Fordham Law


Wealth Could Be Risky Issue for Mets Owners Should They Face a Jury

Annemarie McAvoy in The New York Times, March 07, 2012

Media Source

By RICHARD SANDOMIR

For baseball — not unfamiliar with scandal and bankruptcies, divorces and criminal trials — this promises to be something new: the owners of a marquee team in federal court to face accusations that they enriched themselves and ran their team with illegitimate profits from one of history’s greatest scams.

Imagine, for instance, what jury selection might look like when Fred Wilpon and Saul Katz, the owners of the Mets, take their seats in the courthouse at 500 Pearl Street in Manhattan later this month.

Will the baseball allegiances of prospective jurors be explored? Will lawyers for the owners try to bar fans of the Mets — or welcome them as long as they are not wearing a team jersey and waving a foam finger?

Recent remarks by Wilpon suggested that enthusiasm for his stewardship among the faithful was not a settled question. In a vow to Mets fans that his family will own the team “for a very long time,” he told reporters last week at spring training in Port St. Lucie, Fla., “Whether they’re happy about that right now or not, I don’t know.”

Not many people predicted the $1 billion lawsuit brought against Wilpon and Katz by the court-appointed trustee for the victims of Bernard L. Madoff’s vast fraud would actually produce a trial. Wilpon and Katz, for their part, seemed convinced that the case would get dismissed well before a trial. Others speculated that the sides would ultimately find a way to settle, and they still have 10 or so days to do so.

But it appears probable that a trial will start March 19 when a federal judge, Jed S. Rakoff, will question prospective jurors to impanel a 6- or 12-person jury.

“Anytime your fate is in the hands of a jury, it’s a big risk,” said Bradley Simon, a former federal prosecutor who is a partner at Simon & Partners. “Jurors are not likely to be that sympathetic to individuals like them who are financially well off and did well with their Madoff investments. “

He added, “It’s overall bad news.”

Lawyers for the team argued unsuccessfully, on constitutional grounds, against a jury trial.

Rakoff, regarded as a brilliant but unpredictable jurist, alone will question the jury pool. He is a Yankees fan and a partial season-ticket holder. So his neutrality is assured and seems unlikely to be affected by his rooting interests. Anyway, the role of the opposing lawyers in shaping the makeup of the jury will be somewhat limited.

Experts suggest that both sides probably already know the sort of jury makeup they want, and that mock trials have likely yielded juror profiles. But neither side will get all it wants.

“The real challenge is to ferret out latent prejudices, so it’s extremely important for lawyers to suggest questions to the judge beyond those the judge would use to elicit obvious biases,” said Mark Zauderer, a partner at Flemming Zulack Williamson Zauderer in Manhattan. Rakoff need not use their questions.

According to several lawyers and a jury consultant, the trustee will want jurors who resent millionaires.

But Wilpon and Katz’s team, they said, probably want less class-conscious people who might be more inclined to feel the trustee’s pursuit of the Mets’ owners was overzealous and unfair. The trustee has accused the owners of ignoring warning signs about Madoff’s operation as they benefited from steady returns during their many years of investing with him.

“If they get some Wall Street types on the jury, or partners of big law firms, they might feel this is another attack on wealth,” said Annemarie McAvoy, a former federal prosecutor who is a professor at Fordham Law School. “But if they seek sympathy, they have to come off sympathetically.”

Wilpon and Katz’s wealth is likely to be a recurring theme at what the judge has said will be a 10-day trial. They had a lot of it, and invested much of it with Madoff.

Wilpon and Katz, who are brothers-in-law, built their company, Sterling Equities, out of investments in real estate, sports and private equity. They poured $1.6 billion into their Madoff accounts over 23 years.

Their riches, then, could cut two ways. The financial crash and the Occupy Wall Street protest movement have made the rich less sympathetic than ever; some now pejoratively label the wealthy the one percent.

Simon said that jurors’ resentments of wealthy defendants is not always easy to discern.

“People say it won’t influence but they don’t really say it,” he said.

The owners would be fortunate to find a juror who has been betrayed in his life — or at least has a sense of fair play about people whose wealth is well beyond theirs, the experts said.

Philipp Aidikoff, a partner in the securities firm Aidikoff, Uhl & Bakhtiari in Los Angeles, said, “Some of our clients are far wealthier than Wilpon and we say, ‘Our client is wealthy beyond belief? So what? Can you lie to them? Give them false information?’ ” He has represented clients defrauded by Madoff.

Although a jury will decide the case, Rakoff can exercise broad influence on the evidence and testimony he allows into the record. He is not shy about voicing his opinions, no more so than in his tartly worded rejections of the Securities and Exchange Commission’s settlements of major bank cases.

In his decision on Monday to clear the path for the trial of the Mets’ owners, he questioned the trustee’s ability to prove that Wilpon and Katz acted in bad faith and described some of the “bombshells” submitted recently by both sides in the case as evidence “proved to be nothing but bombast,” and may not be admissible.

McAvoy said: “I know Judge Rakoff. He’s tough, he’s very good, and he’s very astute. He won’t give much leeway. They have to present the evidence right or it won’t come down.”