CBS paid $9.5M to settle actress’s sexual harassment claim after company lawyer’s strategy backfired

In-House Counsel

CBS paid $9.5 million to settle a sexual harassment claim by Bull actress Eliza Dushku after a network lawyer released outtakes from the show in the mistaken belief that film of her cursing on the set would help the company.

The outtakes were a “gold mine” for Dushku because they captured some of the harassment, according to a draft investigation report obtained by the New York Times.

The draft report was written by Covington & Burling and Debevoise & Plimpton, law firms hired to investigate sexual misconduct allegations against the network’s then-CEO, Leslie Moonves. The findings reportedly say CBS would be justified in denying $120 million in severance pay to Moonves, according to another New York Times story.

The lawyer who released the Bull outtakes was Mark Engstrom, the chief compliance officer at CBS. The report praised Engstrom as a “smart and very capable lawyer” but said the company’s failure to recognize the harassment documented on tape was evidence of a bigger problem.

The settlement was confidential, but CBS provided confirmation in a statement to the New York Times.

Dushku had been hired to play a criminal defense lawyer in three episodes of Bull, and there were plans to give her a full-time position, according to the New York Times story. But she was written off the show after confronting its star, Michael Weatherly, about several comments that made her uncomfortable.

The show is loosely based on Dr. Phil McGraw, who worked as a trial consultant before he landed his own TV show. Weatherly is cast as the trial consultant, who is also a flirt. According to interview notes for the report, Weatherly once referred to Dushku as “Legs,” joked that he would spank her, and joked that she wanted a threesome when she held up three fingers as part of a scene.

Weatherly told the Times that the threesome comment was an ad-lib. He also acknowledged changing a line in which he was supposed to say, “Step into my windowless van,” by saying he would take Dushku to his “rape van.” Weatherly said he had intended his comment as a joke because he found the line distasteful.

Weatherly said in a statement that he was mortified to learn that he had offended Dushku, and he now understands his statements weren’t funny and weren’t appropriate.

Law.com, the Wall Street Journal and Vanity Fair have a different take on the leaked report. The issue is whether the leak has compromised the expectation of secrecy for employees who cooperated in the investigation.

Some directors at CBS reportedly fear the leak could lead to more legal exposure for CBS, according to the Wall Street Journal.

The law firms released a statement to Law.com in response to its query. “Covington and Debevoise take this matter very seriously and are working to determine the facts,” the statement said.


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Atlanta’s John Marshall placed on probation for noncompliance with program, admissions standards

Law Schools

Atlanta’s John Marshall Law School has been placed on probation by the council of the ABA’s Section of Legal Education and Admissions to the Bar as of Dec. 13.

According to the probation notice posted online, the law school is out of compliance with Standards 301(a) and 309(b), which deal with legal education programs, and various conditions for Standard 501, which requires that accredited law schools admit candidates who appear capable of completing law school and being admitted to practice law.

“Atlanta’s John Marshall Law School is proud of its heritage of providing traditional and nontraditional students access to legal education. Meeting this mission does not come without challenges. The law school is committed to working with the American Bar Association to continue producing high-quality lawyers who ensure all communities have access to legal services,” according to a statement from Malcolm Morris, the law school’s dean, in an email to the ABA Journal.

The probation decision follows the council in October 2017 giving public notice to the law school for not being in compliance with the program and admissions standards. Also, the law school closed its branch campus Savannah Law School this past spring.

A reliable plan from Atlanta’s John Marshall is due to the section by Feb. 1, 2019, according to the probation notice. It also directs the law school to provide the section with admissions data and methodology for the fall 2019 class by Aug. 15, 2019. A fact finder will visit the law school to review the information.

According to the law school’s Standard 509 Information Report for 2018, it has a total of 435 students. Its median LSAT is 149, and its 25th percentile LSAT is 147. In 2017, the law school had a total of 462 students, a median LSAT of 146, and a 25th percentile LSAT of 144.


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Law school enrollment is up, according to new ABA data

Law Schools

Stacks of books and a graduation cap

Image from Shutterstock.com

In the past year, much as been said about a “Trump bump” for law schools, referencing an idea that more people are interested in law school since Donald Trump was elected president. Some support for the theory may be found in ABA data released Friday.

There’s been a 2.9 percent increase of first-year students at ABA-accredited schools between 2017 and 2018 and a 1.2 percent increase in law students overall. A greater percentage increase was in non-JD enrollment, which includes LLMs, masters and certificate programs; there was an 8.2 percent increase in those programs.

The data released by the ABA comes from Standard 509 Information Reports, named after Standard 509, which requires reports from accredited law schools to be collected by the ABA’s Section of Legal Education and Admissions to the Bar. Besides class size information, 509 Reports include data about law schools’ LSAT and undergraduate GPA scores, tuition costs and financial aid. The 509 Reports can be found on the section’s required disclosure page, which also lists employment and bar passage outcomes.

Enrollment for the fall 2018 term was 111,561; 110,176 were enrolled for 2017, according to an overview from the ABA’s legal ed section. There were 18,523 students enrolled in non-JD programs in 2018, compared to 17,117 in 2017.

For 2018, the law schools reported a total of 38,390 1Ls, compared to 37,320 in 2017. Of the 203 ABA-accredited schools, 122 saw 1L class sizes that either remained level from 2017 or increased in size.

Among the law schools with some of the largest first-year classes are Harvard Law School, which listed 566 first-year students on its 509 Report. Washington, D.C.’s Georgetown University Law Center and George Washington University Law School, listed 581 and 564 first-year students in their 509 reports, respectively.

And Western Michigan University Thomas M. Cooley Law School lists a total of 541 first-year students on its 509 Report for 2018. Following a 2017 noncompliance finding regarding admissions for Cooley Law in 2017—and the law school suing the ABA’s Section of Legal Education and Admissions to the Bar regarding the finding—Cooley Law was found to be in the compliance in March. The parties filed a dismissal stipulation in October, which was granted by the court.

Some schools with the smallest first-year classes are Ohio Northern University Pettit College of Law, which according to its 509 Report has a total of 51 first-year students, and Virginia’s Appalachian School of Law, which lists 50 first-year students. Appalachian received notice in 2017 that it was out of compliance with various standards regarding programming and admissions standards. Thomas Jefferson School of Law—which was placed on probation by the ABA in November 2017—lists 59 1Ls on its 509 Report.


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Judge retires after appeals court removes her from sex offender cases, cites animus toward PD office

Judiciary

Photo illustration by Sara Wadford/Shutterstock.

A Pennsylvania judge has announced her retirement after a state appeals court removed her from two sex offender cases and said she had shown “personal animus” toward the public defender’s office.

Judge Donna Jo McDaniel, 72, of Allegheny County will retire at the end of January after 33 years on the bench, the Pittsburgh Post-Gazette reports.

In her letter announcing her retirement, McDaniel said she was honored to have served as the county’s first female president judge and as administrative judge in the criminal division. Her most proud accomplishment, the letter said, was her role establishing specialty courts for domestic violence and sex offenders.

“I have strived to lead my courtroom in a judicial style that empowers victims of domestic and sexual abuse, while maintaining the rights of the accused,” she wrote.

But the appellate-level Superior Court of Pennsylvania had raised questions about McDaniel’s long sentences in some sex offender cases.

In November, the appeals court said McDaniel “continually refuses” to follow sentencing mandates and, in the case before the court, had made “gratuitous statements” and sarcastic statements about the defense lawyer. The court said McDaniel had “demonstrated bias and personal animus” toward the lawyer and the public defender’s office.

The appeals court removed McDaniel from another case this week, the Post-Gazette reported on Tuesday. The court had twice ordered McDaniel to resentence the defendant for sentencing errors and concluded after the defendant’s third sentencing that a new judge should impose a fourth sentence.

Both cases involved alleged sexual assaults of children.


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Kentucky governor criticizes ‘activist judges’ after state supreme court overturns pension law

Judiciary

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A sewage treatment bill that morphed into legislation modifying state pensions didn’t comply with the Kentucky Constitution’s requirement for three readings of a bill, the state supreme court has ruled.

The unanimous decision on Thursday by the Kentucky Supreme Court overturned the law without considering the constitutionality of particular provisions. Publications covering the ruling include the Louisville Courier Journal (in stories here and here), the Lexington Herald Leader and NPR.

The law had eliminated the traditional defined benefit pension plan for newly hired teachers and other government workers and instead placed them into a savings plan that resembled a 401(k). It also reduced cost-of-living adjustments for retired public employees and limited the extent that unused sick leave credits could be used to enhance retirement benefits.

The sewage bill was converted to a pension bill on the 57th day of a 60-day legislation session and then voted on in a matter of hours, according to the Herald Leader. Passage of the bill led to widespread protests by teachers last spring. Democratic Attorney General Andy Beshear had challenged the law.

Republican Gov. Matt Bevin criticized the ruling in a statement on Thursday, calling it “an unprecedented power grab by activist judges,” the Louisville Courier Journal reported in a separate story. He said the pension system poses a financial threat to the state, and it has to be reformed.

“It’s a sad day for the rule of law,” Bevin said in a press conference. His intent, he said, was to save the pension system. “It’s broken, it’s done, it’s gone,” he said.

Kentucky Senate Majority Leader Damon Thayer, a Republican, told the Herald Leader that too many Kentucky judges are “liberal activists,” and courts have to be reined in. He said he will be looking at judicial reform, and that might include changes to judicial budgets and the way judges are chosen. Judges are currently elected and appear on the ballot without a party designation.


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Trump administration seeking to deport Vietnam War refugees

Immigration Law

Donald Trump

President Donald Trump. Shutterstock.

More than 40 years after the Vietnam War ended, the Trump administration is preparing an effort to deport refugees from that war who ended up in the United States.

The effort was first reported by the Atlantic, which says the plan stems from the administration’s recent efforts to reinterpret a 2008 agreement between the Vietnamese and U.S. governments. That agreement says Vietnam War refugees who arrived in the United States after 1975 but before July 12, 1995—the day the two nations re-established diplomatic relations—are not deportable.

In 2017, the Trump administration reinterpreted that agreement to exclude Vietnamese refugees who have been convicted of crimes—about 7,800 of the 8,600 Vietnamese nationals the administration considered deportable, according to a Reuters article from April. That move contributed to the departure of U.S. ambassador to Vietnam Ted Osius in November of 2017. Hanoi has objected, but Osius told Reuters in April that the Trump administration had threatened diplomatic and trade repercussions if it didn’t fall into line.

Public interest organization Asian Americans Advancing Justice sued the administration over the policy, and a filing in that case said the government was backing off, the New York Times reported in November. Department of Homeland Security spokesperson Katie Waldman confirmed at that time that they weren’t pursuing deportations, although ICE continued to argue that it had the right to deport those people.

Now, the Atlantic says, the deportations are back on the table. Spokesman James Thrower of the U.S. Embassy in Hanoi told the Atlantic that the United States believes it has the right to deport all Vietnamese nationals in the U.S. who have been convicted of crimes or are undocumented. Thrower said that the agreement laid out procedures for deporting post-1995 immigrants, and while the agreement said those procedures didn’t apply to pre-1995 immigrants, it does not expressly preclude deporting those people.

The 2008 treaty is automatically renewed every three years unless one party opts out, the Atlantic notes. It is set to expire again in January. Advocacy group the Southeast Asia Resource Center told the Atlantic that State Department officials have met with Vietnamese embassy representatives to discuss changing the agreement.

In addition to hurting relations between the two countries, Osius said in April, the deportations could threaten the safety of people who supported South Vietnam, which lost the war despite U.S. backing.

“There was resistance on the Vietnamese side because these folks would make trouble,” he said. “They’d be worried about them being destabilizing actors in this country.”

The move is already getting pushback. A separate Atlantic article notes that 22 House Democrats have signed a letter expressing “concern” about the Trump administration’s about-face. Phi Nguyen of Asian Americans Advancing Justice told the magazine he’d received numerous emails from worried Vietnamese Americans, and AAAJ has joined numerous organizations and lawmakers to formally call on the administration to stop the deportations.

AAAJ estimates that about 8,500 people could be affected, all of whom have lived in the United States between 23 and 43 years. An order in the organization’s proposed class-action lawsuit describes seven named plaintiffs, most of whom left Vietnam as children and whose immediate families are U.S. citizens or lawful permanent residents. Those plaintiffs were convicted of drug charges, driving without a license, check fraud, vandalism, simple assault and battery, robbery and burglary.


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