O'Melveny Says Plaintiffs Confuse Advocacy With Misrepresentation
O'Melveny & Myers, fighting to dismiss a state suit brought by alumni of an elite Brooklyn prep school that was represented by the firm in a prior federal action, said the alumni cannot sue the firm with "previously abandoned" claims of purported deception on the courts.
In December, 10 Poly Prep Country Day School alumni and two former summer camp participants settled a closely-watched Eastern District lawsuit stemming from alleged decades of abuse by the school's football coach, Philip Foglietta, now deceased, and the school's concealment of the actions.
Less than a year after the confidential settlement, many of the same plaintiffs sued O'Melveny and Jeffrey Kohn, the New York managing partner, in Manhattan Supreme Court. Pointing to state Judiciary Law §487—which forbids attorneys' "deceit or collusion, with intent to deceive the court or any party"—the alumni said the defendants should be held accountable for "their grievous and oft-repeated falsehoods" when defending the school in the federal suit (NYLJ, Aug. 15).
But in an Oct. 11 dismissal motion, O'Melveny fired back that the plaintiffs missed their chance to assert alleged misrepresentations, which, it added, were faulty to begin with.
"After settling an earlier federal court litigation on confidential terms, Plaintiffs are now seeking more money by bringing a new action in which they repeat spurious allegations that the defense lawyers made 'misrepresentations' in the earlier action. Plaintiffs made—and then voluntarily abandoned—the identical allegations in the earlier federal proceedings. Plaintiffs' improper attempt to revive in a new action the allegations they previously abandoned fails as a matter of law for several reasons," O'Melveny said in Zimmerman v. Kohn, 652826/2013.
The firm asked for a discovery stay pending resolution of the dismissal motion.
A judge has not yet been assigned to the case.
The state action focuses on an internal Poly Prep investigation conducted in 2002 and early 2003. Foglietta died in 1998.
The school brought in a former federal prosecutor, Peter Sheridan of Tarrytown, to probe the extent, if any, that faculty members and administrators knew of the coach's behavior. Sheridan's notes were later discarded.
The alumni challenge the school's assertion that Sheridan reached a "conclusion" that no one knew of the misconduct before 1991. In their federal suit and again in the state action, the alumni say the probe had been cut short.