SCOTUSblog, the leading source for watchers of the United States Supreme Court, has selected the petition for certiorari filed on behalf of longtime client Anthony Cuti as the “Petition of the Day” for September 30, 2014.
The petition was drafted in collaboration with former Solicitor General Seth Waxman (counsel of record) and his team at WilmerHale, including Mark Fleming and Brook Hopkins out of Boston.
Mr. Cuti served as CEO of Duane Reade drugstores from 1996 to 2005, and he was responsible for growing the chain fourfold to its present dominant position in the New York City metropolitan region. He asks the Court to review his 2010 conviction for securities fraud, which was based primarily on unreliable accounting opinion testimony from fact witnesses who could not have been qualified as experts.
A panel of the Second Circuit Court of Appeals previously affirmed his conviction in a published decision, concluding that even hypothetical accounting questions elicited “factual” testimony when posed to fact witness accountants. That court also held that, alternatively, fact witness accountants need not be qualified as experts to offer opinions on the propriety of their own past accounting decisions, weighed in hindsight. The petition argues that the Second Circuit’s decision implicates a developed split among the lower courts on whether lay witnesses can testify based on specialized knowledge when their testimony is also based on some personal knowledge of the facts of the case.