Category: class action lawsuits

Part Four in a multi-part series ~ Previous post

The enemy of sex abuse and cover-up is the light of truth: Statute of Limitation Reform.

Why? Because civil justice—properly executed—demands that such behavior be uncovered and made public. Predators AND the institutional cover-up that enables predators to flourish are EXPOSED. Law enforcement can put bad guys behind bars.

If we only expose the predators, but don’t expose the institutional cover-up that enables such predators in institutions such as the Catholic Church—the predatory system continues to flourish. The Catholic Church/Boy Scouts/Michigan State, etc., continue unabated.

New predators will “fill the gap” left by predators put in jail or exposed individually if systems of cover-up are allowed to remain in place. (Just ‘plug in the new guy’ and it’s business as usual)

The enemies of Statute of Limitation Reform are Class Action Lawsuits and IRCPs. These are what I call “One-way information superhighways.”

Why? Because victims of child sexual abuse have to turn over all of their information. Wrongdoers turn over little to nothing in return.

IRCPs are Independent Reconciliation and Compensation Programs. The Catholic Church has peddled these in New York and now in Pennsylvania. While they are the only option for many survivors (and we support any survivor who decides to use these programs), we have seen how the church is using them to collect tons of information and surrender very little.

I go into more detail here about the IRCPs.

IRCPs and Names

The IRCPs are full of hurdles. Every diocese is different. They change the rules as they go. Some allow victims of deacons to apply. Some don’t. None allow victims of religious order priests to apply … for the time being. The majority of survivors go it alone, but the survivors who hire an attorney have a higher acceptance rate.

No documents are released as a part of the program.

There is, however, a silver lining: In the IRCPs, if a survivor’s case is deemed credible, the survivor has the option of going public with the name of the predator.

Unrepresented survivors, on a whole, aren’t likely to stand on a street corner and have a press conference. But for those who hire an attorney and expose a priest who had never been “outed‘ before, this is big news.

When names are released, more survivors are empowered to come forward. Witnesses start talking.

At least it’s something. It’s not ideal. But it’s something.

Class Actions and Predator Names: The Big Unknown

In a class action, when a law firm is a “one-stop clearinghouse” for clergy sex abuse cases, how will there ever be due diligence to make sure that every case get the attention it deserves? Will there be enough time and manpower to get the documents on every case to expose every predator and every cover-up?

Oh wait. That’s not the point of the class action.

Remember what the Pennsylvania Grand Jury said: It happens EVERYWHERE. No class action is going to tell us what the PA grand jury did. Or what we learned in Minnesota, Los Angeles, Orange County, Hawaii, or Delaware. Only Statute of Limitation Reform will do that.

Wait! Weren’t the Big Tobacco Lawsuits Class Actions?

No. That was a mass tort settlement between the attorneys general of 46 states and the four major tobacco companies. Before then, there were individual cases where smokers had sued, but they were not successful. It’s a fascinating legal story, if you want a long read.

Who are the attorneys representing the Class Action?

I don’t know them personally or professionally. But I know this: their firms have not litigated a single sex abuse case against the Catholic Church. Why? It would have been business suicide. The partners and their clients would have revolted.

After the Pennsylvania Grand Jury Report, it was finally “cool” to go against the Catholic Church. Class Action was the easiest way to “scoop up” as many victims as possible for the biggest payout.

What should survivors do to learn more?

Talk to an attorney who has experience handling child sex abuse and institutional sexual abuse and cover-up cases. 

Where should you look? The National Crime Victims Bar Association has a referral service, where they will help survivors find a selection of attorneys with experience helping survivors of child sexual abuse and cover-up. Good attorneys will never charge you to talk, ask questions, and find the best options for you.

Ask them to look at the contract. Will you be surrendering your rights to use the civil courts if you sign up for the class action? Are you required legally to use these attorneys for any civil action? What are the chances of Statute of Limitation Reform in your state? (Don’t discount it – there have been big changes in California and NY).

If at the end of the class action, four bishops are slapped with fines and 300 child sex predators and those who covered up for them remain AT LARGE because their victims intentionally or unintentionally signed away their rights, was it worth it?

I don’t believe so.

 

~Part three in a multi-part series~previous post

Settlement Class Actions Lawsuits are BAD for victims, BAD for justice, and a PUBLIC SAFETY HAZARD.

And the opt-out? It’s every bishop’s dream.

I talked about the opt-out a little in my last post. But in this post, I will talk about why settlement class action lawsuits in sex abuse cases are the enemy of SOL reform. The main reason (among many)? The evil opt-out.

What is the opt-out? It is an artificial deadline more pernicious than old statutes of limitations. When a class action is certified (that is, a judge says it’s cool to move forward), s/he will set an opt-out date. Usually six months after the certification (to allow for advertising), the opt-out date is the LAST day that a survivor can say in writing that they DO NOT want to be a part of the class.

Don’t know about the class? Don’t follow the news? Lose the postcard? Notices are sent to the wrong address? You were on vacation? Congratulations! You lose. You’re a member.

So now you’re stuck. What does this mean in a sex abuse case? Remember, this isn’t about gym memberships. This is about RAPE.

A story of an opt-out

Let’s get hypothetical.

Victim A was abused in the Diocese of Altoona-Johnstown. He a voluntary member of the class.

The class action lawsuit is certified by the court. The deadline to opt-out comes and goes.

Victim B was also abused in the Diocese of Altoona-Johnstown. She is 45. She recently disclosed to her husband. She lives in Oregon and has not been following the news. She has just started therapy and her therapist has reported her rapes to law enforcement in Pennsylvania (since she is a mandatory reporter). The therapist has also suggested Victim B talk to a lawyer, since the priest who raped her is still in ministry. The police say there is nothing they can do to pursue a criminal investigation.

Then, the state legislature in Pennsylvania finally passes SOL reform, including a civil window for victims. Victim B, who is now following what is happening in her home state, is disgusted to learn that the man who raped her is still working with children. She calls and reports him to the reporting line at the diocese, but feels that her case isn’t taken seriously. She also calls the attorney general’s office.

Finally, out of options, she calls a lawyer. “I don’t care about money. I have to get that man out of his job and away from kids,” she tells the attorney. “I don’t want what happened to me to happen to other girls.”

Victim B is one of the first cases filed under the new civil window, which allows victims to come forward and expose predators, no matter when the abuse occurred.

At the first hearing for her case, which is coordinated with other cases, the Catholic Church’s lawyers offer the judge a compromise.

“Why should we clog up two court systems?” the church lawyer tells the judge. “We already have a case in the federal court system which, even plaintiff’s counsel has said, is a ‘one stop national clearing house to resolve all cases of abuse?’ Why are we wasting this court’s time?”

“Are these plaintiffs members of that class?” the judge asks.

“Well, I do not see Victim B’s name on the opt-out list. So yes, she is,” he says.

“Fine,” the judge says. “Victim B and others who did not opt out are moved to the federal court.”

Victim B? Well, you tell me? Will she get her day in court? No. No documents. Most likely no ability to stand up and say, in a court, that Fr. X abused her. Instead, she is given a number and sent to the clearinghouse.

And Fr. X remains in ministry.

What about the people who covered up for Fr. X? You know, the folks who knew he abused kids, sent him to treatment, lied to parents, etc? They are off the hook, too.

Will this definitely happen? I don’t know. Do we know that this is going to be the big argument to kill SOL reform in NY, PA, and every other state working expose sex predators? YES.

And if SOL reform passes, we know that anyone stuck in the class runs a huge risk of losing their day in court.

What about the Corporation Sole?

The class action lawsuit names the US Conference of Catholic Bishops, whose members include current and former bishops.

Let’s say the class is certified and you are Joelle Casteix and want to use the civil courts to expose your predator, a lay choir teacher, whom you know molested you and other girls. You have met the burden of proof to go to civil court, but you don’t have the “smoking gun” evidence. That “smoking gun” evidence includes the predator’s signed confession, the cover-up documents from the school and the diocese, and proof that he molested other girls.

Those documents can ONLY be obtained in the process of a civil lawsuit.

When you go court, lawyers for the Diocese of Orange say, “Well, Ms. Casteix is actually suing the bishop, since the legal name of the diocese is ‘The Roman Catholic Bishop of Orange, A Corporation Sole.’ We believe this case should be moved to the federal class action since it’s against the bishops and it’s the ‘clearinghouse’ for such cases.”

The judge says yes (it’s California, the courthouses are jammed, and the judge is Catholic). Joelle gets in the back of the line of the class and never gets access to her documents.

Would this also apply to “The Roman Catholic Bishop of Reno and his Successors, a Corporation Sole?” Or the Dioceses of Fresno, Chicago, Helena, Portland (ME), Oakland, Spokane, Sacramento, or Santa Rosa, who also are incorporated as “The Roman Catholic Bishop of X, a Corporation Sole?”

What bishop wouldn’t love a class action?

It makes you wonder … are they part of this deal?

Coming up in the next post: IRCPs vs Settlement Class Action Lawsuits

 

~Part one in a multi-part series~

Class Actions: BAD for Victims. BAD for Justice. BAD for Transparency

Class action lawsuits are a bishop’s dream and a victim’s nightmare. Let me explain:

Earlier this week, news reports discussed a federal class action lawsuit filed on Tuesday against the Vatican and the US Conference of Catholic Bishops.

(This class action lawsuit is not to be confused with this civil public nuisance lawsuit against the US Conference of Catholic Bishops, also announced this week. It is NOT a class action. The civil public nuisance is a case filed by six individuals. Confusing, I know.)

What are class actions for?

Class actions, in a nutshell, are used when a group of people (the “class”) suffers the same or similar injury and damages can be standardized.

Let’s look at some typical examples:

• Airlines deliberately overcharge thousands of people for airfares.
• Five or six companies who manufacture denim jeans collude and hike the price of jeans so that all of the buyers of those jeans suffer the same damage.
• A national gym chain overcharges people on their annual dues
• A credit reporting company is hacked and the SSN’s and birth dates of millions is breached (leaving these consumers vulnerable to identity theft forever). The company “neglects” to inform consumers for months

The damage? Consumers are overpriced x dollars or x percent or millions of people are vulnerable to identity theft and are left in the dark about the risk for months. Then, a bunch of people get together and say, “Hey, we wuz robbed!” They get an attorney, form a class and file a class action lawsuit.

That’s when you (as a member of the “class”) get the formal letter in the mail that says “If you do nothing, you will be considered a member of this class and will receive a settlement.”

If you decide to do something different, that is called an “opt-out.” In general terms, if you opt-out, you maintain the right to pursue legal action at a later date. Do most people read the fine print of those emails or letters? No.

Then about twelve months later, you get a check for $3.45 or a coupon for 50% off a one-way airfare in the continental US.

Who makes the big money? The attorneys. While a large portion of the money is divided among the class, the huge chunk is given to the attorneys. Members of the class get pennies on the dollar. It’s how the math works.

Which leads us to the next question:

Why do settlement class action lawsuits not work for sex abuse victims?

There are many answers. But we will address two in this blog post:

1) Sex abuse is a personal injury in the legal sense (with focus on the PERSONAL). Every victim’s case is different and can bring forward new and unique evidence.

The six men who are the lead plaintiffs of the class have very different cases. They were abused in different states and in different dioceses. At least one was abused by an order priest. Some have received court settlements. Others have received out-of-court settlements. At least one is in a state that is currently fighting for statute of limitation reform and has never been able to file a lawsuit and be heard in court. This class action may not allow him to file a suit when the time comes (we will address that in part 3).

My own case is very different from the six men who are the lead plaintiffs in the class. I was abused by a lay person at a Catholic school and my case was covered up by the system. I am a woman. In fact, most of the victims I am talking to these days are women—women who feel silence by the media and the church’s focus on the male victims.

Women’s experiences are all very different (as are their outcomes/damages—pregnancies, abortions, children, shame because of our gender, etc.) from the men. The fact that there are no women as lead plaintiffs is a whole other issue, but let’s just focus for now on the difference in experience.

But here is one thing we can agree upon: the damage and the injury when it comes to child sexual abuse are far different than being overcharged for an airline ticket or being cheated on your gym membership.

2) Every victim deserves to be heard

The beauty of our civil justice system is that it allows for the plaintiff (the sex abuse victim) to be heard. This is why Statute of Limitation (SOL) Reform is so important. When victims are allowed access to the civil courts, they do many things:

• Expose their predators in court and protect children and communities
• Gain access to valuable evidence regarding the person who assaulted them, the people who covered up for that predator, and can then turn that information over to law enforcement (including attorneys general, grand juries, cops, district attorneys, etc.)
• Rebalance power and put predators on notice: they will be reported and will be exposed.

Class action lawsuits do none of these things. Instead:

• When someone is a member of the class, they are a forced to be member unless they “opt out”—even if that victim was not ready to come forward
• There is most likely no discovery on individual cases in a class action
• Individual names of predators and evidence in individual cases are most likely not exposed in a class action.
• A victim has no individual voice if they stuck in the class (they didn’t know to opt out)
• Individual child rapists and those who cover up for them are most likely not held accountable or exposed in a class action.

“But Joelle,” you say. “This is about RICO. You aren’t looking at the big picture.”

Oh, no. I see the big picture. It’s not class action.

The big picture has many moving parts. It’s SOL reform. Independent law enforcement investigations (attorneys general, grand juries, district attorneys, police). Rebalancing power. Exposing predators. Big data.

So, what should survivors do?

Talk to an attorney (one who is NOT representing the class).

My opinion? Don’t join. If you are already a member, talk to an attorney. See if the class action may disqualify you or others from bringing lawsuits in state court in the future. Or, if those cases are brought to state court, is there a chance (if the class is certified) that good individual child sex abuse civil cases could get sucked into the class against the will of the victim who fought to get his or her day in court?

Remember—SOL reform allows victims to come forward when they are ready, gives each victim a voice, and exposes predators. Class actions … well … don’t do any of those things. And don’t let individual victims decide for themselves.

That’s just like the bishops like it.

Think my analysis is all bunk? Don’t take my word for it. Here is what Mitchell A. Toups, one of the lead attorneys in the class-action case told the Washington Post: (emphasis mine)

Toups said the class-action suit could serve as a one-stop national clearinghouse to resolve all cases of abuse, rather than through a series of local suits. The suit estimates the proposed class may consist of over 5,000 members, whose names are already known to the church. In addition to financial damages, the suit seeks a declaratory judgment that the church must discipline and report known offenders; institute policies of transparency, to include publishing the names of all offenders; and create protocols to prevent or effectively handle future episodes of abuse.

Uh … WHAT?! One-stop national clearinghouse? I’m sorry, but no “one-stop national clearinghouse” is going to expose decades of child rape and cover-up. Would such a “clearinghouse” have exposed the confession that my rapist signed? Or the cover-up document trail that allowed him to get new teaching jobs?

No.

Would a “one-stop clearing house” treat me with the dignity and respect I deserve as a victim of a horrific sex crime?

No.

Would a “one-stop clearing house” expose what we learned in Los Angeles, Joliet, Gallup, Fairbanks, or the dozens of other dioceses in states that have or had good laws?

I do not know Mr. Toups. But his remark above shows the same lack of compassion I have heard from every bishop when it comes to sexual abuse. And it scares me to the core.

Coming up in the next post: Lessons from Covington

Other posts will discuss the RICO argument, and how class actions lock the courthouse doors for many victims, the illusion of accountability, and how class actions benefit the bishops far more than the victims.