Sex Abuse Case Can Proceed against Poly Prep: Judge

By Jessica Dye
Thomson Reuters News & Insight
August 31, 2012

http://newsandinsight.thomsonreuters.com/Legal/News/2012/08_-_August/Sex_abuse_case_can_proceed_against_Poly_Prep__judge/

NEW YORK, Aug 30 (Reuters) - A lawsuit alleging an elite Brooklyn prep school covered up decades of sexual abuse by a former football coach can proceed, a federal judge said in a ruling that plaintiffs hailed as a major victory in the closely watched case.

The lawsuit was brought against Poly Prep Country Day School by 10 former students and two men who, while still underage, attended the school's summer camp. The group, which includes named plaintifff Philip Culhane, a partner at Simpson Thacher & Bartlett in Hong Kong, claimed they had been abused by Philip Foglietta, who was a football coach at Poly Prep from 1966 until 1991. No criminal charges were ever brought against Foglietta, who died in 1998.

The plaintiffs said Poly Prep and several former and current administrators and directors swept reports of Foglietta's abuse under the rug for years to protect the school's reputation. The school denied that it covered up allegations of abuse.

U.S. District Judge Frederic Block allowed Title IX claims and state-law claims for negligent retention or supervision and breach of fiduciary duty to move forward, despite the school's argument that these claims were barred by the statute of limitations.

"The scheme alleged is more than just a string of isolated statements," Block wrote. "Rather, it is a decades-long attempt to conceal the school's knowledge of Foglietta's despicable conduct."

The judge dismissed claims brought under the Racketeer Influenced and Corrupt Organizations Act for damages flowing from years of alleged abuse, including medical care and diminished educational and employment opportunities. But he let stand RICO claims brought against current and former administrators by two plaintiffs, including Culhane, who said they would not have made donations to the school if they had known about the alleged cover-up.

The financial contributions "are precisely the sort of injury for which RICO was designed to remedy," Block wrote.

'SEVERAL HURDLES'

The next step in the case is an evidentiary hearing on whether the school concealed critical knowledge of the alleged abuse during the statute of limitations period. Each plaintiff was a minor at the time of the alleged abuse, so under New York law they would each have three years from the time they turn 18 to file the negligence claims, according to the decision.

If Block finds the school knew about and concealed abuse allegations during the statute of limitations period, the school would be precluded from arguing that those claims are time-barred.

The judge noted that the plaintiffs' estoppel claims "face several hurdles."

"Each plaintiff must show that the statement about Foglietta's lily-white reputation were false and made with knowledge of their falsity," Block wrote.

It appears to be the first time a federal court has allowed civil racketeering claims to go forward in a sex abuse case, according to lawyers for the plaintiffs.

"We think it's a major victory," said Kevin Mulhearn, a lawyer and Poly Prep alum who has spearheaded the case.

Culhane said in an email the decision was a "very satisfying moment" for the plaintiffs.

In a statement, a Poly Prep spokesman said the school believes the remaining claims will be dismissed following the hearing. However, he said, the school is still actively pursuing a settlement and remains hopeful that one will be reached to avoid further litigation.

Lawyers for the individual defendants did not immediately return requests for comment.

The case is Zimmerman et al v. Poly Prep Country Day School et al, U.S. District Court for the Eastern District of New York, No. 09-4586.

For the plaintiffs: Kevin Mulhearn; Edward Flanders, Kimberly Buffington and John Fedun of Pillsbury Winthrop Shaw Pittman.

For Poly Prep: Jeffrey Kohn, Howard Heiss, Shiva Eftekhari and James Miller of O'Melveny & Myers.

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