Roger Zuckerman Tenth Interview: January 21, 2015

200 ORAL HISTORY OF ROGER E. ZUCKERMAN Tenth Interview January 21, 2015, This is the tenth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Wednesday, January 21, 2015, at 1:30 p.m. Zuckerman: Today, I think, I would like to accomplish three things. One, I want to talk a little bit about the Tone Grant case from the present perspective. Two, I want to talk about, in compressed form, a case that is just winding down involving The Fund for Animals and The Humane Society. A case that I’ve been involved in for about three years now and was involved in a trial concerning it in the last week or two. Then I would like to add some closing thoughts if they come to me, and if they don’t, we’ll adjourn and meet up again. The postscript on the Grant matter is this: on Friday of this week, I will be out of the office and I will be flying to LaGuardia and then going by car to Huntington Long Island to the Memorial Cemetery of Saint John’s Church, there to be present at the funeral service for Tone Grant. He died this past Friday, somewhat unexpectedly, somewhat I suppose expectedly, at the Federal Medical Center in Rochester Minnesota after having suffered either a heart attack or a stroke. The cause of death is not clear to me at this point, although we’re getting his medical records. Tone was, as I hope the record of this interview reflects, an extraordinary man. He was a decorated Marine – I’m sure I’ve said this. He was a fine college athlete at Yale. He was a successful lawyer and business man. He was a wonderful family member and friend, and despite our best efforts he had been convicted in what he regarded as a manifestly unfair conviction in a trial occurring about seven years ago in the Southern District of New York. Tone was convicted of securities fraud and received a very difficult ten-year sentence – a circumstance he accepted on the one hand with a great deal of frustration because of his belief in his innocence, and on the other hand a circumstance 201 that he accepted stoically and with some serenity. Aitan Goelman, my partner, and I traveled with him to Duluth, Minnesota where he surrendered himself to serve his prison sentence. We were with him, as it turns out, on the last days that he spent as a free man, having lunch at the Duluth mall before getting in our rental car and driving over to the institution where he had to present himself about 1:30 in the afternoon. He was a model resident. As a leader and a mentor, Tone was somebody who the other inmates in this minimum security facility naturally gravitated to. Tone had a very successful two- or three-year residency there. Unfortunately, his stay there was increasingly complicated by his bad hips, leading to his transfer at our request to the Federal Medical Center at Rochester, Minnesota, which is affiliated with the Mayo Clinic. Granof: So it’s top-notch. Zuckerman: And he got first-rate care. The Bureau of Prisons was probably remiss in not transferring him there a year earlier. He was in pretty bad shape, orthopedically, when he was transferred. He had two hip replacements that were marginally successful. His hips were, I think, in much worse shape than they should have been by the time he got the replacements. So, he never really got his normal gait back, and on occasion stumbled and on occasion walked with a walker. But if that were all there was to it, I would not be going to the cemetery on Friday. After he had been at the Federal Medical Center for a year or two dealing with his hips, he began to encounter heart problems and we endeavored to get him a compassionate release. Tone qualified in every respect – by age, by amount of sentence. Granof: How old was he? Zuckerman: He was 70 when he died. And I think privacy concerns compel that I leave his feelings and his sense of where he was in his life off this record, and simply reflect the fact that, at Tone’s request, we did not file the Motion for 202 Compassionate Release. His health continued to decline, and he underwent about 3 to 5 months ago a quintuple bypass that was for the most part successful, but he began to develop other problems with his heart and his circulatory system. He was very upbeat and was dealing with those problems, but he was clearly – notwithstanding the very fine care he got – in declining health. Granof: You said he was at the Federal Medical Facility for a year. Zuckerman: Well, he was there all told about 3-4 years. Granof: In the medical center, not just in Duluth? Zuckerman: He was in Duluth I’m guessing 2-3 years, Federal Medical Center 3-4 – something like that. He was a long-term resident at the Federal Medical Center. Granof: That seems unusual. Maybe it isn’t in the federal prison system. Zuckerman: I don’t know. I don’t think it’s as transient as one might think. There are almost a quarter of a million federal prisoners – 225,000 men roughly, 25,000 women – and there is an increasingly large portion of that population which is made up of aging prisoners. The stress on the system is very severe, and that led to the initiative of the Department of Justice to clear out many of the aging prisoners who had served more than half of their sentences, who had sentences for crimes that were not violent, and who had quite serious health issues. I don’t know that the program has gotten off the ground in a big way, but at least conceptually a year or so ago at the Department of Justice somebody sat down and said we can clear out 5 or 10 thousand people over time if we look at the people who are over 60 who have served more than half of their sentences and are ill. We’ll save a lot of money and they’ll simply take early parole. Tone was a candidate for that, and for a variety of reasons which I will not go into here it was not pursued. But it 203 was a very sad moment on Sunday afternoon about 2:30 p.m. when I got an e-mail from his girlfriend indicating that he had died. So that’s a sad postscript to what was a very difficult case. And I think I’ve said this earlier, it was a case in which I felt as if the trial did not quite accurately reflect who he was and what his intention was. It was a case that I think we came close to winning, but for some circumstantial or direct evidence that I talked about – the note in his hand – that was extremely difficult to deal with and that the prosecutor made much use of. I will say further that I have communicated the fact of Tone’s death to a number of people, including the prosecutors, and I got a lovely e-mail this morning from Neil Barofsky, who was one of the two prosecutors, saying how sad he was to hear the news and, putting the REFCO prosecution aside, how it was apparent that Tone had done great things with his life. I sent Neil an e-mail and I said, “Thank you very much. I’m sure that Tone would be pleased that you had spoken those words.” Granof: The case as you described it – not the particulars but in a broader sense – when you have these aging prisoners, it’s fine if they are people who have some wealth and a support system but if you just release them –I mean here’s a guy who is needing top-notch medical care and if you just put him out and he’s ill, I don’t know if you’re helping people like that. Zuckerman: Well, your impression is insightful, and you’ve hit the nail exactly – exactly on the head. If you have individuals who fit that profile, it’s very hard to see how a compassionate release is going to work. Problem A, because of the nature of the conviction they have a debt that they confront. In Tone’s case it was $2.3 billion, which was the amount of his fine because that was the socalled market loss. That renders the individual essentially incapable of accumulating any wealth in the future. Problem B, I suppose the individual could qualify for Medicare, but where there’s a complex illness and the individual has been seen by a stable set of medical personnel for a period of years at one of the finest medical facilities in the world, it’s very hard to sort of wrap your head around the fact that you’re going to the mean streets of 204 New York and must find a couple of doctors to treat you there. Even if, as you may assume occurred, Tone’s friends found him a couple of physicians who were willing to accept him as a patient, what then? And Problem C, if you’re fortunate, at 70 you’ve got a set of family circumstances that give you a structure of caregivers who are within arms’ length – arms’ reach – who will take care of you. But if you have neither kids nor a spouse who is likely to be proximate, it’s a pretty daunting future that you face alone. No caregivers of consequence, no medical care that is easily available, no income, and in the broadest sense no structure. Even if you’re living rent free in a one bedroom apartment somewhere, what do you do between the hours of 9 and 5 or 9 and 6? You don’t have a gym, a library, a mess hall, a bunch of acquaintances, and, but for the custodial aspect of the Federal Medical Center where you can’t walk out the front door, it’s like an assisted living facility with medical care that’s off the charts. It’s very easy for an individual who is in serious and declining health to say, “I’m basically better off here than I would be trying to do this on my own.” That’s very sad but speaking only hypothetically and abstractly, it’s – Granof: Very understandable. Zuckerman: In any event, the record should reflect that I’ve indicated, in a way that is now sad but was true then, that I wanted to continue practicing until I could welcome Tone back to the office, where he and I spent so many days trying to figure out how to handle this problem. Granof: You know the impression I get is you get fairly close to your clients emotionally. Zuckerman: Yes. Granof: Maybe emotionally is the wrong word. Zuckerman: I think you can’t fail to recognize the humanity in virtually all of the people 205 who come through here – we all deal with them. Fundamentally, they are people and fundamentally there are a portion of them who are good, but the system in which we exist – particularly the criminal justice system, besides the civil justice system – the criminal justice system is inexact, unrefined and gross. I don’t mean that in a pejorative way, but given the way our system deals with issues, it’s a little bit like the proverbial notion of watching how sausage is made. It’s just an unrefined process. Even on its best days – where you have the best judges, the best lawyers, and the best resources – the system is very unrefined in the judgments that it grinds out and the consequences that flow from its machinations. In this case, the criminal justice system basically took somebody who was a very decent human being with a great deal of dignity and with a great deal of life accomplishments and with a great deal of strength. Granof: He had a lot going for him. Zuckerman: It took this individual who was confronting ambiguous, gray-area circumstances, neither all black or all white, and it ground him up – just ground him up. Notwithstanding that he had very good lawyers – notwithstanding that the lawyers on the other side were very good – notwithstanding that the judge was a very bright judge, and notwithstanding that he was a very astute guy, it just ground him up, and literally ground him into dust. Anyway, the next topic after this postscript will be the last big case that I want to talk about. I can talk about it with some clarity because I’ve just finished testifying in a trial about it. And, again, I’m going to try to adhere to the limits of what is appropriate in what I can say and not say. First, an introduction. The longest cases in my career that I have handled oddly have both run 14 or 15 years, and both began at virtually the same time. My entry into these cases differed, but they are both matters that began, one in July of the year 2000, and one, the latter one, which I’ve talked about previously, 206 Enron, beginning either in September or October of 2000, when Enron went bankrupt. In the Enron matter, in which our client was Lou Pai, we became involved from early 2001 until the present. For the last many years the matters have simply involved SEC resolutions, but Enron been going on in one form or another for 15 years. The other case began in July of 2000 and has ended for the moment, although it may continue given a court decision made about a week ago. This is a case involving our client, The Fund for Animals, which is an animal advocacy organization now affiliated as a business entity with The Humane Society of the United States, and what I am going to say mirrors what I have said as a witness in a trial that just concluded and is otherwise, I think, pretty much a matter of public record as it should be. The Fund for Animals, our client, and the Humane Society joined together as a business combination early in 2005, and remain together today. As such, they are – perhaps with the American Society for the Prevention of Cruelty to Animals – the largest animal advocacy organization in the country, whether measured by contributors or budget or whatever. They are a very sophisticated, elegant, prominent, committed organization fighting for a more benign and humane way to deal with animals in a variety of different modes. One of their long-term adversaries, as you can imagine, is “The Circus,” and in particular, The Ringling and Barnum and Bailey Brothers Circus, which is owned by Kenneth Feld and his family through an entity called Feld Entertainment Inc. or “FEI” for short. FEI is the largest entertainment organization in the world, if measured by the number of people who attend live performances – live events. Indeed, Feld Entertainment puts more people in seats to attend live shows – including Disney on Ice performances as well as the Circus – than any other entertainment organization in the world. FEI is immensely powerful and immensely committed to its own protection, its self-protection. Its circus, The Ringling Brothers and Barnum and Bailey Circus, is a venerable entity, which since 1872 has featured elephants as its trademark and defining symbol. They are the only circus, in the United States at least, that utilizes a large number of 207 elephants who are trained to perform tricks of the type which many argue to be wholly unnatural to the behavior of elephants, and those same people assert that elephants should not be made to do these tricks, such as standing on pedestals, standing on one knee, standing on their back legs – doing all this kind of stuff. These same people claim that elephants cannot be made to do these tricks without being subjected to abusive behavior, without the use of pain and various chains and devices that are completely inhumane. In addition, it is urged by animal advocates that the way in which the elephants are housed is equally inhumane. They are transported in boxcars. It is alleged they are made to stand in their own waste, not given water when it’s 125 or so degrees going through Arizona on a circus train, not given protection from the cold, not being fed properly, and being routinely beaten. For years, if not decades, animal advocacy groups have taken out after the Circus in an effort to pressure the Department of Agriculture and other regulatory groups to preclude the Circus from using elephants, because of the history of abuse that these groups perceive to have occurred. In July of 2000, The Fund for Animals was one of three or four groups that filed suit against the Circus under the Endangered Species Act. Granof: July 2000? 2000 – claiming that the Circus ought to be precluded from utilizing elephants for a variety of reasons. In one of life’s great coincidences, the fine jurist before whom the case landed, was Emmet Sullivan, who was an interviewee I think in this program. And a very fine judge – a very fine judge. The alignment of lawyers is very critical to the next nine years of litigation as is an understanding of the core issue. I will begin with a discussion of the core issue and then give you the lawyers. The core issue under the Endangered Species Act is standing. The Act describes the “imperiled” endangered species. The Asian elephants that the Feld Circus uses are recognized belonging to an endangered species as 208 they are specifically named on the endangered species list. But an ordinary person cannot file suit under the Endangered Species Act and claim that those Asian elephants in the Circus are being abused. An elephant cannot file suit under the Endangered Species Act. You can only file suit as an individual under what is called the citizen suit provisions – section 5.16 – if you are injured – if you as an individual are injured. An injury is defined as the inability to enjoy or satisfy a powerful aesthetic interest that you have – something that is very compelling to you. It may be a compelling desire to fish in the Potomac River or a compelling desire to view elephants at the zoo, but it must be a strong attachment that has been befouled by the behavior of a defendant in such a way that you can no longer experience the protected or endangered species. Granof: Was that written into the statute or was that judge-made law? Zuckerman: That’s written into the statute. It’s an aesthetic interest that you have, partially judicially made and partially statutorily made. So it is very difficult, notwithstanding the broad advocacy efforts that animal advocacy groups have, very hard to find somebody who is an individual who has such an interest and who claims such an interest to have been destroyed by the behavior of the defendant. And in 2000 these advocacy groups came upon “a barn man” – someone who had been an elephant caretaker for the Circus and who had quit because he was so sickened by the abuse of elephants that he had witnessed that he could no longer stand to work there. Also, he could no longer stand to see these animals – his beloved elephants that he had handled – because seeing them reminded him of the abuse that they were undergoing. This man’s name was Tom Rider, and he became in the year 2000 a principal plaintiff in this litigation, along with The Fund for Animals. The law firms that were involved were these: The Fund for Animals and Mr. Rider and a few other advocacy groups were represented by Katherine Meyer and Eric Glitzenstein. The firm was known as Meyer Glitzenstein – there 209 were several other lawyers at the firm – but it was a small public interest firm of immense skill in the animal advocacy area. The Circus was represented by top-drawer legal talent. First, Covington & Burling was its representative, and then in about 2005 or 2006, they switched to the law firm of Fulbright & Jaworski. There was a certain David and Goliath quality to this litigation, given the disparity between the numbers of lawyers and paralegals that each side was able to utilize. Over the nine-year life of the case, the Circus was represented by no fewer than 200 separate timekeepers – 75 to 100 at Covington, and over 100 at Fulbright. The core litigation team at Fulbright numbered 15. Notwithstanding Meyer & Glitzenstein’s commitment, there was a persistent imbalance in their resources that persisted over the nine-year life of the litigation. Not only was this imbalance in their resources a significant problem, but because of the nature of the Endangered Species Act and its emphasis on standing, the nagging question of Tom Rider’s credibility was a constant thorn in the side of the plaintiffs. Was Rider really injured in his ability to enjoy the elephants? Why was he engaged in this crusade? These questions became a central target for the defendant’s lawyers. Rider basically walked around with an X on his back for nine years. One of the pieces of evidence that was developed against Rider, which was true, was that he was as impoverished a human being as you would imagine “a barn man” to be. He did not have much formal education. He did not have a job. Obviously, he was no longer working for the Circus. He had no real way to support himself during the nine-year period that the case went on. It ultimately went to trial in early 2009 before Judge Sullivan. Rider’s sole source of income emanated from funds that he received from the advocacy groups. They paid him roughly $20,000 a year, somewhat for the purpose of going around the country as a kind of a truth-squad lobbyist. Rider would appear in cities and towns where the Circus was performing. He would be interviewed in the press; he would have his picture taken; he would testify before the legislature; he would say that “I would appreciate it if you don’t go to the Circus because I was there and they are really abusing these 210 elephants.” He was a very credible person, but he was not in good health. He too has died since all this began. On occasion he would work at his sister’s house via e-mail. For a time he traveled around the country in a van, slept in a van. Rider was genuinely altruistic and very committed to this cause. Basically, the mark he wanted to leave on the world was to achieve somewhat better treatment for these Asian elephants. Despite his compassionate motivations, he did receive $190,000 over nine years for his work as an advocate. That fact was effectively exploited by the 200 or so lawyer timekeepers for the Circus who argued to the Court periodically that this man was nothing more than a paid plaintiff. He had sold out for money. He didn’t really care about elephants. If he had cared about elephants he could have gone back to see his wonderful elephants in one respect or another, which he didn’t do. And they picked away at him to great effectiveness, particularly on the compensation side, which led to two consequences, both of which worked together to the detriment of The Fund for Animals. Consequence Number 1 was that the Circus and its lawyers, when they discovered in 2007 the full extent of the payments made to Rider, filed an independent lawsuit against the plaintiffs of the Endangered Species Act case, which basically claimed that the animal rights groups had bribed the witness, Tom Rider. These “improper” actions, they claimed, violated the RICO statute – the Racketeer Influenced and Corrupt Organization Act statute – and amounted to obstruction of justice, bribery, and litigation misconduct. This separate lawsuit was also assigned to Judge Sullivan. Judge Sullivan stayed the lawsuit in 2007 until the outcome of the Endangered Species Act case. The second event, Consequence Number 2, occurred in 2009. The second event was the outcome of the Endangered Species Act case after a non-jury trial in early 2009 that was decided by Judge Sullivan. Granof: Was it non-jury? 211 Zuckerman: Yes. And in December 2009, Judge Sullivan wrote a very lengthy opinion, that he had obviously spent a lot time on, in which he excoriated – probably too mild a term – the institutional plaintiffs and Tom Rider – saying that Rider was a paid plaintiff. Judge Sullivan found him completely and 100% unbelievable – found him completely unbelievable – and intimated that he had been improperly paid, although the Judge never specifically held that the institutional plaintiffs’ behavior in paying Rider was wrong. This case is reported as ASPCA, et al. v. FEI, 677 F. Supp. 2d 55 (D.D.C. 2009). At that point, the previously stayed racketeering lawsuit was un-stayed and unfrozen. The judge’s opinion infused the stayed case, which was now going to move forward, with a renewed viability – it was like filling your gas tank with high test gas. From early 2010 onward, having won the Endangered Species Act – “ESA” – case in grand style, Feld now decided to take out after The Fund for Animals, The Humane Society, and the ASPCA to get his legal fees back and then some. The legal fees asserted by Feld’s lawyers over the nine years of the case, by their count, amounted to $25,400,000. Since the legal statute provides for trebling damages plus additional legal fees, Feld was, in the RICO case, conceivably seeking $80,000,000 or more in damages. Moreover, in Judge Sullivan’s lengthy opinion he now had in his hand a seeming validation for some of what he claimed. In 2011, after a period in which the mediation efforts handled by Meyer Glizenstein failed and the case began to move forward toward a trial, our law firm was engaged to represent The Fund for Animals. We were involved in the case from the Spring of 2011 to the Spring and early Summer of 2014 – directly involved for a period of a little over three years, and during that time we served as lead counsel for The Fund for Animals because of our litigation experience and resources. We really served not only as the lead, but also as coordinating counsel for the whole group of RICO defendants. The RICO case involved as defendants not only the institutional plaintiffs and Tom Rider, but also the lawyers, Meyer and Glitzenstein, and others who had been sued as well. In sum, there were in all 13 defendants – 6 people and 7 institutions. It was, I 212 assure you, an incredibly serious case because it seemed to have acquired a legitimacy given to it by the very adverse opinion by Judge Sullivan. The case was assigned, quite properly, as a related case to Judge Sullivan. However counterintuitive that might be, we were defending ourselves before a judge who had made findings in the underlying case that seemed potentially, at first blush, to have some collateral estoppel consequences in the RICO case. Undaunted, we constructed at least three lines of defense. In 2011, we moved to dismiss the complaint as the lawyers should do, and failed in that effort in an opinion by Judge Sullivan issued on July 9, 2012. Granof: Because it failed to state a claim? Zuckerman: We particularly urged that the RICO count failed to state a claim. The RICO claim failed because it did not show a pattern of misbehavior. RICO applies in the marketplace to repetitive anti-commercial criminal behavior. RICO does not apply to the one-time bank robber. It applies to the bank robbers who get together and say let’s start a business robbing banks. Granof: Yes, because otherwise it would catch every criminal offense. Zuckerman: Exactly. And we urged that this was a single scheme litigation case. There are actually a lot of these kinds of cases out there. We had another at the time in Delaware where litigation misbehavior is said to constitute, among other things, a violation of RICO, and the response that it is only one piece of litigation and essentially one course of misbehavior. It’s not a repetitive, multiple victim kind of approach. And Feld’s response, which was creative, was to grab ahold of the piece of the complaint that had been filed that I’m sure Feld never thought would have served this purpose. One of the things listed in its complaint was that The Fund for Animals not only bribed Rider and obstructed justice, but it also solicited money from its contributors by telling its contributors that it needed funds to prosecute the Endangered Species Act case. Thus, the Fund committed fraud on its contributors by 213 failing to tell them that The Fund was using its money to bribe Rider and by otherwise mischaracterizing its activities to its contributors. Therefore, in reality there were two schemes and two sets of victims. One set of victims included the court system and Feld who were getting hammered by this bribery, and the other set of victims consisted of the contributors who were defrauded of their contributions. Granof: Clever. Zuckerman: Trust me, I remember page 73 of the 129-page complaint as where this is in one paragraph. Very clever resuscitation of the RICO claim. The Judge bought it. We felt comfortable that it probably wouldn’t fly in the Court of Appeals, but the judge bought it. Our principal RICO claim was that defense, and that’s how we lost it. Judge Sullivan’s opinion is reported at FEI v. ASPCA, et al., Civ. Action No. 07-1352 (ESG) (Mem. Op. July 9, 2012). We then sought an interlocutory interim appeal, and lost that in early 2013, which is reported at FEI v. ASPCA, et al., Civ. Action No. 07-1352 (EGS) (Mem. Op. Jan. 8, 2013). Granof: That is, you lost the appeal or you’re not certified? Zuckerman: We’re not certified as a controlling issue of law or fact decided in the District Court and material to the resolution of the case. So they had breached our second perimeter. Third perimeter was to try to advantage ourselves in the discovery regime that was set up, and on balance we lost that because the discovery that we sought – which I won’t bore you with – we really did not get as much of it as we wanted. Feld sought discovery that involved – because of page 73 that I’ve described to you – all facets of our donor solicitation that our clients made use of in prosecuting its Endangered Species Act case. Thus, if the case continued much further the Fund would be risking the revelation of its donor lists and that was manifestly unacceptable. 214 Granof: Why would the organizations object to that? Zuckerman: I think there was a sense – if you’re involved in an advocacy organization – the identity of your donors, their right to their First Amendment association with you, their right not to be chilled and harassed, is sacrosanct. The idea that the Circus could begin to depose the donors who supported these organizations was just offensive, to say nothing else. That was in the air, and as a consequence of all this we set about to try to settle the case. The ASPCA settled, and at the end of 2012 it paid Feld $9,300,000. This is all public. The consortium of the remaining defendants passed the hat, and collected $15,750,000, a very substantial portion of which, $10,650,000, came from The Fund for Animals and the Humane Society. Again it’s a matter of public record. Much of it was covered by insurance, although I can’t say how much. The case ended in May of 2014, with these events having gone on before United States District Judge Emmett Sullivan for more than 14 years. Now I remember calling Judge Sullivan, who is a great guy, and advising him, with the other counsel on the phone – counsel for the Circus – we think we’ve settled the case. To say he was most grateful was an understatement. The remaining odds and ends of the case, again all public, dealt with a second feature, and that is the fact that The Fund for Animals had insurance against claims that it had engaged in malicious prosecution or trade defamation or other wrongs. It had a number of policies, and there were issues with regard to each of the policies. So for the last several years, in addition to fighting off the Circus, I and we have fought on behalf for the Fund for Animals to get coverage under three or four sets of insurance policies. Granof: So I guess one of the issues must have been intentional torts? Zuckerman: We succeeded in getting substantial, though not complete, coverage. One of the issues that we confronted was the following: for reasons that may have been legitimate, but that were subject to being contested, The Fund for 215 Animals did not give notice to its insurance company in 2007 that the RICO lawsuit had been filed against it. It did not give notice until the failed ESA lawsuit was over, and the stay was lifted and the RICO then began in earnest. So it gave notice 2-3 years after the complaint was filed. The insurance carrier: (a) refused to pay; and (b) refused even to discuss settlement. Over the last six months or a year there has been very intense and I think good litigation on both sides. We represented the Fund, and Goodell, DeVries, Leech & Dann, a good Baltimore firm, represented the insurance company in Circuit Court, Montgomery County. Maryland has a rule that if you give late notice it really doesn’t affect the ability of an insured to collect unless the insurance company was prejudiced and could have done something to mitigate its damage that it didn’t do because it didn’t get notice early enough. Over a four-day trial occurring about a week or two ago in Montgomery County, a jury trial before Judge Michael Mason, an excellent judge, we litigated the question of whether or not the National Insurance Company was prejudiced because it was not told of this old lawsuit in 2007 when it was brought and stayed, and was not told until 2010. We argued there was no prejudice. Although it’s an argument, however obvious it might seem, that did not occur to the insurance company until a week or two before trial, the insurance company said “Look, so much of what Judge Sullivan ruled in 2009 seemingly had a collateral estoppel consequence in defending the RICO case. Maybe it was a little, maybe it was a lot, but it seemed to have constricted in some respects the ability of our insureds to defend themselves. If you had come to us and said in 2007 look this is what the allegations are, we at least had the chance to enter the Endangered Species Act case as cocounsel with you, make some suggestions, see if we couldn’t help you avoid what you suffered, and that is a catastrophic loss which is now going to dog you and more significantly dog us in our collective ability to get through this together, and we think in that sense, that’s pretty classic prejudice.” Our firm was extraordinarily well-represented by my Baltimore partner, Bob Shaffer, and staff from our Baltimore office. Since I had been involved in the RICO 216 case, my job was to describe the RICO case, why we settled, what it’s course of conduct was, but at the same time to respond to the question of collateral estoppel. Granof: So you were a witness? Zuckerman: I was a witness and you are viewing here [pointing] – let the record reflect – about 8 or 10 black binders which reflect fourteen years of litigation which I was required to be knowledgeable about. And, trust me, to this day, because it’s less than two weeks after the insurance coverage trial, I can tell you the date on which any significant event in this case occurred. I had to go through a lot bills and the like, but the most significant thing I had to do, I think, was to describe to the Court why in my judgment there was minimal collateral estoppel risk. Also, to explain why it is that we believe that we would not be hindered in any respect by collateral estoppel; why we would try the case anew; and why therefore it made no difference to the insurance company that it did not get prompt notice. Judge Mason, who is a very smart person, asked a number of probing questions, thought about it for a day or two, and ultimately decided to disagree. The judge found on the record, at the end of the case, that the insurance company as a matter of law – because of the collateral estoppel issue – in two respects had been prejudiced, and he took the case from the jury. The two respects to his ruling were: (1) there was at least a reasonable possibility that some material collateral estoppel would occur and (2) even if it didn’t, the overarching, crushing decision that the Endangered Species Act plaintiffs had suffered, magnified or increased the settlement costs of the case to the defendants. We had to pay more. We paid more than we would have if the case were not decided as badly for us as it was decided. And in that sense, there was a consequence. The earlier case had a consequence on the latter case and that, in the judge’s mind, was enough to suggest that the insurance company should have been told about this early enough so that if it were participating in some fashion, it could 217 argue its case. Granof: Why was the case in Maryland? Did Maryland law apply? Zuckerman: The Fund for Animals had connections to Maryland, its headquarters in many respects is in Gaithersburg, Maryland – it’s got a DC facility – and its insurance broker, I think, is in Virginia. The law in DC and the law in Virginia are both very unfavorable and hold that if you give your insurance company late notice of the suit against you, you’re out of luck. Granof: Had you ever been a witness in a case before? Zuckerman: Yes – I think it’s probably the second or third time I was a witness. This was an odd experience because I was in one sense a fact witness – I was describing what happened. In another sense, within what was permissible as a witness and obviously a truth telling witness, I was to describe a position that we held and believed to be legally sound – that is, that there was no collateral estoppel consequence that was material to the second case and it was a harder – it was a heavier lift, and a harder experience I think by that fact. But I’m very complimentary of counsel for the insurance company who I think did a really good job, and I think the Court was very perceptive even though we can obviously disagree with its ruling. Granof: Just let me ask you. I’m curious about being a witness. I’ve been a witness in a deposition once or twice. And one time in particular I wound up being so grateful for the amount of preparation that our counsel made me go through. I realize that being a witness is different. But even if you’re a lawyer, you need that preparation, and I wondered if you had had that experience. Zuckerman: Yes, I remember you saying that and I couldn’t agree more. It’s interesting and appropriate, I think, to talk about this now, but I’ve been doing this for 46 years. I remember the end of my first year at Harvard and the degree to 218 which I did nothing but sleep, eat and study. Granof: Yes. Zuckerman: I remember studying for the Bar which was not in any respect the same and I had the feeling that what I was doing here 48 or 49 years after my first year at Harvard was pretty much the same thing that I had done 49 years earlier. I had to feed into my head and organize and be able to get out some aspect of a vast amount of material. Even though I might only testify for four hours, it was unclear to me, because this is a little different kind of examination, what the other lawyer was going to ask. Would they focus on the year 2000? Would they focus on 2009? Would they ask me a lot of what happened in 2007 or 2013? So you had to go through and master all this stuff intellectually and by memory, and then you had to prepare yourself for your direct examination and have your lawyer go through the direct. Then you have to be pummeled and prepare yourself for your cross, and so the last two experiences are as important to the process as the first. Granof: So you were sort of both an expert witness and a fact witness? Zuckerman: I wasn’t really technically an expert. I wasn’t qualified as an expert, but there was an orientation that my testimony had that reflected the truth. It reflected what we were thinking, and it would be perfectly proper for the Court or the opposition lawyer to say, well, how could you have thought that? Didn’t you know that collateral estoppel can apply in this circumstance or that circumstance? Granof: But, you really weren’t engaged until 2011. Zuckerman: We were engaged when it became apparent that the mediation would not settle the case, that the case was about to be argued on a motion to dismiss, and that probably the individual parties at that point needed their own counsel. So we got in at 2011 and began to shape our client’s position. 219 Granof: But you were testifying about events that occurred well before you got into it and wouldn’t have had personal knowledge. Zuckerman: Correct. Granof: How did you get away with that? Why did they allow that? Zuckerman: I think it was a combination of the following in the exercise of the Court’s discretion. There’s a court file with documents, and I was describing the court file. So you can in your discretion say tell us what’s in the file. Beyond that, much of what I had to say, I suppose, came in under the oftenused default that it’s not admissible for the truth, but what the witness is saying is admissible to give you a sense of what the witness’s perception was at the time when he or she carried the case forward and made decision a and b and c. Granof: I was thinking that as a practical matter the judge was very sensible, but this was probably the only way. Zuckerman: I think that’s right. That’s what I said – I thought it was – I’m sure the Court would describe it as a very awkward case to adjudicate because it involved such an expansive time because you didn’t want to turn it into a two- week long matter and you wanted to compress it as best you could. Zuckerman: Those are my two cases. We have a few minutes and can talk about where I am in life now, and what’s going on and it’s kind of appropriate. On Thursday of this week Amit Mehta, who is a partner at the firm, will be sworn in a United States District Judge, taking the seat of Senior Judge Ellen Huvelle, and he will appear in Courtroom 9 to be sworn in at 4:30 in the afternoon. Granof: That’s wonderful. Zuckerman: His wife is a partner here and is a Harvard graduate. 220 Granof: And is he a partner? Zuckerman: He is a partner here, and he’s the second of our partner group to take the bench. The first is Steve Glickman who went on to the D.C. Court of Appeals and Amit, let’s see, was born, give me a moment here, about a year or two before the firm began. It would be too nice to say that he and the firm were born at about the same time. I suspect he’s in his early 40s, and was probably born about 1971, ‘72 or ’73. But he was essentially a baby when the firm was a baby and grew up, and we were fortunate enough to have him as a partner for a good while. He’s a very talented man and will be a very fine judge, and his swearing in is Thursday and thus begins a new life on the bench. He will be – because you can figure these things out – he will be the longest serving judge on the District Court bench here because one knows the ages of the judges who were appointed before him. He will be the longest serving judge not over the age of 65 in about 2035 or thereabouts – 2030 – so he will be the Chief Judge. The Chief Judge is the longest serving judge not over 65. He will have about a year in which he will be the Chief Judge, but it’s nice to see that on Thursday and to revel in it and enjoy it and ascribe at least a part of it to the period of gestation that he spent at the firm. And then on Friday I will be at the Memorial Cemetery of St. John’s Church in Laurel Hollow, NY at 1:30 helping to say goodbye to somebody who became a good friend and certainly was an important client for seven or eight years, and who died under very difficult circumstances if I may say. Dying is sometimes easy, sometimes not easy, but generally when you go through these heart health experiences, you need a healthcare advocate by your side. When your knee is replaced or your back operated or just after quintuple bypass, it’s unimaginable that you’re doing it in circumstances in which your wife, your loved ones, your brother, your sister can’t come to your bedside when you awaken and say, “Hey, you’re fine, I talked to the doctor and everything went well. Do you need anything from the gift shop?” And he went through a series of health – Tone did – very severe health 221 entanglements; first, without the ability to have a healthcare advocate with him before or after this happened; and second, without the ability to have, in any effective way, a healthcare advocate to deal with the doctor. They would tell him we’re going to give you a quintuple bypass. But they would not tell him when and they would not tell his family when. For security reasons, they do not want any foreknowledge on his part or his family’s part as to when he will be wheeled out of the Federal Medical Center and over to the Mayo Clinic to be operated on. But the idea that you are being operated on without anyone giving you the specifics surrounding a serious operation is just very hard to get your head around. Without warning, the people who are charged to take you to the hospital just come to get you. The exact timing of the operation is a complete surprise to you, and your wife, your girlfriend, your family doesn’t even know when the operation is occurring. Granof: Seems harsh. Zuckerman: It’s incredible – it’s just incredible. I mean you go through a lot of anxiety when you get a quintuple bypass. By our computation, he had been in surgery for at least 17 hours in the various operations which he had – that’s a long time. So that’s my perspective as of today. There are a lot of good things that have happened and there are a lot of bad things that have happened. Granof: I’m curious how Judge Mehta. How did he become a federal judge? Zuckerman: You tend to think that you have some friend on high who calls you and says, hey, we’re looking around for some judges, you might be a good choice here, are you interested? If you are, file your application. Ninety-nine percent of the cases do not happen that way. It’s initiated by you, and you wake up one morning and you say “I’d like to be judge and I can be a good judge and I’m going to file an application and see if I can get some support and run it through” – very surprising. 222 Granof: And that is what he did? Zuckerman: Yes, that’s what he did and benefitted I think – as did my friend Amy Berman Jackson, who just became a federal judge – by the fact that the Obama Administration rightly and commendably and finally is very intent on diversifying what has been for the history of the Republic a white male bench. Gender diversity, racial diversity, ethnic diversity is really a hallmark of Obama’s appointees. But despite this emphasis in the last seven years, in particular there has been an underrepresentation of Asian Americans. In 2009, Preet Bharara was appointed to be the U.S. Attorney for the Southern District of New York; another Indian American, the Honorable Sri Srinivasan, was just appointed in 2013 to the U.S. Court of Appeals for D.C. It’s an underrepresented ethnic group that is finally getting its due. Granof: Congratulations to him – it’s wonderful. Zuckerman: He is wonderful. Anyway, that’s a pretty good place to stop. Granof: Okay. This concludes the tenth interview.