Blog : Settlement

Michigan State Will Pay $500 Million to Abuse Victims. What Comes Next?

Michigan State University reached a $500 Million settlement for the survivors of sexual abuse by MSU physician, Larry Nassar, but what about justice for other survivors of sexual abuse and violence?

Structures are in place at universities across the country to protect students from sexual abuse and violence. Unfortunately similar structures do not exist in the United States Olympic Committee to protect young athletes from abuse. Veteran collegiate and Olympic athlete, CEO of Champion Women, and TFNLG affiliate, Nancy Hogshead-Makar, writes on the subject for the New York Times:
May 18, 2018
On Wednesday, Michigan State University announced it had settled with 332 victims of sexual abuse by Lawrence G. Nassar, a physician who worked with the school’s gymnastics program. The settlement will pay $425 million to 332 victims, or about $1.28 million each; it will set aside an additional $75 million in a trust for any future claims of sexual abuse against Mr. Nassar.

Half a billion dollars is a landmark settlement, one that couldn’t have been achieved without the courage and vulnerability of Mr. Nassar’s hundreds of victims. And it didn’t help that the university chose a strategy of maligning the victims, accusing one of them, Rachael Denhollander, of being in it “for the money.”

Until recently, though, this sort of strategy often worked. The difference this time is both the sheer number of victims and the intersection of the Nassar case and the #MeToo movement. Understanding the Michigan State settlement within that context is critical, because it points to where things need to go next: The #MeToo/#TimesUp movement is not limited to getting victims much-needed compensation and ousting powerful and abusive men from their professional careers; it means changing the systems and cultures that breed sexual harassment and abuse in the first place.

I know the culture of collegiate and Olympic sports particularly well. I am an eight-year veteran of the United States national swimming team, a two-time Olympian and a three-time gold medalist. My 1984 Olympic coach, Mitch Ivey, was barred from the sport for sexually abusing my teammate. He never hid his sexual contacts with multiple underage swimmers; he was open about their “relationship” — common parlance in the swimming community that normalized child molestation. Despite his well-known abuse, it took 30 years before USA Swimming barred him.

However badly we think Michigan State behaved, at least the university recognized that it has a duty to protect its students from sexual abuse and violence, and it eventually acted. Structures were in place, even if it took the school too long to use them.

Not true for the United States Olympic Committee. It has known that sexual abuse is a significant risk of harm to America’s athletes, but the committee made the conscious decision to let the abuse happen without helping victims. Like Mitch Ivey, hundreds of other coaches were known risks to children.

Instead, the committee has adopted a “not my problem” approach, declaring that it is up to the individual sports to root out abuse. By taking that strategy, the committee avoids having to educate families and athletes about the risks of sexual abuse, having to train children on how to recognize appropriate boundaries and having to train its staff on how to conduct an investigation or a hearing that the parties would consider fair. Moreover, no matter how poorly it has protected athletes, the committee needn’t fear civil liability unless it employs the coach directly — a tiny number. The committee’s strategy has saved them enormous sums.

This is beginning to change. In February, in response to powerful testimony in the Nassar case by athletes like Aly Raisman, Congress passed the SafeSport Act, which imposes an obligation on the Olympic Committee and the 47 sports it oversees to protect athletes from physical, emotional and sexual abuse. It prohibits coaches and those in power over athletes from being alone together, except in an emergency. It requires everyone inside the Olympic movement to report instances of abuse. And it authorized the creation of the Center for SafeSport, an independent entity that will provide expertise to sexual abuse complaints.

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Doug Fierberg Comments On Death Of Willem Golden In delawareonline Article

Willem Golden passed away after falling from the roof at University of Delaware Sigma Pi fraternity house.

With any devastating circumstance, questions mount – how does a community prevent future tragedies and who should be held responsible?

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The rooftop Willem Golden fatally fell from, at 153 W. Main St. in Newark. Xerxes Wilson/The News Journal

University of Delaware’s unofficial Sigma Pi house offers a text-book example of potential code violations, including broken glass, dangling electric cords, and a barbecue grill strapped outside a third-story window. And while over 1,000 fraternities in the International Conference have gone dry, Sigma Pi isn’t one of them.

Douglas Fierberg – a nationally acclaimed wrongful death attorney representing clients who have sued universities, national fraternities and local chapter members for alcohol-related student deaths – tells delawareonline: 

“Even if a party is held at an off-campus unofficial fraternity house, the hosts and the organization may still be liable. These organizations need to be rendered safe, there is no excuse for not intervening.”

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Students, faculty and staff gather at Skidmore College at a memorial for Willem Golden. Eric Jenks/Skidmore College

Fierberg represented the family of Brett Griffen, the University of Delaware student who died as a result of alcohol poisoning in 2008. The Griffen’s brought suit against University of Delaware calling for its Greek life websites to list all violations against fraternities and sororities.  Despite the attainment of policy change at University of Delaware, Fierberg urges families to remain cautious:

“Colleges and universities continue to publish vague information – if they publish it at all – about fraternity interactions, including deadly hazing rituals and sexual assaults. We’re still facing significant problems because most universities refuse to tell the truth about student deaths at Greek organizations.”

School Violence Law offers our deepest condolences to the Golden family during this difficult time.

Click here to read the delawareonline article in its entirety.
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Universities and Fraternities Fail to Tell the Truth about Fraternity Rape, Fraternity Hazing and Other Misconduct

The investigative findings (state and federal) resulting from the massacre at Virginia Tech, along with other legal precedent, establish that the campus community is entitled to timely, accurate information about risks.  As the Report prepared at the request of the Virginia Governor provides, “Nearly everyone [on campus] is adult and capable of making decisions about potentially dangerous situations to safeguard themselves.”  Universities and fraternities must telling the truth and provide warnings to the adult students on campus concerning dangers facing them in seeking fraternity membership or participating in fraternity events.  If not, they may be liable for legal claims based upon fraud, negligent misrepresentation, violation of consumer protection statutes and other theories of law.

Virtually every university that allows Greek organizations to operate on campus enables them to use university resources, staff, and website.  Those resources are almost exclusively used to promote the organizations.  For example, one Ivy League university’s Associate Dean of Students posted a Parents’ Letter on the university website proclaiming that its Greek community is “among the best in the nation,” and a community that does not live up to the stereotypical “negative images portrayed in popular media.”  This communication is consistent with information generally parroted on university websites across the nation.  Yet, this information is false and misleading.  At the very time period covering publication of this statement, the university had documented:  204 incidents of social fraternity misconduct; 82 incidents of fraternity hazing; 3 sexual assaults in fraternity houses; and 9 incidents of fighting at fraternity houses.  Its statistics indicated substantial annual increases in misconduct and were consistent with national studies regarding fraternities, hazing, rape and related risks.  For example, the average FAQ webpage published by universities, including information posted for parents, poses questions that only highlight the purported benefits of Greek membership.  Some questions actually dissuade students and parents from considering the risks.

A prominent Midwest university posted similar pro-fraternity material and FAQs on its website, yet failed to disclose that there were 10 allegations of sexual assault involving fraternities during one recent semester.  Though two fraternities were ultimately disciplined as a result of such allegations, the University then failed to disclose that the sanctions were based upon allegations of rape and sexual assault.  Instead, the university wrote an opaque description of the incidents, stating that sanctions were warranted because the fraternities failed to “provide a safe environment during parties where alcohol is present.”  Whatever that means . . . .

Parents, students, and the campus community had no reasonable way of ascertaining that specific fraternities were disciplined because of sexual assaults reported by numerous female students.  There is no rational or privacy basis for the university – a state institution in this case – to withhold this information.  Women are entitled to know if the fraternity house they are invited to has recently been the scene of reported sexual assaults.  Women are entitled to know if the University and fraternities’ agreement to allow self-management by fraternities has proven to be unsafe.  Students must not be denied knowledge of the truth and opportunities to protect themselves from risks known by the university and fraternities.

The failure by universities to accurately and fully disclose known dangers and potential risks posed by Greek organizations may violate certain laws and enforceable legal duties.  This is true because it is generally established that a university’s exclusive knowledge of such risks may create a special relationship requiring timely, accurate disclosure of such risks.  Moreover, failure to disclose the truth may expose a University or fraternity to claims of fraud, as “a representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter is a fraudulent misrepresentation.”  And, where there is evidence of an intentional misrepresentation, such as, perhaps, where a university specifically chooses to omit the words “rape” or “sexual assault” from the description of a fraternity’s sanction, a victim who subsequently suffers injury having been denied such truth and the opportunity to take action to prevent such harm may be entitled to punitive damages.  Of course, the law varies from state to state so the above information is not intended to provide particular legal advice to a particular person concerning the law in his/her state.  You should, however, check the law in your own state and, if represented by legal counsel, ask her/him about these issues.

In short, the law demands that universities and fraternities end the longstanding practice of obscuring the truth – or failing to warn – about the risks of Greek membership and activities.  Victims of these misrepresentations may have enforceable rights, and, perhaps, the legal power to change the way these institutions choose to do their business.

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Sexual Assault in Illinois

School Violence Law represented a college student who was raped by a classmate. The classmate was found responsible for sexual assault in Illinois campus disciplinary hearings, but the university later vacated that decision and allowed him to remain in class with her.  Title IX claims were filed against the University, and were resolved favorably for our client with a substantial, confidential financial settlement.

Click here for related content.

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Wesleyan Fraternities to be Co-ed

Wesleyan University in Connecticut has ordered its residential fraternities to admit both men and women.  Wesleyan Fraternities have three years to complete the transition.  This policy change comes after a rash of injuries and assaults have recently plagued fraternity houses, including a recent fall from the Beta Theta Pi house that caused serious injuries to Summer Elbardissy.

Having represented two students seriously injured at Wesleyan fraternities before, including at Beta House, we are aware of the dangers.  We hope this change fosters a safer environment for everyone involved.

Click here to read more blog posts about fraternities.

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Douglas Fierberg Featured In TIME Magazine

Douglas Fierberg founded the only nationwide practice and specialty of representing victims of violence in school-related incidents, and serves as lead counsel for victims of sexual violence, hazing and other crimes at schools and universities across the country.

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Co-author Chris D. DeJong is a litigation paralegal responsible for all aspects of legal claims on behalf of victims of sexual violence and other misconduct at schools and universities nationwide.

Universities and fraternities hide the truth about sexual violence on campus even though women need this information in order to protect themselves. While universities are required by federal law to publicly report certain incidents of crime, including rape, those reports are often inaccurate and never detailed. In fall 2010, there were between three and 10 allegations (the actual number remains guesswork) of women being raped at the University of Minnesota. At least three of those women alleged being raped in fraternity houses. The school lists the sanctions it imposed against fraternities on its website but sanctions issued during that time period are for the group’s failure to “provide a safe environment during parties where alcohol is present.” Rape was never mentioned.

Women are entitled to know if the fraternity house they may visit has allegedly been a scene of sexual violence. Worse yet, fraternity lawyers guard existing document of sexual violence at fraternities, most likely because the information would shock the public. The National Association of Insurance Commissioners ranked fraternities as the sixth worst insurance risk in this country, just behind hazardous waste disposal companies and asbestos contractors. One insurance broker for fraternities boasts of handling more than 6,000 claims and $60,000,000 in payouts. There are many hurt women in those numbers. Insurance brokers for the industry maintain and analyze statistics on sexual violence in order to establish premium rates. Fraternities and their insurance brokers have fought our attempts to gain access to these statistics. They’ve also blocked our efforts to obtain their analysis of alcohol-free housing (AFH), which one study concludes would reduce incidents of injury and death in fraternities by 75%. Those statistics will likely demonstrate that requiring fraternities to go AFH will spare many women from being plied with alcohol and raped.

Alcohol-free housing is critical because fraternities rely on underage, inexperienced, and often intoxicated fraternity members to protect women in chapter housing. These students are legally prohibited from managing the service of alcohol, yet they are given the green light by universities. The fox supervises the hen house, but this fox hurts people. Universities do not manage dormitories in this reckless manner. Obscuring the truth is not acceptable. Universities and fraternities must tell the whole truth so that students can understand the risks and protect themselves.

Read the article on Time Magazine’s website.

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Carson’s Story: A Hazing Death Remembered

We were lead counsel for the estate and family of Carson Starkey, who died as a result of being hazed during the pledge process of Sigma Alpha Epsilon at California Polytechnic University and San Luis Obispo.  The fraternity’s chapter had a long-standing ritual of hazing that included a “brown bag night,” an event celebrating and coupled with the pledges’ introduction to their respective big brothers.  This type of event, known widely as Big Brother Night,  is considered one of the “three deadly nights” by fraternities since it has historically involved binge drinking, family drinks, and the provision of dangerous quantities of alcohol to fraternity pledges.  Carson’s big brother selected a wide-array of alcohol for Carson to consume in the circle of pledges in order to demonstrate his commitment to brotherhood.  One fraternity officer also began passing around “everclear” for the pledges to drink, and Carson lost consciousness shortly thereafter.  Though fraternity members recognized his need for emergency medical attention, actually placing him in a car to go to the hospital, the fraternity members aborted the trip to the hospital, placed Carson on a mattress, and left him unattended.  His death was entirely preventable.   As always, the national fraternity, chapter, and members argued that they were not legally responsible for Carson’s death.  Extensive discovery was conducted that demonstrated the very opposite, and the motions filed by defendants to protect them from liability were denied by the court.  The case settled for a substantial confidential sum.  In negotiations, we (Carson’s family) were successful in negotiating substantial changes in the way Cal Poly permits fraternities to operate on its campus.  We were also successful in negotiating substantial changes in the way SAE operates, including compelling it to publicly report where it and its chapters have been sanctioned by universities for risk management violations.  Because colleges, administrators, legislatures, parents, students and others have been denied access to the “truth” about fraternity misconduct, the public health risks and dangers to college students have never been adequately understood and addressed.  And, fraternities have never been called upon to broadly account for the real dangers their traditions and unsupervised, dangerous practices pose.  This was the first time ever that such reporting has been done by a fraternity, whether voluntarily or compelled.  We also negotiated a substantial annual payment by SAE to the non-profit organization established by the Starkey family, Aware Awake Alive, that has been instrumental in changing laws across the country, educating students and families, and saving lives.  Carson’s Story has been shown to high school and college students and personnel across the country.

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HAZE: The Gordie Bailey Story

Douglas Fierberg served as lead trial counsel for wrongful death claims against a national fraternity and its members in connection with the hazing death of Gordie Bailey at the University of Colorado.  Gordie was a wonderful young man, excelling in sports and academics, and deeply loved by his parents and sister.  Gordie attended college and made the critical mistake of joining a fraternity that had a longstanding, secret practice of hazing pledges.  The fraternity’s hazing involved compelling pledges to drink dangerous amounts of alcohol during pledge events, including the tradition where a pledge is assigned a “big brother.”  These events are widely referred to by fraternities as the “three deadly nights.”  Though these traditions have resulted in death and serious injuries for decades, fraternities have refused to make meaningful changes that would eliminate these rituals.  Gordie became incapacitated and collapsed in a common area of the fraternity house.  Rather than obtain required medical assistance, the fraternity brothers wrote all over his body with sharpies and, then, left him unattended.  He died as a result.  The national fraternity and members disclaimed any liability for Gordie’s death and, then, argued that his family’s right to a financial recovery was limited by an arbitrary statutory cap on damages.  We prevailed against the defendants on numerous pre-trial motions, and the case then settled for a confidential substantial amount far in excess of the statutory cap.  The national fraternity was also required to institute a number of non-economic changes to make its operations safer.  Below is a link to the powerful film, “Haze,” that was produced by Gordie’s loving parents in order to warn others of the dangers of fraternity hazing.  Haze is narrated by Robin Penn Wright and has been shown to thousands of students and families across the country.

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