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Oberlin College Appeals To Ohio Supreme Court In Gibson’s Bakery Case

Oberlin College Appeals To Ohio Supreme Court In Gibson’s Bakery Case

The Ohio Supreme Court has discretion whether to take the case. Of all the documents I’ve seen in this case, Oberlin College’s Memorandum In Support of Jurisdiction may be the most tendentious, bordering on mendacious.

On May 13, 2022, Oberlin College and Meredith Raimondo filed an appeal in the Ohio Supreme Court, after losing their appeal from the massive trial verdicts. We covered the trial court verdict and appeal decision in Appeals Court Upholds Gibson’s Bakery Massive Verdict Against Oberlin College.

You can view the filings at the Ohio Supreme Court’s Case Docket page, including the Notice of Appeal:

Appellants Oberlin College and Meredith Raimondo hereby give notice of appeal to the Supreme Court of Ohio from the judgment of the Lorain County Court of Appeals, Ninth Appellate District, journalized in Court of Appeals Case Nos. 19CA011563 and 20CA011632 on March 31, 2022.

This case raises substantial constitutional questions and is one of public and great general interest.

This case is considered a Jurisdicational Appeal under Ohio Sup. Ct. Rule of Practice 5.02(A):

As used in these rules, a “jurisdictional appeal” is an appeal from a decision of a court of appeals that asserts one or more of the following:

(1) The case involves a substantial constitutional question, including an appeal from the decision of a court of appeals under App.R. 26(B) in a noncapital case, pursuant to Article IV, Section 2(B)(2)(a)(ii) of the Ohio Constitution;
(2) The case involves a felony pursuant to Article IV, Section 2(B)(2)(b) of the Ohio Constitution;
(3) The case involves a question of public or great general interest pursuant to Article IV, Section 2(B)(2)(e) of the Ohio Constitution.

Whether the Ohio Supreme Court decides to hear the case is discretionary under the factors listed above. Historically the court has agreed to hear only about 10% of the Jurisdictional Appeals filed.

Since Oberlin College does not have a right to have the Ohio Supreme Court hear the case, it filed a Memorandum In Support of Jurisdiction. It appears that under the Ohio Sup. Ct. Rules of Practice the Gibsons have 10 days to file a cross-notice of appeal if the Gibsons take an appeal to restore their full punitive award, and 30 days to file a response to Oberlin College’s Memorandum In Support of Jurisdiction as well as in support of the Gibsons cross-appeal, if any.

Of all the documents I’ve seen in this case, Oberlin College’s Memorandum In Support of Jurisdiction may be the most tendentious, bordering on mendacious.

The Statement of the Case section (at p. 5), asserts facts outside the trial record, particularly what appear to be characterizations of private Facebook records of the store clerk that were the subject of separate litigation, what are called in the Memorandum “incidents in the summary judgment record.” What the papers do not tell the Supreme Court is that those records were not offered at trial and do not form any part of the trial record. This is grossly improper, you can’t expand the record on appeal, particularly not at this level of appeal, and if you are going to do that, tell the court what you are doing.

This is no small matter in Oberlin College’s filing. Oberlin College is trying to convince that Supreme Court that this is an important constitutional case, and key to that is the Gibsons being at least special purpose public figures. The Gibsons supposedly being involved in controversies as set forth on page 5 of the Oberlin College filing are key to the argument Oberlin College is making on this point.

The trial court as affirmed by the appeals court,  found the Gibsons were private parties. That matters a great deal to the standard of proof for defamation, and particularly the issue of actual malice. The facts outside the trial record brought up by Oberlin College go directly to the standard by which the Supreme Court will decide whether to take the case, without telling the court that the facts and records, while part of the summary judgment record, were not even offered at trial.  This outside-the-trial record evidence in the filing in and of itself should be ground for the Ohio Supreme Court not to take the case.

At first read the legal arguments also are more of the same mischaracterizations Oberlin College has been making since the start of the case, including that it was held liable for the opinions of students and this is a First Amendment case about campus speech. The appeals court dispatched with that argument as follows, in part:

{¶3} This Court recognizes that this case has garnered significant local and national media attention. The primary focus of the media coverage, and the several amicus briefs filed in this case, has been on an individual’s First Amendment right to protest and voice opinions in opposition to events occurring around them locally, nationally, and globally. This Court must emphasize, however, that the sole focus of this appeal is on the separate conduct of Oberlin and Raimondo that allegedly caused damage to the Gibsons, not on the First Amendment rights of individuals to voice opinions or protest.

{¶4} When this case went to trial, the student protests were not a subject of this defamation case, but merely provided a background for how other, potentially defamatory speech arose and was disseminated. Moreover, as will be explained in much greater detail in this opinion, prior to allowing the jury to consider whether any written statements were actionable, the statements were reviewed by the trial court (and will be again by this Court on appeal) under modern defamation law, which explicitly protects First Amendment free speech.

* * *

{¶25} Oberlin has asserted throughout this case, as have several organizations through amicus briefs on appeal, that any liability for defamation in this case could have a chilling effect on students’ rights to free speech at colleges and universities across the country. This Court must emphasize, however, that Oberlin was granted summary judgment on the Gibsons’ claims based on the verbal protests by Oberlin students. The trial court agreed that the student chants and verbal protests about the Gibsons being racists were protected by the First Amendment and, therefore, were not actionable in this case. By the time of trial, the Gibsons’ libel claim focused solely on whether Oberlin had disseminated false, written statements of fact that caused the Gibsons significant harm.

Oberlin College also asserts that the Gibsons were given two bites at the “actual malice” apple, which in the compensatory phase the jury found in the negative but in the punitive phase found in the affirmative. This is a specious argument because Oberlin College demanded a bifurcated trial, and not all evidence was presented during the compensatory phase. As the appeals court found:

{¶87} On the other hand, if Oberlin had not requested bifurcation, the Gibsons could have put on their entire case at the liability stage of the trial with evidence presented of both compensatory and punitive damages. Without Oberlin’s request for bifurcation, the jury would not have had to look at actual malice for liability and then again for punitive damages.

{¶88} Because Oberlin did request bifurcation, however, after compensatory damages were awarded by the jury, the Gibsons were entitled to proceed to the second stage of trial and put on any evidence they had pertaining to punitive damages for each of their claims: defamation, intentional infliction of emotional distress, and tortious interference with business relationship. The Gibsons cannot be punished for Oberlin’s choice to bifurcate.

Other questionable representations jump out at me, such as the lead point of law argued that the trial and appeals court drew an arbitrary and unlawful line between verbal and written statements (emphasis added):

Proposition of Law No. 1:

The constitutional protection of opinion speech applies equally to oral and written statements during protests, regardless of the tort theory. A viewpoint or interpretation of events that is protected when spoken is also protected when expressed in writing.

The explanation for this point of law is highlighted on page 1 of the Memorandum (emphasis added):

The Ninth District severed students’ right to protest orally from written protest materials, insisting its decision would not chill speech because oral chants were protected and Oberlin’s conduct was separate. Can a line be drawn between oral and written speech that protects only the former when the context is the same? Even if it can, can colleges be held responsible for facilitating this speech consistent with the First Amendment?

***

First, the Ninth District’s novel line between oral and written protest speech is a substantial constitutional question meriting review. App. Op. ¶¶ 3-4, 25-26, Appx. 2, 10-11. The panel fails to justify this line, and it reflects at least two analytical errors that belie the assurance that the panel’s decision will not affect the “rights of individuals to voice opinions or protest.” ….

This mixes two different concepts. We covered the trial court’s summary judgment decision, which dismissed verbal slander claims that were not the same as the false factual assertions in the flyer distributed by Raimondo. Here’s what the trial court found, in part, regarding the flyer allowing it to go to trial (emphasis added):

…. Here, it is undisputed that Meredith Raimondo presented at least one individual, Jason Hawk, with a copy of the protest flyer. The remaining evidence surrounding the distribution of the flyer, and the explanations for doing so, are in dispute. But Plaintiffs have presented testimony from individuals who say they observed Raimondo and other Oberlin College employees handing out flyers at the protest. Further, Plaintiffs offered evidence that Defendants permitted the protesters to make copies of the flyer on the Oberlin College Conservatory’s Office’s copy machine during the protests and provided protesters with refreshments and gloves for use during the protests….

* * *

… Here, the accusation that Gibson’s has a “long account of racial profiling and discrimination” goes beyond implication and directly tells the reasonable reader that the author’s previous statement that “[Gibson’s] is a racist establishment” is supported by a lengthy and potentially documented record of racial profiling and discrimination. To the average reader, the statement of a LONG ACCOUNT OF RACIAL PROFILING AND DISCRIMINATION suggests that the publisher has knowledge of a documented past history of such activity. The “LONG ACCOUNT” language implies to the reasonable reader that the publisher’s statement is based on defamatory facts that have not been disclosed. See Id. at 251-52. The implication of the undisclosed facts supporting the statements of the flyer make them as damaging as an assertion of fact. See Scott, at 251-52. A letter from the Defendants also supports verifiability. On November 11, 2016, and in response to the events at Gibson’s Bakery on November 9, 2016, Marvin Krislov, then President of Oberlin College and Meredith Raimondo, Dean of Students, issued a joint statement. In the context of the alleged racially charged incident, they said: “We will commit every resource to determining the full and true narrative, including exploring whether this is a pattern and not an isolated incident.” The Defendants indicate a willingness to “commit every resource” to determine “if this [racial discrimination] by the plaintiffs is “a pattern and not an isolated incident.” The Defendants’ willingness to commit resources is probative of their belief that a pattern of racial discrimination by the Plaintiffs is in fact verifiable. In this Court’s view, a “pattern of racial discrimination” and “a long account of racial discrimination” are synonymous and plausibly verifiable….

Based on a totality of the circumstances and construing the evidence in the light most favorable to Plaintiffs, the non-moving party, it is this Court’s view that the statements made in the flyer are not constitutionally protected opinion.

Here’s what the trial court said, in part, about the verbal chants (emphasis added)

B. Count Two: Slander

Plaintiffs slander claim is based on chants of “[expletive] the Gibsons” and “Gibson’s is racist” directed at Plaintiffs and their employees during the protests, and statements allegedly made about Plaintiffs by Oberlin College Tour Guides during new student tours. Because the chants are protected opinions and the hearsay evidence relating to the alleged tour guide statements is too tenuous to sustain a claim for slander, Defendants are entitled to judgment as a matter of law as to Count 2 of Plaintiffs’ Complaint.

1. The Protest Chants are Opinions

The protest chants directed at Plaintiffs included statements like “[expletive] the Gibsons” and “Gibson’s is racist.” Applying the Scott factors and considering the totality of the circumstances, the chants are protected opinions. The content is pejorative and weighs in favor of actionable defamation. Verifiability weighs in favor of finding the statements are opinions. The key distinction between the statements in the flyer and the resolution is that the former contained implications of additional information or factual support for the statements. Here, there is no such implication tending to make the statements sound more verifiable. Likewise, the context and tone of the chants are more likely to be perceived by the average listener to be expressions of opinion. Even when weighing the above evidence in Plaintiffs’ favor, there are no issues of fact regarding whether the protest chants are protected opinions.

2. The Alleged Statements of Tour Guides are Insufficient to maintain a claim for slander

Plaintiffs likewise cannot rely on the alleged statements of unidentified tour guides as evidence of its defamation claims against Defendants. The hearsay evidence surrounding these statements is insufficient, and the attempt to tie these statements to Defendants is too tenuous. Even if there were additional details or evidence related to these statements, they are likely protected opinions for the same reasons that the protest chants and Facebook post are protected opinions….

So rather than creating some constitutional line in the sand that requires the Ohio Supreme Court to take the case, the trial court (and appeals court) applied the law to two different sets of statements which were not identical, only one of which (the flyer) contained statements of fact that were allowed to go to the jury.

I’ve only had a couple of hours so far to go through the filing, and already I found major problems. I’m going to continue going through Oberlin College’s filings, and of course, will post the Gibsons’ papers when filed.

UPDATE 5-16-2022

The NAACP has filed in support of the college, as it did in the appeals court. The NAACP Memorandum In Support Of Jurisdiction was not on the electronic docket when I wrote this post last night, but now appears as having been filed on May 13. A delay in something showing up on the electronic docket is not unusual. The Memorandum adds nothing substantive, and obviously is done to get the court’s attention that this is an important case politically, even though that is not the standard. In any event, it’s hard to imagine the Justices are not aware of the case from the media.

Additional:

Several more amicus filings in support of the court taking the case were filed today. This is similar to in the appeal court where numerous groups were against the Gibsons on the merits:

Reporters Committee Amicus In Support of Jurisdiction

Ohio Association of Civil Trial Lawyers Amicus In Support of Jurisdiction

National Coalition Against Censorship Amicus In Support of Jurisdiction

Ohio Chamber of Commerce Amicus In Support of Jurisdiction

[Featured Image: The late David Gibson and Allyn W. Gibson at trial – Photo credit Bob Perkoski for Legal Insurrection Foundation]

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Comments

Still looks like they’re trying to make sure as many Gibsons as possible are dead before the case is ever resolved.

    SpeakUpNow in reply to txvet2. | May 16, 2022 at 11:16 am

    I just learned a new word, “tendentious”. Thanks for expanding my vocabulary. And this argument really gets me:
    “This is no small matter in Oberlin College’s filing. Oberlin College is trying to convince that Supreme Court that this is an important constitutional case, and key to that is the Gibsons being at least special purpose public figures.”
    The only reason the Gibsons have become pubic figures is due to Oberlin’s reprehensible actions. And this is being used to justify even more reprehensible accusations?? Kinda like the kid who killed his parents asking for sympathy because he is an orphan .

“…Oberlin College’s Memorandum In Support of Jurisdiction may be the most tendentious, bordering on mendacious.”

In other words, they are lying their buttocks off.

Are sanctions against the Attorneys who wrote this mess, possible? They are perpetrating a lie as Court Officers.

Wow, just take the “L” and move on…

    Milwaukee in reply to UJ. | May 16, 2022 at 8:44 am

    They are Social justice Warriors—they have found another hill they are willing to die on, or make you die defending. They have a moral certitude compelling to always attack, never reflect on their own sins, but attack. They don’t mind who suffers because it will be for the good of the cause. It’s okay if the Gibson’s suffer, in their mind, but students, and alumni suffering, that’s okay too. Being morally right means you must endure whatever they throw at you, until you cower.

    In Congress, the crazies support the party, think Pelosi and her Obamacare crash dummies… whatever the price.

    guyjones in reply to UJ. | May 16, 2022 at 10:18 am

    Oberlin Administrators’ “woke” narcissism, arrogance and infantile inability to concede the fact of their wrongful conduct, and, to evince contrition for that conduct, demand that they stubbornly continue to engage in agitprop that paints Gibson’s Bakery as an allegedly racist business.

I predicted this appeal, as its cost must be just a tiny fraction of the $36M or so cost of calling it a day. But not being a lawyer, it is hard to know whether what I perceive as the College’s poor conduct from the beginning until now is mostly the result of following legal advice. However, there comes a point when it may be hard for the “average reader” not to draw adverse conclusions about the management of that once very highly esteemed institution. As a graduate, that makes me more than a little sad.

    Olinser in reply to jb4. | May 16, 2022 at 2:12 am

    This case is an excellent demonstration of why every major business needs TWO teams of lawyers. One to advise them, and one to actually defend them in court.

    Because when you have one team of lawyers doing both, when they give you BAD advice (as has been demonstrated multiple times here), then when it comes time to settle/go to court, the lawyers are more interested in justifying their previous advice that got them here, than actually acting in the businesses best interest.

    This should never have gotten in front of a jury.

      rscalzo in reply to Olinser. | May 16, 2022 at 9:03 am

      The college has suffered large enrollment declines for the last five years. They are deep in debt with tuition up to 70k a year.

      Their days are numbered.

      Yuckster in reply to Olinser. | May 16, 2022 at 1:28 pm

      Well said.
      At the beginning of the day . . . sometime 3~4 years ago, after an internal review discovered there was shoplifting,
      Oberlin should have marched Meridith Raimondo in with a check for $1mm and told her to say “I’m sorry”
      A joint press conference, a Gibson’s-sponsored inclusive town-gown kabuki love-fest could have proceeded and all would have been well in Oberlin-town.

      But the leftists have taken over the asylum and no adults were there to say “stop”.

        jb4 in reply to Yuckster. | May 16, 2022 at 3:43 pm

        In fact, Gibson’s at an early point offered a no-money settlement if Oberlin apologized, stating Gibson’s was not racist. At that point, there appears to have been no competent decision maker receiving a competent presentation of the possible outcomes of various decisions.

          Paul in reply to jb4. | May 17, 2022 at 9:10 am

          This is what happens when you elevate Social Justice Warriors who are virtually all Affirmative Action Babies into positions of power.

          You think this is fun? Wait until bridges start falling down and people start dying on operating tables because the halls of Science have been infected by these fucking moronic ideas.

          Edward in reply to jb4. | May 22, 2022 at 10:48 am

          While I have never watched the movie, this situation brings to mind that famous line about his mother’s (IIRC) saying “Stupid is as stupid does” (or something close to that).

It’s hard to believe that their enrollment has not gone down

Peole are nuts

Oberlin playing the victim. A good lesson in never giving up…although their cause is worth less. With billions and billions going to Ukraine, maybe Big Joey can flip them a few tens of million under the table. Anyone on the Ohio Supreme Court wanting a boost?

    The_Mew_Cat in reply to alaskabob. | May 16, 2022 at 12:40 pm

    It they want to go to Federal Court to make their constitutional argument, they have to go to the state supreme court first.

I hope for the Gibsons sake, every time Oberlin files and loses an appeal, Gibsons get costs plus interest on the original judgment.

    Milhouse in reply to MrE. | May 16, 2022 at 1:48 am

    They do.

      pst314 in reply to Milhouse. | May 16, 2022 at 7:55 am

      What is the general standard for setting interest rates? I assume that it’s more than the Prime Rate but less than, say, credit card interest rate.

        Observer in reply to pst314. | May 16, 2022 at 9:39 am

        The Ohio Tax Commissioner is required, pursuant to Ohio Revised Code §5703.47, to determine the interest rate for certain taxes and other purposes on October 15th of each year. The rate is computed by taking the federal short term interest rate as defined by 26 U.S.C. §1274, rounding it to the nearest whole number and adding 3%.

        The tax commissioner has determined that this rate is 5% for the year 2020, the same rate that was in effect for 2019. Therefore, all judgments granted in Ohio in 2020 will bear interest at the rate of 5% per annum until satisfied,

        https://www.weltman.com/publication-2020-ohio-statutory-interest-rate-for-judgements

          pst314 in reply to Observer. | May 16, 2022 at 11:07 am

          Thank you for explaining that.

          MajorWood in reply to Observer. | May 16, 2022 at 12:24 pm

          So, with Brandon as president, that means the interest will likely go up. This is even more rionic than with trump as president, the real value of the endowment actually went up more than the judgement against the college, so they actually made money with Trump as president. They would see this irony, if they were able to understand numbers outside of their woke math reality.

broomhandle | May 15, 2022 at 10:56 pm

Seems to me what Oberlin is trying to do is just slap together a bogus legal argument and then hope that there is a politically aligned judge that find an excuse to rule in their favor. If they try enough times it might work.

I wanted to order something from them but their website is God Awful

    lc in reply to gonzotx. | May 16, 2022 at 7:14 am

    I’ve ordered before, and it worked out ok.
    I urge everyone to support them.
    Their fight is our fight.

Even if Facebook posts were admitted as facts despite not being in the trial record, those posts likely arose because of the actions of the college. The Appeal decision notes this distinction was important, when finding the Gibsons were private figures. The Bakery didn’t seek the publicity — they were responding to it.

The libel claim is quite strong. The College was negligent in allowing the posting of the student-senate resolution in the display case and via its email software. The College is responsible for any libel occurring on its property. over which it has control. Also, the College administer did give the flyer to a local newspaper reporter during the protests. Both of these points were important distinctions pointed out in the Appeals decision. The College invited public controversy, but the Bakery did not. The Bakery showed they were private figures and the Bakery showed the College acted negligently in publishing the resolution and flyer.

henrybowman | May 16, 2022 at 1:35 am

Can no one rid us of these turbulent scholars?

What the papers do not tell the Supreme Court is that those records were not offered at trial and do not form any part of the trial record. This is grossly improper, you can’t expand the record on appeal, particularly not at this level of appeal, and if you are going to do that, tell the court what you are doing.

These lawyers’ chutzpah is unbelievable. What are the chances, do you think, that the court will sanction them for it? It should.

The distinction between false factual statements and mere opinions is of course defamation 101. It’s not plausible that any lawyer could fail to understand this, and think the trial or appeals court were distinguishing between spoken and written expression, rather than between what was spoken and what was written.

I mean this is not in any way complicated. “Gibsons is racist” is an opinion, and therefore not actionable. “Gibsons racially discriminates” is a factual statement, and the evidence shows that it isn’t true; that makes it actionable. How does someone who doesn’t know this take on a defamation trial?

    pst314 in reply to Milhouse. | May 16, 2022 at 7:58 am

    “How does someone who doesn’t know this take on a defamation trial?”
    Maybe they were hoping for a sympathetic leftist judge and jury who would rule based on politics rather than the law: God knows, we have more of those monsters ever year.

    Sultan in reply to Milhouse. | May 16, 2022 at 10:16 am

    With respect to Milhouse, fact vs opinion is very very often a difficult question to be decided by the court, not the jury. Most such statements are mixed and must be carefully viewed in totality, in context (including timing) and from the standpoint of the listener. I would agree that the naked accusation that someone is “racist” is almost always non-actionable opinion but “Harvard racially discriminates in admissions” is clearly mixed. I would argue that even a statement that is almost always opinion, e.g., that “Milhouse is a racist” can be actionable if made recklessly, with no basis and with the intent to cause physical or reputational harm. It is, actually, quite complicated.

      Milhouse in reply to Sultan. | May 16, 2022 at 10:31 am

      No, Sultan, “Harvard racially discriminates in admissions” is not mixed, it’s a clear statement of fact. If it were not true, it would be actionable. Whereas a mere “Harvard is racist” would not be actionable, unless there was a clear implication that the speaker reached that conclusion based not on public information but on some facts that only he knew. Such as “Harvard is racist; if you knew what I knew you would say so too”. That is actionable, not for the first part of the sentence but for the second part. The speaker is not actually saying any facts about Harvard, but is implying them, and that’s enough. That an opinion such as “Milhouse is racist” is made “recklessly, with no basis and with the intent to cause physical or reputational harm” is irrelevant; it’s still just an opinion, and therefore not actionable.

    I’d say the question is, how recently did these lawyers graduate from law school, and where?

    It might be worthwhile for potential consumers of legal services to know the answers to these questions in selecting a lawyer for their own needs.

      MajorWood in reply to Ultra McGehee. | May 16, 2022 at 12:20 pm

      Even worse, current President went to law school, as did the previous President when all of this started. Do we see a pattern here?

    RandomCrank in reply to Milhouse. | May 17, 2022 at 5:03 pm

    That’s a question I have: What about sanctions? How does that work in a case like this, and how likely do you think they are?

    RandomCrank in reply to Milhouse. | May 17, 2022 at 5:09 pm

    Another question, Milhouse. I am asking these to you, because I think you’re the most credible lawyer in the comment section. Could you discuss Oberlin’s ability to get the case into federal court if (as expected) the Ohio Supreme Court rules against them?

Steven Brizel | May 16, 2022 at 6:17 am

This is the scorched earth defense in which a corporate defendant tries cia multiple motions long depositions and the appellate process to wear out the adversary Who is paying for all of this for Oberlin?

How is it possible that the OHS justices would not see this as a personal insult to their intelligence?

Asking as a non-lawyer, is there a point where motions are so out of whack with the court record and so disregard prior court findings that this motion would be summarily tossed? Seems to me that there would be consequences for filing frivolous motions that are based on disregard of findings of previous court rulings. Oberlin is basically having their case retried as if the first trials and subsequent appeals never happened.

    CommoChief in reply to Pasadena Phil. | May 16, 2022 at 9:20 am

    Broadly speaking there are three paths:
    1. The CT simply declines to take up the motion without any comment; a simple No.
    2. The CT declines with comment; No and here’s why.
    3. The CT takes up the case and reviews trial record, briefs of petitioners, respondents and any amici briefs plus oral arguments. Unlikely, IMO, but possible. In this event the CT would have enough members who found the motion at least compelling enough to not outright reject, it doesn’t mean they agree.

      Option 2 would seem to be the way to go. Decline the motion and issue a sharp rebuke and if possible, a penalty for producing an insultingly frivolous motion. Also, granting further legal cost recovery to the Gibsons.

I’d like to see Oberlin renamed as Gibson College and operated under the auspices of Hillsdale. Albeit, the music school might still be serviceable under the Oberlin name.

E Howard Hunt | May 16, 2022 at 9:13 am

From the start I was reluctant to follow this saga too closely. I always felt it stood a high chance of ending like so many – hard fought battles won, over and over, and then finally all lost due to one last move within the very opaque and powerful system. I do hope for the best, but defeat within the system is the most likely final outcome. The war must be against, not within, the system.

re:
The Statement of the Case section (at p. 5), asserts facts outside the trial record, particularly what appear to be characterizations of private Facebook records of the store clerk that were the subject of separate litigation, what are called in the Memorandum “incidents in the summary judgment record.”

Minor error, the actual page is 6, which says:

Plaintiff Gibson Bros., Inc., d/b/a Gibson’s Bakery, is a well-known business bordering Oberlin College’s campus. The bakery’s “chase and detain” policy for shoplifters is “common knowledge.” Its practices have generated controversy dating to the 1990s. Some people of color report favorable experiences; others report poor treatment. Allegations of racially charged incidents in the summary judgment record include a former employee who married a person of color being told by the Gibsons not to “have your N-word friends coming to your job”; a young girl told to let white customers be served first; and online reviews opining that “students who are not white” are “treated rudely and regarded with suspicion.”
In recent years, racial controversy swirled around employee Allyn Gibson Jr., son of Plaintiff David Gibson and grandson of Plaintiff Allyn Gibson, Sr. In 2012, Allyn Jr. acknowledged “a huge thing about my store being racist”; in 2013, he claimed he was “getting sued for ass[a]ult b/c some piece of shit was preaching his black rights in my store”; and earlier in 2016, he complained that “people call me a racist * * * at least a few times a month” and that it was “[n]ot [his] fault most black ppl around my area suck.” Allyn Jr. admitted he faced other accusations of racism too, up to a month before the incident.

    Milhouse in reply to ParkRidgeIL. | May 16, 2022 at 10:22 am

    All of which is irrelevant because Allyn was not a party to the suit.

    The bakery’s “chase and detain” policy for shoplifters is “common knowledge.”

    And? What are they alleging is remarkable about this? Wouldn’t the court assume nearly every business has such a policy?

      Sultan in reply to Milhouse. | May 16, 2022 at 10:56 am

      Not, at least, in California.

      Linda P. in reply to Milhouse. | May 16, 2022 at 10:59 am

      There was a time when a court could reasonably assume a shop would have a “chase and detain” policy–and that might well have been true during the Gibson Bakery incident–but it is no longer true. Nowadays the policy is more likely, “Ask the offender not to offend; if the offender continues to offend, throw up your arms and surrender.”

      MajorWood in reply to Milhouse. | May 16, 2022 at 12:18 pm

      Oberlin exists in a special bubble where all reason and rules are null and void if they conflict with the goals of the woke admins and students. The problem stems from the fact that the other 98% of the residents in Lorain County disagree. 😉

      M Poppins in reply to Milhouse. | May 16, 2022 at 12:42 pm

      Funny – not since the nationwide Floyd riots & looting.

    ruralguy in reply to ParkRidgeIL. | May 16, 2022 at 11:17 am

    “Chase and detain” is allowed under Ohio laws. It’s not a legal controversy.. Allyn Gibson was a store clerk, not a plaintiff in the lawsuit, and he was not awarded any damages. His Facebook posts were never authenticated. The Defense chose not to introduce them as evidence, probably because they were not probative nor material. They were under seal by the Ohio courts, until recently. You should consider that, instead of continuing this smear/libel against that family run business.

It seems to me that the Oberlin position at this point consists of the following elements, all politically self-evident to the coastal elites but demonstrably ludicrous to everyone else:

1. Because the bakery was such an important fixture in town and had had a shoplifting problem for some period of time, its trying to do something about the shoplifting made it a public figure.

2. Alternatively to #1, any entity that does anything that could lead anyone to think that it might be racist has made itself a public figure.

3. Just as kindergarten teachers encourage children to play “house,” Oberlin encourages students to play “social justice warrior,” and any action taken in advancement of that goal is exempt from the law of defamation in particular and from tort and criminal law in general (so that the shoplifting was justified as leveling economic disparities, and if, for example, the students had rioted and trashed the store, that would not have been actionable either).

4. Colleges cannot fulfill their core mission of producing students prepared to disrupt the country if they have to look over their shoulders constantly regarding whether they are engaging in naughty little things like defamation, religious/ethnic discrimination in admissions, etc.

Separate and apart from that, trying to introduce matters outside the record, especially without flagging that, is a serious breach of appellate procedure. Is there anything in the Ohio court rules that would lead the Ohio Supreme Court to sanction the lawyers?

I can’t imagine Oberlin is appealing to anyone.

If the appeal fails, will Meredith Raimundo be shown the door at Oglethorpe college due to her intellectual dishonesty??

Any one who’s ever won a $$ judgment against another knows it ain’t worth spit unless you can collect. Oberlin is broke and getting broker, but this isn’t about money for Oberlin. It’s about persecution against Gibson’s Bakery. When SJWs attack, the process is the punishment – just like Jack Phillip’s cake shop, or Barronelle Stutzman florist business.

    audax in reply to LB1901. | May 16, 2022 at 10:13 am

    Oberlin’s Endowment fund is over 1 BILLION dollars. They got the money honey!

      buck61 in reply to audax. | May 16, 2022 at 10:56 am

      they also have property / buildings and an art collection that would be worth millions

        jb4 in reply to buck61. | May 16, 2022 at 4:00 pm

        Along the way, I recall that their art collection was valued in the hundreds of millions. – definitely above $100M. I believe they are regarded as having one of the finest college art museums in the country.

      Observer in reply to audax. | May 16, 2022 at 3:12 pm

      Oberlin had to post a $36 million bond before they started the appeals process, so the Gibsons are assured of getting their money, once the appeals are done. Hopefully, that will be soon.

    DJ9 in reply to LB1901. | May 16, 2022 at 10:18 am

    The college’s building and land are worth something. In my area, they would call a Sheriff’s Auction to settle the debts.

    If it was me and I was awarded the college’s holdings, one of the college’s largest buildings would be imploded and left as an “artistic” pile of rubble, with a sign stating “This is the final outcome of all Leftist policies”.

      No need for the drama when you can simply file a lien against any and all funds the college has in their trust fund, savings, or other such bank accounts. With over a billion bucks in their wallets, the college will fold like wet tissue paper.

        ruralguy in reply to georgfelis. | May 16, 2022 at 12:18 pm

        To appeal, the college had to post a bond of $36 million. That obviated the need for the Bakery to attach a lien to their property. Much of the 1.4 billion in assets are endowment funds that are directed to a specific purpose: i.e. most of the donors specified the money be used to help students’ tuition. So, Oberlin’s assets aren’t in the billions. Even the money they have on hand isn’t sufficient. They are actually financially struggling, reducing their costs through layoffs. Their business model doesn’t seem sustainable. This judgement is likely a blow from which they will not recover. One less far-left lunatic college hell-bent on destroying this country.

          MajorWood in reply to ruralguy. | May 16, 2022 at 2:35 pm

          A college’s ranking is based on many factors, and the loss of money here will affect their ranking probably by a few places on the national scale. I would be shocked if they aren’t already accepting and enrolling students of a lower caliber than in previous years, because there are better students who do need financial assistance, who will go elsewhere if Oberlin can’t provide it for them. A recent article in the school paper touted it as being the biggest class ever, but details about the class composition were either missing or misleading, failing say,to account for rampant grade inflation. This isn’t just about the judgement and interest. Oberlin has already piddled away 10, perhaps $15M on legal fees and bonding, so the total cost is now likely north of $50M when payout day arrives. They keep digging in because they don’t know how to get out at this point.

          It isn’t just the $50M, but also the loss of that $50M as a source of income generation, which at say 6% comes to $3M less a year available for salaries and/or financial aid. That loss of a step here, a step there on the ranking system could very easily turn into an annual event. They have dropped at least 20 since I attended. Kenyon is already ranked above Oberlin, and Dennison will soon edge past them, or should I say, Oberlin will move past Dennison on the way down.

    Milhouse in reply to LB1901. | May 16, 2022 at 10:23 am

    The money is already in escrow, with enough extra to cover the interest until now. If the supreme court accepts the case they’ll have to put more money in to cover the extra interest in case they lose.

    TheOldZombie in reply to LB1901. | May 16, 2022 at 1:20 pm

    If the court system ever gets around to finally ending this nonsense and slapping the college across the face with the ruling several times the college has more than enough assets on hand to immediately pay the judgment.

    Yuckster in reply to LB1901. | May 16, 2022 at 1:33 pm

    Oberlin is not broke. They made a bad mistake by listening to their leftists and not saying “sorry” 3+ years ago. Now they will pay . . . eventually.

healthguyfsu | May 16, 2022 at 9:59 am

If this fails they have zero leverage in negotiating a post verdict settlement.

Fun to watch them squirm and ignore reality as its grip tightens around them.

Regarding folks like the ones found guilty, I’ll go with ‘mendacious ‘.

“…. key to that is the Gibsons being at least special purpose public figures. The Gibsons supposedly being involved in controversies as set forth on page 5 of the Oberlin College filing are key to the argument Oberlin College is making on this point.”

How Kafka of them. Drag the Gibsons out to be flogged in the court of public opinion, then claim since they were dragged out to be flogged, that makes them eligible to be flogged as much as possible.

opie taylor | May 16, 2022 at 11:38 am

Question – Is this the last appeal option available to Oberlin? If the OSC either does not agree to take the case -or- ultimately decides against Oberlin, can Oberlin take the case to SCOTUS?

Interesting that ALL the players in this case have already moved on from Oberlin. Also, regardless of Oberlin’s huge endowment and the funds in escrow to cover any settlement, they have plenty of wealthy woke alums who could easily help pony up $30-40MM to cover this judgement.

    Danny in reply to opie taylor. | May 16, 2022 at 11:56 am

    Their appeal consists entirely of “jury wrong” so no. This is just a tantrum by a wealthy defendant with the cash to waste on an almost no chance appeal.

    If all you needed was to repeat your defense at court to have a valid appeal the appeals process wouldn’t reject over 90% of appeals.

    The_Mew_Cat in reply to opie taylor. | May 16, 2022 at 12:48 pm

    Oberlin can take it to Federal Court if they lose at the Ohio Supreme Court. They could be gambling that by the time it gets to SCOTUS, composition of SCOTUS will have changed in their favor.

      I think Oberlin is gambling on finding some friendly judges, as previously posted, and absent that Gibsons or whomever is funding their legal costs getting tired of not having a payday and being willing to negotiate some lower price to keep it from going on “forever”.

I have never heard of judges granting an appeal that consists entirely of “Jury is wrong”.

In almost all cases (and this is why appeals almost always fail) you need grounds for appeal besides jury is wrong and if you lack grounds you lack a basis to appeal/

Oberlin made these claims in court and got refuted (repeatedly I might add) and the jury and after that appeals judges ruled against them.

They have no misconduct, no new evidence, no claim of misapplied law just “Jury are brainless (repeat failed argument).

I don’t know the makeup of the Ohio Supreme Court but unless they are all hardcore SJW activists (It is Ohio so I highly doubt that) I can’t imagine Oberlin has any chance at all for anything besides trying to inflict more pain on a family they already victimized. Over 90% of appeals fail because like this case they have no basis and you don’t get a “Jury man stupid and wrong here is the defense they rejected” in practice that fails every time.

    The_Mew_Cat in reply to Danny. | May 16, 2022 at 12:49 pm

    Not just jury is wrong. They may want to litigate the public figure status in federal court.

      healthguyfsu in reply to The_Mew_Cat. | May 16, 2022 at 2:39 pm

      I don’t think they can re-litigate that (at least not successfully) if it wasn’t sufficiently advocated during the trial.

      Danny in reply to The_Mew_Cat. | May 17, 2022 at 2:23 pm

      They didn’t offer the claim at court and they do not have any compelling evidence that was unavailable during the trial that they could claim would have influenced them to produce the claim.

      They fail to produce anything unavailable during the trial, failed to produce some kind of negative involving the jury or judge, and failed to establish well anything besides jury wrong.

      This should clear things up about appeals

      “An appeal is a review of the trial court’s application of the law. There is no jury in an appeal, nor do the lawyers present witnesses or, typically, other forms of evidence. The court will accept the facts as they were revealed in the trial court, unless a factual finding is clearly against the weight of the evidence.”

      https://www.findlaw.com/litigation/filing-a-lawsuit/appealing-a-court-decision-or-judgment.html

      The appeal isn’t a new trial.

My SWAG is that Oberlin is continuing this simply because as long as it is “pending,” they can get away with not talking about “active litigation,” which is the only reason why they still have their jobs. I see this as a strategy to continue to keep the alumni in the dark. Koppel needs to do another story, and another, and another, to keep the pressure on.

But hey, what is $30K a week in judgement interest, and mounting legal fees, as long as we keep our jobs. Someone needs to tell Ambar that compared to Oberlin, Putin had a well thought out fail-safe plan to crush their adversary.

Ironically, an Obie grad recently won the Nobel in Economics, and he cited as a major influence Bob Piron, who was the emeritus faculty member that early on stated that the college had lost their collective mind over the Gibsons incident.

according to the student newspaper applications are at an all time high and are meeting their admissions goals
from the article
After receiving the largest number of applicants on record, the College concluded the Class of 2026 admissions cycle on Monday, meeting its commitment goal for the year. The record number of applicants comes after increased efforts to lower barriers to apply and offer opportunities for both virtual and in-person recruitment.

“Arts and Sciences received 10,340 first-year applicants compared to last year’s 9,242, a 12 percent increase and an all-time high,” Dean of Admissions Manuel Carballo wrote in an email to the Review.

https://oberlinreview.org/27036/news/oberlin-meets-admissions-goals-for-class-of-2026-receives-record-number-of-applications/

Over the past few years, Oberlin has implemented several policy changes to make the admissions process more accessible. This includes removing barriers such as the “Why Oberlin?” application essay, the application fee, and standardized testing requirements.

Steven Brizel | May 16, 2022 at 5:39 pm

This case deserves a book length analysis of the facts of the case and what happened during discovery, at trial and on the appeals after all appeals have been decided.

antisocialjustice | May 16, 2022 at 6:18 pm

Oberlin better watch it they might end up being Gibson University and Bakery.

Is interest currently accruing on the monetary amount awarded by the OH court?

As the man said, SJWs never admit they’re wrong, they double down.

The Laird of Hilltucky | May 19, 2022 at 6:06 pm

Could it be that Oberlin’s attorneys are the smart people here? The longer this case continues, the more fees these attorneys collect. “SJWs never admit they’re wrong, they double down.” If the college’s attorneys have properly explained the alternative courses of action, then the attorneys may be quite willing to “ride this pony until it’s dead.” After all, Oberlin has hundreds of millions of dollars available and if this is how the admins choose to spend it, then so be it. The lawyers are doing what the clients want, even if the lawyers don’t believe it’s a good idea.