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ANALYSIS: Gibson’s Bakery v. Oberlin College – Appeal Oral Argument

ANALYSIS: Gibson’s Bakery v. Oberlin College – Appeal Oral Argument

On the docket: The appeal by Oberlin College to overturn the compensatory and punitive damages awards, and the cross-appeal by the Gibsons to restore the full punitive damages award that had been reduced under Ohio tort reform.

Today starting at 10 a.m. is the oral argument in (1) the appeal byOberlin College and Dean of Students Meredith Raimando seeking to overturn the compensatory and punitive damage awards totalling, after reduction under Ohio tort reform law, $25 million, plus over $6 million in attorney’s fees, bringing the judgment to over $32 million, and (2) the cross-appeal by Gibson’s Bakery and two members of the Gibson family (including the widow of the late David Gibson) seeking to restore the full $33 million punitive damages award, arguing the tort reform reduction was unconstitutional, which would add back about $15 million to the judgment.

For more detailed background see our PRIOR POST about the oral argument, which has my pre-argument analysis, and explains the procedural posture and has links to the trial court proceedings and the appeals court briefs.

According to Ballotpedia, Judges on this court run for election every six years in non-partisan elections. The Judges today, according to the court calendar, are Donna Carr, Jennifer Hensal, and Julie Schafer. According to their Ballotpedia links, they are all Republicans. I know nothing else about them.

http://www.ninth.courts.state.oh.us/index.htm

The Court is supposed to have a livestream on its YouTube Channel. We will embed that livestream when it appears, and provide quick reaction once it is over.

An important caveat. While oral argument sometimes can give insight into how the judges will rule, that’s not necessarily the case. Sometimes judges play devil’s advocate, or simply want to test the arguments.

QUICK POST-ARGUMENT REACTION

The oral argument just concluded. Judge Donna Carr took the lead for the judges, and was the only one to ask questions. There were several issues that were the focus —

Bifurcation — I flagged this long ago as the key issue. At the compensatory stage, the jury found no ‘actual malice’ but at the punitive phase found actual malice. This seems to provide a contradiction, but as the Gibson’s attorney Lee Plakas pointed out, it was the result of a strategic decision by Oberlin to separate the two, and there was additinal evidence provided in the punitive phase. Plakas kept coming back to the fact that Oberlin “got what it asked for” and has to live with the consequences of that strategic decision. None of the judges asked about this, but Oberlin attorney Ben Sassé focused on the inconsistency and Plakas addressed it.

Opinion versus facts — If the statements by Oberlin were opinion, they were constitutionally protected. The trial court found that the allegations that the Gibson’s had a “long account of racial profiling” was a verifiable statement of fact. Judge Carr, responding to Oberlin’s argument that it was opinion, asked about whether it depends on the context in which it was stated, which seemed to suggest she viewed it as a statement of fact.

Publication of defamation — Oberlin argued there was no publication of the flyer by the Dean of Students because she only handed it to one reporter. I’m shocked he said this, since there was testimony, which Plakas pointed out, that she directed the passing out of stacks of the flyers. Even Judge Carr made reference to testimony that the Dean handed out flyers. The publication of the student resolution with the same language, by leaving it up in an Oberlin building, could be more problematic for the Gibsons, but if the court finds no publication of the resolution, it would be harmless error because of the testimony about the Dean passing out stacks of flyers.

First Amendment –– As we have flagged for a long time, Oberlin tried to paint this as an issue of protecting student free speech. This mischaracterizes the case. Plakas pointed out that it was a tort case based on the conduct of the college officials, and that not a single student was named as a defendent, submitted an affidavit, or testified at trial.

Aiding and Abetting — There was a jury instruction, and the trial court ruled on summary judgment, that the college could be liable for “aiding and abetting” the publication of defamation. Each side has briefed whether this is a correct standard. Judge Carr stated that it was “important to me” that even if this was an incorrect jury instruction, there was evidence of the Dean distributing the flyer herself so there would be liability even without aiding and abetting. With the caveat about oral argument, when a Judge says some issue is important to her, we should take it as important to her. This may reflect that Judge Carr is willing to overlook what is referred to as ‘harmless error’ to uphold the verdicts. This is necessary on appeals because every long trial has error, the question for appeal is whether the error requires reversal. If there is an independent ground that is not error (e.g., handing out the flyers) then the error is not a basis to reverse.

Punitive Damage cap – Judge Carr stated, correctly, that the caps have been upheld as constitutional by the Ohio Supreme Court. The Gibson’s counsel (not Plakas, Jacqueline Bollas Caldwell), argued that “as applied” to this case the caps were unconstitutional. I’d be surprised if the Gibsons won on this point, if that decision will be made, it’s probably going to have to be by the Ohio Supreme Court.

Who Will Win The Appeal – Don’t even think of asking me this question. Regardless, this seems headed eventually to the Ohio Supreme Court.

———–

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

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Comments

Thank you to Professor Jacobson and team for their absolutely stellar and insightful coverage of this fascinating legal battle! The best coverage in the country, by far.

I see that the Oberlin attorney is promoting the fallacious and misleading notion that the judgment against Oberlin implicated the students’ First Amendment rights. A totally dishonest argument.

    MajorWood in reply to guyjones. | November 10, 2020 at 11:01 am

    If anything, each of the students who persisted in the slanderous accusations should also be held accountable. As was so eloquently put on the Simpons, “videotaping our crime spree was the smartest thing we ever did.” I have been curious why they were never called out, but I suspect it was because Plakas decided to not muddy the waters and further than necessary. It would be nice to put names to faces and do a “where are they now?” story.

    I am not entirely sure who emboldened who in this matter. I see two scenarios, wherein the students started the slanderous action and the college, seeing an opportunity to revitalize the activism reputation of the college, supported the efforts once they were under way. Or, the college saw an opportunity to inflict damage on their long time foe and within hours of the shoplifting began to mobilize the students. Raimondo’s statement about “sicking the students” lends support to the notion that college involvement was there from the beginning, or possibly before the beginning.

      guyjones in reply to MajorWood. | November 10, 2020 at 11:29 am

      I thought that Plakas very effectively made the salient point that this is manifestly a tort case, that the appellant, Oberlin, is disingenuously attempting to spin into a First Amendment case, because its tort defense arguments are otherwise unavailing.

      Milhouse in reply to MajorWood. | November 10, 2020 at 3:31 pm

      The bakery isn’t suing the students because they have no money. It would be a waste of money to pursue them.

        Ironman in reply to Milhouse. | November 10, 2020 at 5:40 pm

        Come on Milhouse, you’re smarter than that. Oberlin is not some state college, it is a private college that costs $77,000/yr. Plenty of students who go to Oberlin have money.

          Parents have traditionally been liable for the torts committed by their minor children, on the theory of failure to train or to supervise. Fifty years ago or even thirty years ago, nobody would have thought of applying a theory like that to college students. Today it might be viable.

          Milhouse in reply to Ironman. | November 10, 2020 at 6:50 pm

          Their parents have money, or they’re there on scholarships. They have no money themselves, and certainly not enough to justify the cost of suing them.

          Another Ed in reply to Ironman. | November 11, 2020 at 9:38 pm

          Most college students have attained the age of majority, especially when it was lowered from twenty one years to eighteen years.

          JusticeDelivered in reply to Ironman. | November 14, 2020 at 8:19 am

          Suing the student will likely lead to parents paying for their defense, and those costs ultimately lead greatly reduced inheritance. So, parents are punished for their children being POS, and those POS children lose downstream money. And maybe, those POS children find their earnings being taken over a long period of time to settle and outstanding judgement.

Professor J … FYI I just read up at the Hill that smuck from the PLO who contracted the Wu Flu has passed

    His name was Saeb Erekat, the secretary general of the PLO. Btw, it’s “schumck” not “smuck”. And don’t let anyone tell you it means jewelry store…

      txvet2 in reply to JRD47. | November 10, 2020 at 4:22 pm

      “”it’s “schumck” not “smuck”””

      Don’t you just hate it when you do that?

      RRRR in reply to JRD47. | November 10, 2020 at 6:37 pm

      It really does mean jewelry. If you doubt it, go to the Baanhofstrasse in Zurich and look at the retail establishment across the street from the headquarters of UBS. But that’s why it also means what it also means.

Plakas is really good.

bury them forever

that didn’t take long

Bald man weak.

Really, I expected better considering how much Oberlin must be paying him.

Oberlin’s argument that the Dean can not be held liable for distributing the flier because she did not have an opportunity to read it is disingenuous. It does not appear to be supported by the record.

    Even Mrs. Pelosi has insisted that people had to take responsibility for something (Obamacare) before they had a chance to read it. The Dean’s argument is preposterous. If you don’t know what is in a flyer, don’t publish it or you risk committing libel, just as, if you don’t know whether there is a bullet in a gun, don’t point it and shoot it at someone.

Professor thanks for the heads up on the Oral Arguments. I tuned in a few minutes late but caught most of it. I was surprised by how short the whole process was and by the fact that only one judge asked any questions.

Fingers crossed that the Gibsons prevail!

OwenKellogg-Engineer | November 10, 2020 at 12:49 pm

Thank you prof & adjunct staff for your tireless efforts reporting on this case. I am fascinated by it as, to me, it is a modern day David versus Goliath event. G*d bless the Gibson family, may they prevail all the way to the end.

Opinion versus facts — If the statements by Oberlin were opinion, they were constitutionally protected. The trial court found that the allegations that the Gibson’s had a “long account of racial profiling” was a verifiable statement of fact. Judge Carr, responding to Oberlin’s argument that it was opinion, asked about whether it depends on the context in which it was stated, which seemed to suggest she viewed it as a statement of fact.

This is a key point that I have brought up several times in the past, only to be mocked and attacked. Opinion is absolutely protected. And “The Gibsons are racist” is an opinion. Had Oberlin merely said that there would be no case.

The reason there is a case, and a strong one, is because Oberlin didn’t stick to such statements but made what looks like a factual assertion: that the business has a “long account of racial profiling”. Whether racial profiling happened is not a matter of opinion, it’s a matter of cold hard fact. Either it did or it didn’t. And the evidence shows that it didn’t.

Oberlin’s only hope would be to point to ambiguous behavior that could be construed as racial profiling; that would turn it into a matter of opinion: was that behavior what it looked like to Oberlin, or was there an innocent explanation. In that case Oberlin would be entitled to express its opinion. That’s what the judge meant about the context. There is a context in which such a statement would be treated as opinion, and therefore protected, but this isn’t it.

    Groundhog Day in reply to Milhouse. | November 10, 2020 at 4:02 pm

    “This is a key point that I have brought up several times in the past, only to be mocked and attacked. Opinion is absolutely protected. And “The Gibsons are racist” is an opinion. Had Oberlin merely said that there would be no case.”

    No, it’s not – that’s why you’ve just shortened the statement to “The Gibsons are racist”, when in fact they said “The Gibson’s have a long account of racial profiling”. Noticed the difference? If you watch someone for years (which they didn’t, but that’s a different story) and maintain, that based on your decade-long surveillance, people are racist, it’s no longer an opinion…

      Are you on drugs?

      you’ve just shortened the statement to “The Gibsons are racist”, when in fact they said “The Gibson’s have a long account of racial profiling”.

      is a DAMNED LIE. I did no such thing. How dare you accuse me of it? “Noticed the difference?”?! Of course I noticed the difference. The difference is the whole point of my comment. How could you possibly have missed it, unless you are out of your flipping mind?

      If you watch someone for years (which they didn’t, but that’s a different story) and maintain, that based on your decade-long surveillance, people are racist, it’s no longer an opinion…

      You are wrong. The law is exactly the opposite.

        Gary Mac in reply to Milhouse. | November 14, 2020 at 9:16 am

        Hence the “mocked and attacked” charge. Seems justified IMO.

        AsuraYakou in reply to Milhouse. | November 16, 2020 at 1:28 pm

        Millhouse,

        I don’t post much but I felt the need to log in and say this.

        I appreciate you. I enjoy reading your commentary, which is typically insightful, concise, and clear. Your opinions are delineated from the law as you understand it, which is rare in my experience.

        The level of vitriol and dislike you receive for these comments is entirely uncalled for and I, for one, do not appreciate it.

        Thank you for your writing and comments, and I hope you stay here.

      RandomCrank in reply to Groundhog Day. | November 10, 2020 at 6:45 pm

      You clearly have a reading comprehension issue. I suggest re-reading it, using your fingers to follow the words on the screen if you must. Milhouse quoted the Oberlin statement in its entirety, and used an alternative construction as an example of what could have been interpreted as opinion IF Oberlin had said it that way. Which they did NOT do.

      You need to re-read and re-think, and then correct your error. It would be unusual on the Internet for anyone to ever admit that they were wrong, but it does happen.

        Gary Mac in reply to RandomCrank. | November 14, 2020 at 9:21 am

        Disagree. Milhouse said, “Had Oberlin MERELY said that…” (emphasis) meaning Milhouse alleged Oberlin said that PLUS added context making it a statement of fact. At the very least, a reasonable interpretation of Milhouse’s post would read it as saying Oberlin made that statement.

    You may know the law of defamation better than do I, but my understanding is that opinion as such is nit actionable but if an opinion is necessarily based on unstated facts and those facts are not true, than the opinion is not protected. It can obviously a be a very difficult exercise to determine whether that wrinkle is or is not present, but to take your example, if you say that somebody is a racist, it is almost impossible to escape the reality that what you are saying necessarily implies that they have said bad things, have done bad things or think bad things, all of which are assertions of fact that can be either true or false. An example of a pure opinion is “That tastes bad,” understood to mean that you do not like the taste of it, but you might cross into the actionable territory if you say, “That thing tastes so bare that nobody would ever eat it.”

      Milhouse in reply to RRRR. | November 10, 2020 at 7:06 pm

      You are correct that if an opinion implies unstated facts then while the opinion itself remains protected one can sue for the implication, if one can show that the implied facts are false.

      “Joe Blow is a rapist” is a conclusion, i.e. an opinion, but an ordinary person on hearing such a statement would assume the speaker is in possession of facts regarding whom Mr Blow raped, and when. If no such facts exist, Mr Blow can sue.

      But “Joe Blow is a racist” is a general statement about Mr Blow’s character, and an ordinary person hearing it would not assume it was based on specific incidents and hard facts. It’s a general term of abuse; it means he holds opinions about race that I don’t like, or that I consider racist, or 100 other things. It’s like saying Mr Blow is a communist sympathizer, or a nazi sympathizer, or a philistine, an ignoramus, etc. No facts are implied, so there’s nothing to sue for.

      Another important point in this regard is that if the “factual basis” of the opinion is stated, then there is no implication of hidden facts. If someone says “Brett Kavanaugh is a rapist because Christine Ford said so”, or “Mike Pence is a rapist because he supports the subjugation of women”, or “Bill Gates is a rapist because the voices in my head told me so”, that is not actionable because the person hearing this knows the opinion is baseless, and does not imagine unstated facts that actually support such a conclusion.

    counsel in reply to Milhouse. | November 11, 2020 at 6:03 pm

    In Scott we adopted a totality of the circumstances test to be used when determining whether a statement is fact or opinion. Specifically, the court should consider: the specific language used, whether the statement is verifiable, the general context of the statement, and finally, the broader context in which the statement appeared.

    Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 282, 649 N.E.2d 182 (1995),

It’s really hard to win a defamation case; too hard in my opinion, which is a change from what it had been for many years. I’d like to say that it’s inconceivable to me that Oberlin could get this thrown out on appeal, but 2020 has been full of inconceivables.

If the appeals court and then the Ohio Supreme Court follow the law, Oberlin doesn’t stand a chance. If that “if” is a big “if” these days.

By the way, Prof. Jacobsen, kudos to you and your helpers for the truly superb and dogged coverage of this case. I was a professional journalist — old school, which meant something — for 11 years, and attended two of the top J-schools, one for a high school summer program and the other for one of my undergrad majors.

Legal Insurrection’s coverage of the Oberlin case has been a masterpiece of advocacy journalism. It doesn’t get a lot better than what you’ve done, and you deserve the satisfaction that I hope you feel. Bravo, sir!

I have to admit that I am struggling to follow the legal fine points being discussed here but it sure sounds like the Gibsons are winning.

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