As Harvey Weinstein’s sentencing looms and Danny Masterson moves toward a retrial, a new phase in #Metoo-era litigation is underway in New York as a result of the state’s Adult Survivors Act — and a case involving former president Donald Trump is one of the first to test its limits.
The ASA was signed by Gov. Kathy Hochul on May 24, and effectively suspends time constraints on claims involving sex offenses for a one year period that began on Nov. 24. The lookback window in the ASA is similar to that in the state’s Child Victims Act, which was first signed into law on Feb. 14, 2019 and resulted in more than 10,000 lawsuits.
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Gibson Dunn litigator Brian Ascher notes that courts “tend to get a bunch right away and then a lot right at the end of the period.”
That’s what happened just before the New Year in California, as a crush of cases were filed before the end of a three-year lookback window that allowed child sexual assault survivors to sue their abusers — including one from the now septuagenarian stars of Romeo & Juliet, who are claiming that director Franco Zeffirelli tricked them into filming a nude scene as teens back in the late 1960s.
Ascher says an influx could create a logistical headache. “The New York state court system is still working through the backlog of cases that got delayed during the pandemic,” he says. “So, I’m sure it will stress the courts a little bit more.”
As claims mount in this next round of litigation, there’s one key difference to be mindful of: The ASA also includes a provision that allows for claims against employers if the incident involved the workplace.
“What’s unique about the ASA, and how it will be different from the CVA, is there will be a lot of cases against employers who will have liability as a result of managers and senior-level people who engage in these kinds of behaviors,” says Manhattan-based employment litigator Douglas Wigdor, who has multiple clients that have filed complaints under the law.
An employer’s liability in these matters will largely center on the nature of the professional relationship between the victim and alleged perpetrator and if the company’s relevant policies and procedures were followed at the time.
“Trauma stemming from sexual abuse can take years and decades to process,” says employment litigator Jonathan Schulman of Slater Slater & Schulman. “Many women who may not have wanted to confront and deal with their trauma, may have now found the courage to do so. And seeing other women pursue claims under the ASA lookback window will only strengthen their resolve. As such, employers need to know they may be held liable for abuse that occurred years and decades ago, even if they have taken subsequent measures to address the problem.”
The ASA applies to “intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense.” According to the state’s penal code, in addition to felonies like rape and aggravated sexual assault, a sexual offense includes forcible touching. In 2019, New York extended the statute of limitations to 20 years for adults filing civil suits arising from certain sex offenses, but it wasn’t retroactive and only applied to cases filed on or after Sept. 16, 2019. The ASA was designed to address those prior claims.
According to the legislative summary of the bill it was necessary because “[t]hose who have had justice denied them as a result of New York’s formerly insufficient statutes of limitations should be given the opportunity to seek civil redress against their abuser or their abuser’s enablers in a court of law.”
Regina E. Faul, chair of the employment & labor group at Phillips Nizer, emphasized the potential liability of enablers. “Claims may be brought against ‘any party’ for injuries resulting from the abuse, including individual abusers and institutions,” she says. “In other words, any entity that enabled the abuse through what they did or failed to do.”
When the bill was passed in May one of its sponsors, NY Assemblymember Linda B. Rosenthal, called it a “watershed moment for survivors of sexual assault.” She added, “When the ASA finally becomes law, the doors to justice will be flung wide open and countless survivors will have an opportunity to seize justice by filing a case against their abusers, and the institutions that harbored them, in the civil court.”
In a Nov. 14 statement, less than two weeks before the law went into effect, co-sponsor Senate Judiciary Committee Chair Brad Hoylman said, “Survivors of horrific trauma deserve our support whenever they decide they are ready to pursue justice. I am proud to support these survivors as they seek the justice that was long denied to them.”
Nine minutes after midnight on Thanksgiving Day, moments after the lookback window opened, writer E. Jean Carroll sued Donald Trump over an alleged rape in the mid-90s. She’s been in litigation with the former president since 2019, but only for defamation after he called her a liar when she came forward with the accusation ahead of her book release, as the statute of limitations in her case had passed. The ASA gave her an opportunity to bring a sexual assault claim.
U.S. District Judge Lewis Kaplan on Friday rejected Trump’s bid to have the suit dismissed, marking the first decision on a motion in a high-profile case. Trump’s lawyers had argued that the ASA violates the Due Process Clause of the New York State Constitution, which experts anticipate will be a common defense.
“[T]he New York Court of Appeals recently made clear that the test for whether a claim-revival statute is consistent with the New York Due Process Clause is simply whether the revival statute is ‘a reasonable measure to address an injustice,'” writes Kaplan in a Jan. 13 opinion. “The answer is obvious.”
Trump argued lawmakers hadn’t adequately articulated the injustice the ASA was trying to correct, but Kaplan isn’t buying it. In fact, he called the argument “absurd.”
“There is not a single word in the New York Due Process Clause to support that suggestion,” writes Kaplan. “Moreover, the historical context, literally all of the indicia of legislative intent available to us, and the precise words of the statute laid alongside the words to the CVA undeniably demonstrate the precise injustice that moved the Legislature to act. In any case, under New York law, it is not the function of courts to second guess the Legislature as to the existence of a serious injustice in determining the constitutionality of a revival statute.”
As of Jan. 3, at least 23 complaints have been filed under the ASA in New York state courts, according to data from the New York State Unified Court System Division of Technology and Court Research. These numbers only reflect cases that had been electronically filed and don’t include petitions that were filed on paper in the county clerk’s office. (Similar data for the federal courts does not appear to be readily available.)
Other high-profile suits have been filed against Bill Cosby, NBCUniversal, Carsey-Werner and Kaufman Astoria in connection with allegations dating back to The Cosby Show; Atlantic Records and the Estate of Ahmet Ertegun; director James Toback and the Harvard Club of New York City; and New York State Attorney General Letitia James’ former chief of staff Ibrahim Khan, James as an individual and the AG’s office.
Theoretically, this creates an opportunity for many of the women who came forward during the #MeToo movement with allegations of job-related harassment and assault. NBC, Fox News and CBS, to name a few, were among the media monoliths that employed powerful men accused of varying levels of sexual misconduct. Of course, many of those claims settled.
“The ASA does not revive claims that have been settled or released, however, it does expressly cover claims that were previously dismissed on statute of limitations grounds,” says Faul. “Employers may wish to review past complaints or claims involving sexual offenses to evaluate the extent of possible exposure from potential claims that could be brought pursuant to the ASA. Employers may also wish to consider preserving and collecting documents that might be relevant to any such potential claims.”
Ascher doesn’t expect the law to disproportionately affect media companies, even though those cases tend to attract headlines. “I would expect that you’ll see claims under this law against a lot of different companies,” he says.
Entertainment litigator Andrew Brettler, who has represented several high-profile clients in connection with harassment and abuse allegations, says he expects a “significant increase in the volume of litigation,” possibly even more than the CVA. He also anticipates similar challenges to the one Trump asserted, especially in decadesold cases.
“Statutes of limitations exist for a reason: Over time, memories fade, documents get lost or thrown away and witnesses die, all of which makes it difficult to defend such claims,” says Brettler. “For this reason, among others, I expect there will be constitutional challenges to the statute based on the Due Process Clauses in both the U.S. and New York Constitutions.”
He continues, “While the constitutional challenges to the CVA were largely unsuccessful, proponents of the ASA will have to overcome the additional fact that this statute is aimed at adults who could, or should, have appreciated the abuse they suffered and presumably would have had the awareness to file timely claims against their alleged perpetrators.”
Widgor agrees there will likely be due process complaints, but says the time lapse doesn’t only impact defendants. “That’s a double-edged sword,” he says. “At the end of the day, the plaintiff has the burden of proof.”
Trump’s challenge won’t be the last, and he will likely file an appeal, but Kaplan’s opinion is clear: “The fact that adult victims of sexual abuse are legally and in some respects practically capable of instituting civil litigation against their abusers from the moment the abuse occurs [is] constitutionally immaterial. The elected branches of the New York State government have determined that many such victims are unable to do so, sometimes for long periods of time. They are prevented by suppression of awful memories or deterred by fear and a ‘culture of silence.'”
One thing people shouldn’t be afraid of is getting fired for bringing a claim. “People are still protected by the anti-retaliation statute,” Wigdor says. “If they do come forward, people ought to know they have safety in that their current employer couldn’t retaliate against them for bringing a case like this.”
