CRISTINA C. ARGUEDAS (CABN 87877) TED W. CASSMAN (CABN ... · CRISTINA C. ARGUEDAS (CABN 87877) TED...

Defendant David Bershad’s Sentencing Memorandum

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CRISTINA C. ARGUEDAS (CABN 87877) TED W. CASSMAN (CABN 98932) ARGUEDAS, CASSMAN & HEADLEY, LLP 803 Hearst Avenue Berkeley, California 94710 Tel: (510) 845-3000 Fax: (510) 845-3003 [email protected] [email protected] ROBERT LUSKIN (DCBN 293621) PATTON BOGGS, LLP 2550 M Street NW Washington, DC 20037 Tel: (202) 457-6190 Fax: (202) 457-6315 ANDREW LAWLER (NYBN AL8802) 641 Lexington Avenue, 27th Floor New York, NY 10022 Tel: (212) 832-3160 Fax: (212) 832-3158 Attorneys for David Bershad

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

vs.

DAVID BERSHAD

Defendant.

) ) ) ) ) ) ) ) )

Case No. CR 05-587(B) DEFENDANT DAVID BERSHAD’S SENTENCING MEMORANDUM Date: October 27, 2008 Time: 9:00 a.m. Court: Hon. John F. Walter

Case 2:05-cr-00587-JFW Document 561 Filed 10/20/2008 of 53

i Defendant David Bershad’s Sentencing Memorandum

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TABLE OF CONTENTS PAGE

I. INTRODUCTION ......................................................................................................... 1

II. PERSONAL HISTORY .............................................................................................. 4

A. CHILDHOOD AND EDUCATION ...................................................................................... 5

B. MILITARY SERVICE ..................................................................................................... 5

C. LEGAL CAREER .......................................................................................................... 6

E. COMMITMENT TO FRIENDS, COMMUNITY AND PHILANTHROPY ...................................... 20

F. HEALTH ................................................................................................................... 27

III. ARGUMENT ........................................................................................................... 27

A. APPLICABLE LEGAL PRINCIPLES ............................................................................. 28

B. THE PLEA AGREEMENT AND PRESENTENCE REPORT ............................................... 30

C. THE GOVERNMENT’S MOTION FOR A DOWNWARD DEPARTURE ................................. 31

1. Mr. Bershad Provided Extraordinary Assistance to the .................................... 35

Government and Is Deeply Remorseful For his Misconduct. ................................... 35

2. Mr. Bershad Has Led an Otherwise Exemplary Life. ....................................... 38

3. Mr. Bershad Has Paid a High Price for his Misconduct and for his Cooperation

with the Government. ............................................................................................... 39

4. A Probationary Sentence is Proportionate .......................................................... 40

CONCLUSION .............................................................................................................. 44

EXHIBITS

Exhibit A Letter from DAVID J. BERSHAD

Exhibit B Letters from FAMILY

Exhibit C Letters from FRIENDS

Exhibit D Letters from COLLEAGUES

Exhibit E Letters Concerning COMMUNITY AND PHILANTHROPY

Exhibit F COMMISSION’S PRELIMINARY POST-KIMBROUGH/GALL DATA REPORT


ii Defendant David Bershad’s Sentencing Memorandum

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TABLE OF AUTHORITIES

Cases Page(s)

Bershad v. McDonough, 428 F. 2d 693 (7th Cir. 1970) …………………………………….8

Gall v. United States, ____ U.S. ____, 128 S. Ct. 586 (2007)………………29, 30, 43, 44

In re Baldwin United Corp. Litig., 770 F2d 328 (2d Cir. 1985)……………………………..8

In re Lucent Tech. Sec. Litig., 327 F. Supp. 2d 426 (D.N.J. 2004)…………….……….7, 8

In re Rite Aid Corp. Sec. Litig., 269 F. Supp 2d 603 (E.D. Pa. 2003)………….………7, 8

In re Nortel Sec. Litig., No. 01-1855 (S.D.N.Y.)……………………………………………..8

Kimbrough v. United States, ____ U.S. ____, 128 S. Ct. 558 (2007)…………….…28, 30

Rita v. United States, ____ U.S. ____, 127 S. Ct. 2456 (2007)………………..…....28, 30

United States v. Awad, 371 F.3d 583 (9th Cir. 2004)………………..…….……………....32

United States v. Booker, 543 U.S. 220 (2005)…………………………….……..........28, 42

United States v. Canoy, 38 F.3d 893 (7th Cir. 1994)…………….……….………………..32

United States v. Carty, 520 F.3d 984 (9th Cir. 2008)………………..…………………29, 30

United States v. Green, 152 F.3d 1202 (9th Cir. 1998)…………………………………….36

United States v. Kinghts, 534 U.S. 112 (2001)………………………………….….………44

United States v. Laney, 189 F.3d 954 (9th Cir. 1999)………………………………..…….32

United States v. Ranum, 353 F. Supp. 2d 984 (E.D. Wis. 2005)……………………..….30

United States v. Ruff, 535 F.3d 999 (9th Cir. 2008)…………………………………..….…44

United States v. Thomas, 930 F.2d 526 (7th Cir. 1991)…………………………….……..32

United States v. Thompson, 315 F.3d 1071 (9th Cir. 2002)………………………..…35, 36

United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004)…………………………….…35

United States v. Vonner, 516 F.3d 382 (6th Cir. 2008)………………………………..…...29

United States v. Whitehead, 532 F.3d 991 (9th Cir. 2008)…………….…………………..29

United States v. Working, 287 F.3d 801(9th Cir. 2002)………………….…………..…….35


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Statutes Page(s)

18 U.S.C. 1343 ………………………………………………………………………………..41

18 U.S.C. § 1503……………………………………………………………………….1, 30, 41

18 U.S.C. § 1623 (a) ……………………………………………………………...1, 30, 41, 42

18 U.S.C. § 1962 (d) ………………………………………………………………………….41

18 U.S.C. § 3553 (a)……………………………………………………….....4, 29, 30, 31, 34

18 U.S.C. § 3553 (a) (2)………………………………………………………………………29

18 U.S.C. § 3553 (a) (2) (B) and (C) ………………………………………………………..38

18 U.S.C. § 3353 (a) (6)………………………………………………………………………40

26 U.S.C. § 7206 (1) ………………………………………………………………………….41

U.S.S.G. § 2J1.1 (a) …………………………………………………………………………..31

U.S.S.G. § 2J1.2 (b) (2) ………………………………………………………………………31

U.S.S.G. § 2J1.2 (b) (3) ………………………………………………………………………31

U.S.S.G. § 3B1.3 …………………………………………………………………….……..…31

U.S.S.G. § 3E1.1………………………………………………………………………………31

U.S.S.G. § 5C1.1 (c) (2)..……………………………………………………………………..34

U.S.S.G. § 5C1.1 (c) (3)………………………………………………………………………34

U.S.S.G. § 5K1.1……………………………………………………………………...28, 31, 42

U.S.S.G. § 5K1.1 (a) (1) ………………………………………………………………....31, 32

U.S.S.G. § 5K1.1 (a) (2) ……………………………………………………………........31, 32

U.S.S.G. § 5K1.1 (a) (3) ……………………………………………………………..............32

U.S.S.G. § 5K1.1 (a) (5) ……………………………………………………………………...32


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TABLE OF EXHIBITS

Abbey, Arthur N………………………………………………………………………………D-1

Abramowitz, Elkan………………………………………………………………………...…C-1

Barrack, Leonard…………………………………………………………………………….D-2

Baskin, Stuart J.………………………………………………………………………..…….D-3

Bellman, Allen……………………………………………………………………..………….E-1

Benerofe, Andrew R. ………………………………………………………………………..C-2

Benerofe, Froma B. …………………………………………………………………………C-3

Berger, Max W. ………………………………………………………………………………D-4

Bershad, Bradley J ………..…………………………………………………………………B-1

Bershad, David J. …………………………………………………………………………….A

Bershad, Inez….……….. ……………………………………………………………………B-2

Bershad, Jeffrey R. ……..……………………………………………………………………B-3

Bershad, Kathleen.…..………………………………………………………………………B-4

Bershad, Elizabeth J. (Liz) .….………………………………………………………..........B-5

Bershad, Susan V. ……….………………………………………………………………….B-6

Bershad, William……….. …………………………………………………………………...B-7

Block, Dennis J. ………..…………………………………………………………………….D-5

Bradley, Charles W. ………..………………………………………………………………..B-8

Bradley, Tara L. ………..…………………………………………………………………….B-9

Bressler, Arnold N. ………..…………………………………………………………………D-6

Cali, Rose………..……………………………………………………………………………E-2

Cavendish, Betsy………..…………………………………………………………………...E-3

Chimicles, Nicholas E. ………..…………………………………………………….………D-7

Cohen, Rabbi Daniel M. ………..…………………………………………………...………E-4

Cohn, Albert L. ………..……………………………………………………………………...C-4

Congress, Jerome M. ………..……………………………………………………………...C-5

Dimun, Tony………..………………………………………………………………………...D-8


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Dragon, Albert………..………………………………………………………………………C-6

DuBow, Carolyn………..…………………………………………………………………...B-10

DuBow, Eugene………..…………………………………………………………………...B-11

DuBow, Greg………..……………………………………………………………………….B-12

DuBow, Ken……….………………………………………………………………………...B-13

DuBow, Richard………..……………………………………………………………………B-14

Ehrenberg, Peter H. ………..………………………………………………….…………….D-9

Featherstone, Emer………..…………………………………………………….…………..E-5

Feinberg, Kenneth R. ………..…………………………………………………………….D-10

Fischbein, Peter D. ………..………………………………………….……………………..C-7

Fraker, Alan………..…………………………………………………………………………C-8

Friedman, Eugene S. ………..……………………………………………………….……..C-9

Friedman, Gabrielle S. ………..…………………………………………………………...C-10

Friedman, Jason………..…………………………………………………………………..C-11

Friedman, Karin………..……………………………………………………………………C-12

Froelich, Cezar M.………..…………………………………………………………………D-11

Gaffey, Robert W. .……....…….…………………………………………………………...D-12

Garber, John R. …………………………………………………………………………….C-13

Garber, Todd S. …………………………………………………………………………….C-14

Garfinkel, Barry H. ………………………………………………………………………….D-13

George, Richard (original sent directly to Court) ………………………………………..D-14

Gibson, Chris………………………………………………………………………………..D-15

Gilligan, Louis F. ……………………………………………………………………………D-16

Girard, Daniel C. ……………………………………………………………………………D-17

Glasser, Stephen A. …………………………………………………………………………E-6

Green, Eric D. ………………………………………………………………………………D-18

Greenberg, Marion………………………………………………………………………….C-15

Griffinger, Michael R. ………………………………………………………………………C-16


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Griffith, Vernesha…………………………………………………………………………...D-19

Harkins, Jr., John G. ……………………………………………………………………….D-20

Harwood, Robert I. ……………………………………………………………………..…..D-21

Hawkins, Alethia…………………………………………………………….………………..E-7

Heningburg, Jr., Michael & Jeanine B. Downie) ………..……..……..……..…………..C-17

Heyman, Kenneth R. ………………………………………………………………………...E-8

Hickey, Mary C. …………………………………………………………………………….C-18

Hirsch, Joyce A. …………………………………………………………………………….D-22

Horowitz, Kenneth A. ………………………………………………………………………D-23

Ilardi, James (Letter sent directly to Court)

Isquith, Fred Taylor……………………………………………………………………..…..D-24

Kane, Paul M. ……………………………………………………………………..…………E-9

Kanner, Allan……………………………………………………………………..…………D-25

Kaplan, Bruce S. ……………………………………………………………………………D-26

Kaplan, Mitchell H..………………………………….……………………………...….......D-27

Kathrein, Reed R. …………………………………………………………………………..D-28

Kessler, Jane Newman……………………………………………………………………..E-10

Korins, Roy M. ………………………………………………………………………….…..C-19

Labaton, Edward…………………………………………………………………………….E-11

LaBoy, Zulma………………………………………………………………………………..D-29

Lavelle, Paul………………………………………………………………………………...D-30

Lazarescu, Alan E. ………………………………………………………………………....D-31

Levine, Arleen W. …………………………………………………………………………..D-32

Levy, Robert S. ……………………………………………………………………………..C-20

Lewis, Philip………………………………………………………………………………....E-12

Lewis, Robert F. ………………………………………………………………………........D-33

Lieb, Richard………………………………………………………………………………...D-34

Littman, Harold……………………………………………………………………………...E-13


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Litwer, Bruce B. …………………………………………………………………………….C-21

Markel, Gregory A. …………………………………………………………………………D-35

Matschke, William T. …………………………………………………………………….…D-36

McGowan, Gary V. ………………………………………………………………………...D-37

Meola, Rocco J. …………………………………………………………………………….E-14

Miller, Marvin A. (original letter sent directly to Court) …………………………………D-38

Mitrovic, Michael……………………………………………………………………….……D-39

Morris, Stanley………………………………………………………………………….…...D-40

Nackwalter, Michael…………………………………………………………………….…..D-41

Nussbaum, Bernard W. …………………………………………………………………....D-42

Ogden, Alyssa…………………………………………………………………………….…B-15

Ogden, Andrew……………………………………………………………………………...B-16

Ogden, Linda…………………………………………………………………………….…..B-17

Ossip, Amy…………………………………………………………………………………..B-18

Pollack, Daniel A. ……………………………………………………………………….….D-43

Purcell, Francine………………………………………………………………………….…B-19

Quaini , Duane C. ……………………………………………………………………….….D-44

Raab, Jennifer J. …………………………………………………………………………...E-15

Rabin, I. Stephen…………………………………………………………………………...D-45

Rabinowitz, Richmond Morrow…………………………………………………………....E-16

Rosen, Samuel K. ……………………………………………………………………….…C-22

Rosner, Marian……….………………………………………………………………….….D-46

Rubin, Mark J. ……………………………………………………………………………...C-23

Rusignuolo, Joseph………………………………………………………………………...B-20

Rusignuolo, Judy…………………………………………………………………………....B-21

Rusignuolo, Nicole Marie……………………………………………………………….….B-22

Sagarin, J. Daniel ……………………………………………………………………….….D-47

Sagat, Kenneth A. ……………………………………………………………………….…D-48


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Salpeter, Alan N. …………………………………………………………………………...D-49

Schiffrin, Richard S. ………………………………………………………………….…….D-50

Schilit, Howard M. ………………………………………………………………………….D-51

Schoenfeld, Lester………………………………………………………………….………C-24

Shalov, Barry D. ……………………………………………………………………………C-25

Shalov, Lee S. ……………………………………………………………………………...C-26

Shelby, Adrian………………………………………………………………………….……E-17

Silver, Howard P. …………………………………………………………………………..C-27

Silver, Susan K. ……………………………………………………………………….……C-28

Simon, Leonard B. …………………………………………………………………………D-52

Slaughter, William A. ………………………………………………………………………D-53

Smith, Jeffrey G. ……………………………………………………………………….…..D-54

Solovy, Jerold S. …………………………………………………………………………...D-55

Squire, Jeffrey H. …………………………………………………………………………..D-56

Stoller, Barbara W. …………………………………………………………………………E-18

Strasser, Annie-Rose……………………………………………………………………....C-29

Subotnick, Stuart……………………………………………………………………….…...D-57

Taylor, Belinda……….……………………………………………………………………...D-58

Visco, Frances M. ……………………………………………………………………….….E-19

Wall, Terry D. ……………………………………………………………………………….E-20

Weidner, James B. ………………………………………………………………………...D-59

White, Elizabeth…………………………………………………………………………….D-60

Yodowitz, Edward J. ……………………………………………………………………….D-61

Zief, Donald B. ……………………………………………………………………………...E-21

Zinkin, Benjamin…………………………………………………………………………....D-62

Susan and David J. Bershad Foundation Summary……………………………………E-36

Letters from Cornell University Scholarship Recipients……………;………....E-22 to E-35

Commission’s Preliminary Post-Kimbrough/Gall Data Report ………………………...….F


1 Defendant David Bershad’s Sentencing Memorandum

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I. INTRODUCTION

David Bershad stands before the Court for sentencing after pleading guilty to a

single count of conspiracy to submit false declarations under oath and to obstruct justice

in violation of 18 U.S.C. §§ 1503 and 1623(a). We recognize the seriousness of this

offense and appreciate fully the Court’s views, expressed in the sentencing of other

individuals involved in this case, favoring sentences of incarceration to vindicate

society’s interests in deterrence and retribution. However, we ask the Court also to

focus on the total context of this case and to recognize the vitally important distinctions

among the individuals who have and will come before the Court for sentencing. David

Bershad stands uniquely apart from his co-defendants because of the unambiguous

moral clarity of his acceptance of personal responsibility, the exceptional importance of

his cooperation, and the ruinous price he is paying for his early and vital cooperation

with the government. Taking these considerations into account, together with the

exemplary life he has otherwise led and the positive contributions he has made to the

lives of so many others, a sentence of probation for Mr. Bershad would be fair, just, and

sufficient to accomplish the statutory purposes of sentencing.

The government’s sentencing memorandum describes the nature and extent of

Mr. Bershad’s cooperation with the government. It does not, however, capture fully the

courage Mr. Bershad showed in breaking ranks with the firm he helped to build and with

his colleagues of more than 30 years, and the devastating personal and financial losses

he has already endured for stepping forward.

In May of 2006, in an unavailing effort to spare the Milberg Firm from indictment,

Mr. Bershad took a leave of absence from the Firm and relinquished any role in its

affairs. Although that decision was soon followed by his own indictment and that of the

Firm, Mr. Bershad’s withdrawal provided him a distance and perspective from which he

was able to candidly re-examine his own conduct and that of his colleagues. He

recognized that while the case could be aggressively defended – and the Milberg Firm

committed to supporting him and his lawyers through that effort – he could no longer



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justify that path to himself or to his family. Following painful months of self-examination,

in the Spring of 2007, Mr. Bershad instructed his lawyers to advise the prosecutors that

he was prepared to change his plea and cooperate with the government. As the Court

is now well aware, others of the Milberg defendants, each of whom – thanks to Mr.

Bershad’s cooperation – has now pled guilty, waited to see how matters played out.

Every other defendant filed dispositive motions testing the government’s legal theories

and waited for this Court’s rulings before approaching the government. Mr. Bershad did

not. Two of Mr. Bershad’s former partners made sure that they first attained favorable

financial settlements from the Milberg Firm or its successors before stepping forward.

Mr. Bershad’s most senior former colleagues declined to cooperate with the government

and continued, even through sentencing, to minimize their own responsibility.

Alone among the defendants, Mr. Bershad recognized that, in order to be moral,

his acceptance of responsibility and his embrace of cooperation needed to be complete.

On July 9, 2007, Mr. Bershad became the first Milberg defendant to enter a guilty plea.

Both before and after his plea, Mr. Bershad actively assisted the government, sitting for

hours of debriefings, producing previously undisclosed personal documents, and

opening a door to the affairs of the Milberg Firm that, through eight years of

investigation, the government had been unable to unlock. Mr. Bershad’s cooperation

was quickly followed by charges against Mr. Weiss and Mr. Lerach, a superseding

indictment against the Milberg Firm, and, finally, by guilty pleas from every single

individual defendant and an admission of liability by the Milberg Firm. The singular

cooperation of Mr. Bershad brought this prosecution swiftly to a close without the need

for a trial.

Mr. Bershad has not deviated from the course he set. In his plea agreement,

supporting factual statement, and subsequent cooperation with the government, Mr.

Bershad unequivocally and unconditionally acknowledged the nature and scope of the

criminal conduct at his law firm, as well as his responsibility for his misconduct. In

contrast to others, Mr. Bershad has never parsed words or drawn strained distinctions



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between what he knew or should have known and when he knew it. As numerous

letters attest, in his private discussions with family and friends, Mr. Bershad has not

minimized or rationalized his involvement. For Mr. Bershad there has been and will be

no public posturing that is inconsistent with his position before the Court. In contrast to

others this Court has sentenced, Mr. Bershad’s private and public faces are one and the

same.

Mr. Bershad’s candor has cost him dearly and in ways that cannot readily be

measured and will not end with his sentencing. Most painfully, upon learning of Mr.

Bershad’s misconduct, his wife of 30 years chose to terminate their marriage. Their

divorce is an additional blow to his children and extended family. He has voluntarily

surrendered his license to practice law -- the second love of his life after his family --

and, after a lifetime of untiring devotion to his work, exposed himself to the

condemnation of his former colleagues. He faces, and for the next several years will be

forced to respond to, a barrage of lawsuits from the Milberg Firm, former partners, and

others. Although Mr. Bershad has shared his financial success freely with family and

worthy causes not has not led an extravagant life-style, he now faces the prospect of

financial ruin. Separate and apart from the sentence this Court imposes, no one could

look at Mr. Bershad’s current situation and conclude that his punishment is not already

profound; no one would view his path as one to be followed.

Moreover, Mr. Bershad is being forced to pay for his cooperation, as well as for

his crimes. Immediately after it became known that he was cooperating, the Milberg

Firm (still controlled by Mr. Weiss) repudiated its agreements with Mr. Bershad and

refused to continue paying his lawyers’ fees and other contractual obligations. Both Mr.

Weiss and Mr. Lerach attained generous financial settlements with their respective firms

in anticipation of their guilty pleas and before that news became public. Based upon

public accounts and court records, despite their guilty pleas and sentences, both

continue to receive generous payments from their former firms, with calculations based

upon their equity positions prior to resigning. Mr. Bershad, in contrast, has expressly



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disavowed any interest in the proceeds of the conduct to which he pled guilty. As the

government will confirm, he chose to defer addressing his other contractual rights

against the Milberg Firm out of concern that the initiation of a lawsuit or arbitration would

undermine the value of his potential testimony for the government. And, although he

has not sought a financial settlement from the Milberg Firm or taken steps to enforce his

rights, the Firm has recently commenced an arbitration seeking to hold Mr. Bershad

liable for the entire amount of the fine it paid the government and all of its legal fees –

an amount that it contends exceeds $140 million. The timing, the nature, and the

singular treatment of Mr. Bershad leaves no doubt that he is being asked to pay a price

that is solely attributable to his honorable decision to cooperate.

This memorandum seeks to provide the Court with a full measure of the man and

to outline those factors that set him apart from his former colleagues and co-defendants.

We ask the Court to consider all of the relevant factors under 18 U.S.C. § 3553(a) —

including Mr. Bershad’s full and truly exceptional acceptance of responsibility, his

unique assistance to the government’s investigation, his life-long record of honesty and

integrity, his lengthy history of good deeds and charitable contributions, and his age and

medical condition, together with the unique collateral consequences he has and will

suffer as a result of his misconduct and his voluntary cooperation — and to conclude

that any prison term is a punishment greater than necessary to accomplish the statutory

purposes of sentencing.

II. PERSONAL HISTORY

The Court has been presented with the pre-sentence report and biographical

statement of Mr. Bershad. Rather than repeat all of that information, we emphasize

several important points supported by the letters of colleagues, friends, and family. A

few key themes emerge: Mr. Bershad is a modest man who is known for his loyalty, his

word, and his readiness to bring people together. Those who might be expected to

speak ill of him – both his ex-wives and his former adversaries – nevertheless uniquely



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and uniformly attest to his fundamental decency. Apart from the aberrational conduct

that brings him before the Court today, his life has been exemplary.

A. Childhood and Education

Mr. Bershad was born in 1939 and grew up in the Crown Heights section of

Brooklyn, New York. He will be 69 years old next month. The Bershad family led a

modest, middle class life. Mr. Bershad’s father never finished high school because he

needed to work to support his family, but education was always a central family value.

Mr. Bershad’s mother was a school teacher. Consistent with the family’s values, Mr.

Bershad worked hard at Brooklyn Technical High School and was accepted to Cornell

University with a New York State Regents Scholarship.

At Cornell, Mr. Bershad majored in philosophy and worked as a journalist, but

ultimately decided to go to law school. In 1961, after graduating from Cornell, Mr.

Bershad attended Columbia Law School. He had found his life’s work and his

professional passion.

B. Military Service

During his college years, Mr. Bershad participated in ROTC and, upon

graduation, was commissioned as a Second Lieutenant in the U.S. Army. He deferred

active duty for law school. After graduating from Columbia, Mr. Bershad reported to

Fort Gordon, Georgia where he received training as a Military Police Officer. Later he

was assigned to the Armed Forces Police Detachment in the New York metropolitan

area. He served as the Adjutant of a multi-service unit of more than one hundred

military policemen and was eventually promoted to Captain. Toward the end of his tour

of duty, Mr. Bershad had the gut-wrenching responsibility of personally notifying parents

when their son was killed in Viet Nam. It was one of the most difficult things he ever

had to do. Mr. Bershad took steps to bring together neighbors, clergy, friends and

relatives to support the grieving family members. These experiences deeply moved him

and laid the foundation for a lifelong commitment to philanthropy and compassion for

people in need.



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Mr. Bershad served in the Army for two years and was honorably discharged.

C. Legal Career

After leaving the military, Mr. Bershad worked as an associate at a small firm in

New York City, and, in 1968, became the first associate of Melvyn Weiss and Lawrence

Milberg. These older and more experienced lawyers became his mentors. Shortly after

he started, and with guidance from Mr. Weiss and Mr. Milberg, Mr. Bershad successfully

litigated his first securities case, a stockholder suit in which his father was lead plaintiff.

The experience convinced Mr. Bershad that he wanted to vindicate shareholders’ rights,

launching his nearly 40-year career in securities litigation.

At the end of 1970, Mr. Bershad became a partner. The firm’s lawyers were

devoted to obtaining outstanding results for their clients and reinvested their modest

fees in the development of new cases. They borrowed when necessary to pay support

staff and case expenses. Soon, Mr. Bershad and his partners earned a well-deserved

reputation as serious litigators who went head to head with the giant Wall Street

defense firms. They worked extraordinarily hard and, over the years, successfully

litigated hundreds of significant class action law suits, yielding enormous benefits for

injured shareholders and companies and establishing numerous important precedents

in class action litigation.

Mr. Bershad’s skills as a litigator and a negotiator were instrumental in exposing

corporate malfeasance and obtaining redress for wronged shareholders and

consumers. During the firm’s biggest early success, the U.S. Financial case, Mr.

Bershad principally developed what became the firm’s template for settlements in

complex class action cases. Many of the concepts developed in those settlements

remain in use today. Mr. Bershad became an expert at negotiating and settling

seemingly intractable disputes, a role completely in keeping with his nature. Although

he never sought the limelight, choosing instead to work hard in his quiet way to achieve

outstanding results for his clients, his efforts earned considerable judicial praise. For

instance, in the Rite Aid litigation, an action that ultimately led to criminal convictions of



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Rite Aid’s former chief executive, operating, and financial officers and resulted in large

civil settlements with both the company and its auditors, the district court described Mr.

Bershad and his co-lead counsel as “extraordinarily deft and efficient in handling this

most complex matter.” In re Rite Aid Corp. Sec. Litig., 269 F. Supp. 2d 603, 611 (E.D.

Pa. 2003), aff’d, 396 F.3d 294 (3d Cir. 2005). Upholding and quoting the district court,

the Third Circuit wrote of class counsel: “[T]hey were at least eighteen months ahead of

the United States Department of Justice in ferreting out the conduct that ultimately

resulted in the write-down of over $1.6 billion in previously reported Rite Aid earnings.”

396 F.3d at 304 (quoting 269 F. Supp. 2d at 611). The district court complimented

“nimble” class counsel’s success in monetizing the entire settlement and gaining the

class more than $14 million in interest “when interest rates were the lowest they have

been in over forty years,” concluding that “it would be hard to equal the skill class

counsel demonstrated here.” Id. at 605 n.1, 611.

Mr. Bershad’s work was similarly lauded by the court in the Lucent securities

litigation: “[T]he Court does not exaggerate in stating that Common Shareholders Lead

Counsel was at the helm of the entire Global Settlement process. Their efforts resulted

in an extraordinary settlement with a unique structure that includes stock cash and

warrants.” In re Lucent Tech. Sec. Litig., 327 F. Supp. 2d 426, 436 (D.N.J. 2004). The

judge went on to specifically applaud the efforts of Mr. Bershad and his co-lead counsel

in ultimately fashioning a settlement proposal that “maximized the recovery for the class

and permitted Lucent to continue its operations and efforts toward regaining financial

progress.” Id. The court noted that Lead Counsel’s efforts were “laudable because they

achieved results without the aid of a governmental investigation,” id. at 436-37, and that

the “quality of their representation” was underscored by the fact that they “obtained a

favorable settlement from parties represented by awesome adversaries.” Id. at 437.

Richard Schiffrin, founding partner of Schiffrin Barroway Topaz & Kessler, who worked

as co-lead counsel in a related derivative action, writes in his letter that the judge later

told him that:



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he was astonished that David was able to fashion a settlement of that size considering the complexity of the case, the precarious state of defendant’s financial condition and the number of other related actions. He said it was among the finest legal work he had ever seen as a judge.

(Exhibit D-50.)1

In addition to actively litigating cases, Mr. Bershad worked to bring adverse

parties together, focusing on case organization, negotiations with other plaintiffs’ firms

at the start of new cases, and the negotiation of settlements at their end. He

established relationships with senior litigators at many of the major defense firms and

developed a well-deserved reputation for integrity, honesty, and trustworthiness. Other

attorneys accurately perceived Mr. Bershad as a calm, objective, and reasonable voice

in a field where threats and bluster were the customary style. Mr. Bershad was a

conciliator, and most importantly, his word was his bond.

Numerous letters of support from other attorneys, colleagues, and opponents

attest to Mr. Bershad’s integrity and commitment to his clients. (See Exhibit D) Many of

these lawyers, including longtime adversaries, have known and worked productively

with Mr. Bershad for more than 30 years.

1 Over the course of his legal career, Mr. Bershad was involved in well over 500 cases. His creative legal theories and strategies and his “legendary” negotiating skills (See Exhibits D-45, D-56) resulted in substantial financial recoveries for aggrieved plaintiffs in numerous complex cases, among them, the Rite Aid, Lucent, and Nortel securities litigations, the Nasdaq antitrust litigation, and the unwinding of the Boesky partnership (which resulted in the return to investors of “all, or nearly all, their investments,” see Exhibit D-26). In addition to large financial components, a number of the settlements Mr. Bershad negotiated included significant corporate governance reforms and enhancements. See, e.g., In re Nortel Sec. Litig., No. 01-1855 (S.D.N.Y.). Many of the cases he litigated also established important legal precedents in securities law, see, e.g., Bershad v. McDonough, 428 F.2d 693 (7th Cir. 1970), cert. denied, 400 U.S. 992 (1971) (holding that the option agreement at issue was in substance a sale of stock within the purview of section 16(b) of the 1934 Act), and in complex class action litigation, see, e.g., In re Baldwin United Corp. Litig., 770 F.2d 328 (2d Cir. 1985) (in a decision cited more than 200 times by various district and circuit courts, the Second Circuit upheld the district court’s authority under the All-Writs Act to enjoin states from initiating actions against defendants in complex multidistrict federal litigation where settlement negotiations are ongoing).



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Dennis Block, a partner of Cadwalader Wickersham & Taft, LLP, for example,

who has “sat on the other side of the table” from Mr. Bershad in many securities class

actions over the last 25 years, describes him as “a committed advocate on behalf of his

clients,” and while “a very effective and formidable opponent in litigation,” “a man of his

word” with a “straightforward approach in representing his clients” and “resolving

matters in a reasonable and non-contentious manner in the interests of all the parties.”

(Exhibit D-5.) Similarly, John G. Harkins, of Harkins Cunningham LLC, another

adversary, writes: Over the almost 50 years in which I have been in practice, I have encountered many lawyers. Mr. Bershad is one who, while he fought zealously on behalf of his clients, could always be trusted to keep his word, would never seek to take an unfair advantage of his opponent and behaved in a principled manner in the course of difficult and hard fought litigation. His word was always his bond and his manner was always completely professional.

(Exhibit D-20.) Robert Gaffey likewise writes that “David had the qualities one hopes to

find in an adversary.” Describing his experience working against Mr. Bershad in a

securities fraud class action that “settled with the payment of a significant sum to the

plaintiffs, Mr. Gaffey writes:

When David gave his word, he kept it. When he made a commitment, he came through on it. When David could not agree with me, he said so clearly. When it was in the interests of his clients, he explored alternatives in frank negotiations. When it was not in his clients’ interests to negotiate, he proved to be a very worthy adversary, indeed. At all times, he took honest positions on the law and facts, staked out honest positions in settlement negotiation, and at every step acted with the dignity of a confident professional.

(Exhibit D-12.)

Many plaintiffs’ securities class action lawyers with whom Mr. Bershad worked,

and often competed, similarly extol his formidable litigating and negotiating skills, his

dedication to clients, and his integrity. Max Berger, the senior partner of Bernstein

Litowitz Berger & Grossmann LLP, for instance, writes that he worked with Mr. Bershad

for 30 years on scores of cases and that he “always found David to be scrupulously



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honest and to be a person of real integrity and outstanding character. He is a problem

solver and lawyers and judges, in my observation, have always accorded him great

respect.” He goes on to say that Mr. Bershad “at all times, considered his fiduciary

responsibility to the classes he was representing above his own personal interests and

he fought zealously for the remedies he believed they were entitled to.” (Exhibit D-4.)

Richard Schiffrin similarly describes David Bershad as the “consummate professional”

whose “singular focus, in every case [they] worked on together, was creating the

greatest benefit for the class, and doing so in the most professional manner.” (Exhibit

D-50.)

Marian Rosner, a senior partner of Wolf Popper LLP, who has known Mr.

Bershad for more than 30 years and served with him as a co-lead counsel in many

complex securities class actions, likewise states that in every case she worked on with

him, “he always put the interests of the class first in maximizing the recovery for the

class. All avenues of recovery were explored before we agreed to a settlement.”

(Exhibit D-46.) She adds: “While Mr. Bershad has clearly made a mistake, he has spent

most of his life doing good for others. In all my dealings with him he was creative, fair,

honest and ethical.” (Id.) Nicholas Chimicles, name partner of Chimicles & Tikellis LLP,

who worked with Mr. Bershad for 27 years, echoes these observations:

I am confident that Your Honor already has heard and ascertained from many sources that Mr. Bershad is an outstanding lawyer, that he has a superior intellect and that he is an extraordinary skilled oral and written advocate. In my experience, however, the attribute that most characterized Mr. Bershad in his law practice was his sound judgment. [¶] [H]e litigated well within ethical boundaries and did not cut corners. Moreover, at all times in which we co-counseled on a case, I perceived that Mr. Bershad was acting solely in the interest of the Class we were representing.

(Exhibit D-7.)



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Kenneth R. Feinberg, a noted expert in mediation and alternative dispute

resolution, writes that he has known Mr. Bershad for over 20 years and that the

settlement achieved in a case in which he acted as the agreed-upon mediator and Mr.

Bershad represented the class “was a tribute to David’s skill and tenacity in advancing

both legal and equitable arguments on behalf of his clients”: Never once did David act at odds to the interests of his clients; to the contrary, he placed the interests of the plaintiff class first and foremost before the mediator, and made it clear that this was his only priority. It was because of David, that the class settlement provided such financial benefits to his clients.

(Exhibit D-10.) Similarly, Eric Green, another mediator who has also known Mr.

Bershad for nearly twenty years, observes: In these mediated negotiations, Mr. Bershad skillfully represented mostly small investors in an extremely diligent, professional, and honorable manner. Unlike other counsel at times, Mr. Bershad could always be counted on for his strict adherence to the facts, accuracy in his statement of the governing law, and faithfulness in his negotiation representations. He was always a firm and energetic advocate for his clients and never put his interests as counsel ahead of those of his clients or the class that he represented.

(Exhibit D-18.)

The letters also reflect the extent to which Mr. Bershad’s former partners and

associates respected and emulated his legal and negotiating skills and zealous

advocacy on behalf of clients. Arnold N. Bressler, who was Mr. Bershad’s partner for

some 23 years, writes: Dave is a brilliant legal tactician, renowned for his negotiating skill. However, it was never a game with him. He was always keenly aware that the classes the Firm represented consisted of real people who had lost hard earned money. His focus was always on getting the best possible result for the clients.

(Exhibit D-6.) Leonard Simon, another former partner, who worked closely with Mr.

Bershad for nearly 20 years, describes him as “a fine lawyer, and a mentor to me and

many others in this firm. I would like to think that we represented our clients quite well,



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and opened new opportunities for shareholders and consumers to recover their losses.”

(Exhibit D-52.)

For the last 40 years, Mr. Bershad has wholeheartedly devoted himself to the

practice of law, starting early each day and finishing late, sometimes working through

the night. He litigated cases and supervised numerous partners and associates,

providing tactical and strategic advice in hundreds of cases. He devoured legal journals

and networked with other firms to stay abreast of significant new issues relating to class

certification, discovery, standards of pleadings and the reach of securities and anti-trust

laws. He also wrote course materials and actively participated as a speaker and

panelist at numerous seminars for the legal profession, addressing current

developments in the federal securities laws, class action jurisprudence, and the

evaluation of complex litigation.2 Edward Yodowitz of Skadden, Arps, Slate, Meagher &

Flom LLP, who co-chaired the Practicing Law Institute’s Annual program on Securities

Litigation from 1984-1995, writes that he considered Mr. Bershad “to be a top ‘draft

choice’ for his panels in New York” and that Mr. Bershad “provided many insights that

promoted a better understanding of the litigation process between plaintiffs and defense

counsel which in my mind undoubtedly improved the efficiency of complex class action

litigation.” (Exhibit D-61.)

In addition to actual litigation, Mr. Bershad supervised the day-to-day operations

of the Milberg Firm. For years he was the Firm’s primary administrator, and sought to

ensure fairness and respect for employees. He was an excellent facilitator who worked

to reconcile disputes among the Firm’s powerful personalities. He frequently served as

peacemaker, trying to keep focus on the development of the Firm and its cases in the

face of the more flamboyant and volatile figures that dominated the firm’s management.

Leonard Simon describes him “as a very positive force within the firm. . . . [H]e was

always a voice for finding compromises and for treating everyone with dignity. . . . When 2 These programs were sponsored by the Practicing Law Institute, The American Law Institute, Glasser Legalworks, The Professional Liability Underwriters Society, The American International Group Producers Seminar, and others.



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others got wrapped up in their own self-interest, he was a voice of reason on firm

management.” (Exhibit D-52.) Similarly, Arnold Bressler, who was a partner at Milberg

for 23 years, writes that “[i]n dealing with partners, associates and other employees

Dave steered the firm in the most benevolent human fashion possible,” and “created a

caring corporate culture.” (Exhibit D-6.) Joyce Hirsch, the outside banker assigned to

work with the Milberg firm, states: “David’s leadership within the firm, the respect with

which he treats people, and his own warmth set the standard for others at the firm . . . .”

(Exhibit D-22.)

Mr. Bershad’s fundamental decency also emerges clearly from the comments of

those who worked for him. William Matschke, who worked as the firm’s Chief Financial

Officer for sixteen years, states that David “consistently show[ed] his appreciation to the

staff, no matter what position they held. He treated them like family and let them know

whenever he had the chance that they were important to the overall success of the

firm.” (Exhibit D-36.) Indeed, Vernesha Griffith, a receptionist at Milberg for fifteen

years, describes how “Mr. Bershad, in spite of his busy schedule took the time and

show[ed] me nothing but compassion and support. I felt like he was giving me the same

understanding he would give his own children.” (Exhibit D-19.) Zulma Laboy, who has

worked at the firm for nearly thirty years, writes that Mr. Bershad always treated her

“royally,” never made her feel inferior, and always made her feel comfortable, “even

when he was extremely busy.” (Exhibit D-29.) She recounts the time when her cousin,

also a firm employee, suffered a massive heart attack, and Mr. Bershad took her to the

hospital and waited there with her. (Id.) Belinda Taylor and Elizabeth White, also long-

time firm staff members, write about how Mr. Bershad served as a mentor for them and

always treated them with respect and kindness. (Exhibits D-58 and D-60.) Finally, in a

very personal and impassioned plea, Arleen Levine, Mr. Bershad’s secretary for more

than 28 years, provides concrete examples of the many acts of kindness and

compassion Mr. Bershad bestowed upon her and so many other Milberg employees.

She writes:



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Yes, I was his employee, yes he asked lots of me and needed lots done during hectic, busy days but, when it mattered most[,] I was a human being in need of some special attention and me not expecting anything received the true respect of a real, genuine person. He was and is a true believer in helping other people.

(Exhibit D-32.)

The practice of law was David Bershad’s greatest passion for more than four

decades. He was a zealous advocate, dedicated, as he puts it, to “fighting for the little

guy” and “achieving success on behalf of small shareholders, who were the underdogs.”

(Exhibit A.) He voluntarily resigned from the bar after entry of his guilty plea. Although

most of the litigation he and his firm undertook was untainted by misconduct, Mr.

Bershad’s significant accomplishments have been irreparably diminished by his

admission of wrongdoing. As he writes in his own letter to the Court, “I now recognize

that our behavior grievously injured the judicial process and the law practice that I

helped build and so dearly loved. I will live out my days with the painful knowledge that

our acts tarnished all of the good work we did.” (Id.)

D. Family

In 1965, while still on active duty in the Army, Mr. Bershad married Inez, his

college sweetheart. They had two children. Their older son, Jeffrey, who was born in

1968, attended Cornell University, and lives in Armonk, New York with his wife,

Kathleen, and year-old daughter. Their second child is expected in a few months.

William, born in 1970, also graduated from Cornell and now lives in New York City with

his wife, Bleema, and two young sons. Although Mr. Bershad’s “devotion to [his firm]

and its mission” took a toll on his first marriage and he and Inez separated and

eventually were divorced, Mr. Bershad remained a dedicated and attentive father to his

two sons. (Exhibit B-2) Characteristically, Mr. Bershad recognized that the welfare of

his sons depended, in large measure, on preserving a loving and supportive family. For

their sakes, and as a measure of his decency, he nurtured a close relationship with his

ex-wife. As Inez writes in her letter to the Court:



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We have . . . jointly raised two sons any parent would be proud of. People have always marveled at the civility of our relationship. We share family events and have maintained good relations with each other and our families and friends all these years.

(Id.) Jeffrey similarly recalls:

Although divorced from my mother while I was young, [my father] spent almost every weekend with my brother and me, picking us up Saturday mornings and dropping us off at Hebrew School Sundays. We played board games together. He taught us how to play backgammon. He strengthened our family by integrating my mother into family events, Thanksgiving meals, Jewish holidays, reunions and birthdays.

(Exhibit B-3.)

Mr. Bershad remarried in 1978. He and his wife Susan lived in New York City

while she attended medical school. After she completed her residency, they moved to

New Jersey to be closer to Mr. Bershad’s sons. David and Susan Bershad have two

children: Bradley, 25-years-old, who graduated from Cornell and now lives in Los

Angeles, and Elizabeth, 19-years-old, who is a sophomore at Yale University.

The letters submitted by Mr. Bershad’s children are a testament to his devotion to

them; their love and respect for him and his for them; the values of “charity,”

“temperance,” “respect,” “responsibility,” “family,” “kindness,” “honesty,” “persistence,”

and “knowledge” that he instilled in them; and the confusion and pain that his

misconduct and conviction have caused. (Exhibits B-1, B-3, B-5 and B-7.) They recall

with fondness their father’s attendance at their soccer and hockey games; the bedtime

stories he read to them; the Monopoly, backgammon, and Pretty Pretty Princess games

he played with them; the “role model” he has been for them; and as they grew older, the

problems he has helped them solve, the decisions he has helped them make, and the

sage advice he has given them. (Id.)

Mr. Bershad’s essential kindness, humility, and family values are documented

not only in the letters from his four children, but by an anecdote recounted by his

daughter-in-law, Kathleen. She describes how Mr. Bershad dropped by one day when

he was in the area for a meeting, and “resplendent in his suit and tie,” “knelt down on all



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fours so that he could say hello to his 4-month-old granddaughter at her level.” (Exhibit

B-4.) Similarly, Annie-Rose Strasser, one of Elizabeth Bershad’s friends, for whom Mr.

Bershad has been “a second father,” writes that Mr. Bershad’s kindness is “in the small

things he does”: I know that he has a reputation of being a tough lawyer, but that is so hard for me to imagine. In my mind, he is a big, fairly quiet, smiling teddy bear who bought me my first Beanie Baby . . . laughed when I pretended to be Baby Spice . . ., who picked me up or dropped me off more times than I can count, and who, like me, really loves Chinese food. No matter what articles or court briefings have to say about him, I know in my heart that he is a good, wonderful man – generous, caring, loving, stoic, and kind.

(Exhibit C-29.)

Mr. Bershad’s devotion to family is reflected not only in his commitment to his

children, but in his relationships with his parents, in-laws, and extended family

members. Carolyn DuBow, Mr. Bershad’s sister writes:

[David] is a very caring, loving, loyal person and has been a great support to the whole family. When my father died . . . [we] moved [my mother] close to my brother and his family. He took wonderful care of her and always visited with his children giving my mother much joy. He also took full responsibility for all her financial and medical needs. His love and caring helped make her final years as happy as possible.

(Exhibit B-10.) Mr. Bershad’s generosity extends to his in-laws as well. Linda Ogden,

Susan Bershad’s sister, describes Mr. Bershad as “a treasured son-in-law,” who has

given her parents “lots of kindness and attention, taking them to restaurants and on

vacations,” “helping them with many household needs,” and as they age and become

more infirm, being “very involved in planning for their care.” (Exhibit B-17.)

Mr. Bershad always placed enormous value on family and education, and with

the passing of his parents, his devotion to these values became a mission. Concerned

that his and Susan’s extended family would drift apart, Mr. Bershad has forged and

fostered close bonds among aunts, uncles, cousins, children, and grandchildren by, for

example, organizing and paying for family reunions. His nephew Ken DuBow describes

him as “the glue within the Bershad side of the family. From the time when I was as



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small as I can remember to just this past week when he came to Los Angeles, Uncle

David has always been about family.” (Exhibit B-13.) Richard DuBow, another nephew,

similarly writes:

Family has always been tremendously important to David. We are spread across the country from California to New York and Atlanta, yet over the last twenty-five years he has time and again brought our extended family together at his expense. On memorable trips to Disney World, Arizona and the Bahamas, my children have been able to get to know and forge bonds with their cousins, aunts, uncles and grandparents in ways that otherwise would not be possible.

(Exhibit B-14.)

Members of Susan Bershad’s extended family likewise write of David’s

kindheartedness and commitment to family. His sister-in-law, Judy Rusignuolo, writes: From the first day David came into our family, he has held a strong place as a loving member of the family, has always been there to help anyone in need, to provide counsel during difficult times, and encourage all of our children in matters of family values, education and careers.

(Exhibit B-21.) Ms. Rusignuolo goes on to poignantly describe the support Mr. Bershad

offered when she lost her seven-year-old daughter; how he “compassionately worked”

to arrange for organ transplant, a miracle that helped other children to live; and how the

Bershads mark “every year with remembrances that keep [her] daughter’s spirit alive.”

(Id.)

Mr. Bershad has also shared his financial success in a manner that reflects his

love of family and devotion to education. He and Susan Bershad established a family

education fund to pay for the college tuition, room, board, and books of the entire next

generation – children, nieces, nephews, grandchildren, grandnephews, and

grandnieces. Through these funds, Mr. Bershad has already paid for college for four

children and graduate school for Susan’s niece, Nicole; and five nieces and nephews

are currently attending college. In their letters to the Court, Mr. Bershad’s nieces and

nephews express their enormous gratitude for his generosity. Ken DuBow, for example,

writes:



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[David’s] belief in higher education and the danger of its ever rising costs spurred him to create a fund to pay for college and graduate school educations for all his nephews and nieces. For my wife and me, with three kids, it has made an enormous difference in what we are able to offer our children for their futures. Our gratitude towards David for this gift is boundless and is another example of a man who has led a life of caring for those around him.

(Exhibit B-13.) Nicole Rusignuolo writes of the “unbelievable opportunities” that the

family education fund afforded her at a time when she faced difficult circumstances:

I had my first child when I was 21 years old. I wasn’t married and I was working part time. I was living with my mother. At that time I couldn’t afford to take care of myself, let alone an infant. David’s family education fund allowed me to pursue a bachelors’ degree in nursing from Seton Hall University. Without David’s help I would literally be on welfare without an education raising my child. Today I am married with an advanced degree and have a family and house.

(Exhibit B-22.) Alyssa Ogden, another niece, writes of the special memories she has of

her Uncle David helping her survive her first roller coaster ride, and expresses how

grateful she is for her uncle’s encouragement and the funds he provided so that she

could go to college and become a second grade teacher. (Exhibit B-15.) Her brother,

currently a senior at the University of Pennsylvania, describes his uncle as a “great

guy,” speaks fondly of his corny jokes and their trips to the movies and the shore, and

expresses his gratitude for the education that the family education fund has provided.

(Exhibit B-16.) Several more children, not yet of college age, will enjoy this same

support.

The letters submitted by Mr. Bershad’s children chronicle his extraordinary

kindness and devotion to family; they also reflect the terrible confusion, sadness, and

pain his present guilty plea has caused. Elizabeth Bershad, in particular, the youngest

of the children and the only one living at home when her father’s guilty plea was

reported in the media, has had an enormously difficult time trying to square the father

she looked up to and adored with the conduct for which he is about to be sentenced:



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[T]he past year has been difficult, to say the least. I found out about [my father’s] guilt the week before my high school graduation. His actions seemed entirely incongruous with the character of the man I knew. To this day, I am extraordinarily disappointed in my father. My feelings are slighted mitigated by his recent honesty and remorse, but every day I still feel intense sadness and confusion about the man I thought could do no wrong. He is changed; his pride has been diminished and his composure has been broken. Every success that my dad achieved, everything I was proud of, has now been tarnished by this situation. . . .

(Exhibit B-5.) William Bershad similarly writes:

It has been painful to watch as my father’s legacy has been tarnished. Since I was just a little kid I can remember hearing his work stories. He was always proud of the pioneering work he was doing. He was also extremely proud of helping to build a firm which provided a livelihood to hundreds of people. When he would tell a story about a negotiation, what always stood out to me was the importance of dealing honorably and earning and keeping the trust of all parties. [¶] I am mystified by what father did to end up before you. The effects of his actions will follow him for the rest of his life.

(Exhibit B-7.)

Mr. Bershad had hoped that his 30-year marriage would survive the strain of this

case and the frank and full disclosure of his misconduct. Sadly, however, after Mr.

Bershad disclosed his misconduct to his wife for the first time, she concluded that their

marriage was over. Though disappointed and angry, Susan Bershad continues to

support Mr. Bershad before this Court. She describes him as “the kindest, most

generous person” she has ever known. Material wealth for him was a means to help others, not to support his own lifestyle. . . . David didn’t focus on the trappings of success that were important to other people. . . . David was always working, or tending to the four children, and never did much for himself.

(Exhibit B-6.) Struggling with the disparity between Mr. Bershad’s conduct and the

devotion he showed to his family and friends, Susan Bershad says: “The actions of



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David and some of his law partners have turned our family’s world upside down. But

nothing can take away the love and respect that David earned over many years.” (Id.)

E. Commitment to Friends, Community and Philanthropy

Mr. Bershad’s commitment and generosity extend beyond his family to friends

and acquaintances and to the community at large. The letters describe David Bershad

as a good friend who provides helpful advice and solace in times of need. (See e.g., C-

4 to C-12, C-20, C-22, and C-27.) When Eugene Friedman, one of Mr. Bershad’s law

school roommates and closest friends, suffered a serious heart attack several years

ago, Mr. Bershad provided enormous support to him and his family: “He was the first to

see me in the ICU and assure me that it was my job to recover fully and his to be

available for my wife and family in whatever way necessary.” (Exhibit C-9.) The letters

are also replete with instances in which Mr. Bershad took the time to meet with a

friend’s son or daughter to provide school or career advice (see, e.g., Exhibits C-11, C-

13, C14. C-25, C-26); to provide a friend with “invaluable business advice and legal

perspective” or take on additional carpooling responsibility (Exhibit C-18); to intercede in

a dispute on behalf of a friend and negotiate a resolution (Exhibit D-45); to provide

“honest and forthright” advice to a friend facing a problem with a child (Exhibit C-23); or

to be the “’go to’” friend for someone dealing with the problems of an aging parent

(Exhibit C-27).

Mr. Bershad is also extraordinarily philanthropic, a man who is predisposed to

say “yes” to every worthy cause. Indeed, throughout his adult life, Mr. Bershad has

contributed substantial time and financial resources to numerous community and

charitable organizations, serving as a role model for his children, nieces, nephews, and

friends. Consistent with his decency and humility, these acts of generosity have often

been anonymous. His “giving is without ego” (Exhibit E-16), not for personal honor, but

rather, as his nephew Greg DuBow (who is in graduate school studying to become a

Unitarian minister) explains, because he views it as his obligation to give back to the

world.



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To distill what I have learned from David throughout all these years is a simple task. He has shown me that to those that are given much in life, the debt they owe to the world is equally great. He could have been content in his privilege, but he chose to look beyond his own comfort. People with power are precisely the people that have the ability to effect change in the world, but it is those with compassion that do so in a way that benefits others. Through watching him I have come to understand this and am better for it. I wonder how many people have gleaned this truth from sharing his company, because it certainly impacted me as a younger man and still does today.

(Exhibit B-12.) By dint of his consistent example, Mr. Bershad has instilled these same

values in his children. As his daughter writes: I often hope that one day, I can be as charitable and informed as my father. I’m trying to reach those goals by studying hard, spending my summers as a counselor at a character-building camp for girls, seeing the world in perspective, and staying involved in school. At school, I am in a microcredit group that gives loans in New Haven, I coordinate volunteers for a soup kitchen, sell food and clothing vouchers to students for beggars, lead a club that educates students about developing nations, and participate in a think-tank committee on the developing world. Without the example my dad gave me, I would never have the drive to be active in my community and as a world citizen.

(Exhibit B-5.)

Bruce Litwer, an attorney who met Mr. Bershad as a first-year law student and

who has remained close friends with him for 47 years, writes that he has always known

David “to be scrupulously honest, a man of integrity, meticulous in his dealings with

others, evidencing great concern and compassion for the less fortunate. He is

extraordinarily philanthropic” and “has continuously contributed to various charitable

institutions of a civic and religious nature.” (Exhibit C-21.) Like so many others, Mr.

Litwer points out that Mr. Bershad “gives with an open heart because he recognizes the

need, appreciates the fact that he has been blessed with financial resources and seeks

neither acclaim nor recognition.” (Id.)

In 1998, Mr. Bershad and his wife established a charitable foundation that has

already contributed more than $3 million to many charitable organizations and is



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endowed to maintain the same level of giving for the indefinite future. As shown in the

attached summary, the Foundation has made substantial contributions to a broad range

of educational, artistic, humanitarian, and health-related institutions, and religious and

other causes. (Exhibit E-36.)

The value Mr. Bershad has always placed on education and his firm belief in

giving back to society are reflected in the scholarships he endows and the many

community programs he supports. Jennifer Raab, the President of Hunter College of

the City University of New York, the public university that Susan Bershad attended,

writes that Mr. Bershad was one of the first to participate in Hunter’s Mother’s Day

scholarship, providing support and mentorship to students who would otherwise be

unable to attend college. (Exhibit E-15.) The Bershads have also endowed a

professorship in Hunter’s department of art history with a grant of over $1 million,

enabling the school to recruit Professor Joachim Pissarro, Ph.D., from his curatorial

position at the Museum of Modern Art and breathing new life into the Hunter art

department. (Id.) Mr. Bershad has also endowed a scholarship fund at Cornell

University, which, as set forth in letters from grateful scholarship recipients (Exhibits E-

22 to E-35), has allowed many needy students to obtain a first-class Ivy League

education and the promise of a brighter future. One student writes:

I don’t come from a formal top notch school or a family of scholars and I have been told by many of [my] peers, that people in my situation were not capable of functioning in such an advanced environment and that even if I could manage, the opportunity would still remain financially out of my reach. However, your contribution has changed that for me. You have given me the chance to go above and beyond what everyone expected. With your help I have been able to escape the stereotypes and you have giv[en] me the chance to obtain a life with meaning. The city streets have swallowed and condemned people wiser and stronger than me, yet here I am a Cornell University undergraduate student. For what you have given me, I know not what to offer in return. But I will offer you my sincerest appreciation and life long gratitude.

(Exhibit E-22.)



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Mr. Bershad has also contributed to scholarship funds and other programs at the

Montclair Kimberley Academy, the K-12 school that his son and daughter attended,

including specific funding for programs to computerize the school, construct a new

music and arts wing, and enhance faculty compensation. He has also been a generous

supporter of Columbia Law School, and has played leadership roles in his class

reunions.

Mr. Bershad’s commitment to making sure that needy children receive the

educations they deserve goes beyond the formal charitable contributions he has made

to his and his family’s alma maters. As reflected in the letter from Alethia Hawkins, a

clerk at Mt. Sinai Hospital who works with Dr. Susan Bershad, Mr. Bershad’s kindness

and generous financial support have made it possible for her to pay for her

grandchildren’s school expenses. (Exhibit E-7.) Ms. Hawkins writes that Mr. Bershad

“has also been instrumental in giving [her] advice, and guiding [her] efforts in a positive

direction regarding many aspects of [her] life”: he has helped her budget, save, and

prepare for the future, and encouraged her “to be more involved in [her] ethnicity, and

situations in [her] community.” She describes Mr. Bershad as “a man of high standards,

and integrity” who “willfully reaches out to others to be more conscientious, and aware

of the world and current state of affairs.” (Id.)

Mr. Bershad’s contributions to Montclair Township, a socio-economically diverse

community, also exemplify his “tireless and genuine” efforts to “support numerous

causes, especially those involving youth and the underserved.” (Exhibit E-2.) Donald

Zief, who served as a town councilmember from 1992 through 2004, describes Mr.

Bershad’s “behind the scenes” generosity to the Montclair Community Pre-K, a public-

private partnership that provides early childhood education for 4-year old children; the

Montclair Art Museum, a town institution devoted to the education of school children;

and the town’s public library. (Exhibit E-21.) Rose Cali, a friend and neighbor who has

known David Bershad for 25 years, writes about the Bershads’ efforts to initiate a

children’s museum project in Montclair, describing them as the “driving force that



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stimulated the dialogue” on addressing the “the needs of Montclair’s youngest residents

and their families” and recounting that they have “remained engaged in that continuing

dialogue” “as to the importance of educational experiences and equal access by

providing a variety of venues and tools for all children.” (Exhibit E-2.) She goes on to

describe Mr. Bershad’s support of the Montclair Public Library’s capital campaign, and

how his generous donation enabled the library to build a public café where the

community could gather. The café does not bear the Bershad name, but is dedicated

instead to the memory of the Bershads’ niece Isabel Rose. (Id.; see also Exhibit E-10.)

In addition, as set forth in the letter from Rocco Meola, President and CEO of the First

Occupational Center of New Jersey, Inc., a not-for-profit vocational training and job

placement agency that provides services to hundreds of developmentally disabled,

elderly, and economically disadvantaged people, Mr. Bershad was instrumental in

helping the Center negotiate a settlement of a major lawsuit that had threatened the

viability of the Center. (Exhibit E-14.)

Mr. Bershad has also been an active leader of Temple Sharey Tefilo-Israel, his

family synagogue for more than 30 years. He has served for more than a decade on

the Temple’s Board of Trustees and during that time created a special fund supported

by his own $1 million pledge for projects that would strengthen his religious and secular

community. As Dr. Harold Littman, an 85-year-old, long-time member of the Temple,

explains:

David is a highly respected member of the congregation who has given generously of his time and money to support in good part, youth programs. What is not known by most members is that his philanthropy is anonymous. His gifts have been given without strings. There are no buildings named for him, no schools, and no plaques.

(Exhibit E-13, emphasis added.) Barbara Stoller, a former attorney at Skadden Arps

and President of Temple Sharey Tefilo-Israel, writes that she knows David Bershad as

a “’mensch,’ a man of faith, honor, and good deeds” whose anonymous “financial

support has subsidized Temple dues for families in need of financial assistance,



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enabling the Temple to welcome members, regardless of their financial status.” (Exhibit

E-18.)

Mr. Bershad’s other civic and philanthropic contributions include support for

“America’s Camp,” a camp experience in the Berkshire Mountains offered without

charge to children who lost a parent or sibling in the attacks of September 11, 2001, and

for children and siblings of firefighters and law enforcement officers lost in the line of

duty. America’s Camp has provided more than 1,000 summer experiences for

bereaved children. (See Exhibits C-19 and C-24.) Mr. Bershad has also devoted time

and energy for many years as a member of the Board of a public interest organization

that seeks to expand access to opportunity, justice, and education by bringing together

volunteers from the legal, business, and academic professions to create structural

solutions to problems. In addition, as set forth in the letter from Mary Hickey, a close

family friend whose daughter attended a “no frills” character-building summer camp with

Elizabeth Bershad, Mr. Bershad anonymously “paved the way for . . . badly needed

improvements” to the camp after the girls had moved on. (Exhibit C-18.) She writes

that she also heard that when one of the girls’ former counselors entered the convent

and went to work at an orphanage in Bolivia, Mr. Bershad “had been extremely

generous to the nuns and their mission.” (Id.)

Mr. Bershad has also been a generous supporter of health-related organizations.

Frances Visco, the President of the National Breast Cancer Coalition, writes of Mr.

Bershad’s exceptional generosity, emphasizing that “he is quite unassuming and does

not demand attention or anything at all in return for his philanthropy.”

He has told me on many occasions that he believes in the substantive work that we do and he values our leadership in the world of breast cancer and women’s health. That is all he has ever wanted from us: that we continue to do the work we do.

(Exhibit E-19.)

At the Milberg Firm, Mr. Bershad participated in significant philanthropic work,

including service on the Executive Committee, which directed funding for many



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charitable and public interest initiatives; spearheading the Firm’s support for the Ovarian

Cancer Research Fund; and actively supporting the Firm’s public interest commitments,

including the claims filed on behalf of Holocaust victims. Ed Labaton of Labaton

Sucharow, another firm that specializes in plaintiffs securities class action and derivative

litigation, not only writes about how effective Mr. Bershad was in achieving the

“maximum benefits” for the classes they jointly represented, but the significant role that

Mr. Bershad played in the creation and development of the Ovarian Cancer Research

Fund and the personal contributions Mr. Bershad made: Mr. Bershad personally made a significant contribution when the Fund was formed and has continued to make substantial annual contributions. That Fund now provides more money for research into treatment and early diagnosis of ovarian cancer than any other non-governmental fund in the United States.

(Exhibit E-11.)

Even while dealing with the uncertainty, anxiety, and enormous personal strife of

the past year, David Bershad has affirmatively sought to give back to the community

and make a difference in the lives of others. In anticipation of his indictment, and to

avoid adverse publicity from a philanthropic organization he served, Mr. Bershad

resigned from its Board. (Exhibit E-3.) At the same time, working with the

organization’s staff during the last year, he has requested proposals for projects in the

education area, reviewed the proposals that were submitted, and on an anonymous

basis, funded three programs supporting education opportunities for the disadvantaged.

In addition, Michael R. Griffinger, Director of Gibbons P.C. and one of Mr. Bershad’s law

school classmates, describes in his letter Mr. Bershad’s recent efforts to become

involved in “a new and unique pro bono program in New Jersey known as ReLeSe,

which stands for Reentry Legal Services” and “provides free legal services to former

prison inmates who face obstacles in their attempts to reenter the workforce.” Mr.

Griffinger writes that “Dave thought as a former attorney now facing sentencing, he

could bring a unique perspective to this work, gain insights from the people he would be



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helping and do some good all at the same time,” and that he has agreed to become a

member of the Board. (Exhibit C-16.)

F. Health

For many years, Mr. Bershad has suffered from chronic medical conditions which

his doctors are actively monitoring and treating. These include hypertension, high blood

pressure, years of high cholesterol, and sleep apnea. Recently, Mr. Bershad sustained

a fainting spell that resulted in a six-hour visit to the emergency room. After testing, his

cardiologist prescribed a cardio-rehabilitation program in which Mr. Bershad continues

to participate. Within the past four years, each of Mr. Bershad’s hips was replaced. He

also had cataract surgery and then corrective cataract surgery. Mr. Bershad’s health

condition is further described in the letter from his doctor, which was provided to

probation. (PSR ¶¶ 108 -112.)

III. ARGUMENT

Although Mr. Bershad has admitted his participation in a conspiracy to obstruct

justice and to submit false declarations under oath, he stands distinctly apart from his

co-defendants in at least three critical respects.

First, his cooperation has been uniquely valuable to the government. With Mr.

Bershad’s cooperation, the government was able to prosecute all of the individuals and

all of the wrongdoing encompassed by the conspiracy. Without it, the Court would have

faced a prolonged trial and inevitable appeals involving several defendants, numerous

law firms, and scores of witnesses. That trial would not have included all of the

wrongdoers nor addressed the full scope of the misconduct. Mr. Bershad’s decision to

plead guilty and to cooperate led directly to formal charges against Melvyn Weiss and

William Lerach, guilty pleas from Steven Schulman, Messrs. Weiss and Lerach,

Seymour Lazar, Paul Selzer, and an admission of wrongdoing and sizeable payment by

the Milberg Firm.

Second, alone among the Milberg defendants, Mr. Bershad has fully accepted

responsibility for his wrongdoing; he has not and will not attempt to excuse or minimize



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his misconduct, assign responsibility to others, or intimate that others who are guilty

have gone unpunished.

Third, wholly apart from the extraordinarily painful personal and financial

consequences that have flowed from his admission of wrongdoing – the heart-breaking

implosion of his marriage, the pain and anguish of his family, the loss of his bar license

and ability to practice law, and the threat of numerous lawsuits seeking ruinous

damages – Mr. Bershad was immediately penalized by his former law firm in retaliation

for his cooperation. While the Court can expect that most defendants will bear collateral

costs for their wrongdoing, Mr. Bershad is being asked also to pay a very dear price for

his cooperation.

Finally, in deciding upon a just sentence, the Court should take into account not

only Mr. Bershad’s misconduct, but his life characterized by decency, modesty, devotion

to family, and selfless charity to others.

For all of these reasons, including most particularly Mr. Bershad’s significant

assistance to the prosecution, for which the government requests an 8-level downward

departure pursuant to U.S.S.G. § 5K1.1, we urge that a non-custodial, probationary

sentence is warranted.

A. Applicable Legal Principles

In the wake of the Supreme Court’s decisions in United States v. Booker, 543

U.S. 220 (2005); Rita v. United States, __ U.S. __, 127 S. Ct. 2456 (2007); Kimbrough

v. United States, __ U.S. __,128 S. Ct. 558 (2007); and Gall v. United States, __ U.S.

__,128 S. Ct. 586 (2007), it is abundantly clear that the United States Sentencing

Guidelines “are no longer mandatory but are only advisory.” United States v. Carty, 520

F.3d 984, 990 (9th Cir. 2008) (en banc). “One theme” runs through the recent

sentencing decisions: Booker and its progeny “empowered district courts, not appellate

courts . . . . [and] breathe[d] life into the authority of district court judges to engage in

individualized sentencing.” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.



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2008) (quoting United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)

(Sutton, J.)) (emphasis added).

The overarching statutory charge for a district court is to “impose a sentence

sufficient, but not greater than necessary” to reflect the seriousness of the offense,

promote respect for the law, and provide just punishment; to afford adequate

deterrence; to protect the public; and to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment. Carty, 520 F.3d at

991 (quoting and citing 18 U.S.C. § 3553(a) and (a)(2); emphasis added). “All

sentencing proceedings are to begin by determining the applicable Guidelines range,”

id., which serves as a “starting point and the initial benchmark,” Gall, 128 S. Ct. at 596.

The Guidelines range, however, is only one factor among many the district court must

consider. Carty, 520 F.3d at 991. The court must also consider each of the other

factors set forth in § 3553(a). Id. Thus, the court must weigh: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; the kinds of sentence and the sentencing range established in the Guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims.

Id. (citing 18 U.S.C. § 3553(a)(1)-(7); Gall, 128 S. Ct. at 596-97 n. 6).3

“The district court may not presume that the Guidelines range is reasonable.” Id.;

see also Rita, 127 S. Ct. at 2465; Gall, 128 S. Ct. at 596-97. “Nor should the Guidelines

factor be given more or less weight than any other.” Carty, 520 F.3d at 991. “While the

Guidelines are to be respectfully considered, they are one factor among the § 3553(a)

factors that are to be taken into account in arriving at an appropriate sentence.” Id.

(citing Kimbrough, 128 S. Ct. at 570; Gall, 128 S. Ct. at 594, 596-97, 602). “The district

court must make an individualized determination based on the facts.” Id.; Gall, 128 S. 3 Indeed, the Carty court emphasized that “[i]t would be procedural error for a district court to . . . to treat the Guidelines as mandatory instead of advisory [or] to fail to consider the § 3553(a) factors . . . .” 520 F.3d at 993.



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Ct. at 597. In short, as one federal district judge observed, district courts are now “free

to disagree, in individual cases and in the exercise of discretion, with the . . . range

proposed by the guidelines.” United States v. Ranum, 353 F. Supp. 2d 984, 987 (E.D.

Wis. 2005).

As explained below, we urge the Court to accept the parties’ Guideline

calculation as a starting point, grant the government’s request for an 8-level downward

departure in light of the substantial assistance provided by Mr. Bershad, and fashion a

non-custodial sentence in consideration of all of the factors in §3553(a). In light of the

significant punishment Mr. Bershad has and will continue to suffer in numerous ways as

a direct result of his conduct and his cooperation, such a sentence is sufficient but not

greater than necessary to accomplish the goals of sentencing. Both the probation

department and the government recommend sentences substantially below the

Guidelines range.

B. The Plea Agreement and Presentence Report

Mr. Bershad pled guilty to a single count of conspiracy to obstruct justice in

violation of 18 U.S.C. § 1503 and to make false material declarations under oath in

violation of 18 U.S.C. § 1623(a). The plea agreement calls for a fine of $250,000 and

for a civil forfeiture of $7,750,000 – a total of $8 million. Mr. Bershad has already paid

over the forfeiture amount to the U.S. Treasury. The agreement further provides that

restitution is not warranted. In addition, the plea agreement calculates Mr. Bershad’s

offense level as follows:

Base Offense Level 14 [U.S.S.G. § 2J1.1(a)]

Substantial Interference +3 [U.S.S.G. § 2J1.2(b)(2)] with the Administration of Justice Obstruction Extensive in Scope +2 [U.S.S.G. § 2J1.2(b)(3)]

Abuse of Position of Trust +2 [U.S.S.G. § 3B1.3]

Acceptance of Responsibility -3 [U.S.S.G. § 3E1.1] 18



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The probation department accepted these calculations, including a three-point

reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and

determined that the total offense level is 18. (PSR at ¶¶ 49-64.)4 This adjustment is

appropriate. Relying on numerous mitigating factors under 18 U.S.C. § 3553(a), the

department recommended a variance below the applicable guideline range and a

sentence of 18 months. (Recommendation at 5.) These findings and recommendations

were made without consideration of Mr. Bershad’s assistance to the government’s

investigation and before the government filed its motion for a downward departure.

C. The Government’s Motion for a Downward Departure

In recognition of Mr. Bershad’s substantial assistance, the government has filed a

motion for an 8-level downward departure pursuant to U.S.S.G. § 5K1.1, which would

reduce the offense level to 10, Zone B. Section 5K1.1 permits a court to depart from

the Guideline-authorized sentence, upon motion of the government, in cases where “the

defendant has provided substantial assistance in the investigation or prosecution of

another person.” In determining the appropriate departure pursuant to § 5K1.1, the

court may consider, inter alia, “the significance and usefulness of the defendant’s

assistance,” § 5K1.1(a)(1), “the truthfulness, completeness, and reliability of any

information or testimony provided by the defendant,” § 5K1.1(a)(2), “the nature and

extent of the defendant’s assistance,” § 5K1.1(a)(3), and “the timeliness of the

defendant’s assistance,” § 5K1.1(a)(5).

In evaluating the significance and usefulness of the defendant’s assistance, the

Guidelines “direct courts to give ‘[s]ubstantial weight . . . to the government’s evaluation’

of that assistance.” United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004)

(quoting U.S.S.G. § 5K1.1(a)(1) & cmt. n. 3). Thus, “[t]he government’s

recommendation should be the starting point for the district court’s analysis.” United

4 The presentence report finds that the November 1, 2007 edition of U.S. Sentencing Guidelines applies to the offense of conviction. Although it appears that the November 1, 2005 edition is the appropriate version given the time-span of the alleged conspiracy, there are no Ex Post Facto considerations.



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States v. Thomas, 930 F.2d 526, 531 (7th Cir. 1991), overruled on other grounds,

United States v. Canoy, 38 F.3d 893, 906 (7th Cir. 1994); see also United States v.

Laney, 189 F.3d 954, 964 (9th Cir. 1999) (district court’s practice of deferring to

government’s recommendation concerning § 5K1.1 departures was not erroneous

because the Guidelines direct that “the government’s evaluations should have

‘[s]ubstantial weight . . . particularly where the extent and value of the assistance are

difficult to ascertain.’” (citing U.S.S.G. § 5K1.1, cmt. n.3)).

Mr. Bershad’s assistance, substantial by every measure, actually commenced

months before he pled guilty, when first his attorneys and later he personally gave

lengthy proffers to the government. This initial cooperation led to the drafting of the

factual statement that accompanied Mr. Bershad’s plea agreement, in which Mr.

Bershad publicly disclosed the full scope and breadth of the unlawful scheme as well as

new details concerning his own misconduct and that of his partners. Following his guilty

plea, Mr. Bershad proactively assisted the government’s prosecution. Sitting for hours

of debriefings, he responded candidly and completely to every question posed. He

disclosed hitherto unknown misconduct by a former partner. He located his old

personal calendars and produced them. He volunteered insights that assisted the

government’s evaluation of its position with the remaining Milberg defendants. As the

government confirms in its filing, Mr. Bershad has been fully cooperative whenever and

about whatever subject the government has asked.

Without doubt, Mr. Bershad’s assistance was the critical development leading to

the final resolution of this case. Shortly after Mr. Bershad began cooperating with the

government, Mr. Weiss was charged. Within months, Mr. Lerach commenced plea

negotiations. Mr. Schulman also pled guilty and agreed to cooperate with the

government, followed shortly by Seymour Lazar entering a plea. By June of this year,

Messrs. Weiss, Lerach and Lazar had all pled guilty and been sentenced. On July 14,

2008, with the guilty plea of Mr. Selzer and the dismissal of the Milberg Firm (pursuant

to a non-prosecution agreement that included a $75 million fine), the case was resolved



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as to every defendant. Thus, Mr. Bershad’s cooperation led to guilty pleas by all of the

individual defendants and resulted in a speedy resolution of the entire case, thereby

avoiding a lengthy jury trial or possibly multiple jury trials and inevitable appeals.

Significantly, Mr. Bershad has volunteered his cooperation in ways that he well

knew might cause him further harm. As we set forth above, following his agreement to

cooperate the Milberg Firm repudiated its obligations to him, refused to pay his lawyer’s

fees, and resisted returning to Mr. Bershad his capital account. (By contrast, after Mr.

Weiss finally admitted his guilt without cooperation, the Firm agreed to give him a

generous payout.) At great personal cost, Mr. Bershad refrained from commencing a

lawsuit or arbitration to enforce his contractual rights, in order to preserve his value to

the government as a potential witness in this case. Similarly, as we will detail in an in

camera submission, Mr. Bershad provided valuable assistance to the government in this

matter, even though he understood clearly that the very information he furnished to the

government would create additional financial exposure to him personally.

Although Mr. Bershad ultimately did not testify at a trial, the Court should grant

him credit as though he did. Unlike many other cases in which a cooperating

defendant’s assistance to the government and the content of the defendant's testimony

remain under seal absent a trial, here, Mr. Bershad’s plea agreement and a detailed

factual statement were publicly available from day one. His willingness to testify and

the assistance he provided to the government were fully as effective as trial testimony,

since they promptly led to numerous guilty pleas. These results necessarily reflect Mr.

Bershad’s perceived credibility as a potential trial witness; and the value of his

cooperation should not be diminished because that credibility eliminated the necessity

of a trial. Moreover, from Mr. Bershad’s perspective, the decision to publicly accuse his

colleagues and friends of wrongdoing was as personally difficult as trial testimony. That

decision also had similar consequences – severed friendships, public criticism and

retribution from his former Firm. In these circumstances, where Mr. Bershad’s

cooperation swiftly brought the successful resolution of the government’s case, he



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should be accorded the same credit as if he had testified and been subjected to the

cross-examination of the skillful attorneys who represented the other defendants in this

case.

Recognizing the extraordinary assistance that Mr. Bershad contributed, the

government recommends a departure of 8 levels to an offense level of 10. This

recommendation is notably greater than the various departures recommended by the

government for the other cooperating defendants in this case, and evidences the

qualitatively different assistance provided to the government by Mr. Bershad. For all of

the reasons set forth in the government’s motion, together with the submissions

contained herein, we urge the Court to grant that motion and to set the final offense at

10, in Zone B, with a sentencing range of 6 to 12 months. For final offense levels in

Zone B, the Court has discretion to impose (1) a sentence of probation that includes

community confinement or home detention in lieu of imprisonment; or (2) a sentence of

imprisonment for one month, with a term of supervised release that substitutes

community confinement or home detention for the balance of the prison term. U.S.S.G.

§ 5C1.1(c)(2) and (3). Thus, even under the Guidelines, which are no longer

mandatory, this Court is explicitly vested with discretion to impose a non-custodial

sentence.

D. A Sentence of Incarceration is Greater Than Necessary to Accomplish the Statutory Purposes in Section 3553(a).

Section 3553(a) mandates consideration of a number of factors in determining

the appropriate sentence for the specific defendant. Those factors include: the nature

and circumstances of the offense, the history and characteristics of the defendant, the

need to protect the public and for deterrence, the kinds of sentences available, the

sentencing range under the Guidelines, any pertinent policy statements, the need to

avoid unwarranted sentence disparities and the need to provide restitution. 18 U.S.C. §

3553(a). From the previous pages, many mitigating factors are apparent. We now



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evaluate those factors in the context of the statutory scheme and demonstrate that a

sentence of incarceration is not necessary to accomplish the statutory purposes. 1. Mr. Bershad Provided Extraordinary Assistance to the Government and Is Deeply Remorseful For his Misconduct.

We previously addressed the nature, scope and effectiveness of Mr. Bershad’s

cooperation in the context of the government’s motion for a downward departure and

will not repeat that discussion here. However, Mr. Bershad’s critical assistance to the

government, together with his sincere expressions of remorse and responsibility, are

also relevant considerations in determining the actual sentence.

Mr. Bershad’s acceptance of responsibility has truly been extraordinary.5 As

previously noted, it was Mr. Bershad who instructed his attorneys to reach out to the

government to resolve his case. Unlike the other Milberg defendants, he did so even

before substantive motions were due to be filed. He did so because, as he writes, [m]y wrongful acts were in direct conflict with my own values of honesty and integrity. To begin to reclaim those values, I needed to find the strength to speak the truth to the government, to the Court and to my family.

5 The Ninth Circuit has approved post-offense rehabilitation, sometimes referred to as extraordinary acceptance of responsibility, as an appropriate basis for downward departure. As the court explained in United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004):

“Post-offense rehabilitation – as distinguished from post-sentencing rehabilitation – can be a basis for downward departure.” United States v. Thompson, 315 F.3d 1071, 1077 (9th Cir. 2002) (concurring opinion). A downward departure for post-offense rehabilitative efforts must be based on a determination that the defendant had “demonstrated an extraordinary level of rehabilitation.” United States v. Working, 287 F.3d 801, 808 (9th Cir. 2002).

Id. at 981; see also United States v. Green, 152 F.3d 1202, 1207 (9th Cir. 1998) (holding that post-sentencing conduct, specifically rehabilitation, may form the basis for a downward departure); Thompson, 315 F.3d at 1077-78 (concurring opinion).



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(Exhibit A.) The factual statement supporting Mr. Bershad’s plea constitutes a full and

unequivocal statement of his wrongdoing, including facts concerning the initiation of the

scheme that pre-dated any allegations in the then-pending indictment. Mr. Bershad has

candidly expressed his responsibility for his participation in the scheme in his

statements to the government, in his letter to the Court, and in his public and private

statements to others. He has not qualified his role, minimized his wrongdoing, or

justified his conduct.

This stance sets Mr. Bershad apart from the other defendants, particularly the

other Milberg defendants.6 As Mr. Bershad explains in his letter to the Court: It took me far too long to acknowledge the wrongfulness and the significance of what I did. I was in denial. After a great deal of soul searching, I realized that I had not only broken the law but my solemn oath to uphold it. My wrongful acts were in direct conflict with my own values of honesty and integrity. To begin to reclaim those values, I needed to find the strength to speak the truth to the government, to the Court and to my family.

(Id.)

The sincerity of Mr. Bershad’s remorse is a constant refrain in the letters

submitted by close family members, friends, and colleagues. Elkan Abramowitz, a

former federal prosecutor who has practiced law for over forty years and who has

known Mr. Bershad since high school writes: I have been a lawyer for over 40 years specializing in white collar crime. I have practiced as both a prosecutor, having served as Chief of the Criminal Division of the United States Attorney’s Office for the Southern District of New York, and as a defense lawyer, and having represented

6 We have previously noted that Messrs. Weiss's and Lerach's contrite statements to this Court at the time of sentencing are inconsistent with those they have made in other venues, public and private. Similarly, in his recent submissions to the Court and probation, Mr. Schulman apparently continues to minimize his misconduct. However, as Mr. Schulman's own admissions in his plea agreement and elsewhere in his sentencing memorandum make clear, he engaged in specific misconduct in furtherance of the scheme beginning in the 1980s and continuing through 2005. Mr. Schulman's continued effort to minimize his involvement demonstrates, again, that Mr. Bershad and only Mr. Bershad has fully accepted responsibility for his actions.



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scores of individual defendants before state and federal courts . . . . I can personally attest to the extraordinary sense of shame and remorse [David] feels about his own involvement in the criminal conduct which enveloped his firm. I have rarely spoken to people in similar situations who are as self-aware and self-critical as David. He knows he has committed a serious crime and acted contrary to his own strong moral character.

(Exhibit C-1.) Mr. Bershad’s wife, Susan, confirms that his contrition is heartfelt and

complete: David is authentic – the farthest thing from an actor or someone who tailors his public image. His remorse is true, his apology is not a pretense, and he does not feign naïveté. He admits what he did, and he is deeply sorry.

(Exhibit B-6.) Similarly highlighting Mr. Bershad’s remorse, Michael Griffinger describes

the “personal turmoil” Mr. Bershad endured in making the decision to cooperate against

his former partners and the consequences he now faces:

Following his indictment, Dave moved out of the Milberg office and began to assess what he had done. Dave finally talked to me on a personal basis and said that he had decided to cooperate with the government and enter a plea. We spoke frequently about his situation, the others involved and his remorse for the role he played in the wrong-doing. This remorse quickly became manifest when he became the first of the accused individuals to seek a plea bargain and then began his extensive cooperation with the government investigation. Imagine the personal turmoil he must have felt in becoming adverse to his long-standing partners and mentors, yet he chose to do the right thing.

His personal turmoil continues unabated – no longer merely vis-à-vis his former partners – but also in his disrupted family life and his voluntary resignation from the bar after a lifetime of extraordinary professional achievements and total devotion to his craft.

(Exhibit C-16.)

Daniel M. Cohen, the Rabbi at Temple Sharey Tefilo-Israel, has also observed

both the sincerity of Mr. Bershad’ remorse and his of acceptance of the punitive

consequences that have resulted from his misconduct:



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While I do not begin to condone or explain his actions, I can tell you beyond a shadow of a doubt, that he is exceptionally remorseful and that he has suffered on a variety of levels, both from internal angst as well as loss of position, status and reputation. There is no question in my mind that David will not only continue to pay a debt regardless of what formal additional punishment is levied, but that independent of anything else that might occur, David has and will continue to do all he can to make amends and to use his remaining time here on Earth to do good.

(Exhibit E-4.) Finally, Eugene Dubow, a former brother-in-law and former Parole Officer

who has great experience recognizing sincere, as opposed to feigned, contrition,

describes Mr. Bershad as follows: For 8 years I served as a New York State Parole Officer so I think I know a bit about how people involved in criminal activity perform and what adjustments they make after they are legally convicted. David, even before pleading guilty undertook to confess his wrongdoing and, as I understand it, has fully cooperated with the Government in the ensuing investigations. There is no doubt in my mind that he understands the depth of what he did and is totally remorseful.

(Exhibit B-11.)

Mr. Bershad’s own words and deeds, together with the observations of those

who know him best, establish that the Court need not fashion a custodial sentence to

provide for individual deterrence or to protect the public. See 18 U.S.C. §§

3553(a)(2)(B) and (C). Mr. Bershad’s remorse is real, and his determination and efforts

to make amends, as reflected in his decision to plead guilty and fully cooperate against

his former partners, are authentic and ongoing.

2. Mr. Bershad Has Led an Otherwise Exemplary Life.

The probation department found a number of mitigating considerations that

warrant a variance from the applicable Guideline range. These include, most

especially, Mr. Bershad’s otherwise exemplary life, his history of good deeds, his strong

character, the positive contributions that Mr. Bershad and his firm made to the legal

profession and to society at large, and his personal record of generosity and charitable

efforts. (Recommendation at 3-4.) Having detailed this history elsewhere, we will not

repeat it here. (See Memorandum, supra, at 5 - 27; Exhibits B - E.) There can be no



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doubt that over a life-time, Mr. Bershad has proved himself to be an honest, trustworthy,

loving, loyal, and extraordinarily generous man. 3. Mr. Bershad Has Paid a High Price for his Misconduct and for his Cooperation with the Government. Mr. Bershad has already paid, and for the remaining days of his life will continue

to pay, an extraordinary personal and financial price for his wrongdoing. He has lost his

marriage with Susan Bershad to which he had devoted 30 years; he has diminished the

respect of his children, who believed him to be a man of unblemished integrity; he has

surrendered his membership in the bar, his passion for over 40 years; and he has

relinquished the trust and admiration of many colleagues and peers. Through his

admission of wrongdoing, Mr. Bershad has been stripped of the accomplishments of a

lifetime: the respect of his family, the love of his wife and four decades of professional

distinction. He must now enter the final years of his life without the personal and

professional foundations that were integral to his being for the last 30 years.

Mr. Bershad also faces enormous financial risk. As we have elsewhere set forth,

Mr. Bershad is a defendant in three different civil suits and two arbitrations, all seeking

damages arising from the conduct for which he is to be sentenced. Although, as the

pre-sentence report makes clear, he retains substantial means, any one of the civil suits

carries the risk of literally pauperizing him, even though he has already disgorged $7.75

million to the government and disavowed any claim to assets at the Milberg Firm arising

from the wrongdoing. While we do not minimize the scope of Mr. Bershad’s

misconduct, neither can we minimize the extraordinary anguish that he has and will

continue to suffer on account of it. Anyone who seriously considers Mr. Bershad’s

current position would conclude that, whatever sentence the Court imposes, he has

already been severely punished for his wrongdoing.

As we have set forth above, however, Mr. Bershad has already paid and will

continue to pay a unique and extraordinary price for his courageous decision to

cooperate with the government. The Milberg Firm has steadfastly refused to repay Mr.



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Bershad any of the capital contributions that he paid in over many years or other

severance benefits to which he is entitled under the partnership agreement. The Firm

and its current partners, many of whom benefited financially from the misconduct, also

seek a windfall from Mr. Bershad for all of the costs of the investigation and prosecution

and the entire fine paid to resolve the case. The Milberg Firm’s punitive treatment of

Mr. Bershad comes despite the fact that he (apparently alone among the former

partners who pled guilty) has communicated through counsel that he will not seek

repayment of any funds owed him by the law firm that are traceable to the unlawful

conduct.

Cumulatively, we submit that these collateral consequences, many of which are

unique to Mr. Bershad and arise as a direct result of his decision to cooperate with the

government, strongly support the conclusion that additional punishment through a

sentence of incarceration is unnecessary.

4. A Probationary Sentence is Proportionate

Section 3553(a)(6) requires the Court to avoid unwarranted sentencing

disparities among defendants with similar records. For the reasons stated below, a

probationary sentence for Mr. Bershad would not result in unwarranted disparity within

the meaning of the statute.

Mr. Bershad stands apart from all the other defendants sentenced in connection

with the misconduct of the Milberg firm for several reasons. First, as we have

repeatedly emphasized, is the depth and quality of his remorse as well as the nature

and effectiveness of his cooperation. Mr. Bershad’s rehabilitation began with this

investigation and indictment and was complete with his determination to “fulfill [his] duty

to make amends” by bringing the investigation and prosecution to a close. (Exhibit A.)

Unlike other defendants in this case, Mr. Bershad has not tried to minimize or

justify his misconduct in any venue. He has not publicly declared that he pled guilty

because he had no choice or because the government held an unfair advantage. Nor,

in contrast to others, has Mr. Bershad quibbled about the dates of onset or termination



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of his misconduct. Nor, during the early stages of the investigation, did Mr. Bershad

cause or permit his attorney to make false or misleading representations to the

government concerning the nature or extent of his involvement in the scheme. Finally,

in contrast to at least two other defendants, Mr. Bershad never testified falsely in a

grand jury or court proceeding relating to this case. Taken together, these

considerations distinguish Mr. Bershad from every other defendant in this matter.

Second, the Court must consider the offense of conviction for which sentence is

to be imposed. Mr. Bershad has pleaded guilty to a single count of conspiracy to violate

18 U.S.C. §§ 1503 and 1623(a), by making false declarations to courts and by

obstructing justice. Messrs. Weiss and Schulman, by contrast, pleaded guilty to

conspiracy to conduct the affairs of the Milberg firm through a pattern of racketeering in

violation of 18 U.S.C. § 1962(d). Richard Purtich and Paul Tullman pleaded to tax

charges and received sentences of 2 months imprisonment and 6 months home

detention, respectively.7 James Tierney pleaded guilty to wire fraud in violation of 18

U.S.C. § 1343 and received a prison sentence of 8 months. Mr. Lazar pled guilty to

three counts: filing a false declaration under oath in violation of 18 U.S.C. § 1623(a),

subscribing to a false tax return in violation of 26 U.S.C. § 7206(1), and obstructing

justice in violation of 18 U.S.C. § 1503. He was sentenced to 6 months home

detention.

Howard Vogel and William Lerach are the only defendants to be sentenced by

this Court for essentially the same offense of conviction as Mr. Bershad – i.e.,

obstruction of justice and/or false declarations under oath. Mr. Vogel was sentenced to

3 months in prison, and Mr. Lerach received 24 months. Mr. Bershad can be

distinguished from both. In addition to his offense conduct, Mr. Vogel committed tax

fraud. And while the Court at sentencing ultimately decided not to draw an adverse

inference as to Mr. Vogel’s lack of remorse, it did question the credibility of some of the 7 Paul Selzer also pleaded to a tax charge, but has yet to be sentenced. His plea agreement calls for an offense level of 10, Zone B, and the government has agreed to recommend 6 months home detention.



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factual positions he took. Mr. Lerach refused to cooperate with the government, came

forward to negotiate a plea only after learning of Mr. Bershad’s cooperation, has made

public statements that call into question the sincerity of his remorse, and will not suffer

many of the collateral personal and financial consequences that Mr. Bershad faces as a

result of his decision to cooperate.

The conclusion that a non-custodial sentence would be proportionate in this case

is reinforced by a recent report from the United States Sentencing Commission, which is

charged with reporting data regarding the actual sentences imposed by district courts.

The Commission’s Preliminary Post-Kimbrough/Gall Data Report (September 2008)

tracks the actual sentences imposed for specific categories of offenders. (A copy of the

relevant excerpts of the Report is appended as Exhibit F.) The Report demonstrates

that since the Supreme Court’s 2005 decision in Booker, 543 U.S. 220, the district

courts have sentenced 389 offenders for Administration of Justice Offenses in cases in

which the government moved for a downward departure pursuant to U.S.S.G. § 5K1.1.8

The Report further establishes that over those three years, for those 389 offenders, the

district courts did not impose a single prison sentence. Put another way, 100 percent of

these offenders received non-custodial sentences.

The imprisonment of Mr. Bershad is neither necessary nor appropriate to

accomplish the statutory purposes of sentencing. First, as previously noted, a non-

custodial sentence of probation is within the advisory guideline range for Level 10, Zone

B. The Court has discretion to impose such a sentence. Second, a non-custodial

sentence would appropriately recognize Mr. Bershad’s prompt acceptance of

responsibility, through his early guilty plea before the filing of substantive pre-trial

motions, and his unique and substantial assistance to the government. Also, without

doubt, Mr. Bershad is being asked to pay a severe financial price for his decision to 8 The Report defines Administration of Justice Offenses to include “commission of offense while on release, bribery of a witness, failure to appear by offender, contempt, failure to appear by material witness, obstruction of justice, payment of witness, perjury or subornation of perjury, misprision of a felony, and accessory after the fact.” (Exhibit F, Appendix A.)



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cooperate. Third, Mr. Bershad’s advanced age and health concerns weigh against

imprisonment. Fourth, Mr. Bershad’s life-long history of generous contributions to

others and unblemished record support leniency. Fifth, a sentence of imprisonment for

Mr. Bershad will not serve any deterrent purpose. Mr. Bershad poses no threat of re-

offense and presents no threat to public safety.

As to general deterrence, this prosecution and the sentences this Court has

already imposed amid great press coverage and public interest are sufficient to

dissuade any future attorney or court officer who might otherwise consider straying from

his or her oath of loyalty to the law. See, e.g., Gall v. United States, __U.S.__, 128

S.Ct. 586, 599 (2007) (“The Government’s legitimate concern that a lenient sentence

for a serious offense threatens to promote disrespect for the law is at least to some

extent offset by the fact that seven of the eight defendants in this case have been

sentenced to significant prison terms.”) Powerful men who accomplished mighty deeds

have been sent to prison for their arrogance. But no defendant in this case has lost

more than Mr. Bershad. His cooperation with the government and his determination to

tell the truth to everyone – the Court, his family, and friends, and the public at large –

have cost Mr. Bershad everything he cares about: his marriage, the respect of his

colleagues, and his career. That is deterrence enough, both for Mr. Bershad and for

anyone else tempted, even for a second, to follow his sad example. It is also adequate

punishment, particularly when coupled with a meaningful sentence of probation and

whatever special conditions the Court deems appropriate. See Gall, 128 S.Ct. at 595

(noting that a term of probation involves a “‘substantial restriction of freedom,’” relying

on United States v. Knights, 534 U.S. 112, 119 (2001) (“Inherent in the very nature of

probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is

entitled.’”)); United States v. Ruff, 535 F.3d 999, 1004 (9th Cir. 2008) (stating that

Supreme Court in Gall emphasized that even probationary sentences “are quite

oppressive given that probationers are ‘subject to several standard conditions that

substantially restrict their liberty.’”)



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IV. CONCLUSION

In the tragedy that was the Milberg Firm, many impressive men fell from power to

disgrace. Of these men, only David Bershad came forward to acknowledge

unambiguously that he had lost his way and that he alone was responsible for his

misconduct. By every possible measure, he displays deep contrition and the desire to

continue his efforts toward making amends. In these respects, he stands alone.

Taking full account of Mr. Bershad’s offense conduct, his acceptance of

responsibility, his significant cooperation with the government and the other sentencing

factors set forth above, we submit that the Court should impose a probationary

sentence with terms of home confinement and community service. Such a judgment

constitutes a sentence that is sufficient but not greater than necessary to accomplish

the statutory purposes of sentencing.

Dated: October 20, 2008 Respectfully submitted,

ARGUEDAS, CASSMAN & HEADLEY, LLP

PATTON BOGGS, LLP

ANDREW LAWLER _________/s/_________________ Cristina C. Arguedas, attorneys for Defendant David J. Bershad


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