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Oberlin College hires high-powered D.C. lawyers to appeal Gibson’s Bakery verdict

Oberlin College hires high-powered D.C. lawyers to appeal Gibson’s Bakery verdict

Board of Trustees Chair: “Left standing, the verdict could … set a troubling precedent for those institutions, like Oberlin, that are committed to respecting free speech”

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. Here is 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

The Statement reads, in part:

Oberlin College’s Board of Trustees announced today that it voted to appeal the jury verdict that held it and the college’s Dean of Students liable for a protest organized independently by students. Attorneys representing the College filed a Notice of Appeal today appealing the case to the Ninth District Court of Appeals in Akron, Ohio.

“The decision is grounded in the board’s fiduciary responsibility to the College’s long-term financial health,” said Board Chairman Chris Canavan. Left standing, the verdict could also set a troubling precedent for those institutions, like Oberlin, that are committed to respecting free speech, he said.

The College will continue to support the Oberlin business community, Canavan said.

The College has assembled an appellate legal team to take on the many dimensions of this case, he said.

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.

Levine has a national reputation as a leading First Amendment attorney and, during a career that spans four decades, has argued cases before the U.S. Supreme Court, has appeared in most federal appeals courts, and has written extensively on First Amendment and defamation law.

Berlin has represented clients in First Amendment cases for more than 25 years and has argued cases in numerous federal trial and appeals courts and in state courts across the country. He is also an Adjunct Professor of First Amendment and Media Law at Georgetown University Law Center.

“The verdict and judgment in this case set a precedent that endangers free speech on campuses and for all Americans,” Levine said. “The jury was allowed to award substantial damages for speech that is protected by the Constitution. The case should absolutely be reviewed by an appellate court.”

Ben Sassé is the chair of an Appellate & Legal Issues group with a long history of taking on state and federal cases at the appellate level. He has successfully argued cases on a broad range of issues before the Ohio Supreme Court and is a regular speaker on Ohio Supreme Court cases and practice.

Keyse-Walker has argued hundreds of state and federal appeals across the nation, with a focus on Ohio’s Supreme Court and 12 intermediate appellate courts. She was the first Ohio attorney to be elected to the American Academy of Appellate Lawyers and has written and spoken extensively on the development of an appellate practice.

“This case never should have gone to the jury in light of the heightened speech protections in the Ohio Constitution, and the trial court made several procedural errors during trial that led to this verdict. Among other things, those errors prevented jurors from hearing critical information about the original incident,” Sassé said.

THIS POST WILL BE UPDATED

To recap, there were two verdicts: $11 million compensatory damages rendered on June 7, 2019, and $33 million in punitive damages rendered on June 13, 2019, after a separate punitive damages trial. The combined $44 million was reduced by the Court under Ohio’s tort caps to just over $25 million. The Court also awarded over $6.5 million in legal fees and costs against defendants on top of the damages. Defendants were required to post a $36 million bond to secure the judgment pending appeal.

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): [***]

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….

The Jury Instruction on corporate liability focused on damages “caused by Oberlin College’s employees” (not students):

Respondeat Superior

GENERAL. Plaintiffs seek damages from Oberlin College for injuries caused by the Oberlin College’s employees. An employer is liable for injuries caused by their employee while acting within the scope of employment….

In analyzing whether an employee’s actions constitute libel, intentional interference with business relationship, or intentional infliction of emotional distress you should apply the burden of proof and elements of those claims to the evidence presented of the employee’s actions.

Gibson’s Bakery also disputes Oberlin College public relations campaign claiming it was “held liable for the speech of its students”, releasing a detailed fact sheet.

(added)

Statement from Lee Plakas, Attorney for the Gibsons:

Given the repeated attempts by Oberlin College to discount the jury’s verdict, their decision to appeal comes as no surprise. But despite the college’s attempt to reframe this as a First Amendment issue, the law and the facts of this case remain clearly on the side of the Gibson family. The law and the jury’s verdict both remind our country that claimed free speech has its limits, even on a college campus.

The jury’s verdict sent a clear message that institutions like Oberlin College should not be permitted to bully others while hiding behind the claimed shield of free speech. There are no exemptions from the law of defamation – a fact we trust will be confirmed during the appeal process.

[Featured Image: Allyn W. Gibson at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]

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Comments

notamemberofanyorganizedpolicital | October 8, 2019 at 2:11 pm

RE: “Board of Trustees Chair: “Left standing, the verdict could … set a troubling precedent for those institutions, like Oberlin….”

Yes, a GOOD precedent in that if “You lie, You fry!”

    I don’t think any of us are surprised that they keep doubling down. I think we all expected it.

    But I suspect that they waited too long to get the big guys in – they needed them before the jury trial began. And they’re still mischaracterizing the case as being about speech, when it was about Oberlin’s actions.

Luckily for the Gibson’s, the law is on the right side for now.

Not so good for the Gibson’s is that powerful attorneys like these Soros cronies can sometimes get away with changing the law when it suits them.

    Tom Servo in reply to healthguyfsu. | October 8, 2019 at 3:38 pm

    I believe the reason Oberlin is talking about the 1st Amendment so much is that the Washington lawyers are going to try to get it moved to Federal Court. I don’t think they can, but they’re going to try.

    Oberlin was already lost $30 million, they’re going to spend another $30 million in more legal fees to try to get out of paying the first. But this isn’t about money, this is about establishing their Right to Rule.

I am for almost anything that will get our colleges to quit brainwashing our youth.

Note to high powered legal firm now with Oberlin… “you can’t polish a turd”.

    PrincetonAl in reply to alaskabob. | October 8, 2019 at 3:18 pm

    No but you can bill a lot of lawyers at a very high hourly rate trying.

      They’ve got more money than common sense. This new law firm is going to fix that.

        Zardoz in reply to Andy. | October 9, 2019 at 8:38 am

        I am not at all sure of that. I believe the oberlin’s only way to be SURE of a verdict that pulls the rug out from under justice it to buy off the judge. The idea of blind justice went out the window decades ago – when the two-tier justice was set up.

A sign that Oberlin intends to fight this politically, not judicially.

“The verdict and judgment in this case set a precedent that endangers free speech on campuses and for all Americans,”

This is an outright lie.

Where can I go to donate to the Gibson’s legal team?

For weeks I have been working on debunking the crap that Canavan and Ambar are throwing at the alumni. Canavan is conveniently ignorant of the point that the issue was defamation, not freedom of speech. Canavan is not even a lawyer, but he elasticizes the truth magnificently.

True, Oberlin College did not directly defame the Gibsons for the most part, but the college was passively complicit in the extreme.

So the mask finally drops. It IS Soros behind all of this after all. I’m sure locals will appreciate being dictated to by corrupt global interests. This could be throwing gasoline on a fire before the fire even starts.

    rhhardin in reply to Pasadena Phil. | October 8, 2019 at 3:32 pm

    To be fair, the likely cause was a lefty alumnus working for Soros noticing that his alma mater was in trouble and taking leave of absence to help out, rather than Soros being behind it all.

    We don’t know that it IS Soros, but it is a pretty good presumption considering that Canavan, Chair of the OC Board, is a right-hand man to Soros. I will be shocked if Soros is not a key culprit.

    Assuming that Soros is the chief rat in this mess, do you think that he has been given anything more than the one-sided and expurgated “facts” that Ambar and Canavan have been pushing?

    I have been the lone voice in the wilderness who has made many earlier posts on LI shaming the Board for allowing the Gibson mess to fester and for not acting like a Board.

    Canavan has clearly been reading my posts, has taken my bait, and is finally being proactive in the Gibson matter. Unfortunately, the cornerstone of Canavan’s proactiveness, which is twisting a defamation issue into a freedom of speech issue, is just plain sick.

    It appears that the top priority of the Board is to eradicate the Gibsons. Why? Murder will out in due time.

    You can now truthfully claim that Nobody told you.

    /s/ JD Nobody, OC ’61

I guess Oberlin isn’t so poor as to get Top Tier lawyers.

I’m glad the judge insisted on a full bond before allowing an appeal.

“… to address the intersection of defamation law, First Amendment principles, and Ohio tort reform doctrines this case raises.”

it’s always about the intersectionality of stuff, isn’t it?

I am not knowledgeable about Ohio appellate procedure, but I believe that the bond was necessary to stay execution on the judgment (“supersedeas bond”), and was not required for the College to file an appeal.

“The jury was allowed to award substantial damages for speech that is protected by the Constitution.”
______________

Saying it won’t make it so. The jury awarded the damages for the conduct of Oberlin’s employees, not for the students’ speech.

But keep wasting your money, Oberlin.

looks like at least another few million in legal fees on the horizon. Oberlin will be begging for donors or dipping into the endowment

Good Money After Bad Dept.

Something I’ve become acutely aware of is that when evil people are called to task for something that they’ve done, they cannot accept responsibility for their actions. They will always conjure up excuses or point the blame somewhere else. It’s never them.

Translation: “We have to hire the pros from Dover, because if we lose, we can tell our Board, “we did the best we could.””

Gibson attorney Plakas said if Oberlin appeals, he would file suit to challenge the constitutionality of Ohio tort reform caps and seek full punitive damages. I wonder if that is still true … and the status of that. Plakas may need to come up with some heavy hitter firms as well. A fight among the giants is looming.

Suggest that the Trustees read the books of Raymond Q Armington, one of the largest donors with his wife Elizabeth to Oberlin College when it had a Board of Trustees which were solid and stable:

The Rediscovery of American Common Sense ISBN 9780895268006

Publisher: Regnery Publishing, 1986

Common Sense is exactly what Oberlin Trustees and their high powered leftist lawyers are lacking.

Oberlin needs to come to terms with the fact that the progressive policy “diversity” (e.g. racism) breeds adversity.

I worry about the Gibsons because I’ve had strong feelings about money buying “justice” ever since the OJ Simpson trial, which cost him $4M to avoid being convicted of murder. It looks like Oberlin is willing to spend as much money as needed to buy the “justice” they want. I hope the courts won’t let that happen, but I have little faith in them.

The best leverage to apply in this case would be from the Oberlin alums, if they got together and forced Oberlin to settle right now and stop this nonsense. But Oberlin has been turning out SJWs for quite a few years now, and the alumni might not help to end this.

    txvet2 in reply to OldProf2. | October 8, 2019 at 10:20 pm

    I still think the OJ verdict had less to do with the price of his lawyers than it did with the incompetence of the prosecution.

      healthguyfsu in reply to txvet2. | October 8, 2019 at 11:27 pm

      Also, the venue and the jury pool.

      9 jurors were black and this case had a lot of racial animus surrounding it. The jurors probably weren’t entirely immune to that.

    Zardoz in reply to OldProf2. | October 9, 2019 at 8:51 am

    I believe I read some where that oberlin had 1.5 billion in reserve. If that is true, this sum they “Might” have to pay is chicken feed for them.

4th armored div | October 8, 2019 at 5:21 pm

can Oberlin be judged with higher legal and damages cost when they lose ?

I wonder … does Oberlin have sanctions and penalties against “hate speech”, where students and faculty can be disciplined for hurting some protected group’s tender feelings? Are there “free speech zones” where non-leftist ideas and opinions can be safely isolated, or is the campus one big gulag of Correct Thinking?

If so, then Oberlin hiring a law firm specializing in First Amendment issues would be like a KKK member claiming they are the victim of anti-black racism. With the possible exception of the MSM no institution in US history has done more to promote censorship and repression than colleges and universities. This would be chutzpah on steroids!

Alrighty. The big name firm in the Cleveland/northeastern Ohio area is BakerHostetler. They’re the ones you see elites turn to when they’re in trouble. Did they turn down Oberlin? Taft Stettinius & Hollister LLP is mostly a Cincinnati-rooted firm and not an obvious choice. Ballard Spahr apparently picked up the First Amendment practice through an acqui-hire in 2017.

I don’t think there is enough popcorn for the upcoming theatrics.

“…set a troubling precedent for those institutions, like Oberlin, that are committed to respecting free speech”

I suggest some conservative students (if there are any) or perhaps some local citizens set up an information table at Oberlin espousing the rights of the unborn, support for traditional marriage or the endorsement of Trump 2020 and lets observe Oberlin’s commitment to free speech first hand.

This is so contemptible, obnoxious and perverse — Oberlin willfully and maliciously abuses speech to slander and vilify a reputable business, and, to gin up the infantile, Leftist, jackbooted mob, against it; then it is subsequently held accountable for its conduct at trial, and, now, seeks to play “victim” and re-cast itself as a persecuted martyr for free speech.

PUT DOWN THE SHOVEL!!!

Prof Jacobson, if Gibson’s prevails on appeal, do you think they could recover under the Ohio statute their legal costs of defending the appeal?

These idiots will deservedly lose on appeal, after having spent who knows how many more millions of dollars from their endowment.

As an exercise in Leftist SJW infantilism and arrogance, this case has been hugely instructive.

I used to work with Keyse-Walker at the predessor firm of Tucker Ellis, she is a good smart lawyer.

So with Taft and Tucker now on this case, I now have my first two entries of my resume working it.

Lookig forward to meeting you Professor in Kingwood Monday.

    Tim, This matter could be a good test of whether Keyse-Walker is, in fact, the “good smart lawyer” you say she is. It seems odd that she would take a case where both the law and the facts are so against her.

    Will she be able to do what an earlier commenter in this thread referred to as “polish a turd?” Maybe she can even though clients sometimes tell whoppers that trick their attorneys. Oberlin is one of those clients.

    Will she be able to apply the polish and keep her reputation from becoming encapsulated in the turd?

    One would hope that she is not a good enough trial lawyer to sell defamation as free speech.

      Tom Servo in reply to J.D.Nobody. | October 9, 2019 at 11:24 am

      What she is facing is a constant test and temptation to all good lawyers, and it comes up constantly. Do you take a bad case just because you are promised so much cash to take it, win or lose? The promise of a million dollar payday even if you lose is pretty darn alluring. (and a truly good lawyer on this kind of case will demand cash up front)

      Wouldn’t put it past her. Of course in all my years in Cleveland I have seen some cases that were turds go to the Court of Appeals and come back with a nice shine to it.
      This is one those cases, were I will be rooting against my former employers and attorneys I have worked with and have respect for.

“This case never should have gone to the jury.”

Exactly.

People w/o their heads shoved up, well, you know where, would have settled it quickly with an apology. It got here because of the arrogant prats running Oberlin and they will deserve everything that unfolds down the line.

    Surely, MajorWood, you are not saying that Canavan and Ambar have their heads so far up their rear ends that they are coming out of mouths, sort of like human Klein bottles?

The protest happened about THREE YEARS AGO. Wonder if they’ll still be fighting this case during Trump‘s second term.

    MajorWood in reply to Sally MJ. | October 8, 2019 at 11:16 pm

    You don’t have faith that we will be into a second separate defamation trial by then? 😉

    On a plus note, the increase in the endowment due to Trump’s policies will be able to keep pace with the ever increasing judgements and expenses.

The Friendly Grizzly | October 8, 2019 at 11:35 pm

How much of this is Oberlin waiting out the clock on the two eldest Gibson’s?

    That shouldn’t change the judgment, right? Since the actual court decision happened while they were alive, any appeal would have to pretend they still were. I’ll let the actual lawyers correct me, if I’m wrong.

      Tom Servo in reply to GWB. | October 9, 2019 at 11:26 am

      Yes, if they pass on, any award becomes part of their estates, just like any other financial asset would.

This utter b***s**t is really getting too boring to pay attention to.

Can we start putting the administrators of Oberlin in stocks and start throwing rotten vegetables already?

Soros Fund Management
Well, that tells a lot right there.

One Oberlin initiative
Wow. If that doesn’t creep you out….
And that smells like Soros, too.

Somebody inventory and value the art work collection. I would expect some high value pieces hitting the auction block or appear in prominent law offices in the very near future.

This case is not about ‘free speech’. It is about the vile behavior and slander Oberlin indulged in.

Oberlin wasn’t interested in protecting free speech. It was interested only in persecuting these people.

It is looking more and more like the personalities betraying both the College and the Gibsons are sociopaths. A sociopath would have no difficulty twisting defamation into a freedom of speech issue and doing it with a straight face.

“high power” lawyers aren’t always what they are cracked up to be. Years ago a client of my old firm got in trouble, 50+ FBI, DEA, IRS-CID and postal inspectors raided him and his business early one morning., The game plan was to make him the first test case for enforcing a relatively new statute. Things went on for about six weeks or so and we had a financial settlement worked out with the relevant US Attorney. Give them $100K and they go away. Client talks to the local ex-congressman who tells him to hire these two (husband and wife) big-time DC attorneys (they still appear on TV). They come in, are complete jerks, and piss off the US Attorney. So we end up going to trial two years later on 49 counts. Not guilty verdict on all counts. Client spent three million on defense costs, and who knows what on meds to keep himself under control. Big Time lawyers got $50k for a weeks work of mucking it up.

Now I don’t know these specific lawyers and there work, but remember they are in state court in Ohio. They are working as appellate counsel not trial counsel. Their ability to add anything to the record is limited but I expect them to try. They are appealing a jury verdict not a bench trial so the scope of review is also limited. Presumptions of fact are more firmly set in stone than in a bench trial.

Diversity breeds adversity…someone said above. So true. Maybe we should stop labeling people, then there is no need to be diverse? Outlaw use of racial terms on campus to describe people, ie. no more “black XXX club”, “Asian YYYY organization”, etc.

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