Victims likely to sue Penn State

 By Lester Munson
ESPN.com

In addition to investigations by the U.S. Department of Education, the attorney general of Pennsylvania and the Penn State University board of trustees into allegations of sexual abuse by former football assistant coach Jerry Sandusky, the university and Joe Paterno likely will soon be facing civil lawsuits from the victims of Sandusky's alleged perversity.

Seeking money damages for horror of the assaults and for the damage to their lives, the victims, their families and their lawyers can be expected to target the school, its administrators, athletic department officials, Paterno and anyone else they can identify who helped enable Sandusky or who had a role in covering up what he allegedly did.

 

The lawsuits will follow a pattern established in similar cases against priests and parishes of the Roman Catholic Church and against Boy Scouts organizations in the Pacific Northwest.The process begins with letters from the victims with legal demands. The letters will lead to meetings and to settlement discussions with university officials and, more importantly, with the school's liability insurance companies. In situations as explosive as the Penn State situation, these discussions can lead to financial agreements that would avoid further publicity and allow both sides to walk away reasonably satisfied with the outcomes.

You gotta love dogs!

I have had dogs all my life (except while I was living in Baton Rouge at law school). I don't understand people who are cat lovers and I don't understand how people cannot be dog lovers.

My first dog was Pierre. It was actually Mom's dog, but I considered all of our dogs MINE. Pierre was a poodle mixed with something else. I was probably too young to really appreciate Pierre, but one thing I remember about Pierre was that he was almost killed by a German Shepherd.

At first, my sister and I tried to beat the bad dog off Pierre, but as soon as our maid, Alice Taylor, saw what was going on, she ran outside and started to beat the German Shepherd with a broom even though she was deathly afraid of dogs. No doubt, Ms. Taylor was more concerned about the safety of my sister and me than she was Pierre!

Pierre had a punctured lung, but he was operated on and lived for several more years.  As I write this blog I recall Pierre lying in the ditch with blood all over his torso and it makes me recall a time when I was twelve and saw a boy get killed only a few feet from me. That's another story for another time.

My next dog was Beaux, who I adopted from the Humane Shelter, where I worked on the weekends when I was in junior high. I probably earned less than $40.00 per day, but I got a great deal with Beaux. He was part miniature Collie and part something else. I taught him to sit and shake, but his best quality was that he knew when you were blue and always had the ability to cheer me up. He would push my bedroom door open and lay his head on my hand until I would acknowledge him. Beaux died while I was in law school.

Growing up, I also had hamsters, birds (Dickie and Icarus), and ducks (Chauncy and Cornelius). My sister had a fat cat named Sir Walter Raleigh. One time, I came home and Dickie's bird cage was knocked over and I was sure the Sir Walter Raleigh had eaten him, but fortunately Dickie outmaneuvered Raleigh by jumping for chair to chair -- he couldn't fly! Not too many months later, Dickie died.

In recent years, my family has had NO CATS because we are terribly allergic, but we have had three dogs in the last 18 years. First, we had Lizzy, a miniature something -- I can't recall. She was very territorial of me and Joan and had a tendency to be mean to every kid, even our own. Yet in her later years, she went blind and was really dependent on us. We would clap and she would follow our voices.

When she died, my wife grieved for several months and told me she would never get another dog. Until one of my associates, Tyler Long (now a priest in Monroe), needed to adopt his toy schnauzer.

Stupidity of Penn State Students!

I find it completely ridiculous that anyone would riot over the termination of Coach Paterno!

Have these idiots considered the children and their families who may have been prevented being abused had the supervisors of Sandusky reported him to legal authorities?

Okay, I realize that accusations of this nature may not be true and it would terrible to ruin a career over accusations, but come on! Apparently one of the coaches who is still employed at Penn State actually saw Sundusky in the shower with 10 year old boy!

Why would he say that if it wasn't true? Even if it wasn't true, why didn't he or one of HIS superiors report this to the police for an investigation?

Because the Penn State wanted to protect their image and income! I'm sure the university has made a truck-load of money over the years from their great football program, but NOW they will pay a truck-load of money over the lawsuits that are likely to come out from the university's negligence in failing to protect these kids.

I wonder if the claims of the children have prescribed? From what I have heard, they occurred over ten years ago and in some states the time period to file a claim is one to three years after the child has reached his/her 18th birthday. So let's say that one of the boys Sundusky allegedly raped was 10 in 1999, then he would turn 18 in 2008. If the statute of limitations in Pennsylvania is three years following his 18th birthday, then a lawsuit would have to be filed this year, 2011.

I looked up the issues specific to Pennsylvania and apparently the statute of limitations for a child under 12 is twelve years after he/she turns 18.*

I don't know if the same time period would be extended for the negligence of Penn State supervisors, such as Paterno. In any case, it's stupid for the students to be outraged over the firing of Paterno when they out to be outraged that Paterno didn't take a more active role in protecting the boys.

Am I missing something? I welcome your comments.

* The Pennsylvania statute of limitations for sexual offenses against children does not start to run until the child reaches age 18 (on the theory that, before then, he/she is not competent to decide whether or not to file a complaint). Then, the statutes of limitation vary, depending upon the severity of the underlying offense. For example, the statute of limitations for "sexual abuse of children" is 12 years. So, charges could theoretically be brought any time before the child turns 30. This appears at 42 Pa.C.S.A. 5552. ("Pennsylvania ConsolidatedStatutes Annotated") However, police will be more interested in recent crimes (or crimes recently discovered by the parents/guardians) so don't put it off too long if you are going to go forward.



Passion to Protect Non-Profit Groups

It's no secret that I have a passion for non-profit organizations. Whether it's the local church, local missions for the homeless or foreign missions to the Amazon,  Africa or Mexico, I love what these groups are doing. I suppose there are groups big enough for in-house general counsel (such as the  the NRA, ACLJ, ADF and so on); however, many non-profits muddle through hoping that there will be no problems or they rely on the pro-bono assistance of private attorneys when an emergency arises.

Unfortunately, most lawyers are NOT focused on the specifics needs of non-profit organizations. One lawyer may know something about insurance coverage, while another focuses on employment laws  and another on tax issues. It would be too expensive for a non-profit director to hire several attorneys for each issue so this blog may help some of my friends and associates running non-profit organizations on some key areas to have reviewed...SOON!

I recently read the following from George Constantine of  Venable, LLC. The following is edited but completely attributed to Mr. Constantine. If you want to learn more, contact the author at 202-344-4790 or geconstantine@Venable.com.

Litigation.
Nonprofit organizations can be complex and far-flung entities, so do not assume that the litgation matter you h ave all the necessary information. Many nonprofits that engage in advocacy, for example, may file amicus briefs regularly and it is not unheard of for the public policy department rather than legal to guide those activities. Also, larger nonprofits with sophisticated human resources departments may keep information on EEOC or state agency

Many in-house counsel to nonprofit organizations come to their positions without much background on tax-exemption issues. If that is the case, you’ll need to become a quick study and familiarize yourself with the basic tenets of tax exemption and what your organization needs to do (or not do) in order to lessen risk to its exempt status. Study those recent Forms 990 (beyond the key employee compensation section, which you may have already studied during the interviewing phase) and become familiar with what the organization is telling the IRS and the public about its operations.

Take a close look at the tax-exemption application form for your organization (assuming it is on file)—is the organization still doing what it said it would do on its application? If not, how is it different? While you are at it, take a close look at recent audited financials and management letters and see if the files mention anything about potential FIN48 issues that could give rise to significant UBIT exposure or exempt status risk.

Consider having a meeting early on in your tenure with the individual responsible for getting the Form 990 completed and filed for your organization. An early, frank discussion about areas of concern should help immensely as you prioritize. Finally, review the files to determine if the IRS ever audited your organization and, if so, what the results were. The IRS will often close an audit with no change, but may include some “advisories” about corrections that the organization should make to its operations going forward. Of course, those advisories are part of the IRS’s record on the organization and will certainly be referred to by the IRS if a subsequent examination is conducted.

Document Retention Procedures.

While ultimately you will want to review all significant organizational policies (see item 8 below), this

Equally important, are the policies being followed properly? Are there any litigation holds currently in place? If not, should there be? If so, is it time that they can be lifted? While a poor document retention policy or implementation cannot change overnight, starting the process of improving organizational document control should be a priority to lessen organizational legal risks in the future.

 

Governance Documents.

Look at the organization’s articles of incorporation and bylaws early on in his/her tenure. This is not to suggest a comprehensive governance review/revision; rather, this is a time to read the documents closely and understand how the board is structured, how frequently it should meet, what rights the members (if any) have, etc.

While obvious anomalies should be identified and addressed at this point—are there more board members than are authorized by the documents? Is there inconsistency between the bylaws and the articles?—keep in mind that most nonprofit organizations have routine governance review procedures with involvement by members of the board and other volunteers.

One important tip when it comes to the articles of incorporation review—do not rely on the copy of the articles that may be in the files you inherited; instead, make the small expenditure of obtaining a copy of the articles that is on file with the state of incorporation. Often an organization’s files may not have all amendments. Further, obtaining the articles from the state of incorporation will also give you an opportunity to confirm that the organization is in good standing. 

Do not be surprised if the organization is not in good graces with the state due to failure to file an annual report or some other ministerial omission. (While submitting this blog, I took a moment to check to ensure both my personal corporation and church remain in good standing. I am pleased to say that we ARE.)

While you’re looking into the organization’s corporate standing, it also will be a good time to determine whether other state filings are up to date—charitable solicitation registration and reporting, state property or other tax exemptions, corporate status for affiliates, etc.

Leases and Other Contracts.

Familiarize yourself with the major contracts where the organization is a party. Review the  office space and other leases the organization has entered into. Is there a renewal date coming up or an opportunity to cancel or amend? Pay attention to the overall contract management procedures and review processes that the organization employs to determine whether they are adequate. If they are inadequate, establishing such a system is a key priority.

Far too often, nonprofit organizations find themselves stuck in transactions with unfavorable terms for a long time simply because of a failure to provide prompt notice of intent not to renew or otherwise take advantage of a one-time “out” opportunity in the deal.

Lobbying and Political Filings.

This one will only apply to some nonprofit organizations, but for those it is very important. Organizations that may be active in legislative or political matters are subject to an array of complex state and federal registration and reporting requirements. While the legal exposure for failures to file promptly or correctly are generally relatively low for first-time offenders, the public relations impact can often be devastating, as your political opponents will no doubt jump on any reports of noncompliance.

Failure to properly abide by applicable tax rules for lobbying expenditures could give rise to significant liabilities. Check with the organization’s chief public policy official and get an understanding for what types of reporting are being done and how the reports are managed. From a longer term perspective, you may want to hone those procedures—it is often the case that a nonprofit organization’s lobbying department may not be using an effective recordkeeping or time-tracking process.

Policy Review.

A  review of the organization’s policies (such as the employee handbook or the governance procedures) is a luxury that can wait until later. Not so fast—those policies come often up in litigation and IRS audit contexts, particularly if they are insufficient or not followed. Similar to the governance document review, consider a stepwise approach here.

First, look at the policies with an eye toward familiarizing yourself with how the organization operates—Who maintains the conflict of interest disclosure forms? How long is the organization’s probationary period for new employees?—and identifying glaring problems or omissions. Then, consider scheduling a more detailed policy review and revision for some time later in your tenure.

Internal Controls.

When you have your discussion with the chief financial officer to talk about the Form 990 and other exempt status issues, ask for a review of all internal control policies—issues like check signing authority, procedures for handling payments, and bank account access. Look into what contractors in this area have warranted and what they have disclaimed.

Insurance.

Finally, take a look at all of the organization’s insurance coverages. Many larger nonprofitorganizations may have risk management professionals, either on staff or contractors, who will be able to provide insight into the intended scopes of the coverages as well as some history on why the organization opted for the policies it has. Of course, be certain to give proper notices to the organization’s applicable carrier in the event of litigation or some other event. As part of your review of the coverages, be certain to look at the applicable applications that the organization completed—the disclosures made in those applications will usually form the basis for the scope of coverage granted.

For example, an organization that may have recently begun significant publishing activities that it had not previously engaged in could be under insured on that front if this activity was not disclosed in the applicable application. Consider engaging experienced insurance counsel to get an expert’s take on the organization’s insurance coverages.

Depending on your organization, there are any number of other areas of concern that will need your prompt attention—antitrust risks, copyright and trademark issues, and employee benefit matters, for example. Also, there may be pressure for you to devote much of your initial time to a major matter which may make it tempting for you to set aside the above review until things settle down. Of course, it is likely that things may never settle down entirely, so it is important to cover as many of the items above as promptly as you can and not get caught up solely in one particular issue when you first arrive—doing so will pay dividends later, both for you and for your client.

I hope this information from Mr. Constantine is helpful. As always, if there is anything we can do to assist, please don't hesitate to call us at 318-222-2426. You can also reach me at perkins@perkinsfirm.com.

Take care

Take a close look at the nonprofit’s employment history, particularly as it pertains to recent adverse employment actions. That close look should include a review of demographic information, compensation information, supervisor-specific turnover data, and severance payment history. This review will give you a good idea of how likely employment-related litigation or agency action is in the near term and will help you assess whether there are significant deficiencies in the organization’s employment practices and policies. Consult with the organization’s human resource professionals to determine whether there are currently employees on probation or likely to be terminated—it may be an opportunity to lessen legal exposure.

Tax Filings.

Bad Lawyer Depostion...

I know you have probably seen this fighting lawyer deposition floating around on Youtube, but if not here it is. Just another example of really obnoxious lawyers. I hope you have never had one of these guys for or against you.

I really don't think people want a "bulldog" as an attorney. They say they do, but most people really just want to get to the truth without abrasive tactics. Personally, I have found that maintaining a calm demeanor and presenting the evidence in a calm, to-the-point manner works best. Jurors cannot stand what these lawyers are doing:



Helping the Homeless in Shreveport!

I got the following news recently from Cassie Hammett with the Hub ministries:

LOVEWELL CENTER NEWS:

We are so excited to be writing this email to you, as we have INCREDIBLE news to share with you, our volunteer family:

Over the last 60 days we have been raising funds for The Lovewell Project.  Our goal was to raise $100,000.00 in 60 days!  As we began 60 days ago, we prayed that a GOD SIZED thing would happen for The Lovewell Project in our city and that we would be able to give ALL glory to Him, no matter what the outcome!

We are excited to announce that the grand total of The Lovewell Project was $120,000.00!!!  This is an amazing thing that God has done!!  We are so blown away by His provision and by your involvement in helping this all come true.

We want to thank recording artist Mercy Me for being the encouragement we needed and for supporting The Hub through this project!  We also want to thank EVERY SINGLE PERSON who gave towards the project.  No matter what amount you gave, you will forever be a part of changing our city and will be a part of The Lovewell Center's story.  God used your giving and your excitement to do something we never imagined possible!  Glory to Him for EVERYTHING that He has done for the "least of these".

THANK YOU THANK YOU THANK YOU if you gave, promoted, retweeted or passed along this project!  We will never be able to communicate our gratitude and excitement!

We will keep you updated on news about The Lovewell Center.  We will begin the process of purchasing the property over the next few weeks and would GREATLY APPRECIATE your prayers!

We are beginning our process of remodeling this month.  If you are in the construction business or know people who are and would like to donate your time or services, PLEASE let us know!  We are also still raising money to pay for the remodeling!

God is good.  We give him all of the glory for what He has done.

LSU Football: a lesson in being humble and fighting the good fight

I have rarely been to a LSU game in person, unless I was so high up that my ears pop! Yet, I love to watch college football.

I am not much of a fan of professional sports, until the World Series, playoff, Superbowl etc., but I like college sports. I'm sure there are plenty of obnoxious arrogant players and coaches (ie Nick Saban), but there are others who are strong builders of character.

Last night's game between LSU and Alabama was a great game. I really enjoyed seeing arrogance being beaten down even though there was no guarantee that the noble virtue of humility would prevail. In THIS case, it did! Go Les Myles.

In my job of defending companies who have been sued, I often fret more over beating the arrogance out of the opposing attorney.  Sometimes I do. Sometimes I don't, but I keep fighting the good fight of striving to ferret out the truth and doing battle against those who think too highly of themselves and their cases.

Battling against arrogance may not be the most noble motive in the practice of law, but there are plenty of battles available. Why are some lawyers so arrogant and condescending? What does it gain them to act like that?

What do you think?

Bad Lawyers!

Like every other lawyer, I have had to deal with some pretty obnoxious attorneys on the "other side." I suppose there may be some lawyers who might say the same thing about me, but I hope it is very few.

Most of the lawyers I deal with are straight-forward zealous advocates who don't take things too personally. Yet, there are a few who have almost caused me to burn my license and become a bait-salesman. It wouldn't be so much different dealing with slimy worms in either job!

The arrogant, condescending attorney grates on my nerves, but I really can't stand the attorney who purposely flaunts the rules of ethics and principles of professionalism just to get an advantage. I recall one lawyer from Alabama who would make editorial comments and snide remarks in his deposition simply to annoy the deponent. We were constantly calling him down for inappropriate questions!

There are the lawyers who hide information and delay information. There are those who try to pick fights with the witness, but I recently saw "Five Godawful YouTube Video Depositions" on the website www.bitterlawyer.com. I wanted to post the WORST one in my opinion, but I am unable to download, but I recommend that you go to the site and view the clip of the deposition that made its rounds in 2007. It involves a lawsuit between Testmasters and Blueprint Test Prep. It also involves generally outrageous deposition behavior of the defending attorney, Joseph Kouri.

I found some some information following the deposition in which the defendants, represented by Kouri, were sanctioned. Frankly, I think the lawyer should have been sanctioned. Perhaps he was.

Go to www.bitterlawyer.com and then check out the next page of my blog to see some of the sanctions levied against the defendants for the attorney's bad acts.

 If anyone knows about what happened to the defense attorney, let me know.

An Unspoken Plea

This is a video from Sermon Spice. I bought because it's raw and honest and it's a hard comment on the "church." I see many people attending church because it's the "social thing to do."  

I know you may find this hard to believe, but I have issues. I am pretty well screwed up in a lot of ways, but I never found it easy to share my struggles within anyone in the "church."  It seems to me that in  the "traditional church" setting,  many people don't feel comfortable with sharing their issues and struggles. It's a pretty scary place to admit that, even as a Christian, you have struggles, fears, doubts, issues.

If you are a Christian with struggles, but afraid to share those fears and doubts, take a risk.

 If you are not a Christian and you're afraid to share your struggles, take a risk.

Start with me.

Believe me. NOTHING shocks me!

Have a great day