Gibson’s Bakery Wants Ohio Supreme Court To Restore Full Punitive Damage Verdict Against Oberlin College
The bakery filed papers today asking the Ohio Supreme Court not to hear the college’s appeal, and also asking the court also to hear the bakery’s cross-appeal to restore the full punitive damage verdict.
Gibson’s Bakery filed today its response to Oberlin College’s request that the Ohio Supreme Court exercise its discretion to hear the college’s appeal from the $32 million judgment (which includes attorney’s fees and costs). That judgment resulted from the $11 million compensatory and $33 million punitive damage awards totalling $44 million, reduced by the trial court under Ohio tort reform law to $25 million. The bulk of that reduction was that over $10 million in punitive damages were eliminated by punitive damage caps.
We discussed the nature of the college’s appeal in Oberlin College Appeals To Ohio Supreme Court In Gibson’s Bakery Case:
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.…
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.
I did not think much of Oberlin’s jurisdictional memo in support of the appeal:
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….
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.
An armada of groups filed in support of Oberlin College, including the NAACP, Reporters Committee , Ohio Association of Civil Trial Lawyers , National Coalition Against Censorship , and Ohio Chamber of Commerce.
Gibson’s Bakery then filed a Cross-Appeal, seeking to reinstate the full original punitive damage verdict, as we explained in Gibson’s Bakery Files Cross-Appeal In Ohio Supreme Court in Oberlin College Case – Will Any Groups Support Them?
… it argues the grounds under which the Ohio Supreme Court evaluates whether to take cases are met here as to the cross-appeal (emphasis added):
Appellees/Cross-Appellants, Gibson Bros., Inc., Lorna J. Gibson, Executor of the Estate of David R. Gibson, Deceased, and Allyn W. Gibson, Deceased, and hereby give notice of cross-appeal to the Supreme Court of Ohio from the judgment of the Lorain County Court of Appeals, Ninth District, entered in Court of Appeals Case Nos. 19CA011563 and 20CA011632, on March 31, 2022. Appellants/Cross-Appellees, Oberlin College and Meredith Raimondo, filed their notice of appeal on May 13, 2022 and filed a copy of the judgment and opinion which is the subject of this cross-appeal.
Appellees/Cross-Appellants, Gibson Bros., Inc., Lorna J. Gibson, Executor of the Estate of David R. Gibson, Deceased, and Allyn W. Gibson, Deceased, appeal to this Court and submit that this cross-appeal case involves a substantial constitutional question and raises a substantial question of public and great general interest.
The Gibsons still could argue that the main appeal contesting the trial judgment does not meet the standard for accepting cases, because the issues on that main appeal revolve around factual determinations that are left to the trier of fact, and any legal issues either have been waived or mischaracterized. If they went for the Royal Flush, the Gibsons could argue that the main appeal should not be accepted, but their cross-appeal should be accepted because the cross-appeal presents a substantial and important legal issue as to the constitutionality of the punitive damage cap.
The Royal Flush is exactly what the Gibson’s seek in their combined Memorandum In Opposition To Jurisdiction & Memorandum In Support Of Jurisdiction Of Cross-Appeal, asking the court not to hear the college’s appeal, and to hear the cross-appeal.
In opposing the court taking Oberlin College’s appeal, the Gibsons argued that the issues raised by Oberlin College either were false issues not truly part of the case, or mundane factual and legal issues that do not meet the standard for a jurisdictional appeal:
At the outset, it should be noted that this case has nothing to do with First Amendment protected expression or the suppression of student speech. The Ninth District Court of Appeals adroitly pointed this out in its opinion:
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.
Gibson Bros., Inc. v. Oberlin College, 2022-Ohio-1079, —N.E.3d—, ¶ 3 (9th Dist.) [emphasis added].
This case is not about student speech. The Gibsons1 did not file claims against any Oberlin students. In fact, not one student testified at trial. (Id., ¶ 3). Efforts by Oberlin to dramatize this case as a First Amendment issue mislead the Court.
This case involves settled legal issues for three separate torts: (1) intentional infliction of emotional distress; (2) intentional interference with business relationships; and (3) libel.
The Court should decline Oberlin’s invitation to clarify well defined defamation law. The law is well settled and there is no new law to write. This Court should also decline Oberlin’s invitation to consider a narrow, fact specific issue regarding a bifurcated trial involving punitive damages, and it need not reexamine application of statutory language regarding caps on punitive damages which have been consistently applied and considered by two different courts of appeals.
The Court should decline to entertain Oberlin’s propositions of law because they cover issues of settled tort law, raise no novel questions of law, and raise no substantial constitutional questions or issues public or great general interest.
The memorandum then went into each of these elements in more detail. The memorandum also addressed the chicanery of citing outside-the-record evidence (which is what I found so outrageous, as detailed in my prior post):
Oberlin’s claim that there was a “public controversy” is based entirely on inadmissible materials that Oberlin did not even attempt to introduce or proffer at trial: (1) an unauthenticated thirty-year-old newspaper article from the College’s own newspaper that was not submitted at trial; (2) double hearsay deposition testimony that Oberlin didn’t even attempt to introduce during dispositive motion briefing, trial, or post-trial briefing; and (3) un-proffered, unauthenticated hearsay statements from the private social media account of a Gibson’s employee. These false and misleading allegations were conclusively disproven during trial when numerous persons of color testified that the Gibsons did not have any history of racial profiling or discrimination. Not a single witness testified that the Gibsons had a history of racial profiling or discrimination. Oberlin’s own “surveys” of the community failed to locate anyone who said Gibson’s had some history of racism.
Read the rest of this takedown of Oberlin’s fabricated narrative at pp.7-10 of the pdf. linked above. The Gibsons concluded:
Because none of the proposed propositions of law raise substantial constitutional questions or matters of public or great general interest, deal with questions of settled law regarding defamation or settled factual questions, and don’t present this Court with a novel or confused issue to be decided, the Gibsons respectfully request that this Court decline jurisdiction on Oberlin’s appeal.
The memorandum in support of the court hearing the cross-appeal starts at page 21 of the pdf, and goes into great detail on the abusive conduct by Oberlin College and harm suffered by the Gibsons at very personal levels.
Read the whole thing, it brings back memories of the trial evidence the college would prefer gets lost in the mountain of paperwork:
Some powerful defendants decide that the potential consequences of their reprehensible conduct are just a cost of doing business. As the Lorain County jury saw over the course of a sixweek trial, Oberlin made the calculated decision that its conduct was actually good for business. In doing so, they cruelly crushed a proud, 132-year-old, fifth-generation, family business.
In some cases, the punitive damages cap leaves a defendant undeterred and a society’s disapproval undermined. In these rare—but important—cases (vastly wealthy defendant/severely reprehensible conduct), the punitive damages cap is unconstitutional in application, and we must trust the jury’s collective wisdom on the punitive damages amount. Here, the jury awarded Gibson’s Bakery, David Gibson, and Allyn “Grandpa” Gibson, compensatory damages of $11,074,500 and punitive damages of $33,223,500, constituting less than 3% of Oberlin College’s net worth. The jury determined that this amount of punitive damages was necessary to appropriately punish and deter the defendants after their smear campaign devastated the Gibsons and their family business.
Oberlin demanded that the family business: obstruct or ignore the criminal justice system, dismiss pending criminal charges, look the other way when its students committed crimes, adopt a policy of giving its students a first-time shoplifters’ pass, and call the College administration rather than police when its students are caught stealing. The Gibsons disagreed with the policy, because (1) it would pervert the criminal justice system, (2) it would not properly prepare the next generation for a responsible role in society, and (3) rampant theft devastates small businesses. Oberlin responded with the full force of its power, threatening to “rain fire and brimstone” and “unleash the students” upon the Gibsons and their supporters. Oberlin led a defamation campaign to destroy this family business that had survived two World Wars, the Great Depression, and the Great Recession.
As applied, the statutory cap has an arbitrary and unreasonable and disproportionate effect here – minimal deterrence for billion-dollar bullies as compared to less powerful tortfeasors. In extremely egregious cases, rigidly relying on a simple mathematical formula when setting punitive damages violates (1) due process/due course of law under the Constitutions of the United States and the State of Ohio and (2) the constitutional right to trial by jury. In such cases, an exception to the cap must be allowed.
As of this writing the court’s electronic docket does not reflect any amicus briefs filed in support of the Gibsons. Oberlin College will have a chance to respond as to the cross-appeal request for jurisdiction.
You may be wondering about the status of the Gibsons’ attempt to collect on the surety bond posted by the college to prevent execution (i.e., collection efforts) on the judgment, which we detailed in Oops – Gibson’s Bakery Seeks To Execute On $36 Million Appeal Bond Since Oberlin College Failed To Obtain Stay Of Appeals Court Mandate. As of this writing, the only filings I see in the trial court docket are an entry of appearance for the surety company and a motion for additional time to respond.
We will, of course, continue to follow the appeal and the surety bond collection effort.
[Featured Image: The late David Gibson explaining shoplifting incident][via police body cam video]
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So do I
Be nice for it to end with the Gibson’s getting the original amount of money and oberlin having to shut down.
Oberlin’s in no danger of shutting down, at least as a result of this case. It has more than enough money to pay the entire judgment, with interest, and still continue indoctrinating the next generation of Marxists.
It would be nice if key players in the persecution were held fully accountable, with their personal and professional lives in chaos. Also, the same for thief.
They have a Billion dollars endowment. Even if they are forced to pay the original amount with interest and attorney’s fees the are not in any way at risk of shutting down now or in the future.
(And if I remember correctly Oberlin isn’t going to be directly responsible for the payment of such amounts as it’s their liability insurance company that’s on the hook for the judgement when it is paid. Oberlin technically will pay out nothing for their troubles. But I could be wrong on that one.)
Only $59 million of their endowment is unrestricted funds. Like most endowments,, the donor directs what will be done with the donation. Oberlin’s donor, mostly small donors, overwhelmingly gave the money to students. Of the $59 million, only $49 million is left. There was no mention of an insurance company paying off their verdict, during trial discussion of the bond posting.
So, yes, they are financially in trouble. They have been laying off staff and cutting expenses, lately.
I doubt they were in any financial difficulty when the stock market was more than double the Pandemic low and stock market indices 25% higher than now. Now might well be a different situation, especially since they have a lot of alternative investments – which can get hammered in a bear market.
The business model of these Liberal Arts Colleges are not sustainable, as Harvard Professor Clayton Christensen notes: 50% of them will fail in the next 10 years. Why? Because $1.75 trillion of college debt, funded by by the Government with unrealistically low interest rates. This government also funds/backs 59% of all mortgages through unrealistically low-interest loans. Almost all of those colleges educations, homes, and cars are bought on borrowed money. That’s not sustainable. When the economy/world-economy devalues that debt, there will be no more “free” money to spend.
Without all that spending, this nation really doesn’t have much of an economy. The top five companies in America are software/social media companies. I.e. mostly advertisers. That’s hardly the basis of a modern economy.
Is that a tax shelter?
I ‘donate’ the money but decide how it will be spent..
We can only hope the state supreme court will take up the Gibson’s case. If you don’t ask, you’ll never know.
I do not. Gibson’s has a good result now. Further court action has to add some risk, even if small.
What are the risks? They have wone a judgement, now the only question is their getting the full damage award.
That the original judgement represents less than 3% of Oberlin’s net worth begs the question: Is that really punitive?
Endowment monies are frequently directed as to what they can be used for. I doubt that there are many of them which would allow the payment of collegiate punitive damages from them. The funds available to pay of Gibson’s will likely have to come from the college’s separate operating accounts, and who knows how much – or how little – the margin there is.
Re: Facts, as described in the parties’ supreme court filing.
Oberlin’s discussion fails to cite the record where the allegation is sourced from.
However, Gibson’s discussion shows where its facts are sourced.
If I was a member of the Court, I would be irritated by Oberlin FAILURE to cite to the record for the facts. Oberlin’s attorneys would have the justices search the record on their own to verify Oberlin’s facts are accurate.
Oberlin’s failure to cite where its facts are sourced is reason enough to reject the appeal.
Oberlin’s supreme court filing deserves a F minus!
Like the ACLU, the trial lawyers associations have now place leftist politics ahead of their mission. Has anyone heard of a TLA taking sides against a plaintiff, especially a plaintiff arguing that a punitive damages cap should not be enforced?
Oberlin has acted in bad faith throughout this entire episode. They need to pay heavily for that, and serve as an example to other wokenazi institutions.
How about a hostile takeover of Oberlin? Then affiliate of Hillsdale? Capture that endowment for conservative causes.
It would be nice if the Gibsons ended up owning Oberlin and turning is to a baking voc school. 8>)
Curious legal question: As we keep hearing, Oberlin donorship was conditional in many cases. If the students can no longer have a viable educational experience because Oberlin’s operating expense funds are insolvent, then what happens?
Can Oberlin pull from these as some kind of emergency operating clause or does the money automatically get refunded? I ask because I have seen universities use funds for other purposes than donor indications before in the past.
“Oberlin’s operating expense funds are insolvent, then what happens?”
Maybe a chance to take control of Oberlin?
As I posted recently, Duke University at one point was Trinity College. Then the Duke family happened. At this point, I would not rule out the possibility that some of these “errors of judgement” were in fact part of a plan to make the college insolvent and in need of a sugar daddy. Now, I don’t think this was a plan from the get-go, but once the Yuge judgement was in place, it may have evolved on its own. AsTHEY say, never let a crisis go to waste. I say this because my neighborhood in Portland is under seige from the antiyoyos, with certain properties along one particular street constantly targetted, almost like someone was paying someone to drive down the price, almost. That may have not been the plan 6 years ago in Portland, but as things evolved, it likely became apparent that certain actions might not be too obvious to everyone under the fog of war, but they have been pretty obvious to me. So as I watch the management of Oberlin consistently fumble around in the dark, I really have to wonder how much of this is by deliberate design. The fact that no one has been fired, and those who caused it seemed to have landed on their feet, just makes me a bit suspicious. As a straight white christian conservative male, any incompetence of mine on this level would have resulted in being fired and unhireable in a day. So why is everyone here getting a pass.
I’m not a lawyer, but have been involved in many civil actions. A gift is not contractual, because nothing is given in return. I.e. there is no consideration. So, it doesn’t fit into contractual law. Instead, it is a “gift” with a legal intent. Legally, the donor has a rights, relating to the intent of the gift and to whom it is directed, and whether it was received. If it is misdirected, the donor can claim fraud, which can be a civil tort and/or a criminal wrong.
Oberlin by comparison to other colleges, doesn’t have a high ratio of rich donors, but rather many small loyal gifts by alumni who are committed to Oberlin. I guess that makes sense, because liberal arts students are mainly pursuing a general education, rather than a professional degree directed towards a career, so their donors are not exactly rich. They have a high rate of students who go on to advanced degrees, but likely because their liberal art degrees were worthless, professionally. So, the college can likely get away with misdirecting their donations. My bet though, is they wouldn’t because of auditors.
I’m not sure I’d rely on Oberlin’s auditors! Yeah, I know they’re “regulated,” but still.
If Oberlin pays the judgement from restricted funds how would anybody find out, and who would have standing to sue? I bet many of the donations were bequests. Do the heirs even have standing to sue? It was never their money, after all.
Colleges are heavily regulated. They need to comply with audits of compliance to Federal, State, and local laws.
You have more faith in auditors than I do. I hope your faith trumps my cynicism. I suspect that, when it comes to the “restricted” money, Oberlin will find a way to snake dance out of it. Don’t pay the judgment from “restricted” funds, then turn right around and tap “restricted” funds in a way that will comply with the “restrictions,” at least on the surface.
“Restricted” gifts are, to me, like the old Christmas Club accounts at banks, or the federal “trust funds” for Medicare, Social Security, and so on. In the end, they are aspirational, denoting how much one pocket “owes” the other. If the SHTF, the distinctions show that there really aren’t any differences.
“An armada of groups filed in support of Oberlin College, including the NAACP, Reporters Committee , Ohio Association of Civil Trial Lawyers , National Coalition Against Censorship , and Ohio Chamber of Commerce.
Note that chambers of commerce are, by and large, our enemies.
And the less said about most professional and “civil rights” organzations the better.