Tuesday, January 3, 2012
Both Judge Rakoff and attorneys for the SEC have worked hard over the holidays!
On Saturday I reported on Judge Rakoff's Dec. 29 supplemental order in which he expressed his displeasure with the SEC's conduct, stating that the agency, in its filing for a stay and expedited appeal, appeared to have misled both the district court and the Second Circuit as well as disregarding its professional responsibility in not citing relevant authority to the appellate court.
On December 30, the SEC responded to Judge Rakoff's charges, asserting that it has acted in good faith. Maintaining that the district court is wrong in its conclusion that the Second Circuit lacks appellate jurisdiction to hear the case, it reasserts its position that the appellate court has jurisdiction under 28 U.S.C. 1292(a)(1). The cases cited by Judge Rakoff are distinguishable, and therefore the SEC did not violate its professional obligation in failing to call them to the Second Circuit's attention. In addition, according to the SEC, the Second Circuit has jurisdiction because the SEC seeks a writ of mandamus, citing the Second Circuit's 2010 decision in SEC v. Rajaratnam, 622 F.3d 159. Moreover, the SEC did not mislead the district court when it filed for the emergency relief because it had made clear the urgency of the situation. Download Citigroup. SEC.Supplemental Memorandum12-30-11
The Second Circuit previously sent the matter to a motions panel with a January 17 deadline. Let's see if the district court and parties plan to wait for a ruling or continue their altercation in the interim.