There are a lot of things about the way Oberlin College handled the Gibson’s Bakery dispute and lawsuit that have had me wondering who, if anyone, is in control over there.

As mentioned numerous times, “from the start of this case I have questioned the aggressive and demeaning attacks on the Gibsons as a defense strategy,” and “I’m still shaking my head at the tone-deafness of the defense in belittling this family business.” The jury seems to have agreed, rendering a combined $11.2 million compensatory damages verdict against Oberlin College and its Dean of Students, Meredith Raimondo.

The next stage is a punitive damages hearing, since the jury found the defendants acted with intent and malice. A separate punitive damages hearing is required under the Ohio Tort Reform legislation that passed several years ago. The point is to keep some of the more inflammatory evidence that does not go to liability or compensatory damages away from the jury during the initial deliberations. That additional evidence relevant to punitive damages could include information as to the wealth of the defendants, but also additional information supporting the need for punishment.

In this context, there is nothing more baffling than a statement sent to alumni after the verdict by Donica Thomas Varner, Oberlin College’s Vice President and General Counsel.

The statement was contained in a mass email sent to alumni (and possibly others) criticizing the jury verdict and repeating the same stale defenses that failed at trial (emphasis added):

Dear Members of the Oberlin Community:

I am writing to update you on the lawsuit that Gibson Bros., Inc. filed against Oberlin College and Vice President and Dean of Students Meredith Raimondo in the Lorain County Court of Common Pleas in November 2017.

Following a trial that spanned almost a full month, the jury found for the plaintiffs earlier today.

We are disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented.

Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others. Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student protests.

As we have stated, colleges cannot be held liable for the independent actions of their students. Institutions of higher education are obligated to protect freedom of speech on their campuses and respect their students’ decision to peacefully exercise their First Amendment rights. Oberlin College acted in accordance with these obligations.

While we are disappointed with the outcome, Oberlin College wishes to thank the members of the jury for their attention and dedication during this lengthy trial. They contributed a great deal of time and effort to this case, and we appreciate their commitment.

Our team will review the jury’s verdict and determine how to move forward.

Donica Thomas Varner
Vice President, General Counsel & Secretary

Procedurally, the email is baffling because the trial is not over. The jury will hear more evidence and render a verdict on punitive damages that could add another $22 million to the $11 million compensatory. The objective of any communications at this sensitive stage must be to first do no harm. That’s how Scott Wargo, Oberlin’s spokesman, handled it when contacted by me and other media after the verdict, indicating the college had no comment on the jury verdict. Wargo’s statement was the professional response one would expect in this circumstance, so why are others at the college not heeding that basic corporate communications strategy?

Substantively, the email is infuriating to anyone who has followed the case. Oberlin College and Raimondo were not “held liable for the independent actions of their students.” Rather, the defendants were held liable for their own conduct in aiding and abetting the publication of libelous documents, interference with business, and intentional infliction of emotional distress. Let me repeat, it was the college’s and Raimondo’s own conduct that was at issue before the jury. That the General Counsel of Oberlin College doesn’t understand that — even if she disagrees with the jury conclusion — tells me something went very wrong with the way this case was handled internally at Oberlin College.

Varner began serving as Oberlin College’s Acting General Counsel on June 5, 2017, and was appointed General Counsel in March 2018. Prior to that, she spent 15 years in the General Counsel’s Office at the University of Michigan. This means that while she was not at Oberlin College when the protests took place, she was General Counsel starting several months before the lawsuit was filed in November 2017. Given her position, she likely would have been the administrator at Oberlin College overseeing outside counsel’s handling of the case. Depending on what her role was in overseeing the failed litigation (effectively, she was the “client”), she may not be the best person to be involved in communications strategy post-verdict.

I saw this phenomenon when I was in private practice representing employees against securities firms, which usually had in-house counsel involved in termination decisions. When the in-house counsel who advised as to termination also showed up overseeing the litigation, I knew there were going to be problems because that person had an interest in defending his or her own termination advice, rather than providing a cold, disinterested litigation assessment.

We would have to know more about Varner’s involvement in overseeing the litigation. But if she was the key point person at the college as to the litigation strategy, she may not be the right person to handle corporate communications.

Someone with such deep experience as Varner should have known better than to send out such a statement in the middle of trial, particularly on the cusp of a punitive damages hearing. I understand the college felt the need to say something, but first do no harm. Simply send out a mass email, since alumni were going to hear about the verdict through the news, indicating that the college cannot comment since the trial is ongoing, and that more information will be provided after the trial is over. Or express a vague regret at the verdict and respect for the jurors.

But for heaven’s sake, don’t make things worse.

Don’t accuse the jurors of disregarding the “clear evidence,” don’t repeat the same failed claim that the college administrators were simply keeping the peace and protecting free speech when numerous witnesses testified otherwise, and don’t claim the college was held liable vicariously when in fact the college’s own conduct was at issue.

The post-verdict email could be Exhibit A at the punitive damages hearing as to why the compensatory damages are not sufficient to send a message to Oberlin College and its administrators. Whether it will be an exhibit we’ll find out on Tuesday.

[Featured Image: Four generations of Gibson Family after Verdict][Photo Credit: Legal Insurrection Foundation]

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