ThePopTort

The (Un)Civil Side of Sexual Assault

By Elvert Barnes

Crime victims often face terrible financial burdens, like medical and mental health care bills, and also experience trauma, pain, suffering and lost quality of life. The criminal system isn’t designed to compensate them - but the civil justice system is. The criminal justice system also doesn’t hold perpetrators directly accountable to victims – but civil cases do. And sometimes, the criminal justice system just fails. So it is not uncommon for crime victims to file civil cases against perpetrators or responsible third parties.

But as valuable as the civil justice system can be, sometimes victims face the same kinds of challenges as they do in criminal cases. I’m thinking, in particular, of sexual assault cases. By filing a civil case, these survivors have to relive the horror and humiliation of their assault(s), so plaintiffs in these civil cases are extraordinarily brave.

This week, there are three very high profile celebrity cases making the news and I’ll begin with the one that led to this Huffington Post headline: “Confused Why Women Don’t Report Sexual Assault? Ask Kesha.” To summarize:

In 2014, Kesha filed a lawsuit against producer Dr. Luke (Lukasz Gottwald), whose production company is part of Sony. According to Billboard, the lawsuit detailed Kesha's claims that Dr. Luke had abused her for years, forcing her to snort drugs, giving her "sober pills" and raping her. Since then, she has been in a protracted legal battle with the producer, trying to extricate herself from her contract with him.

But on “Friday afternoon, a judge ruled against Kesha's request to be released from her contract with Sony. That contract commits the 28-year-old pop star to making six more albums with the company, and thus links her to a producer she says sexually assaulted her.”

Now this ruling comes at the most preliminary stage of her lawsuit, requiring an extremely high burden of proof. She may eventually win. The case now moves to trial. But the (mostly) female celebrity world went nuts over this ruling, leading to its own twitter hashtag #freekesha.  As the Huffington Post article put it, "even [her] privileges don't set her apart from other victims of sexual abuse who face a justice system that often doesn't protect them. Her story sheds light on why rape remains one of the most grossly underreported crimes.” (Dr. Luke, it should be noted, denies the allegations.)

Equally courageous is Erin Andrews of Fox Sports. When she was at ESPN, a stalker named Michael David Barrett rigged her Nashville Mariott hotel room with a peephole camera, created a video of her undressing, and then posted it on the internet. (In 2009, he pled guilty to felony stalking, was sentenced to 30 months in prison, and apparently now lives in Oregon.)

Rather than running and hiding from this horror and humiliation, four years ago she filed a civil suit in Nashville, which is about to being. She is “seeking $75 million in damages from the Nashville Marriott at Vanderbilt University, alleging that the hotel was negligent” in allowing this man, who specifically asked for a room next to hers, to reserve this room, allowing him to set up this recording device. “The lawsuit also alleges infliction of emotional distress and invasion of privacy on the part of the hotel, Barrett and Windsor Capital Group, the hotel’s parent company.”

And then, of course, are the many sexual assault allegations against Bill Cosby. This article sums of the latest developments, but we thought it interesting that,

The Cosby accusers whose lawsuit led Camille Cosby to give a deposition Monday have tried again to obtain the legal case file from a Pennsylvania accuser’s 2005 civil lawsuit.

They argue that Bill Cosby should not be allowed to keep “a secret veil” over Andrea Constand’s lawsuit even though the civil case ended with a confidential settlement.…

Their lawsuit says they were defamed when Cosby’s agents denied the actor had molested them.

Constand’s complaint is the only one to lead to criminal charges. Cosby is due for a preliminary hearing in the case on March 8.

If the criminal justice system fails one way or the other, the civil justice system will step in, that’s for sure.

Energy Barons Uphold the Dangerous Workplace Tradition

Don Blankenship, Massey Energy’s former CEO (also known as “[o]ne of the most reprehensible bosses in recent history”), today goes to trial. The charges stem from the 2010 West Virginia Upper Big Branch coal mine explosion “that killed 29 workers, the U.S. industry’s deadliest in almost four decades.”  (See some of our earlier coverage here, here, including how the families who sued were compensated. ) Writes Slate, “He will be brought to justice for allegedly shunning coal mine safety rules, conspiring to conceal safety violations, and lying to the U.S. Securities and Exchange Commission and company shareholders.” (Interesting contrast to the U.S. Department of Justice’s “hands-off” attitude towards GM executives responsible for far more deaths.)

Miners’ safety is at the forefront of this trial, and interestingly, notes Bloomberg, “Massey Energy was one of a handful of mining and energy companies that tied its chief executive officer’s bonus to safety performance in 2010."

Blankenship had his bonus cut by about $150,000 [the year of the mine explosion] for failing to meet safety goals. He still got a $669,000 award because only 10.5 percent of his annual bonus was tied to safety.

“If 90 percent of your bonus can be achieved with full disregard to health and safety, that’s an underwhelming link,” Anne Simpson, senior portfolio manager and director of corporate governance at the California Public Employees’ Retirement System, the largest U.S. pension, said of typical executive-compensation practices. “Particularly in an industry where health and safety is absolutely the foundation of the company’s license to operate, its reputation, its operational risk and, of course, ultimately financial success.”

In fact, as Bloomberg shows, there doesn’t seem to be any correlation at all between this kind of compensation incentive and worker safety. The incentives were pretty weak at Massey and Blankenship even flunked those (although he got an eight-figure package when he “retired.”)

Let’s not spend too much time on that crook and instead keep the focus where it should be – on the workers who are injured or killed producing energy for the rest of us.  Sadly, things don’t seem to be getting much better for them. For example, “A new report suggests oil-field work has never been more dangerous.” Last year was, according on one article, "one of the deadliest years for oil and gas workers."

Earlier this month, the Bureau of Labor Statistics said 142 oil and gas workers died in 2014, a 27 percent jump from 2013, when 112 workers died.

That 2014 number may even increase when the final federal breakdown is released in April, said Rebecca Reindel, senior safety and health specialist with AFL-CIO.

The labor group releases an annual report on worker safety and tracks fatalities and injuries in many employment categories. Reindel said she was jolted by the rise in oil and gas deaths.

"Oil and gas deaths are the highest we've seen them, possibly ever (recorded), definitely the highest going back to 2003," she said.

Actually, all of this is in line with the dismal state of worker safety generally.  As FairWarning reported just a couple weeks ago,

More Americans died on the job last year, with the increase concentrated among older employees as well as self-employed and contract workers. Preliminary federal figures released today for 2014 put the workplace death total at 4,679, up 2 percent from the final count of 4,585 for 2013.

The new figures amount to the highest preliminary death total in six years, and the total will almost certainly grow by the time final numbers for 2014 are issued in the spring.

As for Blankenship himself, he seems bad or worse, as well. I mean, just as a person on Earth. Apparently, “[h]e released a self-made ‘documentary saying that the Upper Big Branch disaster was an ‘act of God’ caused when miners struck a hidden natural gas pocket and not the result of defective equipment and procedures, as investigators have found.” He faces 30 years in prison.

Volkswagen to ALEC: Help, Let Us In!

Today, the American Legislative Exchange Council (ALEC), the secretive group run and funded by big corporations that subsidize the involvement of conservative state lawmakers, officially launched a new website about its model legislation to immunize corporate lawbreakers.  Coincidently, we just received a copy of this “confidential memo” from the Volkswagen diesel cheating crisis management team.  I know. What are the odds?

__________________

Confidential Memo

To: Volkswagen Board of Directors

From: Dieselgate Crisis Management Team

Re: Our Three Point Plan - Update

Date: September 24, 2015

Here’s where we are on the three-point plan:

1. CEO Martin Winterkorn steps down so he can spend more time with his lawyers.  DONE. 

2. We show that we’re no different – in fact, probably better - than the rest of the bottom feeders that make up the auto industry.  (Hey, how’s this worse than Henry Ford II calling airbags “a lot of baloney.”)  DONE.

3. We get with that U.S. group, the American Legislative Exchange Council (ALEC). I know, ALEC is so tainted that 120 companies have already quit. But let’s face it. Only a truly scorned organization can relate to what we’re going through right now. So I just buried ALEC’s enormous corporate membership fee in the $7 billion budget we think we need “to win back the trust of our customers.” Now let me show you why this is an excellent investment that will save us billions in the long run.

But before I do, let’s admit there are a few things we can’t do much about.  We got caught by U.S. environmental regulators (and researchers from West Virginia, of all places.) This is terribly ironic since we don’t do much diesel car business in the U.S. Our European friends barely regulate us, making it a whole lot easier to cheat. Had we just stayed out of the U.S., we’d be golden. Although I have to say, U.S. auto safety enforcement is generally laughable and the U.S. Justice Department doesn’t care much either. To be honest, we weren’t terribly worried. But the EPA? Now that was a surprise. I just found out that ALEC basically wants to repeal all U.S. pollution laws. (Hope the Pope doesn't find out.) If we only knew about ALEC sooner!

But now that we do, the timing couldn't be better. This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers. These have already begun. Turn’s out that ALEC’s top civil justice priorities are bills to ensure these very cases never get anywhere. It’s as if ALEC was reading our minds!

For example, ALEC wants to gut all the state consumer protection laws that provide the basis for many of these lawsuits:

ALEC’s model bill “would effectively eliminate the critical private enforcement provisions that give these laws their power.… [It] is actually a wrecking ball to destroy one of the building blocks of consumer protection, namely the private enforcement of state unfair and deceptive practices acts. It does this by systematically weakening each and every provision of these laws, such as lower burdens of proof, special damages, and attorney’s fees, that were designed to provide consumers with access to justice for small economic wrongs.

One of my absolutely fav’s is this provision: “in no event may any action be brought under this chapter more than [four (4)] years from the first instance of the act or practice giving rise to the cause of action.” We started cheating six years ago!  How'd they know? That’s just spooky.  

And there’s more. This bill contains a complete ban on punitive damages. And here’s what I love about ALEC. They propose not only limiting punitive damages in consumer protection cases. They have an entire bill aimed at limiting punitive damages in any kind of case brought by people we harm. This kind of law is incredibly important to corporate lawbreakers like us. It means civil damages will never threaten our bottom line, and we’ll be just fine even if we keep harming people. 

Then, ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us – even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.)  Any one of these provisions alone could immunize us, but several dozen? This bill is a true embarrassment of riches.

And those lawsuits by State AG’s? ALEC’s bill would make it nearly impossible for states to hire outside counsel to help, which could prevent many cases from going forward at all. You can read more about that bill here. And should any of our cars have product defects that lead to car crashes and injuries (or deaths), ALEC has a variety of options to immunize us there, as well.

And here’s what else I love about ALEC.  Everything they do is entirely behind closed doors. They kick reporters out of meetings. They tell members of the public “NO” when they ask to participate in ALEC activities.   

So you see why we must join ALEC today. We’ve broken the law. We’ve harmed a lot of people. This is an organization just for victims like us!

Learning From Police Misconduct Lawsuits Makes Cents

 

It seems like every day new information comes out about another incident of excessive force used by police. The latest is the widely-reported story of a police officer in Texas, who after tackling a 14-year-old girl in a bikini to the ground, aimed his gun at a group of unarmed teenagers during a pool party. These events have become so ubiquitous in the headlines, it is difficult to keep them straight. Incidents seem to be popping up in small communities and large cities, on the east coast and the west coast, involving victims with a range of ages.

There are no shortages of victims who have been injured, disabled or killed by police. This year, fatal police shootings have already reached 400 nationwide, “more than twice the rate of fatal police shootings tallied by the federal government over the past decade, a count that officials concede is incomplete.”  Scores of others have been seriously hurt.  And many cases have no justification, creating liability exposure for cities and police departments. Take the case of 21-year-old Ohio State University student, Joseph Hines who was severely beaten by police after being arrested in connection with a littering charge.  Last week, a U.S. District Judge ruled that his lawsuit against the Columbus police department could continue. The student was handcuffed, thrown on the ground, pepper-sprayed, punched repeatedly in the head, and hog-tied by an officer. Hines was knocked unconscious and was forced to spend three days recovering in the hospital.

For many victims, like Mr. Hines, because filing of criminal charges against a police officer is so rare, a day in civil court is the only justice they will ever receive. This right to seek redress is important both for the victims, who are often unable to pay for the unforeseen medical expenses (often totaling tens of thousands of dollars) but also for police who can use the information to identify potentially wide-spread abuses and better their departments.

As was first pointed out in 2011 op ed by Joanna Schwartz in the New York Times, most cities fail to make proper use of this information in order to reduce incidents of brutality. For example, in New York City, she explains-

“The [police] department does not track which officers were named, what claims were alleged or what payouts were made in the thousands of suits brought every year. What’s more, officers’ personnel files contain no record of the allegations and results of lawsuits filed against them. Neither the Police Department’s Internal Affairs Bureau nor the Civilian Complaint Review Board investigates allegations made in lawsuits, and police officials review only the litigation files of the few dozen cases each year that result in payments of $250,000 or more.”

Ms. Schwartz continues-

“Because the department ignores lawsuits, it cannot analyze or learn from them; instead, the city effectively writes off these suits as the extraordinarily high cost of doing police business.”

And the costs are clear. A report by the Washington Post revealed that local governments are paying millions of dollars in settlements for police misconduct but ignoring the root causes. Chicago taxpayers paid $84 million in just one year, while New Yorkers paid $348 million between 2006 and 2011 for cases alleging civil rights violations by the police (a price critics believe could have built seven new New York City schools). Last year, the annual cost to settle police misconduct claims in New York City surpassed all other claims, including medical malpractice, by nearly $90 million.

While some attack the victims for bring these lawsuits, Dan Korobkin, deputy legal director of the ACLU of Michigan, explained in the Washington Post article-

“The reasonable response to high settlement amounts is to stop violating people’s constitutional rights — to take greater care that police officers aren’t trained to just leave the legal issues up to the lawyers but rather are trained to take responsibility for their actions and not violate the civil rights and constitutional rights of the people that they serve. High settlement figures are warning signs that something is not right within the department, it’s not a reason to complain about the constitution.”

 

Mine Crimes

“Too Big to Jail” is a book about the rarity of corporate criminal prosecutions.  CEO indictments almost never happen. But with every rule there are exceptions, and a big one just happed in West Virginia.  Writes the Charleston Gazette,

Don Blankenship, the longtime chief executive officer of Massey Energy, was indicted Thursday on charges that he orchestrated the routine violation of key federal mine safety rules at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

A federal grand jury in Charleston charged Blankenship with conspiring to cause willful violations of ventilation requirements and coal-dust control rules — meant to prevent deadly mine blasts —during a 15-month period prior to the worst coal-mining disaster in a generation.

The four-count indictment, filed in U.S. District Court, also alleges that Blankenship led a conspiracy to cover up mine safety violations and hinder federal enforcement efforts by providing advance warning of government inspections.…

The indictment also alleges that, after the explosion, Blankenship made false statements to the U.S. Securities and Exchange Commission and the investing public about Massey’s safety practices before the explosion.…

Blankenship pressured Upper Big Branch management to violate safety standards in favor of maximizing production and profits, the indictment alleges. One mine manager received a handwritten note from Blankenship in March 2009 “chastising him” for “insufficient attention to cost-cutting,” telling the manager, “You have a kid to feed. Do your job,” the indictment alleged. That same mine manager at Upper Big Branch was told, when he wasn’t producing as much coal as Blankenship demanded, “I could Khrushchev you. Do you understand?”

You can read the indictment here.

Notes the Associated Press,

"It's a big deal to charge a CEO, so prosecutors will need witnesses on the inside who can describe what the practices and the culture of the company were like," [University of Virginia law professor Brandon L.] Garett said. He said that testimony likely will come from some of the former Massey officials who have pleaded guilty and cooperated with the government.

One of those individuals is David Hughart, whom we covered in March 2013.  Hughart, who pled guilty to two counts of conspiracy, implicated Blankenship “in what appears to be a widespread corporate practice of warning coal miners about surprise inspections.” 

I don’t know if it's coincidence of just irony, but as Blankenship’s indictment was announced, NPR put out an incredible 2-part story resulting from a “joint investigation by NPR and Mine Safety and Health News,” which “found that thousands of mine operators fail to pay safety penalties, even as they continue to manage dangerous — and sometimes deadly — mining operations. Most unpaid penalties are between two and 10 years overdue; some go back two decades. And federal regulators seem unable or unwilling to make mine owners pay.”  And the report begins by featuring the story of one Jack Blankenship, whose mining story progressed a big differently than Don’s:  

Jack Blankenship was pinned facedown in the dirt, his neck, shoulder and back throbbing with pain.

He was alone on an errand, in a dark tunnel a mile underground at the Aracoma Alma coal mine in Logan County, W.Va., when a 300-pound slab of rock peeled away from the roof and slammed him to the ground. As his legs grew numb, he managed to free an arm and reach his radio. For two hours, he pressed the panic button that was supposed to bring help quickly.

"I couldn't hardly breathe," Blankenship remembered four years later. "I'd black out and come to. I was waiting to die. I'd already had my little talk with God."

Aracoma Alma and then-owner Massey Energy had a history of serious safety problems, including falling rock. In the two years before Blankenship's accident, the mine was cited by federal regulators more than 120 times for rock fall violations, according to records from federal regulators. That included inadequate roof support and deficient safety checks for loose rock.…

"Most folks out there, including me, are totally shocked when they find out that ... you can actually just sit around and not pay the fine and keep producing coal and put money in the bank," said Tim Bailey, Blankenship's attorney and a West Virginia native with three generations of coal miners in his family.

Retiring U.S. Sen. Jay Rockefeller, D-W.Va., said [Don] Blankenship and the mines he once operated "treated miners and their safety with callousness and open disregard. As he goes to trial, he will be treated far fairer and with more dignity than he ever treated the miners he employed. And, frankly, it's more than he deserves."

When Don Blankenship quit in December 2010, we covered the story of his golden payout, walking away with “$2.7 million, a free house for life, millions more in deferred compensation, and a ‘salary continuation retirement benefit’ of $18,241-a-month that will continue for 10 years after his departure at the end of the year.…Per W. Olstad, a lawyer with CtW Investment Group, a shareholder group that has pushed for Blankenship to step down, [called it], '[A]n egregious payout. It’s way beyond what he's earned. Given how destructive his mismanagement has been, he simply does not deserve it.'”

Well now, he may be spending 31 of those golden years in another kind of “free house”. Yet that won’t be his only legacy.  Notes the Gazette,

For years, Blankenship has been not only a powerful voice in the coal industry but a power broker whose involvement in West Virginia politics could cut both ways. At a time when a major verdict against Massey was headed for the state Supreme Court, his personal funds helped defeat then-Justice Warren McGraw’s re-election effort and his personal friendship with Blankenship likely helped cost then-Justice Spike Maynard his seat on the court. Some Republican operatives who helped engineer their party’s takeover of both houses of the West Virginia Legislature in this year’s election got their start working for Blankenship-funded political efforts.

The DOJ New Probes: GM Cars and NC Coal Ash

Between spying on reporters and navigating new state marijuana laws, the U.S. Department of Justice has been preoccupied with some strange things lately. So it’s nice to see DOJ getting back to basics – corporate crime and corruption

Today, a federal grand jury in North Carolina “will begin hearing evidence on whether North Carolina regulators looked the other way when toxic coal ask leaked from Duke Energy power plants. Coal ash is the sludge left over when coal is burned to make electricity, and there was a massive leak of its last month in the Dan River.” According to the Raleigh News Observer,  “Federal prosecutors have issued at least 23 grand jury subpoenas” and the grand jury is “set to meet behind closed doors from Tuesday to Thursday in the federal courthouse in Raleigh to examine documents, video and other materials with the Duke executives and 18 current and former N.C. Department of Environment and Natural Resources employees summoned to the hearing.”

As we noted in an earlier post, North Carolina officials essentially blocked citizens suit, which were filed against Duke over these coal ash sites. The governor, who worked for Duke for 28 years, intervened apparently for the sole purpose of protecting the company. And since our post, we have also learned that, “[i]nternal emails between staff at North Carolina’s environmental agency show state regulators were coordinating with Duke Energy before intervening in efforts by citizens groups trying to sue the company over pollution leeching from its coal ash dumps.” Hopefully, voters have a long memory.

And then there’s GM. Yesterday, another 1.5 million vehicles were recalled after last month’s recall of 1.6 million cars with faulty ignition switches. GM’s new chief, Mary Barra, said in a new apology video, “Something went wrong with our process in this instance, and terrible things happened.”  But this new "mea culpa" attitude might not be enough to stop criminal indictments.

Last week, DOJ "launched a criminal investigation into whether an ignition defect linked to 13 fatalities was ignored by General Motors for over a decade before it launched a massive recall last month.”  Notes Bloomberg, “Besides the U.S. Justice Department probe, GM must answer to Congress, the Federal Bureau of Investigation, the Transportation Department and lawyers the company hired to investigate itself.” And also, their victims. Last Friday, “the first U.S. class action related to the ignition-switch recall” was filed in Texas federal court.” We'll keep you posted.