Outside Counsel Sued in Poly Prep Sex Abuse Case

By Andrew Keshner
Corporate Counsel
August 16, 2013

http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202615683014&Outside_Counsel_Sued_in_Poly_Prep_Sex_Abuse_Case&slreturn=20130718022734

Former students who settled a lawsuit alleging a prestigious private school in Brooklyn covered up a football coach's years of sexual abuse are now suing the school's outside counsel at O'Melveny & Myers for allegedly trying to "deceive" the court with "fraudulent evidence" and "materially false and fraudulent statements."

Naming O'Melveny and Jeffrey Kohn, managing partner of the firm's New York office, as defendants, the action argues they "should not be allowed to escape sanction for their grievous and oft-repeated falsehoods."

The lawsuit, Zimmerman v. Kohn, 652826/2013, was filed Aug. 11 in Manhattan Supreme Court (See Complaint). It demands that, in addition to other things, O'Melveny reimburse the plaintiffs for $2 million in legal fees expended to achieve a confidential settlement. In addition, the plaintiffs are seeking that all fees paid to O'Melveny by Poly Prep Country Day School be turned over to the plaintiffs.

O'Melveny scoffed at the claims.

"The underlying case was concluded nine months ago with a settlement voluntarily entered into by the plaintiffs. These claims are completely baseless and without merit," the firm said in a statement.

The current suit arises from a lawsuit 10 alumni and two former summer camp participants filed against the school and its officials in 2009 for allegedly concealing abuse that occurred from 1966 to 1991 by coach Philip Foglietta. The coach died in 1998 after working 25 years at the school.

After Eastern District Judge Frederic Block (See Profile) ruled last August that some claims could proceed in Zimmerman v. Poly Prep Country Day School, 09-cv-4586, the parties reached a confidential settlement in December. Philip Culhane, a partner at Simpson Thacher & Bartlett, was among the plaintiffs (NYLJ, Aug. 30, 2012 & Dec. 28, 2012).

The current suit's claims include a violation of the state's Judiciary Law §487, which prohibits attorney misconduct toward a court that includes "deceit or collusion, with intent to deceive the court or any party."

It was brought by 11 of the 12 plaintiffs, except for Culhane, and especially targets the firm's defense of the school with a focus on Kohn and the firm's description of an internal probe the school conducted in 2002.

Between May and July 2002, attorneys for two victims, David Hiltbrand and John Paggioli, contacted the school to say their clients had been abused.

Hiltbrand initially contacted the school in 1991, but the school maintained he asked that Foglietta not be fired—a claim Hiltbrand denied.

In any event, in September 2002, the school hired Peter Sheridan of Tarrytown, a former federal prosecutor, to probe whether school faculty members or administrators knew of Foglietta's conduct.

The suit said Sheridan interviewed at least seven administrators and faculty members, but the school "abruptly terminated and short-circuited" the investigation in February 2003. Sheridan later discarded his notes.

The school first retained O'Melveny in November 2004 after one of the plaintiffs in the federal suit initially filed an action in Brooklyn Supreme Court that was later dismissed on statute of limitation grounds.

When the federal suit was filed in 2009, the school retained Kohn, according to the complaint.

As litigation proceeded in the case, Eastern District Magistrate Judge Cheryl Pollak (See Profile) in June 2012 ordered an evidentiary hearing to consider the former students' claims the school and the firm perpetrated a fraud on the courts.

In calling for the hearing, she said "serious questions" had been raised "as to whether defendants and their counsel were simply engaged in a good faith effort to vigorously defend this lawsuit or whether certain of the alleged conduct was in furtherance of an effort to conceal the extent of the school's knowledge and to hinder plaintiffs' efforts in pursuing their case."

The school and the firm—in court papers written by Debevoise & Plimpton—objected to the hearing, saying it was "not justified in these circumstances."

The former students advanced "several speculative and tenuous allegations in support of their claim of fraud on the Court," the firm and the school argued.

The school noted that Sheridan said in a declaration that before Hiltbrand came forward in 1991, no one had made specific allegations.

"The fact that these witnesses had heard of rumors does not make Mr. Sheridan's sworn statement that no witness was aware of any substantiated allegations of abuse prior to 1991 false or misleading," Poly Prep said in the objection. "Indeed, Mr. Sheridan swore to the truth of the Declaration under penalty of perjury, and reaffirmed the substance of this statement at his deposition."

The hearing never occurred because Block issued his ruling on Poly Prep's dismissal motion months later and the parties subsequently settled.

The complaint in the new suit says O'Melveny and Kohn's "false and deceptive acts and omissions" included "myriad false statements," saying "in substance, no one at Poly Prep knew of any sexual abuse allegations against Mr. Foglietta" until Hiltbrand's contact in 1991.

It claims Sheridan's interviews uncovered "a plethora of allegations and complaints" about Foglietta before 1991 but those revelations were "intentionally conceal[ed]."

It points to Sheridan's declaration, which said, "None of the individuals that I interviewed could substantiate any of the claims against Mr. Foglietta made in the letters by Mr. Hiltbrand and Mr. Paggioli, and none knew of any additional alleged abuse victims."

But the complaint says the defendants "knew that evidence was materially false or, at best, consisted of false and misleading half-truths."

The complaint also faults the defendants for "false representations" that Sheridan had made a final determination when investigating the abuse allegations.

As O'Melveny fought a sanctions motion in the course of the underlying litigation, it asserted in court papers that Sheridan's probe was not prematurely ended and that he and the school's headmaster "understood the [Sheridan] investigation to encompass the interviews that Mr. Sheridan conducted and the provision of that information to Poly Prep, nothing more and nothing less."

But the complaint responds, "This statement was patently false, contradicted by numerous statements from Mr. Sheridan himself, and nothing short of offensive."

The complaint points to depositions where Sheridan said, for example, there "were more than one thread" open when his investigation ceased.

The plaintiffs are represented by Kevin Mulhearn of Orangeburg, who also represented the former students in the federal suit.

The latest complaint against O'Melveny and Kohn are "replete with allegations of false statements to the court in an attempt to basically shut down litigation," Mulhearn said in an interview.

Sheridan and Culhane did not respond to requests for comment.