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Gibson’s Bakery: ‘Amicus’ Groups are “really only friends of the Oberlin Parties and not friends of the Court”

Gibson’s Bakery: ‘Amicus’ Groups are “really only friends of the Oberlin Parties and not friends of the Court”

“Those who ignore the record, and distort the record, cannot be considered a ‘friend of the court.'”

Oberlin College has filed its Brief appealing the $11 million compensatory and $33 million punitive damage verdicts (later reduced to $25 million under Ohio tort reform caps) won by Gibson’s Bakery. The Bakery also has filed its Cross-Appeal Brief seeking reinstatement of the full punitive damages verdict.

When the college filed its appeal brief, it was joined by a motion of the NAACP to file an “amicus” (friend of the court) brief supporting the college. Of that NAACP Amicus Brief, I wrote:

The NAACP [proposed] Amicus Brief is the easiest to deal with. It’s a political document, not a legal argument. It’s clearly meant to try to shame and/or bully the court into thinking this case has national implications for race relations….

Despite being drafted by the national law firm Jenner & Block, it bears almost no relationship to the actual facts of this case. It pretends that this is a case about Oberlin College being held liable for supporting a student boycott of the bakery. It then cites cases about how support for boycott activity is protected, and how government officials can’t sue people who protest against them. None of that has anything to do with the legal theories upon which the Gibsons recovered….

That is a complete misstatement of what the case is about. A shocking misstatement, but the point of the brief clearly is to make this a case about race, which it is not.

Later, multiple other groups came to the college’s aid with amicus motions and proposed briefs, Media Groups and Law Profs rally to Oberlin College’s defense in Gibson’s Bakery Appeal. The groups included The Reporters Committee for Freedom of the Press, and others including 19 media groups; “First Amendment Scholars” consisting of 19 law professors; and The National Coalition Against Censorship, and others.

Because of *other stuff* going on in my life at the time, I didn’t have time to fisk those proposed amicus brief like I did the NAACP, but I made this observation:

The briefs seem focused on the defamation aspect of the case, which was only one of the issues on which the Gibsons prevailed, and seek to present this as a matter of student speech.

Presenting the case as about student speech is a misstatement of the case, and is in line with Oberlin College’s post-trial public relations campaign, something we have written about many times.

Gibson’s just filed its opposition to the various amicus motions:

Gibson’s Bakery v. Oberlin College – Appeal – Opposition to Amicus Motion National Coalition Against Censorship

Gibson’s Bakery v. Oberlin College – Appeal – Opposition to Amicus Motion NAACP

Gibson’s Bakery v. Oberlin College – Appeal – Opposition to Amicus Motion Reporters Committee

Gibson’s Bakery v. Oberlin College – Appeal – Opposition to Amicus Motion First Amendment Scholars

The Opposition filings are chock full of trial transcripts and evidence, and serve as something of a preview of that the Gibsons argue when they file their Appeal Brief (on the college’s appeal). It’s a good read, but I’ll focus here mostly on the arguments that the Amicus Briefs do not serve the proper function of being “friends of the court.”

NAACP Brief

The Gibsons’ opposition to the NAACP Brief sets something of a template, arguing that the brief is divorced from the reality of the case:

The tradition underpinning the submission of amicus briefs has been forgotten in this case. Amicus Curiae the National Association for the Advancement of Colored People (the “Amicus” or ”NAACP”) seeks leave to file an amicus brief in this case because, without citation to a shred of evidence submitted during trial, it believes the jury verdict in this case is based on Oberlin College students protesting “historically discriminatory treatment of African-Americans” by the Gibsons.1 (See, NAACP Mt., p. 2). But even a cursory review of the record in this case shows that the NAACP’s arguments and assertions have absolutely no basis in law or fact. Therefore, NAACP’s Motion for Leave to file an amicus brief should be denied for the following reasons:

• First, Amicus does not cite to any evidence or testimony presented at trial.
• Second, Amicus invents “facts” that were not submitted to the jury.
• Third, without citing to the record, Amicus claims that the Oberlin Parties2 were held responsible for student speech and a sanctioned boycott. This is not true. The Oberlin Parties were held liable for actively defaming the Gibsons, intentionally interfering with Gibson’s Bakery’s business relationships, and causing intentional emotional injury to David Gibson and Grandpa Gibson.
• Fourth, Amicus’s claim of historically discriminatory treatment is a smokescreen belied by the Oberlin Parties’ admission at the beginning of trial that the three arrested students “got exactly what they deserved” and the students’ admissions in open court that  heir arrests were the result of their criminal conduct and not racist conduct.
• Fifth, even if the Oberlin Parties were held responsible for speech associated with a boycott, a boycott does not grant a license to tell malicious lies about others.
• Lastly, Amicus’s arguments regarding statements of opinion are substantially duplicative of the brief submitted by the Oberlin Parties and are flat-out wrong.

From this the Gibsons argue the NAACP brief is contrary to the purpose of an Amicus Brief: “An amicus curiae is to be a friend of the court, not a friend of a party.”

The Gibsons also challenged whether the NAACP had any real interest in the case:

Amicus claims that it has an interest in this case based on a “Gibson’s Bakery employee’s violent actions against an African-American student[.]” This statement, which is not supported by any citation to the record, is clearly false. The shoplifting incident at Gibson’s Bakery on November 9, 2016 was not even discussed at trial because during opening statements, the Oberlin Parties’ then-lead attorney definitively stated that the students arrested for shoplifting got exactly what they deserved:

First Amendment Scholars Brief

The Gibsons made similar arguments that the “Scholars” misstated the case:

The First Amendment Scholars (“Amici”)1 cite to no facts in the record in their Motion and proposed Brief, except one exhibit containing defamatory statements [Brief, p. 18]. Otherwise ignoring the record and alleging facts only “as Amici understand the record” [Brief, p. 1 0], Amici mischaracterize this case as involving only student speech, falsely alleging that only the Oberlin students published statements at issue [Id.]. But the record actually shows that the jury decided this case based solely on the affirmative publications of defamatory statements by Oberlin College and Dean Raimondo2 (continuing for more than a year) about the Gibsons3 after the Gibsons pursued their rights to prevent shoplifting from their bakery….

Here, Amici proffer that the unique perspective they offer to assist the Court is the body of First Amendment scholarship that they possess (Motion, p. 1). Yet, Amici either do not know or they ignore the facts in the record, and they present a skewed First Amendment/defamation law analysis, ignoring that First Amendment/defamation law protects both speech and reputation.

Their skewed version of the facts and law shows that Amici are really only friends of the Oberlin Parties and not friends of the Court.5

The Gibsons also addressed an issue we’ve discussed before, the bifurcated trial and compensatory verdict finding that the defendants did not act with “actual malice” and the resubmission of that issue during the punitive phase:

Amici now argue that libel actual malice should not have been submitted in both the compensatory and punitive phases. Amici are wrong. And they have no expertise on Ohio’s punitive damages cap statutory requirements after the Oberlin Parties requested to bifurcate the issue of punitive damages. In fact, they do not even cite to the Ohio statutory provisions. Amici’s bare assertions on this Ohio law issue do not aid the Court.

Pursuant to Ohio R.C. §2315.21(B)(1) (a)-(b), once the Oberlin Parties filed their Motion to Bifurcate the compensatory and punitive phases of trial, the trial court was required to separate the trial into two phases: a compensatory damage and a punitive damage phase. After bifurcation, per the plain terms of R.C. §2315/21(B)(1)(a), Plaintiffs were statutorily precluded from presenting any evidence as to punitive damages during the compensatory phase of trial. Thus, by bifurcating the trial, the Oberlin Parties separated libel actual malice into two separate issues: during the compensatory phase, for a jury determination on presumed damages only, and then, during the punitive phase, for a jury determination concerning punitive damages. If not submitted in both phases, the Gibsons would not have had any opportunity to put on its substantial evidence to support its claim for punitive damages.

During the compensatory phase, the jury determined that the Oberlin Parties did not act with libel actual malice, eliminating only Gibsons’ ability to recover presumed damages. Because the jury awarded actual damages, the issue of libel actual malice (a precondition to punitive damages) was also submitted to the jury in the punitive phase, where the jury, based on the substantial evidence submitted in the punitive phase, found that the Oberlin Parties acted with libel actual malice and awarded the Gibsons punitive damages.

By filing their motion to bifurcate the case, the Oberlin Parties invited, and, in fact ultimately required, the submission of libel actual malice to the jury in both phases by filing the motion to bifurcate. If the Oberlin Parties did not want two phases of trial, with attendant submission of evidence required in both phases, they could have avoided this situation by not bifurcating the trial.

That resubmission issue was one of the most troubling appeal issues, and the Gibsons’ explanation seems reasonable and likely to succeed.

National Coalition Against Censorship Brief

The Gibsons hit the theme again that the propose Brief is divorced from the reality of the case:

In the twenty-two (22) pages that make up the Amici Movants’ 1 Motion and proposed Brief, they never cite to the actual record in this case. Disregarding the record, the Amici Movants intentionally or ignorantly misportray this case as one about “student speech.” The actual record, including the evidence the parties set forth during the 5+ week trial, reveals the jury’s unanimous verdict was based solely on the conduct of Oberlin College and Dean of Students Meredith Raimondo. Those who ignore the record, and distort the record, cannot be considered a “friend of the court.” Instead, the Amici Movants are simply an Oberlin College supporter.2 As such, their proposed amicus brief is an abuse and should be disallowed. Ryan v. Commodity Futures Trading Com ‘n, 125 F .3d 1062, 1063 (7th Cir. 1997).

Further, Amici Movants seek to promote an agenda that would create an Academia Immunity against defamation liability. No court has ever adopted such an immunity defense. And, the record in this case offers absolutely no reason to create a precedent here.

Reporters’ Committee Brief

Again, the theme of a proposed Amicus Brief divorced from the reality of the case:

Reporters Comrnittee1 urges this ,Court to apply a non-existent “redistributor” or “deliverer” liability test in this case. According to Reporters Committee, when a party “redistributes” or “delivers” someone’ s statement, a defamation plaintiff can only succeed on her claims if the defendant “republished” or “delivered” the statement with actual malice. Unfortunately for Reporters Committee, “redistributor/deliverer” defamation liability does not exist under Ohio law. In Ohio, liability for defamation claims is based on publication, regardless of the authorship of the statement….

But there’s a twist here. Some of the non-parties submitting the Amicus Brief have a personal connection to that case:

Third, considering Amici’s substantial connections to the Oberlin Parties, including the fact that the Oberlin Parties’ lead trial attorney worked for one of the Amici media entities for ten (10) years, it is clear that Amici are friends of the Oberlin Parties instead of friends of the Court;

This point is fleshed out:

Amici are represented by the same attorney and law firm that are representing WEWS-TV, Advance Ohio, and the Ohio Coalition for Open Government in a collateral appeal seeking access to private documents that were properly sealed by the trial court. Ohio Coalition for Open Government is one of the Amici. Additionally, WEWS-TV’s parent company, The E.W. Scrips Company, is also one of the Amici.8 There are substantial connections between the Oberlin Parties and WEWS-TV, and by extension, The E.W. Scrips Company. The Oberlin Parties’ lead attorney during trial, Ron Holman, II, worked for WEWS-TV and The E.W. Scrips Company for more than (10) years.9 Clearly, the Oberlin Parties are attempting to leverage their media connections to circumvent appellate brief page limitations.

This point is related to the motion of some of these media entities to unseal the confidential private Facebook records of non-party, non-witness Allyn D. Gibson. That motion was denied by the Court.

Likely Outcome Of Motions To File?

What’s the likely outcome of the motions? The Court will allow the Amicus Briefs to be filed, but then ignore them.

[Featured Image: Gibsons’ Trial Attorneys Owen Rarric and Lee Plakas][Photo Credit: Legal Insurrection Foundation]

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Comments

The Dean of students and the ring leaders should have been hit with a RICO complaint. They conspired to destroy a business because of the race of the owners.

Maoist Friends of the Court.

Well, here we are. Is your powder dry?

    “Without preparedness, superiority is not real superiority and there can be no initiative either. Having grasped this point, a force that is inferior but prepared can often defeat a superior enemy by surprise attack.”

    Mao, “On Protracted War” (May 1938), Selected Works, Vol. II, pp. 165-66.

I wonder in these times whether members of the Ohio Court of Appeals are woke.

I have believed that this case was not an existential threat to Oberlin. However, Covid and the college’s risky reopening plans for the Fall – with students in attendance – might be one. If a major outbreak of Covid among students were to occur and the school were to have to go to distance learning, it is questionable if its price structure for tuition could be sustained and it would lose the revenue on the residential side. Therefore, Covid might increase the financial importance of this case to the college and the risks to the town of Oberlin (and Gibson’s Bakery) as well. Might this be an environment for a negotiated settlement?

    MajorWood in reply to jb4. | July 1, 2020 at 2:41 am

    The thing is, Gibsons is but one of several major problems that the college is facing at the moment. I think they are being very optimistic that the three session plan (Fall, Spring, Summer) will go off as planned with 3 x 2000 students vs the normal 2 x 3000 students academic year. I suspect a few things will happen. First, come next summer, they are going to see way fewer than 2000 students on campus. This will happen a number of ways. If I were in the group selected to be there in the Fall and Summer, I would be at a different school for the Spring term. Summer be mine! If I were in the group selected to be there in the Spring and Summer, I would be at a different school for the Fall term, and I might not be back at Oberlin in the Spring if I liked the other school. Keep in mind that pretty much every school is going to be down about 5% this year. Poaching a student, especially one with no financial needs, would be a coup. First rule of business: never let a customer see your competition. These are the students that Oberlin cannot afford to lose, and yet they will. Finally, we have the students who are selected for the Fall, but who are concerned about dumping $35K for a school term that might get cut short. My guess is that a significant fraction of them will be thinking about a gap year. So while Oberlin is thinking 2000, 2000, 2000, I bet reality is going to be 1700, 1500, 1200. They might have a captive audience with those on a financial aid plan, but anyone who is paying retail can call the shots in this market. It’s like when I donate a unit of O-neg to the Red Cross. They find a time when “I” can make it. Rather than just a 5% drop like other schools, Oberlin could be looking at a 20-30% enrollment decrease. The Title IX stuff is not going to help pull in the heterosexual male population down the road. And, they are losing all of the income that comes from renting out the facilities over the summer for conferences.

    As for an outbreak of Covid among the students, in the 18-22 yo demographic that will mean a bit of coughing and runny noses. When the colleges closed in march, it was still believed that Covid was an equal opportunity pathogen. We now know that isn’t true. While it is a bit more contagious than the flu, the effects are limited to a pretty small population of which college students are pretty much absent. Alcohol will cause more damage to the student population on pretty much every campus in the country, and you don’t see any of them putting special procedures in place to deal with that. Let Covid run its course and keep granny locked in her room.

    Oberlin will not settle. They feel that they are in the right, and that is all that matters to them. You do not fold when you have recklessly ante’d in $10M in legal, PR, and bond fees.

“An amicus curiae is to be a friend of the court, not a friend of a party.”

I call this sort of brief “hostis curiae”.

What’s the likely outcome of the motions? The Court will allow the Amicus Briefs to be filed, but then ignore them.

That’s the likely outcome. It’s the least trouble for the court. But the fantasy outcome would be for the judge to call the author of each brief before him and ask them whether they bothered to read the record of the case before deciding to intervene, and ask them to explain whether they were intentionally mocking the court, or intentionally making him waste his time reading briefs that have no connection to the case, and why he should not penalize them.

    Now THAT I like.

    MajorWood in reply to Milhouse. | July 1, 2020 at 11:12 pm

    This reminded me of a story my brother told. The principals of his firm interviewed a recent law school graduate who had seriously embellished his CV, so all three sent the applicant a bill for an hour of their time that was wasted. If only I could do that to people in front of me at the grocery store.

What about the time spent by the Gibson’s lawyers responding to these propagandistic “brief”? Can they recover money from these creeps for attorneys’ fees when the briefs are thrown out as they should be?

They’ll never see a dime.
Trunp should pack the Supreme Court before the next democrat does.

Anacleto Mitraglia | July 1, 2020 at 3:57 am

You might argue forever about the flaws in the briefs, but that’s not the point. Frankly, I don’t believe the amicus briefs are intended to change the court’s mind about the case; it’s more to show them that they have powerful and dangerous friends. More like an intimidation: Behave, or else.
If Oberlin could file another AB today, it would probably be from BLM.

    IMHO, that is a dynamic that changed once LI put this on the national map. These intimidation tactics are now occurring in the national spotlight. I doubt the judge doesn’t feel the historical importance of his decision. There will be serious ramifications as well should he cave. This is his career defining case, the one he will be remembered for.

One of the other parties submitting an “amicus brief” seems to be defaming Gibson’s themselves.

The American Booksellers Association put up the following webpage on their site: https://www.bookweb.org/news/aba-joins-amicus-brief-gibson-bros-v-oberlin-577692

In it they describe the reason for the lawsuit as “After trying to buy wine with a fake ID, one of the students was chased out of the bakery and placed in a chokehold by one of the store’s employees. In the protests following the incident, Oberlin college students urged the school to cut ties with Gibson Bakery.”

Yes, they’ve made up the claim that one of the students was put in a chokehold! They are obviously trying to tie this in with the current BLM situation by simply lying about the facts.

I wonder if they can be sued for defamation themselves?

    UJ in reply to slither. | July 1, 2020 at 12:20 pm

    Wow, that recounting of the incident is total bullshit. By the way, when IS enough going to be enough?

    Milhouse in reply to slither. | July 1, 2020 at 4:28 pm

    Unfortunately not. Litigation privilege.

      slither in reply to Milhouse. | July 1, 2020 at 7:12 pm

      Actually, their brief doesn’t make the “chokehold” claim. The claim appears as “news” on their website, so I doubt that it could be covered by any privilege.

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