(upbeat music) - Welcome to "Forum 360," the show with a global outlook, but local view.

I'm Sally Henning.

Recently, an Ohio case has garnered international interest.

The case is Gibson's Bakery versus Oberlin College.

Some people call it a David versus Goliath case.

We're gonna turn to the experts and find out what they say.

And we welcome to "Forum 360," Gibson's Bakery's lead council Lee Plakas, as well as Cleveland defense attorney Charles, or Chaz, Billington, two legal gladiators, to debate the lessons from this $36 million case and the state of discrimination litigation today.

First we have Chaz Billington, an attorney partner in the Cleveland office of Vorys, and he's a member of the firm's labor and employment group.

Now, prior to joining Vorys, Chaz worked as an assistant general counsel at Parker Hannifin Corporation, a Fortune 500 company, where he managed employment litigation throughout the United States, overseeing the work of outside council.

He also served as vice president of human resources at a large financial services company, and he has extensive experience advising management as in-house legal council, and he's advised human resources leaders on a wide range of labor, employment, and discrimination matters.

His significant experience also with collective bargaining issues, labor relations issues and the like.

We also welcome Mr. Lee Plakas, the lead council in the bakery, in the Gibson's Bakery case versus Oberlin College.

And Mr. Plakas has substantial experience, has tried hundreds of cases, and many with multimillion dollar, many with multimillion dollar verdicts, 15 million and one hospital cases, right?

- [Lee] That's right.

- 7 Million here and there, who's counting?

Numerous others.

And you have been involved, with a great deal of litigation.

So, we welcome you to "Forum 360," and we have, first of all, how about if you explain for our audience what the baker case, what the Gibson Bakery case was about.

- So, thank you.

It's a pleasure to be here and a pleasure to be here with Chaz, who's a very experienced lawyer and we can have some interesting discussions.

So, maybe the backdrop of the case is important, because, you know, Sally, equal rights, as all of us can agree, are a foundation of our country.

And any discrimination that in any way undermines our commitment to equal rights is toxic to our community and our country.

Having said that, you know, every right, every important right, comes with the responsibility of using those rights and exercising those rights very fairly and reasonably.

So, any exaggerated or false claims of discrimination undermine our whole foundation of equal rights to the same extent that actual discrimination hurts our communities and our country.

So, with that backdrop, the Gibson Bakery case is about people falsely claiming that store owners of an iconic 130-some-year-old bakery, that served the Oberlin community well, had a history of racial discrimination, which, after a six- or seven-week trial, was proven to be absolutely false.

- Now, didn't the case start with, well, you remember the expression from the movies, "Gee, there's no gambling in Las Vegas"?

But didn't this case start with college students wanting to get alcohol?

(Sally laughs) - Yeah, it's- - Tale as old as time.

- Tales and showing up with a false ID to try and get wine and then walking out without paying for it?

- Correct.

So Chaz, just in that context, how do things get out of, how do businesses do better so that the next time someone shoplifts, it doesn't end up in a riot and a boycott?

- Well (chuckles) I don't, here, I don't know that there are actually a lot of takeaways from the business' perspective.

I think it was the response from the college that really is where there are some lessons learned here.

And you know, Lee and I have discussed this at length, and I think this is a cautionary tale of getting the facts before you act.

Ready, fire, aim frequently can put you in a situation where risk rapidly develops, and you can find yourself in a position where it's tough to unring the bell and I think that's largely what happened here.

- So, what happened here is, so a young man goes in, and he tries to get the wine, and then the owner's grandson- - Who's the store clerk.

- Who's the store clerk.

- So the young man- - A young man himself.

- So the evidence was, at trial, that the young man comes in, he has a fake ID, he tries to use the fake ID to procure one bottle of wine.

At the same time, the indication is that he has two additional bottles of wine, because we know from college, one bottle of wine- - Isn't nearly enough.

- Yeah, isn't nearly enough.

And he was accompanied by two young female students, and when the confrontation is created, when the owner's son, who is a clerk, sees that the ID is fake.

And and he calls 'em on it, and all of a sudden, there's an issue and bottles stop, start dropping out of the jacket, and the young man is pursued and apprehended.

And from there- - And the crowd reacts, the crowd decides that there's racism in- - Exactly.

- Them being apprehended.

- Exactly.

- And from there you end up with a huge demonstrations and picketing?

- From several days, there's a boycott.

The college, and this is to something that I know Chaz would counsel differently, or we will let him talk about it, but immediately, a business relationship between the college and the bakery that had been going on for over a hundred years, was terminated by the college.

- That's a lot of donuts.

(Chaz chuckles) - That's a lot of donuts.

But the college, to appease the students, terminated the longstanding bakery order, and as Chaz and I have discussed, they made certain demands about reinstituting the bakery order.

So there's a lot of tentacles, Sally, that caused this case to ultimately end up, initially a $44.2 million verdict, reduced ultimately, to a net of 36.6.

- Still the largest verdict in defamation cases in Ohio ever, right?

- That's our understanding, yes.

- And, a lot of money.

So the university would say, I think, because I've listened to a number of their interviews, would say, "This isn't about us.

We didn't do anything.

It's free speech for the students.

We're just watching, and if we had people involved in the demonstrations, they were just monitoring, make sure everybody was safe and not arrested."

I mean, is that the kind of response that employers should be doing when their employees are reacting to something that happens or another university with its students?

What can employers do when they're faced with students yelling there's racism here, we need to do something about it.

- Well, you see it also in private sector as well, right?

Companies have these same issues and typically it's the role of the internal, either in-house council, or even, you know, the management of the organization, to pump the brakes, quite frankly.

Get the facts.

Frequently, as, you know, as a lawyer, both outside and inside, our job is to stop and assess what's actually going on.

Get the facts before we take any action, you know, to Lee's point, actually taking an action against a business interest that's gonna harm another party.

And here, it's no different.

I mean, your employment law and public relations are intertwined such that they can't be unwoven.

And you have to be the person who understands that.

And the college here, I think, probably missed that this is going to be something that's gonna escalate pretty quickly.

And, you know, stepping in as the role, as the management-side lawyer and saying, "I think we know what we think we know, but we need to find out what we know we know before we take action."

And I think that was the main issue I saw, at least early on in this case.

- Yeah, what do you think about the university's claim that they actually didn't do anything?

They just observed the students chatting?

- Well, clearly the jury didn't buy that.

(everyone chuckles) And to Chaz's point, you know, the management, or in this case, the administration, has to be the adult in the room.

And Chaz referenced pumping the brakes.

And, you know, facts still do matter.

Truth matters.

And the function of the adult in the room, the professors, the dean of students, is to pump the brakes, as Chaz said, and say, "Let's get the facts here.

And is this really a discrimination issue, or is this just three young college students were shoplifting, so they could have a party, and they got caught?

- And they pled guilty.

Didn't the students pled guilty?

- And they pled guilty and in court, indicated and read in open court, a statement saying that they recognized they were wrong and that their detention and arrest was not the product of any kind of discriminatory animus.

But the college never was able to bring itself to make that same statement.

- Did the university provide counsel for the students?

- Well (clears throat), the evidence is, that the university was very supportive and helped them in their efforts, and the evidence is, that actually the university financed and paid for a limousine or car service (Sally scoffs) to take the students to the initially recommended defense counsel for them in Columbus.

So they drove, at least one of the students, down to Columbus to confer with the defense counsel.

- Did they provide a ride for your clients to court, sir?

- No, but the evidence further is that the university paid for gloves or mittens so that the students wouldn't get chilly during their demonstrations in early November.

- In front of the bakery.

- In front of the bakery.

- Did you tell me they also provided pizza?

- They did provide pizza.

All of those, the evidence was indicated with college funds, or with college approval and support.

- So, how is it that the university could end up having to pay so much in punitive damages?

What is your assessment of how that happened and what are the lessons here?

- And I think Chaz can speak to that 'cause we've talked about it.

But there's two components in a trial like this, one is compensatory and one is punitive.

And, the jury normally wants to know that the wrongdoer in this case, the defendant, understood what they did wrong.

And Chaz and I have talked about what happened between the compensatory and the punitive segment of the trial that he might have some reaction to.

- You know, it's interesting.

It's the intentional conduct.

It's understanding what's gone on and understanding that that thing is an issue now, right?

That it is wrong.

And here, I think one of the issues that Lee and I discussed, you know, at length, is again, just this culpability aspect of it.

You know, when you get to the point where compensatory damages are put in place, that's the time to start, probably being relatively radio silent on the subject.

But I don't know that that's what happened here.

And you know, Lee being closer to it, I think you can speak to exactly what happened, but at that point, I think it's the time when, it's time to respect the system and, I'm sorry, go ahead Sally.

- No, you're tuned into "Forum 360," I'm Sally Henning.

Our special guests today are talking about one of the biggest lawsuits in Ohio history, the Gibson Bakery versus Oberlin College.

And we have with us the lead council for the Gibson Bakery, Lee Plakas, and we're also joined with eminent attorney Chaz Billington from Vorys in Cleveland, and we're just talking about how businesses can avoid getting hit with punitive damages, what they need to do.

So, I'm sorry, go ahead.

- Well, I said I'll let Lee speak a little bit more to the actual conduct that happened, but you know, it's the intentional aspect of it, it's the lessons learned aspect of it, and typically you don't want to double down.

And, you know, this is another, I think, good example where communications are critically important.

I think, you know, when you talk about these kinds of very high profile, very risky situations, it's absolutely critical you control the narrative and you control your employees.

And internally, particularly the narrative is very important.

And I think that one of the things you have to be cognizant of as you go through this is that all employees throughout the organization are an extension of the organization.

And it's critical that you are tightly maintaining, again, that narrative as you go forward.

And I think Lee can speak a little bit to exactly what happened here that I don't think necessarily helped the case, but I think, you know, as you go through these processes, it's critical to have a communications plan and that plan be disseminated from the top to the bottom.

One person can go off the rails and say something that, you know, ultimately can be attributed back to the organization and that can be wildly problematic, particularly when you're in trial.

- What were the communications that you think may have inflamed the jury that resulted in- - There were a number of them, and the jury perceived that a number of representatives at high levels, went off the rails.

But one thing that we believe really affected the jury is between the compensatory and punitive portions of the trial, there was a three or four day space because of the weekend.

- So what you're saying is, the way a trial is done, first you have the part of the trial dealing just with compensatory damages- - Yes.

- Whether perhaps there's negligence or whatever.

And the issue is to whether or not there's malice or punitive damages is tried later, right?

- That's right.

- I'm sorry, go ahead.

- That's right.

And, at the end of the compensatory verdict, there was an $11 million verdict.

And in that intervening space of three or four days and getting ready for the punitive damage segment, the college sent out a letter, commenting on the verdict, to about 10 or 20 or 30,000 of their favorite friends.

- In which they apologized and said they were sorry?

- No.

(chuckles) They said to the world that the jury got it wrong, that they were not responsible and not guilty of the conduct that the jury found them to be responsible for.

- And this is while the jury is still out, waiting for the second phase for the punitive damages phase.

- Right.

And during- - How did you get ahold of that?

- Well, as I say, it went out to thousands of the college's dearest friends- - Private message- - Including- - Just the immediate family and 30,000 other people?

- That's right.

- Oh.

(chuckles) - And so, when- - No chance of plaintiff's counsel- - The jury, yes, the jury that's been sitting there for a number of weeks, you know, getting paid 15 or $20 a day, and having a billion dollar institution after this, you know, several month trial, write a letter to thousands of people saying that, in effect, the interpretation is, the jury got it wrong after all this time.

And, at that point, as Chaz said, rather than the college recognizing and telling the world, "We've learned our lesson.

Don't worry, this won't happen again," they basically gave no indication that they learned their lesson, and in fact, were basically saying, "These jurors were, we don't know what they were doing, they got it wrong."

And when the jury saw that, the second phase of the trial turned into an additional $33 million of punitive damages for the initial verdict was $44.2 million.

- It's hard to think in those terms.

Most cases aren't like this though, are they?

- No, this is abhorrent.

- This is abhorrent.

What's a normal, I mean, what's a normal litigation like?

- [Chaz] Well, I think it's interesting, right?

- I mean, we talk about David and Goliath- - Correct.

- Isn't it normally whoever is the plaintiff, whoever's filing the lawsuit, is always up against a business?

- So- - Correct.

- And not every plaintiff gets an attorney, likely Plakas (Chaz laughs) to helicopter in.

- Not everyone's so lucky.

(Lee chuckles) - And not every business is lucky to have someone like you.

I mean, what's a normal litigation like for a normal plaintiff?

- Well, I think there's some misconceptions, and you know, Lee can talk to 'em.

I don't know that they're all that different on our, you know, respective sides of the V, as it were, on the caption.

I think, you know, one thing is that trials happen.

Trials don't frequently happen, particularly in the employment context.

I mean, some statistics will tell you it's, you know, less than 1% of cases actually make it to trial.

So I think a lot of people think that they're gonna get their "You can't handle the truth" moment, and they're going to get this glitzy courtroom drama, "12 Angry Men," whatever you want to call it.

That's not common.

- [Sally] It's great play.

- Great play.

There's a lot of (hands clap) and you know what?

"Law & Order," all that stuff is great.

It is not what we do, necessarily.

So I think people are oftentimes under the impression that they're gonna make their way to a jury of their peers.

Frequently that doesn't happen.

Cases almost overwhelmingly, either settle, or they're done away with by some kind of dispositive motion practice.

So I think that's- - For a lot of reasons.

- For a lot of, there's risk on both sides, no matter what it is.

- Resources.

- Correct.

- Risk, resources, time, attention.

- And quite frankly, it is emotional and very difficult.

You know, these clients who are on the plaintiff's side, it's not easy to be a plaintiff.

We see it on the defense side, the toll that it takes on these individuals, you know, when they truly believe that there's been some wrong happen, that's some unlawful activity.

You know, these things can drag on for years and years and they can be, you know, emotionally and physically draining.

And not only on you, but on your family, and likewise, with your friends.

Frequently in my neck of the woods, I might have a former employee whose friends all work there, now they're adverse to one another and they feel like they're being pitted against one another.

And it can be very, very difficult.

And the other issue I would bring up is, on the trial context is, and you know, Lee probably sees this a lot, arbitration agreements are all the rage.

And most folks may have very well signed an arbitration agreement and have no idea that they did that.

They won't get their day in court, as it were.

They're going to be before an arbitrator, which is a very, very different kind of model.

- Sometimes.

(chuckles) - Sometimes.

- And so, but your clients had some very particular, difficult situations in this case.

I didn't mean to suggest it was easy.

The leader of the family was 90-some-years-old and ill, and actually, as a result of this case, someone came to his house and.

- Yes, there were a lot of personal, difficult situations.

So the two owners were Grandpa Gibson, who was approximately 90 years old at the time, and was still, up until this incident, making deliveries every morning, physically carrying donuts and pizza dough and things into the college every morning.

And his son, the next generation, was David Gibson, about 65 years old.

David was actually diagnosed with cancer during the- - Pancreatic cancer?

- Pancreatic cancer, during the course of the trial.

The jury never discovered that, because David never wanted anyone to know, because he wanted the family named vindicated.

And he felt, that if the jury knew that he was fighting cancer, that there would be some sort of sympathy verdict.

He didn't want a sympathy verdict.

He wanted a verdict to vindicate the longstanding family name and reputation.

He made it, he testified at trial, made it through trial, passed between the trial and the series of appeal.

Same thing with Grandpa.

God bless him.

He testified at trial, made it through trial, but passed away.

But during the course of the demonstrations, in the middle of the night, for the first time in Grandpa's 90-year history of living in Oberlin, there was a commotion, and he thought, an apparent attempt to somehow intimidate him.

The people that had pulled up and were shining headlights into his residence were never identified.

But at any rate, he did fall as a result of that, and he broke his neck.

And that was difficult for him.

And it was difficult for everybody.

The suspension of the business and the boycott, and everything that was swirling, brought the Gibson family, and the Gibson Bakery, to its knees.

And by the end of the appeals, they were just functioning on fumes.

And fortunately, now they'll have a chance to rebuild and continue on with the iconic history of that bakery.

- So how do these things get prevented?

What are some other messages that you have for employers?

- Call your lawyer?

(Chaz and Sally laughing) - And listen to 'em.

- Early and often?

- And listen to your lawyer.

- And listen to 'em.

- Early and often?

- No, I think that, you know, Lee and I discussed this and I think it's true no matter what side of the equation you are here, whether you're a plaintiff for a defense counsel, you know, it's not fun being a lawyer.

We're the stoppers, right?

We get that reputation, but it's really for good reason.

We are oftentimes going to be the one saying, again, like we've said, time and time again, pump the brakes.

We need to figure out what the facts are before we take any action.

And frequently we are adverse, in some respects, to our own clients.

We're advising something very, very different.

I think when situations that arise that have risk, and there's a particular appetite to take that risk, that's the inflection point where you need to reach out to your advisor and listen to that individual.

We're paid to be, you know, dispassionate to some degree, to have temperance, to be the reasonable, you know, sort of, person in the room.

And oftentimes that's not popular.

But I think in circumstances like this, and a lot of the litigation I deal with, you know, you can avoid certain issues by, again, taking that inflection point early in the process and really thoroughly analyze and fact gathering.

And I think that would help.

- But, before there's a mob outside.

- Before the mob goes outside, yeah.

- I have an important question for you, I think.

- [Chaz] Mm hm?

- If you knew someone who had children who were thinking about becoming attorneys, study law to fight for justice, what advice would you give them?

- So, first of all, for anybody, for any of the younger generation, I would say, get rid of your phone, go out into the world, learn how to talk with people, learn how to understand what makes people tick, what motivates them, and don't just keep looking at that screen for hours and hours on end.

In terms of be being an attorney, I think that advice is critical, 'cause you have to understand the world around you and understand how people think, what motivates them, what triggers certain things in them.

Chaz may have some addition to that.

- Chaz?

- I think you should go into IT.

That's booming right now.

(Sally laughing) You know, I've talked to- - [Sally] Computer work.

- I've talked to my kids about it and I would absolutely echo what Lee said.

- Excuse me, as you do, Lee just said get off the phone, you're saying design the phone.

- Don't even be an attorney.

No, I, you know, I talk to my kids a lot about it as well.

And I think critically it's experience.

I mean, getting out, not only just seeing things, you know, talking to people, but likewise in the business world, understand how businesses work, particularly if you want to be my side of the aisle where you're a defense attorney, need to understand how the real world works, not necessarily have your opinions drawn completely from your coursework.

- That's very good advice.

Bottom line, what do you think is the conclusion from this case for people?

- Well, I think truth matters.

- Truth matters.

- Facts matters.

Be the adult in the room.

And don't let your personal beliefs taint or pervert what the truth is.

- Yeah?

- I would caution here that this was a bit of a perfect storm.

I don't know that this is a case that's capable of being replicated with any, you know, rapidity.

I think that this is certainly a perfect storm kind of case.

I think Lee's exactly right, though.

I think that the sort of temperance and reasonableness, you know, early and often in a case, you know, can be critical.

Again, call your lawyer if you got a question and listen to 'em.

I think that that is about as good of advice as I've ever given.

(laughs) And I'll continue to give it.

- On behalf of "Forum 360," we wanna thank our special guests, talking today about the Gibson Bakery versus Oberlin College case.

We thank Chaz Billington from Vorys, and Lee Plakas, for coming to talk with us today on "Forum 360."

(upbeat music) I'm Sally Henning.

- [Announcer] "Forum 360" is brought to you by John S. and James L. Knight Foundation, the Akron Community Foundation, Hudson Community Television, the Rubber City Radio Group, Shaw Jewish Community Center of Akron, Blue Green, Electric Impulse Communications, and "Forum 360" supporters.