A few weeks ago, I wrote about the lawsuit filed by Level Global founder David Ganek. Mr. Ganek sued Preet Bharara, the former U.S. Attorney for the Southern District of New York, as well as other prosecutors and agents, claiming that they had harmed him by obtaining and executing a search warrant based on false information.
The district court had allowed most of the complaint to proceed, denying the defendants’ motion to dismiss. The case had then headed to the Second Circuit.
Law360 (sub.) reported on the argument yesterday:
During appellate arguments Friday, the circuit panel asked questions of both sides but gave few clues about how it might come out.
Judge Raggi, for example, seemed to dislike the government’s assertion that the affidavit contained no false information. But Judge Chin observed, contrary to Judge Pauley’s finding, that Ganek’s allegations against top prosecutors appeared to be conclusory.
That left Ganek’s lawyer, retired Harvard Law professor Nancy Gertner, and prosecutor Sarah S. Normand seeking to sway the panel based, among other things, upon the potential consequences of a dismissal — or of a trial.
“This is about accountability,” Gertner said. Her filings reminded the circuit of Ganek’s accusation that the investigation destroyed his business. She warned that others will see their belongings rifled through if such cases are not allowed a full airing.
But Normand said it would be bad precedent and an “enormous burden” on the government to force prosecutors into court to defend their practices in cases where a corrected affidavit would have led a judge to authorize the same search.“[S]uch allegations could be made against supervisors in almost any context, and amount to an impermissible” theory of employer liability, the government’s briefs said.