3:34pm PT by Ashley Cullins
Weinstein Class Action Settlement Challenged as "Unjust and Vile" as Multiple Accusers Object
One of the women at the core of a class action complaint against Harvey Weinstein says she was fired as a client by her lawyers for not being "deferential" enough and for voicing her concerns about the terms of a proposed settlement. She's one of several Harvey Weinstein accusers asking a New York federal judge to deny preliminary approval of the deal.
Zoë Brock on Friday filed an opposition to the settlement and told the court that she'd been dropped by Elizabeth Fegan. In a Dec. 18, 2019, email attached to the filing, Fegan writes, "It is clear that our relationship has deteriorated to the point that it cannot be reconciled," and advises Brock to find new attorneys either at the other firm representing the Weinstein class of accusers, Hagens Berman, or elsewhere.
"While Ms. Brock is a named Plaintiff in this case and is listed in the Amended Complaint as a class representative, she was excluded from the settlement negotiations in this matter," writes attorney Daniel D. Williams in the filing. "When proposed settlement terms were disclosed to Ms. Brock last fall, she vocally objected that the terms of the settlement were inadequate to hold Mr. Weinstein, his enablers, and his companies responsible for the harm they had caused. Ms. Brock also had voiced serious concerns that the compensation proposed for Fegan and Hagans was excessive and did not put their clients first. Once Ms. Brock voiced those concerns, Attorney Fegan notified Ms. Brock that she would no longer represent her."
In a footnote in Fegan's reply to the filing, the attorney disputes that characterization. "Ms. Brock has put what she asserts is the reason for Fegan Scott's termination of her at issue, apparently waiving the attorney-client privilege," it reads. "While her accusations are inaccurate, they are a red herring not relevant to preliminary approval. If the Court would like a declaration regarding the facts and timeline, Ms. Fegan will provide one upon the Court's request."
Brock is arguing the settlement should be rejected because the victims' fund is being funded by insurance companies, so Weinstein and the other executives who are accused of enabling the alleged conduct are paying nothing.
"It defies credulity to suggest that neither of the Weinstein brothers nor other alleged conspirators have any money to contribute to the settlement," writes Williams. "Likewise, many of the officers and directors who facilitated or turned a blind eye to Mr. Weinstein's conduct appear to be very wealthy individuals, who could withstand a significant judgment even if The Weinstein Company were dissolved in bankruptcy and no indemnification was available because the relevant insurance policies were exhausted. The settlement papers before the Court do not explain why these wealthy men are being asked to contribute literally nothing to a settlement that releases them from the potential of huge damages judgments against them."
Brock also takes issue with the claims process, arguing the disclosures that it requires will "inhibit and obstruct the most traumatized potential claimants," as well as the criteria that will be used by the special master to allocate awards.
Fegan replied in a Sunday filing that calls Brock's objection "premature and misinformed." While every class member has a right to object and be heard, she argues, "there's a time and a place for objections to a class action settlement, and this is not it."
That time, Fegan argues, is when the court is considering final approval.
"The typical settlement approval sequence — preliminary approval and issuance of notice, followed by opt-outs and objections, and then final approval — makes sense and serves important purposes," writes Fegan. The attorney also argues that Brock's claim that Weinstein attempted to assault her in 1996 during the Cannes Film Festival was dismissed for being outside the statute of limitations and likely wouldn't be revived on appeal. "Absent this Settlement, Ms. Brock is likely to receive nothing."
Fegan also defends the claims process, arguing it is based on claim forms used in other sex abuse and discrimination matters including the $215 million settlement in the highly publicized class action against USC gynecologist George Tyndall.
Meanwhile, former Weinstein Co. employee Alexandra Canosa on Monday filed her own objection to the settlement. She alleges there were "multiple attempts to scare her into settling" — including a "heavy-handed" attempt by someone from the New York Attorney General's Office during a Skype interview.
Canosa alleges that the agreement is structured to penalize non-settling class members and rewards Weinstein at the expense of the women who accuse him of abuse and harassment.
"Elementary decency, fairness and justice would not permit a convicted rapist to receive settlement monies at the expense of his victims," writes attorney Thomas P. Giuffra. "To punish the non-settling Plaintiffs for not settling, HW and his brother will be provided with a $1,500,000.00 defense fund taken from the monies that would otherwise have gone to Ms. Canosa, Weidil David and Dominique Huett so that he can fight their claims. … This provision standing alone demonstrates what an unjust and vile agreement the Court is being asked to approve."
Canosa also notes that if the settlement is finalized, TWC — her former employer — will be dismissed from her lawsuit against Weinstein and she'll be forced to accept a "paltry" $25,000 from the company. She also argues that even if she does accept the settlement now, she's being penalized $600,000 for not agreeing to settle sooner. Like Brock, Canosa takes issue with the insurance companies footing the bill for the settlement and attorneys' fees.
Also on Monday, Douglas Wigdor and Kevin Mintzer, who represent several women who have claims against Weinstein, filed an opposition to the settlement. The filing on behalf of Wedil David, Dominique Huett, Kaja Sokola, Rowena Chiu, Zelda Perkins and Tarale Wulff echoes many of the same concerns. The attorneys in a statement to the press described it as the most one-sided and unfair settlement they've seen proposed to a court. "Under no set of circumstances should the uber-wealthy former directors, including Harvey and Bob Weinstein, receive more money than a class of rape and sexual assault survivors," it reads, in part. "The efforts being made to prevent women from continuing with their litigation and holding those responsible for their trauma accountable are simply unprecedented. We are heartened by the growing opposition to this settlement and are hopeful that it will be rejected."
Another objection was filed Monday by a group of four anonymous women who say they were sexually assaulted by Weinstein. Their attorney Jordan K. Merson wrote in a filing that his clients "strenuously, vociferously and wholly object to the proposed 'settlement.'"
Attorneys for Miriam "Mimi" Haley, who was among the victims that testified at Weinstein's criminal trial, on Monday sent a letter to U.S. DIstrict Judge Alvin K. Hellerstein asking him to delay ruling on the motion for preliminary approval so they can assess whether their client should intervene in the proceedings. States the letter, "Although we have only begun exploring the terms of this complex proposed settlement, it is clear even from our initial research that the terms of the proposed mandatory settlement class would unlawfully deprive Ms. Haley of her right to opt out if she decides to pursue her unusually strong civil claims against Harvey Weinstein and/or his aiders and abettors."
Because Weinstein's conviction is tied, in part, to Haley's testimony, the statute of limitations for her to bring a civil claim is extended to five years from the date of that conviction.
"Moreover, Weinstein's criminal conviction would collaterally stop him from relitigating in Ms. Haley's potential civil action whether he raped her, and she therefore could move for summary judgment immediately and would be entitled to a judgment as a matter of law regarding Weinstein's liability in any civil action she might file against him," writes attorney John Cuti in the letter. "But counsel in this action would require Ms. Haley to forfeit those rights if this proposed settlement is approved. Under the terms of the proposed settlement, Ms. Haley, who was assaulted on July 10, 2006, would be a member of the putative Post-2005 Subclass. No member of that putative Subclass has the right to opt out."
It's worth noting that, even if Hellerstein doesn't deny preliminary approval, if enough women object the settlement could fall through. There is an opt-out threshold for certain members of the class that would allow the defendants to withdraw from the deal. That number is currently not public — and attorneys for the class are fighting to keep it that way. Last week, Fegan filed a motion asking the court to keep it confidential to "discourage third parties from soliciting class members to opt out."
Weinstein's lawyer Imran H. Ansari of Aidala, Bertuna & Kamins on Monday sent The Hollywood Reporter a statement in response to the objections. "Mr. Weinstein does not intend to forfeit his legal and constitutional right to mount a defense to the accusations against him and has every intention to defend against the claims made against him by those who are not partaking in the settlement," said Ansari. "The practical reality is that those who opt out of the settlement face an uncertain financial recovery, with The Weinstein Company bankrupt, and Mr. Weinstein defending legal matters, facing debt and judgments, frozen assets, and a line of creditors looking for compensation. Mr. Weinstein’s current and future financial state is far from healthy, not only has his personal liberty been taken from him, but his financial liberty as well."
A hearing is currently set for Tuesday morning. Here's how long each of the parties' legal teams will have to argue: the class (15 minutes), Weinstein (5 minutes), The Weinstein Co. (5 minutes), the New York Attorney General's Office (5 minutes), Brock (2 minutes), Canosa (2 minutes), Haley (2 minutes), and Wigdor will get 5 minutes total on behalf of Chiu, David, Huett, Perkins, Sokola and Wulff.