The Gibson’s Bakery v. Oberlin College lawsuit has entered two post-trial phases: (1) Post-trial motions then appeals, and (2) public relations.

As part of this jockeying, Oberlin College’s president Carmen Twillie Ambar has written op-eds and given interviews in which she asserts that Oberlin College was held responsible for the speech of students. This, she argues, presents a threat to campus 1st Amendment rights because it could force universities to clamp down on student speech to avoid liability.

The effort to push out this theme has been well-planned and sustained, and included a FAQ information sheet for alumni. The basis of this public relations campaign, as we have pointed out repeatedly, is false. Oberlin College was not held liable for student speech but for the speech and conduct of its administrators in spreading alleged defamatory statements and interference with business and intentional infliction of emotional distress.

The Gibsons’ attorneys disputed Oberlin College’s claim it was held liable for student speech, and released their own FAQ information sheet, which went into detail on the evidence presented at the trial. David Gibson also recently released a video statement in which he asserts that Oberlin College is planning to drag out the appeals process because it knows he has been diagnosed with pancreatic cancer:

“They’re are sending a clear message to me and to my 91-year-old dad that they will just wait us out.”

(if video does not load, click here)

Yesterday the Gibsons’ attorneys further issued a statement regarding the outstanding issues, including an extensively expanded Q&A information sheet. The full statement is below, the numbered paragraphs subheadings and the quoted text are original, the commentary after each mine, emphasis is added.

1. REDUCTION OF JURY VERDICT AWARD FROM $44,298,000.00 to $25,049,000.00

Current Ohio statutes place a cap on the amount that a jury can award for non-economic compensatory damages suffered by individuals as well as capping the amount of punitive damages to two times the amount of compensatory damages. Accordingly, Judge John Miraldi reduced the jury verdict from  $44,298,000.00  to  $25,049,000.00. The Gibson Plaintiffs believe that these caps are unconstitutional in that they deprive damaged parties of the full protection and benefit of a jury trial. Juries in Ohio are entrusted with the wisdom and power in capital punishment cases to deal with the death penalty, but certain interests do not believe that these same jurors have sufficient wisdom to determine appropriate compensatory or punitive damages. In the event that this case is appealed, the Gibson Plaintiffs intend to seek to have the full verdict restored. Thirteen other states in the Union that have been faced with this issue have ruled that similar caps are unconstitutional.

WAJ: That the Gibsons might counter-appeal is not new, but it raises the stakes for Oberlin College. If a constitutional challenge to damage caps were to succeed, that would add almost $20 million to the damages, bringing the total including attorney’s fees awarded already to over $50 million plus accumulating interest. So an appeal is not cost free to Oberlin College.

2. AWARD OF ATTORNEY FEES AND LITIGATION EXPENSES

Judge John Miraldi on July 17, 2019 granted Gibson’s’ motion to award attorney fees and litigation expenses in the total amount of $ 6,565,531.79. As a part of the process whereby a jury in Ohio awards punitive damages, the jury can also make a determination that the winning party is entitled to an additional amount for attorney fees and litigation expenses, in an amount deemed appropriate by the Court. The purpose of an award of attorney fees in punitive damage situations is to attempt to preserve access to the justice system by having the losing party, which has maliciously and/or recklessly damaged the other party, pay for the expenses of bringing the lawsuit. Otherwise, it would be problematic for individual “Davids” to be able to hire competent counsel and effectively litigate against “Goliaths”. The jury was unanimous in making this determination of malicious and/or reckless conduct in the Gibson case.

WAJ: Nothing to add here.

3. DECISION GRANTING A STAY PREVENTING ATTACHMENT OF ASSETS TO SATISFY THE JUDGMENT AMOUNT AND ESTABLISHING A BOND  TO SECURE THE FUTURE PAYMENT OF THE JUDGMENT

The successful party in civil litigation may attach the assets of the unsuccessful party to satisfy the judgment. If the losing party refuses to promptly pay a legal judgment but it doesn’t want its assets attached, it may seek an order preventing the successful party from satisfying the judgment, pending an appeal or post-judgment procedures. To ensure that the request preventing the immediate satisfaction of a judgment does not prevent the successful party from ultimately receiving the benefit of the Court’s judgment, the Court customarily requires the posting of a supersedeas (sometimes referred to as an appeal bond) in an amount that provides the winning party with guaranteed security that the judgment plus interest at the rate of 5%  will be paid in full after the conclusion of post-judgment and appellate proceedings. Judge Miraldi ordered the Oberlin defendants to post a bond in the amount of $36,367,711.56 which has been done.

WAJ: Nothing to add here.

4. BUSINESS OUTLOOK FOR GIBSONS BAKERY FOLLOWING THE VERDICT

There are ongoing challenges in the fight for the survival of the 134-year-old family business. Oberlin College has waged a public campaign critical of the jury’s verdict. The Gibsons believe that Oberlin College’s refusal to acknowledge the message sent by the jury, while refusing to resume historical business relationships, continues to fuel the financial pressure on the Bakery’s existence. Compounding the gravity of these challenges, a very serious medical condition requires Dave Gibson and his wife to be absent from the Bakery for a period of at least 3-4 weeks while he receives intensive treatment at an out of state medical institution. In addition to the substantial expense of his treatments, Dave’s absence presents additional challenges to the business. As testified to in the trial, the Bakery’s workforce was significantly reduced because of lost business following the shoplifting incident. Because his absence will soon be noticed by the Oberlin community, and because it has been difficult for the family to respond to everyone who’s reached out to them, Dave made the decision to share some of these developments through the Bakery’s Facebook page. Our thoughts and prayers are with Dave, Lorna, and their family as they continue this difficult journey. Despite these challenges, the Gibson family remains committed to continued operation of the bakery in Oberlin.

WAJ: Note the highlighted sentences. Gibson’s Bakery clearly is having financial difficulties as a result of the loss of the college’s business, plus presumably a boycott by most of the college community. For that, the jury compensated the Gibson’s. But that money is years away. The open question is whether the bakery can survive a three-year appeal process.

5. FAQs SUPPLEMENTATION

Oberlin College’s post-trial public campaign attacking the message and lessons to be learned from the jury’s verdict has raised a number of issues which should be examined in light of the actual facts, evidence and applicable law which were submitted at the trial. A few commentators, apparently without interest in or access to the testimonial and documentary evidence in the case, have published misleading opinions regarding the issues and consequences of the jury’s verdict. Thus because, there appears to be some confusion regarding the actual facts and legal issues at trial, and so that the public will not be misled with further damage being inflicted on the Gibsons, we have been authorized to supplement the FAQs previously issued. The updated FAQs are available here: https://www.lawlion.com/wp-content/uploads/2019/08/UPDATED-FAQs-re-Gibsons-Bakery-v.-Oberlin-College.pdf

WAJ: The Supplemental FAQs are detailed, and include multiple updated and new sections responding, in part, to Oberlin College’s public claims about the facts. This obviously is the Gibsons’ read of the trial transcript, but it’s a good preview of some of the evidentiary arguments that will be made on appeal.

https://www.lawlion.com/wp-content/uploads/2019/08/UPDATED-FAQs-re-Gibsons-Bakery-v.-Oberlin-College.pdf

https://www.lawlion.com/wp-content/uploads/2019/08/UPDATED-FAQs-re-Gibsons-Bakery-v.-Oberlin-College.pdf

[David Gibson and Allyn W. Gibson at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]

 
 
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