The legal fallout from the mushrooming Weinstein sex scandal could be big

The legal fallout from the mushrooming Weinstein sex scandal could be big

By: Daniel Miller, Ryan Faughnder & David Ng
Los Angeles Times
October 10, 2017

The mounting sexual assault and harassment claims against disgraced Hollywood mogul Harvey Weinstein could have severe legal consequences for the executive and his already struggling namesake company.

Although it may be difficult to build a criminal case against Weinstein, his alleged mistreatment of women could expose him and his film and TV company to costly civil lawsuits, according to attorneys and professors specializing in sexual misconduct.

“The potential liability is significant,” said Ann Fromholz, a Pasadena attorney who has handled sexual harassment cases.

Under California law, Weinstein Co. could be liable for Weinstein’s alleged actions, according to Doug Silverstein, an attorney specializing in employment and discrimination. “They are on the hook just like him,” he said.

Whether an alleged victim could bring a lawsuit against Weinstein, 65, would hinge, in part, on the applicable statute of limitations. In California, the statute of limitations for civil sexual assault is two years and in New York it is three years; Weinstein has been accused of misconduct in both states.

“I expect a flood of lawsuits to be headed his way if they are timely and he hasn’t already bought off the victims,” said Laurie Levenson, a professor at Loyola Law School.

Weinstein Co., based in New York, fired the executive over the weekend after an investigation by the New York Times said he’d reached at least eight legal settlements, dating to 1990, with women over alleged harassment. On Tuesday, the New Yorker published a story that included, among other allegations, claims that Weinstein had raped three women in the last 20 years. Among them was actress Asia Argento, who appeared in “B. Monkey,” a 1999 drama distributed by Miramax, then headed by Weinstein.

Weinstein, who previously apologized for some of his behavior, denied the rape claims. “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein,” a representative said in a statement, adding that “Weinstein believes that all of these relationships were consensual.”

In a statement Tuesday night, Weinstein Co.’s board of directors said they were “shocked and dismayed” by the latest allegations and that they are “committed to assisting with our full energies in all criminal or other investigations of these alleged acts.”

Legal experts said that Weinstein could face criminal liability over his alleged behavior. In New York, there is no statute of limitations for criminal sexual assault — the result of a 2005 law that did away with a prior timing restriction. Any alleged act that occurred after that year can be prosecuted in the state.

In California, a previous 10-year criminal statute of limitations for rape and other sexual misconduct was removed last year after Gov. Jerry Brown signed legislation amending the penal code. The new law went into effect Jan. 1 and affects certain sex crimes that have occurred in 2017 or will transpire in the future. It also applies to alleged offenses for which the prior statute of limitations had not expired by Jan. 1.

But bringing a criminal case against Weinstein, known for producing Oscar-winning films such as “Shakespeare in Love,” would be more difficult than a civil action, experts said, in part because alleged victims may have signed affidavits repudiating their allegations. In one 2015 matter, fashion model Ambra Battilana Gutierrez told police in New York that Weinstein had groped her, but the Manhattan district attorney decided against charging the executive. Gutierrez reached a settlement with Weinstein, according to reports.

“If we could have prosecuted Harvey Weinstein … we would have,” a spokesperson for Manhattan Dist. Atty. Cyrus R. Vance Jr. said in a statement. “Mr. Weinstein’s pattern of mistreating women, as recounted in recent reports, is disgraceful and shocks the conscience.”

Levenson cited Bill Cosby — one of several entertainment and media personalities recently accused of sexual assault — to illustrate the difficulty in prosecuting high-profile figures for alleged acts committed years ago. Dozens of women have accused Cosby of rape, sexual battery and other misconduct, and many of the entertainer’s alleged victims have sued him. However, only one criminal case over alleged sexual assault has been brought against Cosby, and the Pennsylvania trial, which focused on an alleged 2004 incident, ended in a hung jury in June. Cosby has denied wrongdoing.

Levenson, a former assistant U.S. attorney, said a criminal case being brought against Weinstein would be “possible, but still not likely.”

In recent days, Weinstein Co., which was started in 2005 and produced hits including “The King’s Speech” and “Django Unchained,” has been working to distance itself from its co-founder. Still, questions remain over how much others at the company knew about Weinstein’s alleged behavior.

The New Yorker article described a “culture of complicity” at the Weinstein Co. Some current and former employees told the magazine that they were enlisted to help trick women into being alone with Weinstein in supposedly professional meetings that were pretexts for his sexual advances.

In California and New York, companies can be found liable if a manager has engaged in harassment, even if others at the firm weren’t aware of the inappropriate behavior, Fromholz said. Weinstein was co-chairman of his company and, with his brother Bob, owns 42%.

“If a manager of a company engages in harassment conduct, the company is liable even if they didn’t know about it,” Fromholz said.

Potential damages in such cases could include loss of wages, for example, if the victim is unable to work or find work because of the harassment. Companies can also be hit with demands for damages for emotional distress, among other claims.

Weinstein could also face lawsuits from the company he led until Sunday. Other shareholders of Weinstein Co. could sue him for breach of contract if he broke the company’s covenants or policies, according to one legal expert. However, if those shareholders knew about his alleged behavior and failed to act or were complicit, they would be unable to reap the prospective gains of a lawsuit.

Can the Weinstein Co. survive without Harvey Weinstein?
A flood of high-profile Hollywood and political players spoke out against Weinstein on Tuesday, among them Hillary Clinton, whose political career was long supported by the executive. Also on Tuesday, more women came forward to allege that they too had been harassed by Weinstein, including A-list actresses Gwyneth Paltrow and Angelina Jolie.

And at a news conference Tuesday, former actress and screenwriter Louisette Geiss accused Weinstein of harassing her in a hotel room during the Sundance Film Festival in Park City, Utah, in 2008. The statute of limitations related to the alleged incident has expired, but Geiss’ attorney, Gloria Allred, urged Weinstein to waive the civil statute of limitations.

“Why would he do it? Because I think he wants to work in this town again,” Allred said.

But efforts are rapidly underway to erase Weinstein’s connections to projects, people and institutions with which he was affiliated. Weinstein Co. has given television networks permission to remove his name from their shows’ credits. Also, several U.S. senators are giving away political donations that the executive made to them.

On Tuesday afternoon, USC said it would decline Weinstein’s pledge to fund a $5-million endowment for female filmmakers. An hour or so later, Weinstein’s wife of a decade, Marchesa designer Georgina Chapman, announced that she is leaving him.