Setting the Record Straight: The January 13, 2025 Order in In re Terrorist Attacks on September 11, 2001

What the Court Actually Found About the Anonymous Allegations Against Me and Baker Tilly

By Jonathan T. Marks, CPA, CFF, CFE, CITP, CGMA, MBA, NACD Board Fellow

In October 2024, an online publication called Florida Bulldog published an article repeating the contents of an anonymous letter sent to plaintiffs' counsel in the long-running multidistrict litigation captioned In re Terrorist Attacks on September 11, 2001, MDL No. 03-md-01570 (GBD)(SN), in the United States District Court for the Southern District of New York. The letter alleged, among other things, that I had been improperly coached during my July 22, 2021, deposition as an expert witness retained by the World Assembly of Muslim Youth, that my time records had been falsified, that my deposition testimony was false, and that damaging discovery had been withheld. The attached article attributed my name to those allegations and remains online without any update or correction.

On January 13, 2025, United States Magistrate Judge Sarah Netburn issued an order, docketed as ECF No. 10664 in the MDL, that resolved the matter on its merits. I am writing this piece so that anyone searching for my name, the name of the publication, or the underlying allegations will discover the court's actual findings rather than the anonymous letter that prompted them.

Here is what the Court did. Judge Netburn accepted letters and submissions from the Plaintiffs' Executive Committees, from WAMY, and from Baker Tilly, my employer at the time. WAMY's counsel and Baker Tilly each retained separate outside counsel, both former Assistant United States Attorneys for the Southern District of New York, to conduct independent investigations into the allegations. The Court also reviewed excerpts of my videotaped deposition directly.

Here is what the Court found, in its own words:

"The investigations did not, however, substantiate the more explosive allegations: that Baker Tilly buried evidence, or that Marks was coached in real time at his deposition and is otherwise unqualified to testify. The investigation conducted by WAMY confirmed that Marks and his Baker Tilly team relied only on discovery documents that were produced to the PECs. The Court has also reviewed the excerpts from the Marks videotaped deposition and does not view his performance to be indicative of cheating."

The Court further held that it "has already considered and adjudicated challenges to Marks' expert testimony" and denied the plaintiffs' targeted discovery request as "overbroad and not justified."

Three separate review tracks reached the same conclusion. Two independent investigations by former federal prosecutors and the Court's own review of my videotaped deposition all found that the explosive allegations were not substantiated. No coaching. No buried discovery. No unqualified expert. No indication of cheating. My prior expert testimony stood. The plaintiffs' request for further discovery was denied.

The only findings the Court called "troubling" were unrelated to my work, methodology, or integrity. They concerned two Baker Tilly associates who attended the deposition without entering an appearance on the record, in contravention of the Deposition Protocol Order, and internal Baker Tilly billing disputes that had been resolved without notice to WAMY. The Court expressly held that "these disputes do not warrant further inquiry."

I am writing this letter publicly for three reasons.

First, anonymous allegations against a named professional travel faster than their resolution. The Florida Bulldog article remains live. No follow-up has been published. A reader searching for my name today may see the allegation rather than the answer. That is unacceptable to me, and it should be unacceptable to anyone who cares about fairness to professionals doing their jobs under oath.

Second, I have spent nearly forty years in forensic accounting, corporate governance, and fraud examination. I am a contributing author to the COSO and ACFE Fraud Risk Management Guide (Second Edition, 2023), and I have testified as an expert. The work I do depends on being right, showing my work, and being able to defend my conclusions under cross-examination. That is precisely what happened here. Two independent investigations and the Court itself reviewed my work, my time records, my deposition conduct, and my methodology, and the Court found that the serious allegations against me were not substantiated.

Third, I want the profession to understand what this case actually illustrates. The amended Federal Rule of Evidence 702, effective December 1, 2023, imposed a more rigorous gatekeeping standard on expert witnesses than the rule had in its previous form. The proponent of expert testimony must now demonstrate to the court, by a preponderance of the evidence, that the testimony is based on sufficient facts or data, is the product of reliable principles and methods, and reflects a reliable application of those principles and methods to the facts of the case. My expert work in this matter was tested against that standard, against two independent investigations, and against direct judicial review of my deposition performance, and it held.

The January 13, 2025, order is ECF No. 10664 in MDL No. 03-md-01570. It is a matter of public record. Anyone who wishes to read it can pull it from PACER or request a copy.

The investigation process worked. To Baker Tilly and WAMY's counsel, who retained independent former federal prosecutors to examine the allegations on their own initiative, thank you for taking the matter seriously. To the Court, thank you for reviewing the record directly and ruling on the merits.

And to anyone reading this because a search engine brought you here: you now have the full story.

SIncerely,

Jonathan T. Marks