Allow me to introduce myself. My name is Kenneth Foard McCallion. But most people call me Ken. I decided to put a few things about my life and my work on paper while my memory is still fairly good. You never know. I will be 70 years old on September 25th, which I used to think was old, but my perception of “old” has drastically changed over the years. When I turned 30, I was afraid that I was becoming middle aged, which is when I started running marathons. Now 40 years later I prefer to think of myself as “advanced middle age” rather than just old. I am still working harder than ever as a lawyer, which I have been doing now for the past 41 years, and I am registered for the New York Marathon and Swim Across America distance swim later this year, so I plan to be around for a while. Actually, I have no choice but to stick around. My youngest son (Foard) is 9-years old, and I plan to be there when he graduates from college. So by necessity as well as desire, I have to keep healthy and active. My inspiration is Irving Like, my mentor as a young attorney who is still fighting the good fight as an environmental lawyer at the ripe old age of 90. He used to refer to me as “the kid” when I was first out of law school. Everything is relative I guess.
It doesn’t seem that long ago when I graduated from Fordham Law School, but it was way back in 1972. I had the opportunity to go to law school because I was offered a full academic scholarship. Even with the scholarship, I had to work part time as a yellow cab driver in New York City, which is actually a good way to learn how to get around New York, meet some interesting people, and make some money at the same time. My first year at law school was a tumultuous time, with marches on Washington in opposition to the Vietnam War, and a nationwide student strike after the Cambodian incursion by U.S. troops. Like some of my classmates, we decided to boycott the end-of-the-year exams in the Spring of 1970, opting instead to help organize anti-war protests. The law school administration eventually gave us the option of taking our final first year exams the following fall, but even those of us who did well on those exams were effectively precluded from being considered for admission to the Fordham Law Review, the only law school journal at Fordham at the time. As a result, some of my classmates and I started a second law review at Fordham, called the Urban Law Journal, and I was one of the members of the first student editorial board. I understand that the Urban Law Journal has flourished since then, which is exciting.
In fact, my wife Susan and I recently attended a reception at the new Fordham Law School where family scholarship donors have an opportunity to meet scholarship recipients. After the death of my father, Harry J. McCallion, who was also a Fordham Law School graduate before joining the Navy during World War II, we started a scholarship at Fordham in his name, and it still seems to be helping two or more students per year defray some of their law school expenses. However, I was so out of touch with developments at the law school’s Lincoln Center campus that when I went to the law school building which I had attended, it was completely closed and surrounded by a high construction fence. We then wandered into the new building next door to it and found that the entire law school was now in the new building. Quite impressive. In addition to meeting the student recipients of my father’s scholarship fund, I also got to talk with the new Dean of the law school, Matthew Diller, who until recently had been the Dean of Cardozo Law School, where I had also helped set up program in Holocaust Studies and Human Rights with some funds we obtained as part of a Holocaust settlement with several French banks.
Before going to law school, I attended Yale College and graduated in 1968. My grades were pretty good in high school and I tested well, but I have always suspected that the real reason I was admitted to Yale was that the track coach, Bob Giegengack, put in a good word for me with the admissions office. Not that I didn’t qualify for admissions there, but from what I hear, a lot of high school graduates who apply to Ivy League schools are qualified, but are still rejected. What helps sometimes is to stand out as exceptional in something. I was fast, and had been quite an exceptional sprinter at Pelham High School in Pelham, New York, a small suburban town in Westchester County just north of New York City. Coach Giegengack, who later went on to be the Olympic track coach for the American team, actually came to see me run at one of our track meets, and apparently liked what he saw. He also tended to pull a lot of weight with the admissions committee, from what I hear, and several of my Yale classmates won metals at the 1964 and 1968 Olympics. I was not so fortunate. I had a bad habit of pulling the hamstring in my left leg on a regular basis, which doomed my career as a sprinter. I eventually converted to long distance running, but was never really competitive at those longer distances. Still, it kept me in good shape, and as of last fall, I had run in 23 New York marathons, plus a few triathlons. Like the Eveready Bunny, I just keep going……
But I digress. More about sports perhaps later in this blog. Sports is big business now, or so I am told by my eldest son Brendan, who has forged a career in the sports and marketing fields. But “back in the day” as they say, there was no such thing as a “professional runner,” so we did it just for the love of the sport and the chance to excel, even if it impaired one’s more serious career goals. In fact, I remember that Frank Shorter, a contemporary of mine at Yale and one of the greatest marathoners of his time, complaining after he graduated law school and was trying to work at a law firm while, at the same time, training and competing at a world class level, that the partners at the law firm where he worked were completely oblivious and unsympathetic to the demands of his training schedule. Now a world class professional runner can make 100 times what a law firm associate can make.
I also worked part-time while I was at Yale, and as a public school grad, it seemed like I had to study twice as hard as my prep school classmates, who seemed to be able to coast along with a gentlemen’s “C” grades with seeming effortlessness. Take George W. Bush (Yale Class of ’68) for example. He and some of his prep school buddies lived across the hall from me during our Freshman year, and we were both assigned to Davenport College during our next three years of college. Davenport was one of about 13 residential colleges at Yale (maybe there are more now). Anyway, George never seemed to break a serious sweat studying while in college, and there was often a party going on in his dorm room. Nice guy, but no one ever thought he would end up as President of the United States. My grades were better than his (not a very difficult feat) and I was a lot more serious about my studies and life in general. Just goes to show: Life isn’t fair. But what else is new.
There was one beneficial result from having George W. in our class: We had our class reunion at the White House when he was occupying it, just after U.S. and “Coalition” troops had taken Baghdad. I wasn’t that crazy about his politics, which is understandable since in 2000, I had dabbled in New York politics as a Congressional Candidate for the Democratic, Green and Working Family parties. But “W” sure knew how to throw a heck of a party! I asked him that evening during a serious moment (there weren’t many) whether he had a plan for the future of Iraq now that we were occupying it. As Colin Powell liked to say, “If you break it, it’s yours.” President W assured us that yes, in fact, he had a plan. As I suspected, though, he had no plan to keep the peace, and the whole thing quickly unraveled into the debacle we are still paying for.
Another benefit of knowing George W at college was that I got to meet his father, who had been a star pitcher at Yale years before and went on to become CIA Director, Vice President and then President. In fact, George’s father later helped me get my first of many jobs with the federal government.
After graduating law school in the summer of 1972, I was offered a job as an associate at the Rosenman & Colin law firm, now defunct. In fact, at the time I was probably the highest paid first year associate at any major law firm in New York, having been offered the stratospheric salary of $20,000 per year, which the law firm thought was the “going rate” that other major New York law firms would be offering that year. However, the “going rate” turned out to be $16,000, and I agreed to have my salary reduced accordingly, especially since $16,000 per year still seemed to be a small fortune.
After a couple of years in private practice, where I was able to hone my legal writing skills since we had to churn out at least one legal memo a day on one civil case or another, I started looking for an opportunity to become the trial lawyer I always dreamed I would be. The surest route to trial practice was as a criminal prosecutor. I saw my opportunity to switch legal gears when the nursing home scandal broke in New York in the mid 1970s, with the abuses and transgressions of Bernard Bergman and other nursing home owners making front page news in the New York Daily News and the New York Post. Charles J. (“Joe”) Hynes, who later went on to be the Brooklyn District Attorney, was appointed as the New York State Special Prosecutor for Nursing Homes and Medicaid Fraud. He needed to build his staff from scratch, and I readily volunteered to take a 50% cut in salary to become a Special Assistant Attorney General for New York State. It was great experience for a couple of years, but then I had an opportunity to work for Tom Puccio, the Chief of the Brooklyn Organized Crime Strike Force, the branch of the U.S. Department of Justice’s Organized Crime Section that was quickly developing a national reputation for itself with the Abscam investigation, the Lufthansa Heist Case (immortalized in the movie “Goodfellas”) and numerous other high-profile cases.
One summer while a law student at Fordham, I had a chance to work as an intern in the Civil Division of the U.S. Attorney’s Office in the Southern District of New York, located in Manhattan, and as fate would have it, the Assistant U.S. Attorney I was assigned to work for was assigned to work on the Pentagon Papers case, after Daniel Ellsworth leaked some confidential and unflattering reports relating to the Vietnam War to the New York Times. During that time, I got to see one of the foremost First Amendment lawyers -Floyd Abrams – in action in court on behalf of the New York Times arguing against any “prior restraint” of the publication of the Pentagon Papers. Apparently the federal civil attorneys I was working for were impressed with the work I did that summer, so I got a good recommendation when I applied for a job at the Brooklyn Strike Force.
Sometimes you get what you ask for, and it can be terrifying. I joined the Brooklyn Strike Force in 1978 to get some federal trial experience, and I got almost more than I could handle, at least at first. Within a couple of weeks, I was assigned to try a major illegal gambling cases against Roy Cohn, the infamous attorney from the McCarthy Hearing days in Washington, and then one of the pre-eminent criminal defense attorneys in New York, specializing in defending mob defendants. In addition to Danny Fatico, a close associate of mob boss Carmine “the Snake” Persico, there were several other mob defendants, each one represented by a separate defense attorney, including Mike Rosen, one of Roy Cohen’s partners in the law firm of Saxe Bacon & Bolan.
Although I had been “second seat” as a prosecutor before, this was my first trial on my own. As Tom Puccio told me: “You either sink or swim here [at the Strike Force]. No more training wheels.” Fortunately, after a rough start, I did OK, and we got a conviction against Fatico and most of the other defendants. However, a great deal of case law case law developed in a related case against him relating to conspiracy charges arising from the hijacking of trucks at Kennedy Airport. See, e.g., 441 F. Supp. 1285 (E.D.N.Y. 1977), reversed, 579 F. 2d 707 (2d Cir. 1978). The question of law was what was the government’s burden of proof at a criminal sentencing establishing that a defendant was a member of organized crime for purposes of imposing an “enhanced” sentence. Those hearings came to be known as “Fatico Hearings.” More about that later.
The Fatico case was tried before the legendary Judge Jack B. Weinstein, who was also a Professor at Columbia Law School and one of the best federal judges I ever had the honor to appear before. In fact, he is still an active judge in the federal courthouse in downtown Brooklyn. Check it out for yourself.
The Brooklyn Strike Force suffered from its own success. After a few years of notoriety, with its cases consistently making headlines, it was disbanded and its attorneys, including myself, were folded into the U.S. Attorney’s Office for the Eastern District of New York, which was in the same courthouse in downtown Brooklyn. I then got to work for a series of excellent U.S. Attorneys, including Dave Trager, Ray Dearie and Ed Korman, all of whom became federal judges. One of the cases I got to work on was against Daniel Cunningham, the President of the Security Guards Union who had strong organized crime ties, and which was trying to organize the security guards at the Shoreham Nuclear Power Plant on Long Island, which was under construction at the time. The idea of having an organized crime-controlled union having its hooks into a nuclear power plant project sent shivers up and down the line at the Dept. of Justice in Washington, so I was assigned to work with a team of FBI agents who were investigating
Mr. Cunningham and his union’s activities at the Shoreham Plant, as well as the gift to him by a real estate developer of a penthouse apartment at the Northshore Towers, which is located directly on the Queens-Nassau County border on Long Island. The investigation and prosecution was successful, and Mr. Cunningham’s union was effectively barred from any further efforts to infiltrate the work force at the highly sensitive nuclear power project at Shoreham, Long Island. Ed Bradley of CBS’s 60 Minutes seemed to like the story, so he interviewed me for a segment of the show about the Shoreham Plant and Cunningham’s union at Dulles Airport in Virginia, near the FBI Academy at Quantico, where I happened to be lecturing for a short period of time. My 15 minutes of fame. Actually, I think it was only 10 minutes.
Shortly after that, I was asked by the New York State Attorney General, Bob Abrams, to join his office as one of his deputies, which I agreed to do, since my real interests were on organized crime cases involving the infiltration and take-over of legitimate businesses under the racketeering (RICO) statutes, including the new civil RICO statute which had only recently been enacted to recover treble (three times) damages and was designed to hurt organized crime where it hurt most – financially. In fact, I had the opportunity to testify before the Congressional Committee reviewing the civil RICO statute (18 U.S.C. 1964(c)) along with Professor Blakey of Notre Dame, the primary author of the civil RICO statute. Every time Congress reviewed the statute after allegations were made by white collar criminals and others that the statute was “too broad” and not designed to attack non-traditional organized crime racketeering activities, such as that engaged in on a regular basis by otherwise-legitimate companies, Congress ended up expanding the statute rather than narrowing it.
However, I -- like almost every other Assistant U.S. Attorney – was assigned to handle the deluge of drug-related cases that were being generated by the fledgling Drug Enforcement Administration (DEA) and even the FBI. The U.S. Attorney’s offices around the country started being inundated with drug prosecution cases as part of the government’s much touted, but largely ineffective “War on Drugs.” On the East Coast, from Miami to Boston, these cases largely involved Cuban, Columbian and other organized crime syndicates from Latin America. I increasingly started spending my time with DEA agents, most of whom were excellent agents, but who often took a “Wild West” approach to law enforcement, as opposed to the more buttoned-down, by-the-book FBI agents I had been used to working with. I even went down to Columbia, South America on one case, but the extremely tight security and the fact I had to wear a bullet proof vest all the time didn’t make it much fun. I was guarded by DEA agents 24/7. I guess they didn’t want to be embarrassed by having an AUSA shot or kidnapped. In any event, drug investigations and prosecutions were an inherently nasty business, with informants and even some DEA agents being killed with increasing frequency, as the Central and South American drug cartels became increasingly violent, refusing to follow the unwritten rules of etiquette followed generally by Italian organized crime families, who considered prosecutors and agents to be “off limits” when it came to contract murders. The drug cartels also started using semi-automatic and automatic assault weapons that started an arms race with the federal agencies, who by necessity had to start using increasing fire power, with heavily armed military-style SWAT teams becoming more of the norm rather than the exception.
In light of the direction that federal law enforcement was going, I had less and less of a chance to pursue what I considered to be the “important” cases, such as when we
prosecuted a group of contractors working on the Southwest Sewer District in Long Island for defrauding the relatively new U.S. Environmental Protection Agency of tens of millions of dollars by supplying sub-standard cement pipes that were held together more by chicken wire than steel reinforcing bars (rebar). They ingeniously rigged a concrete testing machine so that the cement would test positive no matter how poorly it was constructed or how “green” (uncured) the cement pipes were. In order to prove our case, we ended up spilling a lot of oil from the testing machine on the carpet of the State Motor Vehicle Building in Mineola, Long Island, where the case was being tried since there was no federal courthouse on Long Island at the time. Even though the jury returned a guilty verdict against all defendants on all counts, I remember the federal judge who was hearing case made sure that the FBI paid for the damages to his temporary courtroom.
Long story short, I jumped at the chance to join the New York State Attorney General’s Office in an executive position, especially when I was promised the opportunity to investigate the Long Island Lighting Company’s (LILCO’s) funding of the Shoreham Nuclear Power Plant Project with about $3.5 billion in ratepayer financing charged to the good citizens of Long Island. LILCO had persuaded the New York State Public Service Commission (PSC) to permit them to pass on the cost of the power plant to the ratepayers by falsely estimating that it would only cost about $75 million to build the plant, and then, over the years, they increased the “estimate” gradually up to $3.5 billion, with the plan never getting finished. The Plant was never actually built to any specifications. Rather, a portion of the plant would be built and then the specifications on the engineering drawings would be completed on an “as built” basis. Then the engineers figured out that the Plant wouldn’t actually work as built, so they had the portion of the Plant that had been completed ripped out, and they started again. This went on for years. I kid you not. No one
working on the project actually wanted it completed, since it was a boondoggle of the first order that was making the contractors, engineers and construction workers wealthy. Nor did the environmentalists or the most Long Island residents want the Plant completed, since it would have been impossible to evacuate Long Island in the event of a nuclear melt-down. The Long Island Expressway already looked more like a parking lot than a highway during rush hour, so it would have been totally useless in the event of an emergency.
As I got more into the Shoreham power plant case, I began to realize that LILCO itself was a major racketeering enterprise, having used mail and wire fraud to deceive the PSC over a substantial period of time, and eventually defrauding the Long Island ratepayers of billions of dollars. In particular, Suffolk County, the largest LILCO ratepayer, was particularly interested in pursuing a civil RICO case against LILCO, and I ended up actually leaving the Attorney General’s Office for a private law firm representing the Suffolk County Legislature. The ensuing civil RICO case against LILCO (Suffolk County v. LILCO) actually went to trial before Judge Weinstein at the Brooklyn federal courthouse, and after a lengthy trial, the jury found for Suffolk County with a $3.5 billion verdict, enough to bankrupt LILCO. To avoid this result, Judge Weinstein actually over-ruled the jury verdict and ordered intensive settlement discussions to take place on a class action wide basis, and I asked the prominent plaintiff’s attorney, Judith Vladick, to stand in as the attorney representative of the entire class of ratepayers. A class action settlement was reached, and bankruptcy averted for LILCO, but LILCO’s demise was eventually sealed when Governor Mario Cuomo and the New York State Legislature formed a new state entity, the Long Island Power Authority (LIPA) to replace it. The Shoreham Nuclear Power Plant never did operate, although LILCO, in a dangerous game of “chicken” took the plant to 5% power, just high enough to make the entire plant radioactive and therefore unusable. You can still see it standing there empty to this day, a monument to man’s unending folly.
Two of my witnesses in the Shoreham case were “whistle blowing” engineers who were basically black-balled in the engineering field in the U.S. after they testified against Stone & Webster, the Boston-based engineering firm that helped LILCO mastermind this multi-billion dollar boondoggle. Before the trial of the case, I was able to track down one of them, who was working in Anchorage, Alaska at the time, being unable to find a job in the “Lower 48” as the rest of the continental U.S. is referred to there. We arranged with a local Anchorage law firm to let us use their conference room to take the video deposition of the witness, and the deposition was then played for the jury at the Brooklyn federal courthouse. The witness had vowed to never return to the East Coast after having his character assassinated and his career ruined for just telling the truth and turning over some key documents to us.
Not too long after the Shoreham case settled, on a perfectly clear night, Easter Sunday, March 24, 1989, the Exxon Valdez ran aground on Bligh Reef in Prince Williams Sound, southeast of Anchorage. Millions of gallons poured from the huge supertanker into the calm waters, gradually spreading to foul valuable fishing grounds, and eventually washing up on a million acres of pristine shoreline of the remote villages and corporate lands owned by the Native Alaskans. Since the law firm I was working at – Hill, Betts & Nash – had a great deal of navigation and admiralty law experience, I got a phone call from the Anchorage law firm that had assisted us with the depositions in the Shoreham case. It just so happened that this law firm represented Chugach Alaska Corporation, the largest of the regional Native Alaskan corporations that had been damages by the oil spill.
They asked if we could come up and help them with the case. I was on a plane from New York to Anchorage the next day, and spent huge chunks of time in Alaska working on the case over the span of the next several years, travelling up and back from New York almost every other week. Eventually, the case went to trial in both state and federal courts in Anchorage, and while the $5 billion federal jury verdict was exhilarating, by the time the case got to the U.S. Supreme Court, the award had been knocked down to $1 billion, barely enough for the devastated clients to recover some of their basic damages, certainly not enough to adequately compensate the phalanx of plaintiff lawyers who had worked on the case. Still, from a legal and personal perspective, it was a truly memorable experience. More about that later.
While the Exxon Valdez case was winding down, I was asked by Raj Sharma, an associate of mine, if I wanted to represent the victims of the Bhopal Gas Disaster in India. I agreed, and over the next year or two, we pursued a damages case for those victims in the U.S. District Court in Manhattan against Union Carbide Corporation, a major U.S. corporation headquartered in Connecticut, which had built a substandard chemical plant in Bhopal, India that was virtually identical to another plant they had built in West Virginia, only the one in West Virginia naturally had all of the latest safety equipment installed. The case really got interesting when we tried to serve a deposition notice on the President of UCC while he was at his vacation home in Southampton, Long Island. He apparently fled to avoid service, and continued to go to great lengths to avoid being personally served with any legal papers. Finally, we asked Interpol to list him as a “fugitive” on their database, which really freaked out UCC and its President, and won a huge amount of press coverage about a huge man-made calamity which the Western world was already starting to forget about.
Around the same time, I was asked by Professor Richard Weisburg of Cardozo Law School, the father of a classmate of my oldest son (Brendan), to help develop a case against various French banks for their complicity in the French Holocaust. I agreed, since I had already had some experience with international law cases under the Alien Tort Statute, which had been enacted by the U.S. Congress in 1789, but had fallen into disuse for a century or two, and had only recently been dusted off and used by human rights to bring cases in the U.S. federal courts. We ended up bringing parallel cases in federal court in Brooklyn for both U.S. citizens and non-U.S. citizens who had survived the French Holocaust during World War II, and eventually won a huge victory, when Judge Sterling Johnson denied the motions to dismiss brought by Banque Paribas, Societe Generale and the other French banks who had frozen the bank accounts of Jewish customers, thus cutting them off from the financial resources they desperately needed to flee the country and avoid being rounded up and transported to the Nazi death camps. In fact, it was the first (and perhaps only) Holocaust case decision in federal court where the plaintiffs actually won a significant motion. In other Holocaust cases, such as a case brought against Germany in U.S. District Court in New Jersey, the motions were actually lost by the plaintiffs, but ended up in a fairly generous settlement for the plaintiffs after the U.S. State Department stepped in and negotiated a state-to-state settlement in Berlin with the German government and German industry. In fact, I was at the Berlin negotiations and settlement ceremony on behalf of the Russian forced laborers in the St. Petersburg area who had been conscripted into service by the Germans during World War II but never paid for their services. At the signing ceremony at the Presidential Palace in Berlin, I remember to German President saying that Germany welcomed the opportunity to finally put the tragic issue of Holocaust compensation to rest, but as an aside to the few of us standing close to him, he added: “But this is the last time [we are paying].”
Similarly, there was a settlement eventually reached with the Swiss banks, under the guidance of Judge Ed Korman of the U.S. District Court for the Eastern District of New York (who I had worked with when he was the U.S. Attorney), but the settlement was reached primarily due to the threat of an economic boycott by the New York State and City Pension Funds, and by CALPERS (the California Pension Fund), not as a result of any positive legal decision for the plaintiffs. In fact, Judge Korman never decided the motions to dismiss pending before him, instead opting to let the settlement discussions first take their course.
But I digress. Back to the French Holocaust Case. With the help of the U.S. State and Treasury Departments, and through the direct involvement of Deputy Treasury Secretary Stuart Eisenstadt and Secretary of State Madeline Albright, we were able to reach a settlement that established two funds: Fund A gave a fixed amount of money to each plaintiff member of the class who submitted a “good faith affidavit” that they or a close family member had a bank account in one of the French banks that had been frozen in occupied France during World War II, and a Fund B, which allowed for more specific property and other claims, where the claimants had specific documentary proof of their loss. The settlement was reached the day before my former Yale classmate, George W. Bush, was sworn in as President of the United States. No one was sure whether the Bush Administration would be as supportive of Holocaust restitution efforts as had been the Clinton Administration, so we were anxious to conclude the deal at the State Department in Foggy Bottom in Washington, D.C. The French delegation was also willing to put in an all- night session to conclude the deal. We posed for photos the next day with Secretary Albright, outside her office.
As part of the settlement, the French Banks agreed to “donate” $2.5 million to Cardozo Law School for a perpetually funded Holocaust Studies program, which has now expanded its scope to include human rights in general. Stu Eistenstadt and Richard Weisburg were also awarded membership in the French Legion of Honor, which was a nice touch. After that, I taught part time at Cardozo Law School in a legal clinic on Holocaust restitution law, but my other human rights cases kept taking up a great deal of my time.
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