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Gibson’s Bakery files to uphold full $33 million punitive damages verdict against Oberlin College

Gibson’s Bakery files to uphold full $33 million punitive damages verdict against Oberlin College

“application of the punitive caps in R.C. 2315.21 to the unique facts of this case would be arbitrary and/or unreasonable and is therefore, unconstitutional underArticle I, Section 16 of the Ohio Constitution”

Oberlin College has been on a crisis management public relations campaign to create a narrative that it is the victim in the Gibson’s Bakery case because it was held liable for student speech. In a series of scripted public statements, Oberlin College’s president Carmen Twillie Ambar has asserted that “this is a First Amendment case about whether whether an institution can be held liable for the speech of its students. And the actions of its students. And I think it’s important whether you’re a progressive or a conservative.”

That is, as we have noted before, a false characterization of the case.

Oberlin College was held liable for the speech of its senior administrators, particularly Dean of Students Meredith Raimondo, which the jury held was defamatory and made with actual malice. Oberlin College was held liable under long-standing and non-controversial legal principles that a corporation is liable for the actions of its employees, particularly officers, made within the scope of their employment. Oberlin College asserted that Raimondo was at the protest in question as part of her job, and didn’t claim that the actions attributed to her by witnesses in handing out the defamatory flyers were outside the scope of her employment (though it did dispute the witness testimony as to what Raimondo did).

While Oberlin College publicly seeks to create a more favorable narrative, in court it is trying to shave the calculation of damages under Ohio’s tort reform law down from $44 million ($11 million compensatory, $33 million punitive) down to $14.3 million.  We went over that calculation, and the plaintiff’s counter-calculation netting plaintiffs $25 million, in a prior post, Gibson’s Bakery v. Oberlin College – Defense wants damages reduced to $14.3 million under Ohio tort reform caps.

The major dispute over calculation is whether the statutory cap on punitive damages of 2X compensatory damages applies to the full compensatory damages, or the compensatory damages after application of the cap on non-economic damages. That’s about at $10 million difference.

It’s not clear how the court will rule, but the plaintiffs seem to have the better argument based on the text of the statute in question. Defendants argued that the reading of the text argued by plaintiffs could result in an absurdity of a $1 billion verdict for non-economic damages being reduced to between $250,000 and $500,000 (depending how you calculate it) under the cap, yet the pre-cap $1 billion compensatory amount being doubled to $2 billion. That argument, based on the legal principle that statutes should not be read to create absurd results, is superficially sympathetic, but ignores that a court, in that scenario, could reduce or reject the $1 billion compensatory award without resort to the cap, as excessive and without legal or factual justification. The 2X punitive cap would apply only to whatever amount the court found was legally justified, not to a random absurd $1 billion non-economic verdict. So it’s a hypothetical absurdity that ignores the court’s ability to review a verdict.

But there is an underlying issue. The plaintiffs do not concede that the cap on punitive damages should apply at all, so plaintiffs want the court to keep the full $33 million punitive damage award.

Plaintiffs have filed a Brief (pdf.)(full embed at bottom) arguing that the cap on punitive damages as applied in this case is unconstitutional. The “as applied” language is critical, because the Ohio Supreme Court has upheld the punitive damage cap as a general matter, but according to plaintiffs’ legal analysis, left open that it would be unconstitutional as applied in a specific case. Plaintiffs argue that this is just such a case for the exception to the general rule on the punitive damages cap:

In Arbino, the Ohio Supreme Court found that R.C. 2315.21 was constitutional on its face. However, the Court left open “as applied” challenges to the constitutionality of this statute. As applied to the facts of the matter at hand, the caps on punitive damages in R.C. 2315.21(D)(2) violate the Plaintiffs’ right to due course of law under Article I, Section 16 of the Ohio Constitution.4 When reviewing R.C. 2315.21 on due process grounds, courts must apply the rational basis test. Arbino, 116 Ohio St.3d 468, ¶¶ 49, 99. Under the rational basis test, a statute must (1) bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and (2) be neither unreasonable nor arbitrary. Id. at ¶ 49. The statute fails both prongs when applied to the facts at hand….

Thus, the legislative purpose behind R.C. 2315.21 was to maintain focus on keeping punitive damage awards rationally connected to the defendant’s wrongful conduct. It cannot be said that the statute was supposed to remove any analysis of whether the particular amount of punitive damages is sufficient to deter the defendant from future conduct or sufficient to place a safeguard between the defendant, and other potential tortfeasors, and society at large. Further, Arbino acknowledged that if a double-the-compensatory award does not punish the defendant, then applying the caps to that particular case would be arbitrary and unreasonable. Id. at ¶ 103.

Plaintiffs then go on to argue that given Oberlin College’s approximately $1 billion in assets, and its defiant attitude at trial, applying the cap would be unconstitutional as applied to this case. (The plaintiffs do not cite the post-trial statements of Oberlin College, in which it continues to deny it did anything wrong and falsely portrays itself as being held liable for student speech and conduct).)

As a result, the Court must look beyond the text of R.C. 2315.21 to determine which punitive damages award (the jury award or the proposed statutorily-capped award) actually bears a real and substantial relation to the public health, safety, morals or general welfare of the public. Plaintiffs submit that, given the unique facts of this case, namely a billion-dollar-institution versus a small business, the Court should apply the jury award of $33,223,500. To apply a statutorily-capped punitive award to the facts of this case would not serve the public welfare because it would, in effect, permit Oberlin College to consider its tortious conduct as nothing more than the cost of business….

Moreover, application of the punitive caps in this case would be arbitrary or unreasonable because it would remove any rational connection between: (a) the amount of the punitive damages award and (b) Defendants’ tortious conduct or Defendants’ financial wherewithal for purposes of arriving at a sufficient deterrent and punishment. In Arbino, the Ohio Supreme Court clearly identified that the purpose of punitive damages is not to compensate a plaintiff, but to punish the guilty, deter future misconduct, and demonstrate society’s disapproval of the defendant’s actions….

Capping punitive damages to two time compensatory damages is arbitrary and unreasonable because it fails to set forth sufficient safeguards necessary to protect Plaintiffs and other members of society from Defendants’ bulldozer mentality. Likewise, calculating the punitive damages through mere arithmetic on the facts at hand removes all connection to the critical factor of whether the award is sufficient to deter the conduct of the Defendants. In fact, when discussing the unique facts of this case, we know that using arithmetic will not deter Defendants from committing future conduct similar to that in this case.

The plaintiffs included in the brief testimony reflecting the position taken by the college in the highly controversial email sent by the General Counsel of the college after the compensatory verdict but before the punitive damages verdict:

The discussion concludes:

In sum, on the facts at hand, applying R.C. 2315.21 would not serve the purpose of connecting punishment and deterrence effects to the actual conduct of Defendants. Instead, R.C. 2315.21 offers nothing more than a mechanical doubling of the compensatory damages awarded by the jury. As a result, application of the punitive caps in R.C. 2315.21 to the unique facts of this case would be arbitrary and/or unreasonable and is therefore, unconstitutional under Article I, Section 16 of the Ohio Constitution.

So where we are now is that the final calculation of damages, depending on how and whether various caps are applied, could range from $14.3 million to almost $40 million, not to mention attorney’s fees and pre-judgment interest.

[Featured Image: Gibson Family and legal team after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]

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Gibson’s Bakery v. Oberlin College – Plaintiffs’ Brief – Punitive Damage Caps Are Unconstitutional by Legal Insurrection on Scribd

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Comments

We have (3) possible punitive amounts: $33M, $25M, and $14M. My instinct says the judge will award $25M.

    OB Resident in reply to walls. | June 27, 2019 at 11:50 am

    Here is a panel discussion from yesterday with lawyers and reporters: https://www.ideastream.org/programs/sound-of-ideas/impact-of-gibsons-bakery-vs-oberlin-college-case

    At the 37:00 minute you will hear Peggy from Oberlin express what I believe is the general sentiment in the community. Yes, the students behaved monstrously, and the College was negligent , and the Gibson’s deserve compensation. But something in the range of $5,000,000 in compensation is surely adequate under the circumstances. $14,000,000 is beyond generous. Gibson’s is now losing a good portion of community support and a little humility and moderation of their current PR campaign for national victim status (I imagine spurred on by their attorneys that have no interest beyond the benjamins) and extracting as much money as possible from the college would serve them well at this point. The community never thought they were racist, and a mob sub section of the student body along with a few administrators didn’t and wasn’t going to change that opinion. There are also some good points about the double standard of free speech and colleges de- platforming conservative speakers.

      JusticeDelivered in reply to OB Resident. | June 27, 2019 at 12:40 pm

      Considering Oberlin College’s attitude and conduct, both past and especially present, and a clear indication that such conduct is likely to continue, I think that $33 million should be the minimum, and that since Oberlin College still does understand that an even higher damage award is reasonable. Most certainly Oberlin College can afford an even higher award.

      Gremlin1974 in reply to OB Resident. | June 27, 2019 at 12:50 pm

      Well a jury drawn from the community disagreed that 5 million was adequate. Frankly I think they should have to pay the full 44 million.

      Silvertree in reply to OB Resident. | June 27, 2019 at 8:06 pm

      The tremendous negative press this story has generated towards Oberlin College indeed shows the tremendous power of the Gibsons. The truth is a powerful thing. So are the qualities of integrity, graciousness and honesty…. which appear to be sadly lacking at Oberlin College. Go ahead, keep smearing these honest people, hold them responsible for all this press nationwide! A PR campaign? Are you kidding me? Just remember: if they have any power at all it is because they are right.

        Tom Servo in reply to Silvertree. | June 28, 2019 at 8:15 am

        Don’t you think it’s kind of amazing that after all this time, and all this reporting, NOW someone from Oberlin is trying to come to places like this LI and pitch Oberlin’s case to its critics?

        You know, if they would have paid even 1/10 as much attention to this case 2 years ago as they are paying to it today, they could have gotten out of it for maybe $100 k plus an apology. But guess what, you push a case until you LOSE this badly and, too bad! No Do-Overs!

      Tom Servo in reply to OB Resident. | June 28, 2019 at 8:11 am

      You are missing something quite big – the Trial is over, this is no longer about “The Community”. This is about Judicial examination of the award that the Jury made, both by this Judge and future Appellate Courts, and then should depend strictly on the correct interpretation of Ohio State Law, as it applies to such matters.

      As far as what “the Community” would like – well Oberlin maybe should have tried to come up with something along those lines say, 2 YEARS AGO???? Now, it is WAY too late to have dragged this out so long, tried to do so much harm, and then start whining about “oh we’re the victims here.”

      artichoke in reply to OB Resident. | June 29, 2019 at 9:29 pm

      I listened to that call and a couple following it.
      (1) The woman calling in says she’s a townie and Oberlin gives her kids near-free music lessons and free college credits. How nice for her, but that doesn’t mean punitive damages should be reduced. Maybe the jurors didn’t have kids of the age to happen to benefit from that. So she’s mad because her kids may have to pay more for music lessons, or something.

      (Near-free music lessons? Even at conservatories, private lessons for enrolled students are charged at the teacher’s hourly rate. Expect $50 / hour and up. I don’t know what sort of near-free lessons these were.)

      (2) The next woman asks “Would Oberlin sue if they hadn’t been losing money?” Probably not, and that’s the nature of civil litigation and damages. Duh.

      (3) The next person starts by talking about the enormous importance of institutional racism. Okey dokey. But then even he goes on to saay the college is responsible for making the students behave like responsible civilized people.

healthguyfsu | June 27, 2019 at 9:39 am

Seems a bit of a stretch for the good guys here.

I think middle of the road wins the day. Just don’t grant Oberlin’s defense their absurd calculation, please!

Brave Sir Robbin | June 27, 2019 at 9:47 am

This is a strategy by Plaintiff’s counsel to set up an avenue for appeal if the judge proceeds in a direction that favors Defendant. It is meant to be more of a threat for continuance of litigation at increased stakes to Defendant than anything else and intended to be a card to be played to settle and end this matter. I think it is weak and counter to the intent of Ohio law which is clearly to limit punitive damage awards. Plaintiff is basically arguing that Ohio law is bad law and should be ignored.

    I believe (and I’m not a lawyer) the following point made by the professor is or at least should be the pivotal consideration:

    “Plaintiffs then go on to argue that given Oberlin College’s approximately $1 billion in assets, and its defiant attitude at trial, applying the cap would be unconstitutional as applied to this case.”

    Following his other point that the judge doesn’t need the cap to slap down an unreasonable damages award, he conversely needs to consider whether the $44m is truly punitive. It certainly isn’t stinging enough to show any remorse so will they reconsider how they do things moving forward? If they continue with their current strategy of false characterization of the case as a national publicity campaign to retry the case in the court of public opinion, what judge/jury would not conclude that $44m was not sufficiently punitive? Maybe they need to be sued again?

    I expect the judge to argue that given Oberlin’s post-verdict behavior, he has little choice other than to sustain the amount and maybe even suggest that it may not be enough given Oberlin’s attitude.

    Meanwhile, keep piling on those legal costs! This just keeps getting better and better. Whodathunk that simply applying the law would result in a pivotal landmark case?

I still think Oberlin is playing the long game. To me, the college’s insistence that this is somehow a First Amendment issue, and that the judgement against them is a blow to the Bill of Rights means they are trying to attract the attention of a Democrat or GOPe Federal judge and get them to toss out the jury’s verdict on the grounds of “fairness” or some other lefty rubbish.

For those who insist that the Federal courts have no jurisdiction in this case, let me point out that the Federal judiciary has a long, sordid history of doing whatever it wants regardless of what the law or Constitution says. The chances of Oberlin getting a Federal judge to do its bidding in this case are not zero.

    Is OC arguing because they naturally want to minimize financial loss, or because in their heart-of-hearts they truly believe they are right? What do they want? Clearly this is a PR nightmare for OC. If you look at the comments in all related articles, especially articles in the local Chronicle-Telegram newspaper, they are decidedly and strongly anti-OC. The more they fight, the more they appear unrepentant, … the more they alienate a large swath of the population. They certainly need to weigh that damage and further damage to their image.

      JusticeDelivered in reply to walls. | June 27, 2019 at 12:44 pm

      If Oberlin College had any smart leaders, they would not be where they are today.

      MajorWood in reply to walls. | June 27, 2019 at 2:09 pm

      Oberlin could care the least what the locals think of them. IIRC, less than 10% of the students are from Ohio, and nearly all of those are from the major metropolitan areas and whose parents get their “facts” from the NYT. That is why Oberlin wanted a change of venue from a balanced jury to one which was biased towards them, hence Cuyahoga Cty. In essence, it is like a criminal wishing to be judged by other criminals, because honest people are biased against them.

      I am otherwise occupied tonight so I will have to rely on others to report the results of the conference call. I will predict though that probably every question that will be addressed has already been written out, vetted, and will focus solely on the “dramatic first amendment implications.” It will likely come off as spontaneous and subtle as a Varner post-verdict response. Also expect to hear the sound of shovels busy at work in the background.

      BTW, when they sell the college, I get first dibs on Baldwin.

    I don’t doubt that Oberlin would love for that to happen, but it’s not nearly as easy as you think. Judges, even at the Federal Level, are not allowed to just “get involved” in any case they feel like, because it interests them. (It may look like that from the outside, but that’s not what actually happens) A case has got to be brought to their Court before they can issue any rulings on it. In this case, Oberlin would have to petition to remove this appeal from the State Court System and transfer it over to Federal Court, and that issue of removal would have to be argued separate from the verdict, and even then it could only go to the relevant Federal District in Ohio (no idea who that is)

    I think even Oberlin realizes that won’t work for them, which is why they’re focused on reducing the damages in the Ohio State Courts.

    If the case were still on, I suppose Oberlin could try to get it moved to federal court. Now it’s over and there’s no case to move.

    An appeal would go to a Circuit Court, and their circuit is neither number 4 nor 9 so they won’t get automatic sympathy.

Oversoul Of Dusk | June 27, 2019 at 9:59 am

In the last paragraph you wrote “not to mention attorney’s fees and pre-judgment interest”.

Did you mean “post-judgment interest”?

I’d love to see Oberlin pay interest back-dated to the time of the riots. Even better, back-dated to the time Oberlin was founded. But that seems to punish them for matters beyond their control.

Good for the Gibsons and everyone else who was approached and refused to cooperate with Oberlin’s poorly considered choices.

Oberlin made a #MeToo-style request for campus-bound legal administration. Gibson refused their request. No one refuses. Send in the mob to spread wild allegations of diversity, Occupy their store, and Antifa-level stalking.

    artichoke in reply to n.n. | June 29, 2019 at 9:48 pm

    There was a comment somewhere that Gibson’s was a problem, because there’s nowhere near the same student animosity toward any of the other town businesses. Gibson’s must have been worse somehow.

    And maybe this is how. The other businesses went along and were bullied to allow shoplifting. Gibson’s said NO!

    What else could the difference be? We already have convincing evidence that Gibson’s was not racist.

I hope they used the Dean’s letter ( Amber whatever ) to the press
as an exhibit to demonstrate that puntative damages should actually be
higher.

For those who don’t know the Ohio constiotution theis Article ! Section 16
I.16 Redress in courts (1851, amended 1912)

All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.

This needs to be a resounding rebuke to all of the neo-Nazi (i.e., Left-leaning) colleges in the U.S. And that’s almost all of them.

In Arbino, the Ohio Supreme Court clearly identified that the purpose of punitive damages is not to compensate a plaintiff, but to punish the guilty, deter future misconduct, and demonstrate society’s disapproval of the defendant’s actions….

Further, Arbino acknowledged that if a double-the-compensatory award does not punish the defendant, then applying the caps to that particular case would be arbitrary and unreasonable. Id. at ¶ 103.

This analysis suggests that the court left the door open for an exceptional case.

The question is whether this is such a case.

Is it bad public policy to encourage the open disdain for the rights of individuals and a small business exhibited by Oberlin’s employees and lawyers?

Oberlin itself has made its intent to continue to libel Gibson’s bakery, thereby running the family out of business, and possibly eventually completing a pattern of buying up land in the town.

While the college’s subsequent statements signaling continued unrepentance and malice are not before the court, their lawyer’s absurd arguments, and their expert witness’s cavalier attitude are a matter of record.

    artichoke in reply to Valerie. | June 29, 2019 at 9:53 pm

    I agree that Gibson’s argument for exceeding the caps is reasonable. Not a slam dunk, because there are surely counter-arguments (similar cases where caps were applied in Ohio or other states with a longer history of tort-reform caps), but reasonable.

AlexanderYpsilantis | June 27, 2019 at 11:18 am

Oberlin College has learned nothing from this ruling, it’s time to apply the full punitive damages and let the chips fall where they may. The Board of Trustees needs to clean house, that’s obvious.

    JusticeDelivered in reply to AlexanderYpsilantis. | June 27, 2019 at 12:54 pm

    How about a class action in response to Oberlin College demanding that people and businesses not report crimes to police? Perhaps there could be another $30-40 million judgment?

    Are the college’s actions a violation of townspeople civil rights?

    It would really be funny if Oberlin College lost about 50% of their net worth.

      artichoke in reply to JusticeDelivered. | June 29, 2019 at 9:56 pm

      I too suspect Oberlin has been bullying other businesses to accept shoplifting (how else could a “culture of shoplifting” be sustained at OC?) and the difference is that Gibson’s didn’t roll over.

      They should fight back. Oberlin should pay the price for their history of abuse. And this is all for stuff within people’s current lifetimes, for which no compensatory acts have been asked yet.

AlexanderYpsilantis | June 27, 2019 at 11:18 am

Oberlin College has learned nothing from this ruling, it’s time to apply the full punitive damages and let the chips fall where they may. The Board of Trustees needs to clean house, that’s obvious.

    Gremlin1974 in reply to AlexanderYpsilantis. | June 27, 2019 at 11:43 am

    Yea, if you do a little looking into the board of trustee’s you will note that the current leader/president/whatever actually works for one of Soro’s political organizations.

To me this is simply the Gibson’s Legal Team doing their jobs.

    JusticeDelivered in reply to Gremlin1974. | June 27, 2019 at 12:58 pm

    I would like to see Gibsons setup a nonprofit which would help other townspeople find a path to Oberlin College’s gravy train 🙂

What would Oberlin do if Harvard Professor Ronald S. Sullivan was the absolute best attorney to defend them from paying out $44 mil?

“in court it is trying to shave the calculation of damages under Ohio’s tort reform law down from $44 million down to $14.3 million”

Why isn´t Oberlin College trying to get it reduced to $35,000? LOL.

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