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| Phil Goldberg |
The key question now is how USC can do right by its former students. But this predicament is pitting students and their lawyers against each other.
There are two sets of lawsuits against USC: A federal class action representing the 17,000 students who saw Tyndall, and individual state claims brought by a few hundred recent students. In October, the lawyers for the class action reached a $215 million settlement with the university. They explained that the settlement is designed to allow "victims a safe process in which to come forward, where they have control over how much they want to engage in the process and what they feel comfortable with."
Under the settlement, each woman who meets with a special master to report her experiences will be eligible to receive up to $250,000. Women submitting written materials can get up to $20,000. Everyone else who saw Tyndall, regardless of whether they allege harassment, can receive at least $2,500. This settlement covers all former students, regardless of how long ago they saw Tyndall.
Meggie Kwait, who went to Tyndall in 2008, expressed her gratitude that "USC is finally acknowledging the women who say they were abused by Tyndall and who have been ignored throughout the past 30 years." Elisabeth Treadway, another class plaintiff, called the settlement "an important step in holding the university accountable." She said, "To see a fair and compassionate settlement proposed has been a relief."
Their ability to get this relief, though, is now in jeopardy. The California Assembly is moving legislation that could undermine the settlement. The issue relates to time limits people have to file lawsuits. In California, adults alleging sexual assault must file lawsuits within three years of when they knew or should have known of their injuries, or 10 years from when the assault last occurred. After that, the person forfeits the right to sue. All personal injury cases have such time limits.
Former Gov. Jerry Brown, who has vetoed similar lawsuit revival bills after previous sex abuse scandals, explained that time limits facilitate the search for truth: "Even though valid and profoundly important claims are at stake, all jurisdictions have seen fit to bar actions after a lapse of years," and "evidence may be lost or disposed of, memories fade and witnesses move away or die."
Here, although most women fall outside the time period for filing claims against USC, they are still included in the settlement. This is a key hallmark of the settlement. The legislation takes another approach. It would give the 17,000 women back their right to sue individually by creating a time limit exception, in essence, only for this litigation. Reviving time-barred claims for specific lawsuits is highly unusual, and has long been viewed as unsound policy and, in some states, unconstitutional.
The added dilemma here is that if this legislation is enacted and people opt out of the settlement to bring their own cases, the settlement will fall apart. The parties have agreed that there must be a critical mass of plaintiffs in the settlement to make it work. The victims' lawyers have explained that many of the women have no interest in suing individually because the lawsuits would be time-consuming and involve discovery and testimony over highly personal issues. The settlement, therefore, is their best chance at getting some measure of justice.
Adding to the drama is that lawyers representing individual students have opposed the settlement and support the legislation, but some of their plaintiffs may opt for the settlement funds instead. One such lawyer ironically complained that the compensation offer came about too quickly. It is not up to these lawyers, or to state legislators, to decide what settlement is fair. It is up to the women in the class and their lawyers to arrive at a settlement they believe is right for them.
In this instance, the women in the class have also pointed to key reforms USC agreed to implement as part of the settlement, including hiring a female gynecologist, and a women's health advocate to make sure complaints of misconduct are investigated. In addition, two administrators were fired, and the university president stepped down. Also, USC still must face hundreds of personal injury cases.
The paramount goal of the American civil justice system is to help people resolve disputes. When both sides have reached a settlement, forcing more litigation on them is rarely the right answer.
Phil Goldberg is a partner at Shook Hardy & Bacon LLP, and the director of the Progressive Policy Institute's Center for Civil Justice.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.