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Gibson’s Bakery v. Oberlin College trial motions: Bakery to prove “the college poured gasoline on the fire”

Gibson’s Bakery v. Oberlin College trial motions: Bakery to prove “the college poured gasoline on the fire”

Judge: “The allegation is that Oberlin College, through their negligence, pushed their own ill will toward Gibson’s by having it spill into the community”

As the Gibson’s Bros v. Oberlin case gets set for the trial – now set to begin on Friday, May 3 – it is beginning to become more clear that this case of defamation accusations is set to be more of an early 21st century cultural dissertation than one of merely determining monetary damages.

In the hearing today over motions to exclude some, it was the issue as to whether the school “capitulated” to the demands of its students to accuse the small business of being racists. “The allegation is that Oberlin College, through their negligence, pushed their own ill will toward Gibson’s by having it spill into the community,” said Judge John R. Miraldi.

Lee Plakas, attorney for Gibson’s put it this way: “The college poured gasoline on the fire of what was already a difficult situation.”

On its surface, the events in question are simple. On Nov. 9, 2016, a day after the presidential elections, three Oberlin College students were arrested for shoplifting at Gibson’s and scuffling with an employee outside. A protest by students ensued after that, and Gibson’s is claiming the school libeled and defamed their reputation and money earning in the community. We covered a lot of this in more detail in a case preview a few days ago.

But what is clear is that both Oberlin College and the Gibson’s Bakery will be on trial.

As an example, at today’s “motions in limine,” it was argued before the judge ad nauseam whether the injuries suffered by 91-year-old, Allyn W. Gibson, one of the owners of the store, were admissible. What happened to the elderly Gibson is that someone rattled his back door a year after the event, causing him to fall from the fear of someone breaking into his home, and thus injuring his neck and vertebrae in his back.

The Oberlin College defense attorney argued this was just a normal crime and had nothing to do with anything. Might have just been a run-of-the-muck robber and had nothing to do with the racial imbroglio. The Gibson’s plaintiff lawyers set forth that this was a sign of the apocalypse Oberlin College had put forth on the Gibson family. And it had everything to do with the racial imbroglio.

The judge ruled they could admit some of the health issues for the 90+ Gibson’s co-owner, but limited having his health analyzed in court by emotional distress experts.

This similar line of thinking was pulled out on whether Gibson family’s apartment building they owned were not being rented to the high capacity they used to because of this shoplifting incident and protest. The school’s lawyers more-or-less said “No way,” and the plaintiff’s lawyers likewise responded with something along the lines of, “Obviously, the school was responsible for their lost property development opportunities.”

In the end, the judge said he would see which he would allow as the trial moved forward. Because Gibson’s is claiming a property loss worth $200,000 now will be worth $2 million down the road. The judge again made some limits on what he’ll allow in, and what he will not. For the most part, he sided with sanity.

But despite this attempt at sanity, in the end game, it looks like there are several issue that will be important in this case.

The Gibson’s attorneys seem to be moving toward an argument that the school backed the “Gibson’s is racist” sentiment because they needed to do so as an ideology enabler. Meaning,  that in order to hold credibility with their more liberal students, and draw more of them in a very complex and competitive higher education environment, Oberlin College needed to come out as a knight in shining armor to the Social Justice Warriors living in their dorms and eating in their cafeteria. That’s the dog Gibson’s has in this hunt.

The school seems OK with all that, but they want to hold down the cost they might get hit with. Meaning, that they seem to be saying “Yes, maybe [fill in students, employees, professors here] did some of this defamation stuff, but they did it one their own, and this bakery shouldn’t get too much money just because they didn’t sell as many cookies in the years after the racism event.” Their neck injuries and apartments vacancies rentals and reputation problems are their own fault, not ours.

What will be interesting to watch is whether the jury feels that the fewer cookies sold is the primary issue, or whether having a very powerful institution claiming a business is racist because of how they handled being robbed, is enough for the jury to punish Oberlin College with some force.

The judge is not being asked to rule on evidence of the monetary value of Oberlin College, but expect that to be an issue for both damage assessment and the cultural thoughts by the jury as to what a small college is these days. For those who think Oberlin College might not have enough money to cover any big hit — being that they are a little, liberal arts college that tries to make ends meet — think again. And it is very clear the plaintiff’s attorney will make this point over and over again. The college side will try to make their wealth to be not big at all.

But it is big. According to their IRS form 990 forms (filed by all non-profits, and available on Guidestar.org), the latest one made public (2016) has Oberlin College with $944 million in “net assets and fund balance.” This is down a tiny bit from about $1 billion in 2015, but still substantial.

They also had 17 employees making more than $100,000 a year in 2016, including the president of the school making $945,000 annually when this shoplifting incident occurred. Suffice it to say, given the big endowment and even bigger net assets Oberlin College has in its bank account, making the claim that they are too poor to be punished and their students and faculty are just barely alive modern day educational cadavers won’t fly with any jury.

Again, that dog won’t hunt.

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1

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Comments

The high cost of being edgy.

Diversity or color judgment including racism breeds adversity.

JusticeDelivered | May 1, 2019 at 10:16 pm

General dumbing down of colleges for diversity is harming most people’s college education.

the latest one made public (2016) has Oberlin College with $944 million in “net assets and fund balance.

This isn’t all that much for a college. It’s the sort of number I’d expect for a college so small that nobody’s ever heard of it. Oberlin’s not one of the biggies but it’s not just a stain.

JusticeDelivered | May 1, 2019 at 10:22 pm

I would add, that all those fake diversity degrees are also harming employers. A degree used to mean that someone had met certain standards, that has not been the case for a long time. Employers incur huge additional costs, in that employees need more training and that more of them turn out to be duds. It is easy to spend $50 to 150K on an employee only to find that they cannot make the grade.

    healthguyfsu in reply to JusticeDelivered. | May 2, 2019 at 12:26 am

    Not buying that…no shortage of degrees to go around, just don’t hire a person with a degree in something less rigorous and more like a participation trophy (assuming you participate in the tyrant professor’s approved ways).

The Gibson’s attorneys seem to be moving toward an argument that the school backed the “Gibson’s is racist” sentiment because they needed to do so as an ideology enabler. Meaning, that in order to hold credibility with their more liberal students, and draw more of them in a very complex and competitive higher education environment, Oberlin College needed to come out as a knight in shining armor to the Social Justice Warriors living in their dorms and eating in their cafeteria. That’s the dog Gibson’s has in this hunt.

The thing is, merely saying “Gibson’s is racist” is not actionable, no matter how much damage resulted, because it’s pure opinion and thus completely protected by the first amendment. The only case Gibson’s has is when the college or its agents acting on its behalf made specific factual allegations that weren’t true.

Oberlin can readily admit that it “backed the ‘Gibson’s is racist’ sentiment because it needed to do so as an ideology enabler”, etc., and still win. All it has to do is convince the jury that the reason students are not shopping at Gibson’s or renting its apartments is all because of this general accusation of racism, not because of the specific false allegations it’s accused of having made. It could call a few students who had considered renting there and decided not to, and ask them why; the students could say it was because they heard Gibson’s is racist, but that they hadn’t heard anything specific, just a general impression.

    healthguyfsu in reply to Milhouse. | May 2, 2019 at 12:28 am

    By that same token, the plaintiff could call students testifying that they were told something specific from an employee or other participant of the university.

      Milhouse in reply to healthguyfsu. | May 2, 2019 at 1:03 am

      Only if it were actually true, and the student was willing to say so. Remember that the only students who could give such testimony would be those who are boycotting Gibson’s, so why would they want to help it by giving such testimony? Testimony from students who are not boycotting Gibson’s could establish that Oberlin officials told them lies, but not that those lies caused Gibson’s damage by inducing students to boycott it.

        …I’m going by memory, but Oberlin employees did an awful lot more than promote a general sentiment that the store is racist, and numerous specific claims were made. Wasn’t that reported here at LI?

        There’s nothing inherently wrong with an explanation of “why” Oberlin did this, but obviously the actionable “what” is those specific claims. Yet, if memory serves, those claims were indeed made.

          Milhouse in reply to JBourque. | May 2, 2019 at 9:49 am

          Oberlin employees did an awful lot more than promote a general sentiment that the store is racist, and numerous specific claims were made

          Yes, and that’s why there’s a case going on at all. But to win Gibson’s will have to convince the jury not only that when those employees made those factual claims they were acting for the college, but also that the damage they sustained, i.e. the boycott, was caused by those factual claims, and not by the general accusation that “Gibson’s is racist”.

          All the college has to do is insist that the damage is all due to the general accusation and not to the specific false facts, and put up some evidence for that in the form of boycotting students who can’t recall any specific facts to explain why they’re doing that.

        healthguyfsu in reply to Milhouse. | May 2, 2019 at 9:01 am

        I disagree.

        If there is specific language out there regarding advisement of a boycott in official communication from the university, then one need not participate in the boycott to testify as to its existence.

          Milhouse in reply to healthguyfsu. | May 2, 2019 at 9:53 am

          First, I doubt there exists any communication from anyone, let alone from the college, about a boycott. The boycott is almost certainly real, but Gibson’s only evidence of it is the fact that its business is off.

          But the important question isn’t whether there’s a boycott going on, but why. Oberlin can agree to stipulate that there is a boycott and still win, simply by claiming that it’s caused by the general impression created among students that Gibson’s is racist, rather than by any specific false factual allegations that may or may not have been made by college employees who may or may not have been acting in their official capacities.

    sequester in reply to Milhouse. | May 2, 2019 at 5:54 am

    Actually the statement “Gibson’s is racist” is actionable. It is before a Court right now.

      Milhouse in reply to sequester. | May 2, 2019 at 9:54 am

      No, it is not actionable, and is not before the court. Only specific factual allegations are before the court, and Gibson’s must prove that those allegations were (1) false, (2) made by the college or people acting for it in an official capacity, and (3) caused it damage.

    clerk in reply to Milhouse. | May 2, 2019 at 5:56 am

    Milhouse — it is clear that the Trial Judge knows more about Defamation Law and Law than you could ever hope to know. Stop pretending to be a lawyer.

      Milhouse in reply to clerk. | May 2, 2019 at 9:56 am

      What makes you think the trial judge disagrees with anything I’ve written? Or for that matter that anyone disagrees with it, except some ignorant and vicious commenters here?

        clerk in reply to Milhouse. | May 2, 2019 at 1:50 pm

        Milhouse the Trial Judge could care less about anything you have written. It has no legal significance other than in your own amateur mind.

          Milhouse in reply to clerk. | May 2, 2019 at 3:48 pm

          Again, what makes you imagine he disagrees with anything I’ve written? One thing’s for sure: he certainly cares no more for your opinion than for mine, so why are you commenting?

Not quite sure I see the down side to not having thugs shop or be around my business. Might even put up a sign…”None of those Oberlin College Jerks will be in store”

    healthguyfsu in reply to puhiawa. | May 2, 2019 at 9:03 am

    It’s a small town that relies partially on these Oberlin college jerks for economic stimulus.

    Further, there is principle to standing against the oppressive actions of the college’s fascictivsm.

    Carl in reply to puhiawa. | May 2, 2019 at 9:05 am

    It might feel good to do that but it is business suicide, since in the small market Gibson has 90% (just a guess, but it surely is a huge share) of the potential customers are Oberlin students or staff. Would a store in Ithaca survive by telling Cornell students to stay out?

    Milhouse in reply to puhiawa. | May 2, 2019 at 9:57 am

    The down side is having to do without their money. The purpose of a business is to make money, and when your sales and rentals are down you’re not doing that.

I will not argue the technicalities of defamation law–but simply. point out the students involved in the shop lifting pleaded guilty–and thus any statement that the bakery was guilty
of racism is on its face defamatory. How can you be guilty of racism, if there had been in fact a crime.
My second point is that I am surprised that Oberlin has an endowment of less than a million dollars. For years the school had lived off the generosity of the man–whose name I forgot
–who had invented the process for separating aluminum from bauxite. Where had the
money gone–into administrators’ pockets ? social justice activism? race dictated hirings and
admissions..

    stevewhitemd in reply to JAB. | May 2, 2019 at 11:32 am

    JAB, the endowment is (as stated in the article) $944 million. That’s a respectable endowment for a small college.

    And yes, the three who were convicted of shoplifting did indeed plead guilty. It does vitiate the ‘racism’ argument.

    Milhouse in reply to JAB. | May 2, 2019 at 3:54 pm

    The fact that they were guilty doesn’t mean the business isn’t racist. For all we know the business may indeed be racist, though there doesn’t seem to be any evidence for it. From a SJW perspective, though, how is it that only black shoplifters were caught? What happened to all the white shoplifters who must surely also exist, because it’s unpossible that shoplifting does not occur equally across all races? The business must be letting them go, or else not catching them because they’re racistly watching the black customers and not the white ones. Or something like that. One can never know exactly what SJW are thinking, because they change their principles on a regular basis, but always believe passionately in the current set of principles, whatever they happen to be.

It’s a personal injury lawsuit…they have insurance for this.

Hopefully the judge puts the damages as punitive – which NO insurance policy covers.

Back when the lawsuit was filed I suggested that a settlement of 1% of the endowment might be a good punitive statement, and at the time it was around $800M. Now I see just 18 months later that the endowment is $944M, mostly I am guessing due to the strengthening of the economy by DJT’s policy moves. So ironic that the college is in far better shape financially under the same President that they all swore was going to blow up the planet.

UnCivilServant | May 3, 2019 at 10:54 am

This similar line of thinking was pulled out on whether Gibson family’s apartment building they owned were not being rented to the high capacity they used to because of this shoplifting incident and protest. The school’s lawyers more-or-less said “No way,” and the plaintiff’s lawyers likewise responded with something along the lines of, “Obviously, the school was responsible for their lost property development opportunities.”

If they largely rented to Oerlin students, then their damaged reputation could have certainly led to fewer renters.

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