Judge McShane dismisses Dana Altman’s players’ lawsuits against UO, Gott

Who knows how many millions of dollars and how much damage to UO’s “brand” Dana Altman and his enablers have cost us so far, and how much is still to come. But for now, Dylan Darling has the good news in the RG here:

… U.S. District Judge Michael McShane in Eugene earlier this month dismissed the cases brought by Brandon Austin, Dominic Artis and Damyean Dotson. The court entered the ruling into the record Wednesday and the lawsuits are open to appeal, but may not be filed again.

“This has been a long and complicated road, but we could not be more satisfied with the outcome,” UO Vice President and General Counsel Kevin Reed said Wednesday in a statement. “While we were confident from the beginning that our processes and protocols were followed properly and complied with our legal obligations and our duty of fairness, this brings to a close any legitimate speculation to the contrary. We are glad to have this situation in our rear view mirror and that we can now confirm that the university’s professionals conducted themselves in compliance with the law.” …

The docket is here. Congratulations to UO GC Kevin Reed:

UO lawyers get extra time to respond to Dana Altman players’ lawsuit

10/30/2016 update:  Long story after the break, which I suppose is a good thing for those that bill by the hour.

The latest is that the judge has given UO’s hired lawyers an extension from 10/28 until 12/2 to respond to the players lawyers’ response to the judge’s response to the UO lawyers’ request for dismissal, as well as an extension to respond to the players lawyers’ 3rd complaint, which of course was amended in response to the UO lawyers’ response to the players lawyer’s 2nd complaint. In case that’s not perfectly clear, here’s a free link to the docket, from the freelaw.org hack of the federal court’s paywalled database. Oh, wait, there are two dockets – maybe the links you want are here.

10/11/2016: Dana Altman’s players refile discrimination complaint against Gottfredson, UO

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Celebrity lawyer Alex Spiro will refile lawsuit by Altman’s basketball players

9/8/2016: Federal Judge McShane has ruled in favor of UO. The Emerald has the story here. Duck advocate Tobin Klinger has the party line in Around the O, the official organ of the Ducks:

“The court’s decision dismissed all of the students’ claims and upholds the University’s position that the students were afforded appropriate due process under the UO’s student conduct code. In addition, it affirms that the student conduct processes are separate and independent of criminal matters.

But Klinger fails to report that Judge McShane left the door open to refiling. And, according to the more accurate report by the Oregonian’s Tyson Alger here, it seems that the young men’s legal counsel, well-known celebrity attorney Alex Spiro, plans to try phoning it in one more time:

Court documents show that many of the claims of the players against the university were dismissed without prejudice, meaning they’ll be allowed to refile within the next 30 days. U.S. District Judge Michael McShane did dismiss the players’ claim of not receiving due process with prejudice, meaning that it can’t be refiled.

“We are simply redrafting the pleadings and moving forward with the case pursuant to the court’s decision,” said Alex Spiro, the lawyer for Dotson and Artis.

Judge McShane’s full opinion is here. I believe this is the last of the lawsuits related to the alleged rapes on the night of March 8, 2014, if it ever ends. UO paid Jane Doe $800K, Morlok and Stokes $425K, $2.5K for Shelly Kerr’s ethics fine, and unknown amounts for lawyers, including defending UO attorneys Doug Park and Sam Hill from an Bar ethics complaint. And, of course, UO’s “brand” took a huge hit.

As it happens, just an hour before this opinion was released Duck AD Rob Mullens was talking to the UO Board of Trustees. They had no questions for him about any of this, including why the academic budget had to pay for it.

The gist of Judge McShane’s decision:

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I’m no law professor, but it seems pretty clear-cut. UO’s Deputy Counsel Doug Park offered the student-athletes a deal that would allow them to go play basketball somewhere else, and they took it after getting advice from their own lawyers:

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Then they had second thoughts. Judge McShane essentially said “too bad, a deal’s a deal”.

8/27/2016: Celebrity lawyer Alex Spiro calls Dana Altman’s black basketball players “boys”

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Lawyers rack up more billable hours in Austin v. UO

The full docket is here, courtesy of Carl Malamud’s RecapTheLaw. The RG’s Alisha Roemeling has a report here. The intro:

The University of Oregon went to federal court Tuesday to argue that lawsuits filed by three former UO basketball players against the university should be thrown out.

After a three-hour hearing, U.S. District Judge Michael McShane said he expects to take several weeks to review all the materials, including police reports, before rendering a ruling.

The three former players — Dominic Artis, Damyean Dotson and Brandon Austin — all filed lawsuits after they were expelled and banned from campus for up to 10 years for allegedly raping a female student at an off-campus party in March 2014. The players acknowledged a sexual encounter occurred but said the woman consented to it. …

I’ve never been in a Federal courtroom before so I decided to go listen to the arguments. Wow, someone spent a lot of someone else’s money on this building. Not as nice as the Jock Box or Trump Tower, but nicer than, say, PLC.

There were about 20 spectators, including a bunch of law student types and a pile of UO lawyers, including Doug Park. I didn’t see Randy Geller or Mike Gottfredson. Court started 30 minutes late because no one could get the video feed to Artis’s lawyer Alex Spiro in NY working. Eventually they gave up. And you feel bad when you waste 30 seconds of class time getting powerpoint to work – imagine if your students were billing $250 an hour.

In a nutshell, New Jersey attorney Alan Milstein – a self-described expert on sperm donor law – argued that the alleged basketball gang rapists should be able to sue UO because they had a “property and liberty interest” in a college education, which UO took away without due process. He also argued that UO discriminated against the male players by treating them more harshly than it would have treated women – a Title IX violation.

UO was represented by Michelle Barton Smigel of Portland’s Miller Nash firm, one of the lawyers whom Scott Coltrane paid to sue Jane Doe for “damaging a good man’s reputation”:

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I get it about everyone having the right to an aggressive defense, but I don’t think that requires an attorney to go along with an idiotic idea like this. Or was it her idea? Maybe Doug Park’s? Coltrane blamed it on his attorneys:

Coltrane, however, criticized the online petition that characterized the UO as having filed a lawsuit against the victim, as opposed to responding to a lawsuit. He said he was advised by attorneys that it’s routine to counter a suit.

“Their suit would have us pay legal fees, and I was told it’s typical when you respond” to also file a counterclaim, he said.

Smigel was assisted by some guy whose main responsibility involved yellow post-it notes. I wonder what we’re paying for those – and if Gottfredson is paying for his share of them? I asked, but UO General Counsel Kevin Reed isn’t going to tell:

Any such information is solidly within the attorney/client privilege, so I am afraid I am precluded from providing you with a substantive answer.

Kevin S. Reed | Vice President and General Counsel

Office of the General Counsel

219 Johnson Hall | Eugene, OR 97403-1226

Milstein came across as a blowhard who hadn’t done his homework. His colleague (Michaels? Williams? Williamson? No one seemed sure) was a bit more informed. Judge McShane kept things moving with good questions. Dominic Artis’s lawyer Alex Spiro eventually got on the speaker phone, but from the cheering it sounded like he was in a sports bar, and the court reporter couldn’t make out whatever he was trying to say. McShane generously gave him a week to get his thoughts in order and mail them in.

In terms of substance, the Second Circuit Court’s July 29th  decision in the Columbia University case is obviously going to give the players a lot of help on the Title IX angle. Here’s InsideHigherEd’s take:

A federal appeals court on Friday revived a lawsuit accusing Columbia University of engaging in illegal antimale bias in the way it responded in 2013 to a female student’s allegation of sex assault by a male student.

The suit was filed under Title IX of the Education Amendments of 1972, which bars sex discrimination by colleges receiving federal funds. The finding could be significant not only for those in the case but for many other colleges involved in litigation over their findings on sex assault allegations.

… Pavela said that the decision’s emphasis on Columbia’s possible motivation for siding with female students is likely to suggest a strategy for lawyers who represent male students suing colleges. “More plaintiffs’ attorneys are going to be doing aggressive discovery of our sexual misconduct training materials. Materials written in ways that appear to tilt the proceedings against the accused will be their Holy Grail,” Pavela added.

Fortunately the Ducks are rock solid on the whole sexual misconduct training issue.

He also noted that plaintiffs in Title IX suits can sue for damages and fees for lawyers, making the Title IX approach attractive to many lawyers.

The obviously well-prepared Smigel spent a fair amount of time trying to persuade McShane that the Second District opinion was wrong, which strikes me as a losing game.

Milstein and Michaels argued that Altman’s basketball players should be able to sue UO because they had a right to a college education, which Gottfredson et al then took away from them without due process.  Maybe they did, maybe they didn’t, But that’s not why Altman brought them to UO, and that’s not why they are suing UO. Altman recruited them to play ball, UO paid them to play ball, and they are suing UO because UO’s administrators fired them and hurt their basketball careers. So why isn’t this an employment law case?

UO to mark 2nd Gottfredson Day with traditional appearance in Federal Court

[Remember the Hat Day is November 21].

Two years ago today, on August 8th 2014, the UO Board of Trustees paid President Mike Gottfredson $940K to leave immediately. In exchange, Gottfredson took responsibility for paying attorney costs and damages for all matters related to his brief and disastrous employment as UO President: Full pdf here:

“In consideration of the promises set forth below, Dr. Gottfredson hereby releases the University and its trustees, officers, employees, affiliates, agents and representatives (collectively, the “Released Parties”) from any liability for any claims, losses, damages, liabilities, or other obligations (including attorneys’ fees and costs actually incurred) of whatever kind, in law or in equity, statutory or at common law, known or unknown, arising out of or in any way connected to his employment with, or separation from employment with the University.”

Rumor has it that HLGR attorney Sharon Rudnick negotiated that clause, on behalf of the Trustees who put up Mike’s $940 large. Prescient – or maybe she knew something we still don’t.

Tomorrow, August 9th 2016 at 2PM UO’s lawyers will appear in Federal Court to attempt to convince the Honorable Judge Michael J. McShane to dismiss the latest and hopefully last lawsuit to result from Gottfredson’s brief tenure at UO. Full docket here.

Who is defending Gottfredson et al? Michelle B. Smigel and J. Michael Porter of
Miller Nash Graham & Dunn LLP – the same lawyers who tried to defend UO against Jane Doe’s rape allegations by threatening to sue her in federal court, with the OK of former interim President Scott Coltrane, and former interim GC Doug Park. Some history below, full post here.

2/26/2015, 4:20PM: UO drops counter-claim, but still blames survivor for “damage to a good man’s reputation”, and claims *she* is discouraging rape reporting.

This is a first for Johnson Hall: admitting a mistake. It took “Sven Praoc” and 2100 petition signers to get them to do the right thing.

No news on when Coltrane will apologize for his prejudicial allegation of an “unlawful release” of UO Presidential Archives. Baby steps.

Josephine Woolington has the story in the RG, here. It appears Coltrane got some lousy legal advice, either from UO attorneys Doug Park and Sam Hill, or UO’s hired Miller Nash attorneys, Michelle Smigel http://www.millernash.com/michelle-smigel/ and Michael Porterhttp://www.millernash.com/michael-porter/:

Coltrane, however, criticized the online petition that characterized the UO as having filed a lawsuit against the victim, as opposed to responding to a lawsuit. He said he was advised by attorneys that it’s routine to counter a suit.

“Their suit would have us pay legal fees, and I was told it’s typical when you respond” to also file a counterclaim, he said.

…  The UO’s updated response, however, still contends that Jane Doe’s attorneys “filed a lawsuit with unfounded allegations that damage a good man’s (Altman’s) reputation in an attempt to curry favor and gain traction in the media and create pressure for a public university to pay a hefty sum to (Jane Doe) even though it has done nothing wrong.”

The university argues that Jane Doe’s allegations threaten not only the UO and Altman, “but all sexual assault survivors in Oregon’s campus community.

“The publication of false allegations about Oregon’s handling of a report of an alleged sexual assault creates a very real risk that other survivors will wrongly be discouraged from reporting sexual assault and sexual harassment to Oregon,” which conflicts with the goal of a federal civil rights law, known as Title IX, the response said.

Say what? UO’s revised and sanitized response to the lawsuit is less intimidating to victims who might consider exercising their civil rights than was the previous version, though no less offensive:

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Full docket w/ old and new language here, thanks to recapthelaw.org

Meanwhile, Coltrane and Bronet’s Campus Conversation and Progress Report on Addressing Sexual Violence is scheduled for Monday, March 2, from 4 p.m. to 5:30 p.m. at the Ford Alumni Center Giustina Ballroom.

Petition protesting UO decision to sue victim has 550 signatures as of 1:00 PM 2/24 2100 signatures as of 4 PM 2/26. Many powerful statements, read them here.

2/25/2015 update: Did UO Strategic Communicator Tobin Klinger lie to the student newspaper about the counterclaim?


From the comments:

This is from the Emerald story: Toby Klinger said this: ““The university is not seeking court costs or attorney fees from a student.” Emerald. http://www.dailyemerald.com/2015/02/23/petition-against-uos-counterclaim-in-recent-sexual-assault-litigation/

Nonsense. From the Answer filed in court by lawyers for the University: “defendants are entitled to recover attorney fees from the plaintiff.” Paragraph 102.

And this also: “Oregon is entitled to recover its reasonable attorney fees from plaintiff, or in the alternative, from plaintiff’s counsel.” Paragraph 106.

Toby Klinger is lying. Why is this tolerated by Coltrane?

I sent Klinger an email yesterday asking him to clarify his statement, and I cced Coltrane’s Chief of Staff Greg Rikhoff. No response.

Mike Gottfredson 2nd highest paid public Univ administrator for 2015

So he should be able to pay UO back for his legal defense, right? Andrew Theen has the report in the Oregonian, based on the latest Chronicle data:

Michael Gottfredson, a former University of Oregon president, received more than $1.2 million in compensation during the 2014-15 school year, making him the second-highest paid administrator in the country. …

10/31/2015: Will UO make Gottfredson pay lawyers for Austin v. UO et al.?

His separation agreement says that we paid him $940K in return for him releasing UO

“from any liability for any claims, losses, damages, liabilities, or other obligations (including attorneys’ fees and costs actually incurred) of whatever kind, in law or in equity, statutory or at common law, known or unknown, arising out of or in any way connected to his employment with or separation from employment with the university.”

Seems pretty bullet-proof to me. Good for Chuck Lillis for putting it in there. But I wonder if UO will enforce it? The danger to UO would be that independent Gott lawyers might prefer to try to stick the blame for any errors in how Austin was treated on, say, previous UO General Counsel Randy Geller, or previous interim GC Doug Park, or VPSA Robin Holmes, or AD Rob Mullens, etc. In any case discovery is certainly going to be interesting.

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2 more Dana Altman recruits sue Gottfredson & Holmes for due process violations

3/15/2016: Duck Athletics brings still more invaluable publicity and goodwill for UO. Who defines our “national brand”? Brandon Austin. From Google search trends:

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Camilla Mortensen has the latest lawsuit story in the Eugene Weekly. Also see Andrew Greif in the Oregonian and Jack Moran in the RG.

The $20M complaint from Dominic Artis and Damyean Dotson’s lawyers Alex Spiro of NYC and Brian Michaels of Eugene is here. Artis and Dotson’s state complaint is basically a cut-and-paste of Austin’s federal complaint here, which was filed by Marianne Duggan of Eugene and preeminent sperm lawyer Alan C. Milstein of Moorestown, New Jersey back in October.

I’m no law professor, but if attorney Alex Spiro (Harvard Law) had passed this in as his final paper, I’d report him to UO’s student conduct office for plagiarism and urge Sandy Weintraub and Robin Holmes to expel him – after a thorough hearing and appeal, of course.

John Canzano has an opinion piece in the Oregonian: Canzano: Lawsuit not fair to Oregon Ducks, but ends up a strong NCAA play:

Did Altman support the dismissals of the players? Did Gottfredson ask for Altman’s resignation somewhere in the process and get push back from key boosters? Were the players a sacrifice that was made to appease the protesters picketing the university president’s office? And why didn’t Oregon just do what every other reputable university might do — suspend the players pending the outcome of the investigation instead of initially standing with them, then after the NCAA Tournament, dismissing them?

Quite the difference from his Jan 8 2015 column: Canzano: Every day Oregon stands with Dana Altman is another step into the muck:

Best case scenario, he turned his back on three innocent players who were under investigation for sex assault. Worst case, he knowingly recruited a player who was under investigation for a sex assault, then lied for months about what he knew and undermined campus safety while trying to save himself.

This is your basketball coach, Oregon. One who should have been fired months ago.

… The lawsuit [he means the one from the survivor Jane Doe, with whom UO settled for $800K], zeroes in on the exact problem. It alleges that the university took steps to protect itself and to guard its coach, while accepting the survivor as collateral damage. Given that federal law mandates that Oregon should have handled this with urgency and alacrity the actions at UO are troubling.

Among the shocking allegations in the lawsuit? UO refused to provide the players with unredacted documents. Say it ain’t so!

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As with Austin’s, this complaint makes many other serious allegations of violations of due process rights by VPSA Robin Holmes and her assistants Sandy Weintraub and Chicora Martin and the feckless Mike Gottfredson.

Where were these people getting their legal advice? From Randy Geller, formerly UO General Counsel, now “of counsel at Harrang, Long, Gary and Rudnick, and/or his Assistant GC Doug Park, who is still employed by UO as associate GC for $200k+.

Here’s UO Strategic Communicator Tobin Klinger’s improbable explanation for why Geller “retired” – announced in the midst of the events described in the lawsuit, and the day before sports reporters unexpectedly broke the story of the basketball rape allegations:

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Dominic Artis and Damyean Dotson’s prayer:

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1/26/2016: Duck lawyers respond to Brandon Austin’s due process lawsuit. Park gave Austin a clean transcript.

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More students punished for sexual assault are winning in court


Jake New has the analysis in InsideHigherEd. The start:

Last week, Brandon Austin, a former college basketball player, filed a lawsuit against the University of Oregon for $7.5 million, arguing that administrators there violated his rights when they suspended him over his alleged involvement in a gang rape.

Austin was able to transfer to a community college and play basketball there last season, but has since left to (so far, unsuccessfully) pursue a professional basketball career. In the lawsuit, Austin claims that the punishment caused him emotional distress and lessened his chances of one day playing in the National Basketball Association. His case joins more than 50 other pending lawsuits filed by men who say they were unfairly kicked off campus after being accused of sexual assault.

If filed last year, Austin’s lawsuit would have seemed like a long shot, especially as the athlete had been accused of sexual assault at another institution before he enrolled at Oregon. But accused students suing the institutions that suspended or expelled them are now increasingly winning those lawsuits, including at least four cases in the last four months. …

10/30/2015 Klinger: Unfortunate that Mr. Austin has decided to defend his rights

Kyle Wizner has the latest in the Daily Emerald. UO Duck Advocate Tobin Klinger:

“It is unfortunate that Mr. Austin has decided to pursue this type of lawsuit, and we intend to vigorously defend the university. We’re confident Mr. Austin was afforded fair and consistent due process that fully complied with the university’s legal obligations. We cannot provide further comment because this is pending litigation,”

Of course if UO was trying to nail a professor, archivist, counseling psychologist, or cop, or just destroy their reputation, Klinger would be happy to provide a lot more comment. Or even hold a news conference or two, if he thought it would help his boss:

10/29/2015: Brandon Austin sues UO, Mike Gottfredson, Robin Holmes, etc. for $7.5M

Not exactly a surprise. Tyson Alger in the Oregonian. A snippet:

Former Oregon men’s basketball player Brandon Austin is seeking $7.5 million in damages in a lawsuit against the University of Oregon, former president Michael R. Gottfredson and three others.

The 18-page lawsuit, filed Thursday in Lane County Circuit Court, alleges that the university, the former president, UO director of Student Conduct & Community Standards Sandy Weintraub, assistant dean of students Chicora Martin and vice president of student life Robin Holmes, violated Austin’s rights by unfairly suspending him and not providing due process, among other things.

In the suit, Austin claims personal and professional harm, emotional distress, a lesser chance of playing in the NBA, and loss of future income following his dismissal from the university in June 2014 following a sexual assault allegation against him and two teammates in the spring of 2014. The suit, filed by attorneys Alan C. Milstein of New Jersey and Marianne Dugan of Eugene, claims Austin “committed no sexual assault.”

Charges were never filed against Austin and teammates Dominic Artis and Damyean Dotson. All three players were dismissed from the university and barred from campus for at least four years, and up to 10, in June 2014.

The alleged sexual assault took place in the early hours of March 9, 2014, as players and students celebrated the Ducks’ victory against No. 3 Arizona in the regular-season finale. Five weeks later, in April, the Lane Country District Attorney declined to charge Austin, Dotson and Artis, citing “conflicting statements and actions by the victim” while acknowledging that the Eugene Police Department’s investigation revealed there was nonetheless “no doubt the incidents occurred.” …

Brandon Austin’s full complaint is here. What did former UO General Counsel Randy Geller and his Associate GC Doug Park know, and when did they know it? I have the feeling we’re going to find out:

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“Refused to provide unredacted reports?” I’m shocked that Mr. Austin would claim that UO would do this. Shocked.

Brandon Austin’s attorney’s are local lawyer Marianne Dugan and NJ lawyer Alan C. Milstein, a noted expert on the sperm donor industry. Really.

His favorite words are “preeminent”, “prominent”, and “prestigious:

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Ms Dugan’s website is here:

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