SoA/DCI Lawsuit Update

[scheherazadesghost]

9 minutes ago, FormerXyloWhiz said:

Criminal and Civil are two totally separate areas of law, penalties, and enforcement. 

Criminal activities and consequences are not decided in lawsuits with private attorneys.  They are solely in the scope of governmental authorities to bring and prosecute, i.e., police & states/district attorney offices.  No contract can protect against criminality.  In criminal cases, the burden of the Plaintiff against the Defendant is to prove "beyond a reasonable doubt".  This case and the subject matter is not a criminal matter.

The case is a civil matter that is compensatory at heart, an attempt to "make the Plaintiff whole" (which can never happen of course, but that's the theory).  The burden of proof is not as strict as criminal cases but still tough, Plaintiff has to prove based on a "preponderance of the evidence that it is more likely than not" that SoA or DCI was negligent.  When it comes to civil liability and negligence, you CAN contract your way out of civil penalties.  Example: go Bungie jumping.  I guarantee you have to sign forms that basically say if something terrible happens you waive any right to come after them for civil compensation.  That's what I'm referring to here and that's the sort of thing they are referring to in their filed Answer.  

Ty for explaining, both for myself and the community.

Since our last exchange, I've viewed an old member handbook that had to be signed by members. It's dated, but I saw no such waiver of responsibilities. Just a bunch fluff that they expected from members that apparently JF was free to ignore. Different corps, different era though. So if SOA is bringing it up, I imagine they can back it up, whether it's a waiver policy or NDA.

Young people may not know to avoid a youth education org with such a waiver and loved ones may not be reading over their shoulders. Bungee jumping, or even a 10 week series of youth dance classes are one thing, and I appreciate the example, but touring youth education waiver of responsibility? ICK. The closest I got to that was our corps director shaking my parent's hand an assuring them I'd be safe. That was a lie, but not enforceable.

If we're talking NDAs in any case, well, I and others have already expressed how we feel about that.

[rjohn76]

31 minutes ago, FormerXyloWhiz said:

Criminal and Civil are two totally separate areas of law, penalties, and enforcement. 

Criminal activities and consequences are not decided in lawsuits with private attorneys.  They are solely in the scope of governmental authorities to bring and prosecute, i.e., police & states/district attorney offices.  No contract can protect against criminality.  In criminal cases, the burden of the Plaintiff against the Defendant is to prove "beyond a reasonable doubt".  This case and the subject matter is not a criminal matter.

The case is a civil matter that is compensatory at heart, an attempt to "make the Plaintiff whole" (which can never happen of course, but that's the theory).  The burden of proof is not as strict as criminal cases but still tough, Plaintiff has to prove based on a "preponderance of the evidence that it is more likely than not" that SoA or DCI was negligent.  When it comes to civil liability and negligence, you CAN contract your way out of civil penalties.  Example: go Bungie jumping.  I guarantee you have to sign forms that basically say if something terrible happens you waive any right to come after them for civil compensation.  That's what I'm referring to here and that's the sort of thing they are referring to in their filed Answer.  

Speaking strictly of contracting your way out of civil penalties - one of the drum corps membership contracts that I recently saw had an entire page dedicated to the "Assumption & Waiver of Liability".  By signing the contract, the member agreed to "waive, release, and agree to hold harmless" the drum corps, board of directors, staff, volunteers, sponsors and participants for just about any possible scenario that would result in "injury, illness, disability, death, or loss or damage to person or property".

There was also a section of the contract that held the drum corps accountable and required the corps to abide by all policies outlined in their handbook and understand the consequences should they be violated.  Not sure if that would override or void the contract if the drum corps didn't follow their own policies & procedures with respect to the handling of reported abuse, but I could see that being one area where the lawyers could argue something to that effect.

[cixelsyd]

7 hours ago, Jeff Ream said:

Rumor has a person or and organization. The worst kept secret in drum corps has few people talking 

Would it even be legal for a drum corps non-profit to use its funds for an NDA to cover up other illegal activity?

[FormerXyloWhiz]

15 minutes ago, rjohn76 said:

Speaking strictly of contracting your way out of civil penalties - one of the drum corps membership contracts that I recently saw had an entire page dedicated to the "Assumption & Waiver of Liability".  By signing the contract, the member agreed to "waive, release, and agree to hold harmless" the drum corps, board of directors, staff, volunteers, sponsors and participants for just about any possible scenario that would result in "injury, illness, disability, death, or loss or damage to person or property".

There was also a section of the contract that held the drum corps accountable and required the corps to abide by all policies outlined in their handbook and understand the consequences should they be violated.  Not sure if that would override or void the contract if the drum corps didn't follow their own policies & procedures with respect to the handling of reported abuse, but I could see that being one area where the lawyers could argue something to that effect.

It also occurs to me that if what Spirit is alleging is true and if she signed the member contract herself, as a minor, rather than her parents, that contract is null and void. 

[scheherazadesghost]

15 minutes ago, cixelsyd said:

Would it even be legal for a drum corps non-profit to use its funds for an NDA to cover up other illegal activity?

Thank you for staying in this point. This is the best I could find on the ethics of non profits and NDAs: https://new-harvest.org/why-we-dont-sign-ndas/

10 minutes ago, FormerXyloWhiz said:

30 minutes ago, rjohn76 said:

 

It also occurs to me that if what Spirit is alleging is true and if she signed the member contract herself, as a minor, rather than her parents, that contract is null and void. 

SOA alleges this is fraud on the part of the Plaintiff. Can minors commit fraud? Or does that liability extend to the guardians?

[FormerXyloWhiz]

52 minutes ago, scheherazadesghost said:

Thank you for staying in this point. This is the best I could find on the ethics of non profits and NDAs: https://new-harvest.org/why-we-dont-sign-ndas/

SOA alleges this is fraud on the part of the Plaintiff. Can minors commit fraud? Or does that liability extend to the guardians?

Good question.  Outside the scope of my experience, so I really don't know.  Technically sure, anybody could commit fraud.  But what exactly constitutes "fraud" as they're laying it out, i've got no clue.

[MGCtimp]

2 hours ago, scheherazadesghost said:

Ty for explaining, both for myself and the community.

Since our last exchange, I've viewed an old member handbook that had to be signed by members. It's dated, but I saw no such waiver of responsibilities. Just a bunch fluff that they expected from members that apparently JF was free to ignore. Different corps, different era though. So if SOA is bringing it up, I imagine they can back it up, whether it's a waiver policy or NDA.

Young people may not know to avoid a youth education org with such a waiver and loved ones may not be reading over their shoulders. Bungee jumping, or even a 10 week series of youth dance classes are one thing, and I appreciate the example, but touring youth education waiver of responsibility? ICK. The closest I got to that was our corps director shaking my parent's hand an assuring them I'd be safe. That was a lie, but not enforceable.

If we're talking NDAs in any case, well, I and others have already expressed how we feel about that.

Almost every single youth activity in the country requires signing such a waiver these days. 9 times out of 10 it's required by insurance. They usually don't cover gross negligence though, so just because one exists doesn't mean it's a slam dunk case.

[scheherazadesghost]

17 minutes ago, MGCpimpOtimp said:

Almost every single youth activity in the country requires signing such a waiver these days. 9 times out of 10 it's required by insurance. They usually don't cover gross negligence though, so just because one exists doesn't mean it's a slam dunk case.

Ty, I'm aware, worked as admin and educator in nonprofit youth arts education for a legacy nonprofit. Also, again, it must be a fairly recent (as in the last decade) addition to some contracts, as the one I reviewed from 2013 had no such waiver that I have access to. I certainly didn't sign any such waiver when I marched. Acknowledging that you said "these days" for that reason, I presume. ✌🏽️

But my point, in acknowledging the bungee jumping example and including my own experience in NP community dance education, was that touring drum corps are incredibly different from nearly all other comparable situations in which such a liability waiver would exist... perhaps aside from Olympic sport, and even then, few entities are such large touring teams co-habitating and traveling in tight spaces for two plus months continuously. I'd be curious to see how insurance companies regard such a unique entity as a drum corps and how they justify such a waiver given the outlier, challenging logistics involved. I'll probably never see that info, but marching members should be able to. Hell, transparent nonprofits should provide that by request.

And yes to your point about gross negligence, which in a fair world, would override culpability of a contract fraudulently entered-into by a minor and guardians. The DCI statement itself states that SOA:

 

Quote

• Failed to properly investigate or respond to credible complaints of misconduct.
• Failed to articulate, internally and externally, the job duties of persons in authority and those charged with the duty to keep participants safe.
• Failed to properly train performers, staff, volunteers, administration and its board relative to Spirit of Atlanta’s and DCI’s Code of Conduct.

[cixelsyd]

2 hours ago, scheherazadesghost said:

Thank you for staying in this point. This is the best I could find on the ethics of non profits and NDAs: https://new-harvest.org/why-we-dont-sign-ndas/

I will stick on this point, because it represents a whole new level of evil I never even thought could exist in the activity.  Not even the Hopocalypse involved "hush money" at any point.

Maybe an NDA could be applicable in drum corps at some point.  Some things really need to be kept confidential, like the 1975 Muchachos prelim score.  But hush money must clear a higher bar.  Non-profit funds have to be applied to the mission.  If a corps attached non-profit funds to NDAs for sexual abuse, for hypothetical example, that seems like it would be a legal offense by itself.

[LabMaster]

BITD, way back when, there were no contracts for mm’s. So I am unfamiliar with drum corps contract language and differences between corps contracts.  I would assume there is some common basic language and stipulations with various contracts.  I would also assume because there is a significant difference in corps structure and admin makeup, with some orgs being much more adept or savvy with contracts, that there are significant differences in contracts from one org to another.  My questions then are;

Is there any contract language DCI (the org) requires to be included in each corps contract docs?

Does each corps generate their own individual contracts?

If a minor is being contracted, and parental/guardian docs are required, how is that verified that the signs are legit?

Does anyone have a contract available to see?  I’d love to read through one or more. I’d love to see the clauses that tie other docs or agreements to a contract.

Thanks