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We interrupt this pandemic to update you on Gibson’s Bakery v. Oberlin College case

We interrupt this pandemic to update you on Gibson’s Bakery v. Oberlin College case

College comes to the aid of Cleveland media group seeking to unseal store clerk’s private Facebook records, while appeals court Magistrate denies college’s motion to expand briefing page limits.

It has been a while since we’ve covered the ongoing legal developments in Gibson’s Bakery v. Oberlin College.

Our last post was on February 15, 2020, right before all hell broke loose with the Wuhan coronavirus pandemic, To Dox The Store Clerk or Not, That Remains The Question In Gibson’s Bakery v. Oberlin College.

The Cleveland Media Motion to Unseal Private Facebook Records

The post linked above concerned a post-trial effort by a group of Cleveland media entities which allegedly have ties to Oberlin College’s lead trial lawyer to unseal confidential Facebook records of Allyn D. Gibson, the store clerk who stopped a black Oberlin College student from shoplifting. That stop set in motion a chain of events that eventually led to the trial and the $32 million judgment against Oberlin College.

Allyn D. was not a party in the case and did not testify. See the post linked above for all the details, including the suggestion by the Gibsons that there is collusion between the college and the media entities to “doxx” Allyn D. The judge requested additional briefing as to whether the court still had jurisdiction now that the case is on appeal. The media group said yes, Gibsons said no. One of the points the Gibsons raised was that since Oberlin College was denied identical relief, a ruling by the trial court now as to the media group could interfere with the appeal.

Up to this point, Oberlin College had been silent as to the media group motion to unseal, even when the Gibsons alleged collusion. But for the first time, Oberlin College filed a Notice with the Court that it would not be including the denial of Oberlin College’s motion to unseal in the appeal. This clearly was an attempt to help the media entities in their effort to unseal the records — supportive of the Gibsons’ claim that the media group and college were colluding.

The Court has not ruled as of this writing.

The Appeal — Magistrate Denies Defendants’ Request for Expanding Page Limits for Briefs

The Facebook records fight aside, the appeal of the substance of the judgment has seen some procedural skirmishes.

By agreement of all parties, there was a limited remand to the trial court to memorialize in writing some of the verbal trial rulings so they could be addressed on appeal. That happened, and now the case is back in the appeals court, but not before the defendants filed a second appeal for procedural reasons, to make sure the rulings memorialized on remand were appealed. The appeals have now been consolidated.

But nothing in this case is simple. Oberlin College, which has added additional lawyers for the appeal, including First Amendment specialists from D.C., filed a motion to permit expanded briefs, from the standard 35 pages to 50 pages. The motion and opposition by the Gibsons opens a window into the macro-level strategies of the two sides on appeal. The details of the alleged trial errors likely to be raised on appeal are in the post-trial motions, but the overall approaches revealed in the page-limit motion are instructive.

Here’s my (very) loose paraphrase of Oberlin College’s Motion to Exceed Page Limitations: OMG, this is so complicated and so big! There are really important STUDENT FREE SPEECH issues on which the fate of the Republic hinges, we need more pages! And there are SO MANY problems with this trial, and the Judge did SO MANY things wrong, we need more pages! Did we say STUDENT FREE SPEECH? Yes, we said STUDENT FREE SPEECH, thanks for asking.

Here’s my (very) loose paraphrase of the Gibsons’ Opposition to Motion to Exceed Page Limitations: This is a simple tort case, and there are no complicated legal issues. The defendants defamed us, interfered in our business, and intentionally inflicted emotional distress, and while there may be factual disputes — resolved in our favor by the jury — the law is pretty plain. This is not a student free speech case, no matter how many First Amendment lawyers the defendants hire.

The Magistrate who handles such procedural matters in the appeal court rejected the defense motion for expanded briefing.

What’s Next

It’s unclear to me from the docket what the timing of the briefing will be. The defendants brief was due in early May, but the Magistrate’s Order suggests that the date will be reset once the record from the remand rulings is received.

Since the judgment is secured by an appeal bond, the Gibsons do not have to worry about collecting no matter how hard the pandemic hits Oberlin College’s finances.

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

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Comments

Comanche Voter | April 25, 2020 at 9:27 pm

Oberlin acted shabbily. They need to be hung out to dry.

    JusticeDelivered in reply to Comanche Voter. | April 26, 2020 at 4:16 pm

    Shabby is completely inadequate to describe Oberlin administrators and at least some student conduct. The only good thing about the current situation is that they are burning their endowment at a staggering rate while facing both a general enrollment decline and additional losses due to fallout from China’s Wuhan Virus 2019.

      SuddenlyHappyToBeHere in reply to JusticeDelivered. | April 27, 2020 at 9:11 am

      I suspect insurance is paying this defense. Even if the carrier has denied liability, if the law in Ohio is like the law in PA, the “duty to defend” can be triggered by the complaint even while ultimately there may not be any carrier liability. Depends on whether the complaint can be read to state any claim that a carrier is on the hook for.

It’s obvious that Oberlin is abusing the system through the filing of endless, frivolous motions that are grounded in nothing more than a desire to avoid taking responsibility for its administrators’ tortious conduct, and, avoid paying damages to the plaintiff. At a certain point, a judge needs to put his/her foot down, and say, “enough with the procedural machinations.”

    buck61 in reply to guyjones. | April 26, 2020 at 10:33 am

    I doubt their lawyers are working for free either. They ran up some extensive legal fees in the original trial with nothing to show for it, including having to pay the fees for the Gibson’s. The pool of expendable cash has limits.

      SuddenlyHappyToBeHere in reply to buck61. | April 27, 2020 at 9:18 am

      Depending on the terms of the insurance policy, there may not be any limit to the defense costs. If the policy provides that defense costs do not erode limits insurer will bear the full cost, without limit. Those sorts of policies are becoming uncommon, but have existed in the past.

      I am surprised that insurer (yes, I assume one is involved here) has not tried harder to get a settlement done.

    SuddenlyHappyToBeHere in reply to guyjones. | April 27, 2020 at 9:15 am

    Nah, that is pretty much standard litigation practice in America. So, not considered abuse. On the other hand, it does demonstrate that we are ruled by idiots with licenses to practice law.

The appeals court legal wrangling portion mystifies me.

It seems that Oberlin wants a retrial – or a new trial. A new trial based on the idea that students are free to libel people or a business without regard to the factual circumstances of the thing? And the leftist media front group called the Cleveland group want to unseal a sealed facebook account – because no matter what happens – they can then fabricate and persue a civil rights claim and endlessly depose a Gibson family member(s)?

    PostLiberal in reply to Tiki. | April 26, 2020 at 2:33 am

    A new trial based on the idea that students are free to libel people or a business without regard to the factual circumstances of the thing?

    The issue at trial was NOT alleged student libel, but the actions of Oberlin College administrators.

      Edward in reply to PostLiberal. | April 26, 2020 at 9:29 am

      You are correct, but I think Tiki, without reading the exact pleading, suspects the Oberlin “student’s First Amendment (protected) right” mentioned by the Prof is in great part based on that sort of argument.

      But I could be wrong. She Who Must Be Obeyed tells me often that I am and historically have been over multiple specific times she clearly recollects and I no longer do. 😉

      I pretty much understand the arguments of the original trial.

      What happens if Oberlin wins the appeal?

      What happens if the Cleveland front group unseal the faceblook account?

I think that Gibson’s position that this is a simple tort situation is dead on accurate. To try and muddy the waters by making it a First Amendment case is simply a dishonest effort by the defendant attorneys. It will fail.

Is all of this moot ?
I mean, will Oberlin survive the pandemic ?

    Milhouse in reply to Neo. | April 26, 2020 at 2:53 am

    It doesn’t matter. They’ve got the assets to pay the judgment, and it’s secured, so even if they go under it will be paid.

      Edward in reply to Milhouse. | April 26, 2020 at 9:31 am

      And it isn’t at all likely that the lawyers will be stiffed on payment of their bills. They probably have a lien on the physical plant to assure their payment security.

        Tom Servo in reply to Edward. | April 26, 2020 at 3:42 pm

        If they’re truly sharp lawyers, and I suspect they are, they’ve already demanded a big cash payment up front. Lawyers at that level don’t work on credit.

Brave Sir Robbin | April 25, 2020 at 11:46 pm

A great question. And here are some more to flesh out an answer.
How much has Oberlin’s endowment suffer for the market turmoil?
Are they on the hook for demands for refunds for this semester?
What staff, if any, have they laid off?
What is next year’s registration looking like?
How much more are they willing to spend on this matter? (Hint, their legal team is justifying this via terms of ROI on the potential for an award reduction, by appeal court of by settlement, not a reversal)

But do not worry about the administrators at Oberlin. They do fine until the endowment is depleted to zero and all the buildings, furnishings, artwork, and anything else of value has been sold off.

    I do wonder how long that will be. Given the number of lawyers they seem to be hiring, its surely got to be expensive. Further, given they’ve almost certainly sent all or most of their student body home one wonders how much money they could actually be making to offset the expenditures.

    And, furthermore, one has to contrast all of their efforts in this case to what happened with the Joy Karega case. If you recall, Joy Karega was the Oberlin professor who was spewing anti-Jewish hate speech. After the alumni complained, there was a long-drawn out process after which she was fired. She then sued Oberlin for $885,000. Just recently Oberlin settled with her for an undisclosed amount.

    So, Oberlin is willing to pay an antisemitic ex-professor without any effort at a legal battle, but fights to the death to defame a small bakery?

    To me, this screams of a personal battle. Some important people at Oberlin are using this as a proxy for some issues in their own life.

      alaskabob in reply to slither. | April 26, 2020 at 10:56 am

      That trial could have unmasked extensive anti-Semitic beliefs by many of the staff. That may go over big with the BDS crowd but not many more. It would only further tarnish Oberlin in any suit.

      So I guess they want to show that the Gibson employee was racist and that the Black students had a right to protest even though the shoplifting crime was real. Thingies back to Oberlin wanting to be the arbiter of any punishment .

    artichoke in reply to Brave Sir Robbin. | April 27, 2020 at 9:11 am

    Isn’t Oberlin just the sort of small liberal arts college, that charges a lot for its special on-campus experience, that will be financially hurt the most by this pandemic?

    And I can hardly imagine the conservatory half of their college can function much at all. Although that could be a saving because I read a lot of conservatory students are on scholarship; they are prioritized for financial aid because musicians aren’t expected to make much money at all after graduation.

Diversity (i.e. color judgment) suffered a setback, but the multi-billion dollar industry and social contagion progresses. Baby steps.

Oberlin wants a do-over. Hopefully, this is a losing strategy.

Professor, could you explain the following sentence from the article? Feels like a quadruple negative pummeling to me:

“Oberlin College filed a Notice with the Court that it would not be including the denial of Oberlin College’s motion to unseal in the appeal.”

    Milhouse in reply to Sally MJ. | April 26, 2020 at 2:57 am

    It’s fairly simple: They wanted to unseal Allyn Gibson’s facebook records. The judge said no. Until now it was assumed they were going to appeal that decision along with everything else, and therefore it was thought that the “completely unrelated, I swear” motion by the Cleveland media groups would interfere with that appeal. So now Oberlin says no, we’re appealing everything else but not that, so the Cleveland people, who are not coordinating with us at all, oh no, we barely even know each other, have a clear run. Hopefully the court will see through this.

I wish I was better at internet multimedia and graphics stuff, because there is a real need for a “Downfall” parody here. The entire Oberlin trial strategy and events seem to mimic the utter contempt that the Third Reich had for the rest of the world. I mean seriously, after that interview with Koeppel that went just so hooribly, you’d think that there would be calls for twillies removal. That sad part of Oberlin is that it really is like a cult where no one can criticize them without severe repercussions. I can, because I pretty much don’t care at this stage in my life. But most of the alumni value their connections with other alumni and I guess have some fear of being socially ostracized were they to criticize any aspect of the college, which, ironically, would likely get them labeled as a racist or other “ist” of some sort.

The only people who seem to be really aware that the college F’d up in a major way are the small minority of conservative alumni. We are the only ones who could bring a bit of sanity to the table, but we have been completely dismissed from the table already. I honestly don’t even care for the college at this point, and am here more out concern for the Gibsons. And that is why the Downfall parody would fit. Oberlin is still defending their position just like Adolf was a hundred feet below Berlin.

On a plus note, it did prepare me for dealing with the pandemic proponents, who are a similar group of “we will see it because we believe it” scientists. A buddy and I were going through the Maryland numbers earlier tonight which completely confirm all of our suspicions about the distribution of deaths. I had made a statement earlier that the 40,000 UMD students were at a higher risk of alcohol/drugs/suicide while attending school that from covid. Of Maryland’s 4M residents, there have only been 4 deaths below 30, and they were in the 20-29 bracket. Hmmmm, 1 in a million, yeah lets close the University to be safe. These scientists are making the climate people look like rank amateurs.

    HImmanuelson in reply to MajorWood. | April 26, 2020 at 7:27 am

    > Of Maryland’s 4M residents, there have only been 4 deaths below 30, and they were in the 20-29 bracket.

    I’m not sure your conclusions are valid. How many of Maryland’s deaths in the 20-29 bracket were from kids living in high occupancy dorms with 100-300 kids per floor, eating in packed school cafeterias, and spending hours a day in relatively small rooms surrounded with 30-100 other people?

    Probably not very many but I’d wager that the deaths in that group would greatly increase if this were the case.

    I’m also not a huge believer in the official covid19 death figures because article after article after article mentions people dying of the covid19 symptoms that didn’t count because the victims weren’t officially tested. The actual number of covid19 deaths is probably dramatically higher than the official version.

      Wrathchilde in reply to HImmanuelson. | April 26, 2020 at 9:04 am

      Actually, the count is magnitudes lower. Many who die from other issues entirely are coded as a Wuhan Coronavirus death Additionally, the hospitals get much more money for a Wuhan Coronavirus patient, than they do for a normal, run of the mill, sick person.

      It is both easier, and more financially prudent to just code as many as coronavirus as you can get away with. In other words, there is every incentive to lie.

      Edward in reply to HImmanuelson. | April 26, 2020 at 9:42 am

      Federal money has been tied to the medical impact (i.e. deaths and hospitalizations) attributable to the Wuhan Chicom virus. Hence it is in the pecuniary interest of the state and local governments to “cook the books” to the degree they believe they should (moral and ethical issue) and, more importantly to some, believe they can get away with.

      Of the four deaths, did any or all of them have significant underlying health conditions making them more vulnerable?

    HImmanuelson in reply to MajorWood. | April 26, 2020 at 7:30 am

    I meant to add, even if the 20-somethings didn’t die, how many ended up with screwed up lungs, blood clots that wreaked havoc on them, or other covid19 side effects? Certainly some did.

    I’m not trying to be contrary, I largely agree with your post but not all of it.

    My $.02.

    Peace.

      “I’m not trying to be contrary…”

      No? Then stop spreading contrary unsubstantiated opinion.

      Of course you’re trying to be contrary.

        SuddenlyHappyToBeHere in reply to Barry. | April 27, 2020 at 10:02 am

        It was a fair question, unless you are a snowflake and don’t want to read anythibng that makes you feel unsafe.

      MajorWood in reply to HImmanuelson. | April 29, 2020 at 3:02 am

      Since you asked a question that I can’t honestly answer without actual data, I will ask you a similar question. In that under 30 group, how many will have their lives permanently screwed up as a consequence of the shutdown? Our local store is no longer putting beer on the shelves, they just leave it on pallets in the aisle. Loss of job and increased alcohol consumption. That always works out well. I am not sure that .gov could have caused more emotional damage to a generation than if they were actually trying to. The aftermath of the shutdown, which was basically to give another year or two of life to a bunch of old people, will be felt by lot of people for a long time. The numbers did not justify this course of action.

        In my opinion, the incorrect forecasts did justify the action. There really was an initial prediction of up to 2.2 million US deaths. I remember Trump looking rather shocked when he said that. Was this Phase III of trying to remove him by inducing action to destroy his great economy? Another interesting question is that, given the forecasts properly changed soon after emerging results indicated they should, how come the same thing never happens with the Climate Change forecasts when the predictions repeatedly fail.

    Tom Servo in reply to MajorWood. | April 26, 2020 at 3:56 pm

    MajorWood, you make a very good analogy – Oberlin’s response truly is like “Hitler in the Bunker”. More and more I get the feeling that they would rather see the entire college collapse rather than see the Gibson’s paid one dime – just like Hitler would rather see all of Germany burn, rather than surrender.

    And they don’t even care that they are shoving out all of the conservative alumni, like you. They don’t realize that they’re quietly shoving out a lot who aren’t as vocal as you’ve been, either, because that always happened. A lot of small schools are going to die because of the aftereffects of COVID-19; Oberlin very well may be one of them. The school has a rope around it’s neck, and they’re trying as hard as they can to kick the chair out from under themselves.

    Julian A Smith in reply to MajorWood. | April 27, 2020 at 9:48 pm

    Thank you for a very forthright, honest approach to the Gibson / Oberlin situation. I believe that the outcome, and ruling in this case came about as a result of prayer and faith in righteousness. You are correct that it’s (typically) a “small[er] minority of conservative[s]” that are “aware” of what is really occurring. It has always been the case that the minority have been the group that has brought sanity to the “majority” table. Let us be encouraged because, as an example of the “minority” triumphing over the majority, president Trump won the presidency of the U.S.A , not by the popular vote, but because of the ingenious system of the Electoral College that was put into place to insure that the majority would not run roughshod over the minority.

The son died of pancreatic cancer. Is the elder still alive?

This is just a shit show for the family to have to endure and that is the strategy of the legal team.

Unless the appeal consolidates several parties (which frequently occurs in criminal appeals), there is rarely a need for extra pages. In federal court the limit is 14K words. If you can’t convince the court why you should win in 14K words, you are not going to do it with 20K words.

OwenKellogg-Engineer | April 26, 2020 at 7:22 am

I am curious if Oberlin qualified for, and requested, any federal monies like Harvard?

Thank you Professor Jacobson for continuing some aspects of the “old normal.”

“Because the virus” seems to be used to simply sweep away anything in the way of the “new normal.”

Sigh.

Also, Hello Edward, thank you for thoughtful comments that gave me a chuckle.

Oberlin threads are my favorite. Can someone explain about the Facebook? I thought old Facebook pages could be found on the internet. Did this not happen and this particular page really hidden from public view?

    Tom Servo in reply to r2468. | April 26, 2020 at 3:49 pm

    IIRC, they were ordered sealed by the Trial Court on the grounds that they could be unfairly prejudicial to the Gibon’s; presumably Allyn had said something derogatory about some students at some point in the past, but we don’t really know. Oberlin never appealed this ruling during the trial, because Allyn was *not* a party to the suit, and nothing he may or may not have said was relevant to the actual case being decided. The only reason the Cleveland group is interested is because his last name is Gibson, and so if he, as a teen, once said something that may have been insensitive, they can use it to smear the Gibson family publicly.

    but as to the actual case, it should never matter at all, because he wasn’t a party to the case, and he was never asked to testify about anything by either side.

The clerk never make his pages and posts available to the public. Either they were private or just to his closest friends.

What really matters is that his actions were legally justified. Whether he dislikes blacks is irrelevant. Progressive fascists always attempt to used racism for political and legal purposes.

The way Oberlin is spending money on lawyers risking the strong possibility that the original judgment will be restored plus who knows how much more, you would think they are Congress. Or maybe the next Wuhan relief package will contain a bail-out for them?

The Judge in this case MUST start adding Interest to the judgment,, to be paid each week to the bakery,, Immediately. The scumbag attorneys for college must be put on notice that delays will be very costly !!

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