By Pete Brush

Law360 (June 11, 2021, 6:20 PM EDT) -- Federal judges anticipate a relaxation of COVID-19 safety protocols in the Southern District of New York and the Second Circuit, with details set to be announced as early as Monday.

Some 50 trial judges in the Southern District's two Manhattan courthouses would be subject to those protocols if the New York State Department of Health and U.S. Centers for Disease Control and Prevention continue to report that vaccines are pushing virus transmission rates to a low ebb, a person familiar with the district's planning said Friday.

Gov. Andrew Cuomo's office said Friday that the Empire State's rate of virus transmission has plunged to a low of 0.37%, with only 480 total positive tests across 62 counties.

"That means we can take action to reopen the economy, put people back to work and resume normal lives," said Cuomo, who shut down the state in March of last year as cases and deaths increased.

Exact details of how far the Southern District will go to relax safety protocols were not immediately available. Officials are still observing data while consulting with a disease expert to strike the right balance. Currently, only a handful of specially equipped courtrooms are set up to handle jury trials.

For white-collar fraud defendants like former Iconix Brand Group Inc. CEO Neil Cole, who has been living under a cloud of uncertainty since he was arrested in 2019, a relaxation could mark a welcome development.

"The court is consistently monitoring the situation both in New York and around the country," Manhattan U.S. District Judge Edgardo Ramos told Cole on Friday during a telephone hearing after his counsel, Lorin Reisner of Paul Weiss Rifkind Wharton & Garrison LLP, said Cole's wait to go before a jury — 18 months and counting — has "severely compromised" his right to a speedy trial.

Judge Ramos had reluctantly pushed Cole's early July trial date back to October, citing a shortage of courtrooms and a trial logjam created by the limited number of courtrooms, especially for defendants like Cole who are out on bail and are thus not deemed a top priority.

Cole maintains he is innocent of charges that he engineered an $11 million accounting fraud, and that the case hanging over him has left him unemployable and put his life into turmoil.

"We think it's time for this trial to go forward," Reisner said.

He requested that Judge Ramos revisit the newly scheduled October date and move it up if any relaxation of the district's stringent COVID-19 protocols allows for it. There he found a receptive judge.

"There is some talk that [the rules] may be relaxed," Judge Ramos said. "The court will be looking at that very carefully."

Making similar comments this week was Manhattan U.S. District Judge P. Kevin Castel, who told a roomful of lawyers preparing for June 29 jury selection in a roughly $125 million antitrust case that, by the time they get to trial, protocols may already have been relaxed.

Details on the new protocols are on track to be made public as soon as Monday.

The Second Circuit is also planning changes. It could soon call lawyers back to the higher floors of the Thurgood Marshall U.S. Courthouse to argue appeals in person.

But the circuit's successful experiment with streaming audio is likely to continue for the foreseeable future — at least until the pandemic completely abates and possibly beyond.

For Cole, the brother of fashion designer Kenneth Cole, the sooner he gets to make his case, the better, his counsel said.

"In our view there's been enough delay and there should be no further delay," Reisner said.

"Obviously Mr. Cole's rights are being implicated," Judge Ramos said. "He is not alone in that regard."

--Editing by Adam LoBelia.

Clarification: This story has been updated to more accurately describe an antitrust case

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