Does Judge Jed Rakoff have a Prop 8 problem?

In November, Judge Rakoff blocked a Securities and Exchange Commission (SEC) settlement with Citigroup over a mortgage-bond deal because the SEC didn’t provide the court with facts “upon which to exercise even a modest degree of independent judgment.” Rakoff criticized the $285 million settlement as “pocket change” and claimed that there should have been a Citigroup admission of facts in the case because “there is an overriding public interest in knowing the truth.”

The twist to this appeal is that it doesn’t involve a dispute between the parties, the SEC and Citigroup. Instead, it’s a dispute between the SEC and Judge Rakoff. (Citigroup has remained relatively mum since the initial Rakoff/SEC tiff erupted last year.)

As pointed out in the On The Case blog for Thomson Reuters News & Insight, this raises the question: Who will argue for Rakoff during the appeal?

Frankel offers four possibilities: The Second Circuit could let the record speak for Rakoff, call for amicus briefs supporting Rakoff’s position, appoint a lawyer to argue Rakoff’s view, or allow Rakoff to provide briefing or send a lawyer on his behalf.

We call this a Prop 8 problem because California’s same-sex marriage ban was left in a similar lurch when California Governor Jerry Brown and Attorney General Kamala Harris opted not to defend the ballot initiative in a constitutional challenge. In that case, the California Supreme Court ruled that the initiative’s sponsor, ProtectMarriage, had standing to defend the initiative.

In the Citigroup case, there’s a lingering question of whether Judge Rakoff’s ruling will have a voice before the Second Circuit Court of Appeals.

Who, if anyone, would you like to see argue Judge Rakoff’s position to the appellate court?

Related Resources:

  • Second Circuit Could Hear Citigroup Consent Judgment Appeal (FindLaw’s Second Circuit blog)
  • Judge Rejects SEC Settlement with Citigroup (FindLaw’s Decided)
  • Judge Rakes SEC and BoA Over the Coals for Their Proposed Settlement Agreement (FindLaw’s Courtside)

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