Great LTE from Linda Berkland:

[StinkStankStunk]

http://www.centredaily.com/opinion/letters-to-the-editor/article90957202.html


And, while we are at it, let’s take a moment to cover some of the high points regarding the "settlements":

1 – PSU (via the secret Ira Lubert committee) pays out $3,000,000 per CLAIMANT…..Catholic Church, nationwide, average payment per VICTIM under $200,000

And, yes, there is a HUGE difference between a VICTIM and a CLAIMANT

2 – In the Catholic Church case, the VICTIMS pursued criminal complaints against Church leaders, took them to court, and the Church leaders were found GUILTY of aiding and abetting the Pedophile Priests……in the PSU case, not a single PSU affiliated individual has EVER been convicted of anything – and, in fact, the only meaningful charges against PSU folks (Curley, Schultz, and Spanier) have been dismissed out of hand due to prosecutorial misconduct wrt even having the indictments brought.

3 – The large majority of the CLAIMANTS who received payouts of PSU funds (thanks to Ira Lubert) never even filed criminal complaints against SANDUSKY (let that sink in for a moment), let alone showed any liability on the part of Penn State.

4 - Many of the CLAIMANTS (more than a dozen?) didn't even have a prima facia case - - - - since the Statute of Limitations had long since expired.



Why the ginormous settlements?

Well……it doesn’t take a savant to read the settlement agreements, and have a pretty good idea as to “Why”.

From the settlement documents, whereby the CLAIMANTS agreed to certain conditions in return for their multi-million dollar payoffs:

“Moreover, the Releasor [the Sandusky Abuse Claimant] promises not to sue.......The Second Mile.....any past, present, or future: employee, officer, director, trustee......of [The Second Mile]”

And who might be among those 2nd Mile folks – the folks who received a “get out of jail free” card, thanks to Ira’s use of Penn State’s money?……..

Jack Raykovitz, and his wife Kitty Genovese (the directors of the 2nd Mile)

Our old friend Bruce Heim - the leader of the 2nd Mile Board – and the fellow who ADMITTED to quashing the reports of Sandusky’s inappropriate conduct

and, lest we forget

Dear Mr Lubert - - - 2nd Mile Board member (although Ira seems to have developed some amnesia in that regard) and the man who sponsored 2nd Mile sleepover camps - “Challenge Camps” - at his Green Hills Camp facility in Southeastern PA.


Anyone who can’t see what Ira Lubert was buying, would have to be among the most oblivious and ignorant bipeds to ever walk the Earth

And this man thinks he is qualified to be the Chairman of the PSU Board of Trustees?

And he most likely WILL BE the next Chairman of the PSU Board of Trustees.

Which of those two sentences is scarier?

 

[Franklin_Restores_TheTradition]

http://www.centredaily.com/opinion/letters-to-the-editor/article90957202.html


And, while we are at it, let’s take a moment to cover some of the high points regarding the "settlements":

1 – PSU (via the secret Ira Lubert committee) pays out $3,000,000 per CLAIMANT…..Catholic Church, nationwide, average payment per VICTIM under $200,000

And, yes, there is a HUGE difference between a VICTIM and a CLAIMANT

2 – In the Catholic Church case, the VICTIMS pursued criminal complaints against Church leaders, took them to court, and the Church leaders were found GUILTY of aiding and abetting the Pedophile Priests……in the PSU case, not a single PSU affiliated individual has EVER been convicted of anything – and, in fact, the only meaningful charges against PSU folks (Curley, Schultz, and Spanier) have been dismissed out of hand due to prosecutorial misconduct wrt even having the indictments brought.

3 – The large majority of the CLAIMANTS who received payouts of PSU funds (thanks to Ira Lubert) never even filed criminal complaints against SANDUSKY (let that sink in for a moment), let alone showed any liability on the part of Penn State.

Why?

Well……it doesn’t take a savant to read the settlement agreements, and have a pretty good idea as to “Why”.

From the settlement documents, whereby the CLAIMANTS agreed to certain conditions in return for their multi-million dollar payoffs:

“Moreover, the Releasor [the Sandusky Abuse Claimant] promises not to sue.......The Second Mile.....any past, present, or future: employee, officer, director, trustee......of [The Second Mile]”

And who might be among those 2nd Mile folks – the folks who received a “get out of jail free” card, thanks to Ira’s use of Penn State’s money?……..

Jack Raykovitz, and his wife Kitty Genovese (the directors of the 2nd Mile)

Our old friend Bruce Heim - the leader of the 2nd Mile Board – and the fellow who ADMITTED to quashing the reports of Sandusky’s inappropriate conduct

and, lest we forget

Dear Mr Lubert - - - 2nd Mile Board member (although Ira seems to have developed some amnesia in that regard) and the man who sponsored 2nd Mile sleepover camps - “Challenge Camps” - at his Green Hills Camp facility in Southeastern PA.


Anyone who can’t see what Ira Lubert was buying, would have to be among the most oblivious and ignorant bipeds to ever walk the Earth

And this man thinks he is qualified to be the Chairman of the PSU Board of Trustees?

And he most likely WILL BE the next Chairman of the PSU Board of Trustees.
in
Which of those two sentences is scarier?

Settlement language also indemnified TSM's dual State Agency regulators, DPW & OAG', and all "State Actors" in the matter.

 

[sarasotan]

Also current BoT Cliff Benson is indemnified, as well as former BoT Huck's wife.

 

[Franklin_Restores_TheTradition]

What?

Cliff is Pegula's "right hand man".

Yes, he's also a Gov-appointee to BOT & another former Board member of TSM I believe.

 

[sarasotan]

Benson was a state director and served on TSM's finance committee.

 

[DandyDonII]

A question for the civil litigators on the board.....Is there any legitimate reason for PSU to include the agreement not to sue TSM in its settlement agreements? It has been a long time since I took Torts in law school. I am just wondering if PSU was covering itself from TSM joining them in any future lawsuit if the victim/claimant decided to sue TSM

 

[nitlion93]

A question for the civil litigators on the board.....Is there any legitimate reason for PSU to include the agreement not to sue TSM in its settlement agreements? I am just wondering if PSU was covering itself from TSM joining them in any future lawsuit if the victim/claimant decided to sue TSM

I was wondering the same thing.

 

[Franklin_Restores_TheTradition]

A question for the civil litigators on the board.....Is there any legitimate reason for PSU to include the agreement not to sue TSM in its settlement agreements? It has been a long time since I took Torts in law school. I am just wondering if PSU was covering itself from TSM joining them in any future lawsuit if the victim/claimant decided to sue TSM

Gee, what would explain PSU not pulling out their contract with TSM which included a blanket indemnification of PSU against all liability arising out of TSM's use of PSU's campus and facilities.....let alone then attempting to reverse the indemnification in the settlements while not disclosing the contract TSM had with PSU???

 

[DandyDonII]

Gee, what would explain PSU not pulling out their contract with TSM which included a blanket indemnification of PSU against all liability arising out of TSM's use of PSU's campus and facilities.....let alone then attempting to reverse the indemnification in the settlements while not disclosing the contract TSM had with PSU???

I am a criminal law guy. Was not aware of TSM's indemnification of PSU. Thanks for the reply.

 

[wensilver]

Settlement language also indemnified TSM's dual State Agency regulators, DPW & OAG', and all "State Actors" in the matter.

A question for the civil litigators on the board.....Is there any legitimate reason for PSU to include the agreement not to sue TSM in its settlement agreements? It has been a long time since I took Torts in law school. I am just wondering if PSU was covering itself from TSM joining them in any future lawsuit if the victim/claimant decided to sue TSM

I'd like someone to explain this to a rube like me.

Is this pretty much standard these days to exclude everybody - including State offices (which in my opinion the Commonwealth should be funding this via their Victims' Fund...but I digress) in order to properly tamp out the forest fire and prevent any more flare ups?

 

[Aoshiro]

I'd like someone to explain this to a rube like me.

Is this pretty much standard these days to exclude everybody - including State offices (which in my opinion the Commonwealth should be funding this via their Victims' Fund...but I digress) in order to properly tamp out the forest fire and prevent any more flare ups?

I know that it enrages everyone, but I do think that it's pretty standard in civil suits.
You don't want a case like this:
Penn State settles with Joe Schmoe.
Joe Schmoe then sues The Second Mile.
Joe Schmoe either wins his case against The Second Mile, or alternatively, reaches a settlement with The Second Mile.
The Second Mile turns around and sues Penn State.

The only way to avoid this is by having the claimant waive the right to sue anyone else.

 

[wensilver]

I know that it enrages everyone, but I do think that it's pretty standard in civil suits.
You don't want a case like this:
Penn State settles with Joe Schmoe.
Joe Schmoe then sues The Second Mile.
Joe Schmoe either wins his case against The Second Mile, or alternatively, reaches a settlement with The Second Mile.
The Second Mile turns around and sues Penn State.

The only way to avoid this is by having the claimant waive the right to sue anyone else.

That's pretty much how it was explained to me earlier.
What I don't understand is how you can indemnify the Attorney General's Office and those other public offices. I mean Second Mile fell under the auspices of these state officials and professionals - and professionals placed Matt Sandusky in the home. PSU had zip to do that.

I don't want to open up another train wreck thread on Matt, but honestly - why is PSU not pushing back on the licensed professionals and their agencies?

 

[Franklin_Restores_TheTradition]

I know that it enrages everyone, but I do think that it's pretty standard in civil suits.
You don't want a case like this:
Penn State settles with Joe Schmoe.
Joe Schmoe then sues The Second Mile.
Joe Schmoe either wins his case against The Second Mile, or alternatively, reaches a settlement with The Second Mile.
The Second Mile turns around and sues Penn State.

The only way to avoid this is by having the claimant waive the right to sue anyone else.

Don't think so - TSM provided PSU with a blanket indemnification in regards to their use of PSU's Campus and Facilities. TSM had not only agreed not to sue PSU, but had already agreed to indemnify PSU.

 

[LafayetteBear]

I'd like someone to explain this to a rube like me.

Is this pretty much standard these days to exclude everybody - including State offices (which in my opinion the Commonwealth should be funding this via their Victims' Fund...but I digress) in order to properly tamp out the forest fire and prevent any more flare ups?

Wendy: Here's your answer.

1. When a corporation or other business entity like Penn State (whether it is for profit or non profit is irrelevant for this purpose) is threatened with litigation and settles, the corporation typically demands a release not only of itself, but also of its officers, directors, agents, and employees. If the corporation did not do so, the erstwhile plaintiff would likely be free, notwithstanding the settlement, to sue those officers, directors, agents or employees upon the same claim. And if the erstwhile plaintiff recovered from them, those officers, directors, agents or employees would probably have the right to sue the corporation (under the legal principles of contribution and/or indemnity) to recoup all or a part of what they were required to pay out to the erstwhile plaintiff, plus their attorneys fees. So, corporations that are well advised typically include these other parties in the list of "releasees" when settling actual or threatened litigation.

2. The principle noted above applies equally to other potential defendants who might have indemnity or contribution rights against the settling corporation. Thus, if Penn State had previously (i.e., prior to any claims being brought forward) indemnified TSM for claims attributable to TSM's use of Penn State facilities, then it would probably make sense for PSU to include TSM as a "releasee" in connection with its settlements with the Sandusky claimants. But it appears that the indemnities ran in the opposite direction - from TSM to PSU. And although it makes sense for the indemnity to run from TSM to PSU (because TSM was using PSU's facilities, not the reverse), it certainly does not explain why TSM was included by PSU as a releasee in the Sandusky settlements.

3. That leaves the principle of contribution, which comes into play if there are multiple parties who bear (at least arguably) responsibility for the plaintiff's damages. If one such party is sued and loses, it may well bring a contribution action against the other parties seeking recovery from them for their "fair" share of the damages it paid out to the plaintiff. But any contribution rights TSM might have had against PSU would likely have arisen only after TSM either settled or litigated claims brought directly against it by Sandusky claimants, and not before then. So it would be unusual for PSU to include TSM as a releasee in advance of any such settlements or litigation by TSM.

4. What you might reasonably have expected to happen was PSU going to TSM (and its liability insurer) before concluding any settlement with a Sandusky victim, and demanding that they contribute to such settlement in exchange for being made a releasee. That apparently did not happen for ANY such settlement. Instead, we now see PSU going back to the now-dissolved TSM's insurer and seeking such contribution. A decidedly poor strategy, if the goal is to actually recover some of the funds paid out. Perhaps not such a poor strategy if the goal was, instead, to avoid examination of TSM's role in the abuse of victims until long after the public had swallowed the narrative that it was all Joe's and the football culture's fault. .

 

[Franklin_Restores_TheTradition]

Wendy: Here's your answer.

1. When a corporation or other business entity like Penn State (whether it is for profit or non profit is irrelevant for this purpose) is threatened with litigation and settles, the corporation typically demands a release not only of itself, but also of its officers, directors, agents, and employees. If the corporation did not do so, the erstwhile plaintiff would likely be free, notwithstanding the settlement, to sue those officers, directors, agents or employees upon the same claim. And if the erstwhile plaintiff recovered from them, those officers, directors, agents or employees would probably have the right to sue the corporation (under the legal principles of contribution and/or indemnity) to recoup all or a part of what they were required to pay out to the erstwhile plaintiff, plus their attorneys fees. So, corporations that are well advised typically include these other parties in the list of "releasees" when settling actual or threatened litigation.

2. The principle noted above applies equally to other potential defendants who might have indemnity or contribution rights against the settling corporation. Thus, if Penn State had previously (i.e., prior to any claims being brought forward) indemnified TSM for claims attributable to TSM's use of Penn State facilities, then it would probably make sense for PSU to include TSM as a "releasee" in connection with its settlements with the Sandusky claimants. But it appears that the indemnities ran in the opposite direction - from TSM to PSU. And although it makes sense for the indemnity to run from TSM to PSU (because TSM was using PSU's facilities, not the reverse), it certainly does not explain why TSM was included by PSU as a releasee in the Sandusky settlements.

3. That leaves the principle of contribution, which comes into play if there are multiple parties who bear (at least arguably) responsibility for the plaintiff's damages. If one such party is sued and loses, it may well bring a contribution action against the other parties seeking recovery from them for their "fair" share of the damages it paid out to the plaintiff. But any contribution rights TSM might have had against PSU would likely have arisen only after TSM either settled or litigated claims brought directly against it by Sandusky claimants, and not before then. So it would be unusual for PSU to include TSM as a releasee in advance of any such settlements or litigation by TSM.

4. What you might reasonably have expected to happen was PSU going to TSM (and its liability insurer) before concluding any settlement with a Sandusky victim, and demanding that they contribute to such settlement in exchange for being made a releasee. That apparently did not happen for ANY such settlement. Instead, we now see PSU going back to the now-dissolved TSM's insurer and seeking such contribution. A decidedly poor strategy, if the goal is to actually recover some of the funds paid out. Perhaps not such a poor strategy if the goal was, instead, to avoid examination of TSM's role in the abuse of victims until long after the public had swallowed the narrative that it was all Joe's and the football culture's fault. .

Again, PSU had a contractual indemnification from TSM, so your notion of appropriate "contributions" is rather mixed up. HERE IS A LINK with reference to indemnification.

Penn State also claims contractual indemnification. According to the filing, from 1990 to 2011 the university and The Second Mile entered into contracts for The Second Mile to host summer camps for children on the Penn State campus. Penn State wrote that an indemnification provision in which The Second Mile agreed to hold the university harmless for any claims arising from the agreement was included in those contracts.

 

[wensilver]

What you might reasonably have expected to happen was PSU going to TSM (and its liability insurer) before concluding any settlement with a Sandusky victim, and demanding that they contribute to such settlement in exchange for being made a releasee. That apparently did not happen for ANY such settlement. Instead, we now see PSU going back to the now-dissolved TSM's insurer and seeking such contribution. A decidedly poor strategy, if the goal is to actually recover some of the funds paid out. Perhaps not such a poor strategy if the goal was, instead, to avoid examination of TSM's role in the abuse of victims until long after the public had swallowed the narrative that it was all Joe's and the football culture's fault. .

Exactly.

Let's climb into the Wayback Machine. The shit hits the fan Nov 2011. In Dec 2011 anyone with an 8th grade reading level can connect Sandusky - Victims - Second Mile. I did & I'm not that smart.

Lynne Abraham grandstands Nov 2011 about finding out "who knew what when" at Second Mile, because it was "so familiar" (She prosecuted the Phila Archdiocese & Savitz cases) I do the Happy Dance, because Philadelphia's own "One Tough Cookie" is gonna get to the bottom of it! YAY LYNNE!

The well paid, Brioni-clad PSU lawyers from Reed Smith sit thru Sandusky's trial June 2012. Not one of them thinks to poke the other in the ribs and say "Hey, what's this Second Mile they speak of?". Louis Freeh never steps off campus and strolls across Atherton to poke around - but we now know why.

July 2012 still nothing from Abraham. Angry, I ask Louis Freeh. Which of course he dances around. So by July 2012 not a single media member, Penn State lawyer or Trustee - Ira Lubert included - is asking about Second Mile. Tom Kline was at that press conference, I saw him in the ballroom foyer.

Turns out Miss Lynne had already gift wrapped the charity 6 short weeks later, back in January 2012 to Arrow Ministries, packs her cosmetic bag & sensible shoes and goes home.

2012 comes to an end. Nothing.

2013 comes and goes...still nothing.

2014 begins and still...nothing.

November 2014 I see Tom Kline at a Drexel event, introduce myself and ask about TSM and CYS, to which he stiffens up and tells me "Penn State will be getting their money from Second Mile". Which I know is smoke, because there's no there...there.

Fast forward to 2016 - NOW Penn State decides they're going to file in court?

 

[LafayetteBear]

Bushwood: No insult intended here, dude, but I think you are the one who has the indemnification issue backward.

As noted in the article you linked, TSM agreed to indemnify PSU from any claims or damages arising out of the events TSM was holding on PSU's property. That's pretty standard contractual practice, and it means that, if a third party sued PSU on account of some injury or damage suffered in the course of a TSM event on PSU grounds (the property owner is almost always sued in such cases), TSM would have to pay PSU's legal bills and any damage award that ensued.

In such a case, it is PSU that has indemnity rights against TSM, not the reverse.

When PSU was pursued directly by third party claimants (i.e., the Sandusky claimants) PSU's first course of action, at least in the case of claims arising out of TSM events that occurred on PSU's property (and that were, thus, covered by TSM's indemnity) should have been to advise TSM of such claims and demand that TSM assume the defense of such claims pursuant to its indemnity.

Instead, PSU decided to settle these claims without asserting its indemnity rights. Even more surprisingly, PSU elected to include TSM as a releasee even though TSM had no indemnity rights against PSU (and did not contribute any of the funds paid out in settlements with the Sandusky claimants).. The indemnity ran in the opposite direction - from TSM in favor of PSU.

That stands logic on its head. The only reason I can come up with its that the people running PSU did not want, at least not at the time the settlements were being concluded, to have a public examination of TSM's role in the abuses that occurred, or a public examination of their connection to TSM.

 

[jubaaltman]

Exactly.

Let's climb into the Wayback Machine. The shit hits the fan Nov 2011. In Dec 2011 anyone with an 8th grade reading level can connect Sandusky - Victims - Second Mile. I did & I'm not that smart.

Lynne Abraham grandstands Nov 2011 about finding out "who knew what when" at Second Mile, because it was "so familiar" (She prosecuted the Phila Archdiocese & Savitz cases) I do the Happy Dance, because Philadelphia's own "One Tough Cookie" is gonna get to the bottom of it! YAY LYNNE!

The well paid, Brioni-clad PSU lawyers from Reed Smith sit thru Sandusky's trial June 2012. Not one of them thinks to poke the other in the ribs and say "Hey, what's this Second Mile they speak of?". Louis Freeh never steps off campus and strolls across Atherton to poke around - but we now know why.

July 2012 still nothing from Abraham. Angry, I ask Louis Freeh. Which of course he dances around. So by July 2012 not a single media member, Penn State lawyer or Trustee - Ira Lubert included - is asking about Second Mile. Tom Kline was at that press conference, I saw him in the ballroom foyer.

Turns out Miss Lynne had already gift wrapped the charity 6 short weeks later, back in January 2012 to Arrow Ministries, packs her cosmetic bag & sensible shoes and goes home.

2012 comes to an end. Nothing.

2013 comes and goes...still nothing.

2014 begins and still...nothing.

November 2014 I see Tom Kline at a Drexel event, introduce myself and ask about TSM and CYS, to which he stiffens up and tells me "Penn State will be getting their money from Second Mile". Which I know is smoke, because there's no there...there.

Fast forward to 2016 - NOW Penn State decides they're going to file in court?

Their Court filing equals Jerry's imaginary finger up a kid's ass. Only this time, Lubert and the BoT have their own fingers in their asses.

For real.

 

[StinkStankStunk]

Since we are "in the area"....another BOT related (but slightly OT) comment (from FaceBook)


__________________________


Just to show how damn easy it is - here is a one minute comment to address the proposed tuition hike....something that ANY of our elected Trustees should jump at the opportunity to say:

_____________________

"I will not support the proposed tuition hike...and here is why:

1 - The Penn State operating budget DOES NOT justify it. Without getting into each and every line item, it is clear that even the present level of tuition is higher than what should be necessary

2 - I also am very concerned over the recent trends in increasing mandatory costs - and calling them something other than "tuition increases". This is simply a deceitful method of trying to hide these increased financial burdens we place on the backs of students (as of 2015/16: "Information Technology" fee $504, "Student Activities" fee $190, "Student Facilities" fee $248 = $942 total...and even higher for 2016/17)

3 - There are numerous areas within the University budget that have become bloated and excessive - - - and that do NOTHING to further the missions of the University - teaching, research, and outreach.
These bloated COSTS is where our focus should be.....and NOT on adding an ever-increasing tuition burden onto the backs of our students.....in order to finance our wasteful, out of control, and off-target expenditures."

_______________________

Easy-peasy-Japaneasy.....ONE MINUTE to take the high ground (and the righteous ground) on this important issue........and then focus on the most immediately pressing task at hand - EXPOSING LUBERT AND DAMBLY

All I have EVER asked of our elected Trustees is to DO YOUR JOB.
The job that you campaigned for, and the job that we elected (and ENTRUSTED) you to do......
Be a proper fiduciary for the University

Believe me, I much prefer "cheering" to "bitching".....and when we have something to cheer about, or when assistance is requested - - - I'm first in line.

I will even e-mail this to each of the Trustees.
I do not think that this is asking too much......and if we once again wet the bed, I do not want to hear about how "hard it is", about how "we are working behind the scenes", and how "it doesn't matter, we will be out voted anyway".

DO......YOUR.....JOB.

Period.

That is all

 

[StinkStankStunk]

I know that it enrages everyone, but I do think that it's pretty standard in civil suits.
You don't want a case like this:
Penn State settles with Joe Schmoe.
Joe Schmoe then sues The Second Mile.
Joe Schmoe either wins his case against The Second Mile, or alternatively, reaches a settlement with The Second Mile.
The Second Mile turns around and sues Penn State.

The only way to avoid this is by having the claimant waive the right to sue anyone else.

NO...it is not "pretty standard".

NOT the way this was handled.

It was bizarre - - - and should have set off red flags, smoke alarms, and screaming whistles all over the state.....certainly among members of the Penn State Board of Trustees (it certainly did with ONE annoying idiot who had 3 minutes to address the BOT in January of 2015 )

The justification - in this instance - would have been at least arguable IF, up front, PSU reached agreement with the likes of the 2nd Mile insurers, the state, etc to "co-fund" the settlement costs.....

THEN you could justify wrapping up the entire process into one agreement per claimant, and there would have at least been an arguable case for including the indemnification of the other folks (including 2nd Mile related folks, the state, etc)

THAT IS NOT WHAT HAPPENED
That was clear 4 years ago.....and even clearer now......so much so that Stevie Wonder was quoted as saying "Yeah, I can see that!"


JEEZUS! Come on people

[EDIT: I see that LafayetteBear did a great job - in a much more lawyerly way - of laying this out. Thank You LB!]

 

[wensilver]

That stands logic on its head. The only reason I can come up with its that the people running PSU did not want, at least not at the time the settlements were being concluded, to have a public examination of TSM's role in the abuses that occurred, or a public examination of their connection to TSM.

Thanks for explaining.
Dunham took office July 2012 - or around that time. Any theories as to why, as General Counsel, his logic didn't follow what you laid out?

I can't give these people credit for being smart enough for any grand conspiracy. I just can't - especially the Board as a whole. I've seen them in action - they're not that smart! They wield power like drunk toddlers with loaded handguns.

However, I have to wonder about the deafening silence on what we are NOT being told. And a lot of that is coming from Second Mile. Specifically CEO Dr. Jack and his pals.

 

[Franklin_Restores_TheTradition]

Bushwood: No insult intended here, dude, but I think you are the one who has the indemnification issue backward.

As noted in the article you linked, TSM agreed to indemnify PSU from any claims or damages arising out of the events TSM was holding on PSU's property. That's pretty standard contractual practice, and it means that, if a third party sued PSU on account of some injury or damage suffered in the course of a TSM event on PSU grounds (the property owner is almost always sued in such cases), TSM would have to pay PSU's legal bills and any damage award that ensued.

In such a case, it is PSU that has indemnity rights against TSM, not the reverse.

When PSU was pursued directly by third party claimants (i.e., the Sandusky claimants) PSU's first course of action, at least in the case of claims arising out of TSM events that occurred on PSU's property (and that were, thus, covered by TSM's indemnity) should have been to advise TSM of such claims and demand that TSM assume the defense of such claims pursuant to its indemnity.

Instead, PSU decided to settle these claims without asserting its indemnity rights. Even more surprisingly, PSU elected to include TSM as a releasee even though TSM had no indemnity rights against PSU. The indemnity ran in the opposite direction - from TSM in favor of PSU.

That stands logic on its head. The only reason I can come up with its that the people running PSU did not want, at least not at the time the settlements were being concluded, to have a public examination of TSM's role in the abuses that occurred, or a public examination of their connection to TSM.

Sorry, but I'm not confused - the PSU OG BOT not only did not disclose this indemnification to their own INSURER, PMA, but they didn't divulge it to the full board. Then the OG BOT puts Lubert in charge of settlements..... Explaining this as some sort of "oversight" is absurd - they have a freaking OBLIGATION to notify PMA of the indemnification prior to submitting claims - forget about trial.

 

[LafayetteBear]

Thanks for explaining.
Dunham took office July 2012 - or around that time. Any theories as to why, as General Counsel, his logic didn't follow what you laid out?

I can't give these people credit for being smart enough for any grand conspiracy. I just can't - especially the Board as a whole. I've seen them in action - they're not that smart! They wield power like drunk toddlers with loaded handguns.

However, I have to wonder about the deafening silence on what we are NOT being told. And a lot of that is coming from Second Mile. Specifically CEO Dr. Jack and his pals.

I have to admit that, although I am comfortable discussing some of the legal principles involved here, the number of players and quantity of information involved in this whole saga is truly enormous.

For example, I do not know exactly when the bulk of the settlements were concluded. Wasn't it in the latter part of 2012? (I also had to Google "PSU General Counsel Dunham" to confirm Dunham's first name and gender.) That would have been after Dunham commenced work as PSU General Counsel. If Dunham became GC before the settlements were concluded AND he had a real role (i.e., a discretionary as opposed to purely ministerial role) in concluding them, then he would surely have pointed out the advisability of promptly asserting indemnity rights against TSM. But the GC serves at the pleasure of the University President and, ultimately, the Board of Trustees, and he may well have been told to forget about indemnity or contribution, and to simply keep his mouth shut. If that happened, I hope for his sake that he took copious and contemporaneous notes.

As for the OGBOT folks, my impression of them has been formed largely by the mind bending stuff they have pulled over the last several years, as I was not posting here or following this fiasco closely as it first unfolded. I do not think they are as stupid as many people here have posited.

I know there are some ties between OGBOT folks and TSM (Lubert serving as a director of TSM and trustee of PSU, loaning out his property for TSM functions, and other OGBOT members having some kind of financial dealings with TSM), but I am not fully up to speed on the number or depth of such connections. I take it that they are meaningful, as that provides a much more understandable (albeit more blameworthy) basis for their trying to pin the blame on Joe and C/S/S. If it was not self interest that motivated them, then what was it? Panicking that PSU's reputation and research grant monies would be put at risk? That seems possible, but certainly less likely.

 

[Aoshiro]

I know there are some ties between OGBOT folks and TSM (Lubert serving as a director of TSM and trustee of PSU, loaning out his property for TSM functions, and other OGBOT members having some kind of financial dealings with TSM), but I am not fully up to speed on the number or depth of such connections. I take it that they are meaningful, as that provides a much more understandable (albeit more blameworthy) basis for their trying to pin the blame on Joe and C/S/S. If it was not self interest that motivated them, then what was it? Panicking that PSU's reputation and research grant monies would be put at risk? That seems possible, but certainly less likely.

Former Governor Tom Corbett nominated Cliff Benson, another Second Mile board member to the Penn State Board of Trustees in 2014.

 

[Franklin_Restores_TheTradition]

I have to admit that, although I am comfortable discussing some of the legal principles involved here, the number of players and quantity of information involved in this whole saga is truly enormous.

For example, I do not know exactly when the bulk of the settlements were concluded. Wasn't it in the latter part of 2012? (I also had to Google "PSU General Counsel Dunham" to confirm Dunham's first name and gender.) That would have been after Dunham commenced work as PSU General Counsel. If Dunham became GC before the settlements were concluded AND he had a real role (i.e., a discretionary as opposed to purely ministerial role) in concluding them, then he would surely have pointed out the advisability of promptly asserting indemnity rights against TSM. But the GC serves at the pleasure of the University President and, ultimately, the Board of Trustees, and he may well have been told to forget about indemnity or contribution, and to simply keep his mouth shut. If that happened, I hope for his sake that he took copious and contemporaneous notes.

As for the OGBOT folks, my impression of them has been formed largely by the mind bending stuff they have pulled over the last several years, as I was not posting here or following this fiasco closely as it first unfolded. I do not think they are as stupid as many people here have posited.

I know there are some ties between OGBOT folks and TSM (Lubert serving as a director of TSM and trustee of PSU, loaning out his property for TSM functions, and other OGBOT members having some kind of financial dealings with TSM), but I am not fully up to speed on the number or depth of such connections. I take it that they are meaningful, as that provides a much more understandable (albeit more blameworthy) basis for their trying to pin the blame on Joe and C/S/S. If it was not self interest that motivated them, then what was it? Panicking that PSU's reputation and research grant monies would be put at risk? That seems possible, but certainly less likely.

Believe the $33 million in "second round settlements" were not agreed to until 2014...the $60 million in "first round payments" were mostly settled in late 2012 and into 2013 I believe.

 

[LafayetteBear]

Sorry, but I'm not confused - the PSU OG BOT not only did not disclose this indemnification to their own INSURER, PMA, but they didn't divulge it to the full board. Then the OG BOT puts Lubert in charge of settlements..... Explaining this as some sort of "oversight" is absurd - they have a freaking OBLIGATION to notify PMA of the indemnification prior to submitting claims - forget about trial.

To be clear, I don't think there was any kind of innocent "oversight" involved here. The decision to not pursue TSM on the indemnity and the decision to include TSM as a releasee in settlements with Sandusky claimants were, IMO, purposeful.

I have no knowledge about the OGBOT not divulging to PMA the existence of the indemnities from TSM. If the Board's Litigation Subcommittee or OGBOT had no intent to enforce the TSM indemnities, I can imagine that they might not want to discuss their reasoning for such a decision with anyone else, because it was certain to cost PSU a lot of money and it was not in PSU's financial best interests. I'm just trying to imagine how the existence of the TSM indemnities could be some well kept secret.

Any time I prepare a lease or license agreement with respect to real property, the tenant or licensee is always obligated to indemnity the landlord or licensor for claims that might arise from the tenant's or licensee's use of the leased or licensed premises. This is standard practice and, presumably, PSU's general counsel, staff attorneys, and real estate administrator folks would know that. One or more of them probably had copies of the relevant agreements in their files..

 

[simons96]

she must have hit a nerve, the trolls are out in force . . .