I won’t go into detail about the lawsuit against Oberlin College filed by Gibson Bakery and Market for defamation, slander and libel; you can read the details in my previous posts. In short, after the local market detained three Oberlin students for shoplifting and assault (they later pleaded guilty), both the students and Oberlin went on a campaign to discredit the market, accusing it of racism and inflicting punitive actions, like suspending college orders from the bakery. Gibson’s, which sought a non-lawsuit solution, eventually sued when the college proved intransigent.
In its verdict, the jury found Oberlin guilty, fining the college $11.2 million in compensatory damages and another $33 million in punitive damages, making a cool $44.2 million Oberlin had to fork over to the Gibson family.
It was almost certain that fine would be reduced, if for no other reason than in Ohio punitive damages are usually capped at twice the compensatory damages, and that figure was exceeded. Indeed, the award was recently reduced to $25 million—still a hefty chunk of change for the Gibsons.
But wait! Now Oberlin has to pay more. Now, according to Legal Insurrection, a right-wing website that is the only venue to cover the trial completely (of course), the judge has awarded the Gibsons another $6,271,395.00 in attorney’s fees, and $294,136.79 in litigation expenses, making a total of $6,565,531. That’s on top of the $25 million.
The judge’s order is pasted below (pdf here). Note that the judge argued that Oberlin was responsible for the big fees since the college had contested the suit from the outset and wasn’t interested in a negotiated solution (my emphasis):
“Though the case was not filed until November 2017, Plaintiffs’ counsel’s invoices reflect that this case began for Plaintiffs in April of 2017. After the complaint was filed, nearly every phase of the case was vigorously contested, including the trial which encompassed twenty-four days over the course of nearly six weeks. Plaintiffs’ counsel’s billing invoices are reflective of, and consistent with, a case of this magnitude. Furthermore, the Court finds that due to the nature of claims at issue in this case, it is not possible to separate the time spent on recoverable punitive damage claims (or related litigation expenses for experts) from non-recoverable punitive damage claims. See Bittner, at 145. The Court therefore finds that Plaintiffs’ counsel’s 14,417 billable hours were hours reasonably expended on the case.”
The rate used in the award was $290 per attorney hour, and the judge used a multiplier of 1.5 on top of that—sort of a reward for the complexity of the case and the legal skill required—to arrive at the $6.2 million figure.
You can read the entire order by scrolling through the document below, and notice that the final words of the judge’s order are “Case closed.” As the website observes, that’s a note of finality you don’t often see in judgments.
At any rate, yay for the Gibsons and boo for woke Oberlin, which tried every trick it could, along with its students, to tar a bakery with a spotless equity record as racist.
Oberlin can afford the dosh, of course, but it’s still a substantial amount. What it might not be able to afford is repairing the damage done to the college’s reputation.
Remember this NYT column about Oberlin and other intolerant liberal colleges?
A quote:
Gibson’s this month won $44 million in actual and punitive damages from Oberlin, apparently reflecting the jury’s exasperation with the university for enabling a student mob.
At a time when there is so much actual injustice around us — third-rate schools, mass incarceration, immigrants dehumanized — it’s bizarre to see student activists inflamed by sushi or valorizing a shoplifter. This is kneejerk liberalism that backfires and damages its own cause.
Oh, and if you’ve forgotten the big Oberlin Food Fracas, including the Sushi Kerfuffle, go here.
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Possibly Oberlin will hire another team of lawyers to fight the legal bill. Oberlin is nothing if not an attorney’s dream.
We need a chant for this.
Make them pay! Make them pay!
😉
The Schadenfreude, it warms me.
As I may have mentioned in this space before, I think what happened here to Gibson Bakery is unconscionable. And I think the circumstances of the case merited a libel verdict, and an award of actual damages and legitimate attorney’s fees, since the evidence appears to support that Oberlin College acted with “actual malice” (which is to say, with knowledge of the falsity of their allegations against the bakery or at least with reckless disregard for the truth of those allegations).
Nonetheless, I have First Amendment concerns over the award of punitive damages (particularly of punitive damage of this magnitude). One of the Free Speech Clause’s concerns in any case is whether a legal sanction imposed on prohibited speech might have a “chilling effect” on protected speech.
Imagine that another business in the city of Oberlin actually did what Gibson Bakery was accused of doing here — engage in a pattern of invidious discrimination based on a racial animus. How many people might be dissuaded from taking up a placard or handing out leaflets in protest for fear of facing a potential judgment running to the tens of millions of dollars? (Such an award also likely would encourage any other business being protested — however legitimate and well-mannered the protest may be — from immediately running to court to seek a huge damage award of their own.)
That part of our legal system is the part that few people pay attention to but seems to play a big part in the results. I live in a state where the commercials on TV would surprise many because you just don’t see them in some other states. These are law firm’s TV commercials that are more numerous than car commercials. There are maybe 5 or 6 firms here that run commercials advertising their services if you get into an accident. Everyday they are relentless with the commercials – need a check, in a wreck, call the bull, call the hurt line and it goes on and on. Where do they get the money for all these ads and why so much competition for the accident business? After a few years you know all these lawyer’s phone numbers whether you want to or no.
Yeah I always find it the weirdest thing when I travel in the States to suddenly encounter an absolute proliferation of adds for Lawyers.
Just…everywhere, incessant…billboards, TV, everything. It’s “sue, sue, sue!”
Little wonder the USA has such a reputation for being a litigious society.
And of course, especially as you go down south, more billboards for plastic surgery than I would ever see hear in Canada.
The most ironic case is seeing these two obsessions combined, as I’ve passed numerous billboards for plastic surgery followed by a lawyer’s billboard “Bad plastic surgery? Know your litigation rights…call us!”
A very large factor in that is the ‘American rule’ (it’s actually called that) whereby costs usually ‘lay where they fall’. This is in contrast to the ‘English rule’ used by most other countries whereby costs are usually awarded to the successful party and against the unsuccessful one.
The ‘American rule’ much encourages ambulance-chasing lawyers who work for a contingency fee since if their side loses, the plaintiffs have lost nothing except their time, and often good prospects of scoring a rich settlement because juries are likely to make ‘sympathy’ awards to the poor injured litigant just because the defendant’s fat insurance company can afford it. It becomes evident why medical insurance and hence any medical treatment is so shockingly expensive.
The ‘English rule’ really does discourage lawsuits. In British culture, suing somebody is an absolute last resort, roughly akin to a declaration of war.
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Thanks for that! Very interesting. I was unaware of those differences and it does seem to explain some things about the USA.
I don’t know, Ken… this seems unlike a free speech issue since it involves institutional behavior, an attempt by the college to put a private business out of business. If it was just a matter of some students marching around with signs the case would not have even existed.
“Imagine that another business in the city of Oberlin actually did what Gibson Bakery was accused of doing here — engage in a pattern of invidious discrimination based on a racial animus. How many people might be dissuaded from taking up a placard or handing out leaflets in protest for fear of facing a potential judgment running to the tens of millions of dollars?”
But if the business is, in fact, racist, then it wouldn’t be libel, and there would be no case. Oberlin’s high-powered legal team couldn’t come up with even a shred of evidence showing Gibson’s to be racist, nor find any character witnesses beyond their own students and faculty who initially engaged in this libel to even claim such (even the black employees who worked there said the owners had never been anything but kind).
Shouldn’t punitive damages be awarded when a powerful institution (in this case, Oberlin) uses its power to stir up and/or give support to a mob and use it against another, much smaller and weaker entity that may, in other circumstances, not be able to defend itself? I don’t want to head down the road of what (I think was) the VP of Oberlin said in one of her revealed texts, where she said that, if this case wasn’t going on, she would sic the student mob on one of the professors at the school because that professor said things she didn’t like. Oberlin’s top officials were clearly and knowingly using the resources of their near-billion-dollar institution to take down political enemies and promote themselves.
To me, not making a strong statement through the legal system against what Oberlin did is more likely to have a chilling effect on speech than imposing punitive damages for it.
Think you’re missing the point of the First Amendment “Chilling Effect” doctrine, Beej. Being a free-speech proponent always means standing up for repugnant speech, be it Oberlin’s slandering of this bakery, or Mr. Brandenburg spouting Klan crap at a rally, or the Nazis marching through Skokie. We do this not to encourage such speech itself, but to give breathing space to legitimate speech.
Of course, this was merely a civil action, not direct punishment imposed by the government. Accordingly, I have no free-speech objection to Gibson Bakery being made whole — to it being put back as close as legally possible to the status quo ante that preceded Oberlin’s unconscionable conduct. But to create a lottery mentality regarding libel litigation by imposing oppressive punitive damages — a circumstance likely to have legitimate protesters looking over their shoulders for hordes of process-servers and ambulance-chasers, a circumstance likely to encourage business owners to wield the cudgel of threatened multi-million dollar SLAPP suits against demonstrators with the temerity to decline to disband immediately when told to do so — I think ill-serves the commonweal.
You know I’m all for standing up for repugnant speech, but I’m confused about how the situations you mentioned in the first paragraph relate in any way to libelous speech. This case wasn’t about hateful speech, but libelous speech. I understand your concern over a chilling effect, but I don’t see how we can use the idea of a possibility of a chilling effect to justify not awarding punitive damages when a billion-dollar entity attempts to destroy a small mom-and-pop shop using libel and its own power. I’m just not seeing the connection beyond a mere possibility that seems tenuous and doesn’t seem to match up at all with the other boilerplate free speech cases from your first paragraph.
See New York Times Co. v. Sullivan, in which The Times was sued for running an ad that made demonstrably inaccurate, and, thus, defamatory, statements about the Montgomery AL police department.
Now, the falsehoods told here by Oberlin college were far more egregious than those contained in the NYT ad. Consequently, Gibson Bakery could satisfy the “actual malice” standard that caused the verdict for the Montgomery PD plaintiff to be overturned. But I think the policy discussions in the SCOTUS opinion regarding First Amendment free speech apply with equal vigor to the imposition of punitive damages in this case.
It’ll be interesting to see how this case plays out in the appellate courts, if it isn’t settled first.
Additionally, if there is any chilling effect from a case like this, I also don’t see how punitive damages, be they large or small, would increase the chilling effect. If having to pay millions of dollars for libel will chill the future speech of protesters, why would adding punitive damages for the libel increase this effect? If, as you say, protesters might be looking over their shoulders after a case like this, wouldn’t they be doing so regardless of whether the judgment was solely for compensatory damages or for compensatory plus punitive damages?
Finally, the three situations you mention in your first paragraph relate to governmental entities attempting to shut down speech they don’t like, rather than a private entity suing another for speech that is libelous and did serious damage to their business.
I dunno, Beej, if 364 days in the county clink — or 11 months and 29 days, as Johnny Paycheck put it 🙂 — has a deterrent effect, how come they’re still sending folks to Leavenworth for 20 years to Life?
Might not be perfectly proportional, but there’s still a correlation between the size of the punishment and the extent of the “chilling effect.”
I guess we’ll agree to disagree on this one 🙂 After all, we are talking hypotheticals, so we could talk in circles all day. I will be interested to see, though, if they consider the NYT v. Sullivan case in appeals, tough.
That is, if Oberlin does appeal. I don’t know if they’ve made any statement regarding their intention to yet (last I can remember, they said something to the effect of “we’re still assessing our next step.”). They might just want to leave the case alone, lest they suffer further public embarrassment.
Hey, just saw Echo in the Canyon, the new doc about the music scene in Laurel Canyon in the Sixties and Seventies. IIRC, you dig that music. It’s joyous and exuberant, man — so joyous and exuberant, I damn near suffered a period of post-coital-like tristesse walkin’ outta the theater. 🙂
Lotsa screen time for our host’s imago, Mr. Stills, in this one.
Put it on your list, BJ.
“…so joyous and exuberant, I damn near suffered a period of post-coital-like tristesse walkin’ outta the theater.”
Whoa-ho! You bet I’ll be seeing this one. That’s about the highest damn recommendation I think anyone has ever given a movie. We talking Mr. Stills of the given name Stephen? That’s a good a host as any, and it also reminds me of something I can recommend to you: Graham Nash’s autobiography, Wild Tales. You’ve probably read it already, but, if not, it’s worth it.
I really appreciate these recommendations you give me because I often haven’t even heard of the movies. Thanks, Ken.
BTW, not to reignite the debate, but after rereading this post, I think your first point goes against your overall argument. Nearly every (all?) other western nation gives lighter sentences. Even Anders Brevik doesn’t have a life sentence. The answer to your first question is that we have a flawed system based on retribution rather than rehabilitation. I’m sure 10 years in a rehabilitative environment would be much more effective in helping the inmate (and thus society) than 20 to life. Regarding deterrence, haven’t there been multiple studies showing that increasing the sentences past a certain point has no deterrent effect? That’s sort of a point in my favor: nobody is going to look at this case and say, “well, they committed libel and had to pay $11 million in damages, so I’m going to go ahead with my entirely legitimate and non-libelous protest,” but also say, “well, they committed libel and had to pay $11 million in damages plus $33 million in punitive damages, so I’m notgoing to go ahead with my entirely legitimate and non-libelous protest.” At least, I can’t imagine that would be the mindset, especially of a protest group.
I tend to agree with this, that once you hit 11 million in compensatory damages, most of the chilling effect is already there.
“We’ll do it if the risk is 11 million, but not if it’s 44 million” is not something a lot of people would say.
Good point, remember that the modern Anti-Vax movement was started in the 1980s by lawers who wanted to turn vaccines into the next Dalcon Shield/Sillicone breast implants.
The consequences of that failed scam are still with us.
I read that “Case Closed” at the end of the final order awarding attorneys’ fees as the verbal equivalent of the judge slamming down the gavel at the end of a court proceeding.
Hopefully a lesson for colleges where the SJWs have run wild.
That school is Fercockt. I anticipate a drop in enrollment.
I think it is probably true that “legal sanction imposed on prohibited speech” will have a ” ‘chilling effect’ on protected speech”. But this is just an unavoidable consequence of any legal sanction. The mere danger of malpractice suits is what leads respectable physicians to order more testing than is entirely sensible. Exacting, over-detailed regulations governing group homes for the developmentally disabled result in assorted difficulties for well-intentioned, well-run group homes. Certain traffic rules directed against unsafe drivers have the side-effect of creating traffic congestion problems for safe drivers. It always seems that legal sanctions or regulations directed against bad actors have the side-effect of inconvenience (or worse) for good actors in the same general activity.
It is hard to see any way around this general principle—but that, Ken, should not dissuade us from throwing the book at bad actors when the case is absolutely clear. The fiscal damage imposed on Oberlin will have the salutary effect of chilling colleges’ willingness to let sanctimonious, pig-headed deans run amok.
And, in 1976 Skokie, the simple expedient of the village council denying a parade permit had the salutary effect of preventing Nazis from marching through a town largely populated by Holocaust survivors.
True, there’s always a trade-off. But the practice of medicine and the ownership of group homes is not protected by the First Amendment; speech is. I think permitting Gibson Bakery to collect ALL its actual damages (including those attributable to its loss of future business and the diminution in its reputation, if any), as well as to collect all its resulting legal fees, provides a sufficient disincentive to deter others from in engaging in Oberlin-style conduct, and thus strikes the appropriate balance for First Amendment purposes.
That’s what makes creating policy — be it governmental, corporate, or something else — is so difficult. One should be trying to figure out all the potential knock-on effects and what the magnitude of them might be. Unfortunately, it seems that, at least when it comes to government, we don’t even consider knock-on effects these days. Each party proposes/tries to implement what sounds good to their base/what they think they are supposed to do (or, in the case of those politicians who need more exposure, perhaps outrageous or absurdly idealistic).
Only the background operators even consider knock-on effects, but politicians often choose who those operators will be (e.g. Chairman of the Fed) or who will control those operators (e.g. head of the CIA), so they can end up being terrible anyway. The case of a position like Chairman of the Federal Reserve shows more publicly just how bad it can be when the people chosen don’t properly assess the situation or the policies they institute. From Greenspan through Bernanke, things seemed good until the 2008 crisis hit and many economists realized (some recognized before) that the ideas from which the Fed was working were disastrous in the long run. And those ideas are largely unchanged, which is rather remarkable. But the stock market is good and unemployment is technically low, so everything must be fine! I’m sure we’re definitely not headed for another financial crisis, just like everyone was sure in those halcyon Clinton and W. (well, economically) days.
Oberlin was not sued for the students’ speech but for the college’s own actions. This is discussed in some detail at the LegalInsurrection site.
That actions have consequences raises no speech issue. There is no chilling effect on speech from convicting newspaper editors who commit murder.
This is slightly peripheral, but is >$6 million actually what their lawyers are charging? Even at $500 an hour, that’s more than 12,000 hours. Assuming 8 hour days, it’s more than 1,500 days, so more than 300 weeks of 5 days full 8 hour work. Did this event occur more than 6 years ago? Or do they use gold-plated paper in their copying machine?
I have no sympathy for Oberlin, but—?
? This is discussed in Jerry’s post!
I think the $290 versus the $500 doesn’t even cancel out the 1.5 multiplier, so it is even more surprising.
Does the judge actually hand the extra 50% to those lawyers? We had a recent discussion about tipping, but I don’t think the highest mentioned was close to 50%, nor did anyone mention tipping attorneys, despite their ‘depressed?’ wages of very nearly 5 US dollars for every minute they can get away with charging!
Is that judge running for re-election in the near future?
I’m not sure I understand what you are saying.
14,417 hours x $290/hr x 1.5 = $6,271,395. This is approximately the $6,565,531 judgement for attorney’s fees. I assume the difference has to do with details that aren’t mentioned.
I assume the judge is using the lawyer’s fees to make a point given the reduction in punitive damages.
My point was simply that 1.5 times $290 is less than $500, so the amount of time, which I think was already ridiculous at $500, is now even somewhat greater.
This is quite apart from a 50% tip being ridiculous, and from even $290/hr (per lawyer, remember) being ridiculous.
Did the judge not already express his punitive attitude in the original award to the bakery?
As I indicated, I have every sympathy with the bakers, but very little with the legal system, judge and attorneys, as well as none at all with Oberlin’s behaviour.
If the lawyers took the case on a contingency fee — which I suspect they did — they’re in for a much bigger payday than just the $6+ mil awarded by the court.
The general practice in contingency-fee cases is for any award of legal fees to be combined with the award of damages, and for the lawyers to get a percentage of the total pot — usually 25% if the case settles before trial, 33% after trial (as here), and up to half if the case were to be appealed all the way to SCOTUS.
Not a bad take, considering. (When calculating the amount of attorneys’ fees simpliciter in such cases, courts generally apply the so-called “lodestar method.”)
Yup. And a nice, fat, incentive for more such lawsuits. I foresee years of delicious schadenfreude!
Unlike Evergreen, I have a soft spot for Oberlin, so this saddens me. While Evergreen has never been a distinguished school, Oberlin has an honorable academic history as well as having engaged in some bona fide social justice work.
I saw my last Pete Seeger concert at Oberlin, and the most entertaining airplane voyage of my life was on a flight from Cleveland to San Francisco populated almost entirely by Oberlin students (30 years ago)
You need a better coffee for your wokeness.
I grew up about 50 miles from Oberlin and had some high-school friends who went to school there, back in the antediluvian day. It was a pretty cool little town back then — little square, maybe, but then Sodom and Gomorrah were a little square by my standards then. 🙂
I grew up less than TEN miles from Oberlin !!! In the city where this trial was held !!! And my mother used to work IN OBERLIN !!!
Checkmate, Atheist !!!
My mother told me that the Oberlin story was HUGE news in her town
Didn’t know anyone that attended Oberlin, but did notice how Leftist they were in the Late 70s. Also noticed how so many of the students were from outside of Ohio, specifically Long Island and Martha’s Vineyard. I asked my father about this, and he told me about a type of person known then as a “Limosine Liberal”
And I once attended a concert at Finney Hall. So did my brother.
Oberlin has a remarkable history, especially in the era before the civil war. But I think that makes this judgment even more gratifying and important. I hope it will wake the trustees up, and they can bring Oberlin right, and worthy of its heritage.
Oberlin was the last stop on the Underground Railroad. Many escaped made there way the ten or so miles to Lake Erie, and went to Canada. Many more stayed in Oberlin. Their descendants still live there. Well, at least they did in the 70s lol