@collegedad13 I am sure Columbia, not lacking in excellent representation, apologized and settled for a good reason.
Lol true. I imagine the Yale attorneys are spending their time figuring out what their offer might be when it is their day of reckoning. Judges don’t seem to be inclined to allow unis to behave badly these days.
@momofthreeboys Columbia won!!! The only person who behaved badly was Nungesser for filing a frivolous lawsuit. My offer still stands to send you the courts order showing that Columbia won. Nungessers second amended complaint was particularly bizarre with strange hypotheticals.
I take it that many of us here are informed by our own position and also may be sensitive based on that positioning. As a mother of a male student athlete I often worry about these issues but know I have raised my son to understand “no means no”. There may be “he said, she said” and that’s why I really don’t understand why universities don’t just leave this to the police?..
Having said that I don’t think it’s beneficial or particularly respectful to call the woman in this case a “hot mess”. We all need to be mindful that BOTH of these students deserve to be discussed in a respectful way.
I’m ever mindful of the many women I knew in college and graduate school who were victims of sexual assault and never spoke out. Granted this was 25 years ago but victim blaming is alive and well folks.
“I have raised my son to understand “no means no””
This advice is out of date. Lots of accused kids are found responsible even when accusers do not claim that they said no.
“Columbia won!!!”
Columbia won important victories in the district court. In the court of Google – which may matter more to this plaintiff – this looks like a great outcome for Nungesser.
I have been an expert witness in several similar cases (I have no involvement with this one and don’t know anything more about it than the public record). Columbia’s statement has enormous value for the plaintiff. You have to move heaven and earth to get a public statement like that out of a gigantic, rich university, especially in a case where the statement will get international press coverage. I can’t think of any other case with this kind of outcome. I thought of the Sterett-Michigan public settlement (link below) as favorable to the accused student, but this is another level.
While some lawyers might take a case pro bono, students who sue universities over Title IX matters generally have a lot of family resources. That’s true whether they are accusers or accused. I don’t know any attorneys who take Title IX cases on contingency. So we’re mostly talking about families with six figures to spend. Some of them eat six figures for breakfast. They may not expect to collect a lot of money, and they may not care. A public apology might have been their ideal outcome from day 1.
@Hanna
Let me elaborate…
My son does not disrespect women. Ply them with alcohol to take advantage of them. He does not use derogatory language to discuss their bodies. He understands if there is a situation at a social gathering and there is drinking going on to not make “contact” as consent under those circumstances is tricky. His HS did a very good job of talking about these issues in a frank and straight forward fashion. It was an all boys school so they made an issue about educating men of virtue. That “virtue” was not treating women as objects.
“No means no” was meant as watershed or indicator for a variety of responses that would indicate personal integrity on his part. Sorry if I was unclear.
I don’t pretend to know what actually went on between these two students. We will likely never know.
Here’s a humorous take on the issue:
https://m.youtube.com/watch?v=yX6va9glqgA
^this.
While this may be a little too much “inside baseball” for many of you, there are a couple strands here that are relevant. One, with institutional clients such as Columbia, you are never only worried about the current case. A lot of the defense lawyers’ time is spent trying to figure out how actions taken in the current litigation will effect other, pending litigation or even future litigation. While this may be a bit less of a concern with a university than in the context with which I am most familiar (mostly heavy manufacturing and aviation) I am very confident that the statement made by Columbia here was not given because the college felt vindicated and was being magnanimous. Two, the money issue cuts both ways. While it is true that Nussinger’s family may be fortunate enough that they can afford a very large lawyer’s bill, Columbia is in the enviable financial position that throwing a few hundred k or even something in the low seven figures at this to make it go away will have zero financial impact on the school. Three, while New York lawyers are justly famous for their ability to bill every nano second possible on a file (I once had a guy working a series of cases for me try billing for addressing envelopes to send case updates), this is a high profile case of basically first impression for the plaintiff’s lawyer, and it would not surprise me if the lawyer cut the family a break here on fees because he thinks the exposure of this case will lead to more business down the road. It doesn’t happen often but I have seen similar situations. Four, it is very likely that if Columbia settled for chump change the settlement would not be confidential. Certainly the fact of confidentiality hurts the school more then Nussinger. If Nussinger paid them money, or even if they settled for a pittance, it would have been of immense value to the school to publicize that fact and try and shift the narrative. Being able to publicize fat that Nussinger paid them something, or that they settled for say 75K would be far more valuable to a school with a multi billion dollar endowment than chasing a family for attorney’s fees and costs. Coversely, it is very unlikely that Nussinger would have been in a strong enough position to insist on confidentiality if the speculation that the settlement was favorable to Columbia is remotely true.
The question of potentially libelous remarks by the young woman raises a question that I think Ohiodad51 could answer:
As I understand it, a comment is potentially libelous on its face if a person accuses another of having committed a felony.
However, if the person who is accused of the felony brings a libel suit against the accuser, does he now have the burden of proof of showing that the allegation is false? This would surely differ from the prosecutorial burden of proof of showing that the allegation is true.
I really do not see Columbia’s statement as an “apology.” The word was never used. Seems to me “we admit nothing but let’s all move on” is a more apt description of the statement. These words:
sound eerily similar to a statement Bollinger made a few years back about Ms.Sulkowicz:
All they agreed to do was to continue to review and update their policies to ensure all students are treated respectfully. They made certain to include the accused and the accuser in that sentence.
An attorney close to Andrew Miltenberg who claims to have been on the phone with him when the negotiated statement was released, characterized the 'apology" as “half-assed.” I agree with him and think Miltenberg was not entirely satisfied with the outcome of that part of the negotiation.
And I don’t mean to imply that I view Columbia as totally blameless here. I think they should have done whatever they needed to do to convince Jon Kessler, the professor who sponsored the art project, that Nungesser’s rights as a student were being jeopardized by whatever academic freedoms he claimed to have. But beyond that, given Bollinger’s background as a noted scholar in the First Amendment and freedom of speech, he knew that he would be going down a very slippery slope with any diligent attempt to interfere with her protest of that hearing finding.
@collegedad2013 , by “the case” I meant the case between Nungesser and Sulkowicz, not his case against Columbia
Your accusation of “victim blaming” seemed to indicate that that was what you were referring to. I am not a rape apologist. There are other cases in which the accused got off, particularly in a legal court of law, when I think he was clearly guilty. Far too many rapes are clearly not reported. I simply think that the information available, when taken as a whole, favors Nungesser’s innocence. Thus if there is any “victim” to be blamed here, I think it is clearly Nungesser.
@Ohiodad51 I actually think the fact that Miltenberg abandoned the filing of the appeal and settled is very telling. Given that these cases are pretty much what he exclusively does, there is no one with a more vested interest in making new law in this area than him. They had already gone 2 rounds and given your thoughts on the 2nd circuit it seems odd he pulled back now.
If his analysis of Judge Wood’s decision in light of Doe and Littlejohn led him to believe he had some viable chance of success in the 2nd circuit, then they would have just filed the papers. And yes it would then make sense to cut the Nungesser’s a break with some hybrid fee structure for the appeal so they would agree to proceed. Columbia and Nungesser both had compelling reasons for wanting to settle this case – the publicity was hurting both of them. Miltenberg not so much – the publicity actually helps him. I think he must have concluded his chances of success on appeal were slim.
So I see both parties going into settlement discussions on a relatively level playing field.
“sound eerily similar to a statement Bollinger made a few years back about Ms.Sulkowicz:”
Indeed…and for a left-leaning university to make a high-profile public statement characterizing the harm to an accused student as comparable to the accuser’s harm is quite a victory for the accused. The predictable angry outcry about this statement illustrates the cost it carries for Columbia. Here is one example of a commentator viewing the statement as an apology and casting both parties in a negative light, but reserving special scorn for Columbia. The author, a prominent legal blogger, is a dear friend of mine from law school who sometimes disagrees with me on Title IX matters:
Let’s not forget this is the same left-leaning university that actually absolved Nungesser of responsibility 3 times in Title IX hearings. They weren’t jumping on anyone’s bandwagon when they adjudicated those cases.
“Let’s not forget this is the same left-leaning university that actually absolved Nungesser of responsibility 3 times in Title IX hearings. They weren’t jumping on anyone’s bandwagon when they adjudicated those cases.”
I’m not sure I get your point (I honestly don’t – I’m not being sarcastic). I don’t think they’re jumping on any bandwagon then or now. I’m measuring the statement in terms of cost to Columbia in the eyes of constituents who matter to it: students, alumni, professors, and applicants. That’s a left-leaning crowd that hates this statement, which means Columbia is making a sacrifice. They have great lawyers and deep pockets, so they wouldn’t pay this cost if they didn’t think it was a good deal for them.
Columbia’s decisions in the underlying Title IX matters were confidential, so there wasn’t any public relations/bandwagon factor in either direction.
@HarvestMoon1, none of us have any idea what the settlement amount was or what the terms were. I think that both @hanna and I are trying to point out things that are unique in this case based on our experience. In @Hanna’s case that is presumably experience as a witness/consultant in cases of this type and in mine it is experience based on a lot of years trying complex civil cases, some of which were of media interest, at least in the particular industries.
I really think that it is unlikely that the lawyers involved for Columbia were thinking about this case in the overtly political terms expressed here. The plaintiff’s lawyer, maybe. As you say this area appears to be his life’s work. But at the end of the day I find it unlikely that the case settled on terms and for the reasons some of you are speculating about. At some point you just develop a sense for how some things work. Here, it seems pretty obvious to me at least that Columbia initiated the settlement efforts because they want this chapter closed and that Nussinger didn’t want to talk until Wood tossed the second complaint, likely because he wanted the threat of discovery and the attendant increase in value that would bring. After Wood tossed the complaint, then both sides had to evaluate where they were in the 2nd circuit with the law as it stands and crucially Nussinger (as a client) had to come to terms with the fact that he was going to be waiting a year plus before the process even potentially got started. Columbia on the other hand had to have some concerns about Wood’s ruling or they would have just stood pat.
As far as the “relatively level playing field”, all I can say is it is all about the Benjamins. No plaintiff is on a level playing field with an institution holding a 8 billion plus bank roll. I know. I have always enjoyed the fact that in most single party litigation I have handled my client was in a dominant financial position. It’s like a warm blanket on a cold night. It gives you the luxurty of time, and the ability to pick your spots to either try and settle, or to really put the spurs to it and grind the other side into making a mistake. I am only partly kidding.
Think about this. If everything is as you or @collegedad13 speculate, why in the world would Columbia settle now? What possible good can come of it? You have to assume they have competent representation both legally and with PR people. They would know that, as in virtually every case, a confidential settlement would be perceived as an admission that the other side had a point. If they believed Wood’s decision was solid, why not take their shot at getting it tossed? A huge percentage of cases in the federal civil system are affirmed on appeal. While the numbers are admittedly closer on something like a 12(b) dismissal, Columbia would have the odds with it on appeal, assuming a decision based on the normal practices and standards of the district bench. But they settled anyway. Why? I am very confident it wasn’t for money. Let’s say their bill was 300k to date, which would be astronomically high given the procedural posture of the case, but OK. Say maybe 40-50k more to go through the 2nd circuit and the probable Hail Mary to the Supremes. They have a bank account with three commas. Do you really think they care about the lawyers’ bill? You don’t think the school is worried about the crap it will have to eat from the usual suspects in the media, on campus and in the faculty for “giving in” here?
Then too, and despite your valid points about how full throated the “apology” was in their statement, Columbia could have bargained for the right to say whatever they wanted to, or at least to disclose the terms of the settlement. Often, these statements take the form of something like “After x years of litigation and an immense expenditure of resources, Columbia felt it was in the best interests of the Columbia community to bring an end to this unfortunate chapter and allow our community to move forward. Columbia reaffirms its support for all of its students, faculty and administrators who we believe acted appropriately in this case.” Not what we see here. Again, why not?
Those are the kinds of things that make me believe that Columbia wanted the settlement a little more here. Usually the party that wants the settlment more pays for the privilege. It’s just how it works.
@Hanna I interpreted the language in your post #52 as implying that Columbia was somehow predisposed to favor an accuser over the accused. Why would they be reluctant to admit that harm was done to all parties involved in this matter including Columbia? As Bollinger said “this is all very painful.”
I honestly haven’t seen much public outcry over Columbia’s statement. I think most people just want to see the whole thing disappear at this point.
@OhioDad51 my only speculation regarding the settlement is that both Columbia and Nungesser had good reason to want to settle – neither wanted any more of the negative publicity. Both shared that weakness in that Nungesser needed to get on with his life without this dogging him and Columbia was being dragged through the mud in the press. Otherwise, Columbia had the least to lose – they do have deep pockets and often the legal fees as well as any judgment are insured.
You stated upthread that Wood’s decision would unlikely survive the 2nd circuit. Miltenberg obviously did not believe that given all that he would have to gain with a victory there. Why would he abandoned that appeal unless he thought it was unlikely he would win? The Nungessers could have been persuaded with some fee concessions. I think both parties had equal weaknesses.
My characterization of the settlement as likely being “nothing to write home about” is as good a guess as yours that it was something more. My conclusion came from yet another comment by the attorney who spoke to Miltenberg who used the word “nest egg.” While he never claimed any knowledge of an amount, he got that word from somewhere or someone. If it was something spectacular I would expect something like “windfall.”
The only folks I know who consider Columbia to be a left-leaning university tend to be those inclined to the conservative/libertarian/fundamentalist Christian right.
From my observations, Columbia at best/worst(depending on your political leanings) is center-left and from my observations as a frequent visitor/past grad student…the student campus culture really apolitically centrist with the few activists on each side of the political spectrum being split down the middle. There were just as many loud obnoxious far-right libertarian/conservative students protesting/carrying on as the left.
Not too surprising considering Columbia not only attracts many high SES students from conservative leaning families, but also sends a critical mass of its graduates to Ibanks and Wall Street positions which staunchly libertarian-right or apolitically centrists tend to gravitate towards IME.
Not to mention most of the left-leaning activists at Columbia hold politics which would have placed them on the far right end of the political spectrum at Oberlin when I attended in the mid-late '90s or to a lesser extent genuinely left-leaning Ivies such as Brown back when my HS classmates attended in the same period.
Of course. No settlement occurs unless both parties perceive it to be in their interest.
Well, as I stated before you are going to wait at least a year to get rolling and even if you prevail in the 2nd, you are going to deal with an obviously hostile trial judge. That is a huge factor. It’s like the DoJ lawyers who have to deal with the Judge in Hawaii who got overturned on the travel ban. Every little thing is going to be a fight. It’s not fun. Also, don’t misunderstand what I am saying. Nothing is ever for sure and there is a not insubstantial risk that Nussinger could lose on appeal. My point is really that when you are balancing the relative risk, the larger risk of an adverse outcome in the 2nd Circuit falls on Columbia. As the case was postured, Nussinger had nothing to lose and every thing to gain, while Columbia was in the opposite position. Usually in that circumstance the person at risk of a worse outcome will be more motivated to settle, given the universe of potential risk percieved by the lawyers. Here of course that universe of potential risk is not only the amorphous nature of the damages, as I mentioned earlier, but also each side’s perception of the relative strength of Judge Wood’s ruling given the existing law in the 2nd Circuit. Obviously, they viewed the universe similarly enough to reach agreement.
I have said repeatedly that I have no idea what the settlement terms are. But I do have a lot of experience in this field and can point out things which are outside the norm here, which is all I am doing. So I think I can probably make a fairly educated guess as to how this played out and who was holding the stronger hand. But what the numbers are? I could flatter myself and say I can do a bit better than throw darts at a board, but realistically not much. None of us really can except perhaps @hanna.
Really? You are hanging your argument on the difference between a “nest egg” which in the common parlance is a not insubstantial sum of money saved for the future and a “windfall” which I believe is commonly understood as an unexpected sum of money regardless of amount? Come on. You think it is perhaps possible that Nussinger’s lawyer expected to get paid by Columbia at some point and that therefore he did not consider the settlement, in whatever amount, a windfall? I doubt any plaintiff’s lawyer anywhere ever thought of a settlement as a windfall. They all think whatever money they achieve is because they are great lawyers who scared the big bad company.
Plus, is this information from a guy who knows a guy publicly available? Other lawyers publicly discussing conversations where a colleague is arguably violating a confidentiality agreement would be unique in my experience.
And FWIW as an aside, I doubt seriously that the insurance mattered at all here. Yes, Columba likely has insurance for cases of this type. But I really don’t think that we were ever talking about enough money to move the needle at a place like Columbia. I could certainly be wrong, but I doubt that even a couple/three million in fees and/or a judgment would really impact the school financially at all. I just don’t think the actual numbers at issue are as high potentially as some of you appear to think. As I mentioned @Hanna may know more about the numbers, but if she does she probably can’t say, lol.