Penn State AD and Sandusky Charged

Marciano490

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Not sure, but I would have thought if the feds get involved they will be very aggressive in trying to get things like SI off the table.
If the feds get involved, it will be on the criminal side. I'm not sure how that would affect SI analysis as a bar to civil liability.
 

mauf

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Sovereign immunity varies widely from state to state. A university the size of PSU must get sued with some regularity, so it's not a question of having a good lawyer -- PSU's legal status is almost certainly a question with a settled answer. I just wasn't able to find that answer on Google in under five minutes.

No idea what kind of insurance policies PSU might have, or what the exclusions might be. Gross negligence is typically carved out of corporate D&O policies, because the law generally doesn't allow corporations to indemnify directors and officers for gross negligence. I don't think gross negligence applies here, though. It's possible (though not certain) that PSU has insurance that would cover intentional or reckless acts by its employees.

In any event, a plaintiff would have to prove causation*, and that's where I think PSU has better defenses than a lot of defendants in abuse cases.


*-This might not be true for claims arising before Sandusky's retirement. Statutes of limitations for claims involving torts against minors generally don't start to run until the victim reaches age 18, so it's conceivable that some of those claims are still viable, but they'll almost certainly represent a minority of the total potential claims.
 

Old Fart Tree

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Everybody - EVERYBODY - here is being told to say as little as possible, and I get it, but it kind of sucks. "I'm not going to give an opinion" is code for "I've been told to admit no wrongdoing even though we fired two pretty high-ranking people." It's hard to watch.
 

Kremlin Watcher

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If the feds get involved, it will be on the criminal side. I'm not sure how that would affect SI analysis as a bar to civil liability.
Does SI operate for both civil and criminal law? Because if the feds do get involved and are successful in getting past the SI issue, wouldn't that make it moot for civil cases?
 

J.McG

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This guy is saying nothing. Why even have the press conference?

Says he has not heard Madden report. Will neither confirm nor deny.
 

J.McG

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Wow, this guy is laughing as he's lecturing everyone on how to conduct a proper investigation. I have no faith in the state authorities at this point.
 

Beomoose

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Somewhere, Ed Rendell is watching this PC with a glass of scotch in hand and saying "fucking term limits" to himself over and over.
 

In Vino Vinatieri

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NESN is now linked on drudgereport both as the main headline under a picture of a shady Paterno and what looks to be a Sandusky mugshot below talking about Madden's rumor and his Dennis and Callahan interview.

Everybody - EVERYBODY - here is being told to say as little as possible, and I get it, but it kind of sucks. "I'm not going to give an opinion" is code for "I've been told to admit no wrongdoing even though we fired two pretty high-ranking people." It's hard to watch.
it's not just for liability from wrongdoing, there are criminal investigations going on. There are obviously a lot of people in CYA mode, but there must be quite a few people who don't want to jeopardize the investigations to make sure the people responsible for all of this are punished.
 

canderson

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Wow, this guy is laughing as he's lecturing everyone on how to conduct a proper investigation. I have no faith in the state authorities at this point.
It's ironic because investigations while he was AG were nothing but witch hunts. I had to work closely with him when he was AG, he is creepy and shady as hell.
 

Marciano490

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Does SI operate for both civil and criminal law? Because if the feds do get involved and are successful in getting past the SI issue, wouldn't that make it moot for civil cases?
I think people are asking SI to do too much here. I don't see how it would bar federal prosecution of state actors in their official capacities. The US is the superior sovereign. SI is used to preclude tort liability when a citizen sues the sovereign. Also, municipalities and towns generally don't have SI, so are we sure a school would?
 

J.McG

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I don't think they did themselves any favors with that press conference. Left with more questions than answers.
 

Kremlin Watcher

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No idea what kind of insurance policies PSU might have, or what the exclusions might be. Gross negligence is typically carved out of corporate D&O policies, because the law generally doesn't allow corporations to indemnify directors and officers for gross negligence.
Yes, this was my thought. I am a board director of a public company and our D&O policy does not protect me from liability due to negligence. To what extent does/would a liability insurance policy for a university be similar? No idea.

I don't think gross negligence applies here, though.
Why not? It seems to me that the president, the AD, the man in charge of campus security and police, and the head football coach, all presumably the equivalent of corporate officers, were grossly negligent in not ensuring that Sandusky did not commit these crimes. They had it in their power to ensure that he never set foot on campus again, and they also had it in their power to report his activities to the police and to stop him. They did not. Is that not gross negligence? It seems clear to me but obviously I am not understanding something important here.
 

Beomoose

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I don't think they did themselves any favors with that press conference. Left with more questions than answers.
That was Corbett trying to look like he was on top of things, instead it he looked like a Boob trying to grab some spotlight time.
 

Marciano490

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Yes, this was my thought. I am a board director of a public company and our D&O policy does not protect me from liability due to negligence. To what extent does/would a liability insurance policy for a university be similar? No idea.


Why not? It seems to me that the president, the AD, the man in charge of campus security and police, and the head football coach, all presumably the equivalent of corporate officers, were grossly negligent in not ensuring that Sandusky did not commit these crimes. They had it in their power to ensure that he never set foot on campus again, and they also had it in their power to report his activities to the police and to stop him. They did not. Is that not gross negligence? It seems clear to me but obviously I am not understanding something important here.
At what point did their legal duty attach though, and what was the extent of their duty? At what point were 10-year-old boys foreseeable victims of their grossly negligent behavior?
 

mabrowndog

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Here's the only thing I was able to glean from the press conference: The jobs of McQueary and Curley are absolutely still in jeopardy. He didn't say so directly, but when he was asked about those two specifically he said the investigation and deliberations are continuing, and that there are more decisions to be made. Someone asked a follow-up and he was about to finish his answer when he stopped himself and said, "Nahhh, I'm not going to get into McQueary right now" (paraphrasing).

Afterwards, ESPN legal analyst Lester Munson was asked if there was any chance the law might prevent the school from firing either guy, and he answered bluntly, "None."
 

Kremlin Watcher

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At what point did their legal duty attach though, and what was the extent of their duty? At what point were 10-year-old boys foreseeable victims of their grossly negligent behavior?
I see. So the issue may hinge on whether or not there is some kind of reasonable expectation that they should have known that Sandusky would commit rape and they could have taken action to prevent it but didn't? If that is the case, then I would have thought once McQeary told Paterno and Paterno sent it up the chain, they should have known and could have acted, but didn't. That seems to be pretty negligent.
 

Marciano490

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I see. So the issue may hinge on whether or not there is some kind of reasonable expectation that they should have known that Sandusky would commit rape and they could have taken action to prevent it but didn't? If that is the case, then I would have thought once McQeary told Paterno and Paterno sent it up the chain, they should have known and could have acted, but didn't. That seems to be pretty negligent.
There are a couple separate elements. First, you have to establish a legal duty. Not everybody is bound to prevent harm to everyone else; duty arises out of special relationships or actions taken by the defendant. Next, they'd have to show foreseeability of the harm.
 

AusTexSoxFan

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I don't believe this has been posted yet but here is the clip of Mark May from ESPN with his take. Definitely the strongest voice among all the talking heads there in Bristol.

http://espn.go.com/video/clip?id=7217029&categoryid=2378529
 

J.McG

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That was Corbett trying to look like he was on top of things, instead it he looked like a Boob trying to grab some spotlight time.
If you didn't know any better, you'd have no idea he was conducting a press conference regarding one of the largest sexual abuse scandals in recent memory. It sounded like he was even chuckling and joking with one of the local beat guys in the front row or something. Said something to the effect of "You know whaddim sayin', Hank?" multiple times with this smart-ass grin on his face.
 

Manny ActaFool

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Afterwards, ESPN legal analyst Lester Munson was asked if there was any chance the law might prevent the school from firing either guy, and he answered bluntly, "None."
That's interesting, especially re: McQueary. I've been running with the assumption that there would be even more risk exposure on that front, but he seems pretty damn sure there isn't.

Of course, any liability here PALES in comparison to the shitstorm of tort they're going to be facing for years.
 

mabrowndog

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MSM picking up on mysterious disappearance angle -- http://www.msnbc.msn...hiladelphia_pa/
What a shitty fucking article. Nothing but a lame and incomplete rehashing of other previous articles. It mentions that the laptop was found in the river without a hard drive, but fails to note that police later found the drive irreparably damaged, and that they'd found evidence on Gricar's home computer that he'd done internet searches for information on "how to wreck a hard drive" and other similar queries.

The NY Times had a piece on Gricar two days ago that DOES mention the above. Amazingly it was cited as a source in the Teresa Masterson article. Why she omitted those rather critical details is beyond me.
 

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I don't believe this has been posted yet but here is the clip of Mark May from ESPN with his take. Definitely the strongest voice among all the talking heads there in Bristol.

http://espn.go.com/video/clip?id=7217029&categoryid=2378529
Thanks for posting that, it was great.

Barry Switzer, who certainly has experience dealing with college football scandals, says there's no way someone in Tom Bradley's position wouldn't know quite a bit about what was going on.

http://newsok.com/penn-state-tragedy-barry-switzer-says-joe-paterno-had-to-go/article/3621872?custom_click=pod_headline_ou-sports
 

WayBackVazquez

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That's interesting, especially re: McQueary. I've been running with the assumption that there would be even more risk exposure on that front, but he seems pretty damn sure there isn't.
Lester Munson is a notoriously horrible legal analyst. His Barry Bonds stuff was about 95% wrong, and basically unwatchable. There may be a way for PSU to get around the PA whistleblower statute, and unless the University has already fired him before and he's availed himself of the protections of that law, the school certainly could shitcan him while the process plays itself out. But Munson's categorical statement is foolish.
 

Marciano490

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Lester Munson is a notoriously horrible legal analyst. His Barry Bonds stuff was about 95% wrong, and basically unwatchable. There may be a way for PSU to get around the PA whistleblower statute, and unless the University has already fired him before and he's availed himself of the protections of that law, the school certainly could shitcan him while the process plays itself out. But Munson's categorical statement is foolish.
I think people have the incentives wrong. The idea for PSU isn't to ultimately win in the PA Supreme Court, the idea is to avoid trial altogether. Trial is costly, and discovery will likely be grizzly. Just because they can win doesn't mean McQueary won't sue. If I had to throw out my uninformed guess as to why McQ hasn't been fired yet it'd have more to do with negotiations between him and the university, than consultations between the latter and their counsel. Remember, though, McQ must know he will literally never get another job again, which likely makes him a recalcitrant negotiating partner.
 

WayBackVazquez

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I think people have the incentives wrong. The idea for PSU isn't to ultimately win in the PA Supreme Court, the idea is to avoid trial altogether. Trial is costly, and discovery will likely be grizzly. Just because they can win doesn't mean McQueary won't sue. If I had to throw out my uninformed guess as to why McQ hasn't been fired yet it'd have more to do with negotiations between him and the university, than consultations between the latter and their counsel. Remember, though, McQ must know he will literally never get another job again, which likely makes him a recalcitrant negotiating partner.
There's no trial. It would go like this: 1) PSU fires McQueary; 2) McQueary files a complaint under the whistleblower statute; 3) there's an administrative hearing before the labor and industry department.

If the findings are that he was a whistleblower and was fired in retaliation, he gets reinstated, his attorney's fees & costs, and back pay. Pretty much done. He can appeal the administrative decision, but he's not entitled to big dollars under this law. He can try to file a run-of-the-mill wrongful termination suit, but I don't really like his chances there.

Seems likely to me that this guy has signed a short-term contract, and PSU can just not renew when it's up.
 

TheGazelle

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There's no trial. It would go like this: 1) PSU fires McQueary; 2) McQueary files a complaint under the whistleblower statute; 3) there's an administrative hearing before the labor and industry department.

If the findings are that he was a whistleblower and was fired in retaliation, he gets reinstated, his attorney's fees & costs, and back pay. Pretty much done. He can appeal the administrative decision, but he's not entitled to big dollars under this law. He can try to file a run-of-the-mill wrongful termination suit, but I don't really like his chances there.

Seems likely to me that this guy has signed a short-term contract, and PSU can just not renew when it's up.

The distinction between a trial and an administrative hearing seems fairly academic from PSU's perspective.
 

mauf

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Why not? It seems to me that the president, the AD, the man in charge of campus security and police, and the head football coach, all presumably the equivalent of corporate officers, were grossly negligent in not ensuring that Sandusky did not commit these crimes. They had it in their power to ensure that he never set foot on campus again, and they also had it in their power to report his activities to the police and to stop him. They did not. Is that not gross negligence? It seems clear to me but obviously I am not understanding something important here.
Oh yeah, they were at least grossly negligent.

I'm saying that I don't think the gross negligence standard, which is part of the so-called "business judgment rule," will have any applicability to PSU's insurance coverage. "Gross negligence" only matters in the D&O world to keep corporations from buying insurance to cover directors and officers against losses for which they could not legally indemnify them. In other words, it's not because insurers have some kind of hang-up about insuring against gross negligence.

Now, PSU's insurance may well have carve-outs that work to deny coverage in this case -- such as exclusions for willful or criminal conduct by members of the school's administration.
 

mauf

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The distinction between a trial and an administrative hearing seems fairly academic from PSU's perspective.
I think WBV's point is that the procedures for handling a whistleblower case are such that PSU wouldn't have to deal with the uncertainty of a jury verdict. If true, this suggests McQ is still on the job because the optics of firing McQ are wrong (and they probably are), rather than because of liability concerns.
 

BigPapiLumber Co.

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The distinction between a trial and an administrative hearing seems fairly academic from PSU's perspective.
I don't know about that, at least from a discovery perspective. Almost all of the details of this are going to come out in the state's/fed's investigation. Discovery won't publicly reveal anything that won't otherwise be revealed anyway.

So, yeah, I agree with your conclusion that the distinction is fairly academic, but only because neither will reveal more than the other because it's all coming out anyway.
 

Rasputin

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I think WBV's point is that the procedures for handling a whistleblower case are such that PSU wouldn't have to deal with the uncertainty of a jury verdict. If true, this suggests McQ is still on the job because the optics of firing McQ are wrong (and they probably are), rather than because of liability concerns.
They want this to go away as fast as possible. Opening yourself up to an administrative hearing is not the way to do that. The way to do that is to bring in a new head coach who replaces the entire staff down to and including the water boy.
 

TheGazelle

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I think WBV's point is that the procedures for handling a whistleblower case are such that PSU wouldn't have to deal with the uncertainty of a jury verdict. If true, this suggests McQ is still on the job because the optics of firing McQ are wrong (and they probably are), rather than because of liability concerns.

Right, but my point is that either way PSU is getting (avoidably) dragged through the mud. Whether they get dinged for a $500k verdict by a jury or a $50k award from an arbitrator is, to me, secondary to PSU having to actually go through the process.
 

natpastime162

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MSM picking up on mysterious disappearance angle -- http://www.msnbc.msn.com/id/45244328/ns/local_news-philadelphia_pa/

BTW, what if the miscreant still on staff were, long ago, a Sandusky victim? Would that make his continued presence any more explicable??
Not a single mention of the huge heroin ring busted a few months before his disappearance, or the MD prosecutor who went missing in the same fashion. Let's not go with the most likely scenario. Instead we'll all assume a huge conspiracy. Until actual evidence appears even remotely suggesting PSU's involvement in the DA disappearance, people who throw these types of things at the wall are no better than the individuals who blindly defend Paterno, McQueary, Spanier, et al. The opposite end of the defend at all costs spectrum are the individuals who suggest a witch hunt condemning anyone who stepped foot on campus.
 

J.McG

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Barry Switzer, who certainly has experience dealing with college football scandals, says there's no way someone in Tom Bradley's position wouldn't know quite a bit about what was going on.

http://newsok.com/pe...dline_ou-sports
That was some good stuff. What Switzer did now seems so trivial in context, except to Joe Paterno of course.

Ironically, it was Paterno who took aim at Switzer nearly three decades ago. He proclaimed that he wouldn't retire and "leave college football to the Jackie Sherrills and Barry Switzers of the world."
 

mabrowndog

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The way to do that is to bring in a new head coach who replaces the entire staff down to and including the water boy.
That would seem to preclude Bradley from being kept on as head coach beyond this year. Would couching a post-season dismissal of McQueary as "Bradley's decision" have any legal stance now that Bradley's already accepted the job and kept him aboard for now? Would their prior relationship on the coaching staff complicate such a posturing?

Perhaps the Trustees already know their game plan is to just replace Bradley after the season and let a new coach sweep out all the other incumbent staff -- perhaps including Bradley. But if PSU wins out, including the Big Ten championship and whatever BCS bowl they're in, it's going to be hard for PSU to announce "Bradley's not our long-term guy" with a straight face. However, if that's a viable means of getting out from under the McQueary mess, Bradley will clearly be sacrificed and they won't think twice about it.
 

dcmissle

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That would seem to preclude Bradley from being kept on as head coach beyond this year. Would couching a post-season dismissal of McQueary as "Bradley's decision" have any legal stance now that Bradley's already accepted the job and kept him aboard for now? Would their prior relationship on the coaching staff complicate such a posturing?

Perhaps the Trustees already know their game plan is to just replace Bradley after the season and let a new coach sweep out all the other incumbent staff -- perhaps including Bradley. But if PSU wins out, including the Big Ten championship and whatever BCS bowl they're in, it's going to be hard for PSU to announce "Bradley's not our long-term guy" with a straight face. However, if that's a viable means of getting out from under the McQueary mess, Bradley will clearly be sacrificed and they won't think twice about it.
Switzer's point -- a coaching staff is a family. There is no way in hell any of them didn't know at least the rough outlines of what was going on. None of them are likely to survive.
 

Cellar-Door

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That would seem to preclude Bradley from being kept on as head coach beyond this year. Would couching a post-season dismissal of McQueary as "Bradley's decision" have any legal stance now that Bradley's already accepted the job and kept him aboard for now? Would their prior relationship on the coaching staff complicate such a posturing?

Perhaps the Trustees already know their game plan is to just replace Bradley after the season and let a new coach sweep out all the other incumbent staff -- perhaps including Bradley. But if PSU wins out, including the Big Ten championship and whatever BCS bowl they're in, it's going to be hard for PSU to announce "Bradley's not our long-term guy" with a straight face. However, if that's a viable means of getting out from under the McQueary mess, Bradley will clearly be sacrificed and they won't think twice about it.
It'll be very easy, If you can fire Joe Paterno at Penn State, you can fire an interim coach no matter how the team plays in the last 4 or 5 games. They will make a new hire and talk about "restoring the dignity, integrity and honor for which PSU stands" etc etc.
 

Rasputin

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That would seem to preclude Bradley from being kept on as head coach beyond this year. Would couching a post-season dismissal of McQueary as "Bradley's decision" have any legal stance now that Bradley's already accepted the job and kept him aboard for now? Would their prior relationship on the coaching staff complicate such a posturing?

Perhaps the Trustees already know their game plan is to just replace Bradley after the season and let a new coach sweep out all the other incumbent staff -- perhaps including Bradley. But if PSU wins out, including the Big Ten championship and whatever BCS bowl they're in, it's going to be hard for PSU to announce "Bradley's not our long-term guy" with a straight face. However, if that's a viable means of getting out from under the McQueary mess, Bradley will clearly be sacrificed and they won't think twice about it.
Doing anything but replacing the entire football operation save for the lowest of grunts seems completely incomprehensible to me. In two years when a recruit's parents want to ask about the whole thing, you want every single person to be able to say "I don't know, I wasn't here then."
 

J.McG

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Not to pile further onto the PSU/DA conspiracy theory, but at least this was aired well before the current hysteria, February 2011 :

 

dcmissle

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Paterno lawyers up.
Good move, and he won't be alone.

MIAMI (AP) — A Miami jury returned a $100 million verdict Thursday against a retired Roman Catholic priest accused of sexually abusing dozens of boys over many years — an amount unlikely to ever be collected, but one a victim's attorney said sends a strong message to child predators.

"It sets a standard," said attorney Jeff Herman, who represented Andres Susana in the case against the priest, Neil Doherty. "Now we know what a jury thinks about these cases. No. 2, it sends a message that we hope will protect other children."
(emphasis added)

That's one plaintiff in one case, albeit a case against the rapist. So maybe those who declined to turn Sandusky in get a 90% discount.