By Michael J. Williams, Esq. and Anastasia M. McCarthy, Esq.
On November 24, 2022, New York’s Adult Survivors Act’s lookback window opened, providing a one-year opportunity for survivors to bring civil actions previously barred by the statute of limitations. Survivors may file suit based on a wide range of abusive actions prohibited by the Penal Law’s Article 130, including such acts as forcible touching. The ASA is based largely on the Child Victims Act that resulted in approximately 11,000 actions being filed for the abuse of minors. Claims under the ASA will pursue similar theories as its CVA predecessor, seeking to hold individuals, supervisors, employers, premises owners, and security providers liable, both based on direct involvement and on vicarious liability theories.
ASA liability can be analogized to recent pre-enactment litigation. On October 7, 2022, 147 women who reported sexual abuse by a gynecologist reached a $165 million settlement against two New York hospitals. This followed a $71.5 million settlement in 2021 resolving the claims of 79 additional women. The physician was licensed in New York from 1990 until he was required to surrender his medical license in 2016 after pleading guilty to a criminal sex act in the third degree and forcible touching. The Manhattan District Attorney’s Office confirms that its investigations into this person’s misconduct are ongoing and include new allegations.
As neither the passage of time nor terminating the individual impedes ASA claims, the case presents what is commonly understood under the ASA: a civil action against the alleged perpetrator and their employer. However, other early filers have targeted more tangential parties. One plaintiff has sued JP Morgan Chase for its connections with deceased and disgraced financier Jeffrey Epstein for enablement, having been “a complicit financial banking institution that would ignore red flags” while financing his ventures. JP Morgan Chase’s agents are not charged with knowing about Epstein’s sex trafficking, but of having benefited from the business relationship and ignoring suspicious financial activity. Deutsche Bank has been similarly named in another Epstein-related lawsuit, after having paid a $150 million fine resulting from its dealing with Epstein and Russian oligarchs.
Author E. Jean Carroll had forecast her intention to file an ASA case against former President Donald Trump, a second action following her ongoing defamation case (Carroll v. Trump, SDNY No. 20-07311). Ms. Carroll has asked the court to coordinate the February 6, 2023 trial in her defamation case, that has proceeded since 2020, with her newly filed ASA case on an extremely truncated schedule. Potential defendants must be aware that pre-existing litigation may become a vehicle for ASA claims, and that even the evidence discovered in actions previously dismissed as time barred will support renewed ASA litigation.
The changing legal landscape must also account for new and soon to be enacted legislation. On March 3, 2022, President Joe Biden signed an amendment to the Federal Arbitration Act captioned the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The amendment retroactively prohibits defendants from compelling arbitration, and further permits the survivor to proceed in joint, class or collective actions, leading defendants to incur greater expenses and public exposure (particularly should public notice be required in class action or multidistrict litigation). Survivors may elect to waive these rights in arbitration agreements after the events at issue, making an employer’s most recent incarnation of any such agreements critical to its defense.
Additionally, potential defendants should recall that President Biden signed the Eliminating Limits to Justice for Child Sex Abuse Victims Act earlier this year, ending the federal statute of limitations for such offenses. While the federal government has not yet followed New York as to adults, such further action should be anticipated. Additionally, business entities operating in multiple jurisdictions must be aware of ASA and CVA legislation in each state where they conduct substantive business. In the last twenty years, at least 23 other states and three United States territories have eliminated or expanded their statute of limitations for abuse claims. Any potential defendant at risk for federalized or multijurisdictional litigation must prepare for complex litigation accompanied by changed and changing rules.
More than ever, responsible business practices require action to prevent future abuse claims, documenting those efforts in employee and management materials, and updating arbitration agreements in employment materials. Business management must also look to the potential for past liability, secure and preserve materials that document past prevention efforts, conduct their insurance archaeology while documents might still be identified, and maintain appropriate claims-made coverage for directors and officers or employment practices. The Boy Scouts of America’s motto of “be prepared” failed to prevent a $2.46B reorganization plan in bankruptcy due to CVA litigation. Potential defendants must be more prepared and act prospectively to avoid similarly devastating outcomes under the ASA.