Sometimes court is the only rational alternative

Litigation - day in court

They say Hell hath no fury like a woman scorned.

Well, even that sense of outrage is dwarfed by the instinct of parents to protect their children – especially from those who deliberately cause them harm.

The vigor and passion underlying Josephson vs. Archer comes from that powerful instinct. The Josephsons believe that any parent willing to take the time to look at the facts articulated in the Complaint (see the Complaint under the Pleadings tab and various summaries and statements of facts under the Facts & Allegations tab) will find it impossible not to experience second-hand outrage at conduct by Archer’s Head of School, Elizabeth English and the seeming callous indifference of members of the Board who repeatedly ratified, rather than repudiated those actions.

Josephson vs. Archer 4 Character is demonstrated by “doing the right thing even if it costs more than you want to pay” and this lawsuit tests the Josephson’s character. Challenging an elite institution with a wealthy and powerful board and whose financial risk is cushioned by insurance, to a battle in the judicial system is an act that should not, and was not taken lightly.

The Josephsons know it will cost plenty. In addition to tremendous emotional stress and very substantial financial expense (unlike the defendants, plaintiffs don’t have an insurance company to foot the bill of legal representation), there are bound to be other collateral costs inherent in modern litigation.

The Josephsons realize that the defendants will escalate their campaign to alienate them from close friends in the Archer community and discredit their claims by attacking their motives and character.

Michael Josephson, in particular, is vulnerable to attacks and characterizations that could diminish his hard- and well-earned reputation for ethics and fairness as he is founder and chief consultant for the nonprofit Josephson Institute of Ethics.  Mr. Josephson states in his Personal Statement (posted under the Facts & Allegations Tab)

I am 71 years old and the last thing I wanted to do was to get embroiled a public mud-throwing fight with a wealthy, and apparently ruthless, adversary. There is no way it can help my reputation and it will take enormous efforts (like this website) to protect it. I cannot, however, ignore my paternal instincts and moral duty to everything in my power to shield my daughters from additional harm and to show them that bullies can’t win in the long run. I still believe in the grandeur of the American legal system as a great equalizer.

Litigation - oath to tell the truthLitigation - tell your side of the story

The Complaint outlines a pattern of conduct whereby Ms. English continually sought to intimidate plaintiffs with threats and coerce them with extreme and injurious actions leveled against the Josephson children.

Whether her actions were driven by personal malice and animosity against Mr. Josephson as the evidence suggests, or simply an autocratic leadership style intolerant of any form of disagreement or opposition, the facts set forth in the Complaint reveal that Ms. English, with the participation and endorsement of the Board, has been willing to use every technique and trick at her disposal to force plaintiffs to surrender their right to dissent and she has used those powers to vilify and punish the plaintiffs in retaliation for their decision to seek redress in court to protect their children when every other effort failed.

Consistent with efforts to damage Mr. Josephson’s reputation that form the base of plaintiff’s defamation claims, Archer and Ms. English added fuel to an already substantial fire by their reaction to the lawsuit.

Though the lawsuit was filed on May 28, 2014 after repeated pleas and warning to the Board of Trustees, the Josephsons elected to keep a low profile to protect the privacy of their daughters in minimize the harm to Archer. The Josephsons made no announcement that the suit was filed even to the Archer community.

Within days of filing, however, Archer and Ms. English launched a broad-gauged public attack on the Josephsons including a letter informing all Archer faculty and staff (and possibly others) of the lawsuit in a manner intended to demonize the Josephsons.  The letter made it quite clear that anyone affiliated with the school was to have no contact whatever with Anne or Michael Josephson or their children. And, to those who know Ms. English’s leadership style, the implication that their job was on the line was clear and the threat was effective.

But Ms. English did not stop there.

In what the Josephsons describe as “unambiguous proof of Ms. English’s vindictiveness and callous willingness to harass and humiliate innocent children (and the Board’s continual ratification of this conduct),” On May 29th Ms. English instructed Archer’s lawyers to issue a letter (see it under Facts & Allegations” tab) demanding that Michael and Anne Josephson inform C1 and C2 (who had been invited to attend the graduation ceremonies of their respective best friends on May 29th) that if they attempted to go on campus they would be stopped by security or law enforcement.

This act (ratified by the board through inaction as they were notified in time and requested to repudiate the action) quite predictably caused another emotional crisis with each of the girls who were ostracized.

To emphasize to the Josephsons and anyone else who would think of opposing her decisions or challenging her authority the high cost of even seeking a legal review of her actions, Ms. English explicitly expanded the banishment order to the Josephson’s two daughters who had graduated from Archer and were in college in New York. The Josephsons were instructed to inform them that they were barred from campus and that they understood that if they tried to attend an event at Archer or meet with any of their former teachers they would be treated as trespassers.

This is precisely the sort of situation that makes the right to legal redress, to have one’s day in court, one of the most fundamental and important rights in our democracy. The Josephsons seek their opportunity to compel defendants to answer questions under oath on discovery and in court and the Josephson’s have indicated they are eager tell the truth, the whole truth and nothing but the truth to a neutral judge or jury with the power to determine the truth and hold wrongdoers accountable.

Litigation - to kill a mockingbird

The Josephson’s decision to “go public” was in direct response to these attacks and the obvious need to respond comprehensively and quickly to all sorts of efforts to discredit the lawsuit and the Josephson’s attempts to avoid litigation.

The record is crystal clear that this suit was filed only after Archer’s Board rejected plaintiffs’ offer to settle their claims under very moderate terms. This offer (posted under the “Efforts to Settle” tab) was tendered to all Board members on April 29, 2014. The offer expired on May 15, 2014 as a decision any later would prevent C1 from benefitting from a decision to let her participate in senior activities.

Instead of negotiating in good faith and demonstrating their responsibility to at least mitigate ongoing and escalating injuries to the Josephson children, Archer’s legal representative mocked the claims as frivolous, raised procedural issues and never addressed the Josephson’s request that the Board conduct an independent investigation of their allegations.

It was the defendants, not the plaintiffs, that forced the issue to go to trial. The Josephson’s contend that the offer to settle were generous and clearly designed to make it easy for the Board to accept. The essential terms of settlement:

1) Allow Child 1 to participate in graduation ceremonies and other senior activities with her lifelong classmates (provided she could prove she successfully completed her academic requirements at another institution).

2) Allow Child 2 who was banished from Archer in retaliation for Mr. Josephson’s efforts to protect Child 1.

3) Commit to conduct an objective independent investigation of all plaintiffs documented allegations

4) Develop guidelines and internal controls to prevent future abuses of power.

5)  Reimburse the Josephsons for tuition paid in 2013-2014 (despite forcing plaintiff’s daughters out of the school, Archer offered no refund of tuition).

The Josephsons were explicit that this was their last and lowest offer and that suit would be filed if the Board rejected it.

The Mediation Ploy

Just as the offer was about to expire, Archer’s counsel suggested the Archer Board would be willing to enter into a mediation (which for many legal and practical reasons he knew, or should have known, would make no sense to plaintiffs as it would preclude them from the crucial benefits of discovery, testimony under oath and a final enforceable resolution).

Though an offer to mediate may seem like a reasonable effort to deal with plaintiff’s’ claims and injuries to a lay person, it was obvious to anyone who really understands how mediation works that this was an empty offer at this stage of the dispute. It was a ploy.

For one thing, the plaintiffs were working under a very tight timeline as a crucial aspect of their offer was the mitigation of the continuing emotional harm to Child 1 and Child 2 resulting from Ms. English’s actions.

Defendants knew (or should have known) that mediation of this sort of dispute would itself have been very costly in time and money (selection of a mediator both sides could trust would itself be a major undertaking and attorney fees would be substantial).

Much more important, agreeing to a mediation would require plaintiffs to suspend all pursuit of legal redress and start a voluntary process which, with absolute certainty would not provide timely remedies for C1 and C2. And, as the defendants knew it would deprive plaintiffs of the right of discovery and the obligation of the defendants to respond under oath — two factors plaintiffs believe were essential to permit a neutral fact finder to make a thoughtful and responsible determination of the facts.

Plaintiff’s attorney promptly informed the Board that the mediation option was not responsive to the offer to settle and was not acceptable. This was done with ample time for the board to make a substantive response to the offer and mitigate the damage. The Board rejected the offer with full knowledge of plaintiff’s pledge to see remedy in the court if they did so.

Plaintiff’s don’t know why the Board chose the one option certain to subject Archer, Ms. English and themselves to the stress, costs and other consequences associated with all-out litigation. If they were standing on some principle, they never told plaintiffs what it was.

Litigation should be a last resort, and it was.

In this case, it was the only means available to plaintiffs who, after months of seeing their children bullied and tormented were committed to holding accountable all those who inflicted these harms.  Litigation - trial by combat

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