By Sara Randazzo (The Am Law Daily)
August 29, 2012
Simpson Thacher & Bartlett partner Philip Culhane finds a measure of peace in a federal judge's ruling Tuesday that a prominent Brooklyn prep school can't argue that New York State's statute of limitations should automatically nullify a lawsuit in which Culhane and 11 other men claim they were sexually molested by a revered football coach school—and that school officials covered up the serial sexual abuse.
"No matter what happens from this point on, I’ve achieved one of my most important goals," Culhane says, "which is for the truth to be told."
Culhane, a private investment funds lawyer based in Simpson Thacher's Hong Kong office, first told his story to The Am Law Daily in 2010. At the time, Culhane had decided to join a lawsuit filed by several former Poly Prep Country Day School students who claimed that longtime Poly Prep football coach and physical education teacher Philip Foglietta, who left the school in 1991 and died in 1998, had sexually abused them from the 1960s through the 1980s.
The original plaintiffs in the case launched the suit in 2009 against the school, as well as its past and present administrators and board of trustees, using a creative take on the federal Racketeer Influenced and Corrupt Organizations Act to assert that the school had engaged in a years-long cover-up of the abuse by, among the things, committing mail fraud and witness tampering.
The 12 plaintiffs who ultimately joined the suit were either students at the elite private school or attended a summer camp there. Many haven't had the same professional success as Culhane and have "suffered from the lingering and devastating consequence of that abuse for decades," including grappling with alcohol and drug problems, according to court filings. Culhane says his own abuse, which he claims occurred while he was in the fifth and sixth grades, left him with a difficult on-and-off battle with depression.
In the decision issued Tuesday, U.S. district court judge Frederic Block dismissed all of the plaintiffs' RICO claims against Poly Prep, finding that the school itself cannot be accused of racketeering. RICO claims against the individual defendants, however, can go forward for Culhane and one other plaintiff. Both fit a necessary requirement in bringing a RICO case that they suffered injury to their business or property because they each made donations to the school.
At the same time, Block upheld federal Title IX claims, which protect students from sexual harassment, as well as claims based on New York state law that the school negligently supervised its students. The plaintiffs must still prove that both sets of claims should not be barred by New York's strict statute of limitations, which require that those who claim they were sexually abused as minors must file suits related to the alleged abuse by the time they are 21. (Sibling publication the New York Law Journal has more on Block's ruling and the history of the case here.)
The plaintiffs argue that Poly Prep concealed its knowledge of Foglietta's predatory behavior and continually praised him in alumni mailings and at his retirement party, which in turn discouraged the plaintiffs from suing sooner. The school contends that it first learned about allegations that Foglietta had abused students in 1991, though the former students argue that a victim came forward as early as 1966 to complain about the coach's conduct. In response to that complaint and others, school administrators allegedly threatened disciplinary action to keep students quiet and later claimed to investigate the complaints but in reality did not conduct thorough diligence, the suit argues.
On Wednesday, Culhane reacted to the 40-page decision with a combination of elation and anger over the school's inability to admit what he says is a clear set of misdeeds. "There's a conspiracy under way that's still being driven by people who are themselves malfeasors," Culhane says, adding that he is shocked alumni and parents haven't thrown out the school's administration and board in the way shareholders might in a corporate setting.
In a statement, a Poly Prep spokeswoman says the school believes the remaining claims "will ultimately be dismissed" following a hearing on the statute of limitations issue, and that there is the possibiility a settlement will be reached. "[T]he school has continued to pursue a settlement of the case in numerous meetings over the last several months with plaintiffs’ counsel and insurers, and as recently as Monday in a settlement conference," the statement reads.
Recalling his eight years at the school, Culhane's feelings are mixed. "In addition to a horrible time there, I had a great time there," he says. "I grew up there, right, with all the positives that that can imply."
It was the positive memories that led Culhane to donate a total of $2,000 to the school in the years since his 1984 graduation. He says he never would have donated had he known Poly Prep had received complaints against Foglietta and had done nothing, as the plaintiffs allege.
Culhane says it took him years to come to terms with what he claims were Foglietta's abusive acts, which he says only stopped once he learned to hide from and avoid the coach. A swimmer, Culhane says he never played on the football team, but that didn't prevent him from being targeted. "Every year, in the guise of the great figure that he was, [Foglietta] would search for boys to molest in incoming classes," Culhane says. "He was such a hugely iconic figure that if the coach was being nice to four or five of you and letting you play basketball in the gym on a Saturday morning, that was an attractive thing. We were kids."
It was only when his now-5-year-old son was born that Culhane felt compelled to speak out about the abuse. He heard about the suit through a former classmate and decided to join after he was told by the current Poly Prep administration that there were no plans to address the alleged offenses.
The plaintiffs found an advocate in Kevin Mulhearn, a solo practitioner in Rockland County, New York, who attended Poly Prep a few years ahead of Culhane. A football player during Foglietta's tenure at the school, Mulhearn is not among those who say they were abused.
Mulhearn—who says he felt encouraged by Tuesday's ruling—estimates that the case has taken up about three-fourths of his time since it began, but that he will continue to litigate the suit because it's "a fight worth fighting." For Culhane, participating in the case has largely cut into time with his family. "There’s been emotional wear and tear, but it’s been manageable as my crusade on the side," he says.
"You've got David and Goliath going on here," Culhane says of the litigation, which has pitted Mulhearn against teams of Poly Prep lawyers from O'Melveny & Myers and, later, Debevoise & Plimpton, which joined the case in June following a discovery dispute over potentially destroyed evidence. (Attorneys and representatives from the two firms did not respond to requests for comment).
The former students gained some muscle in March when Pillsbury Winthrop Shaw Pittman agreed to join their legal team. The firm offered to help on a pro bono basis after Pillsbury partner Mark Litvack, a Poly Prep alumnus, heard about the case and connected with Mulhearn. "We decided that it was appropriate that a firm of the size and stature of Pillsbury get involved to make sure the plaintiffs are adequately represented and give Kevin a hand," says Edward Flanders, a New York–based Pillsbury partner who is working on the case.
Mulhearn says he expects Poly Prep's strong defense to keep up in the next stages of the litigation.
"No doubt they’ll martial their maximum legal resources to fight us, which they’ve been doing from Day One," he says. "But they can’t fight against the facts and the law, and they’re against them, period."
In some ways, the case resembles the scandal that continues to hover over Penn State following former assistant football coach Jerry Sandusky's conviction on multiple sexually abuse counts. The notoriety of the two cases, Culhane says, means that "suddenly the sexual abuse conversation had to be had." He adds: "It took the sexual abuse of children in the sports setting into the living rooms" of millions of Americans.
Flanders, Mulhearn, and Culhane all say that while they are seeking monetary compensation for the plaintiffs, exposing the alleged cover-up and mishandling of the situation is just as an important an outcome. "Quite frankly, Poly Prep needs to be punished," Flanders says. "There needs to be an example set so this kind of conduct doesn’t happen in the future."
Seconds Culhane: "They need to be held accountable or else the world never changes."