May 27, 2010 6:16 PM

Sex Abuse Suit Against Brooklyn High School Gets Major Boost

Posted by Zach Lowe

A federal judge has ruled that nine former students who claim Brooklyn's prestigious Poly Prep Country Day School covered up years of sexual misconduct by a legendary football coach can depose the school's current and former headmasters and examine internal records related to the alleged abuse, according to a story set to run in Friday's edition of Am Law Daily sibling publication the New York Law Journal.

As The Am Law Daily reported last month, one of the plaintiffs is Philip Culhane, a partner at Simpson Thacher & Bartlett who claims the coach, Philip Foglietta, sexually abused him. Culhane and his fellow plaintiffs filed suit in federal court in Brooklyn alleging that school officials have conspired since the late 1960s to cover up Foglietta's behavior, despite multiple complaints from students and their families, court records show.

The suit, filed under the federal Racketeer Influenced and Corrupt Organizations Act, accuses the school of failing to investigate the abuse claims even as it reassured students and parents that it was doing so. The school honored Foglietta at a banquet after his retirement in 1991, about 20 years after the first students came forward and warned administrators about possible sex abuse, court records show. Foglietta died in 1998.

Poly Prep, represented by O'Melveny & Myers, moved to dismiss the case under New York's controversial statute of limitations for sex abuse cases--the exact strategy Culhane and the plaintiffs' attorney, Kevin Mulhearn, himself a Poly Prep alum, predicted the school would use in interviews with us last month. The school asked the judge to deny the plaintiffs' request for discovery, the NYLJ reports.

But this is where the plaintiffs' strategy of using federal RICO laws to bring the case seems to have paid off. The claim that the school has engaged in an ongoing conspiracy to cover up the allegations convinced magistrate judge Cheryl Pollak to grant the discovery request, the NYLJ reports. 

“[I]t is highly likely that defendants have additional information in their possession, particularly given the claim that they conducted an investigation into the charges, which may lead to the discovery of additional information in support of plaintiffs’ equitable estoppel argument, including new victims, and additional instances of acts designed to conceal the abuse, or dissuade the filing of the suit,” Pollak wrote in granting the plaintiffs' discovery motion, according to the NYLJ.

Pollak's ruling means the plaintiffs will get to depose Poly Prep's current and former headmasters and get access to personnel files and records of any investigation the school made into Foglietta, the NYLJ reports. Pollak wrote that the documents and depositions may turn up evidence of additional victims, according to the NYLJ.

Proving a conspiracy or cover-up is not enough to win a RICO case, lawyers told us last month. The plaintiffs must prove both that a cover-up exists, and that they suffered injuries as a result of it. Multiple Poly Prep plaintiffs claim they suffered both emotional damage and financial losses linked to problems finding work.

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