Pomerantz LLP

Distinguished Federal District Judge Shira Scheindlin Retires

Attorney: Adam G. Kurtz
Pomerantz Monitor September/October 2016

Federal District Court Judge Shira Scheindlin of the Southern District of New York stepped down from the bench in April of 2016. Over the past two decades “Judge Scheindlin was one of the hardest working and scholarly judges that I had the honor of appearing before in court, as well as working with in law symposiums,” according to Pomerantz partner, Marc Gross. When appearing before Judge Scheindlin, Mr. Gross noted that “[s]he was always incredibly prepared, even on the most esoteric economic issues, asking pointed questions that kept witnesses and counsel on their toes.” Over the years, Mr. Gross and Judge Scheindlin have also appeared together at law symposiums, including the Annual Institute For Investor Protection Conference, to speak about securities fraud class actions.

Judge Scheindlin has had a 22-year history of presiding over important securities, antitrust and civil rights class action, cases, and writing landmark case law decisions. Several of them were cases in which Pomerantz represented investors and consumers. Most recently, Pomerantz had great success in an important securities fraud (Barclays) and antirust (NHL & MLB) cases that were before Judge Scheindlin.

In April 2015, in the “Dark Pool” Barclays’ securities fraud case, Judge Scheindlin denied defendant Barclays’ motion to dismiss, and in February 2016, granted plaintiffs’ motion for class certification and appointed Pomerantz as lead class counsel. This case concerns Barclays’ false statements regarding the integrity of its “dark pool,” an alternative trading platform that does not reveal the size and price of the anonymous trade. Judge Scheindlin’s case law decision was important because of its emphasis on the critical importance (“materiality”) to investors of management integrity. The decision not only granted class investors and Pomerantz a legal victory, it advanced the important legal standard that false and misleading statements about management integrity could be the foundation of a securities fraud case, even if the amount of money involved is not particularly great. Judge Scheindlin’s class certification decision is now on appeal before the Second Circuit Court of Appeals.

As one of her final orders, just before she stepped down from the bench, Judge Scheindlin granted final settlement approval “of a lawsuit brought by fans [against Major League Baseball and cable TV providers] over how games are broadcast, a crack in the dam the league and pay TV have built against unrestrained viewing,” according to an article entitled “MLB Settlement Gives Baseball Fans Viewing Options,” on Bloomberg.com. Pomerantz was co-lead class counsel. More specifically, the antitrust cases challenged MLB and NHL’s “black out” prohibitions of teams from broadcasting or streaming games outside their home and inside outer market territories. Judge Scheindlin concluded that the settlement – worth $200 million to consumers – will lower the price to watch baseball online and increase online viewing options so that (1) fans can watch a favorite team, without blackouts, by subscribing to cable TV and MLB.com; (ii) out of town fans can buy discounted single team online streaming packages; and (iii) hometown fans can stream to all devices. In the parallel NHL case, the NHL settled and agreed to provide NHL fans with previously unavailable single-team packages at prices well below the out-of-market bundled package.

However, Marc Gross says, “Judge Scheindlin’s greatest contribution was in the arena of social justice and civil rights. She was the first judge in the country to find that certain police tactics (in this case “stop and frisk”)  were applied in a discriminatory manner, and therefore, were unconstitutional. This was before the “choke hold” and police shooting deaths, and before Ferguson and Black Lives Matter. Her decision allowed New York City and its police to rapidly move forward to address questionable policing tactics, thereby undoubtedly helping to avoid much of the turmoil experienced by other cities.”

In the wake of her decision, the number of “stop and frisks” dropped from 685,000 in 2011 to 24,000 in 2015. In May 2016, Judge Scheindlin told Benjamin Weiser of The New York Times, “Think of the lives that that has changed, the lives that that has touched,the lives of people who  were stopped for no good reason and how intrusive that is.” The policy had “bred nothing but distrust,” she added. During this same period, major crime in NYC overall dropped 5.8% in the two years since Judge Scheindlin’s decision. “As we end [2015], the City of New York will record the safest year in its history, its modern history, as it relates to crime,” NYPD Commissioner Bratton said.

Judge Scheindlin has said, “I do what I think is right, and whether the circuit [appeals court], the press, the public or whoever think it’s right doesn’t matter. Should it? . . . What I hope to do are even more good works than I could accomplish here [as a Judge].”