While the United States Supreme Court has ruled that a “punitive” forfeiture order may constitute a constitutionally excessive fine “if it is manifestly disproportionate to the seriousness of a defendant’s offense,” United States v. Bajakajian, 524 US 321, 334 (1998) – and although the Second Circuit has since articulated various factors that courts must consider in assessing whether a forfeiture order is “grossly disproportionate”, United States v. Viloski, 814 F.3d 104 (2d Cir. 2016) – the defendants have historically failed to challenge an otherwise correctly calculated forfeiture order to be constitutionally excessive.

That may be about to change. In what appears to be a first, Justice Jed S. Rakoff issued an opinion this fall in which he (1) agreed that the government had discharged its onus of establishing a multimillion-dollar confiscation obligation under of the applicable law, but (2) by applying the Viloski Factors concluded that such an order would be “grossly disproportionate” to the defendant’s offense and therefore refused to enter into it. United States v. Akhavan, 2021 US Dist. LEXIS 16387, at * 3 (SDNY August 30, 2021). The decision – and the reasoning behind it – may provide a potential roadmap for defendants who view challenging forfeiture orders to be unconstitutionally excessive going forward. Indeed, the potential implications of Judge Rakoff’s decision are such that the government has already indicated its intention to file an extremely rare affirmative appeal.