by Zach Lowe, (AM Law Daily)
April 12, 2010
Just eight months ago, Simpson Thacher & Bartlett partner Philip Culhane was hoping there was some way he could resolve a deeply troubling and traumatic matter without going to court. Yes, the legendary football coach at his Brooklyn preparatory school had sexually abused Culhane when he was in 5th grade, and, yes, the abuse had plunged Culhane into a nearly 20-year battle with severe depression. But Poly Prep Country Day was his alma mater, a "good institution" that prepared Culhane for college and beyond, ultimately for a career in law. "Will you meet with me?" Culhane wrote to David Harman, Poly Prep's current headmaster, in a letter dated August 31 of last year. "Let's see if together we can't find a way out of this situation."
Two months later, it was clear there was no other way out--at least not one the Poly Prep alum considered fair--and so Culhane made a difficult decision: He became one of six name plaintiffs who, along with three John Does, have sued Poly Prep in federal court in Brooklyn for allegedly covering up decades of sex abuse by the coach, Philip Foglietta, who died in 1998. The school learned of allegations against Foglietta as early as 1966 and failed to act on them even as administrators sent letters to parents assuring them that the school was investigating the matter, the suit alleges. The school celebrated Foglietta's retirement with a dinner even though court records indicate he left the school in part because another victim had come forward, court records show.
A judge is scheduled to hear arguments on key discovery issues on Wednesday. O'Melveny & Myers partner Jeffrey Kohn, the school's lead lawyer, did not return phone calls and e-mail messages seeking comment. The school has vowed to fight the lawsuit.
"It is an unspeakable atrocity," says Culhane, discussing the case and his experience publicly for the first time. "I looked at my kids, and I just had to do it. Watching my 2-year-old son grow up very much took me back to myself [as] a little boy, and realizing that as a little boy, I was not able to protect myself from the abuse. Looking at my son, it was intolerable to me that I not do everything possible to make sure he is never abused."
Culhane is relatively late in joining the lawsuit, which marks an interesting use of the federal Racketeer Influenced and Corrupt Organizations Act, better-known as RICO, against a school in a sex abuse case. He was not among the group of alumni who first sued the school in state court in 2005, a suit which was dismissed under New York's strict and controversial statute of limitations for sex abuse cases. Culhane was not aware of that case until the spring of 2009, when the abuse he allegedly suffered was taking a big enough psychological toll that he traveled from his home in Hong Kong, his permanent base for Simpson Thacher, to New York in order to sort things out closer to where the abuse had occurred, he says. Culhane reached out to a high school friend who in turn introduced him to James Zimmerman, the lead plaintiff in the current case. That in itself was a big step; Culhane had completely cut himself off from Poly Prep after graduating in 1988, he says.
Zimmerman introduced Culhane to the other former students now named as plaintiffs in the pending case (Culhane does not know who the John Does are), and the group struggled along with their lawyer to find a strategy through which they might hold Poly Prep accountable. Culhane quickly realized he had managed better than the other plaintiffs to carve out a successful career despite the trauma he suffered. The other five named plaintiffs have struggled with either alcohol abuse, compulsive gambling, severe depression, and/or an inability to earn a stable living, court records show. Culhane alleges only that he battled depression and spent significant sums of money on counseling. "I've always had an ability to compartmentalize things," Culhane says of his success at Simpson Thacher. "I've always been a pretty driven person."
It has obviously not been easy. Culhane alleges that Foglietta, who worked at Poly Prep from 1966 to 1991, when the coach left for reasons that are disputed, molested him several times while Culhane was in the 5th and 6th grades. Other plaintiffs have alleged that Foglietta engaged in acts of mutual masturbation and oral sex, sometimes in the locker room showers, according to court records. Foglietta's office was located in the boy's locker room. His charisma and his power at the school gave him a unique sway over Poly Prep's students, according to Culhane and court records. Foglietta, who was single and lived with his mother, took students out for ice cream and trips to Coney Island, opened the gym for them on weekends, and invited some students to his home, court records show.
Culhane never saw Foglietta's home and he found a way to end the alleged molestation by the time he was 12, he says. He still is not sure how he managed to do so and why he chose to end things when he did. "I just realized I didn't have to go anywhere near him," Culhane says. "I remember hiding in the stairwell and showing up late for gym class just so that I could avoid him. I guess he moved on. I was not the only kid in his sphere of activity at the time. I was able to escape because he had lots going on."
When Culhane first learned of the possible federal suit last year, he was cautious both about getting involved with public litigation and the viability of a RICO claim against Poly Prep, he says. He was hoping the school would take action without the threat of a lawsuit. The conciliatory tone of his August letter reflects that, he says. "Naively, I was hopeful they'd be responsive," he says. "It seemed so obvious that the school needs to do something. I was hopeful there might be a way to avoid litigation."
A curt response from the school's headmaster proved otherwise, Culhane says. Harman, the headmaster, wrote Culhane a one-paragraph response saying the school was "sorry to hear your story," but that it would have to discuss the situation with its lawyers, according to the suit. "I went from not being that supportive to saying, 'Ok, I have to do this,'" Culhane says. "It became obvious to me that it was something necessary." Culhane told management at Simpson Thacher he would get involved with the suit. The firm, he says, has been supportive. Simpson Thacher declined to comment for this story.
Culhane also become more intrigued by the idea, hatched by Kevin Mulhearn, the plaintiffs lawyer in the case, to pursue a RICO claim against Poly Prep. A handful of past high-profile RICO claims alleging a conspiracy within the Albany Roman Catholic Diocese to cover up sex abuse had met with disastrous dismissals and a one-year suspension for John Aretakis, the plaintiffs lawyer who helmed those cases, according to Mulhearn and American Lawyer archives. Proving a conspiracy or cover-up is not enough to win a RICO case, Mulhearn says. The plaintiffs must prove they suffered injury or loss of property as a result of any alleged conspiracy, says Mulhearn, himself a Poly Prep alum who played football for Foglietta. (Mulhearn is not among Foglietta's alleged victims.)
Still, Mulhearn thought he could build a case. He says Aretakis's RICO complaints were "poorly pled," and he set about collecting information that would show the school covered up Foglietta's abuse and that the abuse and cover-up hurt plaintiffs in concrete ways. Mulhearn got his break last year, when a previously unknown victim, William Jackson, informed a nonprofit group Mulhearn helped create for Poly Prep abuse victims that he told school officials in 1966 that Foglietta had been molesting him. The officials conducted a "sham investigation" that concluded Jackson's allegations were "not credible," and warned Jackson he would be disciplined if he complained about Foglietta again, according to the suit. "We were examining RICO before Bill Jackson came forward" last year, Mulhearn says. "And when that happened, we thought we certainly had enough to go forward with a RICO claim."
Mulhearn knows the O'Melveny team will argue that the allegations are time-barred, and that the damages plaintiffs are alleging--depression, money spent on counseling, problems finding a good job--are "too speculative," he says. But he's confident he can make the case. Even though he's a lawyer, Culhane is doing his best not to interfere too much with his lawyer's case. Still, he knows the legal issues are tough. "Anyone who has spoken to me has been very supportive," Culhane says, "which is not to say that every lawyer I've spoken to is convinced we have a slam dunk case."