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  1. #1
    Join Date
    Feb 2007
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    The City of Brotherly Love except when it's cold.

    Duke Lacrosse Players to File Federal Suit Against University

    The repercussions of this tragic incident just won't go away. It will be interesting to see how the University responds. Can't imagine it will entertain a settlement with 38 players/families which means protracted civil litigation.

    http://www.bloomberg.com/apps/news?p...QUU&refer=home

  2. #2
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    Feb 2007
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    Orange County, NC
    If was the main three I could understand. I don't see 38 students winning. Keep in mind the school was simply reacting to charges brought by an elected official. They should not be held liable for decisions they made based on Nifong's mistakes. Plus, the party included underage drinking, prostitutes, etc.. Couldn't Broadhead rightfully suspend the season based on that alone?

  3. #3
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    Feb 2007
    On what grounds are they suing?

    This is one of the many reasons why I thought the University shouldn't have settled the earlier suits. If they give any money to the other players, I think *I* will sue.

  4. #4
    Quote Originally Posted by gus View Post
    On what grounds are they suing?

    This is one of the many reasons why I thought the University shouldn't have settled the earlier suits. If they give any money to the other players, I think *I* will sue.
    The university only settled with the indicted players, not the unindicted players. Although they did offer to pay for the unindicted players legal fees, but were turned down.

    The lawsuit hasn't been filed yet, but according to the "case summary" they are suing Duke on these alleged grounds:

    "Intentional and negligent infliction of emotional distress based on the false
    and misleading information about the medical and physical evidence of
    rape provided by Levicy [Duke hospital nurse] to the Durham Investigators"

    "Fraud, negligent misrepresentation, abuse of process, and violations of
    fourth amendment rights based on Duke University’s disclosure of
    confidential key card reports to the Durham Investigators"

    "Breach of duty based on Duke’s special relationship with its student
    athletes. Duke failed in its duty to seek to protect these students from
    harassment...

    "Breach of contract for Duke’s failure to follow and enforce its own antiharassment
    policy, cancellation of the lacrosse season, violation of
    procedural rights."

    See http://www.bork.com//downloads/Case%...02.21.2008.pdf

    The full lawsuit will be filed later today and can be read at www.dukelawsuit.com.

    Obviously, not good for the university's PR...this case should take a while. The HBO movie is starting up again as well since the writer's strike just ended and have already spoken with The Chronicle's main editor during the case.

  5. #5
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    Feb 2007
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    Quote Originally Posted by Bluedog View Post
    The university only settled with the indicted players, not the unindicted players. Although they did offer to pay for the unindicted players legal fees, but were turned down.
    This surprises me. On the LAX board it was the view of the many that the University would and should never pay the fees. What is your source on this? Is it reliable? I can't imagine that legal-fee reimbursement would not be a key element of a lawsuit that the players would bring. Interesting.

  6. #6
    Quote Originally Posted by greybeard View Post
    This surprises me. On the LAX board it was the view of the many that the University would and should never pay the fees. What is your source on this? Is it reliable? I can't imagine that legal-fee reimbursement would not be a key element of a lawsuit that the players would bring. Interesting.
    Here's the source:

    http://www.newsobserver.com/news/cri...ry/837956.html

    "In an effort to avoid destructive litigation, Jarmul said in the statement, Duke offered months ago to reimburse attorney fees and other expenses to the unindicted players.

    'We were and remain disappointed those offers were not accepted.' the statement said. 'We will aggressively defend the university in this matter.' "

    That is the statement after the first of the lawsuits from unindicted players (i.e. not this one). You can read the full Duke statement, I think, on the Dukenews site somewhere...It also says the same thing; that they offered to pay all the legal fees, but were turned down.

  7. #7
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    Feb 2007
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    Seattle, WA
    Quote Originally Posted by Bluedog View Post
    The university only settled with the indicted players, not the unindicted players. Although they did offer to pay for the unindicted players legal fees, but were turned down.

    The lawsuit hasn't been filed yet, but according to the "case summary" they are suing Duke on these alleged grounds:

    "Intentional and negligent infliction of emotional distress based on the false
    and misleading information about the medical and physical evidence of
    rape provided by Levicy [Duke hospital nurse] to the Durham Investigators"

    "Fraud, negligent misrepresentation, abuse of process, and violations of
    fourth amendment rights based on Duke University’s disclosure of
    confidential key card reports to the Durham Investigators"

    "Breach of duty based on Duke’s special relationship with its student
    athletes. Duke failed in its duty to seek to protect these students from
    harassment...

    "Breach of contract for Duke’s failure to follow and enforce its own antiharassment
    policy, cancellation of the lacrosse season, violation of
    procedural rights."

    See http://www.bork.com//downloads/Case%...02.21.2008.pdf

    The full lawsuit will be filed later today and can be read at www.dukelawsuit.com.

    Obviously, not good for the university's PR...this case should take a while. The HBO movie is starting up again as well since the writer's strike just ended and have already spoken with The Chronicle's main editor during the case.
    Claims 2 and 3 seem like out and out losers. If the University is already collecting your card information, I think your right to privacy in it is already out the window (although a stickier and more interesting question could be whether a student could insist that the University not monitor his/her comings and goings).

    Claim 3 would require the creation of a whole new category of special relationship, which courts are loathe to do. Saying that there is a special "University-athlete" relationship, separate from the "University-student" relationship, is a reach in and of itself. Further saying that the relationship triggers a specific duty on the part of the University to protect its athletes from harassment by the DA's office is, at least in my opinion, completely unsupportable.

    Claim 1 looks like straight vicarious liability, and may have merit.

    Claim 4 looks like the big ticket, particularly if they can establish that they should have been entitled to procedural due process before getting the season canceled. Although, now that I think about it, there are two problems: 1) private entities aren't required to give procedural due process; 2) what's the harm that can be shown by having the season canceled?

    All in all, whether or not you believe the unindicted players were wronged by Duke, this lawsuit seems unlikely to provide them with meaningful financial recovery (absent a settlement).
    Just be you. You is enough. - K, 4/5/10, 0:13.8 to play, 60-59 Duke.

    You're all jealous hypocrites. - Titus on Laettner

    You see those guys? Animals. They're animals. - SIU Coach Chris Lowery, on Duke

  8. #8
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    Quote Originally Posted by greybeard View Post
    This surprises me. On the LAX board it was the view of the many that the University would and should never pay the fees. What is your source on this? Is it reliable? I can't imagine that legal-fee reimbursement would not be a key element of a lawsuit that the players would bring. Interesting.
    Thanks. This should be an object lesson for all, including yours truly. The "debate" on the LAX board about whether the university should pay the legal fees of the unindicted players was at times ferocious, albeit I now see if this report is accurate, oh so moot. Peace.

  9. #9

    Not a Lawyer but

    when you settle easily on generous terms you are open for more lawsuits.

    When you handle cases like this as Duke did, then you are also open to lawsuits.

    My guess is that Duke(Brodhead, Steel etc) want to avoid Discovery and will settle.

    SoCal

  10. #10
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    Quote Originally Posted by SoCalDukeFan View Post
    when you settle easily on generous terms you are open for more lawsuits.

    When you handle cases like this as Duke did, then you are also open to lawsuits.

    My guess is that Duke(Brodhead, Steel etc) want to avoid Discovery and will settle.

    SoCal
    Done. My guess, a nickel's worth anyway, is that the plaintiffs want discovery and believe that the facts are worser than Brodhead's severest critics have imagined, which is pretty darn worse.

    Also, my nickel says that it will take much more than money, which means that the lawsuit will place Brodhead and the Trustees in what my uncle Mo, a Checkers' expert, liked to call a pair of pants--you get jumped either way.

    We'll see.

  11. #11
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    Walnut Creek, California
    Quote Originally Posted by greybeard View Post
    Done. My guess, a nickel's worth anyway, is that the plaintiffs want discovery and believe that the facts are worser than Brodhead's severest critics have imagined, which is pretty darn worse.

    Also, my nickel says that it will take much more than money, which means that the lawsuit will place Brodhead and the Trustees in what my uncle Mo, a Checkers' expert, liked to call a pair of pants--you get jumped either way.

    We'll see.
    My bet is that the plaintiffs have failed to state a cause of action and the matter is dismissed upon the filing of the appropriate motion.

    1. What the SANE nurse did or didn't do has no bearing on these plaintiffs. There is no vicarious liability as to these plaintiffs. This information was release by the PD and by Nifong, not Duke or the Duke PD (IIRC). Besides, it would have inevitably come out, since it was part of a criminal investigation.

    2. The key card information was not privileged by any statute and the police were within their rights to use it to assist in their investigation. There is a school of thought that this information was protected by FERPA. It is not, since it has nothing to do with academic records.

    3. There is no special (fiduciary) relationship between a university and its athletes obligating the school to treat them better than other students.

    4. Generally speaking policies such as these are not contractual. Moreover, what harassment did those athletes face? Their season was canceled, but that is a non-sequitur. There was a public demonstration against sexual misconduct by students, teaches and members of the community. For there to be actionable harassment, there must be ongoing conduct that the entity either approves or ignores with knowledge. Those harassment policies also are aimed students who are members of a protected group or who must deal with unwanted demands for favors. That didn't happen here.

    The last may require discovery. But not much. It ain't going anyplace after that.

  12. #12
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    Feb 2007
    i agree. the claims against duke will be dismissed due to the fact that they have failed to state a cause of action. it wasn't mentioned earlier but Intentional Inflication of Emotional Distress is virtually impossible to win. the conduct has to be over-the-top egregious and without a doubt intentional. there is no chance that this cause of action survives for very long.

  13. #13
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    Quote Originally Posted by Jim3k View Post
    My bet is that the plaintiffs have failed to state a cause of action and the matter is dismissed upon the filing of the appropriate motion.

    1. What the SANE nurse did or didn't do has no bearing on these plaintiffs. There is no vicarious liability as to these plaintiffs. This information was release by the PD and by Nifong, not Duke or the Duke PD (IIRC). Besides, it would have inevitably come out, since it was part of a criminal investigation.

    2. The key card information was not privileged by any statute and the police were within their rights to use it to assist in their investigation. There is a school of thought that this information was protected by FERPA. It is not, since it has nothing to do with academic records.

    3. There is no special (fiduciary) relationship between a university and its athletes obligating the school to treat them better than other students.

    4. Generally speaking policies such as these are not contractual. Moreover, what harassment did those athletes face? Their season was canceled, but that is a non-sequitur. There was a public demonstration against sexual misconduct by students, teaches and members of the community. For there to be actionable harassment, there must be ongoing conduct that the entity either approves or ignores with knowledge. Those harassment policies also are aimed students who are members of a protected group or who must deal with unwanted demands for favors. That didn't happen here.

    The last may require discovery. But not much. It ain't going anyplace after that.
    Interesting. I have not read the complaint but I do have a second nickel. If, as has been reported in some paper, the university offered to pay the legal fees of all 38 of these guys, some of whom spent in triple figures, I have to think that there must be some there there. Lawyers like money, and the kids and their families are out of pocket, like I said some considerably. There are two other suits taking place. Either all of them are nuts, or there is something to this suit. A nickel is on the latter.

  14. #14
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    Quote Originally Posted by Jim3k View Post
    My bet is that the plaintiffs have failed to state a cause of action and the matter is dismissed upon the filing of the appropriate motion.
    We'll have to wait and see. The plantiffs' attorney is a serious D.C. litigator. Seems unlikely he would file if the suit was as thin as you suggest.

  15. #15

    Interesting Speech

    While this is on liestoppers I think it is accurate.
    Explanation of a parent as to why they are part of the suit.

    This is not a legal justification for the suit as I see it but very interesting reading.

    http://z9.invisionfree.com/LieStoppe...showtopic=6176

    SoCal

  16. #16
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    Feb 2007
    Quote Originally Posted by 77devil View Post
    We'll have to wait and see. The plantiffs' attorney is a serious D.C. litigator. Seems unlikely he would file if the suit was as thin as you suggest.
    Having practiced against serious D.C. litigators, I can say that this is in no way true.

  17. #17

    I suggest reading the complaint

    Quote Originally Posted by Duvall View Post
    Having practiced against serious D.C. litigators, I can say that this is in no way true.
    And, if after reading the complaint, folks feel the complaint fails to state causes of action which will suvive motions to dismiss, then offer this commentary and your reasons why.

    what the University paid the 3 indicted players, what was accepted in full settlement by these players may pale in comparison to what may be awarded by a jury, if this gets before the jury.

    It seems the players wanted much more of an admission of mistakes, wrong doing on the part of Brodhead, and that he would have made a much broader apology with much more contrition.

    It has always been my position that had the University simply been willing to withhold judgment, avoid taking actions which implied guilt on the part of the players, and to have respected privacy rights of the students, Nifong would never have been able to obtain an indictment. Brodhead is most at fault in this.

    Perhaps the players would accept as part of a settlement Brodhead's dismissal.

  18. #18
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    Quote Originally Posted by formerdukeathlete View Post

    Perhaps the players would accept as part of a settlement Brodhead's dismissal.
    Replace "her" with "it" (referring to your call for Brodhead's firing) and go here: http://www.despair.com/persistence.html

  19. #19
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    Tampa
    Quote Originally Posted by SoCalDukeFan View Post
    When you handle cases like this as Duke did, then you are also open to lawsuits.
    But if Duke had handled the case as appears to be suggested by the lawsuit,
    it could leave itself open to even greater liability to alleged victims whenever Duke students are involved in criminal allegations. I often encounter this dilemma in my practice and my usual rule of thumb is that, where you are faced with a risk of writing a check no matter which option you choose, opt for the check(s) with the nuisance-level damages rather than the one with "millions" written on it.

    FWIW, I agree with Jim3K that, on its face, these claims appear flimsy at best. My guess is that they are banking on Duke's willingness to put up $$ to avoid the adverse exposure, significant defense costs and possible discovery, etc. In my experience, this happens all the time.

    Just my $.02.

  20. #20

    snide inuendo

    Quote Originally Posted by snowdenscold View Post
    Replace "her" with "it" (referring to your call for Brodhead's firing) and go here: http://www.despair.com/persistence.html
    Yes, thank you for the snide inuendo.

    If you have a chance, and not enough time to read the complaint, watch the 50 minute press conference when the lawyers announced the lawsuit, responded to questions, also watch Mr. Henkleman's comments about why he joined the lawsuit. It seems that there is much to fault Brodhead for in his handling of the lacrosse matter. Jay Bilas and I share the same opinion about him, and I consider this pretty darn good company.

    And, who was the first person on this Board to comment that Duke mishandled the lacrosse matter,? why me, of course, and I bore tremendous criticism and ridicule for doing so. Yes, this is leadership, getting out in front of an issue, even when you stand nearly alone, when you believe in the correctness of your position. Perhaps if many more had gotten what I saw so quickly and voiced similar criticisms of the Duke admin at the time, ameliorative measures could have been taken to alleveate much of the suffering, injustice, and this lawsuit, and others might have been avoided.

    So Brodhead got his contract renewed. And, I offer no prediction of whether he will be dismissed. Watch the press conference, read the complaint, and offer some cogent comments, please.

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