Updated with Barran’s response: UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane

Update, 11/4/2019:

Dear Readers –

Last week (Halloween to be precise) I received a letter from Attorney Peter Jarvis of the HK law firm. At his request I’ve added the full text to this post (at the bottom) and the pdf is here. He is representing Attorney Paula Barran, who was hired by UO GC Kevin Reed and AGC Doug Park to represent the UO administration against attorney Jennifer Middleton, who is representing Prof. Jennifer Freyd in her gender discrimination lawsuit. So he’s a lawyer for a lawyer who’s a lawyer for other lawyers, at a university whose president is a lawyer.

Frightening. However, I have to say that this is the most polite take-down request I’ve ever received. There’s none of the “govern yourself accordingly” bluster I get from UO GCO Kevin Reed, or the late-night defamation lawsuit threats that I used to get from his predecessors Doug Park and Randy Geller, not to mention Dave Frohnmayer and his lawyer Bill Gary.

Quoting from Mr. Jarvis:

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting.

… I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

An appeal to ethics is an unusual argument for a lawyer to make – particularly to an economist – but maybe he’s a fan of Adam’s Smith’s other book. In any case tit-for-tat is often the best strategy, so I’m adding the full text of his letter to the bottom of this post.

Additionally, although he did not request this, I am changing the title of the post from the original “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” to “UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane” in recognition of the arguments he makes in this letter, which I encourage you to read.

Unfortunately, he then goes on to threaten me with a DMCA takedown notice if I don’t also remove the screenshot of his client below:

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

Seriously? Back in April I sat through two hours of Ms Barran’s legal arguments in front of Judge McShane, and she is ripe for parody. As is anyone who brings up “bodily fluids” more times than Stanley Kubrick. I’m thinking my brief clip from her lengthy profile is allowed under the parody “fair use” provision in copyright law, and of course news-worthiness, as Mr. Jarvis seems to acknowledge this post is.

Of course DMCA takedown orders are frequently abused, and Mr. Jarvis is an attorney with a deep-pocket client, so don’t be surprised if my ISP takes down this post or even this blog for a while – which would be sad, given Ms Barran’s claimed interest in allowing people to form their own opinions.

Original post, 10/17/2019:

UO GC Kevin Reed and his associate GC Doug Park hired “top point getter” Paula Barran to defend the UO administration against Professor Jennifer Freyd’s gender discrimination lawsuit:

Apparently they know better than to dirty their own hands.

As shown in the court transcript below, Barran claimed that one of the comparator faculty Freyd identified was better than Freyd because “he just secured – while this case was pending – a $3 million grant from the Gates Foundation for his work.”

That wasn’t true. The Gates Foundation is admirably transparent:

The truth, corroborated by an email from Prof. Allen, is this:

He was a co-investigator on a grant from the Gates Foundation, but the grant was obtained by colleagues at Berkeley. He had a small subcontract. He also noted that the grant had very little to do with the digital sensing work.

I don’t know what the long-run consequences are for a lawyer who lies to a judge, but it seems from Judge McShane’s opinion dismissing Freyd’s lawsuit that it worked for the UO administration in the short-run:

McShane’s full opinion is here, the full docket is here, and I’ll post Kevin Reed’s retraction of Paula Barran’s $3M claim as soon as I get a copy.

10/17/2019: UO lawyers use helium-cooled MRI brain scanner against Prof Freyd

Freyd is appealing Judge McShane’s dismissal of her gender discrimination lawsuit against UO, with support from Equal Rights Advocates, the AAUP, the AAUW, etc, as explained here. Meanwhile the full transcript from the oral arguments in front of McShane have now been posted here. Some excerpts:

Yes, super-cooled super-conducting 3 Tesla magnets, bodily fluids, and grants can be tools to do good research. But it’s surprising to see a university pay a lawyer to use them to denigrate other research methods. And I wonder how the Gates Foundation feels about being weaponized for use against faculty they don’t fund.

This was almost as funny and not as sad:

Actually it was Judge McShane who said this, not the clerk. And I’m sure he was glaring at Schill when he said it. Or at me.

More 11/4/2019 update, full letter text, pdf here:

October 31, 2019

Via E-mail (harbaugh@uoregon.edu)

Bill Harbaugh
UO Matters
c/o University of Oregon, Department of Economics
1285 University of Oregon
Eugene, OR 97403

Re: UO Matters Article Dear Professor Harbaugh:

I represent Paula A. Barran and Barran Liebman LLP, and I am writing in response to the article published on UO Matters on October 17, 2019 titled “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” (the “Article”). The opinions expressed in the Article about the accuracy of Ms. Barran’s statement to the court are both incorrect and inflammatory. In fact, Ms. Barran’s statements were supported by and based upon the sworn declaration previously submitted to the court by Dr. Nicholas Allen. Calling Ms. Barran’s integrity into question in this manner and in light of the sworn witness declaration simply because you do not agree with the court’s ultimate conclusion does not advance the meaningful thought and discussion that the UO Matters site purports to promote.

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting. Soc’y of Prof’l Journalists, SPJ Code of Ethics (rev. Sept. 6, 2014), https://www.spj.org/ethicscode.asp.

Ethical journalism further requires an author to continue to monitor their story and correct any inaccuracies that may emerge. Id. As discussed further below, the opinions expressed in the Article are inaccurate and must be corrected. I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

I. The Facts

Ms. Barran and her firm Barran Liebman LLP were retained to defend the University of Oregon and Dean Hal Sadofsky against a lawsuit brought by Dr. Jennifer Freyd. Dr. Freyd’s lawsuit alleged several theories of gender discrimination based upon the fact that she received less total compensation than some of her male colleagues. In order to succeed on her claims, Dr. Freyd was required to show that she and her comparators do the same or substantially equal work and that she is comparing “like to like.” Dr. Freyd selected four (4) of her more highly-compensated, male colleagues as comparators, including Dr. Nicholas Allen. Dr. Freyd also called into question whether there were similarities or dissimilarities between her work and the work of her comparators—this legal comparison was not initiated by either the university or her colleagues.

Both the university’s and Dr. Freyd’s attorneys thoroughly briefed the legal issues and provided information to the court about Dr. Freyd’s job duties as compared to the comparators’. The parties provided information to the court about the comparators’ additional responsibilities, such as being a department head, director of a center, or director or member of a university-wide committee, employee supervision, and grant revenue and administration, as well as the effect of retention offers.

Dr. Allen submitted a declaration to the court on November 16, 2018, in which he stated:

Dr. Jennifer Freyd is a valued colleague, and I strongly support the University adopting policies and procedures that support and enhance gender equity in all areas of academic life. I am not in a position to have an informed view on my colleague’s specific litigation, but I understand that it may be beneficial to the court to have information about the nature, extent and scope of my day to day duties, responsibilities and accountabilities.

Decl. of Nicholas B. Allen in Support of Def.’s Univ. of Oregon and Sadofsky’s Mot. for Summ. J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 59, at ¶ 2 (D. Or. Nov. 16, 2018). The declaration then described Dr. Allen’s grant work in the following way:

In terms of the specific research grants I hold, I have obtained or participated in obtaining funding for a 2018-22 research project on Mobile Assessment for the Prediction of Suicide, a grant in excess of $3 million from the National Institute of Child Health and Development for a study of Depressed Mothers’ Parenting (which began in 2015 and will run to 2020), a $2.7 million grant from the National Institute of Mental Health, on which I spoke as Co-Investigator with my University colleague, Jennifer Pfeifer, doing work on a longitudinal neuroimaging study related to early adolescent mental health. The grant from the Bill and Melinda Gates Foundation, on which I am Co-Investigator, is an award of $3.5 million to develop and test a learning investigation with a goal of promoting positive gender norm transformative social emotional learning in early adolescents. I have successfully completed a number of grant-funded projects and have developed the skills and experience to work successfully on large funded research projects.

Id. at ¶ 6 (emphasis added). In a subsequent filing made on behalf of Dr. Freyd, Dr. Allen confirmed to the court that “all the information in that declaration was factual.” Decl. of Nicholas B. Allen in Support of Pl.’s Mot. for Relief from J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 59, at ¶ 2 (D. Or. Sept. 10, 2019).

The court heard oral argument on the Defendants’ Motion for Summary Judgment on April 12, 2019. During oral argument, Ms. Barran reiterated the importance of grants in funding both faculty compensation and research space and equipment. She also recognized that Dr. Freyd “is a good researcher, but her work is different” than some of the work being done by the comparators, including their meeting the requirements imposed by government funding sources. Ms. Barran then highlighted that Dr. Allen had received significant funding for his work, including “a $3 million grant from the Gates Foundation.” This statement was supported by and based on the information that had been provided to her by Dr. Allen and that Dr. Allen had sworn to in his declaration to the court.

The court ruled in favor of the university because the various laws under which Dr. Freyd based her claims require her to show that her day-to-day responsibilities are the same or substantially equal to those of the comparators that she identified. Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 93, at pp. 10–11 (D. Or. May 2, 2019). The additional responsibilities associated with grant applications, receipt, and management were among several factors considered by the court, and the court’s comparisons between Dr. Freyd on one hand and the comparators (including Dr. Allen) on the other, relied upon the information in the sworn declarations that had been submitted into the court’s record. Id.

Dr. Allen later sent a letter in support of Dr. Freyd’s appeal stating that he personally believes that a different methodology should be used to determine faculty compensation. Decl. of Nicholas Allen, Ex. 1, Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 109-1 (D. Or. Oct. 25, 2019). The letter was also submitted to the district court in support of a motion filed by Dr. Freyd’s attorneys for relief from judgment. Id. The district court considered Dr. Allen’s letter, noted that Dr. Allen reaffirmed the factual accuracy of his original declaration, determined that receiving the letter earlier would not have changed the disposition of the case, and affirmed its grant of summary judgment in favor of the defendants. Opinion and Order, Freyd v. Univ. of Oregon, No. 6:17-cv- 00448-MC, Dkt. No. 114 (D. Or. Oct. 25, 2019).

II. Copyright Infringement

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

If you have any questions, concerns, or would like to discuss my demands and requests further, please contact me at Peter.Jarvis@hklaw.com or (503) 243-5877.

Sincerely yours,

HOLLAND & KNIGHT LLP

Peter R. Jarvis

PRJ:kfk

cc: Clients (via email)

Peter R. Jarvis

+1 503-243-5877 Peter.Jarvis@hklaw.com

111 S.W. Fifth Avenue, 2300 U.S. Bancorp Tower | Portland, OR 97204 | T 503.243.2300 | F 503.241.8014 Holland & Knight LLP | www.hklaw.com

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12 Responses to Updated with Barran’s response: UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane

  1. uomatters says:

    Also, the Gates Foundation’s max indirect cost rate for US universities is just 10%. At 10% UO is probably losing money on uncovered overhead costs. https://docs.gatesfoundation.org/documents/indirect_cost_policy.pdf

    • Anonymous says:

      I am not suggesting this because it would take a lot of time but tracking down how UO dispenses its overhead would bring up a lot of ambiguous issues.

      Just on main point, in case other blog readers don’t realize this – and this “problem” is not unique to the UO but might be more imbalanced here than else where.

      Because, like football coaches salaries, start up packages for new faculty, mostly experimentalists as potential science faculty, has gotten out of control and the UO has even, in the recent past,
      offered 2Mill startup for some positions. Tracking down where this money comes from, alone, is difficult but much of it now comes from IDC and IDC really was never intended to be used this way,

      And this is where the blackhole begins:

      1. Hire some prof for 1M in start up

      2. Can that prof generate those funds back while at UO through
      research grants.

      3. Well, if they go out and get a 1M grant then you could say that they did but, that 1M grant (likely has equipment in it which doesn’t generate IDC) might have only Direct Costs (DC) of 700K and those are taxed at IDC rate of about 48% or 336K – now this is good, but this same prof has to generate this 3 more times to payback their startup.

      4. So the bottom line is do newly hired faculty ever generate enough IDC to equal their initial startup?

      • Another grunt says:

        “Tracking down where this money comes from, alone, is difficult but much of it now comes from IDC and IDC really was never intended to be used this way,”

        I don’t really know what you mean by “intended” but indirects have been used forever to fund startups and my understanding of the UO (and most other research universities) is that they used to be nearly entirely funded this way, but now contain a mix of other dollars.

        I hope most UO science research faculty who have been at it for more than ten years have generated enough indirects to cover their initial startup. I know I have in spades.

        • Anonymous says:

          https://www.ilr.cornell.edu/cheri/surveys/cheri-survey-start-costs-and-laboratory-allocation-rules

          you may disagree or agree or even be educated by these survey results, perhaps in spades …

          • Another grunt says:

            Thanks that is interesting. The clearest conclusion is that university accounting is a shell game.

            “So what the deans really mean here is that the university incurs expenses from its general budget for research administration and infrastructure and when these costs are reimbursed through the indirect cost pool, this permits the university to spend funds from its own general budget on start-up costs.”

            It would still be interesting to know the history of startup funding at UO.

            • Anonymous says:

              yes this was my point, the whole thing is a shell game

              All I know about the past is

              1. Once upon a time departments had discretionary money

              2. Once upon a time startup packages were much smaller than they are today and so departments were able to make some contributions

              3. The initiation of the Institutes at the UO made IDC particularly peculiar (neither good or bad) at the UO

              4. Not sure how prevalent this is today but all my of startup package (meager by today’s standards) came out of something called the Northwest something foundation and it had an expiration date of 3 years.

              These days there is little to no oversight of startup – one faculty in my department used startup funds over a 12 year period – mostly on their own summer salary

  2. Another grunt says:

    “These days there is little to no oversight of startup – one faculty in my department used startup funds over a 12 year period – mostly on their own summer salary”

    Weird – my perception is that there is a lot more oversight of startup than there used to be. There are more specific allocations to certain types of spending (e.g. equipment vs personnel) and there are now time limits for spending (although I don’t know how much they are being enforced). Neither of these were true back in ancient history.

    • Anonymous says:

      there is an important difference between intentions and actual oversight – yes there are more guidelines today than there were
      10 years ago (ancient history) but I don’t see a lot of enforcement

  3. fed up says:

    This case remains the most reprehensible act of legal BS by Kevin Reed and Mike Schill. That the UO makes it defense on deception and a crude casting of two incredible faculty members against one another is beyond the pale. Why are more not outraged by this behavior by the UO President and VP?

    • just different says:

      Don’t forget the associate dean who lied like a rug in his testimony, although you have to kind of admire his chutzpah in pulling off the retroactive “differing responsibilities” story.

  4. Einstein says:

    The first thing she lists on her partner page is that she’s a Top Point Getter? That’s like a professor putting their grant funding at the top of their c.v. Oh wait, I get it now. Thanks.

  5. Cheyney Ryan says:

    “Were you looking to be held together by lawyers?” – Walt Whitman, Leaves of Grass

    Question:

    Who is footing the bill for all these lawyers? Maybe U of O Matters can find out.

    So the outside lawyer the U of O hired to squash Jennifer Freyd’s complaint has hired another (extremely expensive) outside lawyer to gripe about Bill Harbaugh.

    After my experiences with the dishonesty of Barran Liebman, I filed a crisp short complaint to the Oregon Bar charging them with lying to me. They hired yet another outside lawyer to defend themselves against my complaint–one Bradley Tellam (of Stoel-Rives LLP), who by his webpage does not come cheap. Tellam took almost two months, including two requests for extensions, to work up a seven-paged-single-spaced reply to me–which still managed to misspell my name several times. I responded with a short crisp rebuttal, which Tellam is now taking another month to address, All of this is on someone’s clock.

    Is the U of O paying for all of Barran Liebman’s damage control?If BL are paying for it themselves, perhaps we can drive them out of business by continuing to raise questions about their incompetence. I notice that Peter Jarvis invites Harbaugh to call and talk w him on the phone if need be about all this. I suggest a three hour conversation, with several follow up conversations, all of which will be billed to Barran Liebman.

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