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Is Michigan State's Nassar Settlement Fake News for Some Survivors?

On May 16, 2018, Michigan State University announced that after several rounds of mediation, they had reached a "$500 million global settlement" on behalf of survivors of disgraced former MSU doctor Larry Nassar. The terms stated that $425 million would be paid to the 332 current claimants, and $75 million would be set aside for future claimants. Here is a copy of the May 16, 2018, Press Release

If the settlement has been reduced to writing that has not been disclosed by MSU or the media. The settlement is additionally contingent on victims agreeing to drop public support for bills pending in the Michigan Legislature, making it easier to bring lawsuits against state institutions. This stipulation has troubled survivors, who have vowed to keep speaking out.

Under the settlement, each known claimant may receive between $250,000 and $2.5 million, according to one of the survivor's lawyers. A special mediator will evaluate the claims of each victim, considering factors "such as when the assaults occurred, how many times, whether the survivor was a minor at the time or the assault involved touching versus penetration ... probably on a point system."

However, troubling questions remain. The first is where the funds will come from. Sources may include insurance, bonding, and uncommitted funds. MSU had no further comment on how the money would be raised. Another is whether there will be enough money to adequately pay the victims, after payment of legal fees and expenses.

By far the biggest question is how those survivors, who were not privy to the initial settlement, may make a claim. MSU's public statements have expressed apologies to the survivors and a commitment to beginning the healing process. But there is little sign that they will make the claims process easy.

MSU has hired two formidable law firms to fight the claims of 257 of the survivors (and 21 of their husbands, with derivative claims) who have filed in federal court. Their 75-page "motion to dismiss" offers nothing but sympathy, quoting "As much as MSU sympathizes with Plaintiffs, it would be contrary to the State's established public policy, as embodied in the laws and the decisions of its courts, to impose legal liability on the MSU Defendants ... But here, 'sympathy is an insufficient basis for approving a recovery based on a theory inconsistent with law.' As a matter of law, Plaintiff's Complaints must be dismissed."

In support, MSU raised various defenses, which include:

  • They have claimed governmental immunity, based on constitutional and statutory principles generally shielding governmental entities (including state universities) from suit.
  • They have argued that the Plaintiffs failed to file mandatory notices of the intent to sue with Michigan's Court of Claims, and that to the extent they have, they were untimely or defective. ("Thirty-five Plaintiffs, including 17 husbands, failed to file any NOI [notice of intent to sue] with the Court of Claims at all. Of the remaining 243 Plaintiffs, all but potentially one failed to file NOIs within six months of the time they allege they were last assaulted.")
  • They have argued that those who were not MSU students or employees have no right to sue under Title IX, the federal statute permitting sexual assault claims against colleges receiving federal funds.
  • They have argued that the claims of at least 266 Plaintiffs are untimely under the statute of limitations, and to those who asserted that MSU's fraudulent conduct excused the late filing, MSU responded that the victims did not plead their fraud allegations with sufficient "particularity."

MSU's motion to dismiss is still pending. It is expected that the survivors with pending cases and their lawyers will eventually put their litigation on hold, and begin the lengthy claims process. It is not known to what extent MSU will continue fighting on the basis of the above defenses, nor how difficult it will be to resolve claims.

For those survivors who have not yet filed suit, they are on the outside looking in. The claims process is neither available, nor transparent to them. Legal assistance may be required in order to make a claim the traditional way, file suit, or otherwise to make a formal pre-suit demand. Until they do so, MSU will have nothing to offer but sympathy.

Nicholas Roumel (bio) is a Principal with NachtLaw, PC and has successfully litigated numerous claims on behalf of sexual assault survivors. Contact him at [email protected] or 734-663-7550.

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