011) ..................................................................................................... 16 Astra Aktiebolag v. Andrx Pharms., Inc., 222 F. Supp. 2d 423 (S.D.N.Y. 2002) .................................................................................. 8, 14 Bernstein v. Bernstein Litowitz Berger & Grossmann, LLP, 814 F.3d 132 (2d Cir. 2016) ..................................................................................................... 16 Brock v. City of N.Y., No. 15-1832, 2018 U.S. Dist. LEXIS 124857 (S.D.N.Y. July 25, 2018) ............................ 9, 23 Caidor v. Potter, No. 02-1486, 2007 U.S. Dist. LEXIS 71687 (N.D.N.Y. Sep. 26, 2007) ................................. 23 Fiataruolo v. United States, 8 F.3d 930 (2d Cir. 1993) ................................................................................................... 19, 20 First Nat’l Bank v. Lustig, No. 87-5488, 1993 U.S. Dist. LEXIS 13303 (E.D. La. Sep. 21, 1993) ................................... 18 Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257 (11th Cir. 2009) ................................................................................................ 17 Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660, 2018 U.S. Dist. LEXIS 141812 (S.D. Ill. Aug. 21, 2018) ................. 3, 17, 20, 21 Hodgson v. Liquor Salesmen’s Union, 444 F.2d 1344 (2d Cir. 1971) ................................................................................................... 14 Howard v. Walker, 406 F.3d 114 (2d Cir. 2005) ................................................................................................... 8, 9 Huff v. Standard Life Ins. Co., 643 F. Supp. 705 (S.D. Fla. 1986) ........................................................................................... 14 Hurles v. Ryan, 188 F. Supp. 3d 907 (D. Ariz. 2016) ........................................................................................ 17 In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985) ......................................................................................... 9 In re Blech Sec. Litig., No. 94-7696, 2003 U.S. Dist. LEXIS 4650 (S.D.N.Y. Mar. 26, 2003) ................................... 19 In re Evergreen Sec. Ltd., 384 B.R. 882 (Bankr. M.D. Fla. 2008) .................................................................................... 17 In re Fosamax Prods. Liab. Litig., 647 F. Supp. 2d 265 (S.D.N.Y. 2009) ...................................................................................... 10 In re Grievance Committee of U.S. Dist. Court, 847 F.2d 57 (2d Cir 1988) ........................................................................................................ 16 Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 3 of 30 iii In re Initial Public Offering Security Litigation, 174 F. Supp. 2d 61 (S.D.N.Y. 2001) ........................................................................................ 18 In re M/V MSC Flaminia, No. 12-8892, 2017 U.S. Dist. LEXIS 119146 (S.D.N.Y. July 28, 2017) ................................ 13 In re McCarthy, 368 F.3d 1266 (10th Cir. 2004) ................................................................................................ 18 In re Reliant Energy ERISA Litig., No. 02-2051, 2005 U.S. Dist. LEXIS 48034 (S.D. Tex. Aug. 19, 2005)................................. 21 Jefferson City v. Acker, 92 F.3d 1561 (11th Cir. 1996) .................................................................................................. 19 Leboeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61 (2d Cir.1999) ........................................................................................................ 23 Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) ................................................................................................................. 19 Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008) ..................................................................................................... 13 Melendres v. Arpaio, No. 07-2513, 2015 U.S. Dist. LEXIS 179130 (D. Arix. July 10, 2015), ................................. 19 MPM Silicones, LLC v. Union Carbide Corp., No. 11-1542, 2016 U.S. Dist. LEXIS 98532 (N.D.N.Y. July 7, 2016).................................... 20 Music Sales Corp. v. Morris, 73 F. Supp. 2d 364 (S.D.N.Y. 1999) ........................................................................................ 21 Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) .................................................................................................... 21 Olin Corp. v. Lamorak Ins. Co., No. 84-1968, 2018 U.S. Dist. LEXIS 119212 (S.D.N.Y. July 15, 2018) .................................. 9 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F. Supp. 2d 448 (S.D.N.Y. 2010) ...................................................................................... 13 Person v. Gen. Motors Corp., 730 F. Supp. 516 (W.D.N.Y. 1990) ......................................................................................... 14 Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006) .................................................................................................... 19 Quintero v. Rite Aid of N.Y., Inc., No. 09-6084, 2011 U.S. Dist. LEXIS 130920 (S.D.N.Y. Nov. 10, 2011) ............................... 23 Reach Music Publ'g, Inc. v. Warner Chappell Music, Inc., 988 F. Supp. 2d 395 (S.D.N.Y. 2013) ...................................................................................... 22 Reynolds v. Am. Airlines, Inc., No. 14-2429, 2017 U.S. Dist. LEXIS 192822 (E.D.N.Y. Nov. 21, 2017) ............................... 12 Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 4 of 30 iv Salt Lake Tribune Publ'g Co., LLC v. AT&T Corp., 353 F. Supp. 2d 1160 (D. Utah 2005) ...................................................................................... 18 SEC v. Tourre, 950 F. Supp. 2d 666 (S.D.N.Y. 2013) ................................................................................ 13, 21 SEC v. U.S. Envtl., Inc., No. 94-6608, 2002 U.S. Dist. LEXIS 19701 (S.D.N.Y. Oct. 16, 2002 ................................... 19 Shepler v. Metro-N. Commuter R.R., No. 13-7192, 2015 U.S. Dist. LEXIS 130572 (S.D.N.Y. Sept. 25, 2015) ............................... 13 Shirk v. Fifth Third Bancorp, No. 05-049, 2009 U.S. Dist. LEXIS 24490 (S.D. Ohio Jan. 29, 2009) ................................... 21 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 168 (D.D.C. 2005) ......................................................................................... 10 SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107 (2d Cir. 2006) ..................................................................................................... 15 United States v. Eyerman, 660 F. Supp. 775 (S.D.N.Y. 1987) ........................................................................................... 18 United States v. Locascio, 6 F.3d 924 (2d Cir. 1993) ....................................................................................................... 8, 9 United States v. Morgan, 53 F. Supp. 3d 732 (S.D.N.Y. 2014) ........................................................................................ 11 Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., No. 12-196, 2018 U.S. Dist. LEXIS 106970 (N.D.N.Y. June 27, 2018) ................................. 20 Washington v. Kellwood Co., 105 F. Supp. 3d 293 (S.D.N.Y. 2015) ...................................................................................... 13 White v. NFL, 585 F.3d 1129 (8th Cir. 2009) .................................................................................................... 3 Willner v. Univ. of Kan., 848 F.2d 1023 (10th Cir. 1988) ................................................................................................ 14 Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206 (2d Cir. 2009) ..................................................................................................... 13 Statutes 28 U.S.C. § 455(a) .................................................................................................................... 7, 17 Rules Fed. R. Evid. 703 ................................................................................................................ 8, 10, 12 Fed. R. Evid. 704 .......................................................................................................................... 19 Fed. R. Evid. 803(6) ........................................................................................................................ 9 Fed. R. Evid. 803(8)(A)(ii) ........................................................................................................... 10 Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 5 of 30 v Rule 2.11 of the Model Code of Judicial Conduct.......................................................................... 7 Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 6 of 30 1 PRELIMINARY STATEMENT Plaintiffs’ expert, Mark I. Harrison, is recognized nationwide as an expert in judicial ethics, having been a principal drafter of the Model Code of Judicial Conduct. Drawing from his personal vast knowledge and experience from decades of professional work in the field of judicial conduct, Mr. Harrison provides unparalleled expertise into the ethical duties placed on Judge Forrest as she decided to leave the federal bench and return to private practice while simultaneously having this case under advisement. Mr. Harrison’s background and expertise offers the Court insight from the expert who literally wrote the rules governing judicial conduct, including recusal, as applied to the facts of this case. Thus, Mr. Harrison’s opinion will be of significant use to the Court. Defendant New York University (“NYU”) nevertheless challenges the propriety of Mr. Harrison’s opinions, attacking the facts underlying his opinions, claiming Mr. Harrison provides inadmissible legal opinions, and even going so far as to make remarkable, baseless inferences of perjury. NYU’s malicious attacks are unsupported and incorrect. Each fact relied on by Mr. Harrison is accurate and appropriate. Mr. Harrison’s testimony is not improper legal opinion. Instead, Mr. Harrison provides unique expertise into the mixed questions of fact and law at issue in Judge Forrest’s recusal. As such, NYU’s motion to strike should be summarily denied. BACKGROUND I. Mr. Harrison Is One of the Foremost Authorities on Judicial Ethics in the Nation and Was a Drafter of the Model Code of Judicial Ethics. Mr. Harrison’s legal career spans over 50 years, the most recent two decades of which have been focused on matters related to judicial and legal ethics. Doc. 358-1 at § I.2. Mr. Harrison received his Bachelor of Laws from Harvard Law School in 1960 and subsequently entered private practice. Doc. 358-1 at p.15. Mr. Harrison began representing judges concerning Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 7 of 30 2 the propriety of their conduct 25 years ago, in 1993. He has continued this same work to this day, except for a three-year period in which, at the request of the Supreme Court of Arizona, he served as Special Counsel for the Arizona Commission on Judicial Conduct to prosecute judges charged with misconduct. Doc. 358-1 at § I.4. Through this work, Mr. Harrison developed extensive knowledge in the field of judicial ethics and the corresponding standards imposed by the codes of judicial conduct. As a result of his unparalleled knowledge and distinguished career in the field of judicial ethics, Mr. Harrison was asked in 2003 to Chair the American Bar Association (“ABA”) Commission to Revise the Model Code of Judicial Conduct (the “Model Code”). This was the first such revision since 1990. Id. In that role, Mr. Harrison oversaw the creation of the 2007 Model Code, which has since been adopted in whole or in large part by 35 states. Id. at § I.4 & n.3. Mr. Harrison also joined the Board of Justice at Stake in 2008—a non-profit organization dedicated to securing fair and impartial courts that counted Justice Sandra Day O’Connor as one of its Honorary Chairs—serving as board member and then chairman until 2016. Id. at § I.4.1 As a preeminent authority on judicial and legal ethics, Mr. Harrison has served as an expert in such matters in over 175 cases, submitted several amicus briefs to the Supreme Court on matters of judicial conduct, and spoken on national panels regarding judicial ethics and fair courts. Id. at §§ I.3, 5. In addition to the foregoing, Mr. Harrison was a member of the Ethics Committee for Bryan Cave LLP (n/k/a Bryan Cave Leighton Paisner LLP) and, from 2004 to the present, has specialized in judicial ethics, legal ethics, and professional responsibility for the firm Osborn Maledon, P.A. Id. at § I.3 & p.15.2 Mr. Harrison has published numerous articles in the areas of judicial and legal ethics, Id. 1 See https://www.brennancenter.org/sites/default/files/JAS%20Closing%20Notice.PNG. 2 References to “Doc.” page numbers refer to the page number in the ECF header. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 8 of 30 3 at p.19, and his expertise and work in judicial ethics has been recognized and relied on by numerous Courts, including by the Eighth Circuit Court of Appeals in a high profile case. White v. NFL, 585 F.3d 1129, 1140 (8th Cir. 2009) (citing to Mr. Harrison’s writings on matters of judicial conduct). See also Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660, 2018 U.S. Dist. LEXIS 141812, *5–6 (S.D. Ill. Aug. 21, 2018) (describing Mr. Harrison’s “extensive experience in the field of judicial ethics” and allowing him to provide expert opinion over objection); Doc. 358-1 at p.20 (listing recent cases in which Mr. Harrison testified as an expert on the subject of judicial and legal ethics). In addition to the foregoing, Mr. Harrison has served in many important roles related to professional and judicial ethics for both the American Bar Association (Member and Chairman of the Standing Committee on Professional Discipline, 1975–1984; Editorial Board of the ABA/BNA Lawyer’s Manual on Professional Conduct, 1984–1987; Chairman of the ABA Committee on Professionalism, 1987–1989; Standing Committee of Lawyers Professional Liability, 1992–1994; Advisory Counsel for the ABA Commission on Evaluation of the Rules of Professional Conduct, 1997–1999; and Standing Committee on Ethics and Professional Responsibility, 1999–2002) and the State Bar of Arizona (Supreme Court Advisory Committee on the Rules of Judicial Conduct, 2000; Supreme Court Taskforce on Rules Relating to Lawyer Discipline, 2002–2003; State Bar Committee on Professionalism, 1988–2011; Supreme Court Special Committee on Lawyer Discipline and Professional Conduct, 1983–1984; State Bar Committee on Model Rules of Professional Conduct, 1981–1983; and State Bar Ethics Committee, 1968–1974). Doc. 358-1 at p.17. Mr. Harrison also served as President of the State Bar of Arizona, Arizona Bar Foundation, National Conference of Bar Presidents, Western States Bar Conference, and Maricopa Bar Association; served as a State Delegate and Assembly Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 9 of 30 4 Delegate for the ABA; is a Life Fellow of the American Bar Foundation; and served on the ALI- ABA Professional Responsibility Advisory Panel and the Board of the American Judicature Society. Id. at pp.17–18. Moreover, Mr. Harrison is the recipient of numerous awards recognizing his dedication to professional and judicial ethics, as well as his overall commitment to the betterment of the legal profession, including: the Burnham “Hod” Greeley Award from the ABA Judicial Division for Mr. Harrison’s “significant [and] positive impact on public understanding of the role of the judiciary”; the Charles W. Kettlewell Legal Ethics Advisory Award from the Association of Professional Responsibility Lawyers; the NCBP Fellows Award from the National Conference of Bar Presidents, recognizing his accomplishments as bar president and commitment to the bar; the Judge Learned Hand Award for serving as an outstanding leader and exemplifying high principles in the legal profession; the Walter E. Craig lifetime achievement award from the State Bar of Arizona for adhering to the “highest principles and traditions of the legal profession”; the ABA Mike Franck Award for Professional Responsibility for Mr. Harrison’s dedication to the constant improvement of lawyer regulation and major contributions in the field of professional responsibility; and the State Bar of Arizona Award of Special Merit for his “significant contributions to the furtherance of public understanding of the legal system, the administration of justice and confidence in the legal profession.” Doc. 358-1 at pp.15–16. In sum, Mr. Harrison is recognized nation-wide as a preeminent, if not the most preeminent, expert in judicial and legal ethics. Mr. Harrison provides invaluable expert insight into how the standard of recusal applies to Judge Forrest once she announced she was leaving the bench and considering, as her only choice, a return to the Cravath, Swaine & Moore (“Cravath”) law firm, whose Chairman is responsible for monitoring and removing the fiduciaries whose Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 10 of 30 5 conduct and removal are at the heart of this case. II. Summary of Mr. Harrison’s Opinions. Mr. Harrison’s Declaration presents three distinct sections to offer an opinion on the mixed question of fact and law regarding whether Judge Forrest should have recused herself: (1) a summary of the background facts pertinent to the need for recusal; (2) the key ethical principles underlying Mr. Harrison’s opinion; and (3) Mr. Harrison’s opinion as to whether, ethically, recusal was warranted under the current circumstances. Mr. Harrison found several background facts relevant to his opinions, beginning his summary by describing the exceptionally close ties of Evan Chesler to New York University (“NYU”), Mr. Chesler’s roles on NYU’s Board of Trustees, the NYU Board’s Executive and Finance Committees, and his position as Chairman of Cravath. Doc. 358-1 at § II.1.b–h.3 Mr. Harrison also described Mr. Chesler’s role as the Chairman and face of the “$1 billion NYU ‘Momentum Campaign,’” and his public statements expressing that he owed his career to NYU. Id. at § II.1.b, e. Mr. Harrison then summarized how publicly available information evidences an extremely close professional relationship between Mr. Chesler and Judge Forrest, that Judge Forrest described being paired up with Mr. Chesler in a mentor-mentee work relationship during her early years at Cravath, that Mr. Chesler and Judge Forrest served as co-counsel on numerous cases at Cravath, and that Mr. Chesler attended and was introduced at Judge Forrest’s 2011 confirmation hearing before Senate Judiciary Committee. Id. at § II.1.i. The Declaration then describes how Mr. Chesler’s position and responsibilities on NYU’s 3 NYU improperly characterizes the documents and information relied on by Mr. Harrison, feigning incredulity that Plaintiffs provided Mr. Harrison with some of the materials he used when forming his opinions. There have been over 1,300 documents filed in this case, inclusive of exhibits, over 600 exhibits offered into evidence at trial, and exponentially more documents produced through discovery. See generally, Docket Sheet; Doc. 312. It was in no way improper for Plaintiffs to help winnow through these materials and assist Mr. Harrison in locating potentially pertinent information. NYU cites no authority to the contrary. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 11 of 30 6 Board of Trustees and corresponding committee positions tie him inexorably to the matters under consideration in this case. Mr. Chesler is not just a board member; he is a member of the Executive Committee, which exercises all of the Board’s power and authority, and passed the resolution creating the Retirement Plan Committee—whose actions were at the heart of the case —as the named fiduciary to administer the retirement plans at issue (the “Plans”). Id. at § II.1.k. The Board of Trustees has direct monitoring and oversight responsibility over the Retirement Plan Committee, which reported to the Board at least annually. Id. at § II.1.l. Beyond the Board of Trustees’ responsibility for monitoring the fiduciaries, the Board is also responsible for removing or replacing members of the Retirement Plan Committee; approving amendments to the Plan with more than modest additional costs; and reviewing and accepting the Investment Policy Statement (“IPS”). Id. at §§ II.1.l–o. Each of these responsibilities concern actions at issue in the case. First, the Complaint alleged that members of the Retirement Plan Committee should be removed because they breached their fiduciary duties. Doc. 39 at 115. Removal of two Retirement Plan Committee members for breach of fiduciary duty is requested by Plaintiffs in a pending motion. See generally Docs. 350, 351. The responsibility for this requested relief lies with the Board of Trustees. Doc. 358-1 at §§ II.1.l, t; Doc. 359-13 at 2; Doc. 121-16 at 1. Second, approvals of amendments to the governing Plan documents were done on multiple occasions during the period at issue in the case. See, e.g., Doc. 34-1 (faculty plan document amended January 2014); Doc. 253-69 (medical plan document amended Dec. 2010). Further, a central hard fought issue throughout trial was whether the Plan documents governed TIAA annuity contracts and allowed the assets of TIAA annuities to be “mapped” into other funds. See Doc. 305 ¶¶ 1–4 (supplemental findings of fact and conclusions of law regarding mapping of annuities as Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 12 of 30 7 requested by Judge Forrest). Third, major issues in the trial involved whether or not the proposed IPS was formally adopted—a Board of Trustees function—and, regardless of its adoption, whether it was followed by the Retirement Plan Committee fiduciaries who were monitored by the Board of Trustees. Docs. 359-14, 359-15. Thus, several responsibilities of the Board of Trustees and Mr. Chesler were directly involved in the trial of this case: monitoring of the fiduciaries, removing and replacing them, approving Plan amendments, and reviewing and accepting the IPS. Mr. Harrison concludes the background section of his Declaration by describing the timing and circumstances surrounding the Court’s order in this case, namely, when the case went under submission (May 16, 2018), when multiple news outlets started reporting on Judge Forrest’s upcoming retirement (July 18, 2018), when Judge Forrest issued judgment in this case (July 31, 2018), and when Cravath issued a press release in which Judge Forrest stated that she was returning “home” to Cravath, “the only firm … she considered joining” (September 12, 2018). Id. at §§ II.1.r–u. Mr. Harrison then describes the key principles that guide his analysis. Mr. Harrison began by reference to 28 U.S.C. § 455(a) and Rule 2.11 of the Model Code of Judicial Conduct, which provide a judge must recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned.” Doc. 358-1 at § III.1–2. That standard asks “not whether the judge subjectively believed that his or her impartiality could be questioned, but whether a reasonable person, aware of all pertinent facts, would have objectively believed the judge was impartial.” Doc. 358-1 at § III.3. Mr. Harrison’s opinion also was guided by numerous judicial ethics opinions, interpretive case law, and his own experience. Id. at §§ III.4–9. Based on his experience, as applied to the facts and law, Mr. Harrison opined on whether Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 13 of 30 8 Judge Forrest’s impartiality could reasonably be questioned. Id. at pp.13–14. Based on the timing of Judge Forrest’s retirement, her move to Cravath, her extremely close relationship with Cravath’s Chairman, and the role Cravath’s Chairman played in the matters directly at issue in this litigation, Mr. Harrison answered this question in the positive, concluding that Judge Forrest’s impartiality could reasonably be questioned. Id. ARGUMENT NYU lodges two challenges to Mr. Harrison’s Declaration, claiming: (1) the evidence relied upon by Mr. Harrison is unreliable and/or hearsay, and (2) it contains improper legal opinion. Both arguments fail. I. Mr. Harrison’s Opinions Are Reliable. A. Mr. Harrison’s Factual Statements Are Correct, Admissible, and Appropriate. NYU continuously misconstrues the evidence and Mr. Harrison’s summary thereof in an attempt to manufacture inaccuracies that do not exist, going so far as to challenge Mr. Harrison’s reliance on orders entered in this very case. Mr. Harrison’s factual statements are well-sourced and appropriately supported. Thus, NYU’s arguments should be summarily disregarded. 1. Admissibility Standard “According to Rule 703, the facts that form the basis for an expert’s opinions or inferences need not be admissible in evidence ‘if of a type reasonably relied upon by experts in the particular field.’” United States v. Locascio, 6 F.3d 924, 938 (2d Cir. 1993) (quoting Fed. R. Evid. 703) (emphasis omitted); Astra Aktiebolag v. Andrx Pharms., Inc., 222 F. Supp. 2d 423, 491 (S.D.N.Y. 2002). The Second Circuit recognizes “that ‘it is rare indeed that an expert can give an opinion without relying to some extent upon information furnished him by others.’” Howard v. Walker, 406 F.3d 114, 127 (2d Cir. 2005) (quoting Reardon v. Manson, 806 F.2d 39, Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 14 of 30 9 42 (2d Cir. 1986)). Thus, an expert who qualifies under Rule 702 “is assumed ‘to have the skill to properly evaluate the hearsay, giving it probative force appropriate to the circumstances.’” Locascio, 6 F.3d at 938 (quoting In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223, 1245 (E.D.N.Y. 1985)). Cross-examination, not exclusion, is the proper method to attack the reliability of facts used by an expert to form his conclusions. Howard, 406 F.3d at 127. 2. The Evidence Underlying Mr. Harrison’s Opinion Is Appropriate NYU’s half-baked attacks on the evidence underlying Mr. Harrison’s opinions should be summarily disregarded. See Brock v. City of N.Y., No. 15-1832, 2018 U.S. Dist. LEXIS 124857, *28 (S.D.N.Y. July 25, 2018) (rejecting argument for “fail[ure] to articulate any reason whatsoever to explain why the [ ] Report is inadmissible hearsay when experts are permitted to rely on hearsay in formulating their opinions”); Olin Corp. v. Lamorak Ins. Co., No. 84-1968, 2018 U.S. Dist. LEXIS 119212, *31 (S.D.N.Y. July 15, 2018) (holding same). Nevertheless, Plaintiffs will address NYU’s arguments with respect to each paragraph of Mr. Harrison’s Background Facts and show NYU’s attacks to be without merit. a.4 Judge Forrest’s work history can easily be supported should NYU continue to dispute these facts. The information is widely available through Cravath business records and public records of the Court.5 b–g. These paragraphs describe Mr. Chesler’s roles at NYU and Cravath. The facts and underlying support are not hearsay or are subject to hearsay exception, in that they are supported by Cravath and NYU business records. Fed. R. Evid. 803(6). Further, experts on judicial ethics regularly rely on information published by reputable news 4 These letters refer to the sections of Mr. Harrison’s Declaration. For example, “a.” refers to Doc. 358-1 § I.1.a, “b–g.” refers to Doc. 358-1 §§ I.1.b–g, and so on. 5 See, e.g., https://www.cravath.com/kforrest/. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 15 of 30 10 organizations to determine whether a reasonable person, aware of all pertinent facts, would have objectively believed the judge was impartial. Fed. R. Evid. 703; Cf. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 168, 177 & n.7 (D.D.C. 2005). h. This paragraph provides a statement of facts regarding Cravath’s ties to NYU and is supported by NYU business records. Mr. Harrison’s failure to recite every fact NYU believes is beneficial to its defense is not a basis for exclusion of an expert witness. In re Fosamax Prods. Liab. Litig., 647 F. Supp. 2d 265, 282 (S.D.N.Y. 2009). i. The materials cited in this paragraph evidence the extremely close professional and working relationship between Judge Forrest and Mr. Chesler. Court orders and Senate Hearing Reports that list the attorneys entered as counsel and the individuals present at a Senate Hearing are not inadmissible hearsay. Fed. R. Evid. 803(8)(A)(ii). Further, experts on judicial ethics regularly rely on these materials, reputable periodicals, as well as published public statements made by the judge in question. Fed. R. Evid. 703. j. Inexplicably, despite the extensive record, NYU challenges the identity of the Plaintiffs and their participation in the Plans. This is well established in this case and completely without question. The governing documents of the Plans were produced by NYU and support Mr. Harrison’s factual statement. E.g., Doc. 34-1 at 26 (§7.2). Indeed, despite NYU’s current challenge, NYU previously stipulated that all of the documents it produced were authentic and were business records. Doc. 272-1. k. The cited materials support the fact that the Board of Trustees (of which Mr. Chesler was a member), acting on behalf of NYU, formed the Retirement Plan Committee. E.g., Doc. 258-88 at 2–3. The remainder of this paragraph, while not challenged, is supported by the Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 16 of 30 11 cited materials. See Doc. 134-25. l. The cited evidence without question supports the fact that NYU’s Board of Trustees was responsible for monitoring the Committee’s performance. E.g., Doc. 258-88 at 4–5, 8–11 (requiring Committee to report to the Board; stating Board is to review and accept any Investment Policy Statement; and listing matters on which the Committee reports to the Board). m. This paragraph is only challenged on issues of relevance. The requirement of Board approval for large-scale changes to the Plans provides further evidence of the Board’s involvement in the Plans and connection to this lawsuit. n. The evidence cited supports that the Finance Committee of the Board of Trustees (of which Mr. Chesler was a member) was responsible for reviewing and accepting any IPS adopted by the Retirement Plan Committee. See Doc. 121-16 (evaluation, selection, and monitoring of plan investments shall be “in accordance with such investment policy (or policies) as the Committee may adopt and as may be reviewed and accepted by the Finance Committee of the Board”); Doc. 258-88 at 8 (“DC Plan Investment Policy” “as reviewed and accepted by the NYU Board Investment Committee”). NYU’s argument as to how it believes the 2012 Committee Charter (Doc. 121-16) should be interpreted merely presents a question of fact for the Court and is irrelevant to the admissibility of Mr. Harrison’s expert opinion. United States v. Morgan, 53 F. Supp. 3d 732, 741–42 (S.D.N.Y. 2014). o. See ¶ l, supra. p. Incomprehensibly, NYU contests the length of the trial and the nature of Plaintiffs’ claims. These are documented by the Court’s records. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 17 of 30 12 q. It is proper for an expert to consider the testimony and reports of other experts when formulating an opinion. Reynolds v. Am. Airlines, Inc., No. 14-2429, 2017 U.S. Dist. LEXIS 192822, *8 (E.D.N.Y. Nov. 21, 2017). The factual matters addressed by Dr. Buetow regarding the Board’s supervisory responsibility for the challenged investment options are supported by the record. See ¶ n, supra; Doc. 258-88 at 8–9 (the Retirement Plan Committee reports to the Board of Trustees’ Investment Committee on matters of investment policy, investment vendor selection/monitoring, and investment options). r. This is the only factual paragraph (out of 24) not challenged by NYU. s. See ¶ i, supra, regarding statements in reputable periodicals. t. Mr. Harrison’s recitation of the date the Court issued its post-trial findings of fact and conclusions of law, reference to the contents of the Court’s Order, and description of Plaintiffs’ filings do not constitute inadmissible hearsay. Further, these documents are regularly relied on by experts on judicial ethics in assessing matters of recusal. Fed. R. Evid. 703. The record unequivocally demonstrates it is the Board’s responsibility to provide oversight and that it has the authority to remove Committee members. See ¶ l, supra; Doc. 359-13 at 2 (“The Plan Sponsors, acting by their respective Board of Trustees (or duly authorized committees thereof), may remove and replace any such member of the Committee at any time”). u. See ¶¶ b–g, supra. v. An expert in the area of judicial ethics regularly relies on statements of counsel regarding information they received (or did not receive) regarding a judge’s business and financial interests. Fed. R. Evid. 703. w. See ¶ v, supra, regarding statements of counsel. The extraordinarily close relationship Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 18 of 30 13 between Judge Forrest and Mr. Chesler is supported by the record. See Doc. 358-1 at § I.1.i. Further, there was a short window of time between Judge Forrest’s entry of judgment in this case and the press release announcing her “easy decision” to return “home” to Cravath: “the only firm … she considered joining.” Id. at §§ I.1.t–u. Given this, Mr. Harrison’s statement—that when Judge Forrest decided to leave the bench while the case was under advisement she also was considering her return to Cravath—is both appropriate and in accordance with what a reasonable person would objectively believe.6 Any reasonable person would conclude that, under these circumstances, a return to the Cravath firm was in play. “Unless the information or assumptions that [Mr. Harrison] relied on were ‘so unrealistic and contradictory as to suggest bad faith,’ inaccuracies in the underlying assumptions or facts do not generally render an expert’s testimony inadmissible.” Washington v. Kellwood Co., 105 F. Supp. 3d 293, 306 (S.D.N.Y. 2015) (cleaned up) (quoting Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir. 2009)). See also, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F. Supp. 2d 448, 467 (S.D.N.Y. 2010) (expert may opine “on what would have been customary for the plaintiffs to expect or assume”) (quotation omitted).7 In sum, NYU’s sham hearsay claims fall flat. Contrary to NYU’s scattershot arguments, 6 This statement is stated here and on pages 13–14 of Mr. Harrison’s Declaration. 7 NYU’s cited authority is distinguishable. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008), involved an expert making conclusory statements “neither accompanied by any evidentiary citation nor followed by any elaboration.” SEC v. Tourre, 950 F. Supp. 2d 666 (S.D.N.Y. 2013), focused on challenges to an expert’s qualifications, something not disputed here. And In re M/V MSC Flaminia, No. 12-8892, 2017 U.S. Dist. LEXIS 119146 (S.D.N.Y. July 28, 2017), which addresses assumptions in science-based expert testimony, holds that “[a]s long as the offered testimony has a reasonable basis in the underlying data and applies reliable methods, federal courts ‘allow experts to offer testimony that is less than entirely certain, trusting in opposing counsel’s ability to highlight any weaknesses in the proffered testimony ….’” Id. at 202–03 (quoting Shepler v. Metro-N. Commuter R.R., No. 13-7192, 2015 U.S. Dist. LEXIS 130572, *10 (S.D.N.Y. Sept. 25, 2015)). Thus, In re M/V supports the admissibility of Mr. Harrison’s opinions. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 19 of 30 14 Mr. Harrison’s Declaration is supported by facts that are either admissible or appropriately relied upon. Astra Aktiebolag, 222 F. Supp. 2d at 491. NYU’s cited authority on the subject is inapplicable. Unlike the circumstances described in Recusal and Disqualification of Judges, Mr. Harrison does not rely on “a hearsay statement from an undisclosed informant of unknown reliability,” “vague and unsupported allegations regarding unspecified hearsay statements,” or information supplied “by unnamed individuals.” Doc. 375-1 at 4. Nor does Mr. Harrison peddle in “mere rumor, gossip, or general conclusory opinions.” Hodgson v. Liquor Salesmen’s Union, 444 F.2d 1344, 1349 (2d Cir. 1971) (unsupported statements by attorney that “he could get favorable treatment from” the judge was insufficient to support recusal).8 Instead, Mr. Harrison relies on explicit factual information from reliable sources. NYU’s hollow challenges to these facts are unsupported and without merit. Thus, the evidence Mr. Harrison relied upon certainly has “some indicia of reliability,” and properly forms the basis of both Mr. Harrison’s Declaration and Plaintiffs’ Motion to Vacate. See Doc. 375-1 at 5.9 B. The Board and Mr. Chesler Were Deeply Involved With the Plans and Responsible for Monitoring the Fiduciary Conduct at Issue in this Case. NYU attempts to use this Motion to Strike as a means to launch a collateral attack on Plaintiffs’ Motion to Vacate, continuously arguing about the role of the Trustees. NYU’s position is incorrect. Moreover, such attacks do not undermine the admissibility of Mr. Harrison’s Declaration, and go only to weight. SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., 8 To the extent NYU is insinuating that news reports amount to mere gossip, it must be recognized that any news reports that predated Judge Forrest’s formal announcement of her retirement ultimately proved correct. See Doc. 358-1 at § II.1.s. 9 NYU’s remaining authority is similarly inapplicable. In Willner v. University of Kansas, 848 F.2d 1023, 1026–27 (10th Cir. 1988), a pro se plaintiff sought recusal because she did not like the judge’s demeanor towards another plaintiff. Person v. General Motors Corp., 730 F. Supp. 516, 519 (W.D.N.Y. 1990), held that baseless commentary on a judge’s reason for taking senior status and obscure references to unidentified “physical evidence” did not justify recusal. And Huff v. Standard Life Insurance Co., 643 F. Supp. 705, 706, 709 (S.D. Fla. 1986), held that the “refusal of a young lady friend of the plaintiff-lawyer’s to date the judge” and “a statement passed along [ ] by an unnamed staff member from an unnamed source in the ‘Clerk’s Office’” did not provide a basis for recusal. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 20 of 30 15 LLC, 467 F.3d 107, 134 (2d Cir. 2006). The Court should reject NYU’s repeated and misleading attempts to minimize the role of the Board of Trustees (and Mr. Chesler) in the supervision and monitoring of the Committee and the Plan. Like a corporate board, the Board of Trustees is NYU’s governing body. Doc. 358 at 9. NYU’s Charter makes clear that the Board acts as, and on behalf of, NYU. Doc. 359-8 at ¶2. They are the principal. The Board’s oversight and decision-making were major issues at trial and played a significant role in matters central to this case. Id. at 9–11, 15–19; Doc. 358-1 at § I.1.k– o. NYU’s continued focus on the number of times the Board of Trustees was mentioned in the trial transcript misses the mark, ignoring these facts as well as the extensive trial testimony submitted by declaration and deposition designation regarding the Board’s role in the breach of fiduciary duty. Doc. 358 at 9–14. Moreover, the number of trial references does not define the Board of Trustees’ responsibilities. Rather, the Plan documents and related materials define their responsibilities. And, as explained above, the Board’s oversight responsibility over the actions of the Plans’ fiduciaries makes the Board’s conduct critical in this case. Regardless, Mr. Harrison’s opinion is not about the parties’ conduct at trial or their arguments. Instead, it addresses the question of recusal: whether Judge Forrest’s impartiality might reasonably be questioned under the facts and circumstances at issue. Here, Judge Forrest’s long-time mentor at Cravath, who she introduced to the Senate Judiciary Committee, (Doc. 358 at 12–13) is not only a member of NYU’s Board of Trustees, but also is a member of the Board’s Executive Committee (which possesses and exercises all of the power and authority of the Board, including its control over all of NYU’s assets, and “is a forum where sensitive University matters can be discussed in a smaller setting”),10 Finance Committee (which “oversees the 10 https://www.nyu.edu/about/leadership-university-administration/board-of-trustees/committees.html#executive Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 21 of 30 16 investment and management of University retirement plans”),11 and Compensation Committee (which “reviews and approves any significant changes to the University’s benefits programs”).12 Judge Forrest decided to leave the bench while the case was under submission and, 43 days after entering judgment, returned to work at Cravath, a place she calls “home” and the only place she considered for post-judicial employment. Doc. 358 at 20–21. Cravath’s Chairman, Mr. Chesler, would certainly be viewed by any reasonable person as one who must approve of Judge Forrest’s employment. Mr. Chesler also certainly would be viewed by any reasonable person as one who would oppose and be negatively affected by an adverse ruling in this case. It cannot be said that these circumstances do not cause a reasonable person to question Judge Forrest’s impartiality. II. Mr. Harrison’s Declaration Contains Appropriate Opinion on Matters Related to Judicial Conduct. A. Courts Regularly Allow Expert Testimony on Questions of Recusal. While there is no controlling authority as to the admissibility of expert opinion on matters of judicial conduct and recusal, there exists significant authority supporting the use of such opinion.13 One very recent opinion, Hale v. State Farm Mutual Automobile Insurance Co., No. 11 Doc. 359-8 ¶ 9; Doc. 359-9 ¶ 41; https://www.nyu.edu/about/leadership-university-administration/board-of- trustees/committees.html#finance 12 https://www.nyu.edu/about/leadership-university-administration/board-of- trustees/committees.html#compensation 13 The Second Circuit’s holding in Bernstein v. Bernstein Litowitz Berger & Grossmann, LLP, 814 F.3d 132, 144 (2d Cir. 2016), is distinguishable and does not preclude admission of Mr. Harrison’s Declaration. Bernstein referred to matters of ethics governing the legal professional, an area with a much more significant and established body of law than that governing judicial conduct. Mr. Harrison provides unparalleled insight as applied to the unique factual circumstances currently under consideration, something that cannot be achieved through reference to generalized treatises and case law interpreting other situations. Bernstein itself recognizes that expert interpretations of ethical rules may be useful and suggests that the parties obtain amicus briefs instead. Id. at 144 n.6. Unfortunately, this is not an option at the District Court level. Moreover, in the Second Circuit case relied on by Bernstein, the court allowed expert testimony regarding legal ethics. Amnesty Int'l USA v. Clapper, 638 F.3d 118, 128 (2d Cir. 2011) (allowing and relying on expert testimony regarding legal ethics on class certification), rev’d on other grounds by, 568 U.S. 398. The Second Circuit also relied on expert testimony on judicial ethics in In re Grievance Committee of U.S. Dist. Court. 847 F.2d 57, 62 (2d Cir 1988) (expressing gratitude that it “ha[d] the benefit of the ethics professor’s expert opinion on this subject,” and relying upon such opinion when examining a district court’s suspension of an attorney on ethical grounds). Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 22 of 30 17 12-660, 2018 U.S. Dist. LEXIS 141812 (S.D. Ill. Aug. 21, 2018), examined the admissibility of Mr. Harrison’s testimony under substantively similar circumstances. In Hale, Mr. Harrison opined on the affirmative duties and obligations of judges, including the duty to disqualify oneself in a proceeding in which the judge’s impartiality may be questioned under the state law equivalent of 28 U.S.C. § 455. Hale, No. 12-660, Doc. 746 at 4 (S.D. Ill. Mar. 13, 2018). Mr. Harrison’s method of analysis was substantively similar to that provided here. Compare Hale, 2018 U.S. Dist. LEXIS 141812, *11, with Doc. 358-1 at 2–14. Because Mr. Harrison’s opinions went to the issue of judicial ethics, not the ultimate questions in the case, the court “d[id] not perceive anything in Harrison’s expert report as an attempt to offer legal conclusions” and allowed Mr. Harrison’s expert testimony. Id. at *10–11.14 See also, Hurles v. Ryan, 188 F. Supp. 3d 907, 915 (D. Ariz. 2016) (considering expert testimony from Mr. Harrison at evidentiary hearing regarding whether a judge violated the code of judicial conduct by “continuing to preside over the case[] such that her impartiality might reasonably have been questioned”). These cases are no outliers. Instead, Courts regularly rely on expert testimony in matters of judicial conduct. See, e.g., Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257, 1265 (11th Cir. 2009) (relying on expert opinion in matters of judicial disqualification); In re Evergreen Sec. Ltd., 384 B.R. 882, 897 (Bankr. M.D. Fla. 2008) (expert who previously “testified in two federal judicial impeachment proceedings [ ] involving recusal[] was qualified to testify as an expert regarding recusal matters”); First Nat’l Bank v. Lustig, No. 87-5488, 1993 U.S. Dist. LEXIS 14 NYU’s attempt to argue that Hale is distinguishable because it involved RICO runs contrary to the plain language of the opinion. As Hale repeatedly states “[i]t is clear that Harrison is not serving as an expert to determine whether defendants violated RICO. His testimony relates to judicial ethics issues.” Hale, 2018 U.S. Dist. LEXIS 141812, *10 (emphasis added). See also id. at *11 (“As stated previously, Harrison’s opinions do not go to the ultimate issue in this case of whether or not defendants committed a RICO violation.”). Further, NYU’s claim that Hale only “permitted limited expert opinion from Mr. Harrison” (Doc. 374 at 9 n.2) is demonstratively false. In truth, “the Court denie[d] defendants’ motion to exclude the reports and testimony of Mark Harrison” in full. Hale, 2018 U.S. Dist. LEXIS 141812, *13 (emphasis omitted). Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 23 of 30 18 13303, *2–3 (E.D. La. Sep. 21, 1993) (allowing expert to testify regarding “ethical standards governing judicial recusal and describe how those rules should have operated in [the] previous [ ] proceeding”). In an attempt to avoid this authority, NYU relies principally on two distinguishable and inapplicable cases. The first such case, In re Initial Public Offering Security Litigation, 174 F. Supp. 2d 61, 66 (S.D.N.Y. 2001), held that an expert’s opinion on a recusal motion was inadmissible because the facts were “undisputed.” Thus, the decision was “solely a question of law.” Id.15 The second, United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987), found an expert’s opinion inadmissible because he relied on “rank hearsay of the second or third degree,” wholly divorced from the record. Thus, both In re Initial Public Offering and Eyerman came down to issues regarding the facts at issue, namely: (1) whether there were facts in dispute, and (2) whether the facts underlying the expert’s opinion were patently unreliable. Here, NYU disputes or otherwise challenges (often in fanciful or misleading fashion) essentially every fact underlying Mr. Harrison’s opinion. See Doc. 374 at 5–14. As set forth above in response to NYU’s challenges, the relevant facts outlined by Mr. Harrison are supported by the admitted and authenticated documentary evidence in this case (see Doc. 272-1), orders of the court, business records, articles in reputable periodicals, and other similarly reliable authority. See supra at 9–13. Thus, Eyerman has no applicability, and In re Public Offering supports admission of Mr. Harrison’s testimony. In re Public Offering, 174 F. Supp. 2d at 66 (holding expert opinion on judicial conduct admissible “where a fact is in dispute”).16 As such, 15 Notably, in a subsequent opinion, this same court relied extensively on the publications of an expert in judicial ethics, finding the expert’s views to be particularly significant because he—like Mr. Harrison—“was a principal drafter” on proposed legislation regarding judicial disqualification. In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 70, 83 n.23 (S.D.N.Y. 2001). 16 NYU’s other authority fares no better. For example, In re McCarthy, 368 F.3d 1266 (10th Cir. 2004), fails to address experts at all. Salt Lake Tribune Publ'g Co., LLC v. AT&T Corp., 353 F. Supp. 2d 1160, 1167 (D. Utah 2005), made no findings about expert opinion on recusal matters, but instead made reference in dicta to findings of Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 24 of 30 19 there is no basis to exclude Mr. Harrison’s testimony. B. Mr. Harrison’s Declaration Opines on a Mixed Question of Law and Fact and Does Not Contain Improper Legal Opinion. As set forth above, Mr. Harrison has unquestionable insight and experience into matters related to judicial conduct and recusal. Thus, he is well-positioned to assist the Court in determining whether a reasonable person, aware of all pertinent facts, would have objectively believed Judge Forrest was impartial. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860–61 (1988) (setting forth recusal standard). This recusal determination “is not a pure question of law,” but instead presents a mixed question of fact and law. Petrov v. Gonzales, 464 F.3d 800, 804 (7th Cir. 2006). To that end, the law in this Circuit is clear: “Experts may testify on … mixed questions of fact and law” regardless of whether “‘it embraces an ultimate issue to be decided by the trier of fact.’” Fiataruolo v. United States, 8 F.3d 930, 941 (2d Cir. 1993) (quoting Fed. R. Evid. 704). Thus, expert testimony on standards of conduct and professional principles is proper. Id. at 942; In re Blech Sec. Litig., No. 94-7696, 2003 U.S. Dist. LEXIS 4650, *53–54 (S.D.N.Y. Mar. 26, 2003) (Sweet. J.) (allowing expert to “testify on customs and standards of an industry, and to opine as to how a party’s conduct measured up against such standards”). Accord SEC v. U.S. Envtl., Inc., No. 94-6608, 2002 U.S. Dist. LEXIS 19701, *10 (S.D.N.Y. Oct. 16, 2002) (admitting expert’s testimony that “certain trading patterns would raise ‘red flags’” based on expert’s knowledge of typical activities and the types of patterns that would be recognized as irregular, as supported by the expert’s experience in the securities industry”). Even where expert testimony “lies near the another court on expert testimony addressing only “the meaning of the recusal statutes.” Jefferson City v. Acker, 92 F.3d 1561 (11th Cir. 1996), was vacated. And Melendres v. Arpaio, No. 07-2513, 2015 U.S. Dist. LEXIS 179130 (D. Arix. July 10, 2015), dealt with an improper attempt by the now-pardoned Sheriff Joe Arpaio to use recusal for strategic purposes to avoid charges of civil contempt. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 25 of 30 20 border, close to a prohibited invasion” into the province of the court, it is nonetheless proper if the expert “provid[es] factual explanations” and opinions that are based “on the evidence [the expert] looked at and the work that [he] did.” Fiataruolo, 8 F.3d at 942. Further, where the expert is not testifying to a jury, but instead is providing testimony in circumstances akin to “a bench trial, courts are more willing to admit expert testimony.” Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., No. 12-196, 2018 U.S. Dist. LEXIS 106970, *11, *20 (N.D.N.Y. June 27, 2018) (allowing expert testimony over legal opinion objection). With a judge as fact-finder, “there is no danger that a jury would give too much credence to the expert’s opinion or that the expert will usurp the Court’s role in determining the law.” MPM Silicones, LLC v. Union Carbide Corp., No. 11-1542, 2016 U.S. Dist. LEXIS 98532, *6–8 & n. 4 (N.D.N.Y. July 7, 2016) (allowing expert opinion and directing challenges to purported legal opinions to be made on cross-examination). The nature and method of Mr. Harrison’s opinion is in accord with the standards set by Fiataruolo and, as described above, similar to those applied in Hale. Supra at 16–17. Here, as in Hale, “[a]fter going through the documents, facts and evidence, the case law and the ethical provisions, [Mr.] Harrison derived conclusions and opinions about how those facts relate to the law and the ethics regulations.” 2018 U.S. Dist. LEXIS 141812, *11. Importantly, even NYU recognizes the propriety of this process, conceding that “Mr. Harrison’s expert report in [Hale] was not ‘an attempt to offer legal conclusions.’” Doc. 374 at 9 n.2 (quoting Hale, 2018 U.S. Dist. LEXIS 141812, *10). Thus, there can be no question that Mr. Harrison’s opinion is proper. NYU has previously taken the opposite position from that which it now espouses. When Plaintiffs moved to exclude the testimony of Marcia Wagner, NYU argued for the admission of “‘expert testimony on complex legal issues,’” explaining that “‘a Court sitting as the trier of fact Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 26 of 30 21 may find expert testimony on complex legal issues … very helpful and, therefore, may consider those opinions’” because “‘there is no risk that a jury is at risk of an expert telling them what law to apply and what conclusions to draw.’” Doc. 246 at 9–10 (quoting In re Reliant Energy ERISA Litig., No. 02-2051, 2005 U.S. Dist. LEXIS 48034, *7 (S.D. Tex. Aug. 19, 2005) and Shirk v. Fifth Third Bancorp, No. 05-049, 2009 U.S. Dist. LEXIS 24490, *20 (S.D. Ohio Jan. 29, 2009)). Judge Forrest ultimately agreed with NYU’s position, allowing Ms. Wagner to testify as “to whether plan fiduciaries acted within or outside of the norm, etc.” with only minor limitation. Doc. 270 at 2. Ms. Wagner had opined on the ultimate legal issue in the case, namely, the prudence (or imprudence) of NYU’s actions. Here, however, Mr. Harrison provided expert testimony relevant to questions of judicial recusal, an issue entirely “separable from and collateral to the merits of this lawsuit.” In re Cement Antitrust Litigation, 673 F.2d 1020, 1027 (9th Cir. 1982). Expert testimony on issues that “do not determine the outcome of [a plaintiff]’s claims” are not subject to the same exclusionary rules. Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006); see also, Hale , 2018 U.S. Dist. LEXIS 141812 (finding Mr. Harrison’s report was not “an attempt to offer legal conclusions” because his testimony related to judicial ethics, not the ultimate question of whether defendants’ violated RICO); Hurles, 188 F. Supp. 3d at 915 (allowing testimony from Mr. Harrison at evidentiary hearing).17 Mr. Harrison’s opinion related to judicial recusal is proper expert testimony, in that Mr. Harrison is qualified, his “opinion is based upon reliable data and reliable methodology,” and his “testimony would be helpful to the trier of fact.” SEC v. Tourre, SEC v. Tourre, 950 F. Supp. 2d 666, 673 (S.D.N.Y. 2013). Further, as recognized by NYU, since these questions are to be 17 NYU’s reliance on Music Sales Corp. v. Morris, 73 F. Supp. 2d 364, 381 (S.D.N.Y. 1999), is inapposite because it addresses testimony on outcome determinative questions of pure law. Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 27 of 30 22 decided by the Court, “there is no risk that a jury is at risk of an expert telling them what law to apply and what conclusions to draw.” Doc. 246 at 10 (quotation omitted). Thus, it is clear that Mr. Harrison’s opinions are admissible. III. NYU’s Remaining Arguments Fail. NYU makes assorted other attacks on Mr. Harrison’s opinion, complaining of similarities between Mr. Harrison’s opinion and Plaintiffs’ brief, claiming the opinion contains an improper narrative, and, remarkably, even inferring that Mr. Harrison is committing perjury. These arguments are without basis and should be denied. NYU takes issue with purported similarities between Mr. Harrison’s declaration and Plaintiffs’ Motion to Vacate, claiming this as evidence that Mr. Harrison somehow did not base his opinion on sufficient facts or data. There is no simply support whatsoever for this conclusion. First, recusal is a specific issue involving a limited number of facts. These facts necessarily must form the basis of both Plaintiffs’ argument and Mr. Harrison’s opinion. Second, many of the challenged sections are quotes, which, when transcribed correctly, should be identical to each other. Third, NYU creates many of these similarities by piecing together various phrases. Fourth, all supposed similarities are found in Mr. Harrison’s recitation of facts, not conclusions. Therefore the issue is not relevant to NYU’s cries of “contentious advocacy.” And fifth, Plaintiffs’ memorandum and Mr. Harrison’s Declaration are of the same date. NYU has no basis to claim that Mr. Harrison copied anything. Next, Mr. Harrison does not provide an improper narrative. Instead, “the factual assertions contained in [Mr. Harrison’s Declaration] simply provide the foundation for [Mr. Harrison]’s opinion,” as is appropriate. Reach Music Publ’g, Inc. v. Warner Chappell Music, Inc., 988 F. Supp. 2d 395, 404 (S.D.N.Y. 2013). Lastly, NYU’s inferences of perjury are flat out baseless. Somehow, NYU leaps to this Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 28 of 30 23 conclusion based on the mere fact that Mr. Harrison’s declaration contained the words “to the best of my knowledge and belief.” The courts hold that a declaration “under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief … ‘substantially compl[ied] with the[ ] statutory requirements, which is all that [Section 1746] requires.’” Caidor v. Potter, No. 02-1486, 2007 U.S. Dist. LEXIS 71687, *18 (N.D.N.Y. Sep. 26, 2007) (quoting Leboeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir.1999)) (alterations in Caidor); Brock, 2018 U.S. Dist. LEXIS 124857 *28. Accord Quintero v. Rite Aid of N.Y., Inc., No. 09-6084, 2011 U.S. Dist. LEXIS 130920, *18 (S.D.N.Y. Nov. 10, 2011). As such, NYU’s bald insinuations should be disregarded by the Court. CONCLUSION For the reasons stated above, the Court should deny NYU’s motion to strike Mr. Harrison’s Declaration. December 13, 2018 Respectfully submitted, /s/ Jerome J. Schlichter SCHLICHTER BOGARD & DENTON, LLP Andrew D. Schlichter, Bar No. 4403267 Jerome J. Schlichter (pro hac vice) Heather Lea (pro hac vice) Joel Rohlf (pro hac vice) 100 South Fourth Street, Suite 1200 St. Louis, MO 63102 Phone: (314) 621-6115 Fax: (314) 621-5934 Counsel for Plaintiffs Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 29 of 30 24 CERTIFICATE OF SERVICE I hereby certify that on December 13 2018, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the attorneys of record. /s/ Jerome J. Schlichter Counsel for Plaintiffs Case 1:16-cv-06284-RWS Document 377 Filed 12/13/18 Page 30 of 30