SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

———————————————————————X INDEX NO.:
JANE DOE #1236; JANE DOE #1252; individually 952117/2023
and on behalf of all similarly situated,

Class Plaintiffs, PLAINTIFFS’

MEMORANDUM
- against - OF LAW

COLUMBIA UNIVERSITY; THE NEW YORK AND

PRESBYTERIAN HOSPITAL; COLUMBIA
PRESBYTERIAN MEDICAL CENTER; COLUMBIA
UNIVERSITY MEDICAL CENTER;
COLUMBIA-PRESBYTERIAN MEDICAL CENTER,
EAST SIDE ASSOCIATES; EAST SIDE ASSOCIATES;
THE TRUSTEES OF COLUMBIA UNIVERSITY IN
THE CITY OF NEW YORK; COLUMBIA UNIVERSITY
COLLEGE OF PHYSICIANS AND SURGEONS;
PRESBYTERIAN HOSPITAL PHYSICIAN SERVICES
ORGANIZATION, INC.; COLUMBIA-CORNELL
CARE LLC.; COLUMBIA CORNELL NETWORK
PHYSICIANS, INC.; SLOANE HOSPITAL FOR
WOMEN; HAROLD E. FOX; JANE BOOTH;
PATRICIA CATAPANO; JOHN C. EVANKO;
ROBERT HADDEN; ROBERT KELLY;
LEE GOLDMAN; and MARY D’ALTON,

Defendants.
———————————————————————X

STATEMENT OF FACTS

On October 3, 2023, The DiPietro Law Firm filed 301 new cases against

Columbia University, and its affiliated institutions and individuals (hereinafter

“Columbia”), asserting 18 causes of action, all of which arise out of Columbia’s cover-

1
up, and enabling, of Robert Hadden’s serial sex crimes against unsuspecting OB/GYN

patients.

On October 18, 2023—after appreciating the enormity of the abuse that was

covered-up by Columbia; Columbia’s ongoing refusal to send a notification letter to

patients who were exposed to Hadden for 25 years; and the approaching deadline for

cases to be filed under New York’s Adult Survivors Act (“ASA”)—The DiPietro Law

Firm filed this Class Action (“Complaint” or “Class Complaint”), pursuant to CPLR §

901, to protect the interests of patients who Columbia exposed to Hadden’s exploitation

and abuse.

The Class Complaint asserts, inter alia, the putative class members:

[W]ere gynecology or obstetrics patients of defendants and

their agents, servants and employees including ROBERT
HADDEN who, while in the scope of his agency, affiliation,
relationships or employment with defendants, and while
performing services for the defendants, repeatedly sexually
abused, sexually exploited and sexually assaulted each of the
Plaintiffs and other members of the Class under the guise of
medical care and treatment between 1987 and 2012, all of
which was enabled by the acts and omissions of the defendants.
Such acts and omissions constitute crimes under New York
Penal Law Article 130.” NYSCEF Doc. No. 1 at ¶63.

This class action was filed under the Adult Survivors Act (“ASA”) CPLR § 214-j,

the Victims of Gender Motivated Violence Protection Law (“GMVA”) New York City

Admin. Code § 10-1101, et. seq., and various other causes of action involving fraud and

fraudulent concealment under New York law.

2
 The Complaint identifies two women—Jane Doe # 1236 and Jane Doe # 1252—

as representatives of the class. By order dated November 29, 2023, this Court granted

plaintiffs’ motion to proceed under pseudonyms in the Class Complaint. (NYSCEF Doc.

33).

Defendant Robert Hadden was criminally convicted in January 2023, in the

Southern District of New York, upon a jury verdict for federal crimes that stem from

decades of Hadden’s sexual exploitation, abuse, and trafficking of patients. Hadden is

currently serving a sentence of 20 years imprisonment. Hadden was previously convicted

of State crimes in the Supreme Court, New York County, upon a plea of guilty, for which

he received a sentence of his medical license surrender, registering as a sexual offender,

and probation.

On November 15, 2023, approximately one-month after this Class Action was

filed—and six-weeks after the 300+ new individual cases were filed—Columbia

University suddenly changed tack, and began sending out a nefarious “Catch & Kill”

letter—masquerading as a “patient notification letter”—to an estimated 6,500 patients

who were exposed to Robert Hadden. See, Exhibit “A”. In its letter, Columbia University

announced the creation of a so-called “$100 million survivors’ settlement fund” for

“Hadden’s victims.” See, id.

Columbia’s announcement further states an “external investigation” is being

conducted to determine “the circumstances that allowed Hadden’s abuse to continue,

3
establish a process for survivors and others with knowledge of Hadden’s abuse to share

their stories, and issue public findings.”

Columbia’s letter states the university settled more than 220 claims—but fails to

mention those settlements were the product of a decade’s worth of litigation undertaken

by The DiPietro Law Firm. See, id.

Further, in violation of the Rules of Professional Conduct 4.2(a) and (b),

Columbia sent its communications directly to dozens of our firm’s clients, without the

knowledge or consent of our law firm.

Columbia claims its “notification letter” complies with the seven-year old “2016

Order” by the NYS Department of Health (OPMC), which mandates patients be informed

that Hadden’s lost of his medical license, and how patients can obtain copies of their

medical records. However, until the filing of this class action, Columbia has never

attempted to comply with the 2016 Order. To the contrary, Columbia has repeatedly

refused to do so. Even now, Columbia’s letter does not inform patients how to obtain

copies of their records—and therefore does not comply with the mandates of the OPMC’s

Order.

Columbia decision to directly contact the class members is an overt attempt to

perform an end-run on the judicial process. In doing so, Columbia has chosen to provide

the class members with coercive, misleading, abusive, and false information, all of which

is designed to increase Columbia’s chances to pare down the number of people in the

class, and settle hundreds of cases, for as little as possible, in its bogus settlement fund.

4
 From the outset, the Court will note that all 6,500 patients to whom Columbia

sent the letter are "class members” under 28 U.S.C. § 1711(4) which states:

Class members.—
The term “class members” means the persons (named or unnamed)
who fall within the definition of the proposed or certified class in a
class action. (emphasis added)

As discussed in detail below, CPLR § 907(3) is designed to provide this Court

with the authority to restrain defendants in class actions from providing class members

with “information” which is misleading, abusive, coercive, or false, or which contains

material omissions of law or fact. Columbia’s letter does all of this.

Allowing this sort of impermissible conduct, by a defendant in a class-action

case, will cause irreparable injury to class members. A temporary restraining order and a

preliminary injunction should be issued, pending the Court’s opportunity to establish

what communications, if any, the defendants may have with class members.

ARGUMENT

PURSUANT TO CPLR § 907 THE COURT SHOULD ISSUE A

TEMPORARY RETRAINING ORDER, AND A PRELIMINARY
INJUNCTION, RESTRAINING COLUMBIA FROM SENDING ANY
FURTHER LETTERS TO, OR COMMUNICATING WITH ANY
CLASS MEMBERS WHO HAVE ALREADY RESPONDED TO
COLUMBIA’S LETTERS OR ADVERTISEMENTS, BECAUSE THE
INFORMATION BEING DISSEMINATED BY COLUMBIA:
(1) UNDER SETTLED LAW IS MISLEADING, COERCIVE,
ABUSIVE, CONFUSING AND FALSE; AND
(2) PREJUDICIALLY FAILS TO INFORM CLASS MEMBERS
OF THE EXISTENCE OF THIS CLASS ACTION AND OF THE
TOLLING FOR CLASS MEMBERS OF THE STATUTE OF
LIMITATIONS UNDER THE ADULT SURVIVORS ACT.

5
A. Applicability of CPLR § 907 to Class Actions in New York State Courts

Pursuant to CPLR § 907, this Court may make “appropriate orders” in class

actions “imposing conditions on the representative parties or on intervenors.” See, CPLR

§ 907(3).

CPLR § 907 is based on Federal Rule of Civil Procedure 23(d). See, e.g.,

Bermudez Chavez v. Occidental Chemical Corp., 35 N.Y.3d 492, 503 2020) (“New York’s

class action mechanism is codified in Article 9 of the CPLR…This Court has repeatedly

stated that CPLR Article 9 was modeled on similar federal law, specifically, Federal

Rules of Civil Procedure rule 23”[internal citations omitted]).

Accordingly, New York courts will look to federal case law to determine the scope

and application of CPLR Article 9. See, Brandon v. Chefetz, 106 A.D.2d 162, 168 (1st

Dept. 1985) (“CPLR Article 9 is modeled on Rule 23 of the Federal Rules of Civil

Procedure…The policy of this rule is to favor the maintenance of class actions and for a

liberal interpretation”); See also, Carnegie v. H&R Block, 180 Misc.2d 67, 71 n.5 (Sup.

Ct. N.Y. Co. 1999).

B. The Purpose and Goals of CPLR § 907(3)

The goal of CPLR § 907(3) is to ensure potential class members receive accurate

and impartial information about the class action, and the Court has the authority to

restrain and regulate communication to class members that is not accurate and impartial.

6
 Significantly, CPLR § 907(3) vests New York Courts with both the power and the

duty to regulate, restrain, and wholly prohibit certain communications by defendants with

members of a putative class.

As stated by the Supreme Court of the United States: “Because of the potential

for abuse, a district court has both the duty and the broad authority to exercise control

over a class action and to enter appropriate orders governing the conduct of counsel and

parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). (emphasis added).

In order to prevent abuse, “it is critical that the class receive accurate and

impartial information.” See, Kleiner v. First National Bank of Atlanta, 751 F.2d 1193,

1202 (11 Cir. 1985); Hinds County, Mississippi v. Wachovia Bank N.A., 790 F. Supp.2d

125, 134 (S.D.N.Y. 2011) (“The Court’s primary purpose in supervising communications

is thus to ensure that potential class members receive accurate and impartial information

regarding the status, purposes and effects of the class action”.) (emphasis added).

Impermissible contact with putative class members is contact which is

misleading, abusive, coercive, confusing, false, or an attempt to affect a class member’s

decision to participate in the litigation. See, Carnegie v. H&R Block, 180 Misc.2d at 71.

In sum, “Unsupervised, unilateral communications with the plaintiff class sabotage the

goal of informed consent by urging exclusion on the basis of a one-sided presentation of

the facts, without opportunity for rebuttal. The damage from misstatements could well be

irreparable.” See, Kleiner v. First National Bank of Atlanta, 751 F.2d at 1203.

7
 Finally, this Court’s supervision of communications with class members can

occur prior to certification of the class. See, e.g., Perez v. Anejo, LLC, 2022 WL

17227026 (Sup.Ct. N.Y. Co. 2022); Hinds County, Mississippi v. Wachovia Bank N.A.,

790 F. Supp.2d at 134 (“even prior to certification, a district court may, pursuant to Rule

23(d), regulate communications by parties and their counsel with putative class

members”).

The overall goal is for Courts to ensure that a defendant in a Class Action does

not overreach, mislead, or misuse its often exclusive access to the unknown class

members to take advantage of them. See, id.

In this context, it is important to understand that the goal of Columbia University

is to reduce, as much as possible, the number of people in the class, and the amount of the

defendants’ financial exposure. See, e.g., Kleiner v. First National Bank of Atlanta, 751

F.2d at 1202 (“When confronted with claims pressed by a plaintiff class, it is obviously in

defendants' interest to diminish the size of the class and thus the range of potential

liability by soliciting exclusion requests”).

8
 Because of the temporal proximity between the filing of this Class Action

(October 18, 2023), and Columbia’s sudden publication of the fund letter1 (November 15,

2023), it is reasonable for the Court to infer that Columbia’s letter was sent in response to

this Class Action. See, Weinstein v. Jenny Craig Operations, Inc., 132 A.D.3d 446, 447

(1st Dept. 2015) (“[T]he court properly exercised its discretion by drawing the inference

that the agreements had been implemented in response to this litigation and to preclude

putative class members”); See also, Alfaro v. Vardaris Tech, Inc., 69 A.D.3d 436, 436 (1st

Dept. 2010) (The First Department recognizes “the inescapable inference that defendants

drafted the letters and affidavits, and sent them to potential class members for the purpose

of soliciting them to exclude themselves from the class”).

C. Columbia’s Communication with Putative Class Members is

Misleading, Abusive, Coercive, Confusing, and False.

Columbia’s letter was designed to forestall class members from participating in

this class action.

(i) Columbia’s Letter is Deceptive

Tellingly, Columbia’s letter fails to mention the existence of this Class Action, or

the fact that—by virtue of having filed the class action on October 18, 2023—the statute

1 As the Court may recall, for the past decade our firm has been insisting that defendant Columbia
University send out a Notification Letter to all of the patients the University exposed to Robert Hadden.
Our requests are memorialized in written correspondence, verbal negotiations, settlement discussions,
mediation submissions, and the two (2) separate Article 78 filings pending before this Court. In every
instance, over the past 10 years, when a request for notification was made of Columbia, Columbia has
flatly refused to send out a notification to its patients—begging the question: “Why now?” While many
people believe the timing is related to the fact that Columbia’s notification occurred only a couple days
before the ASA window closed, our office is of the belief that the timing has more to do with the filing of
this Class Action one-month earlier, which resulted in Columbia’s “Hail Mary” effort to catch and kill as
many of the putative class members as possible.

9
of limitations under the Adult Survivors Act for each of the putative class members has

been tolled.

Courts have held that communications with potential class members, that fail to

inform them of a pending class action, are patently deceptive and require remediation.

See, Carnegie v. H&R Block, 180 Misc.2d at 72 (defendants’ failure to disclose the

existence of a pending class action is “patently deceptive”).

(ii) Columbia’s Letter is Misleading

Columbia’s letter is a misleading communication to the putative class members in

several respects:

(a) Failing to Inform Class Members of the

Existence of the Class Action is Misleading

In addition to being deceptive, Columbia’s communications—that fail to inform

class members of this pending class action—are also misleading. See, Camp v. Alexander,

300 F.R.D. 617, 625 (N.D.Cal. 2014) (Communications that discourage collective action

by omitting key facts, such as a description of the Complaint, are misleading).

(b) Advising or Implying that Class Members Have

No Options, Other than Participating in Columbia’s Fund
is Misleading and Abusive

Columbia’s letter to survivors presents only two choices: they can choose the

“alternative pathway” to the Columbia settlement fund “without needing a lawyer;” or

they can file an action under the Adult Survivors Act for which Columbia incorrectly tells

them the deadline expires “November 23, 2023”. See, Exhibit “A”.

10
 Columbia’s attempt to mislead class members, and limit class members’ paths to

Justice, is wrong.

The first of several batches of letters mailed to class members by Columbia’s

lawyers from their Seattle, Washington office, was mailed on November 15, 2023. By the

time the first batch of letters was received by the class members, the class members were

left with little to no time, to file a claim based on Columbia’s incorrectly stated ASA

filing deadline of November 23, 2023—a holiday (Thanksgiving). This means Columbia

misinformed class members that they really needed to file by November 22, 2023. But

the reality, is that the deadline to file under the ASA was November 24, 2023.2 This

caused the putative class members (based on Columbia’s false averments) to erroneously

believe they had only one-choice left: pursue Columbia’s “alternative pathway” in the

settlement fund, or get left behind.

What is even more outrageous, is the fact that Columbia’s letter does not inform

potential class members that the Adult Survivors Act deadline, for all 6,500 class

members, was already tolled by virtue of the filing of this action on October 18, 2023.

2 Since November 23, 2023, was Thanksgiving Day (when courts are closed pursuant to NY Construction.
Law § 24), Columbia’s statement to patients effectively (and incorrectly) instructed patients that they
needed to file, at the latest, by midnight November 22, 2023. However, the ASA window did not close on
November 22, 2023, or on November 23, 2023. Instead, the ASA window closed at midnight on
November 24, 2023. As this Court will note, Governor Hochul signed the ASA into law on May 24, 2022,
with cases allowed to be filed within a 1-year window that opened 6-months after being signed into law.
As such, the window to file cases opened on November 24, 2022, for a period of 1-year. However, since
November 23, 2023, is a legal holiday (Thanksgiving), the actual deadline to file became the next
business day—November 24, 2023. See, e.g., NY Gen. Construction Law § 25-a (“when the time period
to do an act ends on a public holiday…such act may be done on the next succeeding business day.”).
(emphasis added). Under General Construction Law § 24, Thanksgiving is listed as a recognized statutory
“public holiday,” as referred to under Gen. Const. Law § 25-a.

11
See, e.g., American Pipe and Construction Co., 414 U.S. 538 (1974), and Crown, Cork &

Seal Co. Inc., v. Parker, 462 U.S. 345 (1983).

The tolling rule applicable to Class Actions under American Pipe and Crown,

Cork & Seal, is followed by the Courts in New York State. See, e.g., Bermudez Chavez v.

Occidental Chemical Corp., 35 N.Y.3d 492 (2020).

Under the American Pipe rule, when this Court certifies the class, each of the

presently unknown class members will all be timely under the Adult Survivors Act

because of the tolling.

If the Court does not certify the class, then the tolling rule under American Pipe,

permits each Class Member to either individually intervene in this lawsuit, or file their

own individual-separate lawsuit, while availing themselves of the original October 18,

2023 filing date in this action (pre-expiration of the Adult Survivors Act). See, Bermudez

Chavez v. Occidental Chemical Corp., 35 N.Y.3d at 503.

In short, the unknown class members are not (and were not) under the November

23, 2023[sic] filing deadline presented to them in Columbia’s letter. Because the statute

of limitations has been tolled, each of the 6,500 Class Members can continue litigating

this action and seek Class Certification, in which case their claims will be timely because

of the tolling—and their rights protected.

If the Court does not certify the Class, the tolling will cease the day the Court

denies certification, but the class members will still have over five weeks to intervene in

this lawsuit, or to file their own individual lawsuit, because on the day the toll began

12
(October 18, 2023) five weeks and two days remained until the expiration of the statute

of limitation on November 24, 2023.3

In either instance, the class members do not face the false choice that Columbia’s

letter offers: sue fast under the Adult Survivors Act whose statute of limitations is

expiring, or file a claim with Columbia’s fund.

In light of the fact that Columbia has retained over ten (10) nationally renowned

corporate law firms to fight the victims and survivors in this case, it is fair to conclude

that the decision-makers at Columbia are well aware of the American Pipe rule—and the

timeliness of each of the class members’ claims—but have made a “business decision” to

ignore the rule, take their chances on misleading thousands of class members who are

victims and survivors of sexual abuse, and hope that either our firm won’t call them to

task over it or, if we do, that this court will nevertheless find a way to “go easy” on them.

On the other hand, it is plaintiffs’ hope—in light of what is at stake in a case of this

magnitude—that the Court will not go easy on the defendants’ misconduct and, instead,

will send a clear message that any attempts to flout class members’ protections under

CPLR § 907(3) will not be tolerated.

3 Under American Pipe in the event of a non-certification by the court, the putative class members shall
receive “the balance of the time that was remaining on the statute of limitations,” measured by the
difference between the time when the original Class Action was filed, and when the original statute would
have ended. The calculation is as follows: The time between when this case was filed (October 18, 2023)
and the closing of the look-back window under the ASA (November 24, 2023), equates to 37 days (or 5
weeks and 2 days) which remains on the Statute of Limitations for each of the 6,500 class members.

13
 It is reasonable to conclude that the creation of Columbia’s bogus settlement

fund, and the drafting and distribution of Columbia’s Catch and Kill letter, were

performed in direct response to the filing of this class action.

Columbia’s silence about the existence of this Class Action, and the tolling of the

statute of limitations for class members, is misleading, coercive, abusive, deceptive, and

designed to divert attention away from the Class Action, and direct it toward Columbia’s

fund—all in service of trying to secure a steep financial discount for Columbia, while

they shortchange victims and survivors. See, DiPietro Aff. at ¶¶30-32.

Further, the Adult Survivors Act is not the sole route to filing a claim. For the past

decade, our office has been filing, and pursuing, claims under New York City’s Victims

of Gender-Motivated Violence Protection Law (NYC Admin. Code § 10-1101), as well as

under New York’s anti-fraud and fraudulent concealment laws. See, Verified Complaint

[NYSCEF Doc. 1].

Significantly, the look-back window on New York’s Victims of Gender-Motivated

Violence Protection Law is open, and remains open, until February 28, 2025.

Columbia’s communications with class members should be restrained, and

remediated, by the Court.

(iii) Columbia’s Letter is Abusive and Coercive

By implying, if not directly stating, that Columbia’s fund is the only viable option

to class members—Columbia has coerced and induced unrepresented, and unsuspecting,

14
class members into believing their only options are to participate in Columbia’s fund, or

forgo filing a claim altogether.

(iv) Columbia’s Letter is Factually False

In addition to the statute of limitations being tolled by the filing of this class

action, each of the putative class members herein have other wholly viable causes of

action that can be pursued. However, Columbia’s fake “notification letter” was drafted to

imply to Class Members that no other pathways exist. This is misleading and abusive.

Columbia’s letter misleads putative class members by failing to mention the

existence of New York’s Anti-Gender Motivated Violence Act (“GMVA”)4. The GMVA

offers a two-year look-back window, which predates the enactment of the ASA, and

extends the statute of limitations through February 28, 2025.

Columbia’s failure to disclose the GMVA in its letter—a statute which has been

pled in every Complaint our office filed against Columbia since before the pandemic—

underscores the misleading nature of Columbia’s letter which seeks to direct potential

class members to the fund by implying the fund is the only remaining viable option to

pursue Justice in these cases.

An injunction should be granted preventing Columbia from having any further

contact with the class members, pending the parties’ drafting, and the Court’s approval, of

a letter designed to remediate Columbia’s disinformation campaign.

4 Columbia’s letter is also devoid of any reference to filing claims under New York’s anti-fraud and
fraudulent concealment laws—which have been successfully used by The DiPietro Law Firm against
Columbia in these cases for the past 11-years.

15
 (v) Columbia’s Letter Misleads Class Members, as well as Past and
Current Clients, into Believing Confidentiality Exists Between the
Class Members & Columbia’s So-Called “External Investigator”

The lawyer Columbia hired to “investigate and report” on Hadden’s abuses at

Columbia is Columbia University’s own attorney named Joan Loughnane from the law

firm Sidley Austin, LLP.

By law, Mrs. Loughnane’s allegiance is to Columbia University exclusively, and

not to the victims and survivors. However, Columbia has not disclosed this information to

the class members—or the public at large.

The fact that Columbia refers to its investigation as “external to Columbia”,

further implies there is a criminal, or pseudo-criminal, component to what Mrs.

Loughnane is doing. All of this has been designed by Columbia University to give the

impression that Columbia is being forthcoming, and will finally be held to account for its

role in Hadden’s abuse. But, in reality, this is not an external investigation at all.

Columbia has hand-picked and retained Mrs. Loughnane for this task. Columbia

is paying Mrs. Loughnane for the work. Columbia also has full control over the scope of

the work being performed, the extent of the work performed, and the start and end dates

of the work performed. Columbia can, at any time, and for any reason, tell Mrs.

Loughnane and her law firm to stop working. Columbia has the power to end Mrs.

Loughnane’s work, simply by not paying for Mrs. Loughnane’s services.

16
 The idea that what Mrs. Loughnane and Sidley Austin, LLP., are doing is

transparent, independent, or part of an “external investigation” (as a lay person would

understand that term) is a farce.

Unfortunately, Columbia’s decades-long history of deception may not be as

apparent to the majority of Class Members involved in this case—as it is to us. This is

among the reasons why stringent oversight, and the remediation of Columbia’s

communications, is required by this Court.

Very few class members, among the 6,500 who received Columbia’s letter, will

understand the fine points of law. As such, it was grossly (if not intentionally) misleading

for Columbia to tell class members that their identity, and the information, provided to

Columbia’s lawyers will be protected “to the maximum extent permitted by law.”

In this situation, where there is no attorney-client relationship between the

survivors and Columbia’s lawyers, the promised protections being offered “to the extent

permitted by law” is exactly zero. See, e.g., Rona v. SLS Residential Inc, 253 F.R.D. 292

(S.D.N.Y. 2008) (improper to provide misleading information to class members about

confidentiality and public disclosure of information).

(vi) Columbia Fails to Disclose that the Potential Recovery

in its Fund is Far Less than the Potential Recovery
in This Class Action or in Any Individual Case

By failing to disclose the existence of this active, and pending Class Action,

Columbia’s letter is misleading, abusive, coercive, confusing, false, and deprives

potential class members of information that “the class action vehicle offer[s] the

17
possibility of a more favorable result than the proposed settlement.” See, Cox Nuclear

Medicine v. Gold Coffee Services, Inc., 214 F.R.D. 696, 699 (S.D. Alabama 2003)

(emphasis added).

The class action seeks a recovery for plaintiffs far in excess of the recovery from

Columbia’s one-sided fund.

Columbia is well aware of the disparity between the settlement amounts procured

by The DiPietro Law Firm for 231 clients (now in excess of $250 million), and the

comparatively minuscule $100 million being proposed by Columbia for upwards of 6,500

patients. See, DiPietro Aff. at ¶¶38-43.

Because the amounts allocated by Columbia’s fund Administrator Jessica M.

Keough (See, Exhibit “C” annexed to Plaintiff’s Affirmation) have been so offensively

low ($2,500 per case at USC)5, as compared to what The DiPietro Law Firm has

accomplished in these cases with Columbia most recently ($1.123 million per case),

Columbia’s premeditated and intentional silence about the pending class action is

misleading, coercive, abusive, and should be corrected by this Court so Class Members

have accurate, impartial and complete information about their available choices.

(vii) Columbia’s Letter is Coercive for Class Members Who Are

Current Columbia Employees and Medical Patients

“Where there is an ongoing business relationship, unilateral communication from

the class defendant to the class members is inherently coercive and misleading since the

5 See, LA Times News: https://www.latimes.com/california/story/2021-05-02/usc-tyndall-sex-abuse-

settlement-leaves-some-victims-bitter

18
class members will need to rely on the defendant in the future.” See, Alfaro v. Vardaris

Tech, Inc., 2009 Wl 889951 (Sup. Ct. N.Y. Co. 2009), modified on other grounds, 69

A.D.3d 436 (1st Dept. 2010).

For example, a communication from a defendant employer to class members,

who are still defendant’s employees, can be coercive because of a reasonable concern by

employees that the employer can retaliate if they are not sufficiently accommodating to

the employer. See, Alfaro, supra. The same can be true even where the defendant is a

bank, and the class members’ credit cards are issued through that bank (clearly a less

sacrosanct relationship than exists between patients and their medical providers). See,

e.g., In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d 237, 253

(S.D.N.Y. 2005) (communications by the defendant bank, to class member credit card

holders, was deemed “coercive” because the bank could directly impact the class

members’ credit ratings).

Several class members in this action are current employees of Columbia

University, and other members are still receiving medical treatment from Columbia’s

doctors, clinics, and hospitals. Cf., FN(8).

A reasonable employee, contractor, or patient receiving Columbia’s letter may

conclude that litigating in court, versus applying to Columbia’s fund, will adversely affect

the quality of their professional relationship or treatment options—or that Columbia

could refuse to provide medical care altogether. This kind of coercive and manipulative

behavior interferes with the fair process of Class Actions, and must be stopped. See also,

19
FN8 (One of Columbia lawyers named James Dowden, Esq., a Partner at Ropes & Gray,

has already tried to overreach and coerce at least one of our law firm’s current clients into

discharging our firm, and joining Columbia’s bogus settlement fund).

(viii) Columbia is Being Coercive and Overreaching Patients

By Encouraging Them to Proceed Without Legal Counsel

Columbia’s letter states that if a survivor applies to the settlement fund, they can

“receive a financial settlement without needing a lawyer.” Columbia’s statements are self-

serving, manipulative, misleading and deceptive.

The fund is not Small Claims Court—and Columbia University is not part of the

judiciary. It is reasonable to assume that less than a handful of survivors are sophisticated

business people or attorneys.

Columbia University is being represented by lawyers in the fund; the fund is open

only to survivors not represented by counsel.

The imbalance of power, different level of sophistication, and access to legal and

financial resources matter in cases like this. Contrast, for example, Dodona I, LLC v.

Goldman, Sachs & Co., 300 F.R.D. 182, 186 (S.D.N.Y. 2014) (“it is difficult to see how

Defendants' communications with sophisticated, institutional class members, especially

communications made through their counsel, would create any risk of actual abuse”). It is

a complex and time-consuming process to establish the facts of sexual abuse, and to

20
arrive at a monetary sum to compensate for that suffering.6 To suggest to a class member

that this should be done without the assistance of legal counsel, while not disclosing that

Columbia has literally retained dozens of lawyers and law firms to help fight against

victims and survivors—or telling class members that Columbia has retained lawyers who

are “trauma informed” and will be helpful and fair to the unrepresented claimants—is

coercive, deceptive and misleading—and even amoral.

The clear objective of Columbia’s letter is to try and dissuade victims and

survivors from seeking legal advice; and capture unrepresented and unsophisticated

patients in Columbia’s opaque settlement fund so that Columbia’s lawyers will have the

opportunity to settle cases for the lowest amount possible, while retaining all the power to

“dictate” both the amount, and the terms, of each settlement.

An injunction and restraining order is necessary to prevent the harm which has

arisen from Columbia’s unsupervised, disingenuous, and inaccurate communications with

the 6,500 lay class members in this case.

(ix) Columbia’s Letter Fails to Disclose that Accepting a Payment

From the Columbia Fund Will Require the Survivor to
Release Columbia from All Future Claims, Such that They
Cannot Pursue Any Further Actions in Court Against Columbia

The tone of Columbia’s letter—“rebuilding trust”—attempts to mask what the

letter actually seeks: a full release of all future claims against the University, including

6In these cases, court supervised settlement negotiations for 231 survivors took over 10
years of litigation, hundreds of thousands of dollars expended, five (5)-separate
mediations, countless motion practice, and three (3) appeals.

21
this class action, for an amount that is far less than can be achieved by the class action or

an individual case. See, Exhibit A. Columbia’s letter is misleading and deceptive, and

plaintiffs’ request for a restraining order should be granted.

(x) Columbia’s Letter is Confusing with Respect to Representation by

Counsel, with Respect to the Deadline to File a Case Under the
Adult Survivors Act, and with Respect to the Existence, or
Absence, of All Other Available Causes of Action and Paths to
Justice in New York State

While Columbia’s letter falsely implies the ease with which an unaided and

unrepresented survivor can settle a sexual abuse claim, supra, the letter is plainly

confusing regarding whether Columbia’s settlement fund is available only to survivors

who are not represented by counsel, or whether the fund is available to survivors who

already have an attorney. See, DiPietro Aff. at ¶¶25-31.

Confusion can inappropriately influence an individual’s decision whether or not

to join a class action, and should not be allowed. See, In re School Asbestos Litigation,

842 F.2d 671, 683 (3d Cir. 1988). Confusion in a class action, or any other case, will

“adversely affect the administration of justice.” See, Erhardt v. Prudential Group, Inc.,

629 F.2d 843, 846 (2d Cir. 1980).

On its face, Columbia’s letter does not preclude patients, who have already

retained counsel, from participating in the settlement fund. However, attorney DiPietro

has been informed by the fund’s Administrator that his clients are “not eligible” to

participate. See, DiPietro Aff. at ¶¶28-29.

22
 It is apparent that Columbia and its lawyers do not want to disclose to class

members, lawyers (or the public) what the parameters are for a monetary recovery; what

the ranges of recovery are, what the terms are for receiving compensation; or what

portion of the fund has been allocated to pay Columbia’s lawyers for administering the

fund and conducting their bogus “external investigation”. See, e.g., The Hill News

Report, https://thehill.com/regulation/court-battles/535929-weinstein-bankruptcy-plan-

approved-17m-going-to-victims/ (Fees by lawyers administering fund totaled more than

50% of fund assets).

Another possible reason why Columbia will not allow fund claimants to be

represented by counsel is because Columbia is trying to put represented clients in

opposition with their own lawyers. If Columbia is allowed to ban claimants who are

represented by counsel, while expeditiously resolving cases for claimants who are

unrepresented by counsel, it creates the illusion that the people are better off not having

counsel.

Columbia’s unsupervised, misleading, abusive and coercive communications with

putative class members, and current clients, can only serve to sow confusion and distress

amongst class members.

Columbia’s Catch & Kill letter does not inform potential class members of the

pending class action, does not inform them that the statute of limitations for ASA claims

has been tolled for class members, does not present fair and accurate information about

23
their claim, and does not inform them that there are other paths to justice in addition to

the ASA7.

Instead, Columbia’s letter is designed, and intended, to coerce and entice putative

class members to participate in Columbia’s opaque and one-sided fund—which will

provide lower compensation, and less equity, than is available to Class Members through

other paths that Columbia has failed to disclose.

The cumulative effect of Columbia’s misleading communications with former

patients “threatens the choice of remedies available to class members,” in a way that

other Courts, in similar situations, have found improper. See, e.g., In re Currency

Conversion Fee Antitrust Litigation, 361 F. Supp.2d at 252. Plaintiffs’ request for an

injunction and restraining order should be granted.

D. The Standards for a Temporary Restraining Order and Preliminary

Injunction Against the Columbia Defendants Are Met

This Court has both the authority, and the duty to restrain, supervise and regulate

defendant Columbia University’s communications with putative class members under

CPLR § 907(3). See, e.g., Borden v. 400 East 55th Street Associates, 2014 WL 4950057

(Sup. Ct. N.Y. Co. 2014).

To secure such relief, the moving party in a class action must show, first, that a

particular form of communication to potential class members has occurred or is

7 New York City’s Anti-Gender Motivated Violence Act opened a look-back window similar to the ASA,
that remains open until February 28, 2025. This information is well known to Columbia (and all 10+ of its
insurance defense firms that Columbia has hired over the past decade), but Columbia chose to withhold
this important information from each of the 6,500 patients who received the letter. In addition, plaintiffs’
statutes of limitation are all tolled under New York’s anti-fraud statutes.

24
threatened to occur, and second, that the communication is misleading, abusive, or

coercive. See, Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D. at

697-698, or “threaten[s] the choice of remedies available to class members.” See, In re

Currency Conversion Fee Antitrust Litigation, 361 F.Supp.2d at 252.

Plaintiffs have shown that Columbia has sent letters to class members, and may

still be sending those letters, to 6,500 former patients who the university exposed to

Robert Hadden. Columbia’s communications do not contain accurate information, and are

designed to make class members forfeit their legal rights.

Plaintiffs have demonstrated supra, that Columbia’s letters are misleading,

abusive, confusing and coercive, because they: (a) fail to disclose this pending class

action; (b) misinform class members that their opportunity for compensation under the

ASA is foreclosed unless they file suit by November 23, 2023[sic], when, in fact: (i) that

is not when the ASA window closed; and (ii) under American Pipe, the statutes of

limitations for potential class members is tolled by the filing of this class action; (c) fail

to inform potential class members that the statute of limitations under the New York’s

Anti-Gender Motivated Violence Act (GMVA) has not expired; (d) fail to inform

potential class members that their statute of limitations may not have run under New

York’s fraud and fraudulent-concealment laws; (e) fail to inform patients that the amount

of compensation they can receive in the class action (Columbia’s letter fails to even

mention the existence of this class action at all) is far in excess of what they can

reasonably expect to receive from Columbia’s fund; (f) are coercive and abusive with

25
respect to the members of the Class who continue to receive medical care from Columbia

or work for, or with, the institution8; (g) mislead putative class members, and other

clients, into believing there is no need to retain a lawyer to help prosecute a complex

claim for sexual abuse by Columbia’s doctor; (h) fail to inform class members, and other

clients, that in order to receive money from the Columbia fund, they will be required to

release all claims against Columbia–including their claims in this Class Action which

they don’t even know exists; and (i) create confusion about whether class members and

other clients can participate in the Columbia fund, or otherwise settle their claims with or

without representation by counsel.

It is clear the plaintiffs meet the standard for a preliminary injunction under

CPLR § 6301 because they “demonstrate a probability of success on the merits, danger of

irreparable injury in the absence of an injunction and a balance of equities in its favor.”

See, Nobu Next Door LLC v. Fine Arts Housing, Inc., 4 N.Y.3d 839, 840 (2005).

Plaintiffs have a high probability of success in this class action. Columbia has

publicly acknowledged its liability for Hadden’s conduct, and has previously settled

claims in sums greater than $ 250,000,000.00 for 231 victims to date.

There is also a high probability the Court will exercise its authority under CPLR §

907(3) to restrain Columbia’s communications with class members, because Columbia’s

letter is so plainly misleading, abusive, coercive, and confusing.

8 Again, this is not hypothetical. The Court should be aware that Mr. James P. Dowden, Esq., a Partner
with Ropes and Gray (who is not a licensed attorney in New York State, but was retained by Columbia
University to act as Columbia’s “settlement counsel”), has personally, directly, and improperly attempted
to induce at least one of our firm’s clients to discharge our office and join Columbia’s bogus fund.

26
 The irreparable harm faced by the putative class members is obvious. Columbia

University is opening the fund in January 2024, and there is the clear and immediate risk

that countless class members, who may have already contacted Columbia, will settle

claims for sums that are far less than they could secure in the class action or through an

individual case—and will settle those claims without even knowing this class action is

pending.

Without Court intervention, Columbia’s unsupervised, misleading, abusive,

coercive, and confusing letter will limit “the choice of remedies available to class

members” because Columbia’s letter misleads class members about their available

options. See, e.g., In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d at

252.

The balance of equities favors the putative members of the class. Class members

are entitled to “accurate and impartial information” before deciding how to resolve their

claims.

There is little, if any, equity on Columbia’s side. Assuming that Columbia has the

right to inform people of the Columbia fund—it does not have the right to do so in a letter

that is misleading, abusive, coercive, confusing, and false. This preliminary injunction

does not cause any prejudice to Columbia. But, the failure to issue the injunction would

cause immediate severe and irreparable prejudice to the putative class members.

27
 A temporary restraining order and injunction are warranted under CPLR § 6313

because the putative class members are facing a significant risk of immediate and

irreparable injury.

According to information that has been disseminated by defendant Columbia, the

fund will open in less than one-week, in January 2024. When that happens, the putative

Class Members and other clients who settle, unaware of all the facts, and without

knowledge of the existence of this case, will suffer immediate and irreparable injury,

having been induced by defendants into settling their claims without counsel, without

accurate, fair and impartial information about their legal options, and without ever being

informed of this pending class action.

The Court should grant a temporary restraining order and a preliminary

injunction.

WHEREFORE, plaintiffs request and Order as follows:

(a) Until further Order of the Court, defendants, their lawyers, agents, servants,

employees, contractors, and all other persons acting under the jurisdiction, supervision

and/or direction of Columbia University, shall be barred from sending any further letters,

emails, or correspondence to any Hadden patients, victims, survivors, or putative class

members; and

(b) Until further Order of the Court, defendants, their lawyers, agents, servants,

employees, contractors, and all other persons acting under the jurisdiction, supervision

and/or direction of Columbia University, shall be barred from having any oral,

28
telephonic, written, or other communication with any Hadden patients, victims, survivors,

or putative class members who contact defendant Columbia University or its agents in

response to any letters, press releases, internet or website postings by defendants or their

agents; and

(c) Until further Order of the Court, defendants their lawyers, agents, servants,

employees, contractors, and all other persons acting under the jurisdiction, supervision

and/or direction of Columbia University, shall be barred from having any further

communication with any Hadden patients, victims, survivors, or putative class members;

and

(d) For such other and further relief as to the Court may seem just and proper.

Dated: New York, New York

December 26, 2023

The DiPietro Law Firm

By: _____________________________________
Anthony T. DiPietro, Esq.
New York Patient Safety & Sexual Exploitation
and Abuse Law Firm for Survivors !
Attorneys for Plaintiffs
The Woolworth Building
233 Broadway - Suite 880
New York, New York 10279

29
To:

AARONSON, RAPPAPORT, FEINSTEIN & DEUTSCH, LLP.

Attorneys for Defendants
COLUMBIA UNIVERSITY; THE NEW YORK & PRESBYTERIAN HOSPITAL;
COLUMBIA PRESBYTERIAN MEDICAL CENTER; COLUMBIA UNIVERSITY
MEDICAL CENTER; COLUMBIA-PRESBYTERIAN MEDICAL CENTER, EAST
SIDE ASSOCIATES; EAST SIDE ASSOCIATES; THE TRUSTEES OF COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK; COLUMBIA UNIVERSITY COLLEGE
OF PHYSICIANS AND SURGEONS; PRESBYTERIAN HOSPITAL PHYSICIAN
SERVICES ORGANIZATION, INC.; COLUMBIA-CORNELL CARE, LLC.; SLOANE
HOSPITAL FOR WOMEN; JANE BOOTH; PATRICIA CATAPANO; JOHN C.
EVANKO; ROBERT KELLY; LEE GOLDMAN; and MARY D’ALTON
600 Third Avenue
New York, NY 10016
212-593-8054

VASLAS, LEPOWSKY & HAUSS, LLP.

Attorneys for Defendant ROBERT HADDEN
201 Edward Curry Avenue, Ste. 100
Staten Island, NY 10314
718-761-9300

MARTIN, CLEARWATER & BELL, LLP.

Attorneys for HAROLD E. FOX
245 Main Street
White Plains, NY 10601
914-328-2969

30
 WORD COUNT CERTIFICATION

Pursuant to the Uniform Civil Rules for the Supreme Court, Rule 202.8-b regarding the
Length of Papers, the undersigned attorney, admitted to practice in the Courts of New York State,
certifies that upon information and belief, a reasonable inquiry, and the word count of our
office’s word-processing system used in preparing the within PLAINTIFFS’ MEMORANDUM
OF LAW, that the body of the referenced document (exclusive of the caption, signature line,
addressee information, greyback, this certification, and any attachments) contains SIX
THOUSAND FOUR HUNDRED AND FORTY (6,440) words, and as such complies with the
word count limit.

_____________________________
By: Anthony T. DiPietro, Esq.
Attorney for Class Plaintiffs

31
Index No.: 952117 Year 2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
==========================================================================
JANE DOE #1236; JANE DOE #1252; individually and on behalf of all similarly situated,

Class Plaintiffs,

- against -

COLUMBIA UNIVERSITY; THE NEW YORK AND PRESBYTERIAN HOSPITAL; COLUMBIA

PRESBYTERIAN MEDICAL CENTER; COLUMBIA UNIVERSITY MEDICAL CENTER;
COLUMBIA-PRESBYTERIAN MEDICAL CENTER, EAST SIDE ASSOCIATES; EAST SIDE
ASSOCIATES; THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK;
COLUMBIA UNIVERSITY COLLEGE OF PHYSICIANS AND SURGEONS; PRESBYTERIAN
HOSPITAL PHYSICIAN SERVICES ORGANIZATION, INC.; COLUMBIA-CORNELL CARE,
LLC; COLUMBIA CORNELL NETWORK PHYSICIANS, INC.; SLOANE HOSPITAL FOR
WOMEN; HAROLD E. FOX; JANE BOOTH, PATRICIA CATAPANO; JOHN C. EVANKO,
ROBERT HADDEN; ROBERT KELLY; LEE GOLDMAN and MARY D’ALTON,

Defendants.
===========================================================================

PLAINTIFFS’ MEMORANDUM OF LAW

===========================================================================
LAW OFFICE OF ANTHONY T. DIPIETRO, P.C.
Attorney for Plaintiffs
Office and Post Office Address and Telephone Number:
The Woolworth Building
233 Broadway - Suite 880
New York, New York 10279
(212) 233-3600
===========================================================================
Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the Courts of New
York State, certified that, upon information and belief and reasonable inquiry, (1) the contentions
contained in the annexed document are not frivolous, and that (2) if the annexed document is an imitating
pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other
persons responsible for the illegal conduct are not participating in the matter or sharing in any fee
earned therefrom, and that (ii) if the matter involves potential claims for personal injury or wrongful
death, the matter was not obtained in violation of 22 NYCRR 1200.41-a.

Dated: December 26, 2023 Signature_______________________________

Print Signer’s Signature: Anthony T. DiPietro, Esq.

===========================================================================
Service of a copy of the within is hereby admitted,
Dated,——————————————————————————————————————

32