Oberlin digs in, appealing Gibson’s Bakery case with high-priced legal team and recasting case as “free speech issue”

I’ve followed the case of Gibson’s Bakery v. Oberlin College from the outset, and because there’s now a Wikipedia article on the case, I needn’t review the whole mishigass here.  The upshot is that after Oberlin’s administrators aided students in an unjustified protest against the claimed racism of the bakery (a racism that proved nonexistent), the bakery sued Oberlin for slander, libel, and interference with both contracts and business relationships.  The jury found for Gibson’s initially, awarding them $11.2 million in compensatory damages and $33 million in punitive damages, a hefty bill of $44.2 million for the College.

The judge later reduced the award to $25 million, but slapped another $6.5 million on Oberlin to cover the bakery’s attorney fees and litigation expenses, putting the College in the hole for over $31 million. Because Oberlin filed motions that delayed payment, and then decided to appeal, the judge then required the College to post a bond of $36 million to ensure it could cover the costs if it continued to lose. The interest on the award is also mounting up: $4,000 per day.

Throughout this process, Oberlin has indicated that it’s digging in for the long haul. It has never apologized to Gibson’s (despite the students who shoplifted having admitted guilt), and is now, as the Legal Insurrection article below reports (as well as an earlier piece), casting the whole verdict as misguided: the protesting students were, claims the College, simply exercising “free speech.”

But that won’t wash, as the jury’s verdict wasn’t based on student behavior but on the behavior of Oberlin officials. As Wikipedia notes,

Gibson’s argued the college supported the protests that damaged its reputation and that the college unlawfully broke its contract with the bakery. In the complaint, the Gibson family alleged that some Oberlin College professors attended the demonstrations, joined in the chants with a bullhorn, and gave course credit to students who skipped class to attend the demonstrations. It also claimed Oberlin employees distributed boycott flyers and allowed them to be photocopied for free on school machines. Oberlin’s Dean of Students, Meredith Raimondo and other College officials joined the protestors, bringing them pizza, authorizing the purchase of winter gloves for students protesting in cold weather, and helping pass out flyers urging passersby to boycott Gibson’s. Jason Hawk, a reporter and editor with the Oberlin News-Tribune testified that Dean Raimondo blocked him repeatedly from photographing the protest, telling him that he did not have a right to photograph the student protestors and handed him a flyer that read “This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.”

The jury decided that the evidence was on Gibson’s side.

This article (click on screenshot) gives the latest news:

From the piece:

Oberlin College just announced in an email blast that it not only is appealing the Gibson’s Bakery verdict, it has hired 1st Amendment litigators at the D.C. Office of a large national law firm to lead the appeal.

The email blast announcing the appeal was sent by Chris Canavan, Chair of the Oberlin College Board of Trustees. For most of the past decade Canavan also was Director, Global Policy Development, at Soros Fund Management, until leaving that position last month.

Canavan’s email stated:

Dear Oberlin Community,

I’m writing to share with you this statement regarding the Board of Trustees’ decision to appeal the jury verdict in the litigation arising out of a student protest in 2016.

We continue advancing Oberlin’s educational mission and the One Oberlin plan. Hereis the link to the plan. It is designed to preserve what is special about Oberlin, channel the power of a residential liberal arts education in new ways, and build on the College’s standing as one of the world’s great institutions of higher education.

I look forward to working with you on the One Oberlin initiative.

Chris Canavan ’84
Chair of the Board of Trustees
Oberlin College

Who were these fancy lawyers? A statement issued by Oberlin, announcing it was appealing the verdict, reeks with further indebtedness of the College:

The team includes First Amendment attorneys Lee Levine and Seth Berlin from the Washington, D.C., office of the national law firm Ballard Spahr and appellate attorneys Benjamin Sassé and Irene Keyse-Walker from the Cleveland office of the national law firm Tucker Ellis. These attorneys will work with trial counsel from Taft Stettinius & Hollister of Cleveland and from Wickens Herzer Panza of Avon to address the intersection of defamation law, First Amendment principles, and Ohio tort reform doctrines this case raises.

Seriously? Has the college performed a risk assessment?  I can hear the “ka-ching!” as I read those names. Finally, Legal Insurrection notes why the college was responsible, quoting an earlier piece:

Ever since the verdicts, Oberlin College has mounted an aggressive public relations campaign seeking to portray itself as the victim, asserting it was being unlawfully held liable for student speech. That narrative is not accurate, as we have pointed out several times:

It is clear that Oberlin College has settled on the claim that it is the defender of student free speech as a crisis management theme.

We have explored many times why the assertion that the college was held liable for the speech of students is false. Oberlin College was held liable for the actions of its administrators, including the Senior Vice President and Dean of Students, in spreading the defamatory statements. The college may dispute the facts, but the legal theory of liability cannot be disputed.

There is a separate legal issue as to whether the accusations against Gibson’s were defamatory or constitutionally protected opinion, but that has nothing to do with the erroneous vicarious liability narrative.

Here is what the judge wrote in denying the defendants’ summary judgment motion, and allowing the libel claim to proceed to trial (Order here): [***]

[JAC: That’s Judge Miraldi’s statement that there was sufficient evidence to determine whether College administrators and employees were indeed complicit in actions against Gibson’s.]

It’s clear that the theory of liability was not vicarious based on student or even faculty speech but was based on the actions of Raimondo and other administrators.

There is nothing novel in a corporation being held liable for the actions of its employees, particularly senior employees and officers, acting within the scope of their employment….

So Oberlin is now going to spend a gazillion more bucks defending itself, while the clock ticks and the interest mounts. And the College, like Evergeen State, is facing declining enrollments and budget issues (its available endowment is apparently less then the award).

I am not a legal expert, so I can’t prognosticate whether the verdict will be overturned on appeal. But from what I’ve seen of the evidence and testimony, which is pretty explicit, Oberlin was complicit in actions against Gibson’s. The award may be reduced on appeal, but I do predict the verdict will be upheld, for the award wasn’t based on violating student “free speech”. And Oberlin, which has never apologized to the Gibsons, will continue to have its reputation tarnished.

 

31 Comments

  1. Charles Sawicki
    Posted October 10, 2019 at 12:56 pm | Permalink

    What total self-involved asses are making these decisions at Oberlin? I would guess that costing your college tens of millions of dollars because of your stupidity makes it hard to find another job, hence appeal, appeal… Hopefully they will have to pay even more attorneys fees. If Oberlin eventually goes bankrupt, this might serve as a useful warning to the highly educated WOKE and help decrease this sort of stupidity.

    • A C Harper
      Posted October 10, 2019 at 4:44 pm | Permalink

      I wonder if they are suffering from Woke Blindness – they are so certain that their actions flow from their true beliefs that they cannot be in the wrong. Therefore they must have been poorly treated by the legal system, so another attempt will demonstrate the purity of their world view and, more importantly, signal their virtue.

    • TJR
      Posted October 11, 2019 at 4:52 am | Permalink

      It may be a case where the interests of the college as a whole and those of the people making the decision are not aligned, like city traders taking massive risks with other people’s money.

      From the POV of the college it seems very high-risk high-return, but from the POV of the decision-makers its low-risk high-return, as it won’t be them personally paying the legal bills while the cost to their reputations has already been paid.

  2. GBJames
    Posted October 10, 2019 at 1:02 pm | Permalink

    They seem intent on driving themselves out of existence.

  3. Stephen Barnard
    Posted October 10, 2019 at 1:04 pm | Permalink

    A free-speech claim from such a woke college! The irony is palpable. Free speech for me, but not for thee.

    • Deodand
      Posted October 10, 2019 at 7:16 pm | Permalink

      Remember back in 2012 a member of the ‘Woke’ stated that:

      “Free speech is the right to educated speech. If you utilize your right to ‘freedom of speech’ but then are socially or politically apathetic, you don’t vote, educate yourself on social issues, if you are not involved in the community, if you are not involved in being a citizen, an educated citizen, you have no right to free speech.”

      Which does not seem all that different from the Oberlin admin’s views, the quote comes at (09:25 – 09:44) in this video, which was a response to a video the person who said those words later deleted.

      • BJ
        Posted October 10, 2019 at 9:04 pm | Permalink

        Who is that quote from? It sounds like something PZ Crier would say.

      • BJ
        Posted October 10, 2019 at 9:05 pm | Permalink

        Ah, I see now.

      • TJR
        Posted October 11, 2019 at 4:53 am | Permalink

        “No free speech for proles!”

  4. Randall Schenck
    Posted October 10, 2019 at 1:13 pm | Permalink

    This is a lawyers’s dream. They have not hit this much gold since the rise of Donald Trump. You would really need to check your sanity to shovel money at this institution.

  5. Posted October 10, 2019 at 1:16 pm | Permalink

    Doubling down. It is the way to go in Trump America.

  6. Steve Pollard
    Posted October 10, 2019 at 1:29 pm | Permalink

    Why has no-one told them ‘if you’re in a hole, stop digging’?

  7. BJ
    Posted October 10, 2019 at 2:44 pm | Permalink

    Paging Ken: I thought you can’t change your arguments on appeal?

    • JohnE
      Posted October 10, 2019 at 3:28 pm | Permalink

      You are correct. No argument that was not presented at the trial court level can be raised on appeal. I saw nothing in the Court’s adverse ruling on Oberlin’s Motion for Summary Judgment that specifically asserted that the statements/actions of Oberlin officials were protected by the First Amendment (or the equivalent provision of the Ohio Constitution). However, that argument could have been presented in another context, such as in an earlier or later motion, or in a proposed jury instruction.

      • BJ
        Posted October 10, 2019 at 3:47 pm | Permalink

        Thanks, JohnE.

        • JohnE
          Posted October 10, 2019 at 4:12 pm | Permalink

          No charge. (That’s something my client’s rarely hear!)

          • JohnE
            Posted October 10, 2019 at 4:14 pm | Permalink

            Arghhh. “Clients” not “client’s”. I hate it when I do that!

    • Ken Kukec
      Posted October 10, 2019 at 3:39 pm | Permalink

      Legal arguments a party fails to raise in the trial court are usually deemed waived. They can generally be reviewed on appeal only under the “plain error” rule.

      I don’t know enough about the trial court record to say what First Amendment issues Oberlin may have preserved for appellate review.

  8. Posted October 10, 2019 at 3:06 pm | Permalink

    There is one circumstance that makes Oberlin’s decision understandable.

    If the amount of the award is an existential threat to the college, then it makes sense to chuck money at lawyers in the hope of reversing the decision. The worst case scenario is bankruptcy if they fail, but maybe they are facing bankruptcy if they don’t even try.

    • Peter
      Posted October 10, 2019 at 4:23 pm | Permalink

      According to Wikipedia:
      in 2018 the value of Oberlin’s endowment was $887.4 million.
      https://en.wikipedia.org/wiki/Oberlin_College

      So Oberlin is not threatened by bankruptcy.

      • Harrison
        Posted October 10, 2019 at 9:23 pm | Permalink

        There’s also donors to consider though. If the college makes a big payout people may reconsider giving them money knowing it could be squandered on lawsuits instead of education because the college is run by clowns. So they hope that if they can win an appeal this will ease donors’ worries. Although realistically it wouldn’t.

      • Posted October 11, 2019 at 7:20 am | Permalink

        But one assumes that money is invested in some way to give them a regular income. That is what I assume Jerry means by

        its available endowment is apparently less then the award

        (my bolding).

        I guess they can’t go bankrupt technically, but they are already operating on a deficit of $2.5 million and paying this money out may make it impossible to continue normal operations.

  9. Ken Kukec
    Posted October 10, 2019 at 3:12 pm | Permalink

    Now I ain’t sayin’ who, but somebody here saw this strategy comin’ from the get-go. See also here.

    Even a blind pig finds a truffle once in a while, I ‘spoze.

    As to whether it will work, who can even say? Maybe they’re just posturing for settlement purposes. Then again, Oberlin hasn’t shown a lick of sense in this thing yet.

    • BJ
      Posted October 10, 2019 at 3:48 pm | Permalink

      Wow, I was totally surprised when the person in those links was you 😛

      Thanks for your answer to my question above.

  10. pablo
    Posted October 10, 2019 at 5:31 pm | Permalink

    Maybe the plan is to go into debt and declare bankruptcy?

    • Stephen Barnard
      Posted October 10, 2019 at 5:51 pm | Permalink

      The posted bond precludes that strategy. The likely outcome is that they’ll end up in debt to their lawyers.

  11. Posted October 10, 2019 at 5:47 pm | Permalink

    I wonder if this is the Oberlin people simply trying to delay the inevitable payment, or bankruptcy of their college, while they look for new jobs. On the other hand, is there some kind of board calling the shots here?

  12. jpetts
    Posted October 10, 2019 at 8:32 pm | Permalink

    They’re not going bust on this – their endowment is nearly $900M: https://www.oberlin.edu/investment/assets

  13. Steve Gerrard
    Posted October 10, 2019 at 9:43 pm | Permalink

    “The award may be reduced on appeal,”

    That right there is reason enough to appeal. Cutting the award in half might well make the additional legal fees worth it. As Ken has pointed out, the large punitive damages are a prime target for first amendment arguments.

  14. Jonathan Gallant
    Posted October 11, 2019 at 12:31 am | Permalink

    Interesting to note the financial positions of the two litigants. The Gibson family business appears to be a single retail shop combining bakery and mini-market. Even if it is doing well in its small-town environment, one doubts that its capitalization would come anywhere near $887 million. That sum is the endowment of Oberlin College, which casts itself in the role of the underdog victim of oppression! What a perfect embodiment of our Leftier-than-thou culture at liberal arts campuses: one has to recall the aristocrats dressing up as shepherds and shepherdesses for costume balls in the court of Louis XIV.


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