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Finlay Resigns, Catazaro and Ramasar Suspended -- Update: Catazaro and Ramasar Fired

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4 hours ago, KarenAG said:

find it hard to believe SAB and NYCB have NO code of conduct.  Parents don’t blithely send their children away to school without knowing school policies and protections, etc.  I know the complaint states that, but (and I am not an attorney), I was struck by many ‘charges’ in the complaint stated as facts when they are not yet proven to be facts. I am not referring to the specific allegations with the texting and sharing but other broader statements that charge NYCB and SAB, such as stating there is no code of conduct.

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 pages 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 is 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 (juries, or, in bench trial, judges).

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.

Edited by tutu
typos, again; responding to Olga’s astute comment; fixing formatting

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18 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. 

 

I deleted most of the quote due to its length.  I just want to thank you, tutu, for your informative response. 

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2 hours ago, Olga said:

As of now, the status is allegedly. Whether and to what extent Finlay consented to Waterbury’s access could be of significane. For now, it is important not to accept the plaintiff’s statements of the facts as the actual facts. 

Of course it needs to be established in court, if it gets to court.   My synopsis, in the context of the conversation, was to counter a speculative one.  I was sloppy, and should have started it with an "Or."

Her case against Finlay is about consent in a specific situation in a specific relationship with specific impacts.  Her case against NYCB and SAB is about creating an environment in which bad behavior was tolerated and incubated, and the specific situation was one of a number of predictable results, some of the others being described in the complaint.   I still don't understand what her case is against Ramasar, Longhitano, and Catazaro, though, but she/Merson have no obligation to justify their inclusion to anyone but the court.  I don't think Merson has incentive to get on the bad side of the court and to hurt his chances of winning on behalf of his client, because people tend not to hire people who are widely known for losing. 

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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.

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Her assertions against the institutions of NYCB and SAB seem to be so weak  and lacking in merit that I would not be surprised if counsel for NYCB and SAF file  a motion to dismiss for failure to state a claim, rather than filing an answer to the complaint.

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She could well have standing to sue the institution if its policy, practice and working environment left students vulnerable to mistreatment by their professors.  It is for precisely that reason that colleges have policies governing relationships between staff and students (either banning them outright or requiring that any such relationship be declared and the staff member involved be reclused from having any say in the student's results etc.)

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5 minutes ago, On Pointe said:

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.

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/

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7 minutes ago, On Pointe said:

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. 

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. 

I haven't seen anything in the complaint discussing an EEOC-style hostile workplace claim, so 

4 minutes ago, abatt said:

Her assertions against the institutions of NYCB and SAB seem to be so weak  and lacking in merit that I would not be surprised if counsel for NYCB and SAF file  a motion to dismiss for failure to state a claim, rather than filing an answer to the complaint.

I mean, shouldn't we expect to see a 12(b)(6) motion without necessarily taking the filing thereof as a referendum on the merits? They're not exactly non-standard motions...

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20 minutes ago, aurora said:

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.

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6 minutes ago, On Pointe said:

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.

It is relevant to the hypothetical :

"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.

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32 minutes ago, tutu said:

I mean, shouldn't we expect to see a 12(b)(6) motion without necessarily taking the filing thereof as a referendum on the merits? They're not exactly non-standard motions...

I would, just as due diligence.

James Reichlen, author of "Balanchine and Kirstein's American Enterprise,"* posted this entry on his website:

Men Controlling Women’s Bodies is Nothing New at New York City Ballet. Just Ask George Balanchine.

I haven't read Kirstein's diaries, but I did read the Duberman bio, and the author describes a lot of "old school" behavior besides manners.

*Edited to add:  amazon shows the available date as November 1, 2018.  (Hardcover and Kindle).

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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.

Edited by On Pointe
Clarity

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4 minutes ago, Helene said:

I would, just as due diligence.

Any lawyer would. You see failure to state of claim motions all the time. Everybody wants to avoid the expensive and time-consuming discovery process, and a motion to dismiss for failure to state a claim is a standard tool.

ETA: @abatt has corrected to the state rule (CPLR 3211) (instead of the federal rule, 12(b)(6)), so I've updated this post accordingly.

Edited by tutu

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10 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. 

I haven't seen anything in the complaint discussing an EEOC-style hostile workplace claim, so 

I mean, shouldn't we expect to see a 12(b)(6) motion without necessarily taking the filing thereof as a referendum on the merits? They're not exactly non-standard motions...

It would be under CPLR 3211, not 12(b)(6), because this is a state court action. 

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25 minutes ago, abatt said:

It would be under CPLR 3211, not 12(b)(6), because this is a state court action. 

True. Thanks for the catch, abatt.

A motion to dismiss for failure to state a claim, whether filed under the state or federal rule, remains a pretty standard tool.

Edited by tutu

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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.

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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:

Quote

The lead investigators were Evan Krutoy and Anne Milgram. Krutoy was an Assistant District Attorney in the Manhattan District Attorney’s Office for more than twenty years, during which time he handled thousands of cases including high-profile homicide and sex crimes cases and also served as the Acting Deputy Bureau Chief of the Sex Crimes Unit. Milgram is a former New Jersey Attorney General, where she served as the state’s chief law enforcement officer. Milgram also worked as a state prosecutor in the Manhattan District Attorney’s Office and a federal prosecutor in the United States Department of Justice, where she was the Special Litigation Counsel for the prosecution of human trafficking crimes. The following individuals served as members of the Investigative Team: Jamie Gottlieb Furia, Joseph Fischetti, Rebecca Ryan, Alexander Strohmeyer, Natalie Dallavalle, Craig Dashiell, Cruz de Leon, and Angelique Loffredo.

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.

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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. 

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10 minutes ago, On Pointe said:

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.

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.

Cuban was not fully exonerated, and was called out especially in the case of Hyde.  There were two offices, and he worked primarily in a different office than the executives who purportedly were in charge.  

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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.

Edited by On Pointe
Clarity

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I'll let the lawyers weigh in on what can and cannot be demanded in discovery and what NYCB and SAB can refuse to supply.

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1 hour ago, Helene said:

James Reichlen, author of "Balanchine and Kirstein's American Enterprise,"* posted this entry on his website:

Steichen. A little over the top. He claims that Balanchine (completely is implied) destroyed Farrell's career.

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44 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 

Cuban was not fully exonerated, and was called out especially in the case of Hyde.  There were two offices, and he worked primarily in a different office than the executives who purportedly were in charge.  

Cuban suffered no consequences from the investigation.  

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4 minutes ago, Quiggin said:

Steichen. A little over the top. He claims that Balanchine (completely is implied) destroyed Farrell's career.

From a review of Farrell's autobiography:

It was true that she (Farrell) didn’t have to sleep with Balanchine to be cast in his ballets, but that didn’t mean that the person she chose to sleep with instead would be cast in his ballets. Mejia did not have a large repertory, but what he had he began losing. Finally one evening when Mejia was not given a role that he felt was his due—Symphony in C, third movement—Farrell issued an ultimatum: if Mejia didn’t dance in Symphony in C that night, they would both quit. To her utter astonishment, Balanchine took her up on it. Not only was Mejia not added to the casting sheet for Symphony in C, but Farrell, who was to have danced the second movement, was stricken from it, and as she was sitting in her dressing room preparing for the evening’s performance the wardrobe mistress, weeping, came to take her tutu away. Her resignation had been accepted.

She seems not to have believed it at first. She told The New York Times that Balanchine was being bad, and that was what the problem was: “All of a sudden he’s acting unadmirably and I can’t dance for him when he’s acting that way.”10 She also went—with Mejia—to the theater one night to use a studio to practice in. They were turned away. Eventually it dawned on her. “I was a dancer without a job, and I felt as homeless as any bag lady.”

 

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