The Legal Intelligencer Blog

NCAA Sues Corbett, Row Officers Over Penn State Fine Legislation

By Ben Present
Of the Legal Staff

The NCAA has filed a federal lawsuit against Governor Tom Corbett and the treasurer and auditor general of Pennsylvania over legislation aiming to keep the NCAA’s $60 million fine against Penn State, related to the Jerry Sandusky sex-abuse scandal, in the state of Pennsylvania.

In a 16-page complaint filed in U.S. District Court for the Middle District of Pennsylvania, the NCAA said the legislation, sponsored by state Senator Jake Corman, R-Centre, violated the takings, contracts and commerce clauses of the U.S. Constitution. The NCAA asked the court to declare Senate Bill 187 – which Corbett signed into law Wednesday – unconstitutional and for an injunction against its enforcement.

The NCAA also asked for attorney fees and costs and other relief the court deems fitting.

The lawsuit also names Mark R. Zimmer, the chairman of the Pennsylvania Commission on Crime and Delinquency, as a defendant.

Corman was not a named defendant.

Represented by Thomas W. Scott of Killian & Gephart in Harrisburg, the NCAA alleges the General Assembly has attempted to negate a valid contract between the NCAA and Penn State to “disrupt interstate commerce by attempting to legislate where private parties spend their money, and to confiscate funds intended for the victims of child sexual abuse nationwide to be used solely for the benefit of Pennsylvania residents, at the direction of Pennsylvania officials.”

Corman has already filed a lawsuit against the NCAA asking the Commonwealth Court of Pennsylvania to block the NCAA from releasing any of the fine money, which came as just part of the unprecedented sanctions the organization levied against Penn State for its handling of sex-abuse allegations against Sandusky, a former assistant football coach at the university who was last year convicted on 45 of 48 counts of sexually abusing children. Corman’s action against the NCAA is in the midst of briefing, according to the docket.

After Corman’s lawsuit, the NCAA preliminarily agreed not to dole out any of the $12 million Penn State has already put into a fund to pay the fine.

On top of the fine, the NCAA hit the university with a four-year ban on postseason play, a drop-off in scholarships and the vacating of seasons’ worth of victories for the university's storied football program.

The Senate bill, now Act 1 of 2013, requires that a higher education institution hit with a fine of more than $10 million from an outside body must establish an endowment that would ensure the funds are distributed in the state of Pennsylvania. In Penn State’s case, the money would go to Pennsylvania organizations that benefit child victims of sexual abuse.

Meanwhile, Corbett has challenged the entirety of the NCAA’s sanctions, including the fine, in a separate lawsuit against the NCAA, but the governor agreed publicly to use the money for victims of sex abuse if he and the state were to prevail.

 

McQueary Says There’s No Need to Respond Substantively to Penn State’s P.O.s

By Ben Present
Of the Legal Staff

Mike McQueary, who is suing Penn State for its handling of his allegations against convicted serial child molester Jerry Sandusky, has declined to comment substantively on the university’s preliminary objections to his lawsuit.

Penn State filed the objections to McQueary’s lawsuit last month, contesting the defamation and misrepresentation claims asserted by McQueary are not supported by Pennsylvania law while the entirety of his claims, including a whistleblower count, lacks specificity.

McQueary responded in the Centre County Court of Common Pleas with a filing docketed Friday, fighting back that Penn State did not aver any facts in its preliminary objections, but, rather, presented “interpretations or summaries” of the plaintiff’s facts.

And just in case there was an assertion of fact in the preliminary objections McQueary’s legal team may have missed, the plaintiff denied those, too. He asked the court for an “expeditious overruling” of the university’s objections and a briefing schedule for his case to proceed on.

When the university filed its objections, an attorney who specializes in employment-related claims said some of McQueary's claims were more viable than others, but that his complaint needed to be amended to be more specific.

McQueary, who was a graduate assistant when he claims he saw the school’s former defensive coordinator, Jerry Sandusky, sexually assault a young boy, is perhaps better known for his role as one of the state’s key witnesses in the prosecutions against Sandusky and three high-ranking administrators also facing charges than he is for his coaching experience at the school. He is suing the school for $4 million — his projected earnings over a 25-year career that was seemingly derailed by the scandal.

Sandusky was convicted of 45 of 48 counts of child sex abuse in June 2012 and is serving a minimum of 30 years in state prison.

A hearing on the preliminary objections has been scheduled for March 18.

McQueary has claimed in court filings that he lost his job with the university because he chose to come forward about Sandusky. He has also claimed that, by initially backing former athletic director Tim Curley and former vice president of business and finance Gary Schultz, Penn State and its former president, Graham Spanier, defamed him and painted him as a liar.

The university lodged preliminary objections last month taking a different position, arguing that McQueary did not allege per se defamation, nor did his October 2, 2012, complaint support a claim of defamation by innuendo.

“To arrive at an innuendo suggested by [McQueary] — i.e., that [McQueary] lied and committed perjury — a reader must take the statements concerning Curley and Schultz out of context and ascribe a meaning which contravenes the ordinary meaning and usage of the words set forth in the statements,” the university’s court filing said.

The statements at issue came from Spanier, who is also facing charges related to the reporting of Sandusky’s conduct, right after Schultz and Curley were first charged with failure to report child sex-abuse and perjury.

In his defamation claim, McQueary argued that two statements made by Spanier as the sex-abuse scandal was breaking in November 2011 “clearly suggest” McQueary was lying in his accounts regarding the now-notorious “shower incident.” In one of the statements, released on Penn State’s website, Spanier vowed his “unconditional support” to Schultz and Curley, to whom McQueary reported the allegations back in 2001.

At the time, Schultz and Curley told McQueary they would follow up on his allegations about Sandusky, alleged statements that are the linchpin of Count III of McQueary’s lawsuit. McQueary claimed in his complaint the administrators misrepresented their intentions to him in 2001 by telling him they would see to it that his allegations would be appropriately handled.

Instead, McQueary pled, the officials decided to “pursue a course of action that would avoid an investigation by any law enforcement investigator or other trained investigator.” In essence, the lawsuit alleged, the administrators buried McQueary’s report and the underlying incident to avoid tarnishing the school’s reputation.

Prosecutors, in a revised set of charges against Schultz, Curley and Spanier, allege the three men engaged in a “conspiracy of silence” to protect the school’s reputation.

McQueary’s attorney, Elliot A. Strokoff of Strokoff & Cowden in Harrisburg could not be reached for comment.

The university is being represented by Nancy Conrad of White & Williams in Center Valley, Pa. Conrad was not available for comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

NCAA Agrees Not to Dole Out Any Penn State Fine Money for Now

By Ben Present
Of the Legal Staff

The NCAA has agreed to not dole out any of the $12 million Penn State has paid to it as part of the unprecedented sanctions the organization levied against the school for its handling of sex-abuse allegations against Jerry Sandusky, the school’s former assistant football coach and a convicted serial child molester.

State Senator Jake Corman, R-Centre, announced the agreement following a lawsuit he filed against the NCAA earlier this month in which he asked the Commonwealth Court to block the NCAA from releasing any of Penn State’s fine money to organizations outside of Pennsylvania.

In July, the NCAA hit Penn State with a $60 million fine, a four-year ban on postseason play, a drop-off in scholarships, and the vacating of seasons worth of victories for the university's storied football program.

The NCAA has vowed to use the $60 million to help fund organizations that benefit victims of child sex-abuse. While negotiations continue, Corman announced Thursday that the NCAA agreed to not "disperse or otherwise dissipate" any of the $12 million Penn State has already paid.

"I believe the fine money, which is coming from Pennsylvania residents, should stay in Pennsylvania and benefit our organizations and children,” Corman said in a press release. “Every dollar will continue to go to worthy and valuable child-abuse prevention and educational organizations, except this way, the connection between Pennsylvania resident funds and Pennsylvania benefits will be clear."

Corman’s lawsuit is not to be confused with the federal antitrust action filed by Governor Tom Corbett on behalf of the state of Pennsylvania. Corbett alleges the NCAA violated its own bylaws in issuing what the governor called “unlawful and overreaching” sanctions against the school, which receives hundreds of millions of dollars from taxpayers each year.

Corbett is seeking the entirety of the sanctions to be dropped, though he has said the $60 million would go to organizations that help victims of abuse either way.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter@BPresentTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court ruling that “highly reckless” conduct is an affirmative defense in products liability cases. As reporter Zack Needles writes, it requires defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that attorneys may become mandated reporters of child abuse if one of the recommendations suggested by a task force created in the wake of the Jerry Sandusky and Archdiocese of Philadelphia priest sex-abuse scandals is passed into law.

Below the fold on Page 1, reporter Gina Passarella writes that a federal court refused to disqualify William Pietragallo from representing a defendant in a case in which he had previously contemplated representing the plaintiff.

In more Regional News on Page 3, Zack Needles writes that Spector Gadon & Rosen has started an energy and environmental practice group with the addition of environmental lawyer Kermit L. Rader, who will chair the group.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Julie A. Uebler writes about what employers can do to decrease the risk of employment litigation.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about planning in an uncertain planning environment as we come to the end of 2012.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the Third Circuit restating its prediction that the Restatement (Third) of Torts, not the Restatement (Second), will be adopted in Pennsylvania by the state Supreme Court. As reporter Amaris Elliott-Engel writes, some district courts have said the Restatement (Second) should apply because the high court has not affirmatively adopted the Restatement (Third).

Also above the fold on Page 1, reporter Ben Present writes that Jerry Sandusky filed post-sentence motions arguing the judge presiding over his trial denied him due process by failing to grant him several motions for a continuance before his June trial.

Below the fold on Page 1, reporter Gina Passarella writes that the state Supreme Court has ruled that the state’s Coroner’s Act does not give a county coroner the discretion to deny a request for immediate disclosure of someone’s manner of death.

In more Regional News on Page 3, a former Dechert associate’s retaliation claim has been allowed to proceed in a case alleging the firm’s “macho culture” caused his work troubles.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Family Law column on Page 5, James W. Cushing writes that substantial evidence must be used to convince the court in child abuse cases based on a recent case that profoundly changed the burden of proof to have someone listed on the ChildLine and Abuse Registry as a perpetrator of child abuse.

In a Bankruptcy Update on Page 7, Eric Scherling writes that the Third Circuit has protected post-confirmation appeals in the case of In re Philadelphia Newspapers.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Sandusky to Be Sentenced Tuesday

By Ben Present
Of the Legal Staff

Jerry Sandusky, the convicted serial child sexual abuser whose trial on a host of crimes trained the national media spotlight on the center of Pennsylvania, is scheduled to be sentenced Tuesday to an almost certain effective life sentence.

Senior Judge John M. Cleland, who was specially assigned to preside over Sandusky’s prosecution, will hand down his sentence immediately after a hearing that will determine whether the former Penn State defensive coordinator is a “sexually violent predator.”

Sandusky, who has maintained his innocence since being arrested almost a year ago, is expected to address the court after declining to testify on his own behalf at trial. Sandusky had planned to take the stand, according to court records, but his attorneys advised him against it at the eleventh hour because prosecutors indicated they would call his adopted son, Matt Sandusky, as a rebuttal witness. While the jury was out, Matt Sandusky went public with allegations that his adopted father sexually abused him.

Sandusky faces a maximum of more than 400 years in prison and it is unclear to which state prison Cleland will send the convicted rapist. His attorney, Joseph L. Amendola, has said in media reports he believes Sandusky would be shipped to a prison for nonviolent criminals.

Tuesday will be Sandusky’s first day in court since his June 22 jury conviction on 45 of 48 counts of child sex abuse. Eight victims, ranging from 18 to 28 years old, testified at the trial that Sandusky abused them when they were boys. Some alleged a single incident; others said the coach forced sexual acts on them dozens of times.

The defense maintained that all Sandusky was guilty of was bad judgment. He showered with boys, but showering is not a crime, the lawyers argued. The defense built a case around what it alleged were moneygrubbing accusers who were coached by authorities and prosecutors until they had a case.

Amendola and his co-counsel, Karl E. Rominger, have indicated Sandusky would be appealing his judgment of sentence after Cleland hands it down.

Stay tuned to The Legal for further coverage of proceedings in the Sandusky case.

 

Fresh Ink: Inside Today's Legal and Pa. Law Weekly

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is a federal judge in Pennsylvania putting a closely watched case involving the constitutionality of the Defense of Marriage Act and the survivors of a deceased Cozen O’Connor partner on the suspense docket. As reporter Gina Passarella writes, that effectively terminates the matter pending the outcome of other relevant cases.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a federal judge has imposed sanctions on lawyers for GMAC, the bank that acts as the financial-services arm of General Motors that is now called Ally Financial. The sanctions were requested by a pair of now-defunct car dealerships that had won a $4 million jury verdict in 2009 against the bank.

In more Regional News on Page 3, Gina Passarella writes that the Superior Court has denied a bus driver UIM benefits for a motor vehicle accident on the job.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Business of Law column on Page 5, Frank Michael D’Amore writes about meditation and its many benefits.

In a Real Estate Law column on Page 7, Alan Nochumson writes that the city of Philadelphia overstepped its bounds in pursuit of blight.

Today’s lead story in PLW is the Superior Court setting to begin posting unpublished memorandum opinions. As reporter Zack Needles writes, the court’s technology department is working on the matter and the goal is to start posting opinions by the end of the year or before then.

Below the fold on Page 1, reporter Ben Present writes that attorneys for Jerry Sandusky’s victims were angered by the court’s decision to release the victims’ names.

On Page 3, reporter Amaris Elliott-Engel writes that a workers’ compensation attorney has challenged the 20 percent cap on attorney fees.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers who find themselves overextended; Matthew T. Mangino’s Criminal Practice column in which he writes about reducing prison population through sentence advocacy; and Leonard Deutchman’s Cyberlaw column, in which he writes that personal devices in the workplace provide legal and technical challenges.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is a look at the job ahead of Ken Feinberg in his effort to quickly settle Penn State claims related to the Jerry Sandusky sex-abuse scandal. As reporter Ben Present writes, plaintiffs attorneys said there is no precedential guidance for a case like this, making Feinberg’s job a difficult one.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the 12 members of the jury who are scheduled to hear the capital case of the alleged North Philadelphia gang leader Kaboni Savage will serve anonymously. The jury members, however, will not be fully sequestered.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that a judge has rejected The Beasley Firm’s abuse of process suit in the fight over the estate of famed trial lawyer James E. Beasley Sr.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this month’s Public Interest page, Lynn A. Marks and Shira J. Goodman right that merit selection is the right path for Pennsylvania, while Michele Levy writes about HAP’s SOAR project responding to cuts for the disabled poor.

In the Law Technology News page, Monica Bay writes about persuading juries with effective graphics.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the judge presiding over Jerry Sandusky’s case asking the state Superior Court to dismiss an appeal by one of Sandusky’s attorneys over whether a protective order the judge slapped on the case may apply retroactively. As reporter Ben Present writes, Senior Judge John M. Cleland said his June 26 order was not a final appealable order.

Also above the fold on Page 1, reporter Gina Passarella writes that firms are clearly investing in training over entertaining when it comes to junior attorneys. Legal affiliate The American Lawyer did its Summer Associates and Midlevel Associates satisfactions surveys, and some associates said they would prefer a better emphasis on work time rather than entertainment.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the Third Circuit has ordered a new trial after a jury was shown child pornography videos, allowing the jury to be prejudiced.

In more Regional News on Page 3, Jeff Mordock of the Delaware Law Weekly writes that Connolly Bove is set to merge with Novak Druce + Quigg.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In an Asset Management column on Page 5, Mark L. Silow writes that two circuit courts have recently further defined “wages” for employment tax purposes.

In a Bankruptcy Update on Page 7, Francis J. Lawall and Erik L. Coccia write that willful stay violations are not always compensable.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Nationally Known Mediation Expert Brought on for Sandusky Settlements

By Ben Present
Of the Legal Staff

Penn State has hired Kenneth R. Feinberg, the man who ran the 9/11 victim fund and other major settlement programs, to resolve the university’s legal proceedings with the victims of convicted serial child sexual abuser and former assistant football coach Jerry Sandusky.

Several press reports surfaced Thursday quoting attorneys who confirmed that Penn State notified them Feinberg, of Feinberg Rozen, would be orchestrating the settlement talks. So far, no settlements, nor settlement discussions, have been reported by the university or the accusers’ attorneys.

Feinberg was also at the helm of the Virginia Tech shooting victim fund and the B.P. oil spill victim fund. According to an Associated Press report, the former doled out $6.5 million to more than 30 families while the latter had eclipsed $6 billion as of March.

Following Sandusky’s conviction on 45 counts of child sex abuse in June, Penn State President Rodney Erickson promised a quick and fair resolution the victims’ claims outside of court. Thursday, nearly three months later, Erickson said the assistance of Feinberg’s firm will aid that cause, which he said he hoped to complete by the end of the year.

“In retaining Feinberg Rozen LLP, with their nationally recognized expertise, we are seeking to make sure we do the right thing in terms of providing a just outcome for the victims,” Erickson said. “We hope to enable a process that will result in settlement of many of the civil cases so that the victims will not have to be drawn through legal process.”

Plaintiffs attorneys interviewed by The Legal have said the settlements could be in the ballpark of tens of millions.