On Pointe

11 minutes ago, Helene said:

Discovery is not an investigation. 

If I were he, and was trying to make a case about the environment that in which The Powers That Be knew about, but never disciplined bad behavior properly and sent a message that the men were above the law, I'd ask for records of all complaints and disciplinary actions at both institutions, to see if there was a gender pattern, a pattern of discouraging complaints, whether the women and girls at both or either organization were justified in feeling that their complaints wouldn't be taken seriously and/or would result in backlash or retribution, whether there were policies in place, what the training was, etc. etc. etc.

My point is that he could ask,  but NYCB and SAB could refuse to comply.  He would have to persuade a judge that he had a right to this data.  Even if they did so voluntarily  (highly unlikely),  discovery can be expensive and time-consuming.  The cost would not be covered by contingency fees.  Ms. Waterbury  could find herself on the hook for hundreds of thousands of dollars and still lose the case.

5 minutes ago, Helene said:

A complaint is just the intro. If it gets to this point, discovery will be the meat of the matter.

After a scathing expose in "Sports Illustrated," about sexual harassment in the organization, the Dallas Mavericks launched an independent investigation -- independent, not internal third-party -- and issued a report yesterday.  From the footnotes, the investigative team was:

The-Report-of-the-Independent-Investigation-of-Dallas-Basketball-Limited_9-19-2018.pdf

I would expect Merson to follow similar paths of inquiry into the NYCB and SAB organization, to establish policy, complaint history, how those complaints were handled, authority to act, etc.

That was an investigation of a hostile workplace environment case,  where the behavior of some male employees toward female employees was flagrant and outrageous.  Why and how could Merson launch a similar investigation at NYCB when Ms. Waterbury never worked there?  NYCB might have an obligation to disclose this information to AGMA,  but not to all comers.

It is notable that even though Mavericks owner Mark Cuban worked in the same offices and should have been aware of what was going on,  (he admitted as much and made a $10,000,000 donation to women's organizations - a nuisance amount given his vast wealth)  he was exonerated by the investigation. 

7 minutes ago, aurora said:

It is relevant to the hypothetical you brought up:

"Many dancers at NYCB have been students at Columbia.   If one of those dancers dated a Columbia professor who mistreated her in the same manner as Finlay allegedly mistreated Waterbury,  that dancer would have a case against him,  but she wouldn't have standing to sue Columbia,  and try to bolster her claim by citing alleged defects in their policy on student-instructor relations."

 

You didn't say have won a case.

You said she would have no standing to sue Columbia. And considering there are similar cases (no not identical, but no two cases will ever be precisely the same) in the courts at this moment, it is incorrect to say she "wouldn't have standing to sue Columbia." Which were your exact words.

"Many dancers at NYCB have been students at Columbia - my apologies for the past tense evidently not being clear.  If an adult former Columbia student dated a Columbia professor and it ended badly,  it does not follow that Columbia University is at fault.

20 minutes ago, tutu said:

My guess is that it could be one piece of evidence (though not a smoking gun) to add to the impression that NYCB was willful, reckless, or negligent in fostering an environment where people could act with impunity and no expectation of discipline. 

Ms. Waterbury  doesn't  cite a single example at SAB to bolster her assertion,  even anonymously,  and it would take more than one to establish a pattern.  Employers are limited in their ability to discipline the private behavior of their employees.

20 minutes ago, aurora said:

Are you sure about that?

https://www.washingtonpost.com/news/grade-point/wp/2018/04/27/former-george-washington-student-sues-school-alleging-botched-sexual-assault-case/?utm_term=.cc4d93b9ed8e

 

https://www.nyunews.com/2018/08/26/news-ronell-reitman-sexual-assault-lawsuit/

Those cases have not been decided in the plaintiffs' favor.  Even if they were,  the George Washington  University  case involved two people who were students together,  and the NYU case involved a harassment case between a grad student and the head of his department.  Neither case is relevant to the Waterbury suit.

58 minutes ago, tutu said:

This may be confusing, but a complaint itself does not set out to prove the veracity of the facts alleged therein. Rather, a complaint lays out facts that, if assumed to be true, lay out a cause of action sufficient to permit a case to get to the next stage. It’s a way of figuratively opening the doors to the courthouse (though the doors may be shut later in proceedings).  (Wikipedia’s explanation is good background here.) All of this is to say that it is not crazy for a complaint to state factual allegations without attaching proof — the lawyer’s certification (described below) is a means to make sure the facts aren’t out of control.

Merson’s certification on the complaint provides reason to believe that the factual allegations have a basis in reality. When a lawyer personally certifies the complaint (basically, one of the signature page submitted with the complaint), they are required to have made an objectively reasonable inquiry (i.e., not an indifferent or blindly insufficient inquiry) as to the veracity of the facts alleged therein. If that lawyer has failed to make sufficient inquiry, he or she faces substantial legal and professional liability. (More about that here; Stroock, the author of the memo, is a respected firm and the doc is well-researched.) By submitting the complaint with his certification, Merson is making a declaration that he, with the judgment of a lawyer, has an objectively reasonable basis for including the allegations therein—to the point where he risks legal and professional (not to mention reputational) liability.

In short, complaints aren’t the place to prove the veracity of the facts alleged therein. That said, Merson has made a binding certification that he has an objectively reasonable basis to believe the facts in the complaint are true.

Olga’s point (sorry, can’t make the embed work) is also important, though. An objectively reasonable basis to believe that the plaintiff’s statement of facts are true isn’t the same as these being proven true facts—if it were, there’d be no reason to have a trial system. The veracity of the alleged facts is to be determined by the fact-finder (a jury, or, in a bench trial, a judge).

Intricacies of the legal system aside, I’m not sure how a complaint could prove the absence of a policy — it’s pretty unlikely that there’s an NYCB statement floating around saying, “We don’t have a policy about this.” (If the case gets to discovery, though, there might be an email floating around somewhere; if it gets to trial, testimony could get there, too.) If NYCB/SAB does have such a policy, though, it’s pretty easy to show it exists — they could show the policy itself.

All of Merson's allegations could be true regarding a lack of a policy regarding NYCB and SAB.  However what is the bearing on this case?  The plaintiff is not a student at SAB at the present time,  and she makes no claim that she began a relationship  with  defendant Finlay when she was a student there.  She makes no claim that any NYCB member "groomed" her as a minor student.  She is not now,  and never has been a member of NYCB,  so she has no standing to claim her treatment by Finlay was part of a hostile work environment. 

Columbia University,  where she is a current student,  has had its share of sexual misconduct and campus rape allegations.  Many dancers at NYCB have been students at Columbia.   If one of those dancers dated a Columbia professor who mistreated her in the same manner as Finlay allegedly mistreated Waterbury,  that dancer would have a case against him,  but she wouldn't have standing to sue Columbia,  and try to bolster her claim by citing alleged defects in their policy on student-instructor relations.

35 minutes ago, minervaave said:

Workplaces can absolutely impose anti-fraternization rules and quite stringent ones.  In the US military, an officer cannot date an enlisted soldier.  In fact, the military even regulates the degree of friendship permitted between officers and enlisted soldiers.  So NYCB could absolutely put into place a policy forbidding NYCB dancers to date SAB students.  And, if desired, they could put in a caveat that relationships started while both are at SAB could be allowed to continue or any other exemptions they feel necessary.  

In terms of Waterbury suing for money, I think there are two factors here, and neither of them necessarily precludes the moral high ground on Waterbury’s part.  1) Lawyers need to get paid.  Finding a lawyer who wanted to take this on pro bono for a token $1 in damages a la Taylor Swift would have probably been an extremely tough sell.  2) The most effective way to get an organization to change is to make it more painful for them to continue on their current path than it is to change.  And suing NYCB does exactly this by going after two things that are very important to them - their reputation and their finances.  As an example of the power of this tactic, universities in America had a terrible track record when it came to dealing with sexual assault victims both because they were afraid that if they acknowleded it was happening, it would hurt their school’s reputation and because if they did anything to the accused, they could turn around and sue the school.  Colleges finally began to change their policies and procedures (at least to some extent) only when two women began bringing lawsuits under Title IX providing equal opportunities for women and getting victims at other schools to also file lawsuits.  Only when colleges started to get sued for not protecting sexual assault victims did they start to put any meaningful protections in place.  So what Waterbury is doing may actually be extremely effective in getting NYCB to address what she clearly sees as a problem with the institution.

The military is unique in that its members voluntarily give up some of their rights.  For example,  officers can be court-martialed  for committing adultery,  even when the sexual partner is a civilian.  While religious employers can require their employees to follow certain moral strictures or lose their jobs,  ordinary civilian employers,  like NYCB,  are limited in how much control they have over employees' lives.  SAB and NYCB may be able to put together a policy forbidding relationships between company members and students,  but there is no way they can control the sex lives of the dancers when they don't  involve students.  Ms. Waterbury  was not a minor,  not a student,  not a company member.  Finlay had every right to pursue a relationship  with her.  It's taking photos and distributing them without her consent  that was a moral violation.

Curiously the complaint is silent as to what happened after Ms. Waterbury  found the emails.  She finds them in May and sues NYCB in September.  Did she confront Finlay and demand an apology?  The complaint mentions that she was hurt because she thought of Ramasar as a friend.  Did they have it out?  Was there any effort to resolve the conflict before she engaged Merson?  She's not required to include the info but it will all come out in court,  if it gets that far.

If Ms. Waterbury  hadn't  needed to "check her email",  she might never have known about the invasion of her privacy.  There are terms used interchangeably in the complaint that confuse the issues,  which is likely deliberate.  The amended complaint describes a lot of sex going on with a lot of people,  students,  dancers and their spouses.  (Not Longhitano though.  He strikes me as a sad wannabe trying to live a fantasy life by hanging out with handsome male stars.)  There are kinky elements to these relationships,  like the threesomes and the husband sending out nude photos of his wife.  But one could conclude that some of the photo sharing may have taken place with the knowledge and consent of the women involved.  Not Ms. Waterbury,  who according to the complaint,  was in over her head.  She was taken advantage of by a snake.  Her treatment could be considered emotional abuse,  but there's nothing in the complaint alleging harassment,  hazing,  or physical abuse.

5 minutes ago, aurora said:

why would it be difficult?  Why not fix it? Dating has gone on between company members and SAB students for ages it is true, one of my relatives dated a company member when they were 18 and at SAB and the company member was 28 in the 1990s.

 

That doesn't mean it is a good idea.

I chose eighteen for a reason.  Still quite young,  but a legal adult nevertheless.  I agree that an eighteen year old dating a twenty-eight year old is not a good idea,  but it's not illegal.  A sixteen year old with a twenty-eight year old is illegal,  and a really bad idea!  In that case the law supersedes any school or company policy anyway.

6 minutes ago, meatball77 said:

It's pretty typical for there to be strict no-fraternization rules when a school has underage teens as well as those who are college age.   From what I understand there is a very strict no fraternization rule between the HS students at UNCSA and the college students in the dance program.  They are expected to maintain a strict separation when they are not in class or rehearsals together.

If SAB/NYCB doesn't have a policy that prevents socializing between the school and the company that was a problem waiting to happen.  Evenmoreso if the fraternization wasn't between the school and the apprentices but was allowed between the teens at SAB and principals who were 5-10 years older than the students.

I think we are reacting as if Merson's assertions are true.  But as the saying goes,  if it ain't broke,  don't  fix it.  While there have been unequal relationships between dancers and students in the past,  there isn't  any evidence presented that it is either rampant or much of a problem.  It would be difficult to craft a policy forbidding,  for example,  an eighteen year old NYCB dancer from dating an eighteen year old SAB student.  They could even be legally married in New York.

46 minutes ago, vipa said:

 I can't speak to past the past five years or so, but I know that in the past, whenever there was a shortage of males for partnering classes, company members would be asked to attend. This was done in a very informal way, certainly not required. It can be very helpful for students to have company members participate. Yes, girls would be expected to partner with whomever they were told to. Yes, some students are star struck when any company member is in class.  At the same time, if a company member and a teenage student decided to see each other outside of class time, I don't see how that is the fault of SAB. I don't know if Ms. Waterbury was living at the dorm. I have heard that there are strict curfews and a lot of oversight. My understanding about the Waterbury/Finlay relationship is that it started after she left the school. I just want to add that one of the great things about being in a school with a company attached, is that you have a chance to see and work with company members. This is an amazing asset that I would hate to see disrupted. Sara Mearns and Ashley Bouder both have mentioned taking classes at the school, even as principal dancers.

Many company members are the same age or just a bit older than advanced students at SAB.  New members would have been recent SAB students anyway,  so it wouldn't be unusual or improper for there to be relationships between them.  While the students may be starstruck and awestruck by their presence,  the company members are not in positions of authority over them.

1 hour ago, Helene said:

The amended complaint faults the "encourage" and "required" interaction between male NYCB dancers and female SAB students.  I don't know any specifics about how this might work or whether it was at SAB or NYCB, but, presumably, that will come out in discovery and court, if it gets that far. 

Do company members participate in rehearsals and partnering classes,  and if they do,  are they volunteers or is it a requirement of their contract?

2 hours ago, Rick said:

Macaulay addresses the Waterbury case in his review of Jewels. 

https://www.nytimes.com/2018/09/19/arts/dance/review-city-ballet-in-turmoil-shows-the-value-of-whats-at-stake.html

That photo of Ashley Laracey  is glorious.

28 minutes ago, fordhambae said:

1) Files lawsuit against the company days after the company takes action to suspended individuals and announce another retires.

2) Adds defendants to lawsuit only after the company takes additional action to terminate the suspended.

3) Adds donor's name to lawsuit, which they've known all along and had the individuals texts of from the beginning.

4) Adds school to lawsuit as a separate entity after previously claiming the school and company are the same.

And brazenly,  in the amended complaint,  Merson uses the fact that the dancers were suspended and then fired by the company against NYCB.

8 minutes ago, fordhambae said:

My apologies, I thought you were responding to a different message I wrote.

 The lawsuit states that the school had a duty to safeguard Miss. Waterbury and other women from Chase Finlay etc, asserting that these men were, as Mr. Merson stated "using as a hunting ground". Do we have proof of when they met and how they met and was she a former student at the time? 

The complaint states that they "met at NYCB",  which a casual reader could reasonably infer that they both worked there,  but they didn't.  She could have been sitting on the fountain or standing on the mezzanine.  If they had met at SAB it would have been included as it bolsters her case.

38 minutes ago, rkoretzky said:

And that matters why? 30, 40, 50... everyone has an right to privacy and to the expectation that if they refuse to participate in something that refusal will be honored. 

These aren’t porn stars. They are  women who happen to work as ballet dancers. 

It matters big time.  Many of SAB's students are young children.  Distributing salacious photos of them could be considered trafficking in child pornography,  a serious Federal crime which can land perpetrators in prison for many years.  No one is making that accusation.

7 minutes ago, Balletwannabe said:

Why can't it be both?

It could.  But in Merson's case at least,  I don't  think so.  It doesn't matter to the outcome.

29 minutes ago, Helene said:

I'll repeat the answer, too:  we don't know what the tactics and strategy are about naming or not naming, and more people can be added to the complaint, as we've seen.

I don't know when Waterbury first joined NYCB...

She never joined NYCB.  See,  Merson's tactics are working,  even on us!

9 minutes ago, Helene said:

I agree that not every dancer would have been influenced by such an environment, but there were more than three dancers described in the updated complaint as having distributed images through communications.  Three have been named as defendants in the complaint.

So why weren't the other dancers named in the complaint,  even if they aren't defendants?  The complaint warrants careful reading.  A number of those accused of sharing the images are "employees of NYCB",  not dancers.  They could be musicians,  stage hands,  wardrobe staff,  even janitors.  Presumably these individuals were not also former students of SAB or dancers in the company,  and thus not subject to their supposed malign influence.

7 minutes ago, Helene said:

SAB is considered in loco parentis, so her parents should have been able to send her to SAB without issue.

That's an interesting legal question.  Ms. Waterbury,  according to the amended complaint,   is now twenty-one,  which indicates that she was an adult while still a student at SAB.  Is a school,  any school,  presumed to be acting in loco parentis  when the student is not a child?

15 minutes ago, Helene said:

 

Again, hers and her lawyer's motives are speculation and not relevant to the case...

Merson and Waterbury's motives are quite clear- they want money,  from the deepest pockets available.  Nothing wrong with that,  but let's not pretend this is basically some kind of moral crusade.

11 minutes ago, Dreamer said:

I do. Claim #73 states: Ms. Waterbury  would not have met  Mr. Finlay and been subjected to the aforementioned unlawful conduct but for the NEW YORK CITY BALLET, INC.m and/or SCHOOL OF AMERCAN BALLET.

Ms. Waterbury  would not have been subject to unlawful conduct if her parents had not sent her to ballet school in the first place,  so why doesn't  she sue them?  The defendants are not the only adults in this scenario.  Ms. Waterbury  met Chase Finlay as an adult (if she had been a minor Merson would have featured that fact front and center),  and she willingly entered into a sexual relationship with him.  He's the one responsible  for the violation against her,  not NYCB.  The only reason Merson is attempting to make this a systemic issue instead of a personal one is to maximize any monetary damages she might win,  of which he would receive a substantial share.

11 minutes ago, Helene said:

That's one interpretation.  Another is that NYCB was responsible for the environment in which they felt entitled to contaminate the workplace for their co-workers.

Their social media policy gives them the option to monitor their dancers' social media, but doesn't obligate them to.

The defendants did not communicate any sexual material through social media.

13 minutes ago, nanushka said:

How can we judge whether the argument is specious without access to the evidence (which has not yet been presented)?

ETA:  To clarify, I believe the "bad acts" Waterbury accuses NYCB of knowing about and condoning are not (or not only) the acts committed directly against her. The company is accused of having known about and condoned much other behavior that, she claims, created an environment in which they felt they could do to her as they allegedly did. That argument doesn't depend on NYCB having seen or known about the specific text messages, etc. that are referred to in the case.

How can it be proven what the dancers "felt" they could do?  Evidently every male dancer didn't  get the message,  because only a handful have been accused.

27 minutes ago, Helene said:

I don't read the complaint that way with regard the claim for NYCB's culpability:  I read the argument that, though prior actions, they knew about and condoned activity and, from the start of the pipeline at SAB to the Company, created and enabled an environment that led to the actions against Waterbury.  

Even if the company "knew about and condoned" the defendants' bad acts - in my opinion a specious argument at best -  it doesn't  change the fact that Finlay,  Ramasar  and  Catazaro acted as individual adults.  Unless Merson thinks he can make the case that NYCB is some kind of criminal enterprise,  in the business of not only churning out miscreants but directing their activities,  it doesn't  follow that NYCB can in any way be responsible for their actions.

53 minutes ago, ABT Fan said:

Re: Finlay, Catazaro & Ramasar.

They are grown adult men who should know right from wrong and were working professionals until they were fired (Ramasar/Catazaro) or resigned (Finlay).

They were not prisoners in a dungeon, with no access to the outside world, no education, no social interaction, no responsibilities.

This may prove to be the crux of the case.  Yes,  Finlay,  Ramasar and Catazaro are grown adult men,  but Waterbury's complaint against NYCB puts forth the theory that the company has a duty to monitor their thoughts,  communications and activities,  as if they were lacking in capacity and personal agency.  Even minors can be held legally responsible for their own actions if they have reached an age where the court deems they should know right from wrong.  If parents can't  be held responsible in those situations,  how does it follow that an employer can be held responsible for what adult employees do on their own time?  It doesn't matter whether the activity is legal,  illegal,  or in this case,  rests in a gray area in between.  If Finlay,  Catazaro and Ramasar decided to rob a bank between performances,  they could be held to account for committing a crime,  but the bank doesn't have a case against the NYCB.

Even during work hours,  employees have their "own time" -  lunch,  bathroom breaks,  etc.  During rehearsal,  there are AGMA mandated break times,  during which dancers are free to do whatever they please,  like snack or check their email.  Unless communications were sent using company provided devices,  in the middle of a performance or rehearsal,  the "work hours" argument is unlikely to hold water.

Merson is trying to turn this lawsuit into a sort of quasi class action,  ostensibly on behalf of minor students at SAB and female members of the NYCB.  (Of course none of them would share in any damages he might win.)  The problem is that Ms. Waterbury isn't a minor,  isn't a student at SAB,  and isn't a member of NYCB.  She has no standing to make a case on their behalf.